Babu Nagar Vadhiyara Vaghri and Others vs State of Gujarat

Bhagwati Prasad, J.—The present appeal is filed against the judgement and order dated 5.5.2003 passed by the learned Additional Sessions Judge, Fast Track Court, Kutch-Bhuj , in Sessions Case No. 60 of 2000. The learned trial Judge by the aforesaid judgement convicted the accused under Sections 302/149 of the Indian Penal Code and sentenced them to life imprisonment and fine of Rs. 1000, in dafault of payment of fine, rigorous imprisonment for two months.

The case of the prosecution as set out in the First Information Report by Chandu Vershi is that when he came to the vegetable market for selling the vegetable at about 6.15 a.m. on 24.5.2000 at that time he found that deceased Dhanji also came and he was getting down from rickshaw and his son Vinod was also coming. At that time, according to the complainant in F.I.R. accused Nos. 1, 2 and 3 came out from vegetable market with knives in their hands and attacked Dhanji. All of them caused injuries. It was also alleged in the FIR that accused Nos. 4 to 6 who were selling vegetables also came there with knives and caused injury on Vinod. Since Dhanji and Vinod both were injured and bleeding profusely, the complainant Chandu and Babiben removed both of them to hospital in rickshaw. It was further averred in the complaint that on the way Vinod died in rickshaw. Dhanji was conscious. After reaching hospital Dhanji was removed to operation theatre. There he also died. On such report, investigation of the case started. This report was taken by the Investigation Officer, Shri Chauhan, at the hospital.

The Investigation Officer in his statement has stated that at about 6.00 a.m. on 24.5.2000 PSO Anopsinh who was at the outpost has informed him on telephone at his residence that at Bazaar Chhavdi a mara mari had taken place. A mobile van was sent there and the injured are also stated to have been removed to the hospital. Thereupon, the Investigating Officer reached the hospital and he recorded complaint of Chandu. The same was read over to him and got his signature on it. The same was sent with yadi to the PSO and he started the investigation. Mamlatdar and Deputy Superintendent of Police also arrived at the hospital. He requested the Mamlatdar to conduct the inquest but he was instructed to conduct the same himself. He drew the panchnama and inquest report.

Thereafter, the Investigating Officer went to the place of incident near Chhavdi Bazaar. He found that there was blood at two places, at Chhavdi Bazaar and Danda Bazaar naka and that is known as Madh Falia. From Madh Falia he also seized a knofe and gupti. The Investigating Officer stated that he recorded the statements of the witnesses who were available near the place of incident. However, in his cross examination he has categorically stated that until noon he could not come across any witness who has seen the incident or was knowing anything about the incident. He has admitted that during the period he was conducting investigation right from his presence at the hospital to the market he had not recorded the statement of Babiben, Raju - son of deceased Dhanji, Hira Jina, Janmohmed or Kanji. Subsequently, at the trial all these persons have been projected as eye witnesses.

During the investigation, it has come that two places from where the blood has been recovered is at a distance of 750 ft. i.e. Bazaar Chhavdi and Modh Falia. Thus from the case as set up by the complainant in the FIR the incident had taken place at one place whereas in the investigation it has come out that it had happened at two places. Later on the story as developed by the prosecution was that both the injured who later on died, were taken in two different rickshaws. The prosecution story as crystallized in the testimony of the witness is that accused Nos. 1, 2 and 3 attacked Dhanji at vegetable market gate whereas Vinod has been attacked at Madh Falia by accused Nos. 4 to 6. Such kind of detailed description is not available in the complaint.

Learned Counsel for the appellant criticizing the prosecution case submitted that Chandu, the complainant and first eye witness of the occurrence has not supported the prosecution case and has turned hostile. In his FIR two important factors have come which has not been later on developed by the prosecution i.e. that the incident took place at Chhavdi Bazaar only and there was no reference of Madh Falia at a distance of 750 ft. and both the deceased were taken in one rickshaw. Another omission in the FIR is that name of none of the 5 eye witnesses who have been produced by the prosecution has been mentioned in the FIR as eye witnesses. The only name mentioned in the FIR is that Babiben as one of the carriers of the deceased.

