Gujarat High Court

State Of Gujarat vs Lallubhai Jivabhai Bajaniya on 29 January, 2025

Author: A.Y. Kogje

Bench: A.Y. Kogje, Samir J. Dave

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                             R/CR.A/799/2001                                       JUDGMENT DATED: 29/01/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/CRIMINAL APPEAL NO. 799 of 2001


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE A.Y. KOGJE

                       and

                       HONOURABLE MR. JUSTICE SAMIR J. DAVE
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                                    Approved for Reporting                        Yes           No

                       ================================================================
                                                       STATE OF GUJARAT
                                                             Versus
                                                  LALLUBHAI JIVABHAI BAJANIYA
                       ================================================================
                       Appearance:
                       MR LB DABHI, APP for the Appellant(s) No. 1
                       MR PRATIK B BAROT(3711) for the Opponent(s)/Respondent(s) No. 1
                       ================================================================

                         CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
                               and
                               HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                                              Date : 29/01/2025


                                                             ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. The present appeal is preferred by the State against the

judgment and order of acquittal dated 07.07.2001 passed by the

Additional Sessions Judge, Sabarkantha at Himmatnagar in Session

Case No.89 of 2000. By the impugned judgment and order, the

Sessions Court acquitted the respondent-accused for the offences

under Sections 302 of the Indian Penal Code.

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2. It is the case arising out of an incident, where on

19.03.2000 was "Holi" festival and at 07;00 pm, complainant

Gangaben and husband Pratapbhai were at home. At that time,

respondent-accused Lallu Bajaniya and his wife were quarreling.

Therefore, complainant and her deceased-husband went for

intervention. At that time, Lallu was having knife in his hand and

was going to give blow to his wife. At that time, husband of the

complainant intervened. The respondent-accused gave knife blows

on the stomach of husband of the complainant and thereafter

respondent-accused ran away. Thereafter, the complainant took

her deceased-husband to a private hospital in a rickshaw at

Khedbrahma and thereafter, took her to Himmatnagar Civil

Hospital for further treatment, where during treatment, he was

declared dead. In this connection, complainant filed complaint on

21.03.2000 at Himmatnagar Town Police Station.

3. Learned APP for the appellant-State submitted that it is

a case where the respondent-accused and his wife were quarreling

and at that time, deceased-husband of the complainant intervened,

during which the respondent-accused gave knife blows on the

stomach of the deceased, due to which he succumbed to death

during treatment. This incident is eye-witnessed by complainant-

Gangaben, PW No.1, Exh.10, who was very much present during

the incident.

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3.1 It is submitted that son of the deceased-Nareshbhai,

PW No.2, Exh.12 was also present at the time of incident and in his

deposition also, he has narrated that when his deceased-father

intervened, the respondent-accused gave serious knife blows on the

left side of stomach.

3.2 It is submitted that medical evidence in the form of

postmortem report and FSL report have also supported case of

prosecution that death is caused due to serious blows on the

stomach. Moreover, muddamal article knife was also discovered at

the instance of the respondent-accused, which is clearly

established by the discovery panchnama.

3.3 It is submitted that blood found on the muddamal

article knife and cloths of the deceased belonged to the same

group. This aspect is also not considered by the trial Court.

4. As against this, learned Advocate for the respondent-

accused submitted that for an occurrence and in an incident taking

place on 19.03.2000, there is a delay of 3 days in filing of the FIR

by PW-1 i.e. wife of the deceased not offering plausible explanation

for the delay occasioned and having a crucial bearing to the case

on hand. It is submitted that PW-1 (Exh.10) i.e. wife of the

deceased and a solitary eye-witness to the case, she of course in

her chief-examination stated about knife injury inflicted by the

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respondent - orig. accused on the deceased whereafter, her son i.e.

PW-2 reaching the spot of occurrence. According to her evidence,

deceased was immediately after the occurrence taken to a clinic of

Dr. Jani and is a first treating doctor after which he was shifted to

Civil Hospital, Himmatnagar, an operation was conducted and

during treatment, he passed away. It is submitted that in her very

initial medical history given to Dr.Jani, she has stated that the

deceased sustained injuries while he fell down from a tractor and a

nail hit him, which is a very crucial disclosure not coming on record

vis-à-vis no reason coming forth as to why PW-1 was required to

give such incorrect medical history if it is an assault by respondent

- orig. accused.

