CR.A/52/1989 of STATE OF GUJARAT Vs DANGO @ DEVJI VALJI on 6 November 1995

1. Whether Reporters of Local Papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether their Lordships wish to see the fair copy of judgment?

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder?

5. Whether it is to be circulated to the Civil Judge?

...J..T....J..T....J..T....J..T....J..T....J..T....J..T....J..T....J..T..--------------------------------------------------------------- Shri S.R. Divetia, Addl. Public Prosecutor, for the Appellant Shri A.P. Mehta, Advocate, for the Respondents

---------------------------------------------------------------- CORAM: A.N. DIVECHA & H.R. SHELAT, JJ.

(Date: 27th November 1995)

ORAL JUDGMENT (per Divecha, J.)

The judgment and order of acquittal passed by thelearned Additional Sessions Judge at Rajkot on 17th November1988 in Sessions Case No. 1 of 1988 acquitting the respondentsherein of the offence punishable under sec. 307 read with Sec.114 of the Indian Penal Code, 1860 (the IPC for brief) as alsoof the offence punishable under sec. 135 read with sec. 37(1)

of the Bombay Police Act, 1951 (the BP Act for brief) is underchallenge in this appeal at the instance of the prosecution.

2. The facts giving rise to this appeal move in a narrowcompass. One Shantilal Manga and his friend Babu Kadva weresitting opposite one small Hanuman temple situated at NavaThorala Gokulpara-3 in Rajkot at about 10.30 p.m. on 27th June1987. It is the case of the prosecution that at that time therespondents herein appeared on the scene with arms in theirhands. Respondent No.1 here was armed with a knife, respondentsNos.2 and 4 with dhariyas and respondent No.3 with an iron pipe.According to the prosecution version, respondent No.1 gave aknife-blow to Shantilal Manga from behind and respondents Nos.2, 3 and 4 also joined him in assaulting the victim. On seeingassault on the victim, his companion Babu Kadva is stated tohave run away from the place of the incident. The injuredstarted shouting for help and also ran away to his house nearby.He was stated to be profusely bleeding at the relevant time.According to the prosecution case, the victim of the assaultreported to his wife the names of the assailants. His brother,named, Premjibhai, also came there. The victim is also statedto have informed his brother about the names of the assailants.The injured was carried to the government hospital at Rajkot.It appears that the police was informed of the incident. Itappears that, on finding the condition of the injured somewhatserious, the executive magistrate was summoned for recording thedying declaration of the victim of the assault. Apropos, thedying declaration was recorded between 2.15 a.m. and 2.40 a.m.on 28th June 1987 in the hospital itself. Prior thereto, apanchnama about the condition of the injured victim of theassault was also drawn between 1.15 a.m. and 1.30 a.m. on 28thJune 1987. Later on the complaint of the incident was given tothe police at about 1.45 a.m. on 28th June 1987 by the wife ofthe injured victim. On completion of investigation, thecharge-sheet against the accused was presented before thelearned Chief Judicial Magistrate of Rajkot charging therespondents herein with the offence punishable under sec. 307read with sec. 114 of the IPC and sec. 135 read with sec.37(1) of the B.P. Act. Since the offence under sec. 307 ofthe IPC was triable by the court of sessions, the learnedMagistrate committed the case to the Court of Sessions at Rajkotfor trial and disposal. It came to be registered as SessionsCase No. 1 of 1988. It appears to have been assigned to thelearned Additional Sessions Judge of Rajkot for trial anddisposal. The charge against the accused was framed on 13thSeptember 1988. No accused pleaded guilty to the charge. Theythereupon came to be tried. After recording the prosecutionevidence and recording further statement of each respondentherein and after hearing rival submissions, the learnedAdditional Sessions Judge at Rajkot, by his judgment and orderpassed on 17th November 1988 in the aforesaid sessions case, acquitted the respondents of the charge levelled against them.That aggrieved the prosecution. It has therefore preferred thisappeal before this Court after obtaining leave from this Courtfor the purpose.

3. Learned Additional Public Prosecutor Shri Divetia hastaken us through the entire evidence on record in an attempt toconvince us that the prosecution has unmistakably brought theguilt home to the respondents accused beyond any reasonabledoubt. It has been urged by the learned Additional PublicProsecutor that the learned trial Judge was in error inoveremphasising trivial contradictions found in the depositionsof certain witnesses. As against this, learned Advocate ShriMehta for the respondents has urged that the prosecution hasfailed to establish its case against the respondents beyond anyreasonable doubt and the impugned judgment and order ofacquittal calls for no interference by this Court in thisappeal.

