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Judgment
R.M.Chhaya, J
1.0. State of Gujarat has preferred this appeal under Section 378 of the Code of Criminal Procedure against the order of acquittal passed by the
learned Sessions Judge, Surat in Sessions Case No.141 of 1995 whereby the Sessions Court was pleased to acquit the original accused nos. 1 to 4 for
the offences punishable under Sections 302, 324 r/w Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act.
Criminal Appeal No.107 of 1997 is preferred against the order of acquittal in respect of original accused no.1 to 4 and said appeal is also filed under
Section 11 of the Probation of Offenders Act whereby respondent no.3 who was convicted under Section 323 of the Indian Penal Code has been
given benefit of probation.
2.0. In nutshell, it is the case of the prosecution that on 5.2.1995 at about 10.30 p.m at Varacha Road, Surat in relation to diamond cutting business the
original accused no.2 had oral scuffle with the deceased. It is further the case of the prosecution that original accused no.2 caught hold of the
deceased and original accused no.1 Kalubhai Vajabhai Dhadiya inflicted blow with the knife upon forehead of the deceased. It is also the case of the
prosecution that original accused no.3. Dineshbhai Dhadiya inflicted blow with the chain (cycle chain) upon Rajeshbhai Jadavbhai and caused injuries
over his forehead. It is also the case of the prosecution that original accused no.4 Dhirubhai Kalabhai Patel caught hold of the deceased. On the
aforesaid factual allegation, FIR was lodged by Rajeshbhai Jadavbhai being CRÂIÂ53 of 1995 at 0.30 hours on 6.2.1995. The Police investigated the
said offence and submitted the same before the competent authority and ultimately the same was committed to the Sessions Court and was registered
as Sessions Case No.141 of 1995 before the Court of learned Additional Sessions Judge, Surat. The Sessions Court framed the charge at Exh.3 for
the offences punishable under Sections 323,324,302 and 114 of the Indian Penal Code and Sections 135 of the Bombay Police Act. As the
respondents did not plead guilty and opted for trial. The prosecution examined 9 witnesses and also relied upon the documentary evidence such as
panchnama of scene of occurrence, inquest panchnama, FSL report, MLC certificate of the deceased and MLC certificate of the original
complainant Rajeshbhai. The learned Sessions Judge by the impugned judgment and order was pleased to acquit the original accused nos. 1 to 4 for
the offences punishable under Sections 302, 324 r/w Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act and further
pleased to convict the original accused no.3 for the offence punishable under Section 323 of the Indian Penal Code, however has been given benefit of
probation.
2.1. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Sessions Judge, State of Gujarat has
preferred present appeals.
3.0. Heard Mr. Manan Mehta, learned Additional Public Prosecutor for the State and Mr. E E Saiyed, learned advocate for the original accused â€
respondent nos. 1 to 4.
4.0. Mr. Manan Mehta, learned Additional Public Prosecutor has taken this Court to the deposition of all prosecution witnesses and contended as
under:
4.1. That the learned Sessions Judge has wrongly appreciated the evidence of three eyewitnesses who have categorically deposed before the Sessions
Court as to how the incident has occurred and injuries inflicted by the respondent no.1 and the role played by the other three accused, still however the
same has not been appreciated and on wrong appreciation, the learned Sessions Court has passed the impugned judgment and order of acquittal. Mr.
Mehta, learned APP has submitted that there are no contradiction or omission in the version of the three eyewitnesses, still however the learned
Sessions Judge has come to the conclusion that the same is not trustworthy.
4.2. It was also contended by Mr. Mehta that evidence of Doctor â€" Pramodbhai Tiwari at Exh.1 who performed the autopsy upon the deceased
clearly shows that injuries found on the deceased can be caused by the weapon knife which has been discovered at the instance of the respondent
no.1 â€" original accused no.1, still however same has not been believed by the Sessions Court. Mr. Mehta submitted that considering the evidence as
a whole there are three eyewitnesses and the medical papers clearly reveal that injuries were caused by the weapon knife and that the prosecution
having proved the guilty against all the accused, same has been brushed aside by the learned Sessions Judge without proper appreciation of evidence
on record and therefore, impugned judgment and order of acquittal is based on law and facts and deserves to be quashed and set aside and all the
accused deserves to be convicted for the offences as per the charge at Exh.3.
