(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. This appeal arises out of judgment and order rendered by Sessions Court, Junagadh on 14.06.2006 in Sessions Case No.68 of 1992, where, the appellants came to be tried and convicted for an offence punishable under Sections 302 and 323 read with Section 34 of the Indian Penal Code and under Section 135 of the Bombay Police Act. The trial Court sentenced the appellants to undergo imprisonment for life and to pay fine of Rs.1,000/- each, in default thereof, to further undergo simple imprisonment for three months for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, whereas, did not award any separate sentence for conviction under Section 323 read with Section 34 of the Indian Penal Code and Section 135 of the Bombay Police Act.
2. The facts of the case in brief are that as per prosecution case, the incident occurred on 28.04.1992 at about 3-15 am near Jayant Cinema of Mangrol Town on a public road. Vakmat Vira Aher, resident of Loej Tabe Shil along with Malde Jetha Aher came to be attacked allegedly by the appellants with handle of pick axe, because of which, Malde Jetha Aher died. In the incident, Vakmat Vira Aher also suffered hurt. The First Information Report was given to Mangrol Police by Vakmat Vira Aher, on the basis of which, an offence was registered and investigated. At the end of the investigation, it was found that there was sufficient material to connect the accused with the crime and therefore, charge- sheet was filed in the Court of Judicial Magistrate, First Class, Mangrol, who, in turn, committed the case to the Court of Sessions at Junagadh and Sessions Case No.68 of 1992 came to be registered.
2.1 The charge was framed against the accused persons at Exh.1 for offence punishable under Sections 302, 326, 324, 323 read with Section 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act. The accused persons pleaded not guilty to the charge and came to be tried.
3. The deceased had one irregular shaped bruise over right shoulder, abrasion on right fore arm, abrasion over knuckle of middle finger of right hand and abrasion over right supra clavicular region and diffuse heamatoma on a right temporo parietal region. Corresponding to injury no.5, there was a fracture of the temporo parietal bone. Injuries were antemortum.
3.1 So far as injury suffered by the first informant Vakmat Vira is concerned, he had a C.L.W. over right fronto parietal region and swelling on the forehead.
3.2 The prosecution has examined the first informant Vakmat Vira at Exh.54, Karshanbhai Arsibhai at Exh.61 and Jagmal Malde at Exh.62 as eye-witnesses.
4. The Sessions Court concluded that the prosecution successfully proved the charges and therefore, convicted and sentenced the accused – appellants as stated earlier and hence, this appeal.
5. Learned advocate for the appellants submitted that the trial Court has erred in accepting the version of the three witnesses as eye-witnesses and accepting their version as truthful. He submitted that if the cross-examination of these witnesses is seen, it makes clear that they have not been able to stand test of cross-examination and their assertions ruled out their possibility of being eye-witnesses to the incident and if their evidence goes, there remains nothing to connect the accused persons with the offence and therefore, the trial Court erred in recording the conviction and therefore, the appeal may be allowed.
6. Learned APP Mr. Kodekar has opposed this appeal.
According to him, there is no reason to doubt the version of the eye-witnesses and therefore, the judgment of the trial Court may not be interference with.
7. We have examined the record and proceedings in contest of rival submissions. We have particularly examined the evidence of the first informant and two eye-witnesses.
8. The first informant – Vakmat Vira is an injured witness, who is examined at Exh.54. He says that they had gone to see the film in the cinema hall. There was an electricity failure and therefore, he and Malde Jetha, the deceased, went out of the cinema hall. There was a cart selling 'Bhel', where, four persons were standing. All of them had handle of pick axe and shovel. One tall person asked them as to how they were and then without saying anything, hit him with that wooden handle of pick axe on his head. The witness says that on being hit, he fell down and the assailants then turned on the deceased Malde with the wooden handles. He says that Jagmal Malde was also present over there along with Bharat, Digesh Valbhai, Karshan Arasi Solanki, Sarman Govind Nandani and Govind Devasi Chandora, etc. They intervened and rescued the first informant and the deceased. They were taken to Mangrol Hospital and then Malde was sent to Junagadh Hospital as his condition was critical. This witness has been cross-examined and he denied the suggestion that in his FIR, he had not stated that on a blow being given to him on his fore-head, he became unconscious for some time. However, if the FIR Exh.55 is seen, he has stated that on receiving a blow on fore-head, he fell down and then with the second blow on his back, he became unconscious and regained his consciousness after some time. If the injuries on person of the deceased are seen, they are five in number. The four assailants attacking the deceased, as is the case of the prosecution, it would hardly take couple of minutes for the episode to be completed. The attack would not last for more than that and in the complainant as the first informant has stated in his FIR is correct, he could not have witnessed the actual assault on the deceased and who caused which injury.
