Vipulbhai Parshottambhai Parmar and Others vs State of Gujarat

R.M. Chhaya, J.—Present appeals arise out of common judgment and order rendered by learned Additional Sessions Judge, Vadodara on 26.07.2004 in Sessions Case No. 61 of 2003, convicting the Appellants-accused for the offence of murder of Ashok Ramanbhai Solanki punishable u/s 302 read with Sections 34 and 149 of the Indian Penal Code, 1860 (''IPC'' for short) and sentencing each of them to imprisonment for life and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for six months. However, no separate sentence has been awarded for the offence punishable under Sections 323, 147, 148, 149 of the IPC and Section 135 of the Bombay Police Act, 1951 (''the B.P. Act'' for short).

Before us, two criminal appeals have been filed. Criminal Appeal No. 1387 of 2004 has been filed by original accused Nos. 5 to 8 (for short "A5", "A6", "A7" and "A8" respectively), whereas Criminal Appeal No. 1489 of 2004 has been filed by original accused Nos. 1 to 4 (for short "A1", "A2", "A3" and "A4" respectively). As both these appeals arise out of the aforesaid common judgment and order dated 26.07.2004, they have been heard together and are being disposed of by this common judgment.

The case of the prosecution briefly summarized is that Ashok Ramanbhai Solanki (the deceased) and the Appellants herein are the residents of Gajarawadi area of Vadodara City. That prior to the date of incident the accused had quarrel with regard to decoration at the temple of Goga Pir and that the accused had a grudge against the deceased and that they constituted an unlawful assembly and on 15.12.2002 at around 8:30 p.m. they gave fist blows, fell him down and assaulted the deceased with deadly weapons like swords and iron pipe and gave blows with the weapons in their possession. Thereafter, father of the deceased as well as other neighbours took the deceased to SSG Hospital, Vadodara where the doctor declared him dead.

An F.I.R. came to be lodged by PW-2, father of the deceased, and after full-fledged investigation charge-sheet was submitted before learned Judicial Magistrate, First Class, Vadodara, who in turn, committed the case to the court of Sessions as the offences were exclusively triable by the Court of Sessions and the same was registered as Sessions Case No. 61 of 2003.

Charge was framed by the trial Court against the accused below Exh.5 for the aforesaid offences, to which they pleaded not guilty and claimed to be tried.

After considering the evidence led by the prosecution, the trial Court came to the conclusion that the prosecution was successful in proving the charges against the accused and recorded conviction by the judgment impugned in these appeals. Hence, the present appeals.

Heard Mr. Y.S. Lakhani, learned Senior Counsel with Mr. Alok M. Thakkar, learned advocate for the Appellants-original accused Nos. 1 to 4 (in Criminal Appeal No. 1489 of 2004) and Mr. Haresh N. Joshi, learned advocate for Thakkar Associates for the Appellants-original accused Nos. 5 to 8 (in Criminal Appeal No. 1387 of 2004), while the Respondent-State has been represented by the learned A.P.P. Mr. Divyesh C. Sejpal.

Mr. Lakhani, learned Senior advocate appearing for the Appellants-original accused Nos. 1 to 4, has taken us through the oral testimonies of PW-2, PW-5, PW-6, PW-8, PW-9, PW-10, PW-11, PW-12 and other relevant evidence on record, including F.I.R. (Exh.50). He submitted that the prosecution has not been able to prove the charges leveled against the Appellants and they have been falsely implicated in the alleged offence only on account of political rivalry. He submitted that in fact F.I.R. (Exh.50) is not the real first information of the alleged incident. He further submitted that from the oral testimony of witnesses, who took the deceased to SSG Hospital, Vadodara, it is clearly borne out that those witnesses had given versions of the occurrence to the police at the SSG Hospital, Vadodara. Mr. Lakhani further pointed out that there is also evidence to the effect that a compliant was also filed at Gajarawadi Police Chowki before recording the F.I.R. (Exh.50), which was recorded at a later point of time at the house of the original complainant (PW-2). Mr. Lakhani submitted that in spite of this fact, the prosecution has not brought on record the first version of the witnesses recorded before the police at SSG Hospital, Vadodara, which was the first in time and has only brought on record the F.I.R. which was recorded later in point of time, at the house of the complainant and, therefore, submitted that the very basis of the charge is tailored and concocted.