4.3. Mr. Manan Mehta, learned Additional Public Prosecutor also contended that when the learned Sessions Court on the same set of evidence has
come to the conclusion that the original accused no.3 has committed an offence under Section 323 of the Indian Penal Code without there being any
material on record has wrongly applied the provisions of Probation of Offenders Act and has given benefit of the same to original accused no.3. On
the aforesaid ground, Mr. Mehta, learned Additional Public Prosecutor contended that both the appeals deserve to be allowed as prayed for.
5.0. Per contra, Mr. E.E. Saiyed, learned advocate for the original accused has supported the impugned judgment and order of acquittal. Mr. Saiyed,
learned advocate contended that the learned Sessions Court has rightly appreciated the evidence on record and has not believed the case of the
prosecution. Mr. Saiyed further contended that on bare perusal of the deposition of the eyewitnesses as relied by the prosecution on the contrary
shows that they were not present at the time of alleged incident. According to Mr. Saiyed even the lodging of the FIR itself is doubtful. Mr. Saiyed
submitted that the Sessions Court has threadbare the appreciation of evidence on record both oral as well as medical evidence and has correctly come
to the conclusion that offences alleged against accused under Sections 302, 324 r/w Section 114 of the Indian Penal Code are not proved. Mr. Saiyed
also supported the judgment as far as original accused no.3 is concerned and has submitted that the case on hand was an apt case for exercise of
powers under the Probation of Offenders Act and has rightly given benefit of provisions of the said Act to respondent no.3Â original accused no.3.
On the aforesaid ground, Mr. Saiyed contended that appeals being merit less, deserve to be dismissed.
6.0. No other and further submissions, grounds and contentions have been raised by the learned advocates for the respective parties.
7.0. Before reverting to the submissions made by the learned advocates for the respective parties, it would be appropriate to refer to the relevant
evidence relied upon by the prosecution before the Sessions Court. The prosecution relies upon the evidence of three eyewitnesses viz. Rajeshbhai
Jadavbhai PW No.2 at Exh.13 who lodged the complaint before the police, Mr. Chandubhai Popatbhai â€" PW No.3 at Exh.15 and Prakashbhai
Dayabhai PW No.4 at Exh.16.
7.1. Rajeshbhai Jadavbhai Gajera PW No.2 has in his examination in chief stated that on 5.2.1995 at about 8. p.m he along with Chandu Popat,
Prakash Daya, Dopal Dhaduk and Atul Gordhan was proceedings for his dinner to Ghanshyamnagar. He has narrated that the incident occurred on
the return from the Dinner near Baroda Prestige and Girnaar Pan Centre. He has deposed that Kalubhai, Dhirubhai and Dineshbhai were coming
from the otherside. He has also stated that Kalubhai original accused no.1 had oral altercation as regards the factory premises to be used by him and
at that point of time Kalubhai inflicted blow on the forehead of the Kiritibhai with a knife. It is alleged that Dineshbhai inflicted blow over his forehead
with chain and Dhirubhai caught hold of the deceased Kiritbhai. He has also stated that he fell unconscious and thereafter he was taken to the hospital
and when he derive his consciousness he went to the Varachha Police Station to lodge the complaint. In cross examination, he has stated that when
oral altercation took place, Jayeshbhai who was owner of the Pan Shop closed the same and went to his apartment and even lights of the Galla were
closed. He has stated that oral altercation did not take place there and nobody caught enriched. He has stated that original accused no.3 Dineshbhai
was assaulted him with the chain and he fall down and became unconscious. He had also categorically admitted that after he become unconscious, he
is not aware as to what had happened. He also admitted the fact that he did not take deceased Kiritbhai to the hospital but other took him. He has
stated that Doctor inquired about as to how the incident had happened and that he had given the information to the Doctor. He has also stated that
