1. Whether Reporters of Local Papers may be allowed to see the judgements?
2. To be referred to the Reporter or not?
3. Whether Their Lordships wish to see the fair copy of the judgement?
4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge?
-------------------------------------------------------------- STATE OF GUJARAT Versus BALDEVJI BACHUJI TAHKOR
-------------------------------------------------------------- Appearance:
Mr.K.P.Raval, APP for the appellant.
Mr.J.M.Panchal for the Respondent.
--------------------------------------------------------------
The State of Gujarat, by way of this appeal, has challenged the judgment and order of acquittal of the respondent for the offence punishable under section 302 of the Indian Penal Code passed in Sessions Case No. 59 of 1993 by the learned Additional City Sessions Judge, Ahmedabad. However, the learned Judge has convicted the present respondent for the offence punishable under section 304, Part II of the Indian Penal Code and sentenced him to suffer R.I. for five years and to pay a fine of Rs.1,000/- indefault to suffer R.I. for 2 months. The respondent is also convicted for the offence punishable under section 135 (1) of the Bombay Police Act and is sentenced to suffer R.I. for two months. The learned Judge directed the sentences to run concurrently.
It should be recalled that the State of Gujarat filed an appeal being Criminal Appeal No. 416 of 1994 for enhancement of sentence which was dismissed by this Court on 30th August, 1994. In substance, as the learned Judge has acquitted the respondent for the offence punishable under section 302 of the Indian Penal Code, the present appeal is filed by the State against the said order of acquittal.
The prosecution case, in brief, can be summarised as under: On 31-12-1992 at about 12.45 p.m., the respondent had altercation with the deceased near Vithlesh Petrol Pump of Nana Chiloda village. The said altercation was with regard to the alleged abduction of Usha , daughter of the deceased Hasmukhlal Jani, by Babu Bachu Thakor, the brother of the respondent. Because of the quarrel between the respondent and the deceased, a scuffle took place between them, which continued for some time and resulted in both of them falling into a nearby pit. There, the respondent inflicted three knife blows, two on the chest and one on the back side of the person of the deceased. According to the prosecution, the incident was witnessed by Parmanand Mahipatram Nayak (PW 2 , Ex.13 ) and Vijay Arjandas Bhatiya (PW 3, Ex.18). PW 2 Parmanand took injured Hasmukhlal to Naroda Police Station in a rickshaw belonging to the deceased. Nalinkumar Joshi (PW 5, Ex. 20), Police Inspector, Naroda Police Station, inquired about the details of incident from the injured to which the injured replied properly. Thereafter the Police Inspector with Police Yadi sent the injured to the Civil Hospital. The injured succumbed to the injuries in the Civil Hospital. The Investigating Officer, after recording the complaint of Sumitraben ( PW 1, Ex.11 ) -the wife of the deceased, put the investigation into motion and on the basis of the material collected and on finding a prima facie case against the respondent,he ultimately submitted a chargesheet.
The learned Additional City Sessions Judge framed the Charge, Ex.2, against the respondent to which the respondent pleaded not guilty. The learned Addl City Sessions Judge , after considering the evidence on record and the statement of the respondent under section 313 of the Code of Criminal Procedure, held the respondent guilty for having committed the offences, as stated hereinabove.
Mr.K.P.Raval, learned Additional Public Prosecutor, appearing for the appellant-State , after having taken us through the evidence of the material prosecution witnesses, has submitted that the prosecution has successfully established the case against the respondent for the offence punishable under section 302 IPC and the learned Judge has committed an error in convicting him for the offence under section 304, Part II IPC only. In the submission of Mr. Raval, in view of the evidence of two eye witnesses supported by the medical evidence, the charges levelled against the respondent were duly established.
Mr. J.M.Panchal, learned Advocate appearing for the respondent, on the other hand, submitted that the evidence of the so-called eye witnesses is not at all reliable. Mr. Panchal pointed out certain infirmities in the investigation carried out by the Investigating Officer to which we will make reference later on. In the submission of Mr. Panchal the charge under section 302 IPC levelled against the respondent is not established beyond reasonable doubt and, therefore, the respondent is entitled to get acquittal.
