IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 639 of 2007 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== PICHIYABHAI JETHABHAI TADVI Versus STATE OF GUJARAT ========================================== =============== Appearance :
MRS NISHA M PARIKH for Appellant.
MR KP RAWAL, ADDL. PUBLIC PROSECUTOR for respondent.
========================================== =============== Date : 06/09/2012
CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal is at the instance of a convict for the offence punishable under section 302 of the Indian Penal Code and is directed against an order of conviction and the consequent sentence dated 23rd March 2007 passed by the learned Additional Sessions Judge, Fast Track Court No.9, Vadodara, in Sessions Case No. 172 of 2006 by which the learned Sessions Judge imposed sentence of life imprisonment and a fine of Rs.1000/- upon the appellant; in default of payment of such fine, the appellant was directed to undergo further simple imprisonment for 15 days. The appellant, however, was acquitted of the charges under section 504 of the Indian Penal Code and section 135 of the Bombay Police Act.
2. The following charges were framed against the appellant.
(1). That Laxmanbhai, the son of the complainant of this case, had asked for a beedi [native cigarette] from you, the accused, at 19:00 Hrs. on 9th July, 2006 in Tandalja Village at Vav Faliya. As you, the accused, did not give, and as the deceased Laxmanbhai tried to take out by putting his hand in your pocket, you, the accused, got provoked, abused at random, and with an intention to kill deceased Laxmanbhai or with knowledge that if an axe blow is inflicted on the part of neck, it would cause death, gave an axe blow on the neck of the deceased Laxmanbhai and thereby caused his death, and thus, has committed an offence punishable under section 302, 504 of Indian Penal Code.
(2). Though, notification of Additional District Magistrate was in force at the aforesaid date, time and place, you have committed offence punishable under section 135 of the BP Act by holding a prohibited weapon in breach of notification.
As you have committed the aforesaid offences within the territorial limit of this Court, this Court has jurisdiction to try the case and accordingly it is ordered to take judicial proceedings against you”
3. The case made out by the prosecution may be summed up thus:
3.1 The deceased, one Laxmanbhai Chandubhai Tadvi, a resident of Tandalja, had asked for a beedi [native cigarette] from the accused on 9th July 2006 at 19:00 hours in the Vav Faliya at Village Tandalja, Taluka Sankheda. The accused refused to give such beedi, and therefore, the deceased tried to take out the same from the pocket of the accused. As a result, the accused got provoked and started abusing the deceased at random, and thereafter, picked up an axe and gave a blow with it on the left side of the neck of the deceased. The deceased died on the spot.
3.2 The father of the deceased, viz. Chandubhai Udalbhai Tadvi, went to Bodeli Police Station on 9th July 2006 and registered a complaint for an offence punishable under section 302 of the Indian Penal Code.
3.3 A.D. Joshi, PSI of the said Police Station, went to the place of offence and prepared inquest panchnama and thereafter, the dead- body was sent for post mortem. The panchnama of the scene of the offence was prepared and the statements of witnesses were recorded under section 161 of the Code of Criminal Procedure.
3.4 After the accused was arrested, the police recovered the bloodstained wearing apparel of the accused and the weapon used in the offence. The seized muddamal articles were sent to the Forensic Science Laboratory for analysis.
3.5 Sufficient evidence having been found against the accused for preparing charge, the same was filed before the Judicial Magistrate, First Class, Sankheda, who after following the requisite formalities, committed the case to the Court of Sessions, Vadodara as the case was exclusively triable by Sessions Court.
3.6 The Sessions Court called the accused from the judicial custody who denied the charges framed against him and claimed to be tried.
3.7 The prosecution produced the following eye witness in supports of its case.
3.8 The prosecution has also produced the following pieces of documentary evidence:
3.9 After the examination of the witnesses, the statements of the accused under section 313 of the Code of Criminal Procedure were taken wherein the accused denied the allegations made against him. The accused, however, did not adduce any evidence of his own.
3.10 The learned Sessions Judge found the appellant guilty for an offence punishable under section 302 of the Indian Penal Code and sentenced him to life imprisonment and fine, as indicated earlier.