Kiritbhai was treated firstly at Maskati Hospital and thereafter in Civil Hospital. He stated that he himself went to lodge the complaint before the
police station. In his further cross examination, he has categorically stated that after inflicting blow with the knife upon the deceased Kiritbhai, he was
assaulted with chain. He has admitted the fact that original accused no.1 Kalubhai did not inflict any blow upon his present. The prosecution has
thereafter examined Chandubhai Popatbhai â€" PW No.3 at Exh.15 who was stated in his examination in chief that incident had occurred at about
10.30 night hours at Girnar Pan House. In his cross examination, he has admitted the fact that when the altercation took place Jayeshbhai Pan Shop
owner was present and he left while altercation was taking place after closing Shop (Galla) and lights. He has also stated in his cross examination that
Kiritbhai become unconscious and persons from staying in apartment came down and many persons from his native were present. Prosecution has
thereafter examined Prakashbhai Dayabhai â€" PW No.4 at Exh.16 who has almost deposed similar to that of PW No.3 Chandubhai Popatbhai. It is
however noteworthy that the said witness has stated in his examination in chief that the deceased was inflicted blow on the chest.
8.0. The prosecution has also examined Dr. Pramodbhai Prembihari Tiwari PW No.1 at Exh.10 who performed autopsy upon deceased Kiritbhai.
As per the postmortem note at Exh.12, following external injuries were found.
(1). Inside wound 1.2 x 0.2cm bone deep on left parietal region 2 cm left of midl ine. Oblique 15 cm above left eye brow.
(2). Inside wound 3 xm x 1.4 cm chest cavity deep transversally oblique. 29cm blow the lip of right shoulder. On outer aspect of right lower chest. 132
Cm above right heel margmes clean cu. Outer and slightly blunt.
(3). Grazed Abrasion 25 x 7 cm area vertically on back of left lower chest and abdomen. 7 cm left of mid line 26 cm below left shoulder cubicle
darken and peeled off at places leaving dark radish area.
The cause of death as mentioned therein is shock and hemorrhage following stab injury to lung and heart. The Dr. Pramodbhai Tiwari PW No.1 has
narrated the injuries found on the body of the deceased. In his cross examination, he has stated that injuries found on the body of the deceased is not
caused by the weapon which is sharp edged from both the sides.
9.0. The prosecution has thereafter examined Chanabhai Himatbhai as panch witness for the recovery / discovery of the cycle chain as well as knife,
however he has turned hostile and he has not supported the case of the prosecution. The prosecution has also relied upon Gulam Patel â€" PW No.6
at Exh.24 who was panch witness for the recovery / discovery of the weapon knife, Jamaiyo (Trigger) and chain. He has admitted in his cross
examination that no bloodstains were found from any of the weapon. He has also stated that he signed on the panchnama at the police station and at
the scene of occurrence. The prosecution has thereafter examined â€" PSI Bhagvanpuri Dhanpuri Goswami at Exh.7 who lodged the complaint
filed by Rajeshbhai Jadavbhai and has also relied upon the other police officers Hemantkumar Patel at Exh.26 as PW No.8 who has filed chargesheet
before the learned Sessions Court. Prosecution has also examined Dr. Rajesh Umargiri as PW No.9 at Exh.27 who examined the deceased Kiritbhai
at Maskati Hospital on 5.2.1995. He has stated that Kiritbhai was brought by one Ranchhodbhai Laxmanbhai on 5.2.1995 at about 10.55 pm. He has
also stated that no history about injury was stated by Ranchhodbhai. He has also stated that Kiritbhai was unconscious and on his medical examination
it was found that he had signed of some abrasion on the backside of the body. In his cross examination, he has categorically stated that Rajeshbhai
was brought at 2 a.m on 6.2.1995 to his hospital. He has also stated in his cross examination that Rajeshbhai was brought with the history of injuries
over his forehead. He has stated that 3 cm x 2 cm and 1 cm deep cut wound was found and however no fracture was found.
