IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1114 of 2007 With CRIMINAL APPEAL No. 1121 of 2007 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 ?
Whether this case involves a substantial question of law as 4 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 ?
========================================== =============== NARSINGHBHAI MALIYABHAI NAYAK & ANR.- Appellant(s) Versus STATE OF GUJARAT THROUGH - Opponent(s) ========================================== =============== Appearance :
MR US BRAHMBHATT for Appellant(s) : 1,MR HARNISH V DARJI for Appellant(s) : 1, MR. K.P. RAVAL, ADDL. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================== =============== HONOURABLE THE CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :26/09/2012 CAV JUDGMENT (Per : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. As both the captioned appeals arise from a common judgment and order of conviction, they were taken up for hearing together and are being disposed of by this common judgment and order.
2. The Criminal Appeal No.1114/2007 is at the instance of a convict-accused, and is directed against an order of conviction and consequent sentence dated 8th August, 2007, passed by the learned Additional Sessions Judge, Fast Track Court No.1 at Chhota Udepur, District: Vadodara, in Sessions Case No.17/2007. By the said order, the learned Sessions Judge, convicted the accused under Section 302, read with Section 114 of the Indian Penal Code, and sentenced him to imprisonment for life and a fine of Rs.100/; in default of payment of fine, the accused-appellant was directed to undergo further imprisonment for one month. So far as the charge under Section 135(1) of the Bombay Police Act is concerned, the accused-appellant was ordered to be acquitted.
3. Criminal Appeal No.1121/2007 is at the instance of a convict-accused, and is directed against an order of conviction and consequent sentence dated 8th August, 2007, passed by the learned Additional Sessions Judge, Fast Track Court No.1 at Chhota Udepur, District: Vadodara in Sessions Case No.17/2007. By the said order, the learned Sessions Judge, convicted the accused under Section 302, read with Section 114 of the Indian Penal Code, and sentenced him to imprisonment for life, and a fine of Rs.100/; in default of payment of fine, the accused-appellant was directed to undergo further imprisonment for one month. So far as the charge under Section 135(1) of the Bombay Police Act is concerned, the accused-appellant was ordered to be acquitted.
4. The case made out by the prosecution may be summarized thus :-
4.1 The accused-appellant of Criminal Appeal No.1114/2007 is the father of the accused-appellant of Criminal Appeal No.1121/2007. Thus, the appellants before the Court are father and son. The deceased was the brother of the accused- appellant of Criminal Appeal No.1114/2007. The complainant, namely, Ratudiben, widow of the victim viz. Bharsing Maliyabhai Nayak, was residing with her husband and two sons at village Gabadiya, Ambli Faliya, Ta: Chhota Udepur. The two sons of the complainant are married and at the time of incident, they had gone to Saurashtra for the work of labour with their respective wife. At about 6.00 p.m. on 16th January, 2007, Ratudiben and her husband (the victim) were at their house. The complainant, Ratudiben had just returned home with her cattle and at that point of time, her husband, the deceased, told her to tie the cattle and the deceased would return home after visiting the house of one Puniya Nayak as there was a religious ceremony at the house of the said Puniya Nayak. Saying so, the deceased left for the house of the said Puniya Nayak through the field of one Dhanka Vechaniya Rathwa. When the deceased was passing through the field of Dhanka Vechaniya Rathwa, both the accused came over there and inflicted injuries on the deceased with a Paliya. After laying assault on the deceased, both the accused, i.e. the father and the son, ran away from the place of incident. It is the case of the prosecution that at that point of time, the deceased raised shouts as a result of which his wife Ratudiben i.e. the complainant rushed at the place of occurrence and witnessed both the accused inflicting injuries on her husband, the deceased with a Paliya. The deceased died at the spot. According to the prosecution, the motive behind commission of the crime was a land dispute between the two brothers. According to the prosecution, the brother of the deceased had an eye on the land on which the deceased had constructed a house and the accused i.e. brother of the deceased was claiming a share in the land which was being cultivated by the deceased. The complainant, namely, Ratudiben lodged a First Information Report as regards the incident at Chhota Udepur Police Station, Camp: Gabadiya on 17th January, 2007 at 1.15 hours.
