Gujarat High Court
State Of Gujarat vs Govindbhai Nathubhai Boria on 18 October, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 123 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
==================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
==================================================
STATE OF GUJARAT
Versus
GOVINDBHAI NATHUBHAI BORIA & ORS.
==================================================
Appearance:
MR UTPAL M PANCHAL(1075) for the Appellant(s) No. 1
MR DHAWAN JAYSWAL ADDITIONAL PUBLIC PROSECUTOR for the Appellant(s)
No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,2,4,7,8,9
MR PRANJAL BUCH AMICUS CURIAE for the Opponent (s)/ Respondent (s) No. 10, 3,
5, 6
MR GAJENDRA P BAGHEL(2968) for the Opponent(s)/Respondent(s) No.
10,3,5,6
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 10,3,5,6
==================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 18/10/2024
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE PRANAV TRIVEDI) Page 1 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined
1. This appeal under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code"), is directed against the judgment and order of acquittal dated 25.10.1996 passed by the learned Sessions Judge, Surat, in Sessions Case No. 142 of 1994, whereby the accused persons have been acquitted for the offences punishable under Sections 147, 149, 302, 324 read with Section 37(1) of the Indian Penal Code and Section 134 of Bombay Police Act.
2. While admitting the appeal, this Court has recorded thus :-
"Leave granted. Appeal admitted. Bailable warrant in the sum of Rs.2000/- be issued."
2.1. Subsequent to admission of appeal, bailable warrant was issued on 05.08.2015, wherein the report indicated that respondent accused no. 2 had expired and, therefore, appeal qua respondent accused no. 2 stands abated.
3. After admitting the appeal, by way of order dated 29.03.2022, this Court had recorded thus :-
"It appears that accused no.1 - Govindbhai Nathubhai Boria, accused no.4- Kanubhai Nathubhai Boria, accused no.7- Rajeshbhai Nathubhai Boria, accused no.8- Jitubhai Sureshbhai Boria and accused no.9 - Shashibhai Valjibhai Boria have expired on 11.02.2014, 05.10.2002, 11.12.2001, 04.11.2000 and 19.05.2014 respectively, as per death certificate produced by the police authority while serving notice.Page 2 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024
NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined In light of this position, present criminal appeal stands abated qua accused nos.1, 4, 7 to 9. Stand over to 19.04.2022."
3.1. Thereafter, subsequently, by way of order dated 01.09.2023, this Court had recorded thus :-
"1. The record indicates that surviving respondents Nos. 3, 5, 6, 10 are represented by learned counsel Shri Gajendra P. Baghel, whose name is shown in the cause list. Bailable warrant has been executed upon the said respondents pursuant to the order dated 29.03.2022 passed by this Court. There is no sick note / leave note of the counsel concerned. 2. Let a notice be issued to the respondent Nos. 3, 5, 6 and 10 intimating the date fixed in the instant appeal with the categorical information that they are required to instruct their counsel to appear and argue the matter and in case, non appearance of the said respondents before this Court on the next date fixed, the Court may initiate coercive measures.
2. Let this intimation be sent to the respondents through CJM concern. The report of the CJM concern shall be submitted to this Court on the next date fixed."
4. In view of the above, the present appeal survives against the respondent surviving accused nos. 3, 5, 6 and 10.
5. The facts in nutshell are that on 07.03.2024, a First Information Report came to be lodged by PW-1 Pravinbhai Chhaganbhai Babariya, stating that he was living with his parents, wife, two children as also one brother and his family, as well as deceased brother Kanubhai Chhaganbhai Babariya. There was an Page 3 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined old dispute between the family of the deceased Kanubhai Chhaganbhai Babariya and the family of the accused persons on account of the issue of big wall which was behind the residence of the family of the deceased. The dispute was primarily relating to the family of the deceased and the family of accused no. 7 - Nathu Khoda qua the right of way. There were many altercations with regard to the same. There was another reason for the animosity between the families that the deceased Kanubhai Chhaganbhai Babariya had alleged affair with a girl named 'Varsha' who was from the family of the accused.