4. Being dissatisfied, the accused has come up with the present appeal.
5. Ms. Nisha Parikh, the learned advocate appearing on behalf of the appellant, had taken us through the entire deposition and laboriously contended before us that it would appear from the evidence given by those alleged eyewitnesses that they really arrived at the place of occurrence after the incident had already occurred. By referring to their deposition, Ms. Parikh strenuously contended before us that none of them was the real eyewitness but because of suspicion, they illegally indicted the appellant, as the local people did not like him.
5.1 Ms. Parikh further contends that even the recovery of wearing apparel and weapon used is doubtful as would appear from the conflicting version of two panch witnesses. Ms. Parikh contends that in such circumstances, the learned Sessions Judge committed substantial error in believing the evidence given by the alleged eyewitnesses notwithstanding the fact that there was clear admission on their part in the cross-examination that they arrived at the scene of occurrence after the incident and consequently, they had not seen the presence of the accused. Ms. Parikh, therefore, prays for setting aside the order of conviction and sentence.
6. Mr. Rawal, the learned Additional Public Prosecutor appearing on behalf of the prosecution, has, on the other hand, supported the order of conviction and has contended that there is no reason to disbelieve the three different eyewitnesses who were residing in the same locality and who had no personal grudge against the accused. Mr.
Rawal further contends that the version of those eyewitness have been corroborated by the medical evidence, and at the same time, in the FSL report, it has been established that the blood group of the deceased tallied with the one appearing on the wearing apparel of the accused and the weapon used for the commission of the crime. Mr. Rawal, therefore, prays for dismissal of the appeal.
7. The question that falls for determination in this appeal is whether in the facts of the present case, the learned Sessions Judge was justified in convicting the appellant for the offence on the basis of materials on record.
8. We, therefore, first proceed to consider the oral evidence given by the witnesses who claimed to be eyewitnesses of the incident.
9. PW.3, Adesinh, is one of the eyewitnesses of the incident. In his examination-in-chief, he has stated that he knew both the deceased and the accused as they belong to his village. According to him, the incident occurred on 9th June at about 7 O'clock in the evening. At that time, the deceased was going to his house by passing in front of the house of the accused when the accused had inflicted an axe blow on the left side of the throat of the deceased and he had seen the incident. According to him, the deceased had fallen down and immediately, he went to the house of the deceased to call his parents and informed them that the accused had inflicted an axe blow on the deceased. The parents and wife of the deceased came at the scene of offence immediately thereafter. According to this witness, subsequently, the Sarpanch of the village, Babarbhai, came to the scene of offence and informed the police through telephone. Thereafter, the police came at about 8 O'clock in the evening. The police had carried out necessary investigation. The said incident, according to this witness, occurred in the compound of the accused. He had identified the accused and the axe used in committing the offence. He has further stated that at the time of the incident, the deceased asked for a beedi but as the accused was chewing tobacco, he did not give the beedi and the accused had inflicted the axe blow for this reason.
9.1 In cross-examination, the PW.3 has stated that he used to do labour work from morning to evening and after coming back from labour work, he generally takes bath and thereafter takes the dinner. He has admitted that he came out after hearing the shouts and at that time, people were running here and there. He has further stated that that it is true that when he saw the incident, Laxman was lying supine and he was in a bleeding condition.
10. By relying upon the aforesaid last statements made in the cross-examination, Ms. Parikh vehemently contended that from the above evidence, it was clear that this witness, the PW.3, arrived at the place of incident when Laxman was already lying dead on the ground, and therefore, he did not see the actual killing of Laxman. In paragraph 5 of the cross-examination, he has denied a suggestion that he has not personally seen the accused inflicting axe blow on the deceased.