Learned Counsel for the appellant further developed his arguments that the prosecution case gets demolished by the fact that the eye witnesses were not speaking truth. They have narrated the version on hearsay and without seeing it. To substantiate his argument, he submitted that the blood group of Dhanji is `O''. Blood group of Vinod is `B''. Blood group found at vegetable market has been `B'' group and that of Modh Falia is `O'' group. This conclusively indicates that Vinod was assaulted at vegetable market and Dhanji was attacked at Modh Falia. This reverses the entire prosecution case. According to the learned Counsel for the appellants this circumstances knocks the bottom of the prosecution case.

Another circumstances which the learned Counsel for the appellants brought to the notice of the Court is that the prosecution developed a story that Chandu brought Dhanji to the hospital and Babiben brought Vinod to the hospital. When the cloth of Chandu was examined for the blood present on it, Chandu''s T-shirt contained stains of blood group `B'' and in that background this stands to corroborate the version given in the F.I.R. From the eye witnesses'' account according to the learned Counsel for the appellants, Talwar like gupti was recovered from Modh Falia, the place according to the eye witnesses where Vinod was attacked but this gupti was found bloodstained with `O'' group and not `B'' group of blood of Vinod. Significantly, another point made by the learned Counsel for the appellant was that accused No. 3 Govind who is said to be the assailant of Dhanji has bloodstains group `B'' on his clothes. He could not be the assailant of Dhanji because Dhanji''s blood group is `O''. Blood group `B'' could not have been found on his person. He further stresses that though it has come in the arrest memo that Govind found with some minor injuries but it is not the prosecution case that Govind sustained any injury during the course of incident. It is also pointed out by the learned Counsel for the appellant that Hiralal accused has blood group `O'' on his shirt whereas he has been shown to be the assailant of Vinod who had blood group `B''. This eye witness account is falsified by the circumstantial evidence and runs in contradiction with the explanation given by the Investigating Officer that until afternoon no eye witness who had seen the incident was coming forward and the statements of the alleged eye witnesses were either recorded in the evening or next morning. The learned Counsel for the appellant has further drawn attention the attention of the Court to the fact that the story of the prosecution that both the deceased were taken in two different rickshaws according to the eye witnesses does not stand to the reason and what stands out prominently is that shirt worn by deceased Dhanji whose blood group is `O'' is also seen with stains of blood group `B''. This circumstance indicates that the story as given by Chandu in the FIR is correct and he having not supported the prosecuction case, the story cannot be believed. Further Govind, accused No. 3, had blood group `B'' stains on his person. His cloth has stains of Dhanji''s group. Thus, the prosecution has tried to make out a case which had not been set up initially in the FIR and instead a story has been sought to be created in the background where eye witnesses were not available but circumstantial evidence in the nature of presence of the blood group totally negates the prosecution story.

Raju who has not been named as eye witness in FIR and if he would have been present he would have definitely met with the result of his father. His claim that he took Vinod to the hospital in rickshaw could have been supported by the fact that his cloth should have been stains with blood group `B'' which attempt has been made by the prosecution but when the muddamal was shown to this witness in Court, he failed to identify the cloth and this shows the investigation is unfair and has tried to introduce circumstantial evidence.

Babiben is the only witness out of the witnesses named in the FIR but not an eye witness and in that way she has grudge to depose against the accused persons as there is already a litigation pending in between she and the deceased Dhanji. Thus Babiben as witness cannot be relied. Apart from the aforesaid reasons the witness Raju states that he came with his father Dhanji in rickshaw which is not the story given by Chandu. Then he states that Vinod came by cycle. This cycle is not found to be anywhere. This witness was examined in the evening. Ricksahwala was not examined immediately. The rickshaw with blood was also not seized.

The witness Hira Jina was examined on the next day so also Kanji. Strangly witness Janmohmed has been produced who speaks that the deceased Dhanji and Vinod came in one rickshaw an entire new version of the prosecution story whereas Babiben said Raju came in rickshaw. This witness having deposed parrot like story in the lines of the eye witnesses has turned hostile in his subsequent examination after amendment of the charge.

The learned Counsel for the appellants further stressed that Anopsinh, PSO, who first informed the Investigating Officer about the incident, has not been examined. The investigation has not been taken place on those lines. Police outpost being situated there, no entry has been posted or produced to have been recorded. That important investigating lines have been missed. Mobile van which was sent has also not been investigated and the Investigating Officer had refused to refer to look into the case diary.

