R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 592 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
ARJUNBHAI @ KALABHAI & 3 other(s)
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,4
MR. YOGENDRA THAKORE(3975) for the Opponent(s)/Respondent(s) No.
2,3
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 29/03/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE M. R. MENGDEY)
1. Present appeal has been filed by the State under the provision of Section Page 1 of 10 Downloaded on : Mon Apr 03 20:35:05 IST 2023 R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023 378 of the Code of Criminal Procedure challenging the judgment and order dated 10-02-1995 passed by learned Additional Sessions Judge, Nadiad in Session Case No. 222/1994.
2. At the outset it is required to be noted that pending the present Appeal, Respondent Nos. 1 and 4 having expired, the present appeal qua them has been ordered to have abated.
3. The facts and circumstances giving rise to the filing of the Aappeal are such that, on 15 December 1993, one Kantibhai Mathurbhai Solanki, registered a complaint with the Mahudha Police Station District Nadiad to the effect that, in the morning of 15 December 1993, when he and his partner Vishnuubhai Shakarabhai Vaghri were working in his farm, his wife Chanchalben had come to his field to serve tea to them. Thereafter, she went to the well of Jayantibhai to fetch water for them. At 10 O' Clock in the morning, his wife Chanchalben had left the field to go home. The way to her home is passed nearby the field of Arjunbhai Dahyabhai Solanki. Upon reaching the place of incident, his wife raised cries for help. Upon hearing the cries, he went to the place of incident and saw that Arjunbhai was inflicting dharia blows upon his wife and Raymanbhai and Amratbhai were instigating him to kill her. Upon the complainant reaching there, the three of them ran away from the place. Upon this, a complaint being I-CR No. 139 of 1993 was lodged before the Mahudha Police Station, Khedat at Nadiad for offences punishable under Sections 302, Page 2 of 10 Downloaded on : Mon Apr 03 20:35:05 IST 2023 R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023 504, 114 of IPC and Section 135 of the Bombay Police Act against the present respondents.
4. The investigating agency, after carrying out investigation into the offence, filed charge sheet against the respondents for the aforesaid offences with the court of learned Judicial Magistrate First Class, Nadiad.
5. Since the offences alleged against the respondents were exclusively triable by the court Sessions, the learned Judicial Magistrate First Class committed the proceedings to the Court of Session in view of the provision of Section 209 of Cr. P.C.
6. The learned Sessions Judge was pleased to frame charge against the respondents vide Ex. 2 for the offences punishable under Section 302 read with Section 114 and Section 201 read with Section 114 of IPC.
7. Since the respondents pleaded not guilty, they were put to trial by the learned Sessions Judge.
8. The prosecution had tendered oral as well as documentary evidence to bring home the charge against the respondents. The learned Sessions Judge after considering the evidence adduced on record, was pleased to acquit the respondents of the charges framed against them vide impugned judgment and order.
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9. Being aggrieved and dissatisfied with the same, the appellant State has preferred the present appeal.
10. Heard learned APP Ms. Jirga D Jhaveri for the appellant State. She submitted that the prosecution has examined as many as ten witnesses to prove the charge against the respondents. Two of these witnesses are the eye witnesses who have clearly stated the manner in which the alleged incident had taken place. There is nothing on record to discredit the depositions of these eye witnesses. She also submitted that the medical evidence on record also corroborated the version given by the eye witnesses and the case of prosecution. She submitted that the learned Sessions Court has not considered the evidence adduced by prosecution in the right perspective and has committed an error in acquitting the respondents of the charge. She therefore, submitted to allow the present appeal and quash and set aside the impugned judgment and order and convict the respondent no. 2 and 3 for the charges and punish them in accordance with law.
