CR.A/138/1989 of STATE OF GUJARAT Vs RAJARAM AYAR & 3 on 24 November 1995

ORAL JUDGMENT:

The respondents charged with the offences under Section323, 324, 325, 504, 506 read with 114 of the Indian Penal Code,came to be acquitted by the then learned Judicial Magistrate(F.C.), Radhanpur, delivering a judgment on 20th December 1988 inCriminal Case No. 107 of 1987, consequent upon which the Statehas preferred this appeal.

2. Briefly stated the case of the prosecution is that atBavarda, about 5 kms., away from Sitkar outpost, sub-barrage wasto be constructed, and therefore relief work was going on. Forthe purpose of one's own livelihood, Bhimabhai Devjibhai,Devrajbhai, Mangiben, Bhamabhai, Shamabhai, Savajiva Ayar, JivanRaimal Ayar, Naran Abba and 7 others had gone there. They were doing labour work assigned to them. The Mukadam had chalked outcertain portion of the site-land, and the labourers divided intogroups were assigned different portions of the land for diggingoperation. Because of the election in the village that was heldin past respondents and injured were having inimical terms. On20th February 1987 at 12.00 hours, respondent No.1 was abusingBhima Devji uttering filthy words. He was requested not toabuse. Instead of being assuaged he got wild, lost the temper,and gave a scythe (dharia) blow on the head of Bhima Devji.Bhamabhai Devraj and Devraj working nearby rushed there and triedto rescue. At that time other also rushed hearing the clamour.When those were trying to rescue, respondent No.3 with the spadehe was having, caused injury to Mangiben, while respondent No.2caused injury to Bhamabhai and Raimal by stick blow andRespondent No.4 caused hut to Jumaben by a stick blow. They alsocollectively caused injuries by stick or spade blows toKarmabhai, Padma and Khetanbai. All the injured were then takento the hospital for medical treatment. Bhima Devji went toVahali police station to lodge the complaint. The police officerregistered the offence and started investigation. At theconclusion of the investigation the charge-sheet was filedagainst the respondents for the abovestated offences before theCourt of the learned Judicial Magistrate, (First Class) atRadhanpur. The then learned Magistrate hearing the partiesframed the charge against respondents at Exh.4. It was read overand explained to them. They then pleaded not guilty and claimedto be tried. The prosecution-appellant then led necessaryevidence. At the conclusion of the trial the learned Magistrateconsidering the evidence on record found that the prosecution hadfailed to establish the charge levelled against respondentsbeyond reasonable doubt. He therefore acquitted the respondents.It is against that order the present appeal has been filed.

3. Mr. Mehta, the learned Addl. Public Prosecutor madesincere attempts in assailing the judgment and order of acquittalpassed by the lower court. According to him the learnedMagistrate did not appreciate the evidence in right perspective,and without assigning any logical reasons reached to theconclusions not at all tenable in law. The appreciation of theevidence made and conclusions drawn are according to Mr. Mehta,the learned A.P.P., arbitrary, perverse and wholly against thesound principles of law. He therefore urged me to set aside thejudgment and order passed by the learned Magistrate and convictrespondents. Mr. H.J. Shah, the learned Advocate representingthe respondents submitted how the learned Magistrate was right,and there was no error on his part.

4. Mr. Mehta, the learned APP, took me to the entireevidence on record. Ofcourse, all the injured have made thestatements supporting the case of the prosecution, and theinvestigating officer whose evidence is recorded at Exh.70 has also stated the facts which he came to know during the course ofinvestigation. If the evidence of all the injured along with theevidence of the investigating officer and Doctor is accepted onits face value without scanning certainly, one would be inclinedto hold that prosecution has succeeded in bringing the guilt hometo the respondents. Let me mention that the evidence led by theprosecution is not to be mechanically accepted. The same has tobe dissected considering the rival submissions and lawapplicable; and as and when possible, resorting to scientifictests and result thereof.

