IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 369 of 2006 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= RAJUBHAI JANGUBHAI RATHWA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance :
MS KRUTI M SHAH for Appellant(s) : 1 - 2. MR K.P.RAVAL, APP for Opponent(s) : 1, ========================================================= HONOURABLE THE CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 06/09/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) The present Appeal is at the instance of two convicts for the offences punishable under Section 302 read with Section 114 of the Indian Penal Code, and is directed against an order of conviction and sentence dated 1st February 2006, passed by the learned Presiding Officer and Additional Sessions Judge, Fast Track Court No.2, Chhotaudepur, District Vadodara in Sessions Case No.31 of 2003. By the aforesaid order, the learned Additional Sessions Judge found the appellants guilty of the offences punishable under Section 302 read with Section 114 of the Indian Penal Code and consequently, sentenced them to suffer Life Imprisonment and a fine of Rs.100/- each. In default of payment of fine, the appellants were directed to undergo further Rigorous Imprisonment for one month. At the same time, the learned Additional Sessions Judge acquitted both the accused appellants of the offences punishable under Sections 143, 147, 148, 307, 325, 323, 324 read with Section 149 IPC. It may not be out of place to state that, in all eleven persons were charge-sheeted for the offences punishable under Sections 143, 147, 148, 149, 302, 307, 323, 324, 325 and 504 IPC and all the eleven accused persons inclusive of the appellants herein were put to trial, out of which the learned Additional Sessions Judge acquitted nine co-accused of all the offences with which they were charged, whereas the present appellants who are convicted for the offences punishable under Section 302 read with Section 114 IPC.
At the very outset, Ms.Kruti M. Shah, learned counsel appearing for the appellants, submitted that the accused appellant no.1, Rajubhai Jangubhai Rathwa, has been declared absconding by the jail authorities and, therefore, as on today, when the Appeal is being taken up for hearing, the accused appellant no.1, Rajubhai Jangubhai Rathwa, could not be said to be in custody. Ms.Kruti Shah brought this fact to our notice very fairly, as according to Ms.Kruti Shah, the Division Bench of this High Court in the case of Mahendra Bhogilal Tadvi v/s. State of Gujarat, reported in 2009 Cr.L.J. 1486, has taken a view that appeal preferred by an accused should be dismissed if at the time of taking up the appeal for final hearing it is brought to the notice of the Court that the accused is absconding, with liberty to apply for restoration in the event he surrenders or is re-arrested. We brought to the notice of Ms.Kruti M.Shah, learned counsel appearing for the appellants, that in the aforesaid decision of the Division Bench, a direct judgment of the Supreme Court in the case of Dilip S.Dahanukar v/s. Kotak Mahendra Co. Ltd. and another, reported in AIR 2007 SC (Supp) 1345, was not taken into consideration as it appears that perhaps the decision of the Supreme Court in Dilip S.Dahanukar (supra) might not have been brought to the notice of the Division Bench. This very Bench, while deciding Criminal Appeal No.1066 of 2006, took notice of the decision of Dilip S.Dahanukar (supra), and relying on the said decision, has taken the view that under the Code of Criminal Procedure, once an appeal is admitted, there is no scope of dismissing the appeal on other grounds than merits or on abatement. This Bench has also observed while deciding Criminal Appeal No.1066 of 2006 that in the Code of Criminal Procedure, no power has been given to the Appellate Court to dismiss the appeal merely on the ground that the appellant had, by violating the conditions of temporary bail, failed to surrender or absconded. Once an appeal has been admitted it has to be heard on merits if the learned advocate for the appellant is prepared to argue the matter. This Bench took the view that the Division Bench’s decision of this High Court in case of Mahendra Bhogilal Tadvi (supra) could be termed as per incurrium in light of a direct Supreme Court decision in the case of Dilip S.Dahanukar (supra).
Thus, in view of the aforesaid, there is no impediment in hearing the Appeal of both the appellants together, despite the fact that the accused - appellant No.1, Rajubhai Jangubhai Rathwa, is absconding.
I. Case of the Prosecution :
On 12th August 2002 at around 9 O’clock in the morning, the original first informant Mohanbhai Fedarbhai Rathwa had gone to the house of the deceased Sumanbhhai Mathurbhai Rathwa. One of the injured eye-witnesses named Jayantibhai Radiyabhai Tadvi also came at that point of time at the house of the deceased. Jayantibhai Radiyabhai Tadvi runs a Hair Saloon. All the three had tea together and thereafter proceeded to the shop of Jayantibhai Radiyabhai Tadvi. It is the case of the prosecution that at that time at around 10 O’clock in the morning the appellants herein along with other co- accused armed with weapon in their hands came and started assaulting Jayantibhai and Sumlabhai Mathurbhai, the deceased. It is the case of the prosecution that one of the acquitted co-accused inflicted injuries on the nose of Jayantibhai with a sickle, whereas one another acquitted co- accused inflicted injuries on both the legs of Jayantibhai with an iron pipe. It is also the case of the prosecution that accused no.1 herein inflicted injuries on the ears of the deceased with an iron bar and accused no.2 inflicted injuries on the legs of the deceased with an iron pipe. Thereafter, the other co-accused who have been acquitted also came at the spot of occurrence with sticks and iron pipes and started inflicting injuries on Jayantibhai and Sumanbhai, the deceased. The appellants herein and the other co-accused thereafter dispersed thinking that Jayantibhai and Sumanbhai might have died.
