(Per : HONOURABLE MR.JUSTICE PARESH UPADHYAY) 1. This appeal is directed against the judgment and order passed by the learned Joint District Judge, Fast Track Court, Chhota-Udepur, Dist: Vadodara, dated 30.06.2002 in Sessions Case No.52 of 2002, whereby the two appellants are convicted for the offences punishable under Section 302 of the Indian Penal Code and Section 135 of the Bombay Police Act. Both the appellants-accused are sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of the Indian Penal Code, fine of Rs.5000/- is imposed on each of the accused and in default, they are ordered to undergo six months rigorous imprisonment. They are sentenced to undergo six months rigorous imprisonment for the offence punishable under Section 135 of the Bombay Police Act. Both the sentences are ordered to run concurrently and the accused are also held to be entitled for set off.
2. We have heard Ms.Rekha Kapadia, learned advocate for the appellants and Mr.K.L.Pandya, learned Additional Public Prosecutor for the State.
3. The case of the prosecution is to the effect that, on 04.04.2002, the victim (Raisingbhai Daljibhai) and his wife (Ladkiben) had gone from their Borchapada village to Hathikhana village to attend one marriage, and while they were playing on the drum there, the present appellants inflicted Dhariya and Paliya blows to the victim and he was dragged away from that place and the body was thrown. It is also the case of the prosecution that this occurrence was seen by the wife of the victim Ladakiben Raisingbhai Rathava, who is examined as PW:2 at Exh:10 and since she was scarred because of this occurrence, she had ran back to her village Borechapda, where she had informed her brother-in-law and other village people. Next day the body was found. Hence, the First Information was given by the wife of victim, which is recorded by Police-Sub- Inspector, Kvant Police Station on 5.4.2002 at Exh:23.
4. Pursuant to the First Information, offence was registered, it was investigated and accused were arrested, charge sheet was filed in the Court of learned Magistrate, at Chhota-Udepur. Thereafter, the case was committed to the Sessions Court, which was registered as Sessions Case No.52 of 2002. Charge was framed against them for the offence punishable Under Section 302 of Indian Penal Code and Section 135 of Bombay Police Act. The accused persons pleaded not guilty to the charges and came to be tried. During the Trial, the prosecution led oral evidence of 9 witnesses and also produced documentary evidences, the details of which are referred in Para-4 of the judgment of the Court below.
5. Learned Counsel for the appellants has contended that there is no, legally acceptable, evidence on record. There is material contradiction with regard to the very genesis of the incident and time of recording of the First Information. There is discrepancy even about the eye witnesses to the incident even as per prosecution case and the evidence of Investigating Officer also contain many contradictions. In her submission, conviction could not have been recorded on this evidence. She has submitted that conviction be set aside and the appellants be set at liberty.
6. On the other hand, Mr.K.L.Pandya, learned Additional Public Prosecutor has supported the conviction recorded by the learned Trial Court. In his submission, the case is based on direct evidence, there is eyewitness to the incident and the medical evidence also supports the case of the prosecution. According to him, whatever discrepancies are there, the same are not material and the evidence of investigating Officer if seen in true perspective, the so called contradiction is not fatal to the case of the prosecution.
7. We have gone through the record and proceedings, in the context of rival submissions and we find as under.
8.1 The prosecution sought to prove the case against the present appellants on the basis of evidence of wife of the deceased Ladkiben, who is projected as an eye-witness and who is examined as PW:2 at Exh:10. She in her examination-in- chief, deposed to the effect that she is staying at Borchapda village and the incident had taken place at Hathikhana village. She and her husband (victim-deceased) had gone to Hathinkhana village to attend marriage of one Ramesh Kanjibhai. She and her husband had started from their village, on 4.4.2002 at about 5’O clock in the evening and they reached village Hathikhana at about 6’O clock. After performing social customs there, while they were playing on the drum, at that time, Shivlabhai (accused no.1) and Damjibhai (accused no.2), who were also there, inflicted Dhariya and Paliya blows on the head of victim and he had fallen down. Thereafter, accused no.1 inflicted blow of Paliya while the husband of witness was lying there. She further states that thereafter, she had gone to her village to call her brother-in-law and thereafter, she along with other persons came back to village Hathikhana, at that time, she did not find her husband there. In the night, they had tried to search her husband and they had found dead body. When they saw the husband of the witness, he had sustained injuries on head, legs and other parts of the body. Thereafter, she had gone to Kvant Police Station, to lodge the FIR. She had given her thumb impression on the FIR. She identifies the complaint, which is given by her. She also identified the appellants, who were present in the Court at the time of giving evidence.
