JITABHAINAYAKABHAIBARIYA v. STATE OF GUJARAT & 1

HONOURABLE MR.JUSTICE KS JHAVERI Date : 04/03/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI)

1.0 This appeal is directed against the judgement and order of conviction and sentence dated 25th January 2000 passed by the learned Additional Sessions Judge, Panchmahals at Godhra in Special Case No.244 of 1998, whereby the learned Additional Sessions Judge has convicted the appellants for the offence punishable under sections 302, 323, 324 and 114 of Indian Penal Code and ordered to undergo imprisonment for life and fine of Rs.500/-, in default, to undergo rigorous imprisonment for three months and convicted the appellants for the offence punishable under section 135 of the Bombay Police Act, and ordered the appellants to undergo rigorous imprisonment for six months and fine of Rs.250/-, in default, to suffer rigorous imprisonment for 15 days. It was further ordered that both the sentences should run concurrently.

2.0 The prosecution case, in short, are as under: CR.A/138/2000 JUDGMENT

2.1 On the date of the incident, when the victim and their neighbours were at their residence, they saw many persons armed with arrow, pipe, sticks, etc. coming from the opposite direction and therefore some of them tried to run away from there in order to escape from the crowd. Thereafter there was a free fight between the two groups i.e. the accused and others on one hand and the victim and others on the other hand. Both the groups were having arrows, pipes, sticks, etc. in their hands and as a result of the free fight between the group, three persons from the complainant’s side have received serious injuries, out of which one person has later on succumbed to the injuries. The other two injured persons were admitted in the hospital as indoor patients.

2.2 It is also the prosecution case that the members of the other group have also received injuries and they have been treated along with the persons of the complainant’s side.

2.3 In pursuance of the aforesaid free fight the complainant has lodged his complaint with Godhra Taluka Police Station which was registered as C.R. No.I 192 of 1998 for the alleged commission of offences punishable under sections 143, 147, 148, 149, 302 and 326 of IPC. Thereafter the investigation was CR.A/138/2000 JUDGMENT handed over to PSI Shri Bhavsar who has taken over the charge and started investigation.

2.4 In the meanwhile one of the injured succumbed to the injuries. Senior PSI Harsing Gulagsing Gadhvi took over the investigation. He has prepared inquest panchnama was prepared in the presence of Panchas and Marnotar form was filled up and dead body of the deceased was sent for postmortem and has also given yadi to other victim for treatment. Thereafter the investigating officer has recorded statements of various witnesses, went to the scene of offence, prepared panchnama of scene of offence in the presence of panchas, collected muddamal articles. Thereafter the investigating officer made a search for the accused and ultimately they were arrested after completing the formalities like arrest panchnama, etc. Thereafter muddamal has been seized at the instance of the accused hidden from the roof of the house of the accused.

2.5 After receiving the postmortem note, etc. the same were kept in the investigation file. At the end of investigation the investigating officer has submitted the chargesheet against 20 accused in the court of learned Metropolitan Magistrate. CR.A/138/2000 JUDGMENT

2.6 On receiving the chargesheet by the learned Judicial Magistrate, First Class, Godhra against the present appellants and other original accused for the offences under sections 143, 147, 148, 302, 323, 324, 326 and 504 of IPC, as the charges leveled against the accused were exclusively triable by the Sessions Court, the learned Judicial Magistrate, Godhra, has committed the same to the Sessions Court, Panchmahals at Godhra under the provisions of section 209 of CrPC. On receiving the same it has been numbered as Sessions Case No.244 of 1998 and the said case has been handed over to learned Additional Sessions Judge, Panchmahals at Godhra.

2.7 On production of accused, learned Additional Sessions Judge framed charges against the accused and the accused pleaded not guilty to the charges and prayed for trial. To prove the case against the accused the prosecution has examined 17 witnesses as under:

1. Nagarbhai (PW-1-Exh.48). 2. Mansukhbhaibhai (PW2-Exh.50) Shanabhai (PW3-Exh.51) 3. Sangitaben (PW4-Exh.52) 4. Abhesingbhai (PW5-Exh.53) 5. Raysing (PW6-Exh.54). 6. Pratapsing (PW6-Exh.54) 7. Kalyansing (PW8-Exh.67) 8. 9. Rajesh (PW-9-Exh.68) 10. Dr. Rohiniben (PW-10-Exh.69) CR.A/138/2000 JUDGMENT