In connection with the aforesaid incident, the original first informant, PW1, lodged a First Information Report at the police station on the next day i.e. on 13th August 2002 at 8:15 hours. On the strength of the First Information Report Police commenced investigation. It appears that Jayantibhai as well as Sumanbhai, the deceased, both were admitted at S.S.G. Hospital at around 3:40 in the afternoon. It also appears that a dying declaration of Jayantibhai Sadiyabhai Tadvi was recorded by an Executive Magistrate on the same day. Record reveals that no dying declaration of the deceased was recorded till the time he succumbed to the injuries. It also appears that the incident occurred on 12th August 2002 and the deceased passed away on 3rd September 2002 i.e. almost after a period of 22 days. During the course of investigation, inquest panchnama Exh.33 was drawn. Panchnama of the clothes of the deceased Exh.34 and scene of offence panchnama Exh.41 was also drawn. Arrest Panchnama of the accused-appellants and other co-accused was drawn at Exh.59. As Sumlabhai, the deceased, succumbed to the injuries after 22 days i.e. on 3rd September 2002, the dead body of the deceased was sent for postmortem examination and the postmortem examination revealed that the deceased had sustained serious injuries on right fronto parietal and temporal region. There was fracture of Tibia- Fibula as well as left radius. The cause of the death assigned was Cranio cerebral trauma and its complications. The offence of murder punishable under Section 302 was added in the First Information Report. As there was sufficient evidence collected against the accused appellants and other co-accused, a charge-sheet was filed in the Court of JMFC, Chhotaudepur.
As the case was exclusively triable by the Sessions Court, the JMFC, Chhotaudepur, committed the case to the Sessions Court under Section 209 of Cr.P.C. The Sessions Court framed charge against the accused-appellants Exh.12 and statements of both the accused were recorded. Both the accused did not admit the charge and claimed to be tried.
The prosecution adduced the following oral evidence in support of its case.
PW1 Mohanbhai Fedarbhai Rathwa Exh.27
- original first informant & eye witness.
PW2 Jayantibhai Radiyabhai Exh.30
- Injured Eye-witness.
PW3 Remliben Sumlabhai Exh.31 -Eye-witness and wife of the deceased.
PW4 Karansinh Fedarbhai Rathwa. Exh.32 -Brother of the original first informant.
Chhotaudepur of the deceased.
8) Medical certificate of Jayantibhai Exh.53 Radiyabhai issued by Referral Hospital Chhotaudepur.
9) Map of the scene of offence. Exh.54
10) Arrest Panchnama of all Exh.59 the accused persons
11) Medical Certificate of Jayantibhai Tadvi Exh.66
- the injured eye-witness issued by SSG Hospital, Vadodara.
12) Medical Certificate of Sumlabhai Rathwa Exh.67
- the deceased issued by SSG Hospital, Vadodara.
After completion of oral as well as documentary evidence of the prosecution, the statements of both the accused persons under Section 313 of the Criminal Procedure Code were recorded, in which both the accused persons stated that the complaint was false and they are innocent.
At the conclusion of the trial, the learned rrial Judge convicted the accused-appellants for the offence under Section 302 read with Section 114 of IPC and sentenced them as stated herein before.
Being dissatisfied, the accused-appellants have come up with the present Appeal.
I. Oral Evidence on record :
i) The prosecution examined PW1, Mohanbhai Fedarbhai Rathwa, Exh.27, one of the eye-witnesses to the incident and the original First Informant. This witness has deposed that on the date of the incident at around 9 O’clock in the morning he had gone to the house of the deceased and at that point of time PW2, Jayantibhai Radiyabhai, also came at the house of the deceased. He has deposed that they had tea together and thereafter all three of them proceeded at the Hair Saloon of Jayantibhai Radiyabhai. PW1 has deposed that when they were on their way, they saw that the accused persons had gathered in the hut of one Madhiya Nayakda. The accused persons restrained all three of them and at that point of time one of the co-accused Madhiya Nayakda inflicted injuries on Jayantibhai with a sickle. PW1 has deposed that injuries were inflicted on the nose of Jayantibhai with a sickle. PW1 has also deposed that one another co-accused Varshang Jangu inflicted injuries on hands and legs of Jayantibahi Radiya with an iron pipe resulting in fractures. Jayantibahi fell down on sustaining injuries. PW1 has further deposed that thereafter the accused no.1 herein inflicted injuries on the side of the ear of the deceased with an iron bar, as a result of which the deceased fell down. According to PW1, thereafter, the accused no.2 herein inflicted injuries on both the hands of the deceased with an iron pipe. PW1 has also deposed that the accused no.2 herein also inflicted injuries on both the legs of the deceased with an iron pipe. According to PW1 the other co-accused arrived at the scene of offence at a later stage and all of them started hurling abuses and also inflicted injuries on the deceased as well as Jayantibhai with sticks. PW1 has deposed that he was not assaulted by any of the accused persons. PW1 thereafter ran and called Nagin Bava, Ramesh Mansing and Karansinh Fedarbhai and with the help of them shifted Jayantibhai as well as Sumanbhai, the deceased, to a dispensary at Chhotaudepur. A doctor at the Referral Hospital, Chhotaudepur advised that both the injured be taken to Vadodara Hospital. PW1 has deposed that when Jayantibhai and Sumanbhai, the deceased, were taken to SSG Hospital at Vadodara, their condition was quite serious. PW1 has also deposed that the motive behind the incident was a long standing land dispute. PW1, on the next day i.e. on 13th August 2002, lodged FIR at 8:15 hours. In his cross-examination, PW1 has deposed that on the date of the incident they were on their way to the Hair Saloon of Jayantibhai for a shave. He has further deposed that they had reached Chhotaudepur Hospital at around 12 O’clock in the afternoon. He has also deposed that it was true that at the Referral Hospital, Chhotaudepur, the doctor inquired from Jayantibhai as well as Sumanbhai, the deceased, as to how the incident had occurred. He has deposed that at that point of time he had told the doctor that both of them sustained injuries in a fight. He denied the suggestion that the doctor at the Referral Hospital, Chhotaudepur, had asked him to inform about the incident to the police. He has also deposed that neither he nor any other person had gone to Chhotaudepur Police Station to report about the incident. PW1 has deposed that they were at Chhotaudepur Hospital for around two hours. In his deposition, the PW1 has deposed that they reached at the SSG Hospital, Vadodara at around 5 O’clock in the evening and on reaching the SSG Hospital at Vadodara, the doctor in-charge inquired as to how both i.e. Jayantibhai and Sumanbhai had sustained injuries. He has further deposed that he had given his complaint at 8 O’clock in the night at Vadodara Hospital in presence of a Police Constable of Karali. He has also deposed that it was true that on being informed, the Police Constable of Karali came to Vadodara Hospital. He denied the suggestion that at the time of incident he was at his residence. He also denied the suggestion that on learning about the incident, he himself in company of one Naginbhai Bavabhai, Rameshbhai Mansing and Karan Fedar went to the house of the deceased. He denied the suggestion that on reaching the house of the deceased they met the wife of the deceased Remliben. He also denied the suggestion that thereafter in company of Remliben, the wife of the deceased, they all went at the place of occurrence. He also denied the suggestion that all five of them thereafter took both the injured persons to Chhotaudepur hospital. He also denied the suggestion that at that point of time he was not aware as to who were the assailants. He also denied the suggestion that as he was not aware about who were the assailants, he had not lodged any complaint at Panvad or Chhotaudepur Police Station. He also denied the suggestion that on the date of incident he had not gone to the house of the deceased. He denied the suggestion that he had not stated in his complaint that Madhiya Nayakda, Aaju Nayakda, Raju Jangu and Varshang Jangu were in the hut. He also denied the suggestion that he had not stated in his complaint that the accused persons had restrained them on the road. He also denied the suggestion that he had not stated in his complaint that hands and legs of Jayantibhai had been broken. He deposed that it was true that he had not stated in his complaint that the accused no.2 Aajubhai had inflicted injuries on both the legs with an iron pipe. However, he clarified that he had stated in his complaint that the injuries were inflicted on a leg. He also denied the suggestion that there was no dispute as regards the land in question.
