STATE OF GUJARAT Vs. THAKARDA BHIKHAJI NATHAJI

JUDGEMENT

(1.) The acquittal of the respondents of the offences punishable under sections 302, 307 read with section 34 of the Indian Penal Code and section 135 of the Bombay Police Act recorded by the learned Additional Sessions Judge, Mehsana vide judgment and order dated February 7, 1992 rendered in Sessions Case No. 93/87 is subject matter of challenge in present appeal, which is filed under section 378 of the Code of Criminal Procedure, 1973.

(2.) The prosecution case in brief is that on March 29, 1987 on hearing uproar, the complainant rushed to the scene of offence towards his thrashing floor and found that accused nos. 1 & 2 had dharia in their hands; whereas accused no.3 had a stick in his hand. The complainant further found that his brother Chhaganji was lying injured in bleeding condition on the ground and son of the complainant named Sardarji was bleeding from the head; whereas accused were fleeing from the scene of offence. According to the prosecution, the complainant raised shouts, as a result of which Thakor Baldevji Ramataji and others gathered at the scene of offence. Sardarji, who is son of the complainant, is alleged to have stated before the complainant that the accused had assaulted Chhaganji and when he tried to intervene,he was given stick blow on the head by respondent No.3. Injured Chhaganji as well as injured Sardarji were removed to Civil Hospital, Kalol and as condition of Chhaganji had deteriorated, the injured were referred to Civil Hospital, Ahmedabad where injured Chhaganji succumbed to injuries during the course of treatment. Complainant Fulaji Ataji had been to village Meda-Adaraj where the incident had taken place and there from had gone to Bavlu Police Station for lodging complaint. The complaint was lodged, according to the prosecution, at about 6.00 A.M.on 30/03/1987 and was registered at the police station as I. C.R. No. 26/87 of Bavlu Police Station for the offences punishable under sections 302, 307, 326, 324, 323 read with section 34 of the Indian Penal Code. The complaint was investigated by Shankerji Navalram Gadhvi,who was discharging duties as Police Sub Inspector, Bavlu Police Station. The investigating officer visited the place of offence and recorded statements of those who were found conversant with the facts of the case. The respondents were arrested on April 2, 1987 and incriminating weapons used in commission of offences were recovered pursuant to information provided by the respondents. Before the First Information Report was lodged at Bavlu Police Station, inquest on the dead body was held by Head Constable, Shahibaug P.S. Chowky. The Head Constable who had prepared inquest report,had sent the dead body for postmortem examination and autopsy on the dead body was performed by Dr. Sunilkumar Madanlal Lad. The increminating articles which were seized during the course of investigation were sent to Forensic Science Laboratory for analysis. On receipt of necessary report from the competent authorities and after completion of investigation, the respondents were chargesheeted for the offences punishable under sections 302, 325, 326 read with section 34 of the Indian Penal Code and section 135 of the Bombay Police Act. The offence under section 302 I.P.C. is exclusively triable by the Court of Sessions and, therefore, the case was committed to Sessions Court, Mehsana for trial. The learned Additional Sessions Judge to whom the case was made over for trial, framed charge against the accused at Exh.1 for the offence punishable under sections 302, 307 read with section 34 of I.P.C. and section 135 of the Bombay Police Act, 1951. The charge was read over and explained to the respondents, who pleaded not guilty to the same and claimed to be tried. Therefore, in order to prove its case, prosecution examined, (1) complainant Fulaji Ataji, PW 1,Exh.16, (2) Udaji Ataji, PW 2, Exh.18, (3) Patel Suresh Amrutlal PW 3, Exh. 19, (4) Jashwantbhai Purshottamdas PW 4, Exh.21, (5) Babubhai Dhulabhai Prajapati,PW 5, Exh.24, (6) Kashammiya Usmanmiya PW 6 Exh.26, (7) Ranchhodji Dolaji,PW.7,Exh.30, (8) Sardarji Fulaji, PW.8,Exh.31, (9) Haren Himatlal Parikh, PW 9, Exh.32, (10) Hayatkhan Abdulkhan PW.10, Exh.34, (11) Dr. Sunilkumar Madanlal Lad, PW 11, Exh.39, and (12) Investigating Officer Mr. Shankerlal Navalsinh Gadhvi, PW.12, Exh.41. The prosecution also produced documentary evidence, such as, inquest report at Exh.12, complaint filed by Fulaji Ataji at Exh.17, panchnama of place of offence at Exh.20, map of scene of offence at Exh.25, entry of case diary at Exh.27, medical certificate regarding injuries of injured Sardarji at Exh.33, postmortem notes of deceased Chhaganji at Exh.40, report received from Forensic Science Laboratory at Exh.43 etc. to bring home guilt to the respondents. Before examination of investigating officer, an application at Exh.35 was submitted by the respondents requesting the court to recall the complainant, as the respondents wanted to put defence case to the said witness. However, the said application was rejected by the learned Judge vide order dated 27/12/1991. The respondents also submitted an application at Exh.44 requesting the Court to issue summons under section 91 of the Code of Criminal Procedure, 1973 to the concerned employee of Civil Hospital, Ahmedabad for production of medical papers pertaining to injuries of Sardarji wherein history of assault as narrated by the injured was noted down by the medical officer. The said application was allowed by the learned Judge and summons was accordingly issued on January 24, 1992, pursuant to which medical papers with history of assault noted down on the papers as narrated by injured Sardarji were produced at Exh.45/1. After recording of evidence of prosecution witnesses was over, the learned Judge questioned the respondents generally on the case and recorded their further statements under section 313 of the Code of Criminal Procedure, 1973. In their statements, the respondents denied the case of prosecution. However, no evidence in defence was led by any of the respondents.

(3.) On appreciation of evidence led by the prosecution, the learned Judge observed that evidence led by the complainant to indicate that he had gone to Bavlu Police Station for the purpose of giving complaint,is not reliable, inasmuch as the evidence shows that the complaint was given at Meda-Adaraj Outpost. The learned Judge deduced that as per the complainant, no policeman had visited village Meda-Adaraj on 30/03/1987 and, therefore, case of prosecution to the effect that investigation was carried out on 30/03/1987 was doubtful. The learned Judge held that the evidence of investigating officer reveals that the complaint was filed before Head Constable, Shahibaug P.S. Civil Chowky and, therefore, the whole case of the prosecution was not reliable at all. The learned Judge noted that presence of so-called eye witness Udaji Ataji at the time of incident was not referred to by complainant Fulaji Ataji either in his substantive evidence before the Court or in his complaint and, therefore, the case that Udaji Ataji had witnessed the incident was not proved. On appreciation of medical evidence and deposition of the injured, the learned Judge concluded that evidence of injured was not corroborated by the medical evidence and he had not witnessed the incident at all. The learned Judge noticed that the report as contemplated by section 157 of the Code of Criminal Procedure, 1973 was forwarded to the concerned learned Magistrate after unreasonable delay and as delay was not explained at all, prosecution case was not believable. In ultimate analysis, the learned Judge gave benefit of doubt to the respondents by judgment and order dated 7/02/1992, giving rise to present appeal.