Mr. Lakhani further submitted that all the four eye-witnesses in their oral testimonies have stated before the trial Court that they gave their first versions of the incident to the police at SSG Hospital, Vadodara, whereas the investigating officer has stated in his deposition that the witnesses were not available on the date of the incident and the same could be recorded on the next day i.e. 16.02.2002.

Mr. Lakhani submitted that all the eye-witnesses are got up, including the first informant (PW-2). He submitted that even if their evidences are read as it is, all of them have admitted that they reached the place of the incident at Vankar Vas, whereas in their evidence they admit that they stay at Harijan Vas. Mr. Lakhani pointed out that it has come on record that the distance between these two localities is far and, therefore, the oral evidence is unreliable and not trustworthy. Mr. Lakhani further pointed out that there is contradiction in the oral testimony of PW-12, Dr. Meena Robbin Christian, Medical Officer of SSG Hospital, Vadodara (Exh.61) as regards oral vardhi given to PW-6, Zaverbhai Ambalal, Head Constable, whereas the same is denied by PW-2. Mr. Lakhani also pointed out that out of four eye-witnesses two are silent on the aspect that PW-2 gave details to the doctor, whereas PW-6, on duty at the SSG Hospital Chowki, states that vardhi was given orally by PW-12. However, no medical papers are on record and from the evidence it is borne out that the concerned doctor had not written the same.

Mr. Lakhani also pointed out that the prosecution has not been able to prove the motive. He pointed out that earlier no such incident, as narrated by the prosecution, has occurred at Goga Pir temple. He also pointed out that the Appellants have been wrongly implicated in the alleged offence. He further pointed out that on the date of the alleged incident there were riots in Vadodara City and it was the day on which the election results were out and the winning candidates had taken out victory procession. He further submitted that even though the Appellants were not present, they have been implicated in the alleged offence because the deceased and the Appellants belong to different political parties. Mr. Lakhani submitted that the prosecution has not been able to prove the charges leveled against the Appellants and oral testimonies of the eye-witnesses, which is the main base of the prosecution case, does not prove the guilt of the Appellants to its hilt. He further submitted that the trial Court has wrongly passed order of conviction and sentence.

Mr. Lakhani submitted that the prosecution has in fact failed to establish the charges leveled against the Appellants, as aforesaid, and the oral testimonies of the so-called eye-witnesses are not trustworthy. Mr. Lakhani further submitted that there are contradictions in the ocular evidence as well as the medical evidence and even though it has come on the evidence, that the deceased was taken in a rickshaw by the eye-witnesses, whose presence is also not free from doubt. He further submitted that no blood stains were found in the rickshaw or from the clothes of the eye-witnesses. Mr. Lakhani pointed out that the evidence of the prosecution is not free from doubt even their presence itself is doubtful and the benefit of which should be given to the Appellants and, therefore, submitted that the appeal may be allowed by setting aside the impugned judgment and order of conviction and sentence.

Mr. Joshi, learned advocate appearing for Thakkar Associates for the Appellants original accused Nos. 5 to 8, submitted that the accused have wrongly been implicated in this case. He pointed out that as per the case of the prosecution three Appellants caught hold the deceased and one gave kick and first blows even though four persons were armed with weapons. Therefore, the theory of the prosecution is falsified and the prosecution has not brought on record anything substantial to dispel their case. He further pointed out that there are certain improvements and contradictions in the oral testimony of the first informant itself and the important omission as regards the role attributed to accused Nos. 5 to 8 in the F.I.R. is proved by the defence. Mr. Joshi submitted that the trial Court has wrongly believed the case of the prosecution and, therefore, submitted that the appeal may be allowed by setting aside the impugned judgment and order of conviction and sentence.

