(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 The appellants-convicts, by way of this Appeal have challenged the judgment and order dated 30.11.2005, passed by the learned Presiding Officer and Additional Sessions Judge, Fast Track Court No.1, Dahod, in Sessions Case No. 82 of 2005, by which appellant No.1 is ordered to undergo rigorous imprisonment of life with fine of Rs.25,000/-, in default, to undergo further rigorous imprisonment of six months for the offence under Section- 302 of the IPC; rigorous imprisonment of 7 months with fine of Rs. 500/-, in default, to undergo further rigorous imprisonment of one month for the offence under Section-323 of the IPC and to undergo rigorous imprisonment of one month with fine of Rs.100/-, in default, to undergo RI for one month for the offence under Section- 504 of the IPC and appellant No.2 is ordered to undergo rigorous imprisonment of life with fine of Rs.1,000/-, in default, to undergo further rigorous imprisonment of six months for the offence under Section-302 of the IPC; rigorous imprisonment of 3 months with fine of Rs.250/-, in default, to undergo further rigorous imprisonment of one month for the offence under Section-323 of the IPC and to undergo rigorous imprisonment of one month with fine of Rs.100/-, in default, to undergo RI for 15 days for the offence under Section-504 of the IPC. All the aforesaid sentences are ordered to run concurrently and both the accused are acquitted of the offence under Section-135 of the Bombay Police Act.
2 Brief facts of the prosecution case are as under:
That one Ganabhai Ditabhai Bhuriya, on 26.3.2005, which was the second day of Holi (Dhuleti), lodged a complaint with Limdi police station of District Dahod against the present appellants alleging that since it was an occasion of Dhuleti, his son Bharat had played Dhuleti by throwing some colours on the daughter of the appellant No.1 and, therefore, the appellant No.1 being the father, gave two slaps to his son. At that time, his son Bharat challenged appellant No.1 that he has to pass through his house and therefor, the appellant No.1 along with appellant No.2, who is his nephew, ran after his son Bharat and when his son reached near the quarry, both the appellants caught hold of his son and gave kick and fist blows to him. He along with his wife Kaliben saw his son Bharat was running. Therefore, they reached at that place where they found that Bharat was successful in getting himself rescued from the appellants – accused. At that time, when his son Bharat was running, appellant No.1 picked up stone and thrown towards his son, who sustained an injury on the back side of his left ear and, therefore, Bharat fell down and thereafter the appellants left the place and ran away towards their house. The complainant took his son to a private Doctor, who advised them to take him at District place at Dahod and when they reached at the hospital of another Doctor, his son Bharat was declared dead.
3 Pursuant to the filing of the complaint, the police personnel started investigation and after having found sufficient material against the accused persons, filed charge sheet in the court of learned Judicial Magistrate, First Class, at Jhalod, who in turn, committed the case in the Court of Sessions at Dahod.
4 The accused persons pleaded not guilty for the charges levelled against them at Exhibit-2 and, therefore, the trial proceeded further . The prosecution examined 17 witnesses and produced other documents in support of its case and was successful in getting conviction of the appellants for the offences for which they were charged and were sentenced, as stated here-in-above.
5 Learned Advocate Ms. Sadhana Sagar, for the appellants, has assailed the judgment on several grounds, but the main ground advanced by her is with regard to truthfullness of the witnesses, ho posed themselves as eye witnesses to the incident. In support of her submissions, she has stated that the entire case of the witnesses at the initial stage was of pelting stone by appellant No.1 but subsequently the witnesses had deposed before the court by improving themselves, so that the medical evidence which has come on record would suit the say of those witnesses. She has further submitted that the eye witnesses, who are the parents and younger brother, aged 13 years, of the deceased – Bharat, if not believed, then, the entire case of the prosecution about the cause of death of the deceased Bharatbhai becomes unacceptable and therefore the reasons assigned by the Trial Court in accepting the depositions of these witnesses become erroneous and contrary to the evidence on record and therefor the conviction and sentences of the accused persons are required to be set aside. She has further submitted that the conduct of the investigating agency creates doubt if the inquest panchnama and the injuries sustained by the deceased, which has come on record through postmortem note, are compared.
6 On the other hand, learned APP Mr. L.B. Dabhi, has supported the reasons assigned by the Trial Court and submitted that the parents and brother of the deceased are natural witnesses and have deposed before the court what they have witnessed. He has submitted that these witnesses have seen the incident of pelting stones by appellant No.1 but before the Court they have described the incident in detail and, therefore, the reasons assigned by the Trial Court does not require any interference.
7 We have gone through the record and proceedings and perused the depositions of the witnesses as well as the documentary evidence proved by the prosecution before the Trial Court.
