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Judgment
The common judgment and order dated 22nd
February 1994 passed by the learned Additional
Sessions Judge, Court No. 3, Ahmedabad in Sessions
Case No. 85 of 1990 and Sessions Case No. 129 of 1993
acquitting the respondents-original accused in respect
of the offence which came to be registered against
them before Sabarmati Police Station, Ahmedabad is
assailed in this pair of Appeals preferred under Section
378 of the Code of Criminal Procedure, 1973 [" CrPC "
for short].
Facts emerging from two different complaints are -
2.1 The present case of the prosecution relates to CR
No. I-158/1989 registered with Sabarmati Police
Station, Ahmedabad for an offence punishable under
Sections 307, 451 and 34 of the Indian Penal Code
[" IPC " for short] read with Section 135(1) of the
Bombay Police Act.
2.2 On 13th September 1990, a charge-sheet was filed
vide Exhibit-1 against Natvarsinh Naransinh Gohil, who
is accused in Sessions Case No. 85/1990, for an offence
punishable under Sections 452 and 307 IPC read with
Section 135 (1) of the Bombay Police Act, and
accordingly, charge was framed. Thereafter, on 28th
May 1993, charge was framed at Exhibit-1 against
Ronald alias Raju Arnold Soloman, the second accused
person in this case under Sections 452 and 307 IPC
read with Sections 34 and Section 135 (1) of the
Bombay Police Act. As both these charge-sheet arise
out of the same offence, Sessions Case No. 129/1993
was consolidated with Sessions Case No. 85/1990 vide
the order dated 5th January 1994 and an order was
passed to take the evidence accordingly.
2.3 The case of prosecution is such that Lataben, wife
of Harshadkumar Harilal Gajjar, resident of Ahmedabad
lodged a complaint on 14th May 1989 stating that she
stays with her mother Dayaben at the above mentioned
place and she is studying in the Second Semester in
Law College, Ahmedabad. Her marriage was
solemnized before six years with one Mr.
Harshadkumar, son of Harilal who is living in Kalol. As
she is studying in Ahmedabad, for the last six months,
she stays with her mother, as she is alone. They are
three sisters, out of which, Varshaben, whose marriage
has been solemnized before eight years with
Bharatkumar, son of Navinbhai living at Mumbai. For
the last one month, as there is summer vacation, her
sister-Varshaben had come at the place of complainant.
2.4 Further, the case of prosecution is such that
there are five tenants in the house of the complainant,
out of which A1-Natvarsinh Naransinh had been given a
room on rent for a period of about 10 months and
monthly rent is decided as Rs. 450/-, but Natvarsinh
was not paying the rent regularly and for the last seven
months, he has not given the rent. In spite of asking for
the rent, he is not paying the rent. Therefore, he was
asked to give the rent, or else, vacate the house. Even
though he was stated so, he is not vacating the house
and he is wrongfully causing harassment to the mother
of the complainant and is quarrelling with her. In this
matter, tenant Natvarsinh has filed a case in a Civil
Court against the mother of the complainant, which is
still pending. As the father of the complainant has
passed away, her mother is looking after administration
of the house.
2.5 Further, the case of prosecution is that on 14th May
1989 her sister Varsha and mother Dayaben when were
watching a movie "36 Ghante" on TV and as there was
an interval at 07:30 pm, the complainant came to
veranda [compound] for fetching water in a bucket.
She saw tenant Natavarsinh and his accomplice. The
complainant did not know the name of his accomplice,
but she may identify on seeing him. Both the said
persons were standing in veranda. The complainant
asked them as to why had they arrived, and thereby as
the altercation occurred, his sister Varsha rushed out
from the house, however, in the meanwhile, both of
them took out razor from the pocket of their pants. A-1
Natvarsinh inflicted blows of razor on her right side
cheek. While he was inflicting another blow, as the
complainant raised her hand for defence, he inflicted a
razor blow on left upper arm. As his accomplice inflicted
a razor blow on upper side of left eyebrow, the
complainant sustained injuries and she was bleeding.
