CR.A/32/1993 of ABHESINGH BECHARUBHA GOHIL Vs STATE OF GUJARAT on 10 December 2001

1. Criminal Appeal No. 32 of 1993

MR PJ YAGNIK for Petitioner No. 1 - (absent)

Mr.M.A.BUKHARI, A.P.P. for Respondent No. 1

-------------------------------------------------------------- CORAM : MR.JUSTICE B.J.SHETHNA

and

MR.JUSTICE D.P.BUCH

Date of decision: 10/12/2001

ORAL JUDGEMENT

(Per : MR.JUSTICE B.J.SHETHNA)

1. The appellant - accused has challenged in this Appeal the impugned Judgment and order of conviction and sentence dated 5.12.1992 passed by the learned Addl. Sessions Judge, Bhavnagar, in Sessions Case No.6 of 1992 convicting him for the offence u/s.302 of Indian Penal Code and sentenced him to suffer Life Imprisonment and also convicting him for the offence u/s. 135 of the Bombay Police Act and sentenced him to suffer Simple Imprisonment for 4 months and to pay fine of Rs.500/indefault to further undergo S.I. for 2 months. Both these sentences were ordered to run concurrently.

2. As per the charge Ex.3, at about 10.30 p.m. on 12.10.1991 deceased Tinchubha @ Raghurajsinh Harisinh Zala was sitting in the open space near Nidhi Auto Marketing Agency Building, situated at Bhavnagar - Rajkot Road of Bhavnagar City. The accused came there in drunken condition. Deceased Tinchuba persuaded him to go to his house and tried to drop him at his house. Thereupon, all of a sudden, accused got excited and took out knife and gave knife blows on the body of Tinchubha and thereby committed murder of Tinchubha. Thus, he was charged for the offence u/s. 302 I.P.Code. He was also charged for the offence u/s.135 of the Bombay Police Act for flouting the notification issued by the Bhavnagar District Magistrate by using knife. The accused did not plead guilty to the charge and claimed to be tried. According to him he was innocent and for some reason he was involved in the commission of offence.

3. To prove its case the prosecution examined Velubha Bhagvatsinh, P.W.3, Ex.13. He is the complainant. He lodged complaint before the Police at the place of incident itself on 10.12.1991 after 11.00 p.m.Another witness Kantibhai Thavarji, P.W.4, Ex.15 is also examined as Eye witness. He is Police personnel. One more witness Ranjitsing Mansing was examined as P.W.5 at Ex.16. Shri Vishvarathsinh Zala, P.W.6, Ex.17 is the brother of deceased, but not witness to the incident. Circle Police Inspector Shri Jhala, P.W. 11, who has investigated the case, is examined at Ex.18, F.I.R. is at Ex.14. In the form of Medical evidence the prosecution has examined Dr.Bhanushanker Kantilal Joshi, P.W.1, Ex.8, who has prepared the Post Mortem Note at Ex.9.

4. In absence of the learned Counsel Shri Yagnik for the appellant - accused we have carefully gone through the evidence of the prosecution witnesses minutely with the proper assistance of learned A.P.P. Shri M.A.Bukhari.

5. Shri Velubha Bhagvatsinh, P.W.3 and Kantilal Thavarji, P.W.4 are only two eye witnesses, who claimed to have witnessed the incident. Therefore, their evidence is required to be scrutinized carefully.