6. The case of the prosecution is that on 07.03.1994, at around 09:30 pm, when PW - 1 Pravinbhai Babariya was sitting outside his home, at that time, his deceased brother Kanu Nathu Babariya along with Palo @ Poonam, Naresh and Girish were dancing outside the house by turning on the tape recorder. In the meanwhile, at around 09:30 pm accused no. 1 - Govind Nathu, accused no. 7 - Nathu Khoda, accused no. 9 - Suresh Khoda came there and started abusing deceased Kanubhai Babariya telling him that he was interfering with the marriage celebration going on nearby, by making loud music on the tape recorder. During the altercation, other co-accused persons namely, accused no. 4 - Kanu Nathu, came with the 'knife', accused Page 4 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined no. 8 - Rajesh Nathu came with 'sword', accused no. 7 - Dinesh Nathu with 'gupti' and accused no. 10 - Sindhya also came with 'gupti'. Following them, Jayanti Valji whose marriage was scheduled nearby came with the 'sword' which is used in marriage and Jitu, Suresh, Sashi Valji came with 'hockey sticks' and started abusing the deceased. They also told that the deceased was interfering by making loud noises, disturbing the nearby marriage celebrations and he was having illicit relationship with the daughter in the family of the accused, namely 'Varsha', therefore, he needed to be done away with. So they started attacking Kanu Chhagan Babariya (deceased) wherein Kanu Nathu (accused) inflicted blow of 'knife', Dinesh inflicted blow of 'gupti' as well as Sindhya inflicted blow with 'gupti' on the deceased. The deceased was hit on his chest, back and other parts of the body and, he started shouting. Seeing this, complainant - PW-1 Pravinbhai tried to intervene. He (PW-1) was also hit by 'gupti' by Dinesh Nathu on his back as well as 'hockey stick' blows were given by Jitu, Suresh and Sashi Valji. Having injured and feared death, the complainant and his other friends had run away from the place of the incident. However, as many people had gathered, the accused persons ran away. The deceased Kanu had died on the spot. The complainant with the help of other people of the locality took the deceased to the 'Muscati Hospital', where the Doctors had declared Page 5 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined his brother Kanu Chhagan as dead. As the complainant was injured by blow of 'gupti', he was also got admitted in the said hospital. The police came to the hospital and the complaint was given against the accused persons in the hospital.
6.1. The complainant stated that the accused persons with an intention to avenge as well as having previous animosity with family of deceased, had come together with weapons and assaulted his brother and caused fatal injuries and had also caused injuries to him with 'gupti'.
6.2. The complaint with respect to the incident was filed against the respondents accused at Chowk Bazar Police Station, Surat, as C.R. No. I-58 of 1994. After investigation, on the submission of the charge sheet, the case was committed to the Sessions Court, Surat and was numbered as Sessions Case No. 142 of 1994. Charge was framed against the accused persons who pleaded not guilty, and hence trial was initiated.
6.3. During the course of trial, the prosecution had examined 11 witnesses viz. PW-1 Pravin C. Babariya at Exhibit-30, PW-2 Nareshbhai Becharbhai at Exhibit-31, PW-3 Mohansinh Virsinh at Exhibit-32, PW-4 Channabhai Gamatbhai Pavagadhi at Exhibit-33, Page 6 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined PW-5 Dr. Pratibhaben Jamiyatram Topiwala at Exhibit-36, PW-6 Dr. Mohammed Kureshi at Exhibit-40, PW-7 Rajdev Rghunandan Mauray at Exhibit-44, PW-8 Sajid Nasim Pathan at Exhibit-45, PW-9 Nilesh R. Gajjar at Exhibit-47, PW-10 Rajubhai Chunnilal Thakkar at Exhibit- 50 and PW-11 Arjun Tulsiram at Exhibit-51. Two defence witnesses being the Doctors were also produced by the accused and their deposition was recorded at Exhibit-63 and Exhibit-67. 6.4. The prosecution had placed reliance upon several documentary evidence, more particularly, the copy of the complaint at Exhibit-52, the inquest 'panchnama' at Exhibit-17, the PM note at Exhibit-41, the 'panchnama' at Exhibits-19, 20, 43,42,54, 55 & 56, the FSL report at Exhibit-58 & 59. At the end of trial and after recording the statement of the accused under Section 313 of Code of Criminal Procedure, the learned Sessions Judge had acquitted all the accused persons of all the charges levelled against them, by the impugned judgment and order dated 25.10.1996.
7. We have heard Mr. Dhawan Jayswal, learned Additional Public Prosecutor for the appellant - State and Mr. Pranjal Buch, learned advocate, appointed as Amicus Curiae for the respondent accused.