He has stated that Rajeshbhai was treated as outdoor patient and certificate was given. In his further cross examination by the accused, the said
Doctor has stated that he was not informed as to who has assaulted. The prosecution has also brought on record the injury certificate of deceased
Kiritbhai at Exh.28 which is signed by PW No.9 Dr. Rajesh Umargiri wherein following injuries were found.
(1). Patient is unconscious.
(2). Temperature lowered pulse not palpable, BP not recordable, pupils dilated and fluid not reacting to light.
(3). R/s. No Air entry audible. CVS: No heart sound audible.
(4). L/E: (1) Abrasion on back. (ii) Swelling on occipital region of head.
(5). Dead body was brought to this hospital. Patient declared expired on 5.2.1995 at 10.55 p.m.
9.1. The prosecution has also brought on record the injuries certificate of Rajeshbhai Jadavbhai â€" PW No.2 Complainant at Exh.31, which reads
as under:
“ MASKATI CHARITABLE HOSPITAL
AND
C.F.PAREKH DISPENSARY
(SURAT MUNICIPAL CORPORATION)
SURAT: Date: 26.09.1996
M.L. Case No. 1704 of 1995.
Certified that Shri Rajesh Jadavbhai Gajera, Sheri No.12, Varacha Road and aged about 20 years was brought to this Hospital on 6.2.1995 at 2.a.m.
H/o assault on head _____________.
NO H/o ___________________.
He was examined and following signs and symptoms were roted.
O/E. Patient is conscious. TPRÂN/100 plus, B.P Â130/80, Pupils â€" BERC.
S/E: CLW on (L) Upper _frantal region of size.
3 cm x 2cm x 1 cm deep.
Xxxx
xxxx
xxxx
He was admitted and treated then and there and OPD Rx was given.
(1) Discharged cured on ______ 199.
(2) But did not survive and expired on ______ 199 at _______. The cause of death in my opinion is due to _________ prior to his / her admission to
this Hospital.
Signature : ______
Qualification: MBBS
Designation: Jr. MO.â€
FSL report is also relied upon by the prosecution at Exh.22 which indicates that no bloodstains were found on the weapon Jamaiya (Trigger) and
Myan being sample nos. 5 and 6.
Exh.14 FIR was by the PW No.2 Rajesbhai Jadavbhai shows that the same was lodged at 0.30 hours before Varachha Police Station on 6.2.1995.
In his FIR also original complainant â€" PW No.2 Rajesbhai Jadavbhai has stated that original accused no.1 Kalubhai inflicted blow with the knife on
the forehead of the deceased and original accused no.3 gave blow with a chain on his forehead and other two accused caught hold of the deceased
Kiritbhai. He has also stated in his FIR that Kiritbhai died on his way to Maskati Hospital and his dead body was kept in the said hospital. As can be
noted from the deposition of the original complainant Rajesbhai Jadavbhai â€" PW No.2 at Exh.13, he also became unconscious. As per FIR as well
as version of the original complainant incident occurred at about 20.30 hours, the FIR has observed herein above was lodged at 0.30 hours on the next
day i.e. 6.2.1995. The said witness â€" original complainant states in his deposition that on being attacked by the original accused no.3 with Chain, he
fell down and was unconscious and that he went to the police station after he regained his consciousness. On re appreciation of evidence of the PW
No.2 as a whole, original FIR at Exh.14 and injury certificate issued by the Maskati Hospital at Exh.31, the same shows that Rajesbhai Jadavbhai was
brought to the Maskati Hospital at 2 a.m. and was given treatment as an outdoor patient. Thus, the version of the said witness who poses himself to be
an eyewitnesses to the incident, FIR at Exh.14 and the certificate shows that same is self contradictory as on one breath said witness states that he
become unconscious on being assaulted with the chain by the original accused no.3 and that he was taken to the hospital, treated and when regained
consciousness, he went to the police station to lodge the complaint. FIR indicates that the same was lodged at 0.30 hours on 6.2.1995 whereas as per
the medical evidence, original complainant Rajesbhai Jadavbhai was taken to the hospital and admitted as a outdoor patient at 2 a.m on the next day.
