[1.0] The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the appellants herein – original accused Nos.1 to 3, 5 and 6 against the impugned judgment and order of conviction dated 27.08.2003 passed by the learned Additional Sessions Judge (2nd Fast Track Court), Banaskantha, at Deesa in Sessions Case No.63 of 2000 convicting all the accused for the offences punishable under Sections 147, 148, 302 read with Section 149 and 307 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). It is required to be noted that so far as original accused No.4 is concerned, he died during the trial and therefore the trial/proceedings qua him came to be abated. [2.0] The prosecution case, in nutshell, is as under: [2.1] That one Venabhai Khengarbhai, brother of deceased – Dungrabhai and son of the injured eyewitness, Khengarbhai, lodged FIR with Tharad Police Station, District Banaskantha at about 5 AM on 02.05.1999 against all the accused persons for the offences punishable under Sections 147, 148, 302 read with Section 149 and 307 read with Section 149 of the IPC. It was stated in the FIR that the marriage of his sister – Panchuben was solemnised with original accused No.1 before two years and that the marriage of the sister of the original accused No.2 viz. Kamuben was solemnised with him. That there was a dispute between Bai Panchuben, his sister and original accused No.1 and therefore Panchuben had left the house of the original accused No.1 and started residing with her parents along with the complainant. Similarly, wife of the complainant – Kamuben also left her matrimonial home and gone to stay with the accused persons. It was further stated that original accused No.1 was time and again coming to take Bai Panchuben back. However, the complainant side were not sending her back. It was further stated that there was a settlement at Shivji Temple in the presence of other village people and it was decided that Bai Panchu will stay/reside with the complainant and her parents and similarly Bai Kamuben, sister of original accused No.1 will stay with the accused – her parents home. It was further alleged in the complaint that the aforesaid settlement was not acceptable to the original accused persons. It was further alleged in the FIR that thereafter it was decided to marry Bai Panchuben with one Patel Khengarbhai of Rampura and they were to come to take said Bai Panchu, which came to the knowledge of the accused persons and therefore all the accused persons attacked the complainant side on the field, which was situated on the sim of village Sanaviya where the complaint with his family members inclusive of the deceased, the injured witness and other family members were staying. It was further alleged in the FIR that all the accused persons came there with a common intention to kidnap Bai Panchu and when they came in the jeep at 1 AM, they called Dungrabhai, brother of the deceased and asked where Bai Panchu is and at that time there was a scuffle and all the accused persons, who were armed with deadly weapons like dharia, axe, sword, spear attacked and beaten deceased – Dungrabhai severely. It was further alleged that, at that time, father of the complainant – Khengarbhai woke up due to commotion and tried to intervene and sustained injuries by the accused persons. It was further alleged that at that time the complainant and one Javanji, who was sleeping at a distance, also woke up due to hubbub and they reached the place of the offence and saw that all the accused persons beating Dungrabhai and his father Khengarbhai. It was further alleged that because of shoutings and commotion, one Patel Ramabhai Bhanabhai and Ukaji Karamshi, etc. came there running from the nearby field and saw that accused persons running away from the field in the jeep. It was further alleged that brother of the complainant, Dungrabhai was seriously beaten and he became unconscious. It was further alleged that so far as Khengarbhai, father of the complainant is concerned, he sustained injuries on the head and hands by dharia, axe and sharpcutting weapons. Therefore, said Khengarbhai was taken to the hospital at Tharad immediately in the jeep, which was brought from the adjacent field where water boring work was going on. It was further alleged that both Khengarbhai and Dungrabhai were brought to the Hospital and said Dungrabhai was declared as dead. The said FIR was investigated by the Investigating Officer, Shri H.B. Chavada who recorded the statements of the relevant witnesses including complainant – Venabhai Khengarbhai, Khengarji Ratnaji, Panchuben Khengarji and Ramabhai Bhanabhai. He also prepared the panchnama of the place of the offence in presence of the panchas. That the accused persons produced the weapons such as axe, spear, sword in the presence of panchas. That the statements of panchas were also recorded. That during the course of investigation, the dying declaration of Khengarbhai was also recorded by the Executive Magistrate. That the post mortem report was also produced. That on conclusion of the investigation, the Investigating Officer filed the charge sheet against all the accused persons for the offences punishable under Sections 147, 148, 149, 307 and 302 of IPC in the court of the learned JMFC, Tharad. As the case was exclusively triable by the Court of Sessions, the learned JMFC, Tharad committed the case to the Sessions Court, Palanpur which was numbered as Sessions Case No.63 of 2000. That the charge came to be framed against accused persons at Exhibit 14. That the pleas of all the accused persons were recorded at Exhibits 15 to 19 wherein they pleaded not guilty and therefore all the accused who were chargesheeted came to be tried for the aforesaid offences.
