State of Gujarat vs Vs Bhil Gunvantlal Kantilal

Gita Gopi, J

Order in Appeal:

The appeal filed by the State under Section 378 of the Code of Criminal Procedure, 1973 (Cr.P.C.) gives a challenge to the judgment dated

6.7.2000 passed by the learned Additional Sessions Judge, Mehsana, Camp Patan in Sessions Case no.226 of 1999. The FIR came to be filed with

Siddhpur Police Station bearing CR no.I-53/1999 under Section 307 of the Indian Penal Code, 1860 (IPC) and Section 135 of the Bombay Police Act,

1951.

The charge-sheet was filed on 6.7.1999 before the learned JMFC, Siddhpur, but since the power to proceed with the trial under Section 307 of IPC

is with the Sessions Court, on 3.8.1999, the matter came to be committed before the learned Sessions Judge, Mehsana.

The accused came to be arrested on 10.4.1999. The charge against the accused was framed on 24.4.2000. During the trial, the prosecution

examined about 14 witnesses. The learned Trial Court Judge, after hearing both the sides and appreciating the evidence on record, acquitted the

accused finding him innocent.

Ms. C.M. Shah, learned APP has contended that the learned Judge has erred in not appreciating the evidence of the witnesses in right perspective.

The witness daughter of the injured has described physical appearance of the accused, inspite of that, the learned Judge has failed to appreciate that

the daughter of the injured was the first person who had seen the man who had inflicted the spear blow on her father. Learned APP further stated

that the discovery pancnnama at Exh.17 has been proved by the panchas. The weapon spear was destroyed by the accused himself who had given

the details of the same and under active guidance of accused, the weapon thereafter came to be recovered. Ms. Shah, learned APP, pressing upon

the medical evidence, contended that the injuries sustained by the injured witness were inflicted by the weapon which in this case is a spear. The

evidence of the victim himself proves that the stab injury in the abdomen would have led to his death if he could not have received timely medical

attendance and has submitted that the learned Judge has erred in not considering the motive behind the grievous injury caused, and the intention of the

accused was to do away with the injured victim as he was the person resisting his relations. The motive was of his relation which was considered as

doubtful with that of the sister-in-law of the victim.

The charge framed under Section 307 of the IPC was considered by the learned Trial Court Judge with the issues raised for the prosecution to

prove whether the accused had caused injury to the victim, as the victim had rebuked the accused and has stopped him from visiting the house of the

sister-in-law. Aggrieved by such restriction, the injury was caused by the accused on 4.5.1999 with the sharp weapon spear (Bhalo) and had caused

injury during night hours when the victim was sleeping in his house. The learned Trial Court Judge has considered the evidence of the victim and has

concluded that the intention/motive could not be proved and the prosecution has completely failed on that aspect. The learned Trial Court Judge has

been circumspect to accept the discovery of the weapon which was alleged to have been used by the accused in inflicting the blows on the victim.

The evidence at Exh.19 is the medical certificate given by the Doctor, which shows that the injuredâ€" Prahladbhai Shankarbhai Patel was admitted

on 5.4.1999 at 01:00 a.m. with the history of stab injury in the abdomen. The injury which was observed is reflected in Exh.19.

Dr. Amarali Valibhai Momin was examined as PW6 at Exh.18. According to the Doctor, in the early morning on 5.5.1999, the injured was brought

to the hospital in an unconscious condition and therefore, he himself has not noted the history. Doctor called one of the person out of 25 people who

had accompanied the victim and asked about the history, who informed that Prahladbhai was beaten by someone. The intestine had come out, but the

Doctor was not informed about the weapon which was used in the incident. The Doctor observed that the injury could be caused by sharp weapon

and therefore, he accordingly had written the history.

Further the evidence of the Doctor notes that when the operation was in progress, the police had come to the hospital and as Doctor had informed

them to come after the operation, the police visited the hospital on the very next day at 07:00 a.m. The injured gained consciousness at 08:00 a.m.

while the Doctor stated that in his presence, the police had not recorded statement of the injured but since the injured had gained consciousness, he

had opined that the police could record his statement. The Doctor stated that at about 01:00 p.m., the statement was recorded. The Doctor had further

clarified in the cross-examination that though the victim had regained consciousness at about 08:00 a.m., he was considered fit to talk only at about

01:00 p.m.

The Investigating Officer, examined as PW14 at Exh.38 states that when he was at home on 5.4.1999, he received a telephonic vardhi, whereby he

was informed that someone had injured Prahladbhai of Baliya with a sharp weapon and therefore, he had gone to Dr. Momin’s hospital, but

immediately his statement could not be recorded so the complaint was registered by Bhagwanbhai Shankarlal Patel at Exh.8. The complainant

Bhagwanbhai Patel was examined as PW1 at Exh.7 who as per the record is the brother of the injured. As per the investigating officer, on 6.4.1999,

after receiving the certificate of the Doctor, the statement of the victim was recorded which according to the investigating officer was only after the

victim could gain consciousness to talk.