When the complainant began shouting, at that time,
nearby persons and her mother came, both Natavarsinh
and his accomplice escaped from the spot. Thus, such
is a case of the prosecution that keeping grudge
against not giving house on rent and getting it vacated,
they have beaten and attempted murder of the
complainant, giving rise to filing of a complaint against
the accused persons [respondents herein].
2.6 Further, Darshansing Thakarsing Padhiyar who was
serving as PSI at Sabarmati Police Station in
Investigation Squad, sent the injured complainant for
medical treatment at Civil Hospital, Ahmedabad. He
recorded the complaint of Lataben as per her
instructions in Civil Hospital. He called panchas, and
drew panchnama of the scene of offence. The said
place was indicated by witness Varshaben. There were
dried blood spots on the scene of incident. He took
samples on wet cotton gauze, affixed with them the
slips containing signatures of panchas and seized the
same on making the seal of Sabarmati Police Station.
Thereafter, he took measurements of nearby places,
and recorded the statements of lady witnesses
Dayaben, Varshaben, etc.
2.7 Further, it is the prosecution case that the charge
of further investigation of this case was taken over by
Police Sub Inspector Shri H.A. Pathan on 14th May 1989.
He recorded statements of eye witness Bharatkumar
Manubhai Parikh, etc. On 15th May 1989, as the
complainant Lataben produced half sleeved kurta
having scattered blood spots and the cut marks on left
shoulder and front portion, and one piece of bed-sheet
having blood stains, the same were seized by drawing
panchnama. He recorded further statement of
complainant and persons present nearby the scene of
offence. After investigation was over, Investigating
Officer filed chargesheet against A1 and A2; as
mentioned hereinabove.
2.8 As only the Sessions court has jurisdiction to try
the offence punishable under Section 307 of IPC,
learned Metropolitan Magistrate committed the case of
both the accused persons to the Court of Sessions.
Both the accused denied the charge leveled against
them and claimed to be tried.
2.9 To prove the case against the accused persons,
the prosecution adduced the following ocular as well as
documentary evidences :
[1] PW-1 : Lalitaben Harshadkumar Gajjar- Complainant [Exh.14];
[2] PW-2 : Varshaben Bharatbhai Parikh, Sister of Complainant [Exh. 16];
[3] PW-3 : Babubhai Nagjibhai Dabhi [Discovery Panch] [Exh. 17];
[4] PW-4 : Gunvantbhai Parshottambhai Patel [Discovery [Panch] [Exh. 18];
[5] PW-5 : Bhikhabhai Chottalal Soni [Discovery Panch] Exh.19
[6] PW-6 : Govindlal Natvarlal Mehta, Executive Magistrate, Exh. 20.
[7] PW-7 : Jaswant Prabhudas Bhavsar, [Panch of Scene of Offence] [Exh. 23];
[8] PW-8 : Hussain Khan Abdulakhan Patal, PSI [Investigating Officer] Exh. 24;
[9] PW-9 : Devjibhai Kanjibhai Bava, Police Inspector [Investigating Officer] [Exh. 25];
[10] PW-10 Darshansingh Thakursingh Padiyar, PSI [Investigating Officer] Exh. 26;
[11] PW-11 Dr. Hasumatiben Ranchhodbhai Patel, Exh. 28
Further statement of the accused persons came to
be recorded, as per provisions of Section 313 CrPC,
after a declaration by the prosecution regarding
completion of the evidence. In that statement, the
accused stated that a false case had been filed against
them and claimed to be tried.