ii) PW2, Jayantibhai Radiyabhai, Exh.30, is one of the important witnesses for the prosecution being an injured eye-witness. PW2 in his evidence has deposed that on 12th August 2002 he had gone to the house of the deceased to collect his fees for the service of shaving rendered by him. He has also deposed that at that point of time PW1, Mohan Fedar, was also present at the house of the deceased. Thereafter all the three left together to go to the cabin of PW2. He has further deposed that on the land of one Mathurbhai Dhediabhai which is a subject matter of litigation in a Court of law, there is a hut of one of the co-accused Madhiyabhai Nayakdabhai. According to PW2 they were proceeding towards his cabin walking on the sides of the fields and at that point of time, Madhiyabhai Nayakda came with a sickle in his hand and inflicted injury on his nose. PW2 has further deposed that one Varshang Jangu inflicted injuries on both his hands and legs with an iron pipe. The accused no.1 herein inflicted injuries on the ears of the deceased with an iron pipe. The accused no.2 inflicted injuries on both the hands and legs of the deceased with an iron bar. PW2 has deposed that thereafter the other co-accused with sticks in their hands arrived at the scene of occurrence hurling abuses. It is his case that thereafter, the wife of the deceased came crying at the place of incident and all the accused persons thereafter ran away. PW2 has deposed that he fell unconscious. He was shifted to a dispensary by Ramesh Mansing, Nagin Bava, Karan Fedar. Thereafter, he himself and the deceased both were shifted to Vadodara SSG Hospital. PW2 has deposed that the motive behind the commission of the crime was a long standing dispute and enmity between Madhiya Nayakda and the deceased. He has also deposed that he had no inimical relations with Madhiya Nayakda. He has deposed that he was hospitalized for a period of around 1½ months. He has also deposed that he had not stated anything about the incident before the police. According to him, the police had come to the hospital for recording his statement, but he was unable to speak. In his cross- examination, he has deposed that it was not true that there was no dispute regarding the land between Mathur Dhediya and Madhiya Nayakda. He deposed that he was not aware of the fact that Mathur Dhediya had already sold the land in favour of Madhiya Nayakda by executing a registered sale deed. He also deposed that it was not true that Mathur Dhediya had not initiated any legal proceedings relating to the land in question against Madhiya Nayakda. He has deposed that he had no idea as to at what time they reached the hospital at Chhotaudepur as he was not conscious. He had no idea as to at what time they reached Vadodara hospital as he was not conscious. He has also deposed that he did not remember that after how many days he regained consciousness at the hospital. He has deposed that it was true that on the very next day, the Executive Magistrate and Mamlatdar, Vadodara had come to the hospital to record his statement. The PW2, on his own volition, stated that he was unable to speak. He denied the suggestion that when the Mamlatdar came to the hospital to record his statement, he was conscious and was able to speak. He denied the suggestion that he had given his statement before the Mamlatdar, Vadodara. Thereafter, it appears that in his cross-examination, few questions were put to PW2 and to all such questions, his reply was that he was not willing to answer the same. A question was put to PW2 that after the PW2 was admitted at Vadodara hospital and when the doctor examined the PW2, he was fully conscious. PW2 replied that he didn't want to give any reply to such a question. A question was put to the PW2 that the doctor inquired with him as to how he had sustained injuries. The PW2 refused to reply even the said question. The trial Court noted the demeanour of this particular witness and has made a note in the cross-examination that when questions were being put by the defence counsel to the PW2, the PW2 was not replying and, therefore, the defence counsel was permitted further to cross-examine the PW2 in a Question-Answer form. A specific question was put to the PW2 that he had stated before the doctor at Vadodara that the accused no.1 herein had caused injuries on him, and what he had to say in that regard. In reply, the PW2 denied having said so before the doctor. One more question was put to the PW2 that on the next day when the Mamlatdar recorded the statement, in the said statement the PW2 failed to state that Madhiya Nayakda had inflicted injuries with a sickle, and what he had to say in that regard. In reply, the PW2 stated that he had not said so before the Mamlatdar. One more question was put to PW2 that in the statement before the Mamlatdar he had not stated that the accused no.1, Raju, had inflicted injuries on both his hands and legs with an iron pipe, and what he had to say in that regard. A note has been put that in spite of putting the aforesaid questions repeatedly the witness i.e. PW2 failed to give any reply. Thereafter, many suggestions were put to the PW2 and all such suggestions were denied. He also denied the suggestion that it was not true that he had not stated before the Mamlatdar that the accused no.1, Raju, had inflicted injuries on the deceased with an iron pipe. He also denied the suggestion that before the Mamlatdar he had not stated that the accused no.2, Aaju, had inflicted injuries on both the hands and legs of the deceased with an iron bar. The PW2 has also deposed that after 5 to 6 days from the date of the incident, the police had come to Vadodara Hospital to record his statement, but as he was not conscious, he was unable to give his statement. He deposed that it was true that as long as he was at Vadodara hospital, he had not given any statement before the police. After his discharge from the hospital, the police recorded his statement after around 5 to 6 months. PW2 denied the suggestion that no injuries were inflicted on the deceased in his presence.