8. Mr. Dhawan Jayswal, learned Additional Public Prosecutor Page 7 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined appearing for the appellant - State has taken the Court to the testimonies of the prosecution witnesses as well as the documentary evidence on record. It was submitted that the case of prosecution was based on the testimony of two eye witnesses, namely PW-1 Pravinbhai Babariya, who was complainant and injured eye-witness and PW-2 Naresh Becharbhai who was an independent eye witness. It was submitted that the prosecution had duly established the charges against the accused through the testimony PW-1 Pravinbhai Chhaganbhai. The said witness being an injured eye witness in whose presence his brother 'Kanu' has been assaulted in the incident, his testimony is of great weightage. The trial court for irrelevant reason has discarded the testimony of this witness. The contradictions and omissions in their depositions were not so grave to discard their testimony. The finding that the PW-1 witness was making false statement to save himself from the cross complaint is without any basis. The core testimony of the injured eye witness is credible and there was no reason for the trial court to discard the testimony. It was submitted that another independent witness namely, PW-2 Nareshbhai Becharbhai has been duly cross-examined and he has supported the case of the prosecution. This was a case where not only there was an injured eye witness, but also an independent eye witness. It was submitted that the First Information Report was Page 8 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined prompt, lodged immediately after the injured witness and the deceased were taken to the hospital. It was submitted that the prosecution had adduced sufficient evidence to prove the charge against the accused and the trial court was not justified in acquitting them.
9. On the other hand, Mr. Pranjal Buch, learned advocate appointed as amicus curiae for the respondents accused has submitted that the trial court has duly and properly appreciated the evidence on record while acquitting the accused. It was submitted that the trial court while appreciating the evidence has categorically given cogent 11 reasons for the order of acquittal. It has observed that the version given by the complainant and the eye witnesses are not trustworthy. The witnesses were the accused in the cross complaint and the trial court is justified in holding that the witnesses had given testimonies and recorded statements in such a way that they could save themselves in the cross complaint. 9.1. It was categorically accepted by the learned advocate Mr. Buch that the cross complaint or any statement or evidence with regard to the cross complaint had not been brought on record. The defence, however, had adduced evidence of the two doctors, who had examined the injuries of the accused persons. The injuries sustained Page 9 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined by the accused raised doubts on the veracity of the testimonies of the eye witnesses. In these circumstances, the testimonies of the prosecution witnesses being doubtful, the trial court was justified in discarding the eye witnesses. It was further argued that except for the two eye witnesses no other family members was examined. There was a categorical statement by the eye witness PW-2 Naresh Becharbhai that mother of the deceased Premaliben came to the scene after the incident in question and, thereafter, had gone to the Police Station to lodge the complaint. However, such an important witness, being the family member of the deceased was not produced as prosecution witness. The theory of the prosecution raised doubt and, hence, the trial court was justified in not believing the witnesses.
10. In the background of the facts noted herein above, the culpability of respondents accused 3, 5, 6 and 10 is required to be examined.
11. This Court is fully conscious of the fact that it is entertaining the appeal against the order of acquittal. This Court has to scrutinize the facts of case cautiously and keep in mind the parameters fixed by the Apex Court in this regard. It is well settled as held by the Hon'ble Apex Court in the case of Balu Sudam Khalde v. State of Page 10 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined Maharashtra reported in 2010 (9) SCC 189 that every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right, however, subject to the statutory exceptions, and the said principle forms the basis of the criminal jurisprudence.
11.1. The law is well settled that while dealing with the judgment of acquittal passed by the trial court, the appellate court should not ordinarily set aside the judgment in a case where two views are possible though the view of the appellate court may be more probable one. While dealing with the judgment of acquittal, the appellate court has to consider the entire evidence on record so as to arrive at a finding as to whether the view of the trial court is perverse or otherwise unsustainable. The appellate court is entitled to consider whether while arriving at the finding of fact, the trial court has failed to take into consideration the admissible evidence and/or has taken into consideration irrelevant material to base its finding. In exceptional cases, where there are compelling circumstances and judgment, subject matter of appeal, is found to be perverse, the appellate court can interfere with the order of the acquittal. So, in order to warrant interference by the appellate court, the finding of fact recorded by the trial court must outweighed the Page 11 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined evidence.