[2.2] To prove the case against the accused persons the prosecution has examined, in all, 15 witnesses. The prosecution examined original informant/complainant, Venabhai Khengarbhai, PW No.3 at Exhibit 32; Khengarji Ratnaji, injured eye witness, PW No.8 at Exhibit 49; Panchuben Khengarji, PW No.9 at Exhbiit 51 and Ramabhai Bhanabhai, PW No.11 at Exhibit 55. To prove various panchnamas, such as panchnama of place of offence; pnachnama of recovery of clothes and panchnama of recovery of the weapons produced by the respective accused, the prosecution has examined PW No.4, Kumpaji Bharmalji at Exhibit 34; PW No.5, Vajesing Vaghaji at Exhibit 36; PW No.6, Joraji Thakraji at Exhibit 39; PW No.7, Madhabhai Bhemabhai at Exhibit 47 and PW No.10, Manrabhai Kheabhai at Exhibit 52. The prosecution has also examined Dr Dipak Dharmaji Gehlot, PW No.1 at Exhibit 23 who conducted the postmortem examination. The prosecution has also examined PW No.2, Sonabhai Ghudabhai, Circle Inspector at Exhibit 29 to draw and prove the site map. The prosecution has also examined PW No.15, Dr. Chunilal Punjiram Kumpavat at Exhibit 75 who initially treated the injured eye witness – Khengarji Ratnaji at Civil Hospital, Palanpur. The prosecution has also examined PW No.12, H.B. Chavada, Investigating Officer who investigated the case at Exhibit 56. The prosecution has also examined PW No.13, Mohanbhai Nopabhai at Exhibit 71 and PW No.14, Mithusing Sagramsingh, PSO at Exhibit 74. The prosecution has submitted the pushis at Exhibit 50 to drop the witnesses viz. Vaduben Khengarji, Jawanji Bavaji, Rajput Ukaji Karamshiji, Goswami Kevalgar Mangar and Patel Shivabhai Amrabhai. As the said application and/or prayer of the prosecution to drop the aforesaid witnesses was opposed by learned advocate appearing for the accused persons, learned trial Judge allowed the said application by order dated 29.04.2003 by observing that the prosecution cannot be compelled to examine a particular witness and if the defence wants that the evidence of dropped witnesses comes on record, they can submit an appropriate independent application.
[2.3] It appears that thereafter the accused submitted the application at Exh.82 to examine the witnesses, Goswami Kevalgarh Mangarh (who was dropped earlier) and the Executive Magistrate who recorded the dying declaration of Khengarbhai Patel as Court Witnesses under Section 311 of the CrPC and by a detailed speaking order the learned Judge rejected the said application. Thereafter, the prosecution submitted closing pursis and further statement of all the accused were recorded under Section 313 of the CrPC wherein all the accused persons denied having committed an offence. At this stage it is required to be noted that though specifically asked whether the accused persons want to examine any witness, the accused persons specifically stated that they do not want to examine any witness as their witnesses.