6. P.W.3 Velubha Bhagvatsinh stated in his evidence that on the date of incident he came from outside to Bhavnagar in bus coming from Bhuj. when he came there it was about 7.30 p.m. He was walking down to his village. He had gone to bring sweets for distributing amongst his family members on the engagement of his daughter. He came near the Pond of his village. From there he went to Nidhi Marketing Agency in Rickshaw and got down. He was walking towards his house. At that time deceased Chintubha and 2 police men were sitting at the lorry of one Nanda. Chintubha well-come him. He inquired from him that from where he is coming. On being asked he told Tinchubha that he had gone his daughter engaged in Kutch. He gave him one Bristol Cigarette. He sat there for smoking the same. Accused Abhesinh came with tempo. Accused Abhesinh and Ranjitsinh came there and left. After some time again accused Abhesinh came with tempo, he was drunkard and therefore Tinchubha was tried to persuade him to go to his house. At that time accused Abhesinh took out knife from his waist and gave blow on his neck. The incident happened in front of his eyes and therefore he went there running. Before he reached the place of incident accused Abhesinh gave another knife blow in the waist of Tinchubha. Before he gave third blow he caught-hold of accused Abhesinh and snatched away the knife from him and threw it away. On his raising shouts police men came there running. They beat Abhesinh with sticks and left. At that time he caught-hold of Abhesinh. However, he gave him push and went away from place of incident. Thereafter he went to the house of Tinchubha's father to inform about the incident. At that time he got frightened and therefore he went to his house. The police called him, therefore he gave his complaint, which is at Ex.14. He lodged the complaint in front of Nidhi Marketing Agency in the light of tube-light which was there. He knows the accused who was present in the Court. He identified him in the Court. He was shown Muddamal knife, Article 5. He stated that he snatched the same knife. According to him apart from

the chowkidar light other lights on the 3 lamp post light were on. There is one lamp post near Shakti Pan House and one more lamp post on the road going towards Shantinagar. He had shown the same place at the time of preparing the panchnama. Out of 2 police men he know one by name. His Surname is Katara. This was his version in the chief examination. In the cross examination he denied the suggestion that residence of Military society always got down near Shakti Pan House which was the only way for going towards his society. He has stated in his cross examination that the house of Tinchubha is hardly at a distance of 5 minutes from Nidhi Agency. He had denied that he is falsely stating that Tinchubha well-come him and asked him from where he has come. On being asked he stated that he is coming from Kutch after getting the engagement of his daughter fixed. Thereafter he was smoking the Bristol sitting there. He had gone to that extent to say that it is true that he has not stated this fact in his F.I.R. However, this omission is proposed in the evidence of P.I. Shri Jhala, P.W. 11, Ex.35. It is not to be found in F.I.R. He has stated in his cross examination that he had not seen both Abhesinh and Ranjitsinh having liquor. If it is stated in the F.I.R. then it is false. He has denied the suggestion that because 2 police men were there therefore now he is changing his version. He has further stated in his cross examination that he said that he was sitting with deceased Tinchubha for nearly 1 to 1-1/4 hrs. He has also admitted that cabin of Nanda closed after 8.30 p.m. and except cot (Patiya) there is no other thing to sit. As per his evidence four chairs were there belonging to Nanda, but Nanda was not there. Chairs were lying open. He had also denied the suggestions that when Tinchubha was taking accused Abhesinh there was no exchange of words between them nor any quarrel was taking place. Both of them i.e. deceased and accused went ahead about 30 to 35 steps from their lorry, thereupon accused Abhesinh took out knife. He had admitted in his cross examination that when accused gave first knife blow he was sitting at the cabin of nanda. He had also admitted that he had not stated in his F.I.R. that knife blow was given on the neck of deceased. He has also admitted that he has not stated in his F.I.R. that he caught-hold of Abhesinh when he was about to give third blow. He has further stated in his cross examination that he caught-hold of the accused Abhesinh and snatched the knife and at that time police men came there. Abhesinh was caught by him. Both the police men gave one stick blow to the accused and left the place. At that time the accused was standing. When the police man gave stick blow he caught-hold Abhesinh, thereafter police men left