Ms. Jirga Jhaveri, learned Additional Public
Prosecutor appearing on behalf of the appellant-State
of Gujarat has made various submissions on the basis
of the trial Court judgment. Her main contention is that
the testimonies of the eyewitnesses Lataben
Harshadkumar Gajjar and her sister-Varshaben
Bharatbhai Parikh have specifically stated the number
of persons present as well as the individual act
committed by each of the respondent-accused in the
incident, are the clinching evidence which cannot be
brushed aside. She contended that recovery of weapon
"razor" used in the incident cannot be overlooked, as
its recovery has been clearly supported by the
Investigating Officer before the Court by proving the
discovery panchnama. Over and above this, learned
APP contended that the medical evidence duly
corroborates with the ocular evidence, thereby
establishing guilt of the accused persons. That, the
complainant had received three injuries by razor at the
hands of accused persons. That, in a test identification
parade carried out in presence of Executive Magistrate
and other witnesses, A2 was clearly identified by the
complainant herself, and hence, there was no question
of non identification of respondent no. 2 and his
presence at the time of incident. That, the victim
herself has lodged the complaint which is supported by
her sister. That, panchnama of the place of offence was
clearly proved by the prosecution. That, there is no
difference in respect of date, time, weapon used by the
respondents-accused in the offence. That, the
prosecution has clearly proved its case beyond
reasonable doubt against the present respondents-
accused and hence, it was urged by learned APP to
quash and set-aside the impugned common judgment
and order passed by the learned Addl. Sessions Judge,
Ahmedabad.
Learned advocate Shri Manraj A Barot appearing
on behalf of the respondents [original accused] made
various submissions countering the arguments put
forward by the appellant-State. He pointed out material
alterations between the testimonies of PW-1-Lalitaben
Harshadkumar Gajjar [Complainant at Exh.14] and PW-
2 : Varshaben Bharatbhai Parikh, [sister of the
complainant at Exh. 16] to prove that either they were
not material eyewitnesses, or that they have either not
seen the incident or they came to the spot after the
incident had occurred.
5.1 According to the learned advocate Mr. Barot, the
conduct of these eyewitnesses appears to be unnatural
and their silence in not making any statement to the
Police Officers at the earliest, casts doubt on their
testimonies. That, the witness to recovery of weapon,
produced by the prosecution, have turned hostile. That,
the complainant Lataben has described a different story
than what she stated earlier, when she lodged the
complaint. That, the original accused no.1 was a tenant
of mother of the complainant and he was not paying
rent of the occupied premises to the landlady regularly,
and therefore, to get back the premises from A1
[respondent no.1 herein], a false story was created by
the prosecution. That, there was no intention proved by
the prosecution of committing murder of the
complainant at the hands of the respondents and they
are falsely involved in the offence alleged. As per the
prosecution case, Bharatkumar was an eye witness, but
for the reasons best known to the prosecution, he was
not examined before the trial Court. There is difference
in respect of injuries sustained by the complainant
Lataben by the weapon alleged. That, the medical
evidence is contrary to the ocular evidence given by
the prosecution witnesses. That, presence of A2 was
clearly doubtful, as per the deposition of the
prosecution witnesses. That, the place of offence is also
different as per the say of the prosecution. That,
intention was never proved by the prosecution to
commit murder by the respondents. That, timings of
the offence is also different; as averred by the
prosecution. It is for the first time A2-Ronald was
identified by the complainant in a test identification
parade. That, in her complaint, she has clearly stated
that A2 was not identified by her and he was an
unknown person. That, testimony of both the
eyewitnesses cannot be relied upon as they are not
trustworthy. That, discovery panchnama was never
proved by the prosecution. That, panch witnesses have
turned hostile before the trial Court and only on the
testimony of Investigating Officer alone, the entire case
cannot rest by the prosecution. That, Dr. Hasumati R
Patel at Exh.28 has in fact not examined the injured-
complainant and as per her deposition, the patient was
referred for internal examination. That, four injuries
received by the complainant were not possible to be
caused by a single blow of weapon. That, there is no
applicability of Section 307 IPC, as there were no
serious injuries found on the person of the
injured/complainant. That, no arrest panchnama was
prepared by the prosecution during the investigation.
That, the learned trial Judge has rightly acquitted the
respondents accused. Finally, Shri Barot, learned
advocate for the respondents-accused contended that
in absence of there being any illegality or perversity in
the impugned common judgment and order of
acquittal, the same needs no interference by this Court,
as the prosecution has miserably failed to prove guilt of
the respondents-accused. Hence, it was requested to
dismiss the present Appeals.