4.2 The offence being registered, the police started investigation with drawing of an inquest Panchnama of the dead-body of the deceased at Exh.24. The dead-body of the deceased was sent for Postmortem Examination. The postmortem Report, Exh.34 revealed that the deceased had sustained number of incised wounds on the head and the cause of death assigned in the report was haemorrhage and shock due to injuries. The scene of offence Panchnama, Exh.28, was drawn, statements of the witnesses were recorded and on 17th January, 2007, both the accused-appellants were arrested. The arrest Panchnama, Exh.44, was drawn in the presence of two panch witnesses. At the time of drawing of the arrest Panchnama, the clothes worn by both the accused- appellants were changed and the clothes which were worn at the time of incident were collected by the Investigating Officer. At the time of drawing of the arrest Panchnama, both the accused is said to have handed over the weapons of offence viz., the two paliyas with which the injuries were caused on the deceased. The muddamal articles were thereafter sent to the Forensic Science Laboratory for chemical analysis.
4.3 On completion of investigation, the Police submitted charge-sheet before the Judicial Magistrate, First Class, Chhota Udepur and the case being exclusively triable by Court of Sessions, the learned Magistrate committed the case U/s.209 of the Criminal Procedure Code to the Court of Sessions.
4.4 The Sessions Court framed charge against both the accused-appellants, Exh.10, and the statements of both the accused were recorded. Both the accused did not admit the charge and claimed to be tried.
4.5 The prosecution has examined the following witnesses in support of its case.
PW.1 Ratudiben Bharsing Nayak, Complainant. Exh.17 PW.2 Mojlaben Alsingbhai, Witness. Exh.19 PW.3 Radhiben Kantibhai, Witness & Daughter of the deceased. Exh.20 (Eyewitness to the incident).
PW.4 Kantibhai Nakatiyabhai, Witness & Son-in-law of the deceased. Exh.21 PW.5 Alsingbhai Radatiyabhai, Witness. Exh.22 PW.6 Khaljibhai Remaliyabhai Exh.23 Hostile Panch Witness.
PW.7 Parsingbhai Gamjibhai Nayak, Exh.27 Panch witness PW.8 Bharatbhai Madhabhai Patidar, Investigating Officer. Exh.29 PW.9 Raslabhai Virsingbhai, Panch witness Exh.43 PW.10 Dr.Krishnachandra Jagdishchandra Upadhyay, The Doctor who performed Exh.45 Postmortem.
4.6 The prosecution has relied upon the following pieces of documentary evidence:
1) Yadi sent for preparing a Map of the scene of offence. Exh.14
2) Map of the Scene of offence. Exh.15
3) Original complaint. Exh.18
4) Inquest Panchnama. Exh.24
5) Panchnama of the clothes of the deceased. Exh.25
6) Scene of offence Panchnama. Exh.28
7) Report of Registration of the offence. Exh.30
8) Special Report. Exh.31
9) Yadi for performing of Postmortem. Exh.32
10) Original Postmortem report. Exh.34
11) Report for medical examination of both The accused. Exh.35
12) Medical Certificate of the accused Vesta Narsing Exh.36
13) Medical certificate of the accused Narsing Maliya Exh.37
14) Office copy of Yadi regarding having sent Muddamal to FSL. Exh.38
15) Original receipt regarding having received The muddamal in analysis. Exh.39
16) Report of the F.S.L. Exh.40
17) Copy of Notification in respect of Prohibition of weapon. Exh.41
18) Arrest Panchnama of the accused persons. Exh.44
19) A purshis in writing as to have closed the Oral as well as documentary evidence of the prosecution bearing signature of the Additional Public Prosecutor Exh.46
4.7 After completion of evidence of the prosecution, the statements of the accused under Section 313 of the Criminal Procedure Code were recorded. The accused persons denied all the allegations leveled against them and stated that they had been falsely implicated and they were innocent. The accused persons did not lead any evidence on their behalf.
5. As indicated earlier, the learned Trial Judge, on consideration of the evidence on record, held the accused- appellants guilty of the offences punishable under Sections 302 read with Section 114 of the Indian Penal Code, and consequently, inflicted punishment upon them as indicated earlier.
