DALPATSINH GAMBHIRSINH BARAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) NINE accused persons (A-1' to 'a-9' for short)were charged and tried by the learned Additional Sessions Judge, ahmedabad City, in Sessions Case No. 97 of 1992 for the offences under Sections 302/34,201/34 and 193/34 of the Indian Penal Code ('the IPC' for short) on the accusation that on 10. 1. 1989 A-1 had taken Navinchandra dahyalal Dholakia on police remand in connection with an offence of theft and during the remand period, A-1 and other accused persons had interrogated the deceased and during the course of the interrogation, by sharing common intention to cause death of Navinchandra Dahyalal dholakia, all the accused persons tortured him and inflicted multiple injuries with lathi (stick) and committed his murder (custodial death ).

(2.) THE prosecution case as disclosed from the FIR and unfolded during trial is as under:

(3.) MR. K. J. Shethna, learned advocate for A-l, the appellant of Criminal appeal No. 209 of 1998, has submitted that there are three eye witnesses in this case who saw Navinchandra falling down while trying to escape from the police and while running he fell down and received multiple injuries. They have been examined by the prosecution and they have deposed before the court as per their statements. The trial court has failed to appreciate the effect of the evidence of so-called eye witnesses which gives a clean bill to A-1. He has also submitted that before bringing home the guilt of murder and by proving to the hilt there must be the evidence of nexus between the act of A-1 committing an offence of murder or if not murder even of committing an act on his part resulting into the injury on the person of deceased Navinchandra. From the evidence of the so-called eye witnesses what is proved is not the assault at the hands of A-1 or any other accused on the person of Navinchandra but, on the contrary, what is proved is the resultant injuries because of the deceased having dashed against the iron fencing, then A-1 cannot be punished for the offences with which he was charged. It is also highlighted by him that there are no eye witnesses to the acts of beating the deceased by A-1. It is also emphasized by him that in Ex. 82, the inquest report of deceased drawn by P. W. 18, ashokkumar Mathurji Thakor, Ex. 81, 13 injuries are recorded. Therefore the factum of these 13 injuries is consistent with the prosecution's own case coming forth from the aforesaid three eye witnesses that on the day on which deceased was apprehended by the police, he received such injuries while trying to make good his escape. By referring to the evidence of P. W. 6, Dr. Dhanraj jashraj Kothari, Ex. 42, it is submitted by mr. Shethna that his evidence is only an opinionated evidence and not an evidence of fact. However, the trial court has considered that opinionated evidence and has recorded an erroneous finding. In support of the contention that an opinionated evidence cannot be considered for the purpose of recording conviction, Mr. Shethna has relied upon the following three judgments of the supreme Court: (i) RAM BALI V/s. STATE OF U. P. (2004) 10 SCC 598; (II) VISHNU ALIAS UNDRYA V/s. STATE OF MAHARASHTRA (2006) 1 SCC 283; (III)KRISHNAN AND ANOTHER VI s. STATE, REPRESENTED BY INSPECTOR of POLICE, (2003) 7 SCC 56. 3. 1. It is also contended by him that if the judgment and order passed by the trial court acquitting A-2 to A-9 of all charges is confirmed by this Court then in the absence of any charge indicating any particular-overact on his part for commission of any offence, as the original charge against him and his co-accused was read with Section 34 ipc, he cannot be convicted of any substantive offence. Therefore, if his participation in the alleged offence is accepted by his Court, then assuming without admitting the same, he can be held guilty only on the basis of minimum liability and in support of this submission, he relied upon the following two jdugments of the Supreme Court: (i) MOHANSINGH AND ANOTHER v/s. STATE OF PUNJAB, AIR 1963 SC 174; (II) KRISHNA GOVIND PATIL, AIR 3. 2. He, therefore, urged that the judgment and order convicting and sentencing A-1 is recorded without any substantive evidence and therefore the same may be quashed and set aside by allowing the appeal and thereby acquitting A-1 of the offences with which he was charged. 3. 3. Alternatively it is submitted by him that if A-1 is convicted for a lesser charge then he may not be sent to jail and he is ready to pay compensation which he can pay to his utmost capacity to the heirs and legal representatives of deceased navinchandra Dahyalal Dholakia and thereby prayed for mercy. Mr. Shethna, therefore, urged to pass appropriate orders in this regard.