Learned A.P.P. Mr. Divyesh C. Sejpal has opposed the present appeals. He submitted that the prosecution has been able to prove the charges leveled against the accused to its hilt. Mr. Sejpal has taken us through the oral testimonies of the eye-witnesses and pointed out that the prosecution has been able to prove the motive and there is direct evidence on record to establish the involvement of all the accused. Mr. Sejpal also submitted that the Appellants, more particularly original accused Nos. 1 to 4 were armed with deadly weapons and have inflicted blows, as stated by the eye-witnesses, on vital parts of the body of the deceased. He further submitted that all the accused had, with the intention and knowledge, that the said acts were likely to cause death in ordinary course, committed the aforesaid offence. Mr. Sejpal also submitted that there is no contradiction as far as place of occurrence is concerned. He submitted that Vankar Vas and Harijan Vas is the same locality and it is on the same road. He submitted that the eye-witnesses have stood the test of the cross-examination. Mr. Sejpal submitted that there are no contradictions in the versions of the eye-witnesses and there testimonies are trustworthy and the same do not create any doubt. He further submitted that F.I.R. (Exh.50) is the first information given by PW-2. He submitted that vardhi given at SSG Hospital Chowki by the first informant (PW-2) himself was sent to the jurisdictional Police Station and that there are no contradictions as regards to the versions of the first informant, which is corroborated with the oral testimonies even at the trial. He submitted that the medical evidence affirms the ocular version of the eye-witnesses and the prosecution has been able to link the accused with the present offence and has been able to prove the charges leveled against the accused to its hilt and the trial Court has rightly appreciated the evidence on record and has rightly passed order of conviction and sentence. Mr. Sejpal therefore, submitted that it is a full proof case and the trial Court has rightly believed the case of the prosecution and the appeals are devoid of any merits and the same deserve to be dismissed.

We have examined the record and proceedings in the context of rival submissions.

The incident was occurred on 15.02.2002 at about 8:30 p.m. at Harijan Vas of Gajarawadi area of Vadodara City and as per the charges leveled against the Appellants i.e. A1, A2, A3 and A4, they were armed with deadly weapons like swords and iron pipe. The prosecution has relied upon the following four eye-witnesses:

PW-2, Ramanbhai Keshavbhai Solanki, father of the deceased and first informant (Exh.25);

PW-3, Rajnikant Mohanbhai Solanki, resident of the locality of the deceased (Exh.26);

PW-4, Rahul Rajnikant Solanki, son of PW-3 and resident of the locality of the deceased (Exh.27);

PW-7, Shantilal Bhagwandas Solanki, neighbour of the deceased (Exh.35);

The prosecution has also examined PW-1, Dr. Haresh Budhabhai Kothiari, (Exh.22), who performed autopsy on the dead body of the deceased, and PW-12, Dr. Meena Robbin Christian, (Exh.61). The prosecution has also relied upon deposition of PW-5, A.S.I., Gajendrasin Harisinh, (Exh.29) as well as deposition of PW-11, P.I., Gohil Jagdishsinh Velubha, (Exh.52) and lastly upon the evidence of Forensic Science Laboratory (Exh.63).

PW-2 is the first informant and the father of the deceased. Upon reading the evidence of PW-2 we find that he has stated that the incident occurred on 15.12.2002 at 8:30 p.m. He has stated that when his son (the deceased) proceeded towards the maternity home, where wife of the deceased had delivered child, he saw a group of eight persons coming near the electric pole situated in his maholla. He has stated that four out of them gave fist blows to the deceased, because of which the deceased fell down. He has stated that A1 gave blow with a sword in his possession on the right side of the head of the deceased, A4 inflicted blow with sword in his possession on the left side of the forehead, A3 inflicted blow with the sword in his possession on the right hand fingers and A2 gave blows with the iron pipe in his possession on the right shoulder to right leg. He has further stated that immediately he raised shouts and thereafter his wife, PW-3, PW-4 and he himself went near the deceased, called a rickshaw and took the deceased to SSG Hospital. He has stated that the deceased fell down in a critical condition and when he took his head on his lap, his brain matter had come out. He has further stated that the doctor on examination declared the deceased dead. He has stated that his son was profusely bleeding.