iii) Prosecution has also examined PW3, Remliben Sumlabhai, Exh.31. PW3, Remliben, is the wife of the deceased. PW3, in her deposition, has stated that on the date of the incident she was at her house and at that point of time, PW1, Mohanbhai, and PW2, Jayantibhai, had come to her house. According to PW3, Jayantibhai had come to collect corn. According to PW3 Mohanbhai and Jayantibhai had come at her house at around 10 O’clock in the morning and thereafter, all the three proceeded towards the cabin of Jayantibhai. PW3 has deposed that she was also on her way to the field. According to PW3, Madhiya had built a hut on the land of Mathur Dhediya and all the accused persons had gathered inside the hut of Madhiya. According to the PW3, thereafter all the accused persons started assaulting her husband, the deceased, and Jayanhtibhai. She has deposed that at that point of time, Madhiya had a sickle in his hand and with the said sickle, he inflicted injuries on the face of Jayantibhai. One Varshangbhai had a pipe in his hand and he inflicted injuries on the hands and legs of Jayantibhai. PW3 has deposed that at that point of time, the accused no.1, Raju, inflicted injuries on the ear of her husband, the deceased, with an iron bar and knocked him down. At that point of time, the accused no.2, Aajubhai, came and inflicted injuries on both the legs and hands of her husband, the deceased, with an iron pipe. She has deposed that she started raising shouts and as the accused persons started chasing her, she ran away towards her home. After some time she again came at the place of the incident where again there was some pelting of stones by the other accused persons. PW3 has deposed that after some time, Nagin Bava, Ramesh Mansing and Karan Fedar came at the place of the incident and arranged for a car to shift her husband, the deceased, and Jayantibhai to Chhotaudepur Hospital. In her cross-examination, she denied the suggestion that she was not present at the place where the incident occurred. She denied the suggestion that at the time of incident, she was at her home and she learnt about the incident for the first time only when Karansing Fedar, Nagin Bava, Ramesh Mansing and Moyhan Fedar came at her house and informed her about the assault on her husband, the deceased, and Jayantibhai. She also denied the suggestion that thereafter she, along with the above referred persons, went at the place of occurrence. In her cross-examination, she has further deposed that on the date of the incident at around 4 O’clock in the evening the police officer of Karali Police Station came at village Sadali. She denied the suggestion that the police officers of Karali Police Station inquired of her as to the hospital in which her husband, the deceased, and the injured Jayantibhai had been admitted. In her cross-examination, many contradictions in the form of omissions in the police statement were brought on record. She also denied the suggestion that on the date of the incident her husband, the deceased, and Jayantibhai were together at her house and at that point of time, the accused persons came and picked up her husband, the deceased, and Jayantibhai. PW3 deposed that it was true that in her police statement she had stated that on the previous day PW3 and her husband, the deceased, both were at their house and at that point of time Jayantibhai Radiyabhai had come to collect corn. At that point of time at around 10 O’clock in the morning, Madhiya Nayakda, Varshang Jangu, Rajubhai Mojiba Kadva, Gordhan Kadva, Lengha Galiyach, Arvind Thakia and Aaju Madhiyabhai came and forcibly took away Jayantibhai and her husband, the deceased, saying that they were intending to kill both of them by drowning them in a river. At that point of time, she ran after them raising shouts but no one from the village came to help her husband, the deceased, as well as Jayantibhai.
iv) Prosecution has also examined PW4, Karansing Fedarbhai Rathva, Exh.32. The evidence of this witness also assumes significance. PW4 is the brother of the original first informant PW1 Mohanbhai Rathva. PW4 in his evidence has deposed that he knew the deceased very well. When the incident occurred he was at his home. While at home he learnt that Sumlabhai, the deceased, and Jayantibhai had been assaulted. He has deposed that therefore, he himself, his brother PW1, Mohanbhai, went to the house of the deceased. He deposed thereafter that first his brother Mohanbhai went and then he followed his brother to the house of the deceased. When he reached at the house of the deceased, he saw that the deceased and Jayantibhai both were lying down near the hut of Madhiyabhai. After reaching at that particular place he learnt that the deceased was assaulted by Madhiya Nayakda and others. PW4 has also deposed that at that point of time he was unable to gather the names of the other accused persons. Thereafter, both the injured persons i.e. the deceased and Jayantibhai were taken to a hospital at Chhotaudepur. At that point of time, he was there in company of Nagin, Mohan, Karan and the wife of the deceased Remliben. He has also deposed that when he reached at the place of the incident, he could see only the wife of the deceased, Remliben, near the hut of Madhiya. In his cross-examination, he has deposed that it was true that he himself, Naginbhai, his brother Mohanbhai and Ramesh, having learnt about the incident, had gone to the house of the deceased. He has deposed that Mohanbhai Fedarbhai happens to be his brother. He has also deposed in his cross-examination that it was true that when they went to the house of the deceased, they met Remliben, the wife of the deceased. He has also deposed that it was true that thereafter he himself, in the company of Naginbhai, Ramesh, Mohan and Remliben, reached at the place of the incident and thereafter shifted both the injured persons to the hospital. He has also deposed that after admitting both the injured persons at Vadodara hospital, all of them returned to village Sadli. He deposed that it was true that in his police statement, he had not stated that Remliben, the wife of the deceased, was present near the hut of Madhiyabhai.
v) PW5, Kaljibhai Rathva, Exh.38 is one of the panch- witnesses to the panchnama of the discovery of the weapons alleged to have been used in the commission of offence. PW5, Kaljibhai Rathva, however, was declared as a hostile witness as he failed to prove the contents of the panchnama.