[2.4] That thereafter, after considering the submissions made on behalf of the prosecution as well as the defence and on appreciation of evidence, by impugned judgment and order the learned Judge has held all the accused guilty for the offences punishable under Sections 147, 148, 302/149 and 307/149 of the IPC and sentenced to undergo two years’ RI for the offence punishable under Section 147 of IPC with fine of Rs.500/ and in default of payment of fine to undergo further two months’ RI; punishment of two years’ RI for the offence punishable under Section 148 of the IPC and fine of Rs.500/ and in default of payment of fine to further undergo three months’ RI; sentenced to undergo life imprisonment for the offence punishable under Section 302/149 of the IPC and fine of Rs.3000/ and in default of payment of fine to undergo further six months’ SI and also sentenced to undergo ten years’ RI for the offence punishable under Section 307/149 of the IPC and fine of Rs.2000/ and in default of payment of fine to undergo further six months’ RI. The learned Judge has passed an order to undergo the aforesaid sentences concurrently by each accused.
[2.5] Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction convicting the accused for the aforesaid offences, the appellants herein – original accused have preferred the present Criminal Appeal under Section 374(2) of the CrPC.
[3.0] Shri Mrudul Barot, learned advocate has appeared on behalf of the appellant No.1 herein – original accused No.1 and Shri B.N. Patel, learned advocate has appeared on behalf of the appellant Nos.2 to 5 herein – original accused Nos.2 to 5.
[3.1] Learned advocates appearing on behalf of the respective appellants have vehemently submitted that the learned Judge has materially erred in convicting the accused for the offence punishable under Sections 147, 148, 302 read with Section 149 and 307 read with Section 149 of the IPC. It is submitted that while convicting the accused for the aforesaid offences, the learned Judge has not properly appreciated the entire evidence on record. It is submitted by the learned advocates appearing on behalf of the respective appellants that the impugned judgment and order is based on assumptions and surmises overlooking number of contradictions and omissions in the evidence and with respect to the deposition of the material prosecution witnesses.
[3.2] It is further submitted by the learned advocates appearing on behalf of respective appellants that as such all the witnesses whose evidence have been relied upon by the learned Judge are all interested witnesses and the relatives of the deceased and though available, independent witnesses have not been examined by the prosecution. Therefore, it is requested to allow the present appeal by quashing and setting aside the impugned judgment and order of conviction. It is submitted that though the material witnesses who are independent witnesses and whose presence at the scene of offence at the time of incident and immediately after the incident are not examined by the prosecution, are in fact dropped though they were cited as witnesses in the chargesheet.
[3.3] It is further submitted by learned advocate appearing on behalf of the appellants – original accused that as such there was a delay in lodging the FIR/complaint which has not been properly appreciated bny the learned Judge. It is submitted that the complaint filed by the PW3 Venabhai Khengarbhai as per Exh.57 and FIR Exh.72 was given at 5 am on 02.05.1999 which was not given immediately but given after a delay of more than three hours atleast and which clearly appears to have been given after deliberation with other relatives. It is submitted that in fact the incident is alleged to have occurred at around 1.00 AM (midnight) on 02.05.1999 and soon after the incident a vehicle – jeep was available nearby, as work of bore well was going on and in fact one Shri Kevalgar drove the jeep and came at the site immediately and as per the evidence as also looking to the alleged serious injuries caused to Dungrabhai – the deceased and Khengarbhai – the injured, they left for Tharad for medical treatment within 10 to 15 minutes. It is submitted that looking to the distance from the scene of offence and Tharad, they could have reached, under normal circumstances, to Tharad within 45 minutes to 1 hour at the most and the complaint came to be given only at 5 am, wherein names of all the appellants – accused and one Nagjibhai are given, which is nothing but a result of deliberation and afterthought.