8.2 In her cross-examination, she deposed inter-alia, to the effect that to give FIR, she had gone to police station with her brother-in-law, Sarpanch Tulsingbhai Khumansingbhai at about 10’O clock in the morning and met the police officer. At that time, First Information was given to him and Police had taken the information. The complainant and other persons had gone with the dead body to the police station and dead body was kept outside of the police station. Thereafter, at about 12’O clock, the dead body was taken to hospital for the purpose of Post Mortem and after Post Mortem was over, at about 5’O clock, dead body was given to her and then she had taken dead body to her village for last rites.
8.3 She in her evidence (cross examination), also stated that her husband had gone for marriage on that day, in the morning she had informed her sisters-in-law that her husband has not returned home last night, she had informed Sarpanch of the village that her husband has gone with Dholiya (drum player) and he has not returned, and therefore, he may inquire in this regard.
8.4 In her cross-examination, she further stated that the body of husband was thrown at the river bed in the night and she came to know about that at about 2’O clock in the night, thereafter, they had gone to verify the same at the river side and they saw the dead body. Thereafter they left the body there only. She also deposed that the dead body was taken to police station and thereafter, was taken to her village. She in her evidence is quite categorical about the fact that when she and other villagers had gone to police station, Police-Sub-Inspector permitted only her to come in his chamber, other persons including her brother-in-law viz. Khumansing as well as Sarpanch viz. Tersing were asked to wait outside. She also further deposed that the name of both the accused were given on the say of the Police Sub Inspector. She further clearly stated that the complaint was given at 10:15 hours in the morning, she also stated that the dead body was seen by her in the morning at Borchapda village (not Hathikhan Village). When she show the dead body, there was blood oozing out of it. There was pond of blood in the field where the dead body was lying. On the prior day of incident, she, her husband and one more person had played falk dance on the drum for quite sometime at their own house and while they were playing on drum, there was already dark in the late evening.
9. The brother-in-law of first informant (brother of deceased), namely Khumansing Dalji Rathava, was examined as PW:3 at Exh:11. In his examination- in-chief, he stated that he had also seen the occurrence, since he was present there. He stated that since they were scared because of the incident, he as well as wife of the deceased; both had returned to their village. He deposed to the effect that he had seen accused no.1 and accused no.2 while inflicting blows with Dhariya and Paliya to the deceased. At this juncture, this witness was declared hostile and he was cross-examined by the prosecution. In the cross- examination, it was sought to be projected by the prosecution that this witness is not eyewitness and when wife of the deceased; after being scared because of the occurrence, returned to her own village, thereafter, this witness had accompanied the wife of the deceased. In the cross-
examination on behalf of the accused, this witness stated that police had inquired from him at about 8’O clock in the morning in the outskirts of village Hathikhana. In the cross- examination, a suggestion was also put to this witness that he and the deceased, both brothers had also fight on the earlier day and even the complaint was given to Kvant Police Station on that day.
10. The Investigating Officer Sunilkumar Dolabhai Damor, Police Sub Inspector, was examined as PW:9 at Exh:22. In his evidence, he stated, mainly to the effect that on 05.04.2002, while he was discharging his duty at Kvant Police Station, Ladaliben came to him and gave first information about the commission of offence, which is referred above. The said information was recorded by him (Exh:23) which is on record. According to him, the FIR was given at 15:15 hours. As per his evidence, soon after receiving the said FIR, offence was registered and necessary actions were taken including Inquest Panchnama, sending body for Post Mortem etc. Investigation had taken place and the accused were arrested, investigation completed and charge sheet was filed. In his evidence, he is categorical that the offence was disclosed before him at about 15:15 hours, he denied the suggestion that in the morning at about 8’O clock, he had gone to Borchapda village, he also stated that he had not taken any statement at about 8’O clock on 05.04.2002. He also denied that the first informant had came to police station at about 10’O clock in the morning. In his deposition, he states that it is true that dead body was lying in Borchapda village (not Hathikhana Village). He further states that the first informant had disclosed that she had informed her sisters-in- law in the morning. He also stated that Khumansinh Dalji (PW-3) was not eyewitness as per his investigation. There were many offences registered against the deceased. He also confirms that in panchnama at Exh:21, panch witness no.2 was shown to be Shankar, but it is signed by Tulsingbhai.
11. One Gurji Chitu Rathava PW:5 is examined at Ex.16. At his residence the occurrence is claimed to have taken place. He denies this aspect. In the cross examination by prosecution he maintains that the incident did not take place.
12. Wife of Gurji, Nakudiben PW:6 is examined at Ex.17. She also denied the occurance. She denied even the deceased having been invited to her place and he having come there. In the cross examination by prosecution she maintained her denial.
13. Medical evidence is on record. The victim had sustained total 11 injuries and the cause for death as reflected in the Post Mortem report is head injury leading to extensive brain damage & cerebral hemorrhagic shock. Dr.Jyantibhai Manubhai Parmar, was examined as PW:1 at Exh:7, who had conducted Post Mortem. Injuries on the person of deceased as reflected in the P.M. Report is sought to be proved by the evidence of the doctor and the cause of death is also proved by this evidence. There is no dispute about the fact that the deceased had dies of homicidal death. It is also not in dispute that the weapons, which are projected by prosecution having been used in commission of this offence, are relatable with the injuries sustained by victim. Since these points are not in dispute, this evidence is not discussed further.