4.1 It is submitted that as regard Investigating Officer

examined as PW-6 (Exh.22) and confronting him to the 161 CRPC

Police statement of PW-1 has not stated of her reaching to a house

of respondent - orig. accused on hearing screaming, making her an

unreliable witness on two counts, firstly, an initial disclosure of

deceased sustaining a nail injury while falling from a tractor and a

material omission in a Police statement dislodging her claim as an

eye-witness to the case. It is submitted that testing the claim of

PW-1 through testimony of her son, namely, Nareshbhai examined

as PW-2, he, in his own testimony, goes to depose as to on

screaming done by his mother, he is reaching the spot of

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occurrence and only noticing presence of his mother (PW-1) and his

father (deceased), minus any remote reference of presence of

respondent - orig. accused, is also a part of his evidence suggestive

of PW-1 suppressing actual genesis of the crime by unnecessarily

dragging respondent - orig. accused to face a trial of Section 302

of IPC for reasons best known to her bearing in mind the initial

disclosure and a medical history before one Dr. Jani.

4.2 It is submitted that PW-1-complainant cannot be said to

be wholly reliable and if she is not wholly unreliable and is falling

into a third category of witnesses neither wholly reliable nor wholly

unreliable, the Court has to be circumspect and has to look for

corroboration in material particulars by reliable testimony, direct

or circumstantial, resultantly, the counter is that there is no

corroboration to the testimony of PW-1 in material particulars

either from his own son i.e. PW-2 nor from any other direct or

indirect sources, which would include the other peripherial

evidence in form of medical evidence, FSL and Serological reports

as also recovery and discovery of the weapon allegedly used and a

consequential evidence of a panch witness in that regard.

4.3 It is submitted that PW-2 (Exh.12) and a corroboration

sought from him as to he also having reached the scene of

occurrence in time and witnessing the actual incident but he

himself is candid enough about his mother having screamed,

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witnesses reaching the house of respondent - orig. accused, vis-à-

vis as soon as he reached the house, respondent - orig. accused ran

away by then. It is submitted that PW-1 on the other hand in her

chief-examination also confirms about after the knife injury was

inflicted on the abdomen of the deceased that her son (PW-2) had

reached the scene of occurrence, so therefore, evidence of PW-2 is

in no way corroboration to testimony of PW-1 on material

particulars except for deceased being taken to a clinic of Dr. Jani is

where he remains consistent. Over and above, the evidence of PW-

2 not offering any corroboration, although there is a finding of 'B'

blood group on the knife discovered, the fact that both the panchas

of a discovery panchnama Exh.19 in form of PW-4 and 5 have not

supported the case of prosecution and are declared hostile, the fact

that there is no blood found over the clothes of the respondent -

accused even the FSL and Serological Reports vide Exh.30

respectively on page-73 and 76 of the Paper-Book and 'B' blood

group found over the knife allegedly used carry no significance in

the eyes of law, supplementing the case of prosecution as one piece

of corroboration in a case like present.

4.4 It is submitted that according to the consistent case of

prosecution as is coming out in the versions of PW-1 and PW-2 i.e.

wife and son of the deceased about deceased being initially taken

to private clinic of one Dr. Jani, as looking to an initial medical

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history and the manner in which deceased had sustained injury

unfortunately, for the prosecution and fortunately for the defence,

neither that Dr. Jani is examined nor that particular medical history

has come on record except for the document vide Exh.50 and some

reference about an accidental death entry registered. Therefore,

due to non-examination of Dr.Jani, an adverse inference is rightly

drawn against the prosecution and in favour of the defence.

4.5 It is submitted that the respondent-accused when is

very candid and clear about his non-presence and non-participation

in the incident in question coupled with the overall complexion of

the prosecution case, he is rightly accorded a judgment of acquittal

tilting in his favour.