11. Kaliben @ Taraben is another eyewitness who appeared as PW.4. She has stated that her house was situated almost opposite to the house of the accused. According to her, the incident occurred in the evening at 7 O'clock in front of the house of the accused. According to this witness, she was preparing chapati in the kitchen. At the time of the incident, according to this witness, the accused gave an axe-blow on the left side of the throat of the deceased and she had witnessed the said incident. She further stated that before the incident, there was an altercation between the accused and the deceased and hearing the altercation, she came out before the incident. She stated that the deceased asked for a beedi and she had heard that also. She has further stated that she had gone to her house after the incident occurred. Thereafter, the police came at about 8 O'clock. She has further stated that after the accused inflicted the blow, he went away from the place. In paragraph 3 of her deposition, she has reiterated that she had seen the accused inflicting the axe blow on the deceased, and she has identified the accused and has also identified the weapon.
11.1 In her cross-examination, she has stated that she returned in the evening after doing labour work. She has further admitted that after returning, she generally cooks. She has further stated that she came out after hearing shout and at that time, the people were running here and there and at that time, Shantaben, Adesinh, Laljibhai and other had gathered. She has denied the suggestion that she had not gone to the scene of offence but had seen the incident from her house. She has also denied the suggestion that she learnt from other people that the accused had killed the deceased, but she had seen the incident. She has admitted that she had good relation with Laxman's mother, Ramilaben. She has further stated that there was no streetlight in their Faliya. She had admitted that people started to run here and there and Adesinh, Lalajibhai and others gathered thereafter. In the concluding part of her cross-examination, she has again denied the suggestion that she had not witnessed the incident and she has also denied the suggestion that she was giving a false deposition at the instance of the complainant.
12. By relying upon the statements of this witness in the cross- examination Ms. Parikh tried to convince us that the said witness came to the place of incident after the arrival of Shantaben, Adesinh, Laljibhai and others, and, therefore, she cannot be said to be an eyewitness of the incident.
13. Shantaben, PW.5, is another witness who claimed to have witnessed the incident. She is the sister-in-law of Taraben. She had also stated that at the time of the incident, she was preparing chapati, and at that time, there was an altercation between the accused and the deceased and thereafter, the accused gave an axe blow on the left side of the throat of the deceased. This witness has stated that the incident occurred opposite to her house and she had seen the incident and the deceased died on the spot on receiving the axe blow. She has further stated that the accused had run away from the place and thereafter, the parents of the deceased and others had arrived. She has also stated that when the accused delivered the blow, she saw the axe, and she has also identified the weapon.
13.1 In her cross-examination, she has stated that it was true that due to shouts, she came out and when she arrived there, she found a mob gathered outside and thereafter Kaliben, Ramilaben and others had arrived. She has further stated that the deceased was lying when all these people came. She has further stated that it was true that all had said that the accused had killed the deceased and therefore, she came to know that the accused had killed the deceased.
14. Ms. Parikh, relying upon the aforesaid statements of the witness has contended that her version should not be treated to be a version of an eyewitness but she should be treated to have heard all these facts from other witnesses after the incident had taken place.
15. Laljibhai, PW.6, also claimed to be an eyewitness. He has stated that he is a person of the same locality. According to this witness, the incident occurred in the evening at about 7 O'clock. At that time, he was present in his house. He has stated that the deceased asked for a beedi from the accused and thereafter, the deceased put his hand in the pocket of the accused to take out a beedi. The accused then went into his house and brought an axe with which he hit on the throat of the deceased. The deceased died instantly and the accused ran away from the place. According to him, before the incident, there was an altercation between the accused and the deceased and having heard such an altercation, he came out of the house and thereafter, had witnessed the incident. He has also identified the axe.
15.1 In his cross-examination, he has stated that on the day of the incident, he was sick and was laying down in a cot and his wife was cooking in the house. He has further admitted that hearing the shouts, he and his wife came out of the house. He has denied the suggestion that he along with his wife went outside on hearing the commotion and he has stated that he was outside of his house from the beginning. He has further stated in the cross-examination that when he came out, Kaliben, Shantaben, Adesinh and others were running from there. He has also denied the suggestion that he had not witnessed the incident and that he was giving a false deposition.
16. Apart from the above eyewitnesses, the prosecution has also examined two panchas who were witnesses to the recovery of weapon and blood stained wearing apparel of the accused.
