DIPAKBHAI VASTABHAI CHAUDHRI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . [ His Lordships after stating the facts of the case and further observed : ]

(2.) . Whenever defence raises plea of delay in filing complaint, it is for the defence to show from record that delay throws clouds of suspicion and how. It is also necessary to show something from record that the involvement of accused is motivated and delay is caused to concoct the case. To make out such case in defence, defence is required to show from the evidence of prosecution witnesses who were required to act promptly yet have acted deliberately sluggishly. Normally, when prosecution is lodged, be on the basis of alleged delayed complaint, it is on assumption by the prosecution that there is no delay. It is the defence who then has to allege delay. If defence wants to allege delay then defence has to call on the prosecution witnesses whom delay can be ascribed to explain that by providing them an opportunity to explain. Defence cannot, like a bolt from blue, raise the plea at the stage of arguments. Defence has to lay foundation for such plea when the prosecution leads evidence or by way of defence evidence.

(3.) . Panchol Primary Health Centre is at a distance of about 4 km.. from Bamnamaldar. There are only female members in the family of the victims and there are no male members. Parvin, Raman and Minar appear to be cousins and also they being villagers, they might have confused as to what should be done with the injured at night. On the next day morning, they approached Sarpanch. Ordinarily in villages, Sarpanch is the friend, philosopher and guide of the villagers and they only act as per the advise and guidance of Sarpanch. So when the Sarpanch was called on the next day and was told about the incident, the injured was removed to the hospital. Facts as to the incident were disclosed immediately at night by PW 2 to PW 3 and PW 5. On the next day morning, the very facts were disclosed to PW 4 and PW 1, who in his turn advised to remove the injured to hospital and it is he who has gone to lodge the complaint. When the injured was admitted in Vyara Hospital at 1-00 p.m., after the admission of the injured in the hospital, PW 1 or PW 3 could have- gone to Police Station and could have lodged the complaint. To answer this question, it will be relevant to refer to the evidence of PW 1. PW 1 in his evidence has stated that after the treatment of the injured commenced in Vyara Primary Health Centre and he regained consciousness and started speaking, however confused, he has left for Police Station. This suggests that he has not left the injured till he felt that the injured was out of danger at the relevant time or till he gained consciousness as he has become unconscious in Vyara. If a seriously injured person is carried in hospital by a person, normally, he will not leave him till he feels satisfied about his condition. It has so happened in the instant case that PW 1 having satisfied that the injured has regained consciousness, has gone to the Police Station and first information is given. There is no suggestion in the cross-examination of PW 1 that he had any enmity or had any reason worth the name to involve the accused in the instant case. On the contrary, from the nature of cross-examination, it appears that the defence has tried to show that the accused was not there in the village as he was doing job of cutting diamonds. A suggestion is made to PW 1 that he has wrongly named the accused in collusion with Parmeshbhai who is the cousin of deceased. Parmesh is examined as PW 4. If we read the evidence of Parmesh, not a single question is put to him as to whether he has strained relations with the accused in any form. Minor contradictions are there. This explains away delay if any in filing complaint. However, they are not relevant, in our opinion, to affect the evidence of the prosecution witnesses. Thus, in our opinion, evidence of PW 2 is corroborated by the evidence of PW 5, 4 and 1 and has been rightly accepted by the learned Addl. Sessions Judge.