STATE OF GUJARAT Vs. GAGJI SHANKER DODIYA

JUDGEMENT

(1.) xxx xxx xxx.

(2.) Baldevbhai Chunilal (PW 11, Ex. 34) was the driver of the truck which was hired by the deceased. In his presence the incident took place. He has totally given gobye to his police statement. The incident in question had taken place during night hours in a small village and, the complainant being a stranger to the accused, it was incumbent upon the Investigating Officer to hold identification parade to identify the accused. However, no identification parade was held and the complainant identified accused Nos. 1 and 2, for the first time in the Court, as the persons who came out from the truck. Even though the complainant informed PSI Pankajbhai, who was very much there at village Adariyana, about the incident, and even though the case of cognizable offence was disclosed, the PSI did not record the FIR and on the contrary asked the complainant to go to Zinzuwada village, at a distance of about 40 kms. from the scene of offence, and to file complaint there. The complainant went to Zinzuwada by bus and informed Prabhashanker (PW 14, Ex. 37) and Harishanker, two brothers of the deceased of whom one went to the police station and lodged the complaint. The complainant, in his cross-examination, has clearly admitted that at the time of the incident many persons collected there and he had not seen the two brothers of the deceased there. However, in his police statement, he has categorically stated that many persons including the brothers of Bhogilal were present. He has also admitted that he came to know from the brothers of Bhogilal that there was a murder case of Shankerbhai Ajmalbhai the father of the present respondent accused Nos. 1 and 2 and many persons were involved in the said case and that deceased Bhogilal was one of them and that because of that this incident has taken place. Even though he has stated this fact in his police statement, he has denied it in his evidence. If the brother of the deceased were present when the incident took place, we fail to understand why they had not filed the complaint and what was the need for the complainant to go to Zinzuwada and to meet the elder brother of the deceased and thereafter to file the complaint. As stated above, PSI Pankajbhai was verv much present at village Adariyana and he was in fact in-charge of Dasada Outpost as well as Zinzuwada Police Station. Instead of asking the complainant to go to Zinzuwada, he could have as well recorded the complaint, but nothing was done and, on the contrary, he allowed the time to lapse. Even though the complainant has stated in his evidence that he halted for the whole night at the police station and went to the scene of offence at or about 7.30 on the next day morning, when he was confrontedwith his further statement, he admitted that he was at Zinzuwada at the house of Prabhashanker the brother of the deceased for the whole night. In view of this, if the complainant had stayed with Prabhashanker and the other brother of the deceased had accompanied the complainant to the police station for the purpose of filing the complaint and admittedly the deceased was one of the accused in the murder case of the father of the appellants, the false involvement of the accused at the instance of the brothers of the deceased through the complainant cannot be ruled out. Thus in view of the contradictions and improvements in the evidence of the complainant, it is not safe to rely on his evidence.

(3.) Ramilaben Sevantilal Shah (PW 4, Ex. 21) has been examined by the prosecution who, according to the prosecution, was the eye witness to the incident which had taken place just near the Ota of her house and she in fact witnessed the same. Having perused her evidence, we are of the view that she has totally supported the defence. Even though she saw the incident, i.e. dashing of the truck with the car, and that the two persons coming out from the truck, and heard the hot exchange of words between them, and yet she has stated that she does not know whether two persons who came out from the truck had weapons with them or not and whether there was scuffle between the truck people and the car people. She had not seen anything further. When she again came out, she saw deceased Bhogilal on the road in an injured condition. Without declaring this witness hostile, her attention was drawn to her police statement and she had denied that the truck people had weapons with them. She has also denied that 4 to 5 people had come with weapons from the truck. Admittedly she belongs to village Adariyana and therefore she knew deceased Bhogilal. She has in no unequivocal terms deposed that the two persons who got down from the truck were not the accused and none of the five accused were the person who got down from the truck and that those two persons were known to her. Thus the identity of none of the accused is established even though the accused were known to the witness.