vi) PW6, Khaparia Rathva, Exh.39 is also one of the panch-
witnesses to the panchnama of the discovery of weapons, however, PW6, Khaparia, was also declared as a hostile witness as he failed to prove the contents of the panchnama.
vii) PW7, Tansing Rathva, Exh.40 is one of the panch- witnesses of the scene of offence panchnama. PW7 proved the scene of offence, panchnama Exh.41.
viii) PW8, Ashokbhai Rathva, Exh.43 is also one of the panch- witnesses to the panchnama of the discovery of a stick alleged to have been used in the incident. However, PW8, Ashokbhai, was also declared as a hostile witness as he failed to prove the contents of the panchnama.
ix) PW9, Dr. Bijaysing Rathod, Exh.49 has been examined to prove the postmortem report. PW9 is a Medical Officer who performed postmortem of the dead body of the deceased. PW9 noted the following injuries in his postmortem report.
(1) stitched wound, half healed, on the right fronto- parietal temporal region, 12cm in length;
(2) one stitched wound 2 x 1cm on the left eyebrow downward in direction and one stitched wound 6cm in size on the elbow;
(3) surgical tracheostomy wound 2 x 2cm on the left eyebrow, 8cm on top of injury no.2;
(4) one tracheostomy healed surgical wound on the neck;
(5) one tracheostomy healed wound 4 x 3cm;
(6) one abrasion 4 x 1cm on the right hand and 8cm downward from right elbow;
(7) one healed wound 3 x 2cm on right leg, irregular in shape and 8cm downward from the kneecap;
(8) fracture of right tibia-fibula;
(9) fracture of left radious;
(10) fracture of left mandible bone;
(11) fracture of 6cm in right frontal bone of the head.
In his evidence, he has deposed that the cause of death was due to Cranio cerebral trauma and its complications as a result of injuries.
x) Prosecution examined PW10, Kalidas Chhagan Baria, Exh.56, Investigating Officer. In his evidence, the PW10 has deposed that on 3rd September 2002 he was discharging his duties as a PSI at Karali Police Station. On that day, he received a wardhi that the injured of C.R.No.32 of 2002 registered with Karali Police Station, named, Sumlabhai Mathurbhai, had passed away. He has deposed that earlier on 12th August 2002, a wardhi was received from the hospital and, accordingly, ASI V.N.Vasava was deputed to record the First Information Report and accordingly the FIR of PW1, Mohanbhai Fedarbhai, was recorded. On the strength of such complaint, an offence was registered. He has deposed that after taking over the investigation, a scene of offence panchnama, Exh.41, was drawn. Thereafter, statements of witnesses were recorded. As the accused persons were arrested, the panchnama of their person, were drawn. He has deposed that one 'parai' was recovered from the accused no.1 and one iron bar was recovered from the accused no.2. He has also deposed as regards recovery of weapons from other respective co- accused. In his cross-examination, he has deposed that it was true that from the complaint it could not be said that Remliben, the wife of the deceased, was present. He also deposed that it was true that the incident had not occurred on the internal road of the field of Mathur Dhedia. He has also deposed that it was true that the injured Jayanti Radiya and the deceased were not found lying in an injured condition somewhere on the internal road of the field of Mathur Dhediya. He has further deposed that it was true that in the FIR it was not stated that the accused herein were present inside the hut of Madhiya Nayakda. He has also deposed that the statement of Remliben, the wife of the deceased, was recorded. From the statement of Remliben, it could not be said that the first informant PW1, Mohan Fedar, was present at the place of the incident. According to PW10, from the statement of Remliben, the wife of the deceased, it was revealed that after the incident, Karan Fedar, Nagin Bava Ramesh Mansing and Mohan Fedar (first informant) had gone to the house of the deceased. He also deposed that it was true that Remliben, the wife of the deceased, had not stated in her police statement that on the date of the incident she was at her house and at that point of time, Mohanbhai had come to her house. He has also deposed that it was true that Remliben in her police statement had not stated that her husband, Jayantibhai, and Mohanbhai thereafter left the house to go to the cabin. She had also not stated before the police that she had followed her husband as she wanted to go to her field. PW10, in his evidence, has further deposed that during the course of investigation he had recorded the statement of Karansing Fedar, the brother of the first informant. He has deposed that it was true that Karansing, in his police statement, had stated that he learnt about the incident while being at home. Karansing had stated before the police that on learning about the incident, he, in the company of one Nagin Bava, Rameshbhai and his brother PW1, Mohanbhai, proceeded towards the house of the deceased. Karansing had also stated in his police statement recorded by PW10 that all four of them had gone together and found both the injured persons lying in a pool of blood. Thereafter, all the four persons went to the house of the deceased and met the wife of the deceased, Remliben. PW10, in his evidence, has further deposed that it was true that on 13th August 2002, the Executive Magistrate, Vadodara, recorded dying declaration of the injured Jayantibhai Radiyabhai and he had collected such dying declaration during the course of investigation. He has deposed that as per the said dying declaration before the Executive Magistrate made by Jayantibhai it was not stated that Madhiya Nayakda had inflicted injuries on the face of Jayanti Radiya. He has also deposed that it was true that as per the said dying declaration of Jayantibhai before the Executive Magistrate, there was no reference in the said statement that the accused no.1 herein had inflicted injuries on both hands and legs with an iron pipe. He has also deposed that it was true that in the said dying declaration it had not been stated by Jayantibhai that the accused no.1 had inflicted injuries on the deceased with an iron pipe and in the same way, it had not been stated in the said dying declaration that the accused no.2 herein had inflicted injuries on both hands and legs of the deceased with an iron 'parai'. He has deposed that the dying declaration which was recorded by the Executive Magistrate would suggest that when the PW2, Jayanti Radiya, sustained injuries, no injuries were inflicted on the deceased. PW10 also deposed that it was true that the dying declaration was suggestive of the fact that except injuries inflicted on Jayanti Radiya, no other person was assaulted. He has also deposed that it was true that the statement before the Executive Magistrate of injured Jayantibhai would suggest that the accused no.1 and the accused no.2 herein were not present at the place of the incident. PW10 has also deposed that he had recorded statement of Mathurbhai Dhediyabhhai. His investigation revealed that the land in question for which the incident is alleged to have occurred belonged to Mathur Dhediya. Mathur Dhediya in his police statement had stated that in the year 1994 Revenue Survey No.354 was sold away to Madhiya Nayakda for a sale consideration of Rs.6,000/- by way of a registered sale- deed. Mathurbhai Dhediyabhai, in his police statement, had also stated that by mistake, instead of Survey No.354, Survey No.355 had been stated in the registered sale-deed. However, there was no dispute of any nature between Mathur Dhediya and Madhiya Nayakda so far as the land was concerned. The investigation by PW10 further revealed that nephew of Mathur Dhediya, named, Ratan Bhangiya, had created one bogus Power of Attorney in the name of Mathur Dhediya and the said power of attorney was produced in the Court with a view to usurp the land of Madhiya. His investigation also further revealed that Mathur Dhediya had not executed any power of attorney. He has also deposed that it was true that in the statement before the Mamlatdar, Jayantibhai had not stated that Remliben, the wife of the deceased, was present. PW10 has also deposed that according to his investigation, the incident had occurred on the road and on both sides of the road there is a fence of wild bushes. He has also deposed that it was true that the deceased had not instituted any legal proceedings in any court regarding the land in question against any of the accused persons. He has also deposed that it was true that in the said incident, the PW1, Mohan Fedar, the original first informant, had not sustained a single injury.