6. Being dissatisfied, the accused-appellants have preferred their respective Appeals.
7. Submissions on behalf of the accused-appellants:
7.1 Mr.Harnish Darji, the learned counsel appearing for both the accused-appellants vehemently submitted that the Trial Court committed a serious error in holding the accused persons guilty of the offence of murder punishable under Section 302 IPC by relying on the oral evidence of the P.W.1, Ratudiben, widow of the deceased. According to Mr.Darji, the P.W.1, Ratudiben, is the sole eyewitness to the incident and the evidence of the PW.1, Ratudiben, could not be termed as wholly reliable so as to base conviction for a serious offence like murder on the basis of such evidence.
7.2 Mr.Darji further submitted that there are reasons more than one to disbelieve the evidence of the P.W.1, Ratudiben. According to Mr.Darji, first there are major contradictions in the form of omissions in the evidence of the P.W.1, Ratudiben and considering the nature of contradictions in the form of omissions it could be said that the P.W.1, Ratudiben, is not an eyewitness to the incident and has named the accused persons only on suspicion as the family of the deceased was not getting along well with the accused persons. Secondly, according to Mr.Darji, the case put forward by the prosecution that the P.W.1. Ratudiben, heard the shouts of the deceased and on hearing the shouts the P.W.1, reached at the place of assault also deserves to be discarded because the place where the deceased is said to have been assaulted is at a distance of around more than 800 ft. from the house of the P.W.1, Ratudiben.
7.3 Mr.Darji, the learned counsel appearing for the accused- appellants also vehemently submitted that the Trial Court committed a serious error in placing reliance on the evidence of the P.W.5, Alsingbhai Ratadiyabhai, who has deposed that on being informed by his wife, he came out of his house and saw that both the accused persons were proceeding towards their house with Paliya in their hands. Mr.Darji further submitted that the Trial Court committed an error in placing reliance on the evidence of the Forensic Science Laboratory Report revealing that there was blood on the clothes of the accused persons matching with the blood group of the deceased.
Mr.Darji, therefore, urged to set aside the order of conviction and allow the Appeals.
8. Submission on behalf of the State :
8.1 Mr. K.P. Raval, the learned Public Prosecutor appearing for the State, vehemently submitted that the Trial Court, on overall appreciation of oral as well as documentary evidence has rightly convicted both the accused persons for the offence of murder and there being no merit in the appeals, both the appeals deserve to be dismissed.
8.2 Mr.Raval further submitted that the evidence of the P.W.1, Ratudiben, the wife of the deceased, is quite consistent and she could be termed as a wholly reliable witness being an eyewitness to the incident. Mr.Raval further submitted that the involvement of both the accused persons in the crime stands proved beyond reasonable doubt on the strength of the two medical certificates, Exh.36 and 37 of the respective accused issued by the Medical Officer of Referral Hospital & Community Health Center, Chhota Udepur dated 17th January, 2007. According to Mr.Raval, the Medical Certificates reveal that both the accused persons had sustained injuries and both the accused persons are also said to have made a statement before the Doctor that they were assaulted by a Paliya on 16th January, 2007 at 5.00 p.m. by Bharsing Nayak i.e. the deceased. According to Mr.Raval, this is suggestive of the fact that a fight must have ensued between the deceased and the accused persons and probably at that point of time both the accused persons may have sustained the injuries. According to Mr.Raval, the accused Vestabhai Narsingbhai Nayak had two contused lacerated wounds on the hand, whereas the other accused Narsing Maliya had an incised wound on a right index finger, 2cm x 1cm x ½ cm. According to Mr.Raval, the statement made by both the accused persons as regards assault by the deceased on 16th January, 2007 at 5.00 p.m. is an admission on the part of both the accused persons.
8.3 Mr.Raval, therefore, urged that this Court may not disturb the findings recorded by the Trial Court and prayed for dismissal of both the appeals.
9. On hearing the learned counsel for the respective parties and having gone through the entire evidence on record, oral as well as documentary, the only question that falls for our consideration in the two appeals is, as to whether the Trial Court was justified in convicting the accused persons for the offence of murder by relying on the oral evidence of the P.W.1, Ratudiben, the wife of the deceased.