11. The Appeal is opposed by learned advocate Shri Yogendra M Thakore appearing for the respondents. He submitted that the depositions of the eye witnesses are not reliable as they are far from true. In fact, the complainant and his brothers had mortgaged their parcel of land with the Respondent No.1 and, with a view to avoid the repayment of the amount borrowed from him, the present false complaint has been lodged by the complainant. He also submitted Page 4 of 10 Downloaded on : Mon Apr 03 20:35:05 IST 2023 R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023 that there are material contradictions in the evidence of the prosecution, which are fatal to the case of prosecution. He therefore, submitted that the impugned judgment and order does not call for any interference at the hands of this court. He therefore submitted to dismiss the present Appeal.
12. Heard learned Advocates for the parties and perused the record. The case of prosecution rests on mainly two witnesses namely, (1) Kantibhai Mathurbhai Solanki, who happens to be the husband of the deceased Chanchalben and also the first informant and (2) Kailasben Raijibhai Solanki. Both these witnesses, as per the prosecution, are the eyewitnesses to the incident. Kantibhai Mathurbhai Solanki has been examined vide Ex. 11 before the learned Sessions Judge. In his examination-in-chief, he has stated that, on the fateful day, he and Vishnubhai were working in his farm. At 9 O' Clock in the morning, his deceased wife Chanchalben came to the farm and went to fetch water to the well of Jayantibhai and came back to the farm, and thereafter, left for home with fodder. She must have reached around three farms away when he heard her cries for help, and therefore, he rushed to the spot and saw that Arjun was giving dharia blows to his wife and, Raymanbhai and Amrutbhai were also present on the spot, and they were instigating Arjun to kill his deceased wife. Chanchalben had sustained injuries on her jaw, hand and palm. The incident took place on the kachha road near well of Arjunbhai. Upon plain reading of this deposition, it appears that the incident in question had happened at least three farms away from the place where this witness was Page 5 of 10 Downloaded on : Mon Apr 03 20:35:05 IST 2023 R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023 present. This witness has been cross examined in detail on this aspect. The witness in his cross examination, more particularly in para 10, has stated that the farm of Rasikbhai is to the west of the well of Arjunbhai. The farm of Rasikbhai is admeasuring 12 bighas and two farms of Ramanbhai are adjacent to the farm of Rasikbhai. He also admits that his farm is to the South of the farm of Rasikbhai after 3 or 4 farms. He also admits that the road from his farm to the place of incident is zig-zag and there are trees on the sides of the road. Considering the aforesaid facts, it appears that this witness was at quite a distance from the place of incident at the time of incident. The deceased must have been assaulted when she raised cries for help and, upon hearing these cries, the witness had rushed to the place. At the first place, it is also doubtful that the witness would have heard the voice of the deceased from this far and secondly, it is hard to believe that, upon being assaulted, the deceased raised cries for help and the assailants waited at the scene till this witness reached the place of incident. The witness in his cross examination also states that when he reached the place of incident, the deceased had fallen down, she was injured and was bleeding profusely. That means, when this witness reached the place of incident, the incident was already over, and therefore, there was no question for this witness having seen the incident as per his claim.
13. The witness has stated in his deposition that one month prior to the incident, Arjun had tried to molest the deceased. He had intervened at that time and Arjun was made to apologise in front of the village people, and therefore, Page 6 of 10 Downloaded on : Mon Apr 03 20:35:05 IST 2023 R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023 he had an axe to grind against the deceased, and therefore, he had killed the deceased. Upon perusal of the FIR lodged by this witness, there is no reference to any such incident in the FIR. This raises serious doubts about the motive sought to be attributed to the incident by the prosecution.
14. The witness has also been cross examined on the aspect of his land being mortgaged with Arjun. On the first breath, the witness denies this fact, but upon being shown the mortgage deed, he admits that he and his brothers had borrowed money from Arjun and had mortgaged their land in return with Arjun. This indicates that this witness has a tendency to lie. This also makes the story of the defence that since the first informant and his brothers did not want to repay the amount borrowed by them from Arjun, a false complaint was filed. It has also come on record that the first informant and his brother owed money to Arjun towards water charges which were not paid by them for long. Apart from this, there are several other contradictions between the deposition of this witness and the FIR lodged by him. These contradictions have been duly proved by the defence. These contradictions are material and go to the root of the case of prosecution. Considering all these aspects as regards deposition of this witness, there is serious doubt about the trustworthiness and truthfulness of this witness, and therefore, it would not be safe to convict the Respondents on the basis of deposition of this witness.
