BHARVAD BHAGABHAI POPATBHAI v. STATE OF GUJARAT

5.(cid:9)At the hearing of this appeal, Mr.M.C. Barot learned counsel appearing for the appellant has submitted that the Trial Court has committed error in convicting the appellant for offences under Sections 333 and 323 of the Indian Penal Code. According to him the prosecution in the instant case has not been able to prove guilt of the appellant beyond reasonable doubt. He has further submitted that the complainant Asrafbhai Sulemanbhai as well as injured Nanjibhai Dalabhai have not supported the case of the prosecution. So far the evidence of Jethabhai Pamabhai is concerned, it does not inspire confidence and it is highly doubtful whether he would have at all seen the incident. It is therefore submitted by Mr.Barot that there is practically no evidence on record to show that it was the appellant who had committed this crime. Lastly, he has submitted that this appeal deserves to be allowed and the appellant is required to be acquitted.

5.1.(cid:9)As against that Mr.H.H. Patel, learned A.P.P. appearing for the respondent State has submitted that the judgment and orders of conviction and sentence passed by the Trial Court are just and proper, and there is no need to interfere with the same. According to Mr.Patel, there is clear evidence of the eye witnesses on record to show that it was the appellant who had caused injuries to Nanjibhai Dalabhai and Asrafbhai Sulemanbhai and for that he has been rightly convicted by the Trial Court for committing offences under Section 333 and Section 323 of the Indian Penal Code. He has further submitted that the appeal does not have any merit and it deserved to be dismissed.

5.2.(cid:9)The counsels have taken me through the record of the case and I have also perused the evidence to reappreciate it.

6.(cid:9)With a view to establish that Nanjibhai Dalabhai had received injury on the head, the prosecution has examined Dr.Ghanshyam Chaturbhai P.W.2 Exh.7. At the relevant time he was working as medical officer in the hospital at Surendranagar. He has stated in his evidence that on 26th July, 1988 at about 5.00 a.m. complainant Asrafbhai Sulemanbhai as well as Nanjibhai Dalabhai were brought to the hospital for treatment alongwith police yadi. On examining Nanjibhai Dalabhai, he had noticed one injury i.e. C.L.W. on the right frontal region of the size of 4 c.m. x 2 c.m. deep to bone. On palpation he suspected fracture of the Right frontal bone. He has stated that such injury could be caused by hard and blunt substance. He has further stated that in the evening of 26th July, 1988, he had also examined the appellant as he had sustained one injury on the left ear on the post surface on middle part of the size 1 c.m. x 1 c.m. and blood had got coagulated on that part. He has produced certificates with regard to the injury sustained by Nanjibhai as well as appellant at Exh.9 and 12 respectively. This witness on the same day had examined complainant Asrafbhai who had not suffered any external injury. He had complained pain in teeth. In the opinion of this witness such pain could be as a result of assault with hard and blunt substance. In the cross-examination, this witness has agreed to the suggestion made by the defence that Nanjibhai's injury could also be caused on account of stone throwing or due to falling on hard surface. Looking to the medical certificates produced on record as well as the oral testimony of this witness, it is very clear that on 26th July, 1988, Nanjibhai Dalabhai had sustained injury with hard and blunt substance on his head and complainant Asrafbhai Sulemanbhai had sustained injury on teeth. It is therefore safe to conclude that both these witnesses had received injuries in the incident which took place on that day.

6.1.(cid:9)The question now remains to be decided is whether it was the appellant who had caused these injuries to Nanjibhai Dalabhai and Asrafbhai Sulemanbhai.

6.2.(cid:9)With a view to establish this fact, the prosecution has examined three eye witnesses namely; (1) Asrafbhai Sulemanbhai P.W.1 Exh.5, (2) Nanjibhai Dalabhai P.W.3 Exh.13 and (3) Jethabhai Pamabhai P.W.4 Exh.14. Asrafbhai Sulemanbhai is the complainant in this case. He has stated that alongwith him, Nanjibhai Dalabhai and Jethabhai Pamabhai were discharging duty as home guard in the early morning of 26th July, 1988 in area called Rampura Darwaja. While they were on duty they heard a woman crying and, therefore all the three went there with a view to inquire as to what was happening there. This witness gave a shout inquiring who was crying inside the house. At that time many people had gathered there and on account of darkness the witness had switched on his torch. In response to the shout given by the witness, one person came out of the house. He was carrying stick with him. According to Asrafbhai Sulemanbhai he knew the person by face but he came to know about his name later on.