Per contra, learned APP submitted that the FIR is not a piece which could contain every detail and the only use which FIR can be made of is to contradict or corroborate the maker. The maker of the FIR has turned hostile. No other use can be made of the FIR and therefore the case as made up by the evidence of the prosecution is of no consequence.

The eye witnesses have given correct account of the story of the incident as taken place at two places, Chhavdi Bazaar and Madh Falia. The blood group and its nature is in the nature of circumstantial evidence and that would not detract the version of the eye witnesses. The learned APP has relied on the following judgements:

Dharma Rama Bhagare Vs. The State of Maharashtra,

State of U.P. Vs. Brahma Das,

Haji Khan Vs. State of Uttar Pradesh,

Babu Singh Vs. State of Punjab,

State of M.P. v. Dharkole reported in (2004) 13 SCC 308

Sheikh Hasib alias Tabarak Vs. The State of Bihar,

Further the case of the prosecution is that Govind having been sustained injuries might have interfered in prosecution case. In any case forensic evidence and medical evidence are not direct evidence and they cannot be used to contradict the eye witnesses. According to him the law has been laid down by the Hon''ble Supreme Court in the following cases:

State of U.P. v. Harban Sahai and Ors. reported in 1998 SCC 1412

State of U.P. Vs. Krishna Gopal and Another,

We have heard learned Counsel for the parties and considered the rival submissions and the material on record. There can be no denial that FIR is not a substantive piece of evidence. Its pronounced use is to corroborate or contradict the maker of it but then the Hon''ble Supreme Court has held that it being the first version of the prosecution it becomes relevant under Sections 9 and 11 of the Evidence Act to judge the veracity of the prosecution case. A reference in this regard is made to the judgement of the Hon''ble Supreme Court in the case of Ram Kumar Pandey Vs. State of Madhya Pradesh, and if in that background it is seen then the name of the eye witnesses of the incident being absent from the FIR it leads a long way. The only witness named is Babiben. Who has not been named as eye witness. Further, Chandu the maker of the complaint having turned hostile, has not stated that he has not given the FIR but he states in the FIR the stand supported by the circumstantial evidence in the nature that the deceased Dhanji on his cloth has blood group `B'' whereas his blood group is `O''. That would only be possible if the version given by Chandu in the FIR was correct.

The eye witnesses Babiben and Raju have stated that they had taken the deceased in two different rickshaws. Raju was named as witness subsequently. Then Raju having stated that he came with his father, which is not the case in the FIR. This fact which the prosecution set out in the FIR being relevant u/s 11 of the Evidence Act clearly contradicts the prosecution case. What is stated in the face of the prosecution is that at Madh Falia where Vinod is said to have been assaulted contains no blood of Vinod and instead it contains the blood group of `O'' which is of Dhanji. This clearly falsified the manner of occurrence because where a particular person is assaulted his blood group is naturally to be found there but what is found is the blood group of another victim. This clearly indicating that the witnesses have not witnessed the incident as they calimed to be.

Further blood has been found on the person of the accused persons, the assailants of Dhanji and Vinod, did not have the blood group of either of the victims and instead have vice versa. Thus, they cannot be said to be assailants of the victims and the manner which is described by the eye witnesses further stands contradicted by these circumstances.

The lapse of the investigating agency in not examining Anupsinh and mobile van which was sent immediately shows that investigating agency has kept the loopholes purposefully. What assumes importance in the aforesaid circumstance is admission of the Investigating Officer that though Chandu, Babiben and Raju were present in the hospital when he visited, the names of the eye witnesses were not coming forward until afternoon. The witnesses who have posed as eye witnesses were examined in the evening or next morning. This late examination of the eye witnesses indicates that there is unfairness in the investigation and that persuades us to quote that the investigating agency had not been fair and tried to believe the story at its will and has played in the hands of the alleged eye witnesses at the behest of the prosecution and in that view of the matter there is a lurking doubt that the investigation has not been fair and taken in the manner in which the complainant desired. Therefore, we are persuaded that the case is of a benefit of doubt and the accused deserve to get the benefit of doubt. Since we had expressed doubt of the eye witnesses of the prosecution case, we do not think that conviction against the accused can be sustained .

In the result, the appeal is allowed. The conviction and sentence of the accused are set aside. They are acquitted of the charges levelled against them. The accused are behind the bars. They should be released forthwith if not required in any other case.