[3.4] It is submitted that the appellants – accused had strained relations due to matrimonial problem and earlier incident of altercation, on the basis of suspicion due to enmity against the appellants and the deceased, Nagjibhai and the complainant gave the names. It is submitted that therefore, as there is a delay in lodging the FIR, there was ample time to deliberate and falsely implicate the accused.
[3.5] It is further submitted by the learned advocates appearing on behalf of the respective appellants that the learned Judge ought to have appreciated that the injured witness Khengarbhai who was examined at Exh.49 had not stated in the first statement given by him before the Executive Magistrate, who had recorded it as dying declaration as per Exh.80, name of any of the appellants except name of appellant No.2 Sangrambhai, nor did Panchuben at Exh.51 and Ramabhai Bhanabhai at Exh.55 had given the names of the appellants in their statements before police/Investigating Officer recorded immediately after filing of the complaint and their depositions are full of contradictions which if properly appreciated would certainly create reasonable doubt about the appellants having committed the crime and caused injuries.
[3.6] It is further submitted that the learned Judge has seriously erred in appreciating the evidence of injured witness Khengarbhai at Exh.49. It is submitted that the said witness has improved his version on all material aspects of the case and the prosecution story than the statement given before the Executive Magistrate as dying declaration at Exh.80 and also the statement given before the Investigating Officer.
[3.7] It is further submitted that as such it has come on record that there was darkness and therefore, it was not possible for the witnesses to identify the assailants. It is submitted that as such there are material contradictions with respect to electric pole and/or the light at the site. It is further submitted by the learned advocate appearing on behalf of the appellants that the learned Judge has materially erred in relying upon the panchnamas as well as in appreciating the evidence of Panchuben (Exh.51). It is submitted that the learned Judge has materially erred in relying upon the deposition of Panchuben who has been examined at Exh.51 as in fact the said witness is full of contradictions and improved versions as compared to her statement given before the Investigating Officer. It is submitted that as such the presence of Panchuben or her having witnessed the incident itself is doubtful. As in light of the prosecution story if Panchuben was there and if the appellants were assailants, strong probability would be that either Panchuben would have been abducted or she would have been seriously hurt. But Panchuben has not received any injury whatsoever nor is there any allegation or say that Panchuben was tried to be kidnapped or manhandled. It is submitted that therefore and under the circumstances, to believe that Panchuben was present and that she had seen the incident and that the appellants were assailants is absolutely unbelievable and atleast it creates serious and reasonable doubt in the said version.
[3.8] It is further submitted by learned advocates appearing on behalf of the respective appellants that the learned Judge has materially erred in even relying upon the deposition of the original complainant – Venabhai. It is submitted that there are material contradictions and omissions and improvements in his evidence. It is submitted that admittedly the said Venabhai has not sustained any injury. It is submitted that if he was really there at the time of inflicting the injuries on his brother Dungrabhai and father Khengarbhai, he would have been intervened.
[3.9] It is further submitted that similarly the learned Judge has materially erred in relying upon the deposition of witness Ramabhai who has been examined at Exh.55. It is submitted that even his deposition is full of material contradictions than his statement before the police. It is submitted that his presence at the time of incident at the spot is also highly improbable looking to the location of his field and the distance between his filed and the field of Khengarbhai. It is submitted that as such he was considerably away from the site and when it was midnight and would have been sleeping at his place, it was not possible for him to have come at the scene of offence within few minutes.
[3.10] It is further submitted by learned advocates appearing on behalf of respective appellants that though it was a specific case on behalf of the prosecution that the assailants came in the jeep, the jeep has not been recovered at all. It is further submitted by learned advocates appearing on behalf of the respective appellants that the learned Judge has not properly appreciated the deposition of the Investigating Officer Shri Chavda. It is submitted that as such the Investigating Officer has stated that only one accused caused the injuries and used the weapon. It is submitted that despite the above, due to the enmity, other five persons are arraigned as accused which creates doubt in the prosecution case.