Upon further reading of evidence of PW-2 we also find that he has stated that there was some quarrel with the accused on account of certain decoration to be made at the temple of Goga Pir, situated in their area and because of the said incident the accused, in order to take revenge, attacked the deceased. He has also stated that he had given F.I.R. to Gajarawadi Police Chowki, in SSG Hospital as well as at his residence before the police.

Upon further reading of evidence of PW-2 we find that in his cross-examination he has stated that he had filed a complaint before Wadi Rangmahal Police Chowki. He went to the said police chowki at 10:00 at night along with other 2-5 persons of his area. He has clearly stated that even in the hospital the police inquired about the incident, noted down the details and obtained his 3-4 signatures. In his cross-examination he has stated that eye-witness, PW-3, is not his cousin brother but residing in the same maholla and was related to PW-3. We also find that he has denied the suggestion of the defence that the deceased was a political worker and has also denied the suggestion of the defence that the deceased was murdered by somebody else in the communal riots. In the cross-examination by learned Counsel of A1, A2, A7 and A8, this witness has stated that he did not make further conversation with the doctor, as the doctor declared the deceased dead.

Upon further reading the evidence of PW-2 we also find that in Harijan Vas there are rows of 20-30 houses and in all there are 200-250 houses. He has also stated that Vankar Vas is situated after 50 house from his house. He has admitted that the incident did not occur in Harijan Vas. On a pertinent question put to him that since a Police Chowki is within a walkable distance of about 5 min. why did he not go there and inform the police, PW-2 stated that as the accused fled away and he had to take his injured son (the deceased) to hospital, he did not go there. We also find in his cross-examination that en route to the hospital he did not talk with PW-3 and PW-4 in the rickshaw. We find that PW-2 took PW-3 and PW-4 with him because there was no one to put and alight the deceased in the rickshaw. We also find that PW-3 and PW-4 were standing near their lorry (handcart) and on hearing shouts of PW-2 they came there. He has admitted the suggestion of the defence that Goga Pir is God of Harijan community. He has admitted the fact that the deceased was detained under PASA before 8-10 months of the date of incident and for such detention the deceased was suspended from service. He has admitted the fact that the assailants were the residents of Harijan Vas and that he had stated so in the statement given before the police at the hospital.

PW-3 is also one of the eye-witnesses. Upon reading the evidence of PW-3 we find that he has stated that at the time of incident he was standing near his lorry. That his house is situated at a distance of five steps from the scene of offence. He has attributed the role played by each of the accused, as attributed by PW-2. This witness has stated that PW-2, PW-4, PW-7 and he himself took the deceased in the rickshaw to SSG Hospital. This witness has first stated that on examination doctor declared the deceased dead and all four of them thereafter returned home. However, in the next sentence itself this witness has changed his version and has stated that we did not return home but PW-2 informed the doctor that the deceased has been killed by the accused, thereafter lodged the complaint and straightway returned home. We also find that he has stated that once in a year, on the day of Raksha Bandhan, pooja is performed at the temple of Goga Pir. He has also stated that some quarrel took place in relation to decoration to be made at the temple. He has also stated that keeping grudge of such incident, A1 and other co-accused had assaulted the deceased. We also find that he has stated in his cross-examination that in his statement before the police he had stated that the deceased was son of his cousin. He has stated that the police at the hospital had first taken statements of PW-2 and then of PW-4. He has also stated that the statements were taken in the police chowki, situated just besides the Emergency Ward at SSG Hospital. He has also stated that after statements were taken they returned home where they found that the police was also present there and made inquiry from them.