In our considered opinion, four main issues are
argued before this Court and we shall now examine
each and every contention, in light of the arguments
adduced before us.
In the present case, complainant-PW Lataben in
her examination-in-chief has stated that in a test
identification parade, she was called where she
identified A2 Ronald alias Raju Arnold Soloman, who
was also present in the Court. It appears from her
testimony that she has not stated the procedure and
manner in which test identification parade was held.
Even she has not stated that T.I parade was carried out
in presence of two panchas. It appears from her cross
examination that at 10:30 am, she started to proceed
for T.I parade, but she had no idea where such parade
was held. She also does not remember whether she
was informed by the Police where she had to remain
present for such test identification parade.
7.1 PW-6 Govindbhai Natvarlal Mehta, Executive
Magistrate in his testimony has stated that on 3rd July
1989 at 16:15 hours, the complainant came and she
was instructed to sit in a record room of the Court
through a Peon as well as to call two panchas for Test
Identification parade. It is further stated by this witness
that T.I parade started at 16:30 hours. There is material
contradictions in the version of these two witnesses ie.,
Executive Magistrate as well as complainant in respect
of timings of Test Identification parade.
7.2 It is pertinent to note that PW-2 Varshaben though
had stated that A2-Ronald @ Raju Arnold Soloman
assaulted the complainant, she was not summoned to
identify the said accused in a test identification parade.
Therefore, it is difficult to accept her version. It is for
the first time, complainant-Lataben identified A2 before
the Court, but it is an undisputed fact that A2 was
unknown to her, prior to the date of the incident. If any
witness identifies any accused person for the first time
in the court room, who is not known, that would not be
sufficient to involve a person in the offence saying that
he is the same accused who has played any role in the
offence. As no test identification parade was carried out
by calling PW-2 Varshaben and the complainant had
identified A2 for the first time in the Court room, her
evidence cannot be accepted as a gospel truth.
7.3 It also appears that there is a material difference
in the timings of the incident. PW-1 Lataben in her
testimony has stated that this incident took place at
5:30 pm, while her sister Varshaben says that during
interval of a movie running on TV at 6:00 pm, the said
incident occurred. Here, different versions would also
be required to be considered, as in absence of any
cogent evidence, it is difficult to take a judicial note as
to at what time interval took place viz., at 6:30 pm or
7:30 pm. As per testimony of PW-Lataben, during the
course of hot discussions, her sister Varshaben came to
the place of incident. PW-Varshaben also supports the
statement of her sister Lataben before the Court saying
that on hearing hot discussions, she came out of the
house. PW-Lataben says that there were three blows
given to her on mouth by a weapon "razor", while
Varshaben states that A1 gave one blow of razor on the
cheek of her sister and his accomplice gave one blow
with razor on the upper side of her eye and one blow on
left hand. Complainant-Lataben in her examination-in-
chief has stated nothing against A2 Ronald. She only
says that at the time of incident, A2 Ronald was present
with A1 Natvarsinh. She further states that after giving
blow by a razor, A1 Natvarsinh, they both ran away
from the place of incident.
7.4 Now if we consider testimony of the complainant
Lataben, at the time of incident, A2 Ronald was only
present in company of A1 Natvarsinh. No other
allegations have been levelled against the A2. It is
nowhere stated that during the altercation, A2 was
inspired by A1 Natvarsinh or any criminal act was
committed by A2. Varshaben has also stated that at the
time of incident, A1-Natvarsinh was accompanied by his
companion and after assailing her sister, both ran away
from the place of incident. Considering the
contradictory deposition of both these sisters viz.,
Lataben and Varshaben, it would be difficult to involve
A2 Ronald in the crime, by solely relying upon
deposition of PW-2 Varshaben holding him in guilt.
The second issue, which is of paramount
consideration is testimony of PW-Varshaben. She has in
her testimony before the Court below disclosed that in
the holidays of summer in the year 1989, she came to
Ahmedabad in company of her husband-Bharatbhai and
children. At the time of incident, she herself, her two
sisters, her mother and her husband and children were
present. She further states that at about 6:00 pm, this
incident took place, when there was interval in TV.