Having perused the evidence and the reasoning of the learned Judge, we feel that there is substance in the submission of Mr. Panchal. In our opinion, the evidence of the eye witnesses is not only unrealiable but even their presence at the scene of offence itself was doubtful. PW 2 Parmanand , in his evidence, has stated that he is residing in a field situated near Ranasan Power House near Chiloda.On the day of the incident, when he had gone at the Vithlesh Petrol Pump to see his relative Somabhai, he saw a scuffle going on between the respondent and the deceased near Petrol Pump. He has admitted that he had not seen any weapon carried by the respondent at that time. In his cross examination, he has admitted that when he had gone to the Petrol Pump to see his relative Somabhai, Somabhai was not there. He heard some hubbub and therefore had gone to that place where some people had gathered . He saw Hasmukhbhai lying into the pit with bleeding injuries. The evidence of this witness makes it abundantly clear that he had not witnessed the actual incident. As per his own admission, when he took the deceased to the Police Station, the concerned Police Officer in fact questioned the deceased about the incident. Not only that, even when he took the innjured to the hospital, there also, he had not informed about the incident to the Constable on duty. According to this witness, the police recorded his statement in the Civil Hospital at about 5.00 p.m. on the same day after taking his signature. Considering the evidence of this witness, we have our own doubt about the presence of this witness at the scene of offence as he was not a resident of the area and therefore his presence at the spot at such an odd hour creates a doubt. In any case, he could not meet Somabhai when he had specifically gone to meet him. Apart from it, he had not witnessed the incident even as per his own admission.
Similar is the case with another eye witness Vijay Arjandas Bhatiya (PW 3, Ex.18) . He is also a resident of Nobalnagar of Sardarnagar and is a hawker, selling fruits. According to him, he had gone with his fruit-lorry for the purpose of selling fruits and while he was standing near the Petrol Pump, he saw the respondent abusing the deceased and, during the scuffle, both of them fell into the pit where the respondent, after inflicting three blows on the person of the deceased, ran away. In his cross examination, he has admitted that the deceased, his wife Sumitra and the respondent-accused are known to him. Even though he was present when PW 1 Sumitra , the wife of the deceased, reached the spot soon after the incident, he had not informed her about the incident. He has clearly admitted that he was questioned by the police about the incident and his statement was recorded at 1.30 p.m. wherein the name of the respondent was given as an accused. As can be seen from the evidence of the Investigating Officer Nalinkumar Joshi, even though the deceased was taken by PW 2 Parmanand to the Police Station in a rickshaw and when the Police Inspector Mr.Joshi inquired about the incident from the deceased to which the deceased replied, for any reason, the said information with respect to the commission of cognizable offence was not recorded and treated by the said Police Inspector as the FIR. Not only that, as per the admission of PI Joshi, he had not recorded the information gathered from the deceased in the Police Station Diary. Even though PW 2 Parmanand in his cross examination has admitted that the statement was recorded at 5.00 p.m. on the same day by the police and which the witness signed, surprisingly the said statement is not produced by the Investigating Officer. As stated above, PW 3 Vijay Bhatiya, even though disclosed the name of the accused when he was questioned at the scene of the offence at around 1.30 p.m., even then , the said information was not considered as FIR leading to the commission of the cognizable offence. It is not in dispute that the Investigating Officer has recorded the complaint of Bai Sumitra ,the wife of the deceased, at 5.00 p.m., i.e. about four hours after the incident and, as stated above, in the mean time the police had all the information about the incident . Surprisingly, however, the same has not been brought on the record. This clearly creates a doubt about the manner in which the incident is described as also the manner in which the investigation was conducted. For this reason, the presence of the so-called eye witnesses at the spot is doubtful and the possibility of their selection as prosecution witnesses cannot be ruled out as number of other persons even though they were present when the incident happened, nobody is examined as a witness.
The evidence of PW 3 Bai Sumitra, the wife of the deceased, is of no help to the prosecution for the simple reason that she had not witnessed the incident and had filed the complaint on the basis of the information supplied to her by a boy aged 10, whose identity is also not disclosed by the prosecution and has not been produced as a witness by the prosecution. Reading her evidence, it is clear that even though she rushed to the place of incident, neither she had inquired from any one present there as to what happened , nor did any witness inform her about the incident. Thus, in absence of any positive evidence being placed on the record which was very much in possession of the investigating agency,as stated above, it is not desirable to place any reliance on the evidence of the PWs, l,2 and 3 and convict the respondent for the offence punishable under section 302 of the IPC. Hence, the appeal, in so far as it challenges the judgment and order of acquittal of the respondent for the offence punishable under section 302 of the IPC is concerned, fails.
As the evidence stands on the record of the case and in view of what is stated above, even the learned Additional City Sessions Judge, Ahmedabad was in error in convicting the respondent for the offence punishalbe under section 304, Part II of the IPC as he has failed to appreciate the evidence in its proper perspective. Therefore, the respondent is entitled to be acquitted of the offence punishable under section 304, Part II of the IPC and section 135 (1) of the Bombay Police Act .
In the result, the appeal fails and is dismissed in so far as the order of acquittal passed by the learned Additional City Sessions Judge, Ahmedabad under section 302 of the IPC is concerned.
Consequently, in view of what is discussed in the judgment, the judgment and order of conviction and sentence under section 304, Part II of the IPC and section 135 (1) of the Bombay Police Act is quashed and set aside and the respondent accused is ordered to be set at liberty forthwith , if not required in connection with any other offence.
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