11. Dr. Chandrahas 9PW 11 -Exh.71) 12. Dr. Rameshchandra (PW12-Exh.73) 13. Dr. Rameshchandra (PW12-Exh.73) 14. Haribhai (PW-14 Exh.77) 15. Chothabhai (PW15-Exh.79) 16. Harising (PW-16-Exh.80) 17. Radhuvirsinh (PW17-Exh.81)

2.8 The prosecution has also relied upon the following documents: 01 Complaint C.R. No.I 192/98 (Exh.49) 02 03 Panchnama of scene of offence (Exh.59) Panchnama of bloodstained clothes produced by the witness(Exh.60) Panchnama of bloodstained clothes of accused (Exh.61). Panchnama of clothes of accused Revabhai (Exh.62) Panchnama of Muddamal arrow (Exh.55) Inquest Panchnama (Exh.26) 04 05 06 07 08 Certificate of doctor of Jokhana Soma (Exh.72} 09 10 11 12 Map of scene of incident (Exh.63) 13 Certificate issued to Mansukhbhai Postmortem Note (Exh70) Arrest Memos of accused (Exh.27 to 46) Advertisement (Exh.47) Jesigbhai (Exh.76)

2.9 At the conclusion of trial the learned Additional Sessions Judge found the present appellants i.e. original accused nos.7, 9 and 11 respectively guilty of the charges under sections 302, 323, 324 and 114 of IPC and acquitted the other accused of the offences alleged against them.

2.10 On submission of closing pursis, learned Additional Sessions Judge has recorded further statement of accused CR.A/138/2000 JUDGMENT under section 313 of the Code of Criminal Procedure and after giving opportunity to the learned Advocates for the respective parties, the learned Additional Sessions Judge has delivered the judgement and convicted the appellants-accused as mentioned above which has given rise to the present appeal.

3.0 Mr.Bhavin Satwara Learned Advocate for the appellants submitted that the prosecution has not proved the case beyond reasonable doubt and therefore the appeal deserves to be allowed.

3.1 He submitted that even according to the prosecution it was a free fight and the conclusion of the trial court is based on merely surmises and without any cogent evidence. He has further submitted that there are serious lacuna in the case of prosecution and there is no clear evidence against the present appellants.

3.2 He has further submitted that there are serious omissions in the prosecution case and admittedly there are improvements in the evidence of the witnesses falsifying the case of the prosecution. He, therefore, submitted that the present appeal deserves to be allowed. CR.A/138/2000 JUDGMENT

4.0 Mr. H.L. Jani, learned APP for the State has opposed the appeal and stated that the prosecution has proved the case against the present appellants.

4.1 According to him the cause of from the medical report is proved and there is clear evidence on record against the present appellants.

4.2 He submitted that the fight was in view of the earlier dispute with regard to the land and therefore the prosecution has proved the case beyond reasonable doubt. He therefore submitted that the appeal deserves to be dismissed.

5.0 For the purpose of considering this appeal we have gone through the evidence of all the eye witnesses and carefully scrutinized the entire evidence on record including the impugned judgement. From the evidence of the witnesses, it is clearly evident that there are clear-cut improvements in the case of the prosecution. We have also noticed many material contradictions and omissions which would not inspire confidence in the prosecution case.

5.1 It is required to be noted that the medical evidence is also incomplete. The prosecution has not examined the doctor CR.A/138/2000 JUDGMENT who has treated the victim Bhavsing Soma. He is an important witness inasmuch as he is the person who had initially treated the victim who could have proved the injury certificate in respect of the victim. Therefore there is a serious omission in respect of the injury to the victim which affects the prosecution case.

5.2 It is also required to be noted that there is a serious omission regarding the fracture injury on the victim. We do not find any explanation in respect of this injury.

5.3 Another lacuna found in the evidence is to the effect that the injury as narrated by the doctor who has performed post mortem of the dead body is stick scar wound. However, no evidence is led by the prosecution as to whether the said injury has been possible by way of arrow or hard blunt substance. Therefore there is serious doubt about the injury which has not been proved by the prosecution.

