THAKORBHAI VIRJIBHAI VASAVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal is directed against the order of conviction recorded by the learned AddI. Sessions Judge, Broach in Sessions Case No. 14 of 1985. It was prosecution case that appellant No. 1, Thakorbhai Virjibhai Vasava had some quarrel with his father regarding ancestral lands. Appellants Nos. 2 and 3 happened to be the brothers-in-law of appellant No. 1. It is further alleged that on 18th November, 1984 at about 5.30 p.m. at village Chiklota. District Broach, the Appellants have assaulted the deceased. At the relevant time appellants Nos. 1 and 2 were armed with axes, appellant No. 3 was unarmed. When the deceased was administered blow, the daughter of the deceased and sister of appellant No. 1, namely Kasturi was in the dues. She had temporarily come from her matrimonial house to her fathers house. She is the only eyewitness to the incident. After the accused had made good their escape, her other brother Govind came and she informed him about the incident. Govind went to the Police Station and lodged a complaint. Surprisingly in that particular complaint we do not find the names of appellants Nos. 2 and 3. All blows have been attributed to appellant No. 1. The learned Trial Judge on recording the evidence came to the conclusion that the evidence of Kasturi is acceptable and he, therefore, reached the conclusion that the appellants, should be held guilty of the offence punishable under section 304 Part-I read with section 34 of the Indian Penal Code. Having reached that conclusion he proceeded to convict the appellants and sentenced them in accordance with law. Appellant Nos. 1 and 2 were sentenced to suffer seven years R.I. and also to pay a fine of Rs. 500/- in default to suffer further R.I. for one month. Appellant No. 3 for the same offence was imposed sentence of R.I. for three years and was directed to pay a fine of Rs. 250/- in default to suffer further R.I. for 15 days The said order is being challenged before us in the present appeal.

(2.) Mr. V.M. Barot, the learned Advocate appearing for the appellants though he vehemently tried he could not point out any circumstance which might favour appellant No. 1, and which might produce to hold that appellant No.1, has been falsely implicated. Mr. Barot, however, was treading on surer ground when he urged that appellants Nos. 2 and 3 have been wrongly convicted. It may be noted that the only eye-witness to the incident was Kasturi and on Kasturis information Govind had lodged F.I.R. In the said F.I.R. exh. 18 names of appellants Nos. 2 and 3 did not appear and 20 hours after the incident, for the first time in a statement before the police, Kasturi narrated that appellants Nos. 2 and 3 had also participated in the offence. This seems to be a clear after-thought for implicating the brothers in law of appellant No. 1. -A. Mr. Vaidya, the learned Public Prosecutor on behalf of the State of Gujarat tried to argue that Kasturi at the relevant time was under a great mental shock and hence she might not have been in a position to give the names of appellants Nos. 2 and 3 or the overt acts committed by them. If Kasturi was conscious enough to name appellant No. 1 and to narrate to Govind the role played by him and appellant No. 1, who was no other than her full brother, then it would pass comprehension as to how she missed to narrate to Govind the role played by appellant Nos. 2 and 3. Govind who has been examined as P.W. 2 has clearly admitted that he had gathered all information from his sister Kasturi who has been examined as P.W. 4, and if Govind after gathering information from Kasturi had not narrated the names of appellants Nos. 2 and 3 in F.I.R. Ex. 18, then clear inference would be that appellants Nos. 2 and 3 were no where in the picture at the time when the incident took place and their names have been subsequently incorporated in Kasturi's statement on account of either over zealousness of the police or with a view to settle old scores with them if any were outstanding. We, therefore, feel that the learned Trial Judge clearly fell in an error in appreciating the evidence of the prosecution witness qua the role played by appellant Nos. 2 and 3 and he clearly fell in error in appreciating the evidence of Kasturi from this angle. The learned Judge should have been conscious of the fact that in criminal trials even a slightest doubt which is raised in favour of the accused would ordinarily entitle the accused to get acquittal. In the instant case the appellants Nos. 2 and 3 are falsely implicated. The learned Judge in para 7 of his judgment has observed that Kasutri was an interested witness. The words in which the learned Judge observed, are reproduced herein under:So, if we consider this aspect, the scope of the argument or even the possibility cannot be ruled out that this witness Kasturiben ex. 21 cannot be said disinterested and independent witness. Kasturi was married daughter of the deceased and was coming to the house of the deceased and staying there for some time. It is not that Kasturi was having any stiff with her husband but she had a happy married life. It is not that, therefore, the deceased was the sole source of succor for Kasturi and hence she would be interested in implicating somebody. As a matter of fact the observations of the learned Judge run counter. If father of Kasturi was done away within the house when she was present then naturally she would be the witness when the person was done to death in his own premises. In that case the only witness would be the witness present there and the said witness cannot be in any way considered to be an interested witness.

(3.) We fail to understand as to how the learned Trial Judge came to the conclusion that appellant No.3, was alsoguilty of the offence under section 304 of Indian Penal Code read with section 34 I.P.C., then it passes comprehension as to why sentences imposed upon the accused persons vary. If appeiJants Nos. 1 and 2 for the same offence were awarded seven years R.T. then there was no reason to impose only sentence of R.I. for three YearsT for the same offence on appellant No, 3. However, we feel that appellant Nos. 2 and 3 have been wrongly convicted and hence the appeal requires to be partly allowed. Qua appellant No.1 their is no reason as to why the evidence of Kasturi should be discarded. Govind, who lodged F.I.R. within four hours and who had gathered information from Kasturi has very much mentioned in F.I.R, Ex, 18 that it was appellant No. 1, who had inflicted axe blows. We feel that if appellants Nos. 2 and 3 were not to be implicated then the act of appellant No. 1, was such that in all probability he would have been held responsible for the offence punishable under section 302, IPC. Unfortunately for want of States appeal against his acquittal for the offence punishable under section 302, I.P.C. our hands are tied and that point is not required to be touched.