[3.11] It is further submitted by learned advocates appearing on behalf of respective appellants that as such there was no motive at all as according to the prosecution the dispute was already settled and therefore, there was no reason for the appellants to attack and commit the offence.
[3.12] Shri Mrudul Barot, learned advocate appearing on behalf of the appellant No.1 – original accused No.1 has heavily relied upon the decision of the Hon’ble Supreme Court in the case of Kuldip Yadav and Ors. vs. State of Bihar reported in (2011)5 SCC 324.
Making above submissions and relying upon the above decisions, it is requested to allow the present criminal appeal.
[4.0] Present appeal is opposed by Shri L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the State.
[4.1] It is submitted by Shri Dabhi, learned APP that the impugned judgment and order of conviction passed by the learned Judge is on appreciation of evidence and relying upon the eyewitnesses out of which one is injured eyewitness and therefore, no error has been committed by the learned Judge in convicting the appellants – original accused for the offences punishable under Sections 147, 148, 302 read with Section 149 and 307 read with Section 149 of the IPC.
[4.2] It is submitted that from the depositions of PW3 Venabhai Khengarbhai – original complainant; PW8 Khengarbhai – injured eye witness; PW9 Panchuben and PW11 Ramabhai, all the accused have been identified. It is submitted that the presence of the accused have been established and proved beyond doubt from the deposition of the aforesaid witnesses.
[4.3] It is further submitted by Shri Dabhi, learned APP that as such there are no material contradictions/contradictions at all in the deposition of the aforesaid four eyewitnesses which creates doubt about their credibility. It is submitted that as such there are no contradictions in the deposition of the aforesaid four witnesses than their statement before the Investigating Officer and/or even before the Executive Magistrate (so far as Khengarbhai is concerned).
[4.4] It is further submitted by Shri Dabhi, learned APP that the weapons have been recovered and the same have been proved by examining the panch witnesses who have fully supported the panchnama of recovery of weapons etc.
[4.5] It is further submitted that as such there is no inordinate delay in filing the complaint. It is submitted that the incident has taken place at midnight at about 1.00 AM and in the said incident Dungrabhai sustained serious injuries who subsequently succumbed to the injuries and died and even Khengarbhai also sustained injuries and therefore, the first priority was to take them to the hospital and in fact they were taken to the hospital and even Medical Officer refused to give treatment as it was a police case and immediately the Medical Officer informed the police and thereafter the complaint has been lodged at 5.00 AM. It is submitted that between the time of incident and the complaint, as all were busy in giving treatment to Dungrabhai and Khengarbhai, there was hardly any time to deliberate and falsely implicate the accused persons. It is submitted that therefore there is no reason to believe that because of the delay in filing the complaint, there was deliberation and false implication of the accused persons.
[4.6] It is further submitted by Shri Dabhi, learned APP that merely because the eyewitnesses are relatives of the deceased, their evidence/deposition cannot be discarded and they cannot be termed as interested witnesses. It is submitted that as the evidence/deposition of the eyewitnesses are found to be reliable and they are found to be trustworthy, they can be relied upon and are rightly relied upon by the learned Judge. It is submitted that merely because some witnesses are dropped by the prosecution as according to the prosecution the witnesses who were examined were sufficient to prove the case against the accused, the impugned judgment and order of conviction is not required to be set aside. It is submitted that though the accused persons were asked whether they examined any witnesses, they have specifically said “NO”. It is submitted that they could have examined those witnesses as defence witnesses, but the defence failed to examine them as defence witnesses. It is submitted that therefore, it is not open for the appellants now to contend and/or make a grievance with respect to dropping some of the witnesses by the prosecution.
[4.7] It is further submitted that as the prosecution has proved the case against the accused beyond doubt, the learned Judge has rightly convicted the accused for which they can be tried.
Making above submissions and by submitting that while on bail, accused Nos.2 and 3 are absconding, it is requested to dismiss the present appeal.