xi) PW11, Vaghjibhai Vasava, Exh.63 is one of the police witnesses. On 12th August 2002, he was serving as ASI at Karali Police Station. He was instructed by the PSO on the strength of a wardhi to record the first information report. Accordingly, the PW11 had gone to Vadodara SSG Hospital and had recorded the FIR of Mohanbhai Fedar. PW11, Vaghjibhai, produced the original complaint Exh.28.
xii) The last witness to be examined was PW12, Dr.Pravinaben Arvindchandra Thakkar, Exh.65. PW12 in her evidence deposed that in the year 1993, she was serving as a Medical Officer at SSG Hospital and along with her, one Dr.Smt.S.A.Pathan was also working at the said hospital. She has deposed that as she had worked with Dr.S.A.Pathan, she was well conversant with the handwritings and signature of Dr.S.A.Pathan. This witness was examined by the prosecution to prove the medical certificates which were prepared and signed by Dr.Pathan so far as the injuries sustained by Jayantibhai and the deceased were concerned. She has deposed that on 12th August 2002, Dr.S.A.Pathan had examined Jayantibhai Radiyabhai who was brought at the hospital at 3:40 in the afternoon with a referred note issued by the Referral Hospital of Chhotaudepur. PW12 has deposed that Jayantibhai was conscious and in the history Jayantibhai stated that he was assaulted by a pipe in the morning by the accused no.1 Raju Janga. On medical examination, Dr.Pathan noted following injuries :
(1) one cut wound on both cheeks 3 x 1 x 1cm below both eyes;
(2) fracture of right hand humerus bone;
(3) compound fractures in both legs;
(4) fracture of right hip bone.
PW12 identified the signature of Dr.Pathan on the Medical Certificate Exh.66. PW12 has further deposed that on the same day one Sumlabhai, the deceased, was also examined by Dr.Pathan. She has deposed that Sumlabhai, the deceased, was conscious and in the history, Sumlabhai, the deceased, stated that he was assaulted by one Madhu Nayakda with 'parai'. On medical examination, Dr.Pathan noted following injuries.
(1) Incised wound right frontal region 5cm x 2 cm deep upto brain;
(2) Incised wound on the left side of the face extending from left cheek to the ear, 7cm x 1cm x 1cm;
(3) one incised wound behind left ear, 3 x 2 x 2cm;
(4) fracture of right forearm;
(5) swelling on both legs.
The picture that emerges from a cumulative reading and assessment of materials available on record is thus :
It appears that in the present case, the trial Court disbelieved substantial part of the case of the prosecution. Out of eleven accused persons, who were put to trial, the trial Court thought fit to acquit nine co-accused and, mainly relying on the evidence of the injured witness PW2 Jayantibhai, thought fit to convict the accused persons herein.
Thus, the only question that falls for our consideration in the present Appeal is as to whether the trial Court was justified in recording finding of guilt so far as the two accused persons herein are concerned, on the strength of the oral evidence of the so-called eye-witnesses.
The moot question that falls for our consideration is as to whether PW1 Mohanbhai, PW3 Jayantibhai and PW3 Remliben could be termed as wholly reliable witnesses. While assessing and evaluating the evidence of eye-witnesses, the Court must adhere to two principles, viz. whether in the circumstances of the case, it was possible for the eye-witnesses to be present at the scene and whether there is anything inherently improbable or unreliable. The trial Court, in our opinion, has failed to observe the aforesaid principle and, in fact, has mis- appreciated the evidence which has caused gross miscarriage of justice. The credibility of a witness has to be tested by referring to his evidence and finding out how he has faired in the cross-examination and what impression is created by his evidence taken in other context of the case and not by entering into realm of conjectures and speculations.