after giving stick blow to the accused. He had not told the police men to arrest the accused Abhesinh. Police men left with their Luna. Except him nobody had raised shouts at the time of incident and except the Police men nobody else had come at the place of incident. He had to admit that Chowkidar of Nidhi Agency were sitting in the said building itself. He has also admitted that after the deceased fell down he did not make any arrangement for removing him to the Hospital, but he has simply made arrangement for taking him to the Hospital, but nobody was stopping his vehicle. After the incident he met the man of Shakti Pan House and informed him about the incident. He had denied the suggestion that he had not disclosed the name of the assailant who assaulted Tinchubha to the owner of Shakti Pan House. After 5 to 7 minutes of the incident he went to the house of deceased. He had further admitted in his cross examination that apart from the Tube light of the chowkidar there were other lights there was not stated by him in his F.I.R. because police did not ask him about the same. He has also admitted that he was not knowing the police men came to his house. Police came there after 1/2 hours after he reached his house, when he reached at the place of incident no relative of the deceased was there. He informed the father of the deceased Tinchubha, who must have given his name to the Police. Therefore Police men have called him and asked him as to how the incident happened and on being asked he had lodged his complaint. While taking down the complaint almost one or more than one hour was taken for taking down his complaint. Thereafter the panchnama of scene of offence was recorded in the night in the light of tube-light and in the head light of the car. He had denied the suggestion that the complaint was not lodged in that night itself. He had stated that he had no concern with the police department. He had also denied that prior to the incident he was not knowing Katara. He had also stated that he was doing the massionary work, but since last 1-1/2 years he had shop preparing the Tea. He had denied the suggestion that the entire complaint was concocted and he was got up witness.

7. We have narrated the incident of this witness Velubha in detail. From the above it is clear that his presence was highly doubtful at the place of incident. His conduct at the time of incident and after the incident was highly unnatural. If he was coming from Kutch after getting the engagement of his daughter fixed with sweets then he would not wait for more than one hour in the night at the open place on the invitation of deceased Tinchubha. There is material omission in the F.I.R. regarding deceased Tinchubha well-coming him,

enquiring him, offering him bristol and sitting there for more than one hour. The natural conduct of a person would be to immediately go to his house and distributes the sweets on the auspicious occasion of the engagement of his daughter. It was already a late night. If he had come from Kutch in bus then he would not have first walk down some distance and then hired auto. It is surprising that he got down from Nidhi Agency from Auto and then again started walking down towards his house which was at a short distance. This was only with an intention to show that he was present at the time of incident. Though he remained as Panch witness in one of the cases he was claiming that he had no connection with the police whereas he was knowing police head Constable Katara before the incident by name. We are not prepared to believe that pushed accused Abhesinh and also snatched knife from his hand then he would allow Abhesinh to go scot free. We fail to understand as to why he should be frightened when two police men were with him and where the other two police men and this man were well built. If he had relation with deceased Tinchubha then he would not have left him there after he was assaulted with knife by accused. At least he would have tried to immediately remove the deceased to the Hospital or he could have straightway gone to the police station to lodge F.I.R. He has not done anything and simply, according to him, went to the house of father of the deceased and informed about the incident to his father. He claimed to lodge F.I.R. in the light of the tube-light which were there, but it has come in the evidence of P.I. Shri Jhala that no lights were there. Under the circumstances we are not prepared to rely upon the evidence of this witness, because in our considered opinion at the most he is a chance witness and no reliance can be placed on his evidence.

8. This brings us to the evidence of another so called eye witness Kantilal Thavarji, P.W. 4, Ex.15. He is a police man. He had duty from 8.00 p.m. to 8.00 a.m. for 12 hours in Devbag Area. According to him Garbi programme was not to be held there, therefore he had gone to Gadhechi Chowky. He had gone to inquired about one complaint. He had gone near Fulsar. At that time deceased Tinchubha was sitting there on the chair near Nidhi Agency. He along with another constable went there and smoke cigarette. At that time complainant Velubha came there. He knows him because he was having tea lorry near A.D.V. Police Station. However, at this stage we may state that Velubha, the complainant, refused to admit that he was knowing this witness Kantilal and other police men except Shri Katara. As per his evidence

