Raniben Jivabhai Solanki vs State Of Gujarat Opponents/Respondent

(PER : HONOURABLE MR.JUSTICE A.L.DAVE) 1. These two appeals arise out of the judgment and order rendered by learned Additional Sessions Judge, 2nd Fast Track Court, Gandhidham­Kachchh, in Sessions Case No.57 of 2003 on 14.09.2004. The appellant in Criminal Appeal No.505 of 2006 Raniben Jivabhai Solanki was accused No.2 before the Trial Court and the appellant in Criminal Appeal No.2540 of 2008, Mahesh @ Lakhu Jivabhai Solanki, was accused No.1 before the Trial Court. Both of them were tried for offences punishable under Sections 120B, 302 and 34 of Indian Penal Code. The Trial Court by the impugned judgment convicted both of them under Section 302 read with Section 34 of Indian Penal Code and sentenced them to imprisonment for life without any fine. Hence, these appeals.

2. Since these two appeals arise out of the same judgment and order, they are heard together and are disposed of by this common judgment.

3. The appellants are referred by their original status and number of accused before the Trial Court for the sake of convenience in this judgment.

4. As per the prosecution case, the incident occurred on 01.08.2003 between 2:30 to 3:30 hours in the house of the deceased at village:Thoriyali of Rapar Taluka, District Kachchh. It is the case of the prosecution that deceased Jivabhai Halabhai Solanki was father of accused No.1 and husband of accused No.2. Accused No.1 and the deceased were not on good terms and therefore, at the relevant time, accused No.1, when the deceased was sleeping in the house, gaged the mouth of the deceased, mounted over him and accused No.2 gave a knife blow on the neck of the deceased, as a result of which, the deceased bled profusely to death. As per the prosecution case, Pravin­younger brother of accused No.1 was sleeping in the ‘Osari’ of the house of Meghjibhai. He noticed accused No.1 going towards the house and therefore, followed him and saw the incident. After seeing the incident, he went back to the ‘Osari’ of Meghjibhai and went to sleep. Next morning, police was informed. Police recorded FIR. Offense was registered and investigated and ultimately, charge­sheet was filed in the Court of Judicial Magistrate First Class, Rapar, who, in turn, committed the case to the Court of Sessions and Sessions Case No.57 of 2003 came to be registered.

5. Charge was framed against the accused at Exh.1.

The accused persons pleaded not guilty to the charge and came to be tried. After considering the evidence led by the prosecution, the Trial Court rendered the decision impugned in this judgment and hence these appeals.

6. We have heard learned advocate Mr.Gajendra Baghel appearing for the appellants and learned APP Mr.Soni for the respondent­State.

7. Mr.Baghel submitted that the entire prosecution case depends on solitary evidence of Pravin Jivabhai Solanki at Exh.50. Mr.Baghel submitted that evidence of this witness, if closely scrutinized, would indicate that conviction could not have been recorded by the Trial Court on the basis of this solitary eyewitness.

8. Mr.Baghel submitted that when the incident occurred in the midst of the night, admittedly witness Pravin was sleeping in the ‘Osari’ of Meghjibhai, which is at a distance of 80 feet from place of incident. He had no reason to be awaken at that hour. He was awaken because of some alarm and he had no reason to follow accused No.1, whom he claims to have seen going towards the house, because that is the house where all were staying. Mr.Baghel submitted that the matter does not stopped there. According to the prosecution case, after seeing the incident, this witness goes back to the ‘Osari’ of Meghjibhai and goes to sleep. He did not raise any alarm, nor did he inform anybody about the incident. This conduct is so unnatural which renders his deposition unacceptable. Mr.Baghel then submitted that as admitted by this witness, at least three statements of this witness were recorded and in all three statements, his thumb impression was taken. This aspect has been put to the Investigating Officer, which has been flatly denied by him, but, the fact remains that the witness persistently says that he has put his thumb impression on all the three statements. Mr.Baghel submitted further that this witness also admits that he and his brother, both were manhandled by the police. It also emerges from the evidence of this witness that these three statements were taken at three different places and at three different points of time. Mr.Baghel lastly submitted that police had manhandled accused No.2 as well.

9. Mr.Baghel submitted that when the prosecution case depends on a solitary witness, who is also a child witness, the evidence must be of a solitary witness to be accepted for recording a conviction. In this case, barring oral say of this witness, there is not an iota of evidence to connect the accused with the crime or to lend any corroboration and therefore, the Trial Court ought not to have recorded a conviction and appeals may, therefore, be allowed.

10. Ld. APP has opposed these appeals. According to him, witness Pravin is a child witness. He has emerged as a natural witness and has no reason to falsely implicate his brother and mother both. He has no motive to falsely implicate them and his evidence has to be assessed keeping in light the fact that he is a child witness and may not understand the implications of a question put to him in cross examination and therefore, the Trial Court was justified in recording conviction and appeals may therefore be dismissed.