10. The P.W.1, Ratudiben, in her evidence, has deposed that on the date of the incident she was at her house and her husband, the deceased went to a field to get the two pots which the deceased had tied on a Palm Tree for the purpose of tapping Todi. According to the P.W.1, her husband, the deceased, had climbed on a tree and when the deceased was on the top of the tree, the accused persons shot an arrow from a bow, as a result of which the deceased fell down. The P.W.1, Ratudiben, has further deposed that thereafter, her husband, the deceased on being hit by an arrow, started running towards her house and at that point of time, both the accused persons hurled a rope and got the rope entangled in the neck of her husband, the deceased, and pulled the deceased down. The P.W.1, has further deposed that thereafter, both the accused persons inflicted 10 to 12 injuries on the head and eyes of her husband, the deceased. According to the P.W.1, Ratudiben, she was standing besides her husband, the deceased, at the time of assault. The P.W.1 has further deposed that thereafter, she went to the Police station to lodge the First Information Report.
Now, if the oral evidence of the P.W.1, Ratudiben, is considered with the contents of the First Information Report, then it could easily be said that the P.W.1, Ratudiben has changed the entire case during the course of her deposition. In her First Information Report, the P.W.1 has not said anything about her husband, the deceased, climbing on a tree to get the two pots which were tied on a palm tree for the purpose of tapping todi. The First Information Report, Exh.18, is also silent so far as shooting the deceased with an arrow which, according to the P.W.1, got pierced in the body of her husband, the deceased. In the First Information Report there is no reference of the fact that the accused persons, with the help of a rope pulled down the deceased when the deceased was trying to make good his escape after being hit by an arrow. On the contrary, the P.W.1, Ratudiben, in her First Information Report, had stated that as she was frightened, she ran away in the mountains. In the cross-examination of the P.W.1, Ratudiben, major contradictions in the form of material omissions were brought on record by the defence.
11. The major contradictions in the form of material omissions emerging from the oral evidence of the P.W.1 could not be termed as minor discrepancy on trivial matters not touching the core of the case. We cannot overlook the fact that the entire case of the prosecution hinges on the evidence of the solitary eyewitness, viz. the P.W.1, Ratudiben. If the prosecution wants to rely upon the evidence of solitary eyewitness, then the evidence of such a witness must be wholly reliable.
12. It is true that the First Information Report need not be an encyclopedia of all the facts and circumstances on which the prosecution relies. The main purpose of the FIR is to enable the Police Officer to satisfy himself as to whether commission of a cognizable offence is indicated so that further investigation can be undertaken by him. The purpose of the FIR is to set the criminal law in motion and it is not customary to mention every minute details of the prosecution case in the FIR. FIR is never treated as a substantive piece of evidence and has a limited use i.e. it can be used for corroborating or contradicting the maker of it, yet omission of material facts pertaining to the crime is undoubtedly relevant in judging the veracity of prosecution case. The material omissions in the First Information Report lodged by the P.W.1, Ratudiben, could be termed as a relevant fact under Section 8 of the Evidence Act, and with such contradictions and omissions on the face of the record, it could not be said that the P.W.1, Ratudiben, is a wholly reliable witness, rendering the genesis of the prosecution case doubtful.
13. We have examined the matter from one more angle. The scene of offence Panchnama, Exh.28 and the Map of the scene of offence Exh.15 would suggest that the incident in question occurred in the agricultural field of one Dhankabhai Vechaniya. The Map, Exh.15, reveals that from the place of occurrence there is a field of one Radiya Bhagubhai Nayakada at a distance of 150 ft. towards north. Thereafter, if one would draw a straight line from the border of the field of Radiya Bhagu, the field would come to an end at a distance of 250 ft. and thereafter, at a distance of 375 ft. is the house of the deceased. This is suggestive of the fact that from the place of occurrence i.e. the field of Dhankabhai, the house of the deceased is situated at a distance of 775 ft. According to the P.W.1, she was at her house on the day of the incident. If the PW.1 was at her house at the relevant point of time and if the incident is said to have occurred in a field of one Dhankabhai Vechaniya, at a distance of more than 800 ft., then it is very difficult to believe that even shouts could be heard as suggested by the P.W.1 in her evidence.
