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2009 (3) GCD 2037 (Guj) (DB)
Hon’ble Mr. Justice Jayant Patel &
Hon’ble Mr. Justice Rajesh H.Shukla
Ajabsinh @ Bhagat Andarsinh Parmar
Versus
State of Gujarat
Criminal Appeal No. 899 of 2001—Decided on 12/02/2009
(a) Criminal Trial — Evidence — Contradictions — Appreciation of — Held, contradiction has to be material and directly relevant to that extent to dislodge his capacity as witness to the incident.
Held :
It is well settled that for the appreciation of the evidence of the witness in support of the case of the prosecution, the contradiction has to be materially and directly relevant to that extent. If the witness has made contradictory statement, which does not result into dislodging his capacity as eye-witness of the incident, such contradiction may not assume importance to the extent of considering the case of the prosecution with the support of the deposition of such eye-witness. Mere contradiction of some statement in other part of the case of the prosecution by any witness would not necessarily result into leaving the Court to record the conclusion that the whole deposition of such witness is to be discarded, unless the degree of such contradiction, is so much that the Court gets an impression that the witness has no sanctity for the truth, but his statements are full of falsehood. [Para 13]
Head Note :
(b) Criminal Trial — Motive — Hardly relevant in view of brutal injuries caused to deceased — The intention to kill deceased is apparent from nature of injuries.
Held :
If the case of the prosecution is considered, keeping in view the deposition of the eye-witness, the motive would hardly assume any importance, more particularly in view of the brutal injuries caused by the accused to the deceased in such a manner that the head and the face were totally smashed resulting into various multiple fractures and injuries consequently resulting into the death. The intention on the part of the accused to kill the deceased is apparent from the nature of serious injuries caused to the deceased.
[Para 18]
Head Note :
(c) Criminal Trial — Evidence — Quantum — Required to prove a case — Court held that it is not necessary for the prosecution to bring on record all evidence which may exist — The discretion is left to the prosecution to prove it’s case.
Held :
It is not necessary for the prosecution to bring on record all evidence, which may exist. The discretion is left to the prosecution to prove its case. In a given circumstance, the prosecution may decide to drop the witness or may not bring a particular piece of evidence, if the prosecution finds that without such witness or without such particular piece of evidence, it would be in a position to prove its case for proving guilt of the accused for the alleged offence. Such would not result into making the case of the prosecution fatal, nor the adverse inference would be drawn by the Court, unless the facts and circumstances so demonstrated for concealment of such evidence from the Court. Nothing has come out on record to show that the telephone-vardhi was for a different case altogether than as put forwarded by the prosecution before the Court. In any case, the police vardhi is already on Government record and the defence could request the Court to examine concerned police officer as Court witness. No attempt was also made in this regard. Under these circumstances, Court cannot accept the submission of the learned Counsel for the appellant - accused that as telephone-vardhi has not come on record, it would make the whole case of the prosecution unreliable or non-creditworthy or, in any case, fatal so as to endure benefit to the accused. [Para 19]
Law Laid Down :
For appreciation of evidence of the witness in support of prosecution the contradiction has to be materially and directly relevant to that extent.
Jayant Patel, J.—The present appeal is directed against the judgement and order passed by the learned Sessions Judge in Sessions Case No. 100/2001, whereby the accused has been convicted for the offence under Section 302 of Indian Penal Code (IPC) and the sentence has been imposed upon him of life imprisonment with the fine of Rs. 1,000/-
2. As per the prosecution case, the deceased Vijaysinh and the accused Ajabsinh were brothers and they had some exchange of hot words on account of the regular drinking of liquor by accused - Ajabsinh. The deceased, prior to the incident, had told Ajabsinh - accused that he might stop taking liquor and he should not come to home after taking liquor. Thereafter, the deceased and one Ramsing Ratansinh, who is the nephew of the deceased had gone to the field for sleeping. While both were sleeping in the house, which was in the agricultural field, in different cots, at about 11 O’clock, because of the shouts of hitting and of giving blows, Ramsing got up from his sleep and he saw that his uncle, Vijaysinh, was being beaten with a stick by somebody. The said Ramsing threw torch-light and he saw that his another uncle, Ajabsinh was beating Vijaysinh on the face. He wanted to separate both, but the accused Ajabsinh came forward to beat him also and, therefore, he ran away. Thereafter, Ramsing Ratansinh informed the other members of the family and all came once again at the place and they saw the deceased Vijaysinh lying in the cot, where his face was totally smashed and he did not speak anything. The Sarpanch, Raijibhai was informed by him, but the Sarpanch told him to come in the morning. They also locked the accused - Ajabsinh in the house with a view to see that he might not run away. The Sarpanch thereafter informed the police on telephone and the complaint subsequently was registered with Halol Police Station. The police thereafter investigated the complaint. Ultimately charge-sheet was filed against the accused - Ajabsinh.
3. The prosecution in support of the case examined the following witnesses:—
(a) Nareshkumar Sureshchandra Joshi - P.W. 1, who prepared panchnama of the map of the site.
(b) Ramsing Ratansinh - P.W. 2 (complainant - eye-witness).
(c) Ramanbhai Gamanbhai - P.W. 3, Panch-witness to the Inquest Panchnama and Site Panchnama.
(d) Udesing Kabhai - P.W. 4 Panch Witness for discovery panchnama.
(e) Prabhatsinh Narvatsinh - P.W. 5, Panch-witness for discovery of the clothes of the accused.
(f) Dr.Dinesh Kanjibhai Patel - P.W. 6, who performed Postmortem.
(g) Babubhai Kanubhai Pardar - I.O. - P.W. 7, who conducted the investigation.
4. The prosecution, in support of the case, has produced following documents:—
i. Original Complaint with Notice - Exhibit 15
ii. Inquest Panchnama of the dead body - Exhibit 15
iii Panchnama of the place of office - Exhibit 18.
iv Panchnama of physical condition of the accused and panchnama of the muddamal article - stick produced by him - Exhibit 20
v A copy of the yadi sent for performing postmortem of the dead body of the deceased Vijaysinh - Exhibit 28
vi Recovery Panchnama of the clothes of the dead body - Exhibit 22
vii Copy of the yadi sent for performing medical examination of the accused - Exhibit 31.
viii Copy of the forwarding letter of the muddamal - Exhibit 32
ix Original acknolwedgement for the receipt of muddamal by FSL - Exhibit 33
x Report of the FSL along with Serology Report - Exhibit 34
x Map of the place of incident - Exhibit 11
x Original P.M. Note - Exhibit 27.
x Yadi sent to Mamlatdar, Halol for preparing map of the place of incident - Exhibit 13.
5. The learned Sessions Judge has also recorded the statement of the accused under Section 313 of Cr.P.C., in which the accused has denied accusation and the evidence against him and in the further statement, the accused has stated that he has not committed any offence and the police has filed a false case against him. The learned Sessions Judge, after giving hearing to both the sides, found that the pro
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