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2007 Supreme(Guj) 300
Gujarat High Court
Judgename :A.L.DAVE, SHARAD D.DAVE
DAHYABHAI KANABHAI PARMAR - Appellant
Versus
STATE OF GUJARAT - Respondent
Criminal Appeal 633 Of 2000
Decided On : 05/04/2007
Headnote:Point in Issue :
Whether prosecution evidence led in the case is sufficient to sustain conviction of appellants for alleged offences?
Head Note :
[Indian] Penal Code, 1860 (Central Act 45 of 1860) - Sections 302 read with Section 34 and 323 read with Section 34 - Bombay Police Act - Section 135 - Murder - Conviction - Appreciation of evidence - Finding as to - Sustainability it is alleged that on account of marriage of "D" with appellant "DK" and deceased "GNA" having married to a Hindu there was tension and annoyance between the parties - As a result when deceased "GNA" and "D" went to the house of one "C" they were attacked by appellant with knives and iron pipes - "GNA" succumbed to injures - "D" had however run away from place of occurrence - However "G" and "N" wife of "G" who came to intervene were also injured - The prosecution in order to prove offences against appellant has examined four eye-witnesses - Two of them have not supported the prosecution case - Only "G" and "N" parents of "D" have lent support to the prosecution case - On close scrutiny of prosecution evidence Court found that gensis of the incident is inconsistent and unreliable - The evidence on actual occurrence is also inconsistent and unbelievable - The evidence of "N" suffers from defects from which evidence of "G" also suffers and there is no reason to take different view in respect of evidence of "N" and place reliance on her evidence as has been done by trial Court - Court found that prosecution case suffers from large number of defects, therefore, it is risky to rely on evidence of solitary witness "N" and confirm the conviction recorded by trial Court - As a result accused appellants are acquitted of the charges levelled against them.
Held :
The sum and substance of the prosecution case is that the evidence on genesis of the incident is inconsistent and unreliable. The evidence on actual occurrence is also inconsistent and unreliable. The evidence of what happened after the incident is also inconsistent and unreliable. The investigating agency has acted in a casual and careless manner, if not dishonest. The evidence of Nirmalaben suffers from the defects from which evidence of Gokulbhai also suffers and there is no reason to take a different view in respect of evidence of Nirmalaben and place reliance on her evidence. With the prosecution case suffering from a large number of defects discussed hereinabove, it is risky to rely on evidence of Nirmalaben Gokulbhai and confirm the conviction recorded by the Trial Court. The appeal, therefore, merits acceptance. [Para 12]
Law Laid Down :
In order to assess the reliability or veracity of investigation inconsistencies contrary to record must be kept in view.
Conclusion :
Prosecution case suffers from a large number of defects and it is risky to rely on prosecution evidence to confirm the conviction recorded by trial Court.
Decided in Favour of :
Appellant
Appeal Allowed
( 1 ) THE present appeal arises out of a judgment and order rendered by City sessions Court. Ahmedabad in Sessions case No. 48 of 2000 on 29th June. 2000. The appellants were tried by the City sessions Court for offences punishable under Section 294 (b) read with Section 114, section 326 read with Section 114 and section 302 read with Section 114 of I. P. C. and Section 135 of Bombay Police Act. The trial Court convicted the appellants for the offences punishable under Section 302 read with Section 34, Section 323 read with section 34 of I. P. C. and Section 135 of bombay Police Act and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default, to undergo further imprisonment for six months for the offence of murder and the Trial Court did not award any separate sentence for the other offences for which the appellants were convicted.
1. 1 The incident in question occurred on 14th October, 1999 at about 8. 30 p. m. at rajiv Nagar area in Ahmedabad. As per the prosecution case, one Dharmendra gokulbhai had married Daksha - daughter of appellant no. 1 - Dahyabhai Kanabhai. This was not liked by Dahyabhai and there was tension prevailing between the families. Dharmendra had a friend named Gulsher nasim Ahmed. He had also married a hindu girl and they were staying in same area. On the day of incident, Gulsher and dharmendra came to the place of Gokulbhai on a scooter borrowed by them from a friend named Rajesh Desai. While they were parking the scooter, they were attacked by the present appellants who were armed with knives and iron pipes. In the attack, gulsher sustained severe injuries and succumbed to it at a later point of time whereas Gokulbhai and his wife Nirmala also suffered injuries. On the incident occurring, Dharmendra fled away from the place whereas Gulsher, after suffering injuries, rushed to Hardasnagar police chowky (outpost) nearby and asked the police constable on duty to help him find an autorickshaw. The police constable helped him find out an autorickshaw, made him sit into it and sent him to Shardaben Hospital. Gulsher was dropped by the rickshawwala at the hospital where he was given treatment. Parallel to this, Gokulbhai also went to police and informed about the incident and then went to Civil Hospital. Gokulbhai s wife Nirmala went to shardaben Hospital for treatment. History was recorded by the doctor in the case papers in respect of three injured persons. Police was then informed. Police came to the hospital and recorded the F. I. R. from gulsher. Gulsher s cousin uncle Shamim came to the hospital, found that the deceased was not able to speak. So, he went back and came again to the hospital around 11. 00 p. m. At that point of time, the deceased was in a better state of health as per the prosecution case and disclosed to shamim as to how the incident had occurred. The police wrote a yadi to the executive Magistrate for recording dying declaration but before the Executive magistrate could come and record the statement, the deceased succumbed to the injury. Since F. I. R. was already registered, investigation was made. The accused came to be arrested and while they were in custody, they are alleged to have discovered the weapons in presence of panch witnesses. The police, having found sufficient evidence, filed charge-sheet against the three appellants in the court of Metropolitan magistrate who, in turn, committed the case to the City Sessions Court and Sessions case No. 48 of 2000 came to be registered.
( 2 ) CHARGES were framed against the appellants at Exh. 1 to which they pleaded not guilty and came to be tried. The City sessions Court recorded the evidence led by the prosecution and ultimately came to the conclusion that the prosecution was able to establish charges against the appellants and recorded conviction, as stated hereinabove.
( 3 ) WE have heard learned advocate Mr. Lakhani for the appellants and learned APP ms. Patel for the respondent -