12. Coming to the evidence on record, the charge against the accused persons is that on 07.03.1994 in the night, the deceased and three other persons were dancing on music played on the tape recorder. At that time, three accused, namely, accused no. 3 - Suresh, accused no. 5 -Dinesh, Jayanti, and accused no. 10 Sindhya came and started altercations with the deceased that marriage in their family was going on nearby and he was interfering with the marriage celebrations by putting on loud music. Thereafter, accused Kanu Nathu Babariya came with the 'Knife'; Rajesh came with the 'sword'; Dinesh came with the 'gupti'; Suresh was also carrying 'gupti'; Jayanti Valji came with 'sword'; Jitu, Suresh and Sashi Valji were carrying 'Hockey sticks'. They all abused the deceased by saying that deceased Kanu was interfering with the marriage function in the family of the accused by playing loud music and since he was having illicit relationship with one of the daughter in their family, so he should be done away with. Thereafter, Kanu with 'knife', Dinesh with 'gupti' and Naresh, Sindhya with 'gupti' started giving blows to the deceased on his back. All the accused got together and formed an unlawful assembly with a view to achieve their common object using unlawful force by deadly weapons and Page 12 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined with the intention to cause serious injuries. While forming unlawful assembly punishable under Section 147 of the Indian Penal Code, accused no. 5 Dinesh also inflicted 'gupti' blow to the complainant (PW-1) who tried to intervene and save his brother. The accused no. 4 Kanu Bariya with 'knife' accused nos. 5 and 10 with 'gupti'; accused no. 6 with 'sword'; accused no. 7 with 'sword' and accused nos. 8 and 9 with 'Hockey sticks' had attacked the deceased Kanu Chhagan Babariya and caused grave injuries resulted into his death. All the accused had been charged for the offences punishable under Sections 147, 148, 149, 302, 324 read with Section 34 of the Indian Penal Code and Section 135 of the Bombay Police Act.
13. PW-1 - Pravin C. Babariya had been examined at Exhibit-30. He has deposed that on 07.03.1994, at around 09:30 pm, when PW
- 1 was sitting outside his home, at that time, persons named Palo @ Poonam, Naresh, Kanu and Girish were dancing outside the house by turning on the tape recorder. In the meanwhile, at around 09:30 pm accused no. 1 - Govind Nathu, accused no. 7 - Nathu Khoda, accused no. 9 - Suresh Khoda came near the house and started abusing deceased Kanubhai and told him that he was interfering with the marriage occasion going on nearby, by making loud music on the tape recorder. During the altercation, another accused persons Page 13 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined namely, accused no. 5 - Kanu Nathu, came with the 'knife', accused no. 8 - Rajesh Nathu came with 'sword', accused no. Dinesh Nathu with 'gupti' and Sindhya also came with 'gupti'. Jayanti Valji whose marriage was scheduled nearby, came with the 'sword' which is used in marriage and Jitu, Suresh, Sashi Valji came with 'hockey stick' and started abusing Kanubhai Chhaganbhai Babariya. They also told that Kanu Chhagan Babariya was interfering by making loud noises, disturbing the nearby marriage and since he was having illicit relationship with the daughter in the family of the accused, he needed to be done away with. So they started to attack Kanu Chhagan Babariya, Kanu Nathu inflicted blow of 'knife'; Dinesh inflicted blow of 'gupti'; Sindhya inflicted blow with 'gupti' on the deceased. The deceased was hit on his chest, back and other parts of the body and, started shouting. Seeing this, complainant - Pravinbhai Babariya tried to intervene, he was then hit by 'gupti' by Dinesh Nathu on his back and hockey stick' blows were given by Jitu, Suresh and Sashi Valji. Having been injured fearing death, the complainant and his other friends had run away. Many people were gathered on the spot, and thus, the accused persons ran away. The deceased Kanu had died on the spot. The complainant with the help of other people of the local residence took the deceased to the 'Muscati Hospital' wherein the Doctor had declared his brother Kanu Page 14 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined Chhagan as dead and as he was injured by blow of gupti, he got admitted in the said hospital. Therefore, the complaint was given against the accused persons.
13.1. In his cross-examination PW-1 stated that when accused no. 5 Govind tried to inflict blow on his stomach, he turned around and hence sustained injuries on his back. However, in the First Information Report, he had only stated that he received injuries on his back and did not state that he had turned around and sustained injuries on his back. With regard to him having run away from the place of the incident, this witness has clarified that he did not run away from the scene of the incident rather took few steps back after he sustained injuries and feared death by the hands of the accused persons. PW-1 further stated that he never stated that he ran away from the scene of the incident immediately. The concerned Police Officer had taken his compliant while he was in the hospital at 11:00 pm and had recorded the aspect of him having run away after the injuries were sustained. In the cross-examination, PW-1 has further stated that in the First Information Report he recorded that accused no. 3 - Govind was involved in the incident, but it may have happened that Govind would not have been in the incident. It has, thus, come out that accused Govind may not have been involved in the incident Page 15 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined of attack. PW-1 also categorically stated about the deadly weapons with the accused and used by them. PW-1 categorically stated in the cross-examination that he had not caused injury to any of the accused persons and that during the scuffle, the accused may have got injuries with their own weapons. It can, thus, be found that the witness PW-1 who is an injured eye witness was consistent in his version before the Court and the statement made in the First Information Report lodged before the Police. This witness had been subjected to detailed cross-examination, but nothing substantial has been elicited so as to dent the credibility of this injured eye witness who is also the complainant.