During interval, her sister Lataben went out of the
house to fetch water and at that time, hearing loud
alarms made by her sister, she came out and saw two
persons - out of them one was identified by her as
Natvarsinh, who was tenant of her mother, who was
accompanied by an unknown person, whom she does
not known. Both of them took out razors from the
pocket of their pant. Tenant Natvarsinh assaulted her
sister on her cheek and the said unknown person
assaulted her sister on the upper side of her left eye as
well as on her left hand and after assaulting her sister,
both of them fled away from the scene of occurrence.
According to this witness, they first went to the Police
Station for registering the complaint and thereafter her
sister was shifted to Civil hospital for medical
treatment. A-1 Natvarsinh Narayansinh Gohil who was
tenant was identified before the trial Court. Unknown
person who was also present in the Court was also
identified by this witness. However, A2 was for the first
time identified by this witness before the trial Court and
hence prosecution case becomes doubtful and no
reliance can be placed for such an evidence led by the
prosecution. PW-Lataben has stated that on the day of
incident, her mother, her sister-Varshaben, her
husband-Bharatkumar were present in the house. This
incident took place at 5:30 pm, when she went to fetch
water, at that time, A1 Natvarsinh suddenly came there
and asked her to permit him to fetch water. The
complainant replied that after she fills up the bucket,
he would be permitted to fetch the water to which a
dispute arose. According to this witness, this dispute
was started by A1 Natvarsinh who was armed with
razor. He inflicted a razor blow on the complainant''s
right side neck, but injury was caused to her right
cheek. During this hot discussion, hearing the screams,
her sister Varshaben came out and at that time, A2
Ronald was also present. They immediately left the
place of offence, after causing injuries to the
complainant. Total three injuries were sustained by the
complainant on her face. She tried to catch hold the
assaulters and raised alarm, but they ran away.
It is pertinent to note that though other members
viz., mother of the complainant, husband of her sister
ie., Bharatkumar were present at home, no one has
been examined by the prosecution before the trial
Court. In such a case, when independent witnesses
were available with the prosecution, by not examining
these material and independent witnesses, the
prosecution case appears to be doubtful. We feel that
non examination of credible independent witnesses in
this case is very much fatal to the prosecution''s case.
Particularly when it is their own case that there were
several persons available in the vicinity. It is not
necessary that in each and every case on the ground of
non examination of independent witnesses, the case of
prosecution has to be brushed aside, if the evidence of
prosecution witnesses is consistent, cogent and
corroborated by other evidence it can be safely relied
upon, but it is not so in the case at hand because
testimonies of PW-1 Lataben and PW-2 Varshaben did
not inspire confidence.
Investigating Officer in his testimony before the
trial Court says that the muddamal "razor" which was
used in the offence was discovered in presence of
panchas, at the instance of A1 Natvarsinh. The said
discovery panchnama was prepared between 09:55 and
10:10 am in a Government vehicle, at the instance of
A1, near the Power House bunglows where vehicle was
stopped by A1 and nearby the wall of Power House, one
razor having black cover with plastic handle was
discovered by him, which was recovered and sealed as
per details given in the panchnama. Further, this
witness says that on the same line, A2 Ronald @ Raju
Arnold Solaman also shown his willingness in
discovering the weapon and hence a recovery
panchnama was prepared at 7:30 am at his instance in
the Government vehicle nearby the crossing of Power
House, near JP Chawl where the vehicle was stopped by
A2 and from southern side of wall, A2 found muddamal
"razor" having cream colour handle, which was
recovered in presence of panchas by preparing a
panchnama. It is pertinent to note that none of the
panchas have supported the prosecution case. As they
have not supported the contents of the panchnama,
their evidence cannot be considered at all.
Investigating Officer has stated in his examination-
in-chief that muddamal weapon "razor" were not blood
stained. Therefore, it would be difficult to say, under
these circumstances that these weapons which were
allegedly discovered by the Police, were used in the
offence. Evidence on discovery can be considered as
circumstantial evidence, which is not favouring the
prosecution.