[5.0] Heard Shri Mrudul Barot, learned advocate appearing on behalf of appellant No.1 – original accused No.1 and Shri B.N. Patel, learned advocate appearing on behalf of appellant Nos.2 to 5 – original accused Nos.2 to 5 and Shri L.B. Dabhi, learned APP for the State at length. We have gone through the entire evidence on record and have reappreciated the same.
[5.1] At the outset it is required to be noted that all the accused came to be tried for the offences punishable under Sections 147, 148, 302/149 and 307/149 of the Indian Penal Code, 1860 alleging inter alia that accused persons came to the field of Khengarbhai and attacked them because of the matrimonial dispute with Panchuben and the original accused No.1 at about 1.00 AM and they came in the jeep, caused the injuries on Dungrabhai (who subsequently died due to injuries) and on Khengarbhai – injured eyewitness. It is required to be noted that the death of Dungrabhai due to the injuries have been proved. In the P.M. Report the cause of death of Dungrabhai is stated to be “shock due to hemorrhage (bleeding from wounds)”. Even the injuries on Khengarbhai have been proved from the deposition of the Doctor and the medical certificates issued by Dr. D.D. Gehlot, Medical Officer, Referral Hospital, CHC, Tharad. According to the deposition of Dr. Dipakkumar Gehlot (PW1), who has been examined at Exh.23, the injuries sustained by Dungrabhai as well as Khengarbhai can be by sharp cutting substance. In the history given by Khengarbhai, he gave the history that he sustained injuries by axe and dharia (sharp cutting weapons). Thus, the death of Dungrabhai was a homicidal death, has been proved. It is required to be noted that as such it is not disputed by the accused that the death of Dungrabhai was not homicidal death.
[5.2] To prove the case against the accused, the prosecution has as such examined following witnesses.
The prosecution has examined Venabhai (PW3) – original complainant at Exh.32. We have gone through the entire deposition of the said witness as well as the complaint produced at Exh.57. The said Venabhai is an eyewitness and as the incident has taken place at his field (his father Khengarbhai’s field), his presence at the place is natural. In the complaint at Exh.57, which has been given at 5 AM in the morning, he has specifically given the names of all the accused persons. He has narrated in his deposition that how the incident has taken place and he has been fully crossexamined by the defence. On re appreciation of his entire evidence, we are of the opinion that the said witness is reliable and trustworthy and is a natural witness and there is no reason to doubt and/or disbelieve the said witness. Considering the entire evidence on record and the police statement and the deposition of the Investigating Officer, we do not see any material contradictions in his deposition and/or any omission and/or material improvement in the case, it will create doubt about his credibility.
Similarly, there are other three eyewitnesses i.e. PW8 Khengarbhai, who has been examined at Exh.49; PW9 Panchuben examined at Exh.51 and PW11 Ramabhai, who has been examined at Exh.55.
[5.3] Khengarbhai is an injured eyewitness who has fully supported the case of the prosecution. The contention on behalf of the appellants – accused that when the Executive Magistrate recorded his dying declaration, he did not disclose the name of all the accused persons and therefore, there is an improvement and except one (accused No.2) other accused persons have been falsely implicated subsequently is concerned, it is required to be noted that once the said Khengarbhai has survived, as rightly observed by the learned Judge, his dying declaration before the Executive Magistrate is nothing but his statement only and what is required to be considered is, his deposition. It is required to be noted that involvement of all the accused persons are corroborated by the deposition of all the eyewitnesses, who have fully supported the case of the prosecution. The presence of Panchuben (PW9) is also natural. Similarly, considering the entire evidence on record, there is no reason to doubt the presence of Ramabhai Bhanabhai (PW11). In the complaint given by Venabhai at 5 AM, names of all the accused persons have been disclosed and as such the said witness has stood by what he has stated in the complaint. Under the circumstances, considering the deposition of the eyewitnesses – PW3, PW8, PW9, PW11, it has been proved by the prosecution beyond doubt that the appellants herein – original accused went to the filed of the original complaint due to prior enmity and matrimonial dispute – sustained injuries on Dungrabhai and Khengarbhai and when because of the shouting other neighbors came there, they ran away and due to the injuries sustained by Dungrabhai, subsequently Dungrabhai died and even Khengarbhai sustained serious injuries, no error and/or illegality has been committed by the learned Judge convicting the appellants herein – original accused for the offences punishable under Sections 147, 148, 302 read with Section 149 and 307 read with Section 149 of the IPC.