15. Another eye witness sought to be relied upon by prosecution is Page 7 of 10 Downloaded on : Mon Apr 03 20:35:05 IST 2023 R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023 Kailasben Raijibhai Solanki. As per the case of prosecution, she was approaching the place of incident when the deceased was being assaulted by the respondents. The witness states that the incident had taken place near the tank. Arjun had inflicted 10 to 12 dharia blows upon the deceased who was her aunt. There is no reference to the presence of this witness in the FIR. Therefore, she appears to be a got up witness. Upon perusal of cross examination of this witness it appears that what is stated by this witness in her examination-in-chief is highly unreliable.
16. As per the case of prosecution, there were two other eyewitnesses to the incident namely Vishnubhai and Lakshmiben. They have not been examined for the reasons best known to the prosecution. Vishnubhai, who was working in the field with the first informant, also has not been examined.
17. It is emerging from record that there were other fields adjacent to the place of incident and people were working in those fields at the time of incident. Therefore, if the deceased had raised cries for help, they would have been the first persons to hear the same and to reach the place of incident. As per the case of prosecution, it was the witness Kantibhai who was at a distance from the place of incident, reached the place first. This also appears to be highly improbable. Secondly, there is no investigation carried out as regards the fact as to whether the persons working in the adjacent fields had witnessed the incident or not. This raises serious doubts about the manner in which Page 8 of 10 Downloaded on : Mon Apr 03 20:35:05 IST 2023 R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023 investigation has been carried out.
18. Another aspect which creates doubt about the case of prosecution is with regard to registration of FIR. The first informant Kantibhai states in his deposition that he had lodged the FIR in the Mahudha Police Station and after the FIR was recorded, the Jamadar had come to the police station. Whereas, witness no. 10 Mahendrasinh Raol who is the Investigating Officer, states in his deposition Ex. 36 that upon receipt of information about the incident, he had rushed to the place of incident after making an entry in this regard in the Police Station Diary. The husband of the deceased i.e Kantibhai was present there and his FIR was recorded in his presence. The FIR which is produced on record is recorded in the presence of this witness which is recorded at the place of incident. The complaint, which was lodged by Kantibhai in the police station, is not produced on record. It is also pertinent to note that witness Kantibhai states in his deposition that after he lodged his complaint in the police station, the police had come to the place of incident. Therefore, the complaint lodged by him in the police station attains significance, but, unfortunately, the same is not produced on record. It is also required to be noted that as per the provision of Section 157 of Cr.P.C, after the offence is registered, it is mandatory to forward the FIR to the concerned Magistrate immediately. In the present case, the FIR has been forwarded to the Magistrate on the next day. This also raises serious doubts about the case of prosecution. Page 9 of 10 Downloaded on : Mon Apr 03 20:35:05 IST 2023
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19. As per the case of prosecution, the role attributed to Respondent no. 4 is of harbouring the other accused. However, upon considering the evidence of prosecution in its entirety, there is no iota of evidence in this regard.
20. Thus, there are several loopholes in the evidence adduced on record by prosecution which seriously dent the case of prosecution and render the evidence highly unreliable. Therefore, the learned Additional Sessions Judge, Kheda does not appear to have committed any error in acquitting the Respondents of the charges. The present appeal, therefore, being devoid of any merit, is hereby dismissed. Bail bond stands cancelled.
(A.Y. KOGJE, J) (M. R. MENGDEY,J) J.N.W Page 10 of 10 Downloaded on : Mon Apr 03 20:35:05 IST 2023