He has further submitted that the person came out and told them (homeguards) that it was his internal dispute and they should not interfere in the matter. He was very much agitated at that time. The witness has further stated that he gave two slaps to him, but he was not sure that it was the very same person who had given him slaps or someone else from the crowd had slapped him. He has further stated that Nanjibhai Dalabhai had received stick blow on his head, but he did not know who gave that stick blow to Nanjibhai Dalabhai. This witness was therefore declared hostile by the learned A.P.P. and with the permission of the Court he cross-examined the witness. In the cross-examination by the learned A.P.P. this witness has stated that he had stated in the complaint that the appellant had given him two slaps on the chick. He has further stated that Bhagabhai Popat i.e. the appellant had given stick blow to home guard Nanjibhai Dalabhai.

In the cross-examination by the defence this witness has stated that it was dark at the time of the incident and when he gave shout many people belonging to Bharwad community had come out. According to this witness he was unable to identify those persons. In the cross-examination he has further stated that it was his presumption that the person who came out from the house gave him two slaps, but he was not sure about it. He has also stated that he was not sure who gave stick blow to Nanjibhai Dalabhai.

6.3.(cid:9)Considering the fact that this witness has not at all supported the prosecution, his evidence is totally useless for the prosecution to prove its case against the appellant and no reliance can be placed on the evidence of this witness to base conviction of the appellant.

6.4.(cid:9)Nanjibhai Dalabhai P.W.3 Exh.13 is the person who had received injury on head in this incident. In the examination-in-chief, he has stated that while they were on duty they heard one woman crying and they went to the place to make inquiry. One person came out from the house. He did not know who that person was. As soon as that person came out he and the complainant started grappling with each other. According to this witness he was just watching the grappling between the two. He has further stated that after about 15-20 seconds somebody gave him stick blow on the head, as a result of which he fell down. This witness has also been declared hostile and cross-examined by the learned A.P.P. with the permission of the Court. In the cross-examination by the learned A.P.P., though he has stated that police had recorded his statement he has denied that the police had interrogated him about the incident. He has further stated that he had not stated before the police that the person who assaulted him with stick was Bharwad of Sayla named Bhojabhai Popatbhai. In cross-examination by the defence this witness has stated that at the time when the incident took place it was very dark. He has further stated that many persons of Bharwad community had gathered there and he had no idea who had caused him injuries. He has also stated in his cross-examination that Jethabhai Pamabhai and Dashrathbhai came to the place of incident only after the complainant Asrafbhai Sulemanbhai blew the whistle.

6.5.(cid:9)Like the complainant this witness has also not supported the prosecution and his evidence cannot be relied on for convicting the appellant.

6.6.(cid:9)Jethabhai Pamabhai P.W.4 Exh.14 is the third eye witness who has stated in his examination-in-chief that on hearing a woman crying they went to the place of incident where the complainant Asrafbhai Sulemanbhai, Nanjibhai Dalabhai were assaulted by the appellant with slaps and sticks respectively. In the cross-examination this witness has stated that it was very dark at the place of incident and many people had gathered there. He has further admitted that because of the darkness, he could not see people standing there.

6.7.(cid:9)Considering the evidence of this witness, it appears that though he has supported the prosecution case, his evidence is not free from doubt. This is because according to the evidence of Nanjibhai Dalabhai, the injured himself, Jethabhai Pamabhai came to the scene of offence only after the incident was over. Nanjibhai Dalabhai has very clearly stated that it was only when Asrafbhai Sulemanbhai blew whistle after receiving injury, Jethabhai and Dashrathbhai came to the spot. It is therefore, a matter of grave doubt whether Jethabhai was really present when the actual incident happened. Even assuming that he was present at the time of offence, according to the eye witnesses at the time of incident it was very dark. Jethabhai has even gone to the extent of saying that though many people had collected there, he could not see them on account of darkness. It is therefore very much doubtful whether this witness could have seen the appellant causing injury to Asrafbhai Sulemanbhai as well as Nanjibhai Dalabhai. It is also his evidence that the locality is inhabited persons belonging to the Bharwad community and at the time when the incident took place many persons belonging to that community had gathered there. The appellant also belongs to that community. It is a matter of common knowledge that because of the peculiar dress they put on even otherwise also it becomes difficult to distinguish one from the other. Moreover because of the pitch darkness at the place of incident also, the error on the part of Jethabhai in identifying the appellant cannot be ruled out, since the injured witnesses themselves were unable to identify their assailant. In view of these circumstances, it is difficult to believe that this witness namely Jethabhai Pamabhai could have identified the appellant as the assailant of Asrafbhai Sulemanbhai and Nanjibhai Dalabhai. In view thereof it is not possible for me to accept the evidence of this eye witness.

7.(cid:9)Except these three eye witnesses no other witness has been examined by the prosecution to narrate what had actually happened in the early morning of 26th July,

1988. Since there is no reliable evidence with regard to the author of the crime, in my opinion the conclusion reached by the Trial Court fixing the guilt on the appellant is erroneous and it is required to be set aside.