JIVABHAI KARSANBHAI KARMUR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal is filed against the judgement and order dated 6. 5. 2003 passed by learned Sessions Judge, Jamnagar, in Sessions Case No. 101 of 2000. The learned trial Judge by the aforesaid judgement convicted the accused under Sections 302, 34 and 120 (B) of the Indian Penal Code and sentenced to life imprisonment with fine of Rs. 5,000/- and in default of payment of fine to undergo imprisonment for six months.

(2.) THE argument of the learned counsel for the appellants is that there are two versions of the prosecution, one is given by the complainant Nagabhai Shidabhai and another given by two eye witnesses, namely, Bhaya Ranmal and Vajshi Virabhai. According to the complainant, Jethabhai, the deceased, was working at the stone Crusher since 8. 00 a. m. and at about 9. 00 a. m. he called him and at that time two accused persons came down in a Jeep and assaulted the deceased. The story given by the eye witnesses was that Jethabhai came at 9. 45 a. m. on a motor cycle and accused No. 1 came in Jeep and accused No. 2 came on motor bike with third person Nagabhai who has neither been arrested nor produced. According to the prosecution, there was third accused to which the prosecution has given no credence. If we compare the story given by two eye witnesses and story given by the complainant then we find a total contradiction in their story because according to the complainant Jethabhai was already present at the Stone Crusher and working in the office. This set of version of the prosecution has to be rejected. If we believe the eye witnesses who say that deceased came on motorcycle and soon after the accused came and assaulted the deceased. Body was brought by eye witnesses to hospital but then the circumstances and evidence of the Doctor indicate otherwise. The dead body has not been carried by eye witnesses from the scene of occurrence to hospital which falsifies the eye witnesses. According to the story given by the Doctor, the PSI had informed that the deceased was lying on Jamnagar-Khambalia road in injured condition and he has brought the body. He does not make any mention of the eye witnesses or the complainant being anywhere near the scene of the occurrence. This is also important that the stone crusher was out of functioning order and there was no business activity. Therefore, Jethabhai would not have been there on duty because there was no power connection since last 15 months. The presence of Jethabhai and the eye witnesses thus in the manner as stated is doubtful.

(3.) ACCORDING to the Doctor the dead body was brought by one PSI, Khambhalia. That PSI has not been produced and examined. Since the PSI has not been produced, we are not in a position to know as to who brought the dead body, either PSI or as alleged by the prosecution by the prosecution witnesses. This is a very crucial circumstance which knocks out the bottom of prosecution case and excludes the presence of the complainant and the two eye witnesses from the scene of occurrence because if they were there, they would have certainly taken the deceased to the hospital which is not the case of the hospital authorities and to bring out the truthfulness, the PSI Khambhalia has not been produced. His non-examination at the trial creates a doubt because there could have been a case that the dead body was brought by the eye witnesses and the PSI then forwarded to the Doctor but that is not there. That would have only been explained if the PSI was examined. Non-examination of PSI, Khambalia, knocks out the bottom of the prosecution because if the PSI brought the dead body then the eye witnesses were not present on the scene of occurrence. These two versions of the prosecution case are available on the record. The two versions are irreconcilable , we are not in a position to vouch safe that any one of these versions is correct. In cross-examination none of the two eye witness and the complainant have stuck to their initial statement in the police and further prevaricated their statements resulting into their presence at the scene of occurrence doubtful because the complainant when asked that he has not said that accused have come on bullet, he said that he forgot to mention in the complaint. It is thus a fact that this witness is not a truthful witness.