Even independent version of three eyewitnesses as per the prosecution, the same are contradictory even from the point of view of the occurrence
and the assault and so also injuries received by the person of the deceased. The MLC of the injury certificate of the deceased at Exh.28 indicates that
Kiritbhai was brought by his relative and no proper history was given and was declared dead at
55 p.m. The injuries as is indicative from the postmortem notes does not tally with the version of three eyewitnesses. Even the cause of death is
stab injury to lung and heard whereas the witnesses have stated that deceased was given blow on his forehead. The weapon though discovered is not
supporting and corroborated by the panch witnesses. It appears that one of the panch witness has turned hostile and other panch witness was stated
that panchnama was signed at the police station. The Serological report does not support the case of the prosecution at all as no bloodstains have been
noticed and found upon the weapon Jamaiya (Trigger). Upon reÂappreciation of the evidence on record, the observation made by the learned
Sessions Judge that the prosecution is concealing some facts is fortified. The witnesses have averred that after hearing shouts, other persons had
gathered, however no one is examined. Serological report also does not indicate that weapons discovered bare any bloodstains much less blood group
of the deceased. In fact, final serological report is also not brought on record by the prosecution and the learned Sessions Judge has therefore, rightly
noted that link is not established by the prosecution. Upon overall reÂappreciation of evidence on record, the reasons given for passing order of
acquittal are correct appreciation of evidence on record, which does not require any alteration. Considering the evidence, the learned Sessions Judge
has also rightly considered the provisions of Probation of Offenders Act and has given benefit of probation to the original accused no.3 Dineshbhai and
no other different view needs to be taken in exercise of powers under Section 11 of the Probation of Offenders Act.
The learned Sessions Judge has rightly obseved that though the eyewitnesses and the complainant who were stated to be present at the scene of
offence, at the time of occurrence, have not tried to avoid / defend the incident or to save the deceased Kiritbhai and the complainant from the
incident and therefore, there versions are not trustworthy and believable, even there are material contradictions in depositions of all three eyewitnesses
including complainant Rajeshbhai. The learned Sessions Judge has rightly observed that the presence of accused no.2 Vikrambhai was tried to be
shown by other two eyewitnesses and the complainant Rajeshbhai is silent about the presence and role of accused no.2 Vikrambhai, not only in the
complaint but also in his oral deposition and therefore, it is observed that the prosecution is hiding something and the depositions are not trustworthy
and believable. The learned Sessions Judge has rightly observed that the deposition of the PW No.9 Dr. Rajesh of Maskati Hospital with regard to the
injuries to the deceased, is silent. So far as the injuries on the head is concerned, while PW No.1 Dr. Pramodbhai is referring and mentioning the
injuries which are not seen, described by the PW No.9, Dr. Rajesh and therefore, also there are material contradictions in description of injuries to the
deceased. The learned Sessions Judge has rightly observed that even the depositions of the complainant with regard to the occurrence of incident and
assault on himself as well as deceased and sequences of such assault is having material contradictions and confusions in the complaint, examination in
chief and cross examination and therefore also the depositions are not trustworthy and believable and the accused persons are entitled to get benefit of
doubt.
In view of the above and for the reasons stated above, both the appeals, fail and are hereby dismissed and order of acquittal as well as order
giving benefit of probation deserves to be confirmed. As the appeals are dismissed, bail bond stands cancelled. Record and proceedings be sent back
to the learned Sessions Court forthwith.