13.2. The injuries sustained by the complainant injured witness, were also duly corroborated by the medical evidence with the testimony of PW-5 Dr. Pratibhaben Jamiyatram Topiwala. The doctor who examined PW-1 had deposed that on 07.03.1994, in the night at around 11:30 pm, the complainant had come while he had sustained 1 x ¾ inch deep wound on his back and blood was oozing out, and the injury could have been caused by a sharp edged weapon. In her cross-examination PW-5 clarified that the injured had come without Police Yadi, and therefore, the hospital boy from the hospital made a telephone call to the Police. The Police had arrived and formalities Page 16 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined had been completed at the hospital. PW-5 in her cross-examination stated that history had been given by the injured that he was attacked by 'Knife'. She had checked the depth of the wound by rubber cutter. It may have been possible that the injured may not have been inflicted by Mudammal Article no. '6' or Mudammal Article no. '15'.
13.3. It may be noted that the incident had taken place at around 09:30 in the night. The deceased as well as the injured witnesses were at the hospital at around 11:00 in the night and thereafter, First Information Report was lodged at the hospital by PW-1 at around 11:30. The ocular evidence of PW-1 Pravinbhai Babariya is also supported by the inquest panchnama which came to be drawn in the night of the incident at about 12:30 am, wherein crime number registered is mentioned. The inquest panchnama was drawn within one hour from the filing of the First Information Report. Thus, when the events happened in quick succession and all the procedure was followed, there was hardly any scope or reason to disbelieve the injured witness when he deposed that the injury examined was sustained by him on account of the 'Knife' blow. The presence of the witness PW-1 at the 'scene of incident', therefore, cannot be doubted. The version given by the complainant/injured eye witness PW-1 is not Page 17 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined only credible, but is corroborated by medical evidence. 13.4. It may further be noted that the autopsy of the body of the victim came to be conducted on the next day in the morning at 11:10 am. Thus, the inquest panchnama as well as postmortem report came to be drawn after registration of the First Information Report. The injuries mentioned in the First Information Report are based on the knowledge of the complainant witness as narrated by him and cannot be said to be based upon the injuries recorded either by the Police in the inquest panchnama or expert in the postmortem report. PW-1 Pravinbhai Babariya had deposed that his brother was attacked with 'Knife' blows and 'Sword' blows on the chest, stomach and on the back part of the body, whereafter he fell down and other accused persons assaulted him with 'hockey sticks'. A perusal of the postmortem report shows that the deceased had sustained the following injuries.
(1) A stab wound on front of lower part of chest, 2 cm away the mid line, transverse 2 ½ cm x 1 cm x cavity deep 129 cm above the Rt., heel.
(2) A stab would on Rt., side of chest 124 cm above the Rt., heel oblique 3 cm x 1 cm x cavity deep.
(3) Stab would 5 cm away the mid line on Rt., side of chest 123 cm above the Rt heel Page 18 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined oblique 3 cm x 1 cm x cavity deep.
(4) Stab would in epigastrium 121 cm from Rt heel, 3 ½ cm x 1 ½ cm x cavity deep.
(5) A stab would 3 cm Rt., of injury no. 4, oblique 1 ½ cm x 1 cm x cavity deep (6) Stab would ½ cm below the injury no. (5).
Yes Antemortem 2 cm x 1 ½ cm , oblique x cavity deep.
(7) A stab wound on Rt. Hypochondrium 117 cm above the Rt., heel in mid clavicular line, oblique 3 ½ cm x 1 cm x cavity deep.
(8) A stab would on lower part of left chest 118 cm above the left heel 2 cm x 1 cm x cavity deep.
(9) A stab would on lateral side in mid axillary line 120 cm above the left heel, 2 cm x 1 cm x cavity deep.
(10) A stab would on back of left chest oblique 121 cm above the left heel, 3 cm x 1 cm x cavity deep.
(11) A stab would on back of chest in scapular line 2 cm x 1 cm x muscle deep.
(12) Multiple abrasion of many sizes of chin, nose, forehead with eye dark red in colour.
(13) An abrasion in front of middle of Rt., leg 4 cm x 2 cm, dark red in colour.