In the cross-examination we also find that it is categorically admitted by PW-3 that when he took the deceased in the rickshaw his clothes were not blood stained. He has stated that he did not help alighting the deceased from the rickshaw PW-2, PW-4 and PW-7 did so. In his cross-examination we find that PW-3 has admitted the fact that he has stated before the court for the first time that at the time of occurrence he was standing near his lorry and that he has not stated so before the police. He has stated that four Appellants were residents of Vankar Vas and four Appellants were residents of Jai Ambe Maholla and that they reside in Jai Ambe Maholla was stated by him before the police. We find that when questioned whether A1 to A4, as identified by this witness, are not residents of Vankar Vas, he answered that these four persons are living behind Ambe Matta ne Pole i.e. behind Harijan Vas. We also find that this witness has admitted in his cross-examination that on the date of incident at around 8:30 p.m. a victory procession of Bhupendra Lakhawala had reached, at the Office of Ward No. 3 where many people had gathered. We also find that PW-3 has denied that he was aware that the deceased was detained under PASA but he admitted that the deceased had been in jail. We also find that in his cross-examination that on a specific question put to PW-3 as regards the incident, he has stated that PW-2, PW-7, PW-4 and he himself lifted the deceased and sat in the rickshaw. He has also further stated that the deceased was profusely bleeding, however, his clothes did not get blood-stained. He has stated that thereafter the deceased was laid on the seat of the rickshaw. We further find that this witness assertively stated that all five i.e. PW-2, PW-3, PW-4 and PW-7, including the deceased boarded in one rickshaw and left for the hospital. This witness has categorically stated that his he did not go to the scene of offence after PW-2 raised shouts.

Upon reading the evidence of PW-4, Rahul Rajnikant Solanki, (Exh.27), who happens to be the son of PW-3, we find that this witness has stated that his lorry was kept near otla of his house and he was standing at the said otla. He has also attributed the role played by each of the accused similar to PW-2 and PW-3. We also find that this witness has stated that after the incident PW-3, PW-2, PW-7 and he himself took the deceased in the rickshaw to SSG Hospital and the doctor who attended the deceased-Ashok, declared him dead. We find that in the cross-examination on behalf of A1, A2, A7 and A8, this witness has stated that he was unemployed. We also find that when questioned whether his house is not in Vankar Vas, he replied that Harijan and Vankar Vas is one. He has admitted that his house is situated in Hathiyakhad of Harijan Vas. We also find that this witness denied the fact that his father (PW-3) and he himself went to the scene of offence after PW-2 raised shouts. We also find that in the cross-examination he has admitted the fact that when he reached the scene of offence the deceased was lying there and he was bleeding. We also find that he has admitted that many people from the neighbourhood rushed there. He has also admitted the fact that about 50-60 people had gathered there. He has admitted that police chowki is within a walkable distance of about 12 min. from his house. He has admitted that he brought the rickshaw from the corner of Harijan Vas. He has also admitted the fact that PW-3, PW-2, PW-7 and he himself lifted the deceased and went to the hospital in the rickshaw. We also find that he has stated that his clothes did not get blood-stained. He has also stated that after the doctor examined the deceased a complaint was given to the police. He has also stated that PW-2 gave his statement first. However, his signature was not taken. He has also stated that even his father (PW-3) gave statement. We also find that in the cross-examination that when PW-4 was asked why he did not save the deceased, he replied that when four persons were giving fist blows other four persons were standing behind them, armed with weapons. We also find that this witness denied certain suggestions made by the defence.

PW-7 is a neighbour of the deceased and is also one of the the eye-witnesses. Upon reading evidence of PW-7 we find that his house is situated just opposite the house of the deceased. We find that at the time of the incident he was standing in the compound of his house. This witness has also attributed the role played by each of the accused in the same manner as three other eye-witnesses have attributed, as aforesaid. We also find that this witness has stated that the deceased was lying near the electric pole and was bleeding and even the lid of drainage was covered with blood. He further stated that they four i.e. PW-2, PW-4, PW-3 and he himself, took the deceased to Sayaji Hospital in the rickshaw where the deceased was declared dead. In his cross-examination, we find that this witness has admitted the fact that the deceased was working for Bhathhubhai. This witness has also stated that when father of the deceased returned home from the hospital, the police had arrived there and that he informed the police about the incident as known to him at about 10:00-10:30 p.m. In his cross-examination he has stated that not only they four, but other persons were also there at the hospital for alighting the deceased. He has stated that his pent slightly got blood-stained, however, the same was washed. He has also stated that his residence is in Gajarawadi, Harijan Vas. He has also admitted that he has stated before the police that none of the accused were residing in their maholla. However, he has also stated that the accused, who had inflicted injuries upon the deceased, were residing in their maholla.