deceased Tinchubha was taking the accused Abhesinh towards tempo. At that time accused gave 2 knife blows. Thereupon Velubha ran and tried to snatch away the knife from his hand. Therefore he gave one stick blow to the accused Abhesinh and Velubha could snatch the knife from Abhesinh. After Velubha snatching the knife they left. He dropped another constable on the road. He was frightened therefore he ran away. According to him the accused Abhesinh was head-strong man and he was knowing him because earlier in murder case he came there. He had also identified the Muddamal knife. This was his evidence in Chief. In Cross examination he had stated that on that very night at 11.00 p.m. P.I. Shri Jhala met him at A.D.V. Police Station but his statement was recorded on the next date. He had denied to have stated in his statement before the Police that he had not seen the incident and his statement was recorded later on. He had also denied the suggestion that only with a view to save himself from Departmental proceeding he was giving evidence as per the prosecution case. In his cross examination he has further stated that after the knife was snatched away from the accused he gave him stick blow and therefore he fell down and ran away. Apart from the fact that this is not at all believable, he had not stated this fact in his statement before the Police. He has tried to offer explanation in his cross examination for not resting the accused on the spot though they were three persons together and he himself was a well built 5'.9" height by saying that accused was a head-strong. However, it has come on evidence that the accused was hardly 5 ft. and he was not stronger then this witness. If Velubha could single handedly over power accused who was armed with knife then we are not prepared to believe that once the knife was snatched away from the accused then 3 persons, out of which 2 were the police, would not be in a position to overpower or arrest him on the spot. The incident in question took place on the highway where admittedly lot of people were going-on. He had not even prepared to remove the deceased to the hospital immediately when he had bleeding injuries. Under the circumstances we are not prepared to rely upon the evidence of such witness.

9. Similarly the evidence of another witness Ranjitsing, P.W. 5, is at all not believable because he had admitted in his cross examination that he brought the liquor, but did not consume it. He had not at all stated that the accused gave knife blows to deceased Tinchubha. Another witness Vishvarathsinh Zala is a brother of deceased. He had not seen the incident, therefore, nothing turned out from his evidence, except that Velubha informed him about the incident whereas Velubha did not utter a word that he had informed Vishvarathsinh about the incident. When we are not prepared to attach any importance to the evidence of so called eye witness Valubha then there is no purpose to attach to the evidence of this witness Vishvarathsinh.

10. This bring us to the evidence of P.I. Shri

Jhala, P.W. 11, Ex.35. No doubt it is true that he has denied the suggestion made to him in his cross examination that because the Chowkidar of Nidhi Agency have not supported the case therefore they have not shown as witness. He has also denied the suggestion that the message received in the control Room was likely to cause harm to the prosecution case therefore it was not brought on the record because no name of the accused was disclosed in the message. He had also stated that he had recorded the statement of Bhagvatsinh of Shakti Panwala, but said Bhagwatsinh is not examined. He had to admit that there was reference to only one Lamp Post in Panchnama and on that lamp post no tube light or bulb were fixed and there was no reference to the light on Nidhi Marketing Agency and there is nothing to show that the complaint was reduced in writing in light of the lamp post. This falsifies the evidence of so called eye witness that there was a light there and in the light they had seen the incident. From his evidence it is clear that though the independent witnesses were available and perhaps their statement must have been recorded, but they were not offered for cross examination because their statements were not at all supplied to the accused. In this type of case it is very difficult for us to rely upon the evidence of such chance witnesses.

11. In view of above discussion this Appeal is allowed. The impugned Judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge in Sessions Case No.6 of 1992 convicting the appellant accused for the offence u/s. 302 I.P.Code and sentenced him to suffer life imprisonment and also convicting him for the offence u/s.135 of the Bombay Police Act and to impose simple imprisonment of 4 months and to pay fine of Rs.500/- indefault to further undergo S.I. for 2 months are hereby quashed and set aside. The appellant accused is ordered to be set at liberty forthwith if not required in any other case. Fine if paid, be refunded to the appellant - accused.

�����( B.J.Shethna,J.) Date : December 10, 2001

�����( D. P. Buch, J.)

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