8 PW-1–Ganabhai Ditabhai Bhuriya, examined at Exhibit- 9, who is the father of the deceased (the complainant), had lodged the complaint at Exhibit-10 on 26.3.2005. In his deposition, he had admitted that his son Bharat had played Dhuleti by applying some colours on the daughter of the appellant No.1 and has explained the entire incident as per his FIR, but he has added that after running behind his son Bharat, both of them caught hold of his deceased son – Bharat and appellant No. 2 sat over his son and gave kick and fist blows. He has further deposed that when his son was shouting, appellant No. 2–Sureshbhai had smothered his son by closing his mouth and nose. This aspect about smothering is an improvement by the complainant, which is proved through police witness-Mansingbhai Kalji Charel, PW-8, examined at Exhibit-17, who recorded the complaint given by Ganabhai. Ganabhai, in his cross-examination, deposed that when his son was taken to a private Doctor at village Limbdi, he was alive. As per the say of the father, his son Bharat was taken to the clinic of Dr. Ramanbhai Chimanbhai Bariya and thereafter he was taken to the private clinic of Dr. Bharpoda. Dr. Ramanbhai Chimanbhai Bariya, PW-6, Exhibit-15 has deposed that when the boy was brought before him, he was not alive. It is pertinent to note at this stage that Dr. Bariya has not been cross-examined by the defence. He has not supported the case of the prosecution. It is also pertinent to note at this stage that the prosecution has not examined Dr. Bharpoda to support the say of the prosecution. Similar is the say of another witness, namely, Kaliben Ganabhai Bhuriya, PW-16, Exhibit-34, the mother of the deceased. She has also improved her earlier version by stating that the deceased was smothered by the appellants. Her say is contrary to the deposition of PW-17 Patel Vasantkumar Prabhudas, examined at Exhibit-35, who had recorded the statement of Kaliben. The third eye witness Sandip Ganabhai Bhuria, PW-15, examined at Exhibit-33, who is the brother of deceased, has stated that he was present when the incident took place and his brother was smothered by appellant No.2 but in his cross-examination he has admitted that his brother was alive when he was taken to the hospital.
9 Now looking to the injuries found on the person of the deceased are concerned, the prosecution has examined Dr. Rameshprasad Jaiprakash Singh, PW-14, Exhibit-30, who has described 10 external injuries and eight internal injuries. In his opinion, as per the postmortem note at Exhibit-32, the deceased - Bharat died due to smothering , which resulted into the suffocation. The injuries were found by the Doctor when he carried out the postmortem of the dead body. He found 10 external injuries, however, if the Inquest Panchnama at Exhibit- 36 if perused, the dead body had only one injury of 2cm incise behind the left ear. It is categorically mentioned in the said panchnama that except this injury, no other injury was found on the person of the deceased.
10 We are of the view that the eye witnesses have developed case according to the medical evidence which has come on record subsequent to the initial information given by Ganabhai - complainant. If they have seen the most important aspect about smothering of the deceased, there was no reason for the complainant or other witness–Kaliben not to narrate the incident before the police authority immediately, who recorded either the complaint or the statement of the witnesses. The description of the entire incident, which is initially disclosed, is about throwing of stone by appellant No.1, is completely changed into a one by which the witnesses have tried to involve the appellants in the incident, and particularly appellant No.2 by deposing that he had smothered the deceased. Except these witnesses, no other witness has supported the case of the prosecution, who were examined by the prosecution as independent witnesses, who have alleged to have seen the incident. Neighbours - PW-2 Mukeshbhai Chunilal Ninama, Exhibit-11; PW-3 Ramsinh Harisinh Bhuriya, Exhibit-12; PW-4 Rameshbhai Lalbhai Ganava, Exhibit-13; PW-5 Rameshbhai Ramabhai Machar, Exhibit-14, etc have not supported the case of the prosecution.
11 In view of the facts of the case, it appears to us that, those witnesses, who posed themselves as eye witnesses, are close relatives of the deceased, and therefor, we have thoroughly scrutinized the depositions of these witnesses and have found that they have not deposed the correct facts before the Court and therefore it becomes doubtful whether they were the witnesses to the incident as described by them at the first point of time. The conduct of the witnesses changing the description of entire incident creates doubt about their presence at the place of incident which would certainly go in favour of the accused – appellants. In our view, the prosecution has failed to prove the case beyond reasonable doubt and, therefore, the benefit of doubt must go to the accused and the appeal is required to be allowed and the appellants – accused are required to be acquitted from the charges levelled against them.
12 In the result, the Appeal succeeds and is allowed. The impugned judgment and order dated 30.11.2005, rendered in Sessions Case No. 82 of 2005, by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.1, Dahod, recording the conviction of the appellants and the sentence awarded to them is set aside and the appellants are acquitted of the charges levelled against them. The appellants – accused are in jail. They shall be set at liberty forthwith if not required to be detained in connection with any other offence. Fine, if any paid, shall be refunded to them.
pnnair (A.L. DAVE, J.) (A.J. DESAI, J.)