5.4 The investigating officer Shri Harsing Gulabsing Gadhvi (PW16) has been examined at Exh.80. He has only stated that he has gone to the scene of offence and he has arrested the accused and recovered the weapons and thereafter transferred the same to the police station and the case was entrusted to PSI Shri Gadvi (PW17). Shri Ghadvi has been CR.A/138/2000 JUDGMENT examined by the prosecution and he has stated that he has only presented the chargesheet and nothing further has been done by him. This also casts a serious doubt on the prosecution case.

5.5 As per the finding of the Sessions Court, the appellant no.3 Punjabhai Nayakabhai inflected an arrow blow on the head of the deceased Bhavsingh Soma. However, this is not corroborated by other witnesses. The Medical evidence of the doctor who performed the postmortem is also not corroborated with the case of the complainant. It is also found that the prosecution has miserably failed to establish whether the incident has occurred near the field of the complainant or in the house of the complainant and in absence of certainty about the place of incident there is a serious doubt about the prosecution case.

5.6 Even the evidence with regard to the recovery of muddamal. According to the evidence on record some of the witnesses deposed that the muddamal arrow was lying on the roof of the complainant, whereas the other witnesses stated that the arrow was recovered from the house of the complainant. Therefore there are serious contradictions in respect of the recovery of muddamal and the prosecution has CR.A/138/2000 JUDGMENT not made any serious effort to prove recovery of the muddamal.

5.7 There is also another serious lapse on the part of the prosecution inasmuch as the muddamal weapons and other materials have not been sent for FSL report. The FSL report on these materials are vital evidence to connect the accused with the alleged crime. However, the prosecution has failed to carry out this formality which has also seriously affected the merits of the prosecution case.

5.8 From the evidence we also find that it was a free fight between the two groups. The prosecution has not successfully established the role of the present appellants in the free fight. There is nothing to point out as to who has inflicted stick blow to the victim. There is no evidence to establish role of any of the accused with particular weapon. Even according to the observation of the Sessions Court, it is a case of sudden fight and there was no preplan or conspiracy on the part of the appellants. However, the fact remains that in view of the medical evidence the death of victim is a homicidal death, which is not disputed even in the evidence. However, the alleged role played by the present appellants in respect of the injury caused to the victim is in serious dispute which has not CR.A/138/2000 JUDGMENT been proved by the prosecution beyond reasonable doubt.

5.9 Under the circumstances, we are of the opinion that, on the overall consideration of the evidence on record, at the most it can be said that the appellants can be said to have committed offence under section 325 or 326 of IPC. Therefore, in view of the aforesaid facts the appellants are required to be given benefit of doubt qua the offence under section 302 of IPC and at the most the appellants can be saddled with the offence under sections 325 and 326 of IPC. The appellants have already undergone sentence of nine years and therefore, we are of the view that the ends of justice would be met by modifying the impugned judgement and order of conviction and ordering the appellants to suffer imprisonment which they have already undergone.

5.10 We find that the case of prosecution is based on circumstantial evidence. From the facts of the case, the chain of evidence is not complete and therefore the benefit of doubt is required to be given tot he accused.

6.0 At this stage it is required to be noted a decision of this Court in the case of Chimanbhai Laljibhai V. State of Gujarat, reported in 2003(3) GLH 380, wherein it is held that CR.A/138/2000 JUDGMENT in absence of any evidence as to who gave the fatal blow and with what weapon and also in absence of common intention and common object accused persons are individually liable for causing injuries and conviction altered to one under section 325 of IPC. The ratio laid down in the said decision can be squarely applicable to the present case in view of the similarity of facts and circumstances.

6.1 In the case of Babu Ram & Ors Vs. State of Punjab, reported in JT 2008(2) SC 384, it is held that accused had right of private defence and the conviction under sections 302 and 34 of IPC was set aside. In that case the eye witnesses were closely related being brother and nephew of deceased, the incident was watched by number of persons, but none of them was examined and there was no explanation of juries on accused and defence witness.

7.0 In the premises aforesaid the appeal is partly allowed. Judgement and order of Conviction and sentence dated 25th January 2000 passed by learned Additional Sessions Judge, Panchmahals at Godhra in Sessions Case No.244 of 1998 are modified and the sentence already undergone by the appellants-accused is ordered to be treated as the sufficient sentence imposed on them. The appellants are, therefore, CR.A/138/2000 JUDGMENT ordered to be set at liberty forthwith, if not required in any other offence. [R.P. DHOLAKIA, J.] [K.S. JHAVERI, J.]