PW1, the complainant had informed about the date and time of offence. He in his deposition has not named the accused. The complainant stated

that his brother was injured by someone with a sharp weapon on the abdomen area. When he had inquired from the injured brother, the injured had

informed him that someone had inflicted blow on his stomach and thereafter, has ran away. The injured has not named the accused before the

complainant brother. The complainant witness was cross-examined with respect to the accused. In the cross-examination, the suggestion was put by

way of defence to the accused that on the day of the incident, the victim had quarreled with one Bajuji Valaji Thakore as Bajuji Valaji Thakore had

entered the agricultural land of the victim with his tractor and that said person had quarreled with the victim and had also abused him. Such suggestion

was denied by the complainant.

The victim â€" Prahladbhai Patel had been examined as PW8 at Exh.23. As per his deposition, he was at his house and along with him, his father,

wife and 3 daughters were present. He was sleeping near the window grill of the house. Along with him, his younger daughter was sleeping and

further had given details about all other family members sleeping near him. He stated in his deposition that while he was sleeping, he was injured by

spear. The injury was on the right side of the stomach and stated that since he had caught the spear, he also received injury on the left hand palm and

because of the injury, he fell down from the bed and he started shouting and as a result, all the family members woke up. The injured father also came

near him. The iron door of the room was opened by his daughter Rashmika. The motive was shown to be the friendly relations of the accused with his

sister-in-lawâ€"Laxmiben behind the injury. Such deposition of the witness was challenged in the cross-examination since that fact had not been

recorded in the police statement. The witness had affirmed that he had not stated before the police of any incident or of any dispute with the accused

on the day prior to the incident of refusing the accused to go to the house of Laxmiben. Here the glaring fact is that the sister-in-law of the victim â€

Laxmiben has not been examined by the prosecution to prove the motive as ascribed. It is not coming on record of any reason given by the victim

himself to draw the connection with the accused with the incident. There was no such dispute with the accused and the victim to show that the

accused had some motive to cause injury to the victim to an extent, which could have led to his death.

The learned Trial Court Judge has not believed the discovery panchanama at Exh.17, where the discovery was shown to be in an open field.

Further, the part of the weapon shown to have been recovered, was observed by the learned Judge that it was from open area and it was easily

accessible by any person. The said fact was admitted by the Investigating Officer. The learned Judge thus has not believed the discovery. The learned

Judge has also further tried to evaluate the discovery panchanama by way of assumption considering that if at all the discovery which had been led

through the accused could be believed, then also, the said fact could not be acceptable unless the involvement of the accused becomes proved by

cogent evidence. The learned Judge further has considered the fact that none had named the accused and that injured came to know the name of the

accused from the public. However, he could not identify the person who had named the accused. The learned Judge thus found inconsistent evidence

of the victim and no independent person has been examined as a witness to corroborate the said fact of knowing the name of the person from the

public. Further, the learned Judge has also observed that the fact of sending the accused for agriculture work at the house of the sister-in-law was not

informed before the police, nor the fact that victim was stopping the accused from visiting the house of the sister-in-law. The alleged motive to

implicate the accused is also not proved. No fact could even be proved by any witness of any illicit relation of the accused with that of the sister-in-

law. The incident as alleged of rebuking the accused on a day prior to the incident as has been brought on record could not be proved as such

statement was not given before the police.

The learned Judge has thus rightly appreciated the evidence on record, since when the complainant had immediately asked the victim about the

person who had inflicted the blow, the victim could not name the present accused. Further, the daughter who had come at the earliest point of time

after the incident, could also not name the accused. The Investigating Officer has not put the accused to test, by way of identification parade though

the accused was the alleged person who had inflicted the blow as described, but such identification also could not be proved by way of evidence by

test identification parade. The learned Judge thus rightly has disbelieved the prosecution case. The victim himself could not name the accused, nor the

motive as alleged has been proved. No independent witness has been examined, nor any supporting evidence to corroborate the case as placed by the

prosecution could be proved by the daughter of the victim, the injured victim, nor the complainant. The evidence, as appreciated by the learned Judge,

shows non-corroboration of the evidence on record. The identification of the accused could not be proved by cogent, reliable, relevant and legal

evidence. We do not find any perversity or irregularity or illegality in the findings recorded. Thus, there is no reason to entertain the appeal and hence,

the appeal stands dismissed.

Order in CRRA:

Learned advocate Mr. Umang Oza for learned advocate Mr. B.S. Patel has submitted that the applicant-Bhagwanbhai Shankarlal Patel has passed

away and in view of dismissal of appeal, Revision Application would not survive and is disposed of accordingly.