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2009 Supreme(Guj) 347
2009 (3) GCD 1865 (Guj) (DB)
Hon’ble Mr. Justice Bhagwati Prasad &
Hon’ble Mr. Justice Bankim N. Mehta
Rameshbhai Amrutlal Patel [Ahmedabad]
Versus
State of Gujarat
Criminal Appeal No. 799 of 20021—Decided on 15/05/2009
Appearance :
Mr. Yogesh S. Lakhani, Senior Advocate with Mr. H.D. Chudasama and Ms. Rekha Kapadia, for the Appellants.
Mr. A.J. Desai, Additional Public Prosecutor for the State.
Point in Issue :
Whether prosecution has successfully established it’s case against an appellants for conviction?
Headnote:Head Note :
[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 302/34 — Murder — Conviction — Testimony of sole eye-witness — Appreciation of — Finding as to — Sustainability — The entire case against accused appellants rests on the testimony of sole eye-witness ‘G’ — On two material counts he had been established by defence to have prevaricated from his previous statement — He has given go-bye to the story which was adopted by complainant in his complaint — Thus he not only discredits himself but also discredits the story put up by complainant — He becomes on witness who is prone to bring in falsehood in his version — Another false version which he gave is regarding auto-rickshaw which he does not possess — Therefore, the basic reason for his being there on the place of incident falls to the ground and his presence at the scene of offence becomes doubtful — Court opined that the resiling character of his evidence forces to hold that his witness is not reliable — There is further no corroboration available on record — The alleged recovery of two weapons is from an open space which can not also be taken for corroboration of prosecution story — Court, therefore, set aside their conviction.
Held :
The entire case rests on the testimony of sole eye-witness, Gafoor @ Amarsinh Dabhi. On two material counts Gafoor @ Amarsinh had been established by the defence to have prevaricated from his previous statement. He has given go-bye to the story, which was adopted by the complainant in his complaint. Thus, he not only discredits himself but also discredits the story put up by Ranjitsinh that Ranjitsinh, Pratapsinh and Jitendrasinh had gone to Jamfarwadi at Dipak’s house. If the testimony of Gafoor is considered, then this shifting of the witness Ranjitsinh from Parmeshwar Park to Jamfarwadi never occurred. The prosecution had a dubious intention in creating a case, which had fallen. [Para 10]
Gafoor becomes an witness who is prone to bring in falsehood in his version. Another false version, which he gave is regarding auto-rickshaw, which brings him on the scene of occurrence. According to him, the rickshaw is registered in his name, which story is falsified by the record of RTO. The rickshaw stood in the name of Manibhai Revabhai Rathod. If the rickshaw was not in the name of Gafoor, then, there is no reason of Gafoor possessing it. He does not say that Manibhai Rathod gave it to him for plying. Then, he falsifies himself and goes to the extent of saying that he does not know whether a permit is necessary to ply the auto-rickshaw or not. Thus, naturally, there is no question of not possessing permit in the name of Gafoor. The reason of Gafoor being on the spot of the incident falls to the ground. He is a chance witness. The chance witnesses have a tendency of suddenly appearing and disappearing. The auto-rickshaw therefore does not belong to him. Therefore, the basic reason for he being there on the place of incident falls to the ground and his presence at the scene of offence becomes doubtful. [Para 11]
There is no corroborative piece of evidence available on record. Two recoveries of weapons recovered from open place, which is accessible to all and sundry, cannot be said to be a recovery in terms of Section 27 of the Evidence Act, 1872. If there is no corroboration, then the evidence of solitary eye witness, who is held by us as untruthful cannot be relied upon. There is no other evidence which is available on record, which can be pressed into service. In that view of the matter, the prosecution has miserably failed to bring home the case against the accused-appellants. [Para12]
Law Laid Down :
The chance witnesses have a tendency of suddenly appearing and disappearing.
Bhagwati Prasad, J.—The present group of appeals arise out of the judgment and order dated 30th July, 2002 passed by the learned Additional Sessions Judge, Court No. X, Ahmedabad, in Sessions Case No. 163 of 2001 whereby the learned Sessions Judge convicted the accused Nos. 1, 2, and 3 for the offence under Section 302 read with Section 34 of IPC and sentenced them to undergo life imprisonment with a fine of Rs. 5,000/-.
2. The present group of appeals arise from the same judgment and order passed by the learned Sessions Judge and therefore are being heard and decided by this common judgment and order.
3. The prosecution story as contained in the first information report was that Ranjitsinh s/o Pratapsinh resides at Parmeshwar Park alongwith his another brother Jitendrasinh and father Pratapsinh. Those were the days when the incident occurred preparations for marriage of Jitendrasinh were going on. In connection with the marriage of Jitendrasinh they had gone to Jamfarwadi and while they were there talking to Dipak, who is another son, about marriage preparations of Jitendrasinh, the accused persons had said to have come. They are also said to be friend of the deceased. They called Dipak with them and took him away. The deceased did not turn up until 11.30 PM at Jamfarwadi and three persons, namely, Ranjitsinh, Pratapsinh and Jitendrasinh continued to be there waiting for him. Then, while they were thinking of going in search, Gafoor @ Amarsinh Dabhi arrived there and on his arrival he informed them that while he was driving his rickshaw, he had two passengers whom he had taken to Sattadhar Society near Baroda Express Highway. He heard certain skirmishes. Having identified that the noise could be that of Dipak, he went there and saw that the accused persons were assailing Dipak. Accused No. 1 was armed with sword, accused No. 2 - Pappu Pager had knife and accused No. 3 had no weapon and he was hitting the deceased with kicks and fists. Seeing the accused performing the aforesaid acts, this witness turned around and went to Parmeshwar Park where he did not find these three persons and therefore he came to Jamfarwadi and informed them.
4. The learned Counsel for the accused submits that out of the prosecution witnesses, Ranjitsinh, Jitendrasinh and Pratapsinh, Pratapsinh and Jitendrasinh have not been examined. Ranjitsinh in his statement has stated that he has not gone to Jamfarwadi on the date of the incident and if anything to that effect is stated in the complaint, that is false. According to the statement of Ranjitsinh, he never went to Jamfarwadi. Thus, if the statement of this witness is taken into consideration, then, he alongwith two others was at Parmeshwar Park and has not gone to Jamfalwad and the circumstance which the prosecution has tried to press against the accused in the nature of last seen with the deceased vanishes and there is no evidence to suggest that accused had took Dipak with them.
5. This takes the prosecution case to the occular evidence of Gafoor @ Amarsinh Dabhi. This witness is a chance witness and this witness stated that he owns auto-rickshaw bearing registration No. GJ-7-4948 and on the date of the incident he was standing near Rajinder Park alongwith his auto-rickshaw at 9 PM. At that time two passengers approached him for going to Sattadhar Society. He dropped them at Sattadhar Society and while he was returning he hard shouting and he realised that it was sound of his maternal cousin - Deepak. He, therefore, took the rickshaw towards Dodsel company and saw accused No. 1, Pappu Pager giving sword blows to Dipak, accused No. 2-Nirmalsin @ Fatio Rajendrasinh giving knife blows to Dipak and accused No. 3 - Rameshbhai Amrutlal Patel giving fist and kick blows to deceased Dipak. He got scared and rushed to the home of his maternal uncle - Ranjitsinh and told him about the incident. They went to the scene of offence and found Dipak to be dead. They therefore went to CTM police chowky for lodgi