[5.4] Now, so far as the contention on behalf of the appellants that there was a delay of three hours in lodging the complaint and in the meantime there were deliberations and false implication of the accused are concerned, the aforesaid has no substance. It is to be noted that the incident has taken place at about 1 AM and Dungrabhai as well as Khengarbhai sustained serious injuries and therefore, the first priority was to give medical treatment to them and therefore, they were being shifted to hospital at Tharad and immediately they were taken to the hospital at Tharad. It has come on record that the Medical Officer initially refused to medical treatment without police complaint as it was a police case and therefore, the Medical Officer immediately informed the police and thereafter, he started the treatment. Therefore, all throughout till 5 AM, all were busy in giving treatment to Dungrabhai as well as Khengarbhai. Under the circumstances, it appears that there was hardly any time to have deliberations and falsely implicating the accused persons. Under the circumstances and in the facts and circumstances of the case, we are of the opinion that as such there is no delay in lodging the complaint, which can be said to be fatal to the case of the prosecution.
[5.5] It is required to be noted that the weapons have been recovered and the same have been proved by drawing the panchnama and examining the panchas. All the panch witnesses have fully supported the case of the prosecution as well as the panchnama. Merely because there is no recovery of jeep, other overwhelming evidence in the form of deposition of the eyewitnesses and recovery of weapons etc. cannot be discarded.
[5.6] Now, so far as the contention on behalf of the appellants that as such there was no motive and/or reason as there was already a statement and/or the case on behalf of the appellants that as there was no injury sustained by Panchuben because of whom there was a dispute or there was no and/or nothing has come on record that there was any attempt by the assailants to kidnap and/or abduct Panchuben, the prosecution case cannot be believed is concerned, it is required to be noted that as soon as the assailants attacked Dungrabhai and Khengarbhai who were sleeping in the field sustained injuries and at that time Venabhai came there and there was shouting and other neighbors came there inclusive of Ramabhai etc. and therefore, the accused ran away. Therefore, there was hardly any opportunity to kidnap and/or abduct Panchuben. In any case merely because Panchuben did not sustain any injuries and/or nothing has come on record whether there was any attempt to kidnap Panchuben, other overwhelming evidences/depositions of eyewitnesses cannot be discarded and/or the prosecution case cannot be doubted.
[5.7] Now, so far as the contention on behalf of the appellants that all those eyewitnesses are relatives and therefore, they are interested witnesses and other eyewitnesses who were present at the time of incident and/or which is immediately after the incident, either are not cited as a witness and if cited, they are not examined and therefore, to acquit the appellants is concerned, the aforesaid cannot be accepted. Merely because the witnesses are relatives, by that itself they cannot be termed as interested witnesses. If they are found to be reliable and trustworthy they can be relied upon.
[6.0] Now, so far as the dropping of some of the witnesses by the prosecution is concerned, it is required to be noted that as such it is for the prosecution to decide which witnesses to be examined and how many witnesses to be examined. If the prosecution was satisfied that all those witnesses who were examined were sufficient to prove the case against the accused, the prosecution need not examine all the witnesses cited as witness in the chargesheet. If the appellants were of the opinion that those witnesses who were dropped are required to be examined as they were independent witnesses who might have supported their case, in that case they ought to have examine them as defence witnesses. While recording the further statement of the accused under Section 313 of the CrPC, all the accused were asked whether they want to examine any witness and to that all the accused had said “NO”. Therefore, it is now not open for the appellants to make a grievance with respect to dropping of some of the witnesses by the prosecution and not examining them. Ample opportunity was given to them to examine them but they failed to avail the said opportunity.