4. It may be mentioned that the entire prosecution caserests on the version given by the injured victim. In hisdeposition at Exh. 22 on the record of the case, he has clearlyadmitted that he was charged with the murder of one B DivisionPolice Constable, named, Barku Patil and he was acquitted inthat case. He has further admitted that he was externed fromRajkot. He has further admitted that he had to face cases forinvolvement in scuffle with Bhimji Kala and several others. Hehas also admitted that he had faced two prohibition cases. Theoral evidence of the injured victim at Exh. 22 will have to beappreciated in the light of this background.

5. The incident is stated to have occurred around 10.30p.m. on 27th June 1987. The place of the incident is stated tobe near the road opposite the Hanuman temple in Gokulpara. Ittranspires from the panchnama of the scene of offence at Exh.11that the place was situated in Dr. Babasaheb Ambedkar Chowknear electric sub-station in Nava Thorala wherein was situated asmall temple of Hanuman. It transpires from the evidence onrecord that it was dark at the relevant time. The injuredvictim has denied that it was dark at the relevant time but thecontradiction with respect to his police statement that it wasdark at that time has been brought on record by or on behalf ofthe defence. The panch witness at Exh. 26 for proving therecovery panchnama at Exh. 27 has also admitted that the lightswere off from about 8 p.m. on the date of incident. In suchdarkness of night, the injured victim at Exh. 22 on the recordof the case is stated to have identified his assailants.

6. The panchnama of the scene of offence at Exh. 11strangely enough does not support the prosecution version aboutthe place of the incident. Even at the cost of repetition, we

should like to reiterate that the prosecution story is to theeffect that , at the place opposite or near the small temple ofHanuman in Dr. Babasaheb Ambedkar Chowk near the electricsub-station the injured victim was assaulted by the respondentsherein. It is the prosecution story that at least three of themwere armed with sharp cutting instruments. It is also the caseof the prosecution that respondent No.1 herein assaulted theinjured victim with his knife and thereupon the injured victimstarted bleeding profusely. The panchnama of the scene ofoffence at Exh. 11 clearly shows that no blood or bloodstainswere found at the so-called place of the incident. Ittranspires therefrom that the panchnama was drawn between 3.30a.m. and 4.15 a.m. on 28th June 1987. As pointed out earlier,it was a dark night. It is not the prosecution case that theplace at the relevant time had high frequency of vehicular andpedestrian traffic. In that view of the matter, if a personassaulted with a sharp cutting instrument like a knife and isreported to have bled profusely at the relevant time, at leastsome bloodstains would be found at the place of the incidenteven if it is accepted that no blood might be found thereat.Absence of blood or bloodstains at the place of the incidentwould render the prosecution version somewhat doubtful.

7. It clearly transpires from the panchnama at Exh. 11

that bloodstains were found near the window of the house of theinjured victim. In fact, on a closer scrutiny thereof, it isfound therefrom that some blood pool was found in the corner ofthe room of the injured victim near the window. The prosecutionhas not chosen to explain in clear terms how a pool of blood wasfound collected at that place and no blood was found at theplace of the incident. The defence has tried to suggest to theinjured victim in his deposition at Exh. 22 on the record ofthe case that, while he was sitting near the window of his houseat the relevant time, some unknown assailant or assailantsassaulted him with some sharp cutting instrument. In view ofthe aforesaid evidence on record, the defence version appearsnot to be improbable. The possibility of assault by someunknown assailants while the injured victim was near the windowof his house cannot altogether be ruled out keeping in mind thefact that, apart from other cases, he had to face a murder trialresulting in his acquittal.

8. That apart, the prosecution version has its own inherentweaknesses. Some contradictions, though appearing trivial inthe first blush, might assume importance if cumulative effectthereof is considered. The name of the wife of the injuredvictim is stated to be Laxmiben. Her name is recorded asRashmiben in the complaint at Exh. 31. Her name as Rashmibenalso figures in the panchnama regarding the condition of theinjured at Exh. 8 on the record of the case. The prosecutionhas not chosen to explain how that name came to be written

9. Prosecution Witness No. 3, named, Babu Kadva at Exh.23, is stated to be an eye witness of the incident. In hischief examination he does not rope in respondent No.. 4. He isreported to be in the company of the injured victim at therelevant time. In his police statement he has not said so. Thecontradiction in that regard has been brought on record. Theconduct of the witness at Exh. 22 is also somewhat unnatural.He is reported to have seen the assault on the victim. He isstated to have run away from the place fearing likely assault onhim also. That could be natural. What is unnatural is that hedoes not go to his companion's house for informing the wife ofthe injured victim or his other relatives about the occurrenceof such incident. In his cross-examination the witness at Exh.23 admits that the police station is hardly at a distance of 5or 10 minutes on foot from the place of the incident. He hasalso admitted that the police station was on the way to thegovernment hospital. In spite of the vicinity of the policestation, the witness at Exh. 23 has not chosen to go to thepolice station to report the incident or to seek policeprotection for his companion if not for himself. This unnaturalconduct on the part of the witness at Exh. 23 would render hisversion somewhat doubtful.