9. Now if we go to evidence of Karshan Arasi, Exh.61, he states that he was summoned by a boy stating that boys from Loej are being beaten and therefore, he and Jagmalbhai went near cinema. At that time, the assailants had gone away. This version emerges from his examination in chief. He further states in examination in chief that he cannot identify the assailants and cannot say whether they were present in the Court. He says that he had identified three persons before Mamlatdar in T.I. Parade, but, he cannot say whether any of them is present in the Court.
9.1 The evidence of this witness would show, even without going through cross-examination, that he does not claim to be a witness at all. According to him, when he reached the spot, the assailants had gone away.
9.2 He says that he had identified three witnesses before the Executive Magistrate in the T.I. Parade. He, however, does not clarify as to on what basis and how did that he does not say and he does not say whom he had identified, he does not say whether any of the accused was amongst the persons identified by him.
9.3 This would not only rule him out as an eye-witness, but, would also affect the evidence in form of T.I. Parade.
10. The third witness is Jagmal Malde, Exh.62. In his examination in chief, he states in brief that when he reached, along with Karshan Arasi to the place of incident, Vakmat Vira was lying there in a bleeding condition. He says that four persons were beating Malde with wooden handles. He says that he and Karshan Arasi intervened. He then identified the accused persons before the Court as the assailants. This witness claims that thereafter they took the deceased as well as the first informant to Mangrol Hospital and then to Junagadh Hospital. However, he states that his clothes were not stained with blood at all.
10.1 During cross-examination, he admits that when they reached the place of incident, Vakmat Vira was lying on the ground in a bleeding condition. Both Jagmal as well as Karshan Arasi claim that they both went to the place of incident together on being informed by some boys that the boys from Loej are being beaten. If Karshan Arasi says that when they reached the place of incident, the assailants had gone away, then, obviously, Jagmal also could not have seen the occurrence. The evidence of these two witnesses, therefore, do not inspire confidence.
11. The resultant effect of foregoing discussion would be that there is a possibility that witness Jagmal and witness Karshan Arasi could not have been eye-witnesses to the incident.
11.1 So far as the evidence of first informant is concerned, he says that he became unconscious on receiving one blow on his fore head and remained unconscious for some time and as discussed earlier, if all four assailants were involved in assault on deceased, it would not have taken more couple of minutes and if the first informant remained unconscious for some time, he could not have seen the attack on the deceased. It is also worthwhile to note that this witness does not say anything about the identity of the assailants in his first part of the examination in chief recorded on 15.09.2004, thereafter, matter was adjourned and further evidence was recoded on 30.11.2004, where, he brings the involvement of the accused persons as the assailants. He, however, does not say as to which of the assailants assaulted him. It is, therefore, not coming on record as to who amongst the assailants caused hurt to him.
11.2 Sum total of foregoing discussion is that no reliance can be placed on evidence of this witness to indicate the accused gave the assault on deceased Malde and there is no evidence to show as to who assaulted the first informant and caused hurt to him. In the opinion of this Court, therefore, the trial Court erred in convicting the appellants on the basis of such shaky cause.
12. For the reasons stated hereinabove, we are of the view that none of the three eye witnesses could be accepted to be eye witnesses and it their evidence is taken out of the evidence led by the prosecution, there remains no evidence to connect the accused with the crime. The trial Court has overlooked this aspect and therefore, the appeal must succeed. The appeal is allowed. The conviction and sentence awarded under Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code and under Section 323 read with Section 135 of the Bombay Police Act are set aside. The appellants be set at liberty, if not required in any other case. Fine, if any paid, be refunded.
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[A.L. Dave, J.] Sd/-
[N.V. Anjaria, J.] #MH Dave