VIRAM SUKA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is filed under Section 374 of the Code of Criminal Procedure, challenging the legality and validity of the order of conviction and sentence passed by the learned Additional Sessions Judge, Porbandar in Sessions Case No. 23/90. The appellant nos. 1 and 2 are original accused no. 1 and 2 respectively.

(2.) The appellants were tried for the offences punishable under Section 302 read with Section 34 of I.P.C. After the conclusion of the trial, the learned trial Judge held accused no.1 guilty of charge of offence punishable under section 325 of IPC and sentenced him to undergo 7 years' rigorous imprisonment and to pay fine of Rs. 1000/- and, in default of payment of fine, the learned trial Judge has imposed punishment of rigorous imprisonment for 6 months. Accused no. 2 was sentenced to undergo rigorous imprisonment for 9 months and to pay fine of Rs. 500/- and in default thereof, punishment of rigorous imprisonment for three months is imposed.

(3.) Mr. Vijay Patel, learned counsel appearing for the appellants on behalf of M/s. H.L. Patel Advocates, has taken me through the various grounds under which legality and validity of the judgment and order impugned herein has been assailed. Mr. Patel has also taken me through the judgment as well as documentary evidence led during the course of the trial. According to Mr. Patel, the findings recorded by the learned trial Judge are based on erroneous appreciation of evidence. It is submitted that the persons who have been examined as eye witnesses ought not to have been believed as their presence near the spot of the incident was doubtful. It is submitted that the learned trial Judge has not considered the material statements made by the witnesses and the conflict interse in their evidence. That one significant aspect has been ignored that of change of place of incident actually occurred. It was submitted that point of delay in lodging the FIR adversely affects the case of the prosecution; that the reliability of the witnesses is also one of the points urged before the Court. That the learned trial Judge ought to have observed that two important witnesses, namely Kaliben and Dhaniben, that is, daughter of the deceased and widow of the deceased may not be present near the spot of the incident. That material panch witnesses have not supported the case of the prosecution and important witnesses who were genuinely present at the time of the incident or immediately thereafter, have not been examined. It was submitted that non-examination of important witness has resulted into serious miscarriage of justice and this Court should hold that the prosecution has acted in unfair manner in conducting the trial and selecting the witnesses for examination. It is also argued that on a close scrutiny of the evidence, it appears that medical evidence does not support the version of so-called eye witnesses and that two important witnesses examined by the prosecution, namely, Devshi and his mother Puri have not stated specifically that they have or any one of them has actually witnessed the incident, that is, the act of assault. That their evidence can be said to be hazy. That the accused appear to have been the persons selected by the police to resolve the crime at the instance of the son of the deceased. However, backbone of the argument of Mr. Patel is that a very important witness, that is, injured himself could not be examined who was best available person for prosecution and with the investigating agency. But for the reasons best known to the prosecution, no evidence which could be said to be legal in nature, has been brought on the record. That the police did not record the complaint of the injured himself and there is no evidence to show that he was unconscious throughout and in the early hours, he was not able to narrate the incident. That considering the physical condition of the victim, when the hospital authorities of Porbandar decided to shift him to better and bigger hospital at Jamnagar known as Guru Govindsinh Hospital, Porbandar police could have arranged for recording of his dying declaration. Even the doctor could have recorded his statement in the form of dying declaration. Even the police personnel on duty in Guru Govindsinh Hospital could have recorded his statement in the form of dying declaration. It is submitted by Mr. Patel that the hospital authorities at Jamnagar could have intimated either local police or Porbandar police to see that the dying declaration of the injured is recorded. On the contrary, it has come on record that as the physical condition of the injury deteriorated during the treatment, family members decided to take the victim to his residence in his native village, where the incident had occurred. After about 20 days, the victim succumbed to the injuries. It is very likely that he might have succumbed to the injuries, but it is the duty of the prosecution to establish that fact. It is submitted that the relatives including son of the complainant who was Sarpanch of the village Panchayat, who is the responsible person, had not even cared to inform the police about the death of his father. Therefore, the investigating officer could not arrange for postmortem of the deceased. It is submitted that as it was not possible for the prosecution to establish the link between the injuries sustained by the deceased and the death, the accused could not have been linked with the crime punishable under Section 302 of I.P.C. It is submitted that the implication of the accused no. 2 appears to be a planned decision of the complainant. That the so-called animosity was existing between the deceased and his family and the accused no. 1. Accused no. 2 is undisputedly son in law of PW Dhani, daughter of deceased. It is the say of the prosecution that as the daughter of deceased was not permitted to go to her matrimonial home, the appellant no.1, original accused assaulted the deceased on the date of the incident.According to Mr. Patel, evidence led by the prosecution is inadequate to link the accused with the crime. The accused persons were at least entitled to get benefit of doubt in absence of cogent and convincing evidence linking the accused with the crime.