14. So far as the evidence of the P.W.2, Mojlaben Alsingbhai, Exh.19, is concerned, it is apparent that she is not an eyewitness to the incident. The P.W.2 in her cross-examination has deposed that her house is at a far of place from the house of the deceased, and if one wants to reach the house of the deceased, then one would have to cross through four agricultural fields. We may say that the P.W.2, Mojlaben Alsingbhai, is the sister of the P.W.1, Ratudiben.
15. We have also considered the evidence of the P.W.3, Radhiben. The P.W.3, Radhiben, is the daughter of the deceased. The P.W.3, in her evidence, has deposed that on the date of the incident at around 6 O’clock in the evening, she was returning from the field and at that point of time, small children in the village were shouting that the deceased had been knocked down. On learning about this fact, the P.W.3, thereafter went at the place where the dead-body of her father, the deceased, was lying in the field of Dhanka Vechaniya. The evidence of the P.W.3, Radhiben, is in an exaggerated form. In her examination-in-chief, the P.W.3 has deposed that when she reached the field of Dhanka Vechaniya, the place where the dead-body of her father, the deceased, was lying, the PW.3 saw the two accused persons passing through that place with Paliya in their hands. This part of the deposition of the P.W.3 is unbelievable because the P.W 3, Radhiben, learnt about the incident from her husband, i.e. the P.W.4, Kantibhai. When the husband has not seen the incident, how can the P.W 3, Radhiben, witness the incident?
16. We have also gone through the evidence of the P.W.4, Kantibhai Nakatiyabhai, Exh.21. The P.W 4, in his evidence, has deposed that on the date of the incident, he was at his house, and at that point of time, the wife of the P.W.4, informed him that the accused persons had assaulted the deceased. The P.W.4, has further deposed that he went to the field of Dhanka Vechanbhai and saw that his father-in-law, the deceased, was lying dead and had sustained number of injuries on his face and neck. The P.W.4 in his cross-examination has deposed that he informed about the incident to his wife i.e. the P.W.3. The P.W.4 has further deposed that he heard about the assault by the accused persons on his father-in-law, the deceased through other people and that he had not witnessed the actual assault.
17. We have also gone through the evidence of the P.W.5, Alsingbhai Ratadiyabhai, Exh.22. The P.W.5 has deposed that on the date of the incident he was at his house in the evening hours and at that point of time, his wife informed the P.W.5 that the accused persons had assaulted the deceased. According to the P.W.5, on learning this fact through his wife, he came out of his house and saw both the accused persons passing through that place with Paliyas in their hand. It is difficult to believe the evidence of the P.W.5 that he saw the two accused persons heading towards their house with Paliya in their hand. The reason is that no person after committing a crime would remain at the place of the incident and the first attempt on the part of such person would be to immediately escape from the place of the incident. Apart from that, it is difficult for us to believe the evidence of the P.W.5, Alsingbhai, more particularly when we have disbelieved the version of the P.W 1, Ratudiben, the wife of the deceased.
18. The P.W.6, Kaljibhai Remlabhai, Exh.23, is the panch witness who was declared hostile. The evidence of the P.W.6 is of no significance.
19. We have also gone through the evidence of P.W.7, Parsingbhai Gamjibhai, Exh.27. The P.W.7 is one of the panch witnesses of the scene of the offence Panchnama. Nothing turns around from the evidence of the P.W.7.