Upon reading the oral testimony of PW-12, Dr. Meena Robbin Christian (Exh.61), we find that on 15.12.2002 she was on duty as medical officer in SSG Hospital from 8:00 p.m. onwards. She has stated that the deceased was brought to the hospital by PW-2 and PW-4 and upon inquiring, PW-2 gave names of the accused. She has also stated that the deceased dead. PW-12 transferred the body of the deceased to the cold storage of SSG Hospital. We also find that she has stated that she had orally given vardhi to PW-6, Zaverbhai Ambalal, Head Constable, who had written the same. We also find that in her cross-examination she has stated that in Vardhi (at Exh.54) it is not mentioned that the details in it are as per the version of PW-2. We also find that in her cross-examination she has stated that many relatives were there with the patient.

Upon reading the evidence of PW-1, Dr. Haresh Budhabhai Kothari, (Exh.22) we find that he conducted the postmortem of the deceased. We also find that this witness has stated that the liquidity existed on the body of the deceased and eyes of the deceased were half open, mouth was closed and the blood-stains were found on the nose and mouth had dried up. This witness has also stated that external injury Nos. 2, 6, 7, 8 and 5 were sufficient to cause death and the same could be caused by sharp cutting weapon as well as hard and blunt substance.

Upon reading the evidence of PW-6, Head Constable, Jhaverbhai Ambalal (Exh.32), we find that he was on duty from 8:00 p.m. to next day 8 a.m. On 15.12.2002 to SSG Hospital. This witness has stated that Dr. Meena, (PW-12) gave oral vardhi and the same was written by him as dictated by PW-12, which was numbered as EPR 10736. We further find that he informed about the aforesaid tip on telephone to PSO, Gajendrasinh Harisinh, Panigate Police Station. In the cross-examination we find that he has stated that there is a police chowki in Sayaji Hospital, which consists of one P.S.I., four Head Constables, six Police Constables, out of which one is a writer. He has also admitted the fact that the police chowki is located just besides Medio Legal Office. He has further admitted in his cross-examination the fact that he did not have personal knowledge about the details mentioned in the vardhi. He has denied the suggestion of the defence that the details of the vardhi (Exh.33) and the complaint given were different and, therefore, the said complaint is suppressed.

Upon reading the evidence of PW-5 A.S.I., Gajendrasinh Harisinh, (Exh.29) we find that he was in charge of Panigate Police Station as PSO on 15.12.2002. He has also stated that PSI, S.I. Vasava, gave the said complaint for registration as per the version given by PW-2 in his presence and the same was registered by him. In his cross-examination we find that he has stated that Gajarawadi Police Station is within the jurisdiction of Panigate Police Station and there must be one P.S.I., one A.S.I., one Police Constable and one head constable. He has also admitted that Gajarawadi area would also fall within Wadi Police Station. We also find that the time of noting the said complaint is not stated.

Upon reading the evidence of PW-11, P.I., Gohil Jagdishsinh Velubha, (Exh.52) we find that he was the investigating officer of the present offence and that he had taken charge for further investigation of the aforesaid offence from P.S.I. Vasava on 18.12.2002. He has narrated the procedure undertaken by him for the investigation. In his cross-examination we find that he has admitted that he had orally instructed PSI, Vasava to go to the scene of occurrence. He has admitted the fact that on the night of the incident the election results were declared and victory processions were carried out. We also find that he has admitted that during procession there were some instances of riots in Raopura, Machhi Pith and Panigate. He has specifically admitted that many such instances had taken place in Panigate area also. He has admitted the fact that there was some overwriting in crime register of Panigate Police Station in relation to Crime Register No. 472/02. We also find that he has admitted the fact that the first information (Exh.60) has been got up by him in connivance with the complainant.

From the serological report Exh.63, we find that no blood was found from swords and iron pipe.