(14) An incised wound on outer side of Rt.,hand vertical 4 cm x 1 cm muscle deep.
(15) An incised wound on back of
Rt.,hand on its outer side 2 cm x 1 cm x
skin deep.
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NEUTRAL CITATION
R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024
undefined
All above stab wounds and incised have
clean cut margin and acute angles. All
above injuries are antemortem in nature."
13.5. Thus, as stated by the injured eye witness (PW-1), the injuries inflicted by the respondent accused nos. 5, 6 and 10, correspond with the injuries reported in the postmortem report.
14. Having regard to the sequence of events, it is difficult to believe that PW-1 Pravinbhai Babariya would have concocted the facts which find corroboration with the medical evidence, which too was recorded within a short span of time after the incident. Consequently, there cannot be any iota of doubt about the presence of PW-1 Pravinbhai Babariya at the 'scene of incident', and that he had witnessed his brother being assaulted. The testimony of injured eye witness is found to be worthy of credence and cannot be discarded as has been done by the trial Court.
15. PW-2 - Nareshbhai Becharbhai examined at Exhibit-31, deposed that on the date of the incident at around 9:30 pm, while he was dancing along with the deceased Kanu, PW - 1 was sitting outside his home. At that time, persons named Palo @ Poonam, Naresh, Kanu and Girish were dancing outside the house by turning Page 20 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined on the tape recorder. In the meanwhile, at around 09:30 pm accused no. 1 - Govind Nathu, accused no. 7 - Nathu Khoda, accused no. 9 - Suresh Khoda came near the house and started abusing deceased Kanubhai and told him that he was interfering with the marriage occasion going on nearby, by making loud music of tape recorder. During the altercation, another accused persons namely, accused no. 5 - Kanu Natha came with the 'knife', accused no. 8 - Rajesh Nathu came with 'sword', accused no. Dinesh Nathu with 'gupti' and Sindhya also came with 'gupti'. Jayanti Valji whose marriage was going on nearby came with the 'sword' which is used in marriage and Jitu, Suresh, Sashi Valji came with 'hockey stick' and started abusing Kanubhai Chhaganbhai Babariya. They also told that Kanu Chhagan Babariya is interfering by making loud noises, disturbing the nearby marriage function and he was having illicit relationship with the daughter in the family of the accused and therefore, he needed to be done away with. So they started to attack Kanu Chhagan Babariya wherein Kanu Nathu inflicted blow of 'knife', Dinesh inflicted blow of gupti as well as Sindhya inflicted blow with 'gupti' on the deceased. The deceased was hit on the part of his chest, back and other bodily parts and, therefore, he started shouting. Seeing this, complainant - Pravinbhai Babariya tried to intervene, wherein, he was hit by 'gupti' by Dinesh Nathu on his back as well as 'hockey stick' blows were Page 21 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined given by Jitu, Suresh and Sashi Valji. After having been injured, the complainant and other friends had gone away, however, as many people gathered, the accused persons have ran away. The deceased Kanu had died on the spot. The complainant with the help of other people of the residents took the deceased to the 'Muscati Hospital' wherein the Doctor had declared his brother Kanu Chhagan as dead and as he was injured by blow of 'gupti', he got admitted in the said hospital. Therefore, the complaint was given against the accused persons.
15.1. Further he was afraid of being killed during the altercations and hence ran away. In the cross-examination of this witness (PW-2), he had stated that he knew the family of the accused as well as he knew the family of the deceased. He was neighbour of the deceased. He has also stated about the weapons which were with the accused. He further stated that subsequent to the incident, the mother of the deceased namely, Premilaben came at the scene of the offence. She was not there during the time of the incident, but came afterwards. It was stated that the Artichoke Police Station is at a five minutes distance from the scene of the offence. It has also come up in the cross-examination that the scene of the offence was nearby the house of the deceased. PW-2 categorically stated in his cross-examination Page 22 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined that he did not hit any of the accused with any weapons. However, the complainant had intervened when the accused were inflicting blows on the deceased and in doing so, the complainant got injured through the blow given by accused Dinesh. It was stated in the cross- examination that after he ran away from the spot, he had gone to the hospital where the deceased was taken. After the complainant was taken to the hospital, he had gone to the Police Station at 12:00 o'clock and recorded his statement before the police authority. On a perusal of the testimony of PW-2 Nareshbhai Becharbhai, it is evident that this witness is consistent in his version throughout in the testimony before the Court. No contradiction could be found in his testimony during the course of his cross-examination. 15.2. Insofar as the place of the incident is concerned, the same also finds support in the testimony of PW-2 Nareshbhai Becharbhai. He has clearly deposed with regard to his presence along with the deceased outside the home of the deceased which is the scene of the incident. The incident is also supported by the panchnama of the scene of the incident which is at Exhibit-'43'. Though the panch witness who has signed panchnama of the scene of the incident being PW-7 had turned hostile, but the panchanama of the scene of incident stood proved with the deposition of the Investigating Officer Page 23 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined at Exhibit-'51'.