20. The P.W.8, Bharatbhai Madhabhai Patidar, Exh.29, is the Investigating Officer. This witness has deposed as to how the investigation was carried out by drawing of various panchnamas and recording of the statements of the witnesses. The evidence of the P.W.8, assumes significance so far as the production of the two medical certificates of the accused persons, Exh.35 and 36 is concerned. According to the P.W.8, both the accused persons were injured and, therefore, were sent for medical examination. The medical examination of both the accused persons revealed, more particularly, from the medical certificates Exh.35 and 36, that the accused persons had sustained injuries on their hand. The injuries were in the nature of Contused Lacerated Wounds as well as incised wounds. Relying on the evidence of the P.W.8, and also placing reliance on the two medical certificates, Exhs.35 and 36, the learned Additional Public Prosecutor Mr. K.P. Raval very vehemently submitted that this piece of evidence is suggestive of the fact that it was the accused persons who assaulted the deceased. Mr.Raval laid much emphasis on the statements of the respective accused made before the Doctor at the time of their examination, as recorded in the medical certificates and the statements being that it was the deceased who caused injuries on their hands with Paliya. The injuries on the accused would no doubt assume significance in a criminal trial. The injuries on the accused would suggest two things, first, the presence of the accused is established at the time of the incident and secondly, it would suggest that a fight may have ensued between the accused and the deceased. It is also a settled position of law that if, injuries are found on the body of the accused and such injuries are not simple or superfluous but are injuries worth taking note of, then it is the duty of the prosecution to explain such injuries on the body of the accused. We are not at all impressed by the submission of Mr.Raval that the guilt of the accused persons should be fastened on the strength of this piece of evidence, namely, the two medical certificates, Exhs.35 and 36. First, it is nobody’s case including that of the P.W.1, Ratudiben, that there was a free fight between her husband, the deceased and the accused persons and in the said fight her husband, the deceased also inflicted injuries on the accused persons, may be in exercise of his right of private defence. Secondly, the two medical certificates have been brought on record by the Investigating Officer during the course of his deposition. It may be that at the relevant point of time, the defence may not have objected in exhibiting the two medical certificates, but by merely giving an exhibit to a document, the contents of such document could not be said to have been proved. It was the duty of the prosecution to examine the Doctor who had issued such certificates after medically examining both the accused persons. It would have been altogether a different situation if the prosecution would have proved the statement recorded in the two medical certificates of the accused persons as regards assault on them by the deceased through the evidence of the Doctor before whom such statement might have been made. If the Doctor would have been examined, then the accused persons could also have got a chance to cross-examine the doctor. In such circumstance, it is very difficult for us to look into such piece of evidence and relying on such piece of evidence to hold the accused persons guilty of the offence of murder.
21. Apart from the above, we have also noticed one more lacunae in the case of the prosecution, may be so far as this aspect is concerned, it could be termed as a lapse on the part of the trial Court. We have gone through the entire statement of both the accused persons recorded under Section 313 of Criminal Procedure Code. We have found that not a single question had been put to the accused persons so far as the injuries sustained by them is concerned. Not only that, but not a single question had been put even as regards the two medical certificates, Exhs.35 and 36, so that they could have explained as regards the so-called incriminating circumstance as sought to be relied upon by the prosecution. In the absence of such opportunity being given to the accused persons, the prosecution cannot rely upon such a piece of evidence.
22. We have also gone through the evidence of the P.W.10, Dr. Krishnachandra Upadhyay. The P.W.10, Dr. Krishnachandra is a Medical Officer, who had performed the Postmortem of the dead body of the deceased. In the Postmortem Report, the following injuries have been noted.
External injuries:
1. Incised wound 6" x 1/2" x skin deep at right scapular region. Direction oblique.
2. Incised wound 3" x 1" x skin deep. Direction oblique (below above wound).
3. Incised wound 2" x 1/2" x skin deep below neck on the left side of left scapula. Direction oblique.
4. Incised wound 3" x 1" x skin deep to bone deep extending from bridge of nose to right maxillary process. Bridge of nose fractured.
5. Incised wound 3" x 1 x bone deep left fronto parietal region.
6. Incised would 2" x 1" x bone deep below left chin.
7. Incised wound 2" x 1/2" x bone deep at the left side of neck.
8. Incised wound 4" x 3" x vertribral deep in the front of neck trachea, major vessels and muscle cut.
9. Incised wound 8" x 3" x bone deep extending from left ear to interior nuchal line on the right side. Lt. ear lobule cut.
Internal injuries:
1. Incised wound 5" x 5" x Bone deep at right temporo parietal region - Direction oblique - Injury to the underlying part of cranium A. Piece of bone cut triangular in shape, Meninges visible from outside.
2. Incised would 2 1/2" x 1/2" bone deep at left occipito parietal region. Direction oblique.
3. Haematoma and laceration 2" in diameter - globular in shape at right temporo parietal region on the gray matter of brain.