The sum total of the above discussion leads to the fact that the prosecution has relied upon four eye-witnesses. PW-2 is the first informant. As noted above, PW-2 has stated that he went to the hospital along with PW-3 PW-4 and there was no reference about PW-7. This witness has also stated that on reaching the hospital the doctor declared the deceased dead and that he had given this information to the police personnel at the police chowki at SSG Hospital and had signed certain documents and even at that stage he has categorically stated that PW-3 and PW-4 were present and that there was no mention that PW-7 was also present at SSG Hospital. This witness has also stated that on raising shouts on seeing the deceased lying injured and bleeding, PW-3 and PW-4 came to the electric pole where the deceased was lying, whereas from the oral testimonies of both these witnesses i.e. PW-3 and PW-4, they have categorically stated that they went at the scene of offence voluntarily and not after hearing shouts of PW-2.

We also find from the oral testimony of PW-3 and PW-4, it was come on record that even PW-7 accompanied them to the SSG Hospital. We also find that there are material contradictions and improvements in the version of PW-2, the eye-witness and the first informant. We find that PW-2 has in his deposition stated that he had given details about the incident to the police officer at the hospital and that he had signed papers at the police chowki situated at the SSG Hospital and at the same time he had stated that he had given F.I.R. to Gajarawadi Police Chowki and also at his residence. We find that he has not stated that PW-7 accompanied them to the SSG Hospital in the rickshaw. Similarly, he has admitted the fact that the Appellant-accused as well as PW-2 is not concerned with the management of temple of Goga Pir. Even in the oral testimony of PW-3 he has stated that PW-7 accompanied PW-2 and PW-4 in the rickshaw to the SSG Hospital along with the deceased. However, no such statement is found in oral testimony of PW-2. PW-3 has, for the first time in the court stated that he was standing near his lorry when the incident occurred. Even though this witness has stated he accompanied other three eye-witnesses in the rickshaw along with the deceased and even though it has come on record the deceased was profusely bleeding his clothes were not blood stained. Similarly, even though PW-4 lifted the deceased his clothes were not blood stained. We also find that PW-4 has stated that his statement was taken by the police at the SSG Hospital the same is not part of the record. Thus, we find that there are material contradictions and improvements in the oral testimony of these eye-witnesses and, therefore, the same does not inspire confidence and no conviction can be made on the basis of the same.

In addition to this, all these three eye-witnesses have stated that they lifted the deceased and put him on the seat in the rickshaw. Apart from the fact that PW-3 and PW-4 have stated that PW-7 accompanied in the rickshaw, we find that even though it has come on record that the deceased was severely injured and his brain matter had come out because of the injuries sustained by him and was profusely bleeding, the clothes of these eye-witnesses have not been blood-stained. We also find that from the behaviour of PW-2 that even though Wadi Police Chowki is within a walkable distance of about 5 min. from the place of the alleged incident, he did not even inform the police immediately. Thus, inconsistency and contradictions in the oral testimonies of these three eye-witnesses create a cloud of doubt about veracity of their testimonies.

Similarly, the oral testimony of PW-7, who happens to be the neighbour of PW-2, also raises doubt. Even though PW-3 and PW-4 have stated that PW-7 accompanied them to the SSG Hospital when they took the deceased in the rickshaw as aforesaid, there is no other evidence to show that PW-7 was present. From the oral testimonies of PW-2 and other two eye-witnesses it is clearly born out that the police have not recorded any statements of PW-7 at SSG Hospital. According to the prosecution case, all four of them had accompanied the deceased in the rickshaw immediately after the occurrence. These circumstances also create doubt about the trustworthiness and veracity of all these four the eye-witnesses.

From the record it clearly transpires that the statements were recorded by police personnel at the police chowki of SSG Hospital. From the evidence of PW-12, Dr. Meena, who was on duty medical officer at SSG Hospital, it is borne out that she had given oral vardhi to PW-6, Zaverbhai Ambalal, Head Constable, as per the history given by PW-2. However, from the very tenor of the said vardhi it would be clear that minute and microscopic details of the incident is given in the form of vardhi, whereas PW-6 denies that any written instructions were given. PW-6 also does not say that the statements of PW-2, PW-3 and PW-4 were recorded at the police chowki of SSG Hospital. Even PW-2 has stated in his oral testimony that the police at SSG Hospital had recorded statements and in fact PW-2 has also stated that he signed certain documents. The prosecution has not brought on record any such documents nor the prosecution has rendered any explanation that no such version was given by PW-2, which can be treated as F.I.R. and has relied upon F.I.R. (Exh.50). It is also come on record that in fact the F.I.R. (Exh.50) was recorded at the house of PW-2 by PSI, Vasava on the next day i.e. 16.12.2002.