15.3. Thus, the fact regarding the incident having been taken place outside the house of the deceased and the complainant and, thereafter, they both having been taken to the hospital finds support in the testimony of the witness. Further, the injured eye witness, PW- 1 Pravinbhai Babariya has categorically stated about the injuries being inflicted on the deceased. The weapons used by the accused had been discovered by way of discovery panchnama at Exhibits-'46', '54', '55' and '56' and duly proved by the panch witness as well as the Investigating Officer. Over and above, the testimonies of the Doctors with regard to the injuries substantially proved the presence of the injured eye witness at the scene of incident. The discovery of the weapons having blood on it also corroborates the deposition of the PW-1 injured eye witness - Pravinbhai Babariya. Though there was a serious lapse on the part of the Investigating Officer, inasmuch as, the blood samples of the deceased were not sent for scientific evidence, but said lapse will have no bearing on the weight of the ocular testimony of the injured eye witness (PW-1).
16. On a perusal of the testimony of both the eyewitnesses, PW-1 Pravin as well as PW-2 Nareshbhai Becharbhai, it is evident that the witnesses were consistent in the version given by them in their Page 24 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined depositions before the Court. Though the witnesses had been subjected to detailed cross-examination, but nothing substantial has been elicited so as to dent the credibility of the said witnesses.
17. The Hon'ble Apex Court in the case of Akthar & Ors. v. State of Uttranchal reported in 2009 (13) SCC 722, has held that if the prosecution case is supported by injured eye witness and if the testimony is consistent before the Police and the Court and corroborated by the medical evidence, their testimony cannot be discarded. In the case of Surendrasingh v. State of Haryana, reported in 2006 (9) SCC 247, the Hon'ble Apex Court has held that the testimony of an injured witness has its own relevancy and efficacy. The fact that the witness is injured at the time and in the same occurrence lends support to the testimony that the witness was present during occurrence and he saw the happening with his own eyes. In the case of State of M.P. v. Mansingh & Ors., reported in 2003 (10)SCC 414, the Hon'ble Apex Court held hat the evidence of injured witness has greater evidentiary value and unless compelling reasons exists, their statement are not to be discarded lightly.
18. In the instant case, when there is a testimony of an injured eye witness who happens to be the complainant also and the testimony as well as the complaint given is seen as credible the testimony ought Page 25 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined not to have been discarded lightly.
18.1. The learned Sessions Court, in the impugned judgment and order, has discarded the testimony of the injured eye witness as well as the independent eye witness. The finding recorded by the trial court, therefore, needs to be examined as to whether any compelling reasons existed for discarding the testimony of the said witnesses. The trial court has assigned following reasons for not accepting the testimony of PW-1 Pravinbhai Babariya and PW-2 Nareshbhai Becharbhai. The first contradictions recorded by the learned trial Court in the first paragraph '13' in the impugned judgment is with regard to the fact of running away of the eye witnesses during the incident. It has been observed by the learned trial Court that the injured eye witnesses had stated in the First Information Report that after the incident they had ran away from the place of incident being afraid. While in the cross-examination, the injured eye witness had deposed that he did not run away from the place of incident, but he had just gone back after being injured and he alone could have resisted the accused giving blow to the deceased. Therefore the point of consideration would be whether such statement can be said to be major contradictions as per the principle enunciated herein-above. 18.2. In the considered opinion of this Court, such aspect cannot be Page 26 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined said to be major contradictions. As a matter of fact, this issue in no way creates doubt about the presence of the injured eye witnesses at the place/scene of the incident. The evidence was that at the scene of incident PW-1 had received injuries and he had gone to the hospital taking the dead body of the deceased. This fact is also proved by the deposition of the Doctor who treated the injured eye witness. Therefore, this aspect in no way creates any doubt about the credibility of the statement or deposition of the injured eye witness. 18.3. The other minor contradictions observed by the learned Court was with regard to the clothes viz. 'T-shirt' worn by the injured eye witness and further he could not depose as to whether there was hole in the 'T-shirt' or not. Further, the injured eye witness also could not recall whether his mother - Premilaben was present at the scene of offence or not. Further, the injured eye witness could not depose or could not answer properly with regard to the injuries on the accused persons. However, this aspect would not create any doubt on the presence of the injured eye witness as well as PW-2, who is an independent eye witness. Such aspect cannot be termed as major contradictions as per the provisions of law which is enunciated hereinabove.