[6.1] Now, so far as the contention on behalf of the appellants – original accused with respect to discrepancies and/or contradictions in the deposition of the eyewitnesses PW3, PW8, PW9, PW11 is concerned, as stated herein above and on reappreciation of entire evidence on record, we are of the opinion that there are no major contradictions in the deposition of the aforesaid witnesses which creates doubt about their credibility.
[6.2] As observed by the Hon’ble Supreme Court in the case of Shyamal Ghosh vs. State of West Bengal reported in (2012)7 SCC 646, material contradictions alone are relevant and can affect case of party concerned. It is observed that every variation may not be enough to adversely affect the case of the prosecution. It is observed that no statement of a witness can be read in part and/or in isolation and the Court should examine statement of a witness in its true entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. It is further observed that Court has to see whether variations are material and affect prosecution case substantially.
[6.3] Similarly, in the case of Thoti Manohar vs. State of Andhra Pradesh reported in (2012)7 SCC 723, it is observed by the Hon’ble Supreme Court that minor discrepancies are to be ignored. It is observed that duty of the Court is to appreciate the evidence with vision of prudence and acceptability of the deposition regard being had to the substratum of the prosecution story. It is observed that no evidence can ever be perfect for man is not perfect and man lives in an imperfect world. It is further observed that giving undue importance to discrepancies would amount to adopting the hypertechnical approach and Court while appreciating the evidence should not attach much significance to minor discrepancies. It is observed that discrepancies which do not shake the basic version of prosecution case are to be ignored.
[6.4] Considering the aforesaid proposition of law laid down by the Hon’ble Supreme Court and considering the facts of the case and considering the deposition of PW3, PW8, PW9, PW11 as a whole and combined reading of all the aforesaid witnesses, we are of the opinion that their evidence is fully corroborated by the deposition of each other and they have fully supported the case of the prosecution and there are no major contradictions which doubts their credibility. Considering the deposition of all the aforesaid witnesses as a whole, they have fully supported the case of the prosecution and therefore, as such the learned Judge has not committed any error and/or illegality in convicting the appellants – original accused for the offences 147, 148, 302 read with Section 149 and 307 read with Section 149 of the IPC relying upon the deposition of the aforesaid witnesses.
[7.0] Considering the aforesaid facts and circumstances, as such no error has been committed by the learned Judge convicting the appellants herein – original accused for the offences punishable under Sections 147, 148, 302 read with Section 149 and 307 read with Section 149 of the IPC and we do not see any reason to interfere with the findings recorded by the learned Judge while convicting the appellants and the ultimate conclusion of the learned Judge convicting the appellants for the aforesaid offences. Under the circumstances, present criminal appeal fails and the same deserves to be dismissed and is, accordingly, dismissed.
[7.1] At this stage, Shri B.N. Patel, learned advocate appearing on behalf of the appellants No.2 to 5 has requested to grant reasonable time to the accused Nos.2 to 5 to surrender as accused Nos.2 to 5 are on bail during the Appeal. However, it is reported that appellants No.2 and 3 are absconding while they were released on temporary bail / furlough leave. Under the circumstances, on dismissal of the present appeal, the accused Nos.2 to 5 who were on bail during appeal shall surrender to undergo the sentence imposed by the learned Judge which is confirmed by us. The bail bond of the appellants No.2 to 5 stands cancelled and as stated herein above, they shall immediately surrender to undergo the remaining sentence. So far as appellant No.1 – original accused No.1 is concerned, he is reported to be in jail undergoing the sentence.
Sd/ (M.R.SHAH, J.) Sd/ (S.H.VORA, J.) Ajay