As discussed hereinabove, PSO, Panigate Police Station, Gajendrasin Harisinh, made an entry in the police diary on receiving vardhi (Exh.33) on telephone from PW-6, Zaverbhai Ambalal, Head Constable, from SSG Hospital. We find that he has also stated that F.I.R. was registered as per the details given by PSI, Vasava. From the evidence of the I.O. (Exh.52), we find that no time is mentioned. It is an admitted position that the exact time of lodging the complaint is also not mentioned in the F.I.R. We have also noticed that as per the oral testimony of PW-11, I.O., who investigated the offence from 18.12.2002, has clearly mentioned that F.I.R. (Exh.60) has been registered in connivance with the complainant. It is therefore, clear that the prosecution has given three different versions of the occurrence of crime. However, from the evidence on record it transpires that immediately after the occurrence, PW-2, along with other eye-witnesses, straightway went to the SSG Hospital in the rickshaw and the details were given at the SSG Hospital Police Chowki. Therefore, there is a reason to believe that even though the first information was lodged, as per the version given by PW-2 at the SSG Hospital Police Chowki, the same has not been placed on record. This circumstance also create doubt as to whether Exh.50 is the real F.I.R.? And the version given at the hospital on which the witness claims to have signed is not coming on record.

As stated aforesaid, the contradictions, omissions, in the oral testimonies of all the four eye-witnesses are not free from doubt. From their oral testimonies, on the contrary, we find that even their presence at the time when the deceased was assaulted is doubtful and benefit of the same would naturally go to the present Appellants. Similarly, as stated above, there is doubt about the first information and from the sequence of time as is borne out from the evidence on record what was recorded even, according PW-2, PW-3 and PW-4, who went to the SSG Hospital along with the deceased was given at the SSG Hospital Police Chowki does not find in the evidence and record and, therefore, it would not be safe to confirm the order of conviction on such veracity of the F.I.R. itself.

From the versions of eye-witnesses i.e. PW-2, PW-3 and PW-4 and even PW-7, the picture emerges is that they took the deceased in the auto rickshaw, which is a passenger vehicle meant for three persons. The description of the injuries caused upon the deceased and the condition in which he was taken to the SSG Hospital would establish the fact that in a small vehicle like rickshaw when such injured person is being carried in a sleeping posture it is impossible to believe that no clothes of PW-2, PW-3 and PW-4 were blood stained. Of course, PW-7 in his oral testimony has stated that some blood-stains were there on his clothes but the same have been washed out. This circumstance makes oral testimony of PW-2 and other the eye-witnesses unrealistic and untrustworthy.

The prosecution has not been able to link the present Appellants even on the basis of the serological report as no blood stains are found on the weapons allegedly used by the Appellants like swords and pipe. The prosecution has thus, not been able to prove the charges leveled against the Appellants to its hilt and the benefit of the same should accrue to the present Appellants. It may be noted that it has come on record that immediately after the incident 50-60 people had gathered at the scene of offence. However, the prosecution has not examined any such witnesses.

The sum total of the above discussion would be that the versions of the eye-witnesses create cloud of doubt upon their veracity, benefit of which would naturally go to the accused.

For the foregoing reasons, we allow the aforesaid appeals and acquit the Appellants-accused by giving them ''benefit of doubt''. The impugned judgment and order dated 26.07.2004, recording conviction and sentence of the Appellants by learned Additional Sessions Judge, Baroda in Sessions Case No. 61 of 2003, is hereby set aside. The Appellants are acquitted from the charges levelled against them. The Appellants be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded to them.