17. Chimanbhai, PW.10, is one of the panchas for recovery of articles. He has stated that the police called him at Bodeli Police Station on 10th July in connection with the incident that occurred on 9th July and at that time, the accused was also there in the police Station. He has further stated the police kept the accused in the police station for the whole night and they had also stayed in the police station. Thereafter, the panchas, the police and the accused went to village Tandalja in the morning on the next day. Thereafter, the accused had taken out the axe, which he had concealed in a heap of sand, and the police seized the same and also seized the blood stained clothes of the accused.
18. The other panch witness, Subhashbhai, PW.11, has stated in his examination-in-chief that the police had arrested the accused on 11th July 2006 and thereafter, the police had called him to Bodeli Police Station on 12th July 2006 and in his presence, the accused had stated that he had placed the axe in his house. The police, therefore, took the accused in a jeep to village Tandalja and the accused took out the axe from a heap of sand.
19. It, thus, appears that the evidence given by PW.11 regarding arrest as well as recovery of articles does not tally with the evidence given by PW.10 as according to PW. 11, the accused was arrested on 11th July and thereafter, the police called him whereas PW.10 has stated that the accused was arrested on 10th July, and he went to the police station on 10th July when the accused was also there and throughout the night, he stayed in the police station along with the other panch witness.
20. From the above evidence on record, we find that there are substantial conflicts in the evidence of these two pachas, and, therefore, in our opinion, it is not possible to believe the case made out by the Prosecution regarding recovery of blood stained wearing apparel and weapon.
21. So far as the depositions given by the alleged eyewitnesses, we find that Adesinh, the PW-3, in his cross-examination admitted that he came out after hearing the commotion and at that time, the people were running here and there. He further admitted that when he arrived, the deceased was lying on the ground. From the aforesaid admission in cross-examination, it is clear that he arrived at the place at a time, when the alleged altercation between the accused and the deceased was already over and the blow of axe was also completed. It is not natural that the people would “run here and there” on seeing an altercation or demand of a Beedi from a person by another, but it is natural when a murder has actually taken place in a locality.
22. Similarly, PW- 4, who also claims to be an eyewitness, specifically admitted in her cross-examination that she came out after hearing noises and at that time, the people of the locality were running here and there and at that time, Adesinh, Shantaben, Laljibhai, the other three alleged eyewitnesses had already gathered. Thus, if, according to our finding recorded earlier, Adesinh reached at a time when the offence was completed, this PW-4, who reached even after Adesinh, cannot be a witness of altercation and murder. We, therefore, find substance in the contention of Ms. Parikh that PW-4 could not be a genuine eyewitness.
23. Shantaben, the PW-5, although claimed to be a eyewitness, after her statement in cross-examination that it was true that all had said that the accused had killed the deceased and therefore, she came to know that the accused had killed the deceased, it is not possible to believe her testimony as an eyewitness of murder and altercation.
24. Laljibhai, the PW-6 also claimed to be an eyewitness. However, in his cross-examination, he admitted that when he came out after hearing commotion, Kaliben, Shantaben, Adesinh and others were running from here to there. Thus, he arrived at a time, even after the arrival of PW- 3, PW- 4, and PW- 5, who, according to us, all arrived after the incident as stated above.
25. Apart from the aforesaid versions of the alleged eyewitnesses, we have already found that the evidence of the recovery of weapon and the bloodstained wearing apparels are totally dissatisfactory.
26. In such circumstances, we are unable to rely upon the witnesses of the Prosecution and in our opinion, it is a fit case where the accused should be acquitted as the Prosecution has failed to prove that it was the accused who killed the deceased.
27. We, find that the learned court below totally overlooked the above aspects of the evidence and erred in relying upon the evidence given on behalf of the Prosecution.
28. We, consequently, allow the appeal. The order of conviction and sentence dated 23rd March 2007 passed by the learned Additional Sessions Judge, Fast Track Court No.9, Vadodara, in Sessions Case No. 172 of 2006 is set aside. The appellant is acquitted of the charges levelled against him. The appellant is ordered to be set at liberty forthwith, if not required in any other case. Fine, if paid, is ordered to be refunded to the appellant.
[BHASKAR BHATTACHARYA, C.J.] mathew [J.B.PARDIWALA. J.]