5. Having heard learned Advocates for the parties and

having perused documents on record, it appears that to prove the

case against the respondents-accused, the prosecution relied upon

following oral evidence:-

Sr. Name of the witness Exh.
No. No.
1 Deposition of Gangaben Pratapbhai Thakarada 10
2 Deposition of Nareshbhai Pratapbhai Thakarada 12

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5.1 The prosecution also relied upon following

documentary evidence:-

Sr. Particular Exh.
No. No.
1 Yadi sent to Medical Officer for giving cause of death 15
certificate
2 Police report sent to Medical Officer for inquiring 16
about cause of death

6. The charge, Exh.4 came to be framed as under:-

"On 19/03/2000, at about 19:00 hours, you the accused and your wife Gangaben Lallubhai were having a quarrel. At that time, the complainant Gangaben Pratapbhai and deceased Pratapbhai Versingbhai interfered to rescue. At that time, you the accused got angry with the deceased witness Pratapbhai and inflicted a blow with a knife to him on his stomach, pursuant to which, he died at 17:10 hours on 20/03/2000 when he was under treatment and therefore, with such an act, you the accused have committed an offense punishable under Section 302 of

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Indian Penal Code."

7. The prosecution has relied upon the evidence of

Medical Officer-Dr.Dhaneshkumar Baroliya, PW No.3, Exh.13, who

has performed postmortem. In his deposition, he has described

three injuries by sharp cutting weapon. This witness has opined

that the injuries could be caused by the muddamal article. At the

same time, in his cross-exmaination, he has also opined that injury

No.1 could be caused by any sharp cutting weapon other than the

muddamal article and injury No.1 in itself is not sufficient to cause

death. The Court has also observed that while describing injuries

in his deposition, he has referred to the first injury which is

showing that stitches were taken on injury No.1 indicating previous

treatment.

7.1 The aforesaid description of injury No.1, where stitches

are reflected, has reference to the version of the prosecution which

is coming out in the FIR itself that the injury was caused to the

deceased on account of fall from the tractor on the nail laying on

the ground.

8. The Court may elaborate on this point by referring to

the evidence of the complainant-PW No.1-Gangaben, Exh.10, who

is the sole eyewitness on whose deposition, entire case of the

prosecution is relied. In her evidence in chief, she does refer to

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visit to one Dr.Jani immediately upon injury sustained by the

deceased before taking him to Civil Hospital at Himmatnagar. In

the cross-examination, the defence has put her question regarding

description of injury and the manner in which injury was caused to

said Dr.Jani and this witness has responded that before Dr.Jani, she

had stated that the deceased had fallen from tractor on nail.

However, has clarified that it was on the say of said Dr.Jani she had

introduced this in her deposition and FIR as said Dr.Jani told her

that he will proceed for the treatment only if this aspect is recorded

in the medical case papers. At the same time, the Court may also

refer to the FIR Exh.23 through PW No.6-Manubhai Mohanbhai

Brahmbhatt, Exh.22, who was the ASI and had recorded complaint

of PW No.1 In the FIR also, it is clearly narrated that the injury

was sustained by her husband on account of fall from the tractor on

a nail.

9. The Court may thereafter refer to the evidence of PSI

Jagatsinh Rathod-PW No.7, Exh.28, who was the Investigation

Officer. This witness in his cross-examination, has stated that

during the course of investigation, it had come on record that the

primary treatment was given at Dr.Jani's hospital and in this

connection, he had also recorded statement of Dr.Jani and during

recording of such statement, Dr.Jani had stated that the injury was

caused on account of fall from the tractor on the nail lying on the

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ground. The evidence which has come on record by the

prosecution itself proposes two theories, firstly as is stated by the

PW No.1-wife of the deceased pertaining to assault by knife and

second being injury sustained from the fall from the tractor on the

nail. As both the versions are coming out from the evidence of PW

No.1 herself, as submitted by learned Advocate for the respondent,

PW No.1-complainant would fall in the category of partly reliable

and partly unreliable witness and in that eventuality, corroboration

of the evidence of PW No.1 is must.

10. For the purpose of such corroboration, the prosecution

has relied upon evidence of PW No.2-Nareshbhai Thakarada,

Exh.22, who is son of the deceased. However, perusal of evidence

in chief of this witness would indicate that he is not an eyewitness

to the incident. In his deposition, itself, he has indicated that upon

hearing commotion and shouts of his mother, he rushed towards

the residence of the respondent-accused and found accused had

caused knife injuries to his father. In the very next sentence, he

has deposed that when the witness reached the place of incident,

the respondent-accused had already escaped. This itself is

suggestive that this witness is not an eyewitness, but had followed

the version given by his mother-PW No.1. In the cross-examination

also, he has deposed that upon hearing shouts from his mother,

when he reached the place, there was only his mother and injured

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father at the place of incident.