11.1 The very purpose of requiring a panch to witness
the recovery is to see that independent witnesses
vouchsafe for the fact that a particular thing was
recovered from a place where the prosecution alleged it
was found. Unless a panch witness positively states
that he has eye witnessed the alleged recovery, his
mere signature on such recovery panchnama becomes
useless in proving the recoveries. Here, the
prosecution has tried to prove the discovery
panchnama through police witnesses. It cannot be said
that the article discovered was in exclusive possession
of the accused and was recovered only on the
information furnished by the accused. Such evidence
would not be useful to convict the accused.
In respect of place of offence, different evidence
has come on record. As per the say of complainant,
incident took place near the water tank. In her cross
examination, she admits that water tank is 7 to 8 ft.
away from the gate of the compound of Bungalow.
While PW-2 Varshaben in her cross examination says
that while her sister Lataben was fetching water from
the tank, she was in a compound, when this incident
took place. Thereafter, changing her version, she
further states that this incident took place in a Osri.
Orsi and compound are common.
12.1 Investigating Officer Shri Darshansinh Thakorsinh
Padiyar at Exh. 26 states that the place of offence was
14 fts. away from the gate and the Osri of Bunglow No.
The place of offence was identified by PW-2
Varshaben. The panchnama of the place of offence was
not supported by panchas, and therefore, it was not
proved by the prosecution. Therefore, it would be
difficult to accept the testimony of Investigating Officer
that the place of incident was 14 ft. away from the gate
and Osri of Bunglow No. 50, as it is not supported by
the testimony of Varshaben. Thus, it is difficult to
identify the actual place of offence because the
witnesses have given contrary depositions on the issue
in dispute. It also transpires from the deposition of
Lataben that there were three injuries caused to her on
her right cheek, and whereas, medical evidence
supports only two injuries to the complainant. The third
injury on the right side of the face does not find support
by medical evidence. It appears that on the outer side
of the right cheek of the complainant there was a
contuse wound and one cut wound on her left hand.
There is no evidence given by this witness Lataben in
her oral testimony before the Court that as to in what
manner, these injuries were sustained by her. It
appears that medical evidence is contrary to the ocular
evidence given by the complainant, and therefore also,
the prosecution case becomes very doubtful.
12.2 It is pertinent to note that as per the testimony
of Lataben [PW-1] she was injured at three places on
the right side of her face by a razor. While PW-11 Dr.
Hasumatiben Ranchoodbhai Patel in her cross
examination states that three injuries were sustained
by the complainant on her right cheek, which were
possible if three different assaults were made.
Therefore, it can be said that by a single blow of razor,
three injuries to the complainant would not be possible.
No further evidence was led by the prosecution that by
one blow of razor, how three injuries were possible. It is
not placed on the record or evidence by the
prosecution that injuries caused to the complainant
were serious in nature and sufficient to cause death in
a natural course; jointly or severally. On the contrary, it
appears that on the very same day, at night, the
complainant was discharged from the hospital after
giving treatment. No other evidence in respect of
seriousness of injuries sustained by the complainant is
brought on the record by the prosecution.
12.3 Contradictions and omissions play vital role in
criminal trial. The effect of the proof of contradictions is
to discredit the witness as being unreliable as
substantive evidence in the court is contrary to what he
told the police. In such case, the only option before the
Court will be to hold the substantive evidence of the
said witness in the Court as unreliable, the facts which
have come on record by way of omissions, if are
excluded from the evidence of such witness, the only
inference, which may emerge would be that the said
witness has been nothing and he cannot be said to be
an eye-witness to the alleged incident.
Therefore, we find that the prosecution case is
filled with infirmities and lacunae, therefore, the only
possible and probable course left open is to grant
benefit of reasonable doubt to the respondents herein.
Resultantly, these Criminal Appeals fail. The bail
bonds of the respondents stand discharged.
R&P be transmitted back to the trial Court
forthwith.