11. We have examined the record and proceedings in context of rival submissions. We find that the only and the star witness of the prosecution, Pravin Jivabhai Solanki is examined at Exh.50. His age at the time of recording his evidence was 15 years. The evidence was recorded within 8 months of the incident and therefore, at the time of incident he was aged about 14­15 years. This we record because we find that he is the sole eyewitness to the incident and ld.APP has argued that some concession is required to be given to his evidence of not understanding the niceties of legal proceedings, which aspect we propose to deal with in the paragraphs to follow.

The witness deposes that he was sleeping on the ‘Osari’ of the house of Meghjibhai at the relevant time. The incident occurred at about 2 to 3’O clock in the morning. His mother was sleeping in the house, whereas, his father was sleeping in the ‘Osari’ of the house and accused No.1 was sleeping at a place where he was sleeping. He says that he was wide awake at that point of time and he saw accused No.1 going towards Meghjibhai’s first floor, covering himself with a mattress and then he came down. Thereafter, he prepared a bed and then started going towards the house. The witness says that he, therefore, followed accused No.1 and he saw both the accused persons beating his father. Accused No.1 gaged the mouth of deceased and accused No.2 inflicted knife blow on the neck. He says that accused No.1 intimated him and told him not to disclose it to anyone. He then went to the bed at the ‘Osari’ of Meghjibhai and went to sleep. Next morning Meghjibhai told him that he was bringing vehicle for taking his father away, but because he was scared, he did not disclose anything. Noticing a wound on the neck, Meghjibhai stated that father was not to be taken without informing the police and then Meghjibhai and his brother went for lodging an FIR. The police came to the place alongwith them and interrogated both the accused persons and they said that they knew nothing about the incident. His elder brother had suspicion on the younger brother and thereafter this witness and accused No.1 were taken away from the town by police and were interrogated. He says that then he disclosed about involvement of both the accused before the police. The witness is cross­examined at length and what emerges from his cross­examination is that his statements were recorded three times at different places and on all three occasions his thumb impression was taken. The investigating officer has flatly denied this aspect, but then if a child witness is to be believed, this aspect cannot be ignored and if this is so, it goes to the root of the entire prosecution case and trustworthiness of investigation. At this stage, we would like to discuss the argument raised by learned APP that some concession is required to be given to the evidence of this witness.

12. In this context, at the outset, it is to be recorded that the maturity of this witness was tested by Trial Court by putting several questions and he was found mature enough to depose. Secondly, even we are of the view that a boy aged 14­15 years would not be so immature so as not to react to an assault on his own father by his brother and mother. He would not be so blunt or nonreactive that he would go to sleep after such a severe attack on his own father, where, he claims to have seen accused No.2 inflicting knife blow on the neck of his father. In our view, this conduct of the witness is quite unnatural.

13. Undoubtedly, it cannot be disputed that the deceased met with homicidal death, but whether that homicide is at the hands of the accused, is a question and for that purpose, the prosecution is unable to bring on record evidence of this solitary eyewitness, which, in our view, is quite shaky. Ordinarily also, the Court would look for some corroboration, when the case hangs on evidence of a sole eyewitness. Against that, here is a case where the prosecution case depends on a solitary eyewitness, who is also a child and it would be prudent for a Court to look for some supportive corroboration, which, we are unable to find.

14. There are no other circumstances which may point at the involvement of the accused in the incident. The only circumstantial evidence is alleged discovery of weapon by accused No.2. We may not go into the question of trustworthiness or otherwise of that evidence, because it is not necessary for us to do so.

Even if we take that the discovery is proved, it would only indicate that the accused had knowledge of factum of concealment of that weapon and that would not prove that the weapon was used by the accused in commission of the crime.

15. We also find from the evidence of the eyewitness that the eyewitness and his brother were manhandled by the police. Accused No.2 was also manhandled by the police. This would leave us with a situation where the police has manhandled the witness and accused, where the possibility that the police has lodged 3 FIRs and only one is on record and the conduct of solitary eyewitness is not natural. With these defects in the prosecution case, we are unable to confirm the conviction recorded by the Trial Court. The appeals merit acceptance.

16. The appeals stand allowed. The judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge, 2nd Fast Track Court, Gandhidham­Kachchh, in Sessions Case No.57 of 2003 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code is hereby set aside. The accused persons are acquitted of the charges leveled against them. They be discharged from the prison forthwith, if not required in any other case. Fine, if paid, shall be refunded to them.

(A.L.DAVE, J.) Ankit* (S.G.SHAH, J.)