11. In the opinion of the Court, version of PW No.2 is

driven by the version of PW No.1 herself and PW No.2 does not

appear to be an eyewitness, who can independently corroborate the

version of PW No.1. The other corroboration is in the form of

discovery panchnama, which is exhibited vide Exh.19. However,

for exhibiting discovery panchnama, PW No.4-Babubhai Dabhi,

Exh.18 has been examined and other witness being Babubhai

Panchal-PW No.5, Exh.21. Both these witnesses have not

supported the case of prosecution and have been declared hostile.

After being declared hostile also, the prosecution is unable to elicit

any further fact in support of execution of the discovery

panchnama.

12. The Court would now consider deposition of the

Investigation Officer, PSI Jagatsinh Rathod-PW No.7, Exh.28. In his

deposition, he has merely referred to the execution of the discovery

panchnama with the aid of two panch witnesses at 10;30 am on

24.03.2000, but has nowhere narrated the contents of the

panchnama and therefore as is held by the Apex Court in case of

Rajesh & Anr. Vs. State of Madhya Pradesh, reported in 2023

(15) SCC, 521, the discovery panchnama cannot be said to have

been established on the basis of the deposition of the IO on account

of the panch witness themselves having been declared hostile. In

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the opinion of the Court, the discovery panchnma purportedly

under Section 27 of the Indian Evidence Act cannot be treated as

corroboration to the version of the sole eyewitness.

13. Lastly, the Court has also taken into consideration

failure on the part of the prosecution to examine Dr.Jani, who was

the first treating Doctor and the fact that in view of version of the

Medical Officer, who had performed postmortem, it had come on

record that while performing postmortem, he had noticed that

injury No.1 had stitches on it, indicating surgical intervention by

Dr.Jani. In the opinion of the Court, as the version which was

conveyed to Dr.Jani was the first in point of time, he became

material witness. However, the prosecution having failed to

examine him as a witness, in the opinion of the Court, would be

fatal to the case of prosecution.

14. The Court may refer to the decision of the Apex Court

in case of Takhaji Hiraji Vs. Thakore Kubersing Chamansing

& Ors., reported in (2001) 6 SCC, 145 in this regard. In para-19,

the Apex Court has held as under:-

"19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, which would unfold the genesis of the incident or an essential

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part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident

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and did not participate therein. The injuries sustained by these witnesses are not just minor and certainly not self-inflicted. None of the witnesses had a previous enmity with any of the accused persons and there is apparently no reason why they would tell a lie. The genesis of the incident is brought out by these witnesses. In fact, the presence of the prosecution party and the accused persons in the chowk of the village is not disputed. How the vanity of Thakores was hurt leading into a heated verbal exchange is also not in dispute. Then followed the assault. If the place of the incident was the chowk then it was a sudden and not pre-meditated fight between the two parties. If the accused persons had reached their houses and the members of the prosecution party had followed them and opened the assault near the house of the accused persons then it could probably be held to be a case of self-defence of the accused persons in which case non- explanation of the injuries sustained by the accused persons would have assumed significance. The learned Sessions Judge has on appreciation of oral and circumstantial evidence inferred that the place of the incident was the chowk and not a place near the houses of the accused persons. Nothing more could have been revealed by other village people or the party of tight rope dance performers. The evidence available on record shows and that appears to be very natural, that as soon as the melee ensued all the village people and tight rope dance performers took to their heels. They could not have seen the entire incident. The learned Sessions Judge has minutely scrutinised the statements

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of all the eye-witnesses and found them consistent and reliable. The High Court made no effort at scrutinising and analysing the ocular testimony so as to doubt, if at all, the correctness of the several findings arrived at by the Sessions Court. With the assistance of the learned counsel for the parties we have gone through the evidence adduced and on our independent appreciation we find the eye-witnesses consistent and reliable in their narration of the incident. In our opinion non- examination of other witnesses does not cast any infirmity in the prosecution case."