We have noticed that the PW1, Mohanbhai, though claimed to be in the company of the deceased as well as injured Jayantibhai all through out, had not sustained even a scratch in the entire incident. It also remains a mystery as to why the accused persons assaulted Jayantibhai with whom they were no way concerned. There is not an iota of evidence led by the prosecution to even remotely suggest that Jayantibhai had any dispute or enmity with any of the accused persons. Even if it is believed, although the evidence is very deficient that there was some land dispute between Madhiya Nayakda and Mathur Dhedia, there was no reason for the accused persons to assault Jayantibhai. Be that as it may, but this aspect makes the genesis of the prosecution case very doubtful and it appears that the prosecution has suppressed the true origin of the occurrence. We would like to consider as to whether PW1 Mohanbhai had actually witnessed the incident and was really in the company of the deceased and the injured Jayantibhai on the morning of 12th August, 2002. It appears that the PW1, Mohanbhai Fedarbhai, was not present at the time of the incident and he is a got up eye-witness. Our view in this regard gets fortified by the evidence of PW4 Karansinh Rathva, the real brother of the PW1, Mohanbhai. It deserves to be stated that the PW4, Karansing Rathwa, was not declared as a hostile witness in any manner. The PW4, Karansing, in no uncertain terms, has deposed that on the date of the incident he was at his house and he learnt about the incident as the same was being discussed on the road that the deceased and Jayantibhai had been assaulted. The PW4 has further deposed that at that point of time he and his brother Mohanbhai went to the house of the deceased. This is suggestive of the fact that Mohanbhai was not present at the time of the incident and he had not witnessed any assault by anyone on the deceased as well as injured Jayantibhai. The PW4 has also deposed that it was true that no sooner had they learnt about the incident, than all of them i.e. he himself, Naginbhai, PW1 Mohanbhai and Ramesh, went to the house of the deceased and they met the wife of the deceased Remliben. PW4 has also deposed in no uncertain terms that it was true that thereafter he himself, Naginbhai, Rameshbhai, Mohanbhai and wife of the deceased Remliben went at the place of incident and shifted both the injured i.e. the deceased as well as Jayantibhai to the hospital. The PW4, Karan, is the brother of the PW1, Mohanbhai. The PW4, Karan, had otherwise no reason to depose falsely and it appears that his evidence is absolutely consistent with what he had stated before the police. From the evidence of the PW4, it is very apparent that the PW1, Mohanbhai, was not present and it is only after they learnt about the incident that first they went to the house of the deceased where they met the wife of the deceased, Remliben, and thereafter, along with Remliben, they all went at the place of occurrence. Under such circumstances, it is very difficult to accept the testimony of the PW1, Mohanbhai, so as to hold the accused persons herein guilty. The evidence of the PW4 Karansinh, to a substantial extent, is further corroborated by some part of the evidence of the PW2 Jayantibhai. PW2, Jayantibhai, Exh.30, in his oral evidence, has deposed that it was Ramesh Mansing, Nagin Bava and Karan Fedar who had taken the injured Jayantibhai as well as the deceased to the hospital. PW2 Jayanti Radiya has acknowledged the presence of Karansinh, the brother of PW1, Mohanbhai. Even the PW3, Remliben, the wife of the deceased, has acknowledged the presence of Karansing and has deposed that it was Karan, Nagin, Ramesh and Mohanbhai who took both the injured persons to Chhotaudepur hospital. The PW3 has, no doubt, denied the suggestion that she was not present at the place of occurrence and that she was present at her home and learnt about the incident through Karansing, Nagin Bava, Ramesh Mansing and Mohan Fedar. However, the evidence of PW4 Karansing Rathva speaks for itself.
So far as the evidence of the PW2, Jayantibhai Radiyabhai, as regards the role attributed to the accused- appellants herein is concerned, we find that even the evidence of the PW2, Jayantibhai Radiyabhai, fails to inspire any confidence. The PW2, Jayantibhai, in his evidence, has no doubt alleged that the accused no.1, Raju, had inflicted injuries on the ears of the deceased and the accused no.2, Aaju, had inflicted injuries on both legs and hands to the deceased with an iron 'parai', but this part of the evidence of the PW2, Jayantibhai, gets falsified by his own previous statement before the Executive Magistrate, Vadodara recorded in the form of dying declaration on 13th August 2002 at SSG Hospital. At this stage, it would also not be out of place to state that the trial Court, while appreciating the oral evidence, has disbelieved a part of the testimony of the PW2, Jayantibhai, to the extent it related to the injuries sustained by the PW2, Jayantibhai Radiyabhai, himself in the incident and that is the reason why the trial Court thought fit to acquit all the accused persons of the offences punishable under Sections 307, 323, 324, 325, 504,143, 147, 148 and 149 IPC. The trial Court, while recording conviction so far as the present appellants are concerned, relied upon that part of the evidence of the PW2, Jayantibhai, wherein the PW2, Jayantibhai, has deposed that it was the accused no.1 who inflicted injuries near the ears of the deceased with an iron pipe and the accused no.2 inflicted injuries on both legs and both hands of the deceased with an iron parai.
We have very minutely gone through the entire evidence of the PW2, Jayantibhai Radiyabhai. We have also noticed that some part of the cross-examination of the PW2 was in a Question-Answer form. We have also noticed that the trial Court was constrained to make a note of demeanour of the PW2, Jayantibhai, while deposing in the box. It appears that the PW2 was very reluctant to answer certain questions put to him during the course of his cross-examination and few other questions, he refused to answer outright. Thus, the question is as to what extent we could rely upon the evidence of the PW2, Jayantibhai, in so far as the present accused - appellants are concerned. In the present case, indisputably, on 13th August 2002, the Mamlatdar and the Executive Magistrate, Vadodara, recorded dying declaration of the PW2, Jayantibhai, at 16:20 hours. It is also true that the prosecution has not produced the said dying declaration along with the list of documentary evidences for the reasons best known to the prosecution. At the same time, the Investigating Officer has, in so many words, admitted that it was true that on 13th August 2002, the Executive Magistrate, Vadodara, did record the dying declaration of the PW2, Jayantibhai, and the Investigating Officer has also deposed that after recording of the said dying declaration, he collected the original dying declaration from the Executive Magistrate and had placed it in the record of the investigation. Therefore, there is no dispute as regards the fact of recording of dying declaration and this is not even disputed by the PW2, Jayantibhai. This fact is further substantiated by the evidence of the Investigating Officer, PW10, Kalidas Chhaganbhai Bariya, Exh.56. It is trite law that when maker of purported dying declaration survives, the same is not statement under Section 32 of the Indian Evidence Act, 1872, but gets a status of a statement in terms of Section 164 of Cr.P.C. It can be used under Section 156 of the Evidence Act for the purpose of corroboration and under Section 155 for the purpose of contradiction. This position was highlighted in Ram Prasad v/s. State of Maharashtra, 1999(5) SCC 330; Sunil Kumar and others v/s. State of M.P., 1997(2) J.T. SC 1; and Gentela Vijay Versang Rao v/s. State of A.P., 1996 (6) SC 356.