4. Piercing wound 1" x 1/2" visceral deep between 9th and 10th rib on the left lateral side - rupture of parietal pleura due to above injury.
5. Larynx and trachea visible from outside.
23. The P.W.10, Dr. Krishnachandra, in his evidence has deposed that the injuries sustained by the deceased were possible by a muddamal article like Nos.5 and 8, i.e. Paliya. So far as the evidence of the P.W.10, Dr.Upadhyay, is concerned, all that the prosecution could prove is that the deceased had sustained the incised wounds, and such incised wounds were possible by a sharp cutting weapon like Paliya.
24. We have also gone through the evidence of the P.W.9, Raslabhai Virsangbhai, Exh.43. The P.W.9, Raslabhai has been examined by the prosecution to prove the arrest panchnama of the accused persons, Exh.44. It is the case of the prosecution that on the accused persons being arrested their clothes were changed and collected for being sent to the F.S.L. It is also the case of the prosecution that at the time of drawing of the Arrest Panchnama, the accused persons voluntarily handed over the two paliyas alleged to have been used in causing injuries on the deceased. It is also the case of the prosecution that as per the FSL report, blood was found on the clothes of the accused persons matching with that of the blood group of the deceased as well as blood was found on one of the paliyas matching with the blood group of the deceased. The prosecution has tried to place heavy reliance on this piece of circumstance, but unfortunately the prosecution has failed to prove the contents of the Panchnama as required in law. The P.W.9, Raslabhai, in his evidence has deposed that he was called at the Police Station as one of the panch witnesses and at that point of time the accused persons handed-over the Paliyas as well as the clothes of the accused persons were also collected. However, in the cross-examination, the P.W.9, Raslabhai, has deposed that it was true that he had put his signature on a prepared Panchnama and except putting signature on a prepared panchnama, the police had not carried out any procedure in the presence of the P.W.9. The PW.9, Raslabhai, has also deposed that he had no idea about anything in so far as the drawing of the Panchnama is concerned.
So far as this part of the evidence is concerned, we have also considered the evidence of the P.W.8, Bharatbhai, the Investigating Officer. It is true that the P.W.8, i.e. the Investigating Officer, has also deposed that the arrest Panchnama of both the accused persons was drawn in the presence of the Panch witnesses, and at that point of time, the accused persons handed over the two paliyas on their own freewill and the clothes worn by the accused were also changed and collected. Even if we accept the oral evidence of the P.W.8, i.e. the Investigating Officer, so far as the arrest panchnama of both the accused persons is concerned, still the evidence of recovery of the clothes, or recovery of the weapon of offence, is a weak piece of evidence, and conviction could not be based solely on the evidence of recovery of the clothes, or recovery of the weapon, in the absence of any other reliable and cogent corroborative material to show the involvement of the accused in the crime.
25. Apart from the above, we have noticed that there is one more procedural lapse on the part of the Trial Court. Not a single question was put to any of the accused, so far as the arrest Panchnama is concerned, more particularly the fact of the accused persons handing over the two Paliyas to the Police and also handing over their clothes to the Police. In the absence of such opportunity, which is required to be given to the accused to explain the incriminating circumstances, the trial Court could not have relied upon such pieces of evidences in convicting an accused for a serious offence like murder.
26. In view of the above materials on record, we are left with no alternative but to conclude that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. It is impossible to rely upon the evidence of the P.W.1, Ratudiben, the solitary eyewitness to the incident.
27. It appears from the record that the learned Sessions Judge did not notice the aforesaid vital aspect while holding that the prosecution had proved the actual assault by the appellants-accused.
28. On consideration of the entire materials on record, we allow both the appeals i.e. Criminal Appeal No.1114/2007 and Criminal Appeal No.1121/2007, and set aside the order of conviction and consequent sentence dated 8th August, 2007, passed by the learned Additional Sessions Judge, Fast Track Court No.1 at Chhota Udepur, District Vadodara in Sessions Case No.17/2007. The appellants are acquitted of the charges leveled against them. Both the appellants should be set at liberty forthwith, if not required in any other case. Fine, if paid, is ordered to be refunded to the appellants.
(Bhaskar Bhattacharya, C.J.) (J.B. Pardiwala, J.) */Mohandas