5. Here the investigation it seems is not carried outsincerely taking pains and deeply. The place where the incidenthappened was examined by the investigating officer for thepurpose of drawing the panchnama in the presence of the panchasand others. As Bhama Devji sustained the injury on his head hemust be profusely bleeding and that is also testified by otherinjured witnesses. When the doctor examined Bhama Devji he wasbleeding. When injured was bleeding till the time of his medicalexamination possibility of profuse bleeding cannot be ruledout.The Investigating Officer must not have overlooked the bloodat the spot. However the police has not found any blood marks atthe scene of offence, and for the same it is explained that therewere numbers of workers, and before the panchnama was drawn manymight have run here and there through the place of offence as aresult pool of blood might have been wiped out. The submissioncannot be accepted for the reason that in this case the diggingoperation of different portions of land called "Chokadi" wasassigned to different groups of workers, and the supervisor(mukadam) responsible to maintain accounts would not permit anyone to move rapidly with clattering sound. He would prevent theworkers from hurtling or moving here and there by havingfortification, despite the fact that initially for the purpose ofrescuing the victims few would enter the "chokadi" the assignedportion of land, but thereby pool of blood and blood-stained dustwould not be obliterated. Absence of blood-mark at the spot isthe circumstance on record which prevent me from placing relianceon the evidence of all the injured. When no blood or blood markis found, as rightly submitted by Mr. Shah the learned Advocaterepresenting the respondents,that there is a reason to believethat the prosecution is suppressing the manner in which theincident happened and also the place of incident. To put itdifferently, there is a reason to believe that the case ofprosecution may be distorted. When that is the case the benefitthat arises must go to respondents.

6. The investigating officer, (Exh.70) seized the weaponswith which, it is said that respondent caused injuries. All theweapons were sent to chemical analyser as blood-dots were foundthereon. But it is pertinent to note that the report of theChemical Analyzer is not produced for the reasons best known to the prosecution. When for no good reason the chemical alanyserreport is kept back, I am entitled to infer everything againstthe prosecution, and on that basis it can be said that theinjured being inimical, suppressing the correct and true fact,have come before the Court suffusing the case with deceptivecoating and thus the condition of the place of incident bereft ofblood, foils the prosecution.

7. Ratna Kheta (Exh.31) had rushed to the scene of offenceso as to rescue Bhimji Devji and Bhamabhai Devraj. He saw thatBhimji Devji who was injured was profusely bleeding and was lyingon the ground in wounded condition. He intervened and took thehead on his lap and tried to save him. Likewise Mongiben (Ex.15)tried to confound the assailants. If that is so their clothesmust have been blood stained. In order to establish theirpresence at the spot, the prosecution ought to have produced theclothes put on by both, but those clothes are not produced, andno explanation is offered why ? When best available evidence isnot collected and expert opinion thereon is not sought by theprosecution, it can be assumed that the case of the prosecutionis tainted with alterations and improvements and presence ofthese two witnesses may be suspicious. Their evidence thereforecannot be accepted without cogent corroboration.

8. In this case, there were 600 to 700 workers working atthe site, and hearing shreiks few of them were no doubt attractedto the scene of offence. As transpires from the evidence of allthe injured witnesses about 100 to 150 workers had rushed to thescene of offence and about 25 to 30 workers had entered theportion assigned to the injured for the purpose of digging theearth. Neither of the persons assembled there is examined, norreasonable explanation is offered. The prosecution has restcontented with the evidence of all the injured having enemitywith respondents though independent evidence was available. Forthe reasons best known to the prosecution the independentevidence is suppressed. I am aware of the fact that Court canconvict even on the evidence of injured after all quality ismaterial and not the quantity; but in that case the evidence ofinjured must be free from doubt and appealing to the conscienceof the Court. In this case, evidence of neither of the injuredwitnesses is appealing for the reasons stated hereinabove. Forproviding assurance one of the workers assembled there ought tohave been therefore examined. It may be stated that because ofthe Village election that took place in immediate past, therespondents and injured were divided into two groups, and theywere having arch-rivalries. The enemity cuts both the ways.Because of the inimical relations, a man may tell a lie or withall vigour he would be telling the truth. When both thepossibilities are there, the prosecution must lead the evidenceso as to eschew the possibility likely to impair its case. Inthis case, for the reasons stated hereinabove, prudence dictates that independent corroboration should be insisted upon, which iswanting. Non-examination of one of the workers assembled therespeaks volumes against prosecution.

9. Under the circumstances, the evidence on record issuffering from inherent improbabilities, and the doubt that castsbenefit thereof must go to respondents. In view of the casetherefore, the learned Magistrate was perfectly right inacquitting the respondents. I see no justifiable reason tointerfere with the judgment and order passed by the learnedMagistrate below. The appeal is, therefore, devoid of merits andit is liable to be dismissed. In the result, the appeal ishereby dismissed and the judgment and order recording theacquittal of the respondents are maintained.........