We are unable to accept the submission made by Mr.Raval, learned APP, that we should not look into or we should eschew from considering the fact that such a dying declaration was ever recorded of PW2 Jayantibhai in the hospital by the Executive Magistrate on 13th August 2002 because the same has not been brought on record and thereby, has not been exhibited. We are also unable to accept the submission of Mr.Raval that unless and until such dying declaration is shown to the maker of the statement, only then he could be contradicted in terms of Section 155 of the Evidence Act. We are of the view that once the Investigating Officer has admitted in so many words that the dying declaration was recorded and when this fact is not even disputed by the maker of such statement in the dying declaration i.e. PW2 Jayantibhai himself, under such circumstances, we can definitely take into consideration the fact of such statement having been recorded.
Now, the second question and the most important one is as to what was the statement of the PW2, Jayantibhai, before the Executive Magistrate. It appears that the PW2, Jayantibhai, having realized that he had not even named the accused nos.1 and 2 herein apart from any role being attributed to them, deposed that it was true that the Executive Magistrate had come to the hospital to record the dying declaration but such dying declaration could not be recorded as he was unconscious. Now, this part of his evidence of being unconscious at the time of recording of dying declaration is further falsified by a Certificate issued by the SSG Hospital Exh.66 showing the patient i.e. PW2 Jayantibhai to be conscious. Not only that but the PW12, Dr.Pravinaben Thakkar, in her deposition, has deposed that on 12th August 2002 Dr.Pathan had asked the deceased Sumlabhai Rathva as to how he had sustained injuries, and in reply to the same, the deceased is said to have stated that it was Madhu Nayakda who inflicted injuries with 'parai'. It appears that in the history given to the doctor at the time of admission, the deceased disclosed only the name of one co-accused i.e. Madhu Nayakda who has been acquitted by the trial Court. PW12 Dr.Thakkar has also deposed that Dr.Pathan also inquired with the PW2, Jayantibhai, as to how he had sustained injuries, and in reply to the same, the PW2 is said to have told that it was Rajya Janga i.e. the accused no.1 herein who inflicted injuries with pipe and 'parai'. However, this part of the evidence has not been believed by the trial Court, therefore, there is no question of appreciating the same. Most importantly, the PW12, Dr.Pravinaben, has deposed that on 12th August 2002 at 3:40 p.m. when the PW2, Jayantibhai, was admitted at the SSG Hospital with a referred note of the Referral Hospital, Chhotaudepur, the PW2 was conscious. A very specific question was put to the PW2 in the cross-examination that when the PW2 was taken to Vadodara hospital and when the PW2 was examined by the doctor, he was fully conscious. The PW2 refused to give any reply. Thus, we are quite convinced by the fact that in the very first statement made by the PW2, Jayantibhai, before the Executive Magistrate, no overt act of any nature was attributed to the accused-appellants herein. We have also noticed that in the entire evidence PW2, Jayantibhai Radiyabhai, Exh.30 has not explained as to why the accused persons inflicted injuries on him, more particularly, when the PW2, Jayantibhai, was no way concerned in any manner with the accused persons, more particularly, Madhiya Nayakda. Assuming for the moment that Madhiya Nayakda, one of the acquitted co-accused, had some dispute regarding the land with one Mathurbhai Dhediyabhai, the same was no way concerned to the PW2, Jayantibhai Radiyabhai. Jayantibhai Radiyabhai is running a small hair-cutting saloon. To this extent, the prosecution has failed to establish any motive on the part of the accused persons to assault PW2 Jayantibhai.
We have also minutely gone through the evidence of the PW3, Remliben Sumlabhai, Exh.31, the wife of the deceased. Even, she claims to be an eye-witness to the incident. However, from the nature of the contradictions in the form of omissions brought on record in the evidence of the PW3, Remliben, it could be said that she is not a true and genuine eye-witness. The evidence of the PW3, Remliben, deserves to be discarded, more particularly, in light of the evidence of the PW4, Karansing Rathva, the brother of the first informant, who has deposed in so many words that having learnt about the incident they had gone to the house of the deceased where they informed his wife i.e. the PW3, Remliben, about the incident and thereafter, all of them together reached at the place of the incident. Before the police, at the time of recording of her statement, it was not the case of the PW3, Remliben, that the accused no.1, Raju, inflicted injuries on the ears of her husband, the deceased, and the accused no.2, Aaju, had inflicted injuries on both hands and both legs of her husband, the deceased, with an iron 'parai'.
So far as the panchnamas are concerned, all panch- witnesses turned hostile and therefore, no importance could be attached to any of the panchnamas including the panchnama of discovery of the weapons alleged to have been used in commission of the offence.
Thus, on overall reappraisal and re-appreciation of the entire evidence on record, oral as well as documentary, we unhesitatingly reach to the conclusion that the trial Court committed a serious error in recording a finding of guilt against the accused – appellants herein for causing death of the deceased. None of the eye-witnesses could be termed as reliable witnesses, but on the contrary, we find an element of deliberate false implication so far as the accused-appellants are concerned. We are of the view that the prosecution has failed to prove the guilt of the accused-appellants beyond reasonable doubt and are, therefore, entitled to the benefit of doubts.
In the aforesaid view of the matter, we find merit in this Appeal and, accordingly, we allow the Appeal. The Judgment and order of conviction passed by the Additional Sessions Judge, Fast Track Court-II, Chhotaudepur, District Vadodara dated 1st February 2006 in Sessions Case No.31 of 2003 is set- aside. Both the accused-appellants, namely, Rajubhai Jangubhai Rathva and Aajubhai Madhiyabhai Rathva are acquitted of the offence of murder punishable under Section 302 IPC and are ordered to be released forthwith, if not required in any other case.
Bail bond furnished by the accused – appellant No.2 is ordered to be cancelled. Fine, if paid, be refunded.
(Bhaskar Bhattacharya, C.J.)
(J.B.Pardiwala, J.)
/moin