10. We do not propose to highlight or overemphasise someminor contradictions found in the testimony of the wife of theinjured victim at Exh.25 and that of his brother at Exh.24. Shehas stated in her evidence that she and her husband wereresiding in the joint family with parents. The witness at Exh.24 has contradicted her by saying that his brother was stayingseparately from the family. The wife at Exh. 25 has statedthat her husband came to the house in a bleeding condition andthereupon she went to his elder brother for assistance or help.The brother at Exh. 24 has again contradicted her by sayingthat he heard shouts of the injured victim and he thereforerushed to his house. As observed by us earlier, thesecontradictions might appear to be too trivial to be highlightedor overemphasised in the first blush. Their cumulative effecthowever cannot be ignored.

11. The recovery of the so-called weapons of offence fromthe respondents herein is also shrouded in mystery. Thepanchnama in that regard at Exh.. 7 on the record of the casedoes not show any bloodstains on any of the weapons of offence.So far as the knife stated to have been used by respondent No.1 at the relevant time for the purpose is concerned, it is foundmentioned in the panchnama at Exh.. 7 that no bloodstains werefound but it was found that bloodstains were wiped out bywashing it in water. On what basis that opinion was formed isanybody's guess. So the recovery panchnama also becomes doubtful in view of the panch witness at Exh. 27. In hiscross-examination he says that his signature on the panchnamawas taken at his residence by the police the next morning.

12. That brings us to the so-called dying declaration of theinjured victim at Exh. 10. The man has survived, and as suchit loses its significance as his dying declaration. It willhave to be read as his previous statement. It is stated to havebeen recorded between 2.15 a.m. and 2.40 a.m. on 28th June1987. Neither the doctor is examined to support the certificategiven by him that the patient was conscious all throughout northe Executive Magistrate has been examined to support recordingof the dying declaration. It was perhaps not necessary for theprosecution to do so in view of the fact that it was admitted toevidence at the instance of the defence. We may accept it thatthe doctor's certificate was to the effect that the patient wasconscious all throughout. His brother at Exh. 24 has stated inhis cross-examination that about 1 1/2 hours after he was takento hospital he was given blood and at that time he had becomeunconscious and that condition continued till the next morning.The witness at Exh. 24 has further stated that the patient wasable to speak while he was taken to hospital and was able tospeak till oxygen was given to him. It transpires from theevidence on record that the patient was carried to hospital atabout 11.30 p.m. on 27th June 1987. It transpires from thepanchnama at Exh. 8 about the patient's condition at therelevant time drawn between 1.15 a.m. and 1.30 a.m. on 28thJune 1987 that oxygen was being given to him at the relevanttime. The patient would be unconscious at that time in view ofthe evidence of his brother at Exh. 24 on the record of thecase. The brother at Exh. 24 has clearly stated in hiscross-examination that the state of unconsciousness continuedtill the next morning. The so-called dying declaration at Exh.10 on the record of the case is stated to have been recordedbetween 2.15 a.m. and 2.40 a.m. on 28th June 1987. Even ifthe version given by the patient's brother at Exh. 24 isaccepted, the patient was unconscious at that time. He couldnot have given any dying declaration. The certificate given bythe doctor below it appears to be incorrect. This dyingdeclaration at Exh. 10 on the record of the case also cannot beaccepted as a true version of the story in the previousstatement given by the injured victim.

13. The so-called dying declaration at Exh. 10 on therecord of the case contains a very detailed and graphic accountof the incident in question. The person who is profuselybleeding and who is required to be given oxygen would notordinarily be in a position to give such a detailed and graphicaccount of the incident. Besides, such detailed account couldnot have been over within 25 minutes keeping in mind thecondition of the patient at the relevant time. That by itself would render such previous statement of the injured victimsomewhat improbable and unnatural.

14. In view of our aforesaid discussion, we are of theopinion that the prosecution has not been able to bring theguilt home to the accused or any of them beyond any reasonabledoubt. The impugned judgment and order of acquittal passed bythe learned trial Judge calls for no interference by this Courtin this appeal.

15. In the result, this appeal fails. It is herebydismissed. It appears that, by the order passed by this Courton 30th March 1989, bailable warrant in the sum of Rs. 3000 wasordered to be issued in case of each respondent. RespondentsNos. 1, 2 and 4 furnished bail bonds but respondent No. 3 doesnot appear to have furnished bail bonds and he was thereforetaken in custody and was not released on bail. He is thereforelanguishing in jail at present. In view of the affirmation ofthe judgment and order of acquittal, respondent No.3 herein isordered to be released forthwith if no longer required in anyother case. The bail bonds furnished by the other respondentsare ordered to be cancelled.