14. All the three panch witnesses have turned hostile. The recovery of cloths of accused, as well as discovery of weapons at their instance is not proved. Not only that if the contents of panchnama Exh:21 is seen, two persons are named as panchas; namely Dursingbhai Vorabhai Rathava and Shankarbhai Bhurkabhai Rathava and the same is signed by Dursingbhai as witness no.1, but as Rathava Tulsingbhai Fudiya as witness no.2. Be it noted that the panchwitness no.2 is Shankarbhai Bhurkabhai Rathava and it is signed by Rathava Tulsingbhai Fudiya. Apart from the fact that none of the panch witness supports the case of the prosecution, this discrepancy according to us was serious, and therefore, we have verified the same with the original and we find that Shankarbhai Rathava, who is shown panchwitness no.2 at Exh:21 is not signatory to this and signatory is Rathava Tulsing Fudiya. In the evidence of Investigating Officer, these points were specifically taken by the defence and Investigating Officer does not have any explanation to offer in this regard.
15.1 On the basis of the evidence of all the nine prosecution witnesses, which is discussed hereinabove, the overall picture which emerges before the Court is as under.
15.2 The first informant had seen the dead body of her husband in the morning, in the outskirts in her own village, thereafter the police started taking actions at about 8’O clock in the morning. The dead body is taken to police station at about 10’O clock and FIR is also given at about 10.15 hours. The first informant herself has deposed that it is the Police-Sub-Inspector who told her to give the names of these two accused persons, and that is how these names are given in the FIR. Thereafter, at about 12’O clock noon, the body is taken to hospital for Post Mortem. The first informant along with her relatives stayed at hospital for the whole day and at about 17.00 hours, the body, after performing post mortem was given to her, she took the dead body to her village and performed last rites.
15.3 The evidence of Investigating Officer is to the effect that the First Information was given to him at 15:15 hours, thereafter, the entire procedure is undertaken by him. Inquest Panchnama Ex.13 is claimed to have been drawn between 15:45 to 16:15 hours, thereafter, at about 17:00 hours body is taken for post mortem and at about 19:15 hours post mortem was over. The discrepancies are seen in the background of evidence of the first informant.
15.4 Further, brother of the deceased claimed to be at the place of occurrence and he is declared hostile, not because he said something against prosecution, but because he projected himself as eyewitness to the incident. If he continues to be accepted as eyewitness, prosecution theory of wife being eyewitness to the incident falls to the ground.
15.5 Apart from the fact that none of the three pancha witnesses has supported the case of the prosecution, even the persons who are shown to be panch witness have not signed but other persons have signed panchnama and Investigating Officer does not have any explanation to offer in this regard. This lead us to hold that there is concoction of documents by prosecution. Further, there are different versions as to from which village the dead body was recovered, at what time it was recovered and who saw it first and when.
15.6 Thus, on the conjoint reading of evidence of wife of deceased who is first informant, brother of deceased who claims to be an eye witness and on that very point he is declared hostile, the Investigating officer, witnesses at whose residence the occurrence is claimed to have taken place, we reach at a point where these witnesses falsify each other. Evidence of PW:2 and PW:3 does not inspire confidence. The evidence of PW:9 the Investigating Officer would, in the facts of this case, be very unsafe to accept since he is found to have indulged even in concoction of documents and the first informant says that the names of accused figure in the FIR at the say of the Investigating Officer himself. Further, record also shows that the quality of investigation was poor and does not inspire confidence of the Court. If these three witnesses i.e. the first informant, brother of deceased and the investigating officer are not believed, which we are not, then there is no other evidence, much less legally acceptable evidence to support the case of the prosecution. We find that Trial Court has overlooked these aspects and conviction can not be upheld.
16. For the reasons recorded above, we arrive at the judgment and pass order as under.
(I) There is no legally acceptable evidence, much less sufficient evidence, to prove the guilt of any of the accused of having committed offence, for which they were charged. The conviction recorded by the Trial Court can not be upheld.
(II) The judgment and order of conviction and sentence, recorded in Sessions Case No.52 of 2002 by the learned Joint District Judge, Fast Track Court, Chhota-Udepur, District: Vadodara dated 30.06.2003, is quashed and set aside. The appellants, original accused are acquitted of all the charges leveled against them.
(III) The appellants, Shivlabhai Bhaljibhai Rathava and Damjibhai Nayakabhai Rathava, be set at liberty forthwith, if they are not required for any other lawful purpose. Fine if paid, shall be refunded to the appellants.
(A.L.DAVE, J.) (PARESH UPADHYAY, J.) Suchit*