18.4. One more point has to be observed is that the learned Court Page 27 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined has given 11 categorical points for acquitting the accused persons, but in none of the 11 points the learned Court talks about the major contradictions in the testimonies of the injured eye witness and independent eye witness. If at all there were contradictions and the testimonies of both the witnesses had to be discarded, there had to be proper genuine germane observed with regard to the same. 18.5. After minutely going through the testimonies of both the eye witnesses as well as medical evidence, we are of the definite opinion that there is no such contradictions which is major enough to brush aside the ocular evidence of two eye witnesses. The learned trial Court has not only given perverse finding with regard to the minor contradictions of the above mentioned two ocular evidences, but has also failed to give any reason to discard the testimonies of the two eye witnesses. The observations made by the learned trial Court on contradictions and omissions are found perverse. The observations made on 11 points for acquitting the accused are not relevant to discard the ocular testimonies of the eye witnesses. The finding recorded by the learned Sessions Court is, thus, held as absolutely perverse.
19. Further, it can be observed that there are two witnesses who have witnessed the incident. From the ocular testimonies, it is clearly Page 28 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined established that they were present during the course of the incident at the scene of the incident. Their testimonies is also duly corroborated by the medical evidence. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence would be doubted only where there are material contradictions in his deposition. (b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. (c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. (e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. (f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with the passage of time should be discarded.Page 29 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024
NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined
20. As far as contradictions and omissions are concerned, something must be stated about how the trial court recorded the prosecution witnesses' cross-examination in this case, especially when they were confronted with their prior statements. The Trial Court did not follow the correct procedure while recording the contradictions. Under Section 161 of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.), the police have the power to record statements of the witnesses during the investigation. Section 162 of Cr.P.C. deals with the use of such statements in evidence. The basic principle incorporated in sub-Section (1) of Section 162 is that any statement made by a person to a police officer in the course of investigation, which is reduced in writing, cannot be used for any purpose except as provided in Section 162. The first exception incorporated in sub-Section (2) is of the statements covered by clause (1) of Section 32 of the Indian Evidence Act, 1872 (for short, Evidence Act). The second exception to the general rule provided in sub-Section (1) of Section 162 is that the accused can use the statement to contradict the witness in the manner provided by Section 145 of the Evidence Act. Even the prosecution can use the statement to contradict a witness in the manner provided in Section 145 of the Evidence Act with the prior permission of the Court. The prosecution normally takes recourse to this provision when its Page 30 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined witness does not support the prosecution case. There is one important condition for using the prior statement for contradiction. The condition is that the part of the statement used for contradiction must be duly proved. Therefore, the defence is unable to establish in the present case that the two statements, i.e. in the First Information Report or the testimonies cannot stand together and they have become contradictory statements. Therefore, the learned trial Court has not given any detail reason with regard to any contradiction in the testimony of the two eye witness. Therefore, their testimonies ought not to have been discarded so lightly.
21. PW-11, is the Investigating Officer who was examined at Exhibit-'51', had deposed that on 07.03.1994, he was discharging his duties as Section Police Inspector Chowk bazar Police Station, wherein they had got information with regard to the clash between the two groups at a nearby place. They had gone to the scene of the incident wherein, it was informed that a casualty had occurred and the injured were taken to the Muscati Hospital. They had gone to the Muscati Hospital, wherein they had recorded the complaint of Pravinbhai Babariya. The witness had identified the signature and Pravinbhai had identified his own signature. The witness had deposed that when he recorded compliant, the complainant was Page 31 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined physically fit and the complaint had been recorded. First Information Report is at Exhibit-52. The witness (PW-1) had stated that, thereafter, he had received the complaint for registration, after it came to be registered, he had taken charge of the investigation. Therefore, the case of the prosecution is supported by the testimony of the eye witness as well as medical evidence as also the evidence of the Investigating Officer.
22. Having observed that the testimony of injured eye witness as well as other eye witness is credible enough to convict the accused and reverse the acquittal order of the learned trial court, another question would be as to whether the accused are liable to be convicted under Section 302 of the Indian Penal Code. Normally, the credibility of ocular evidence as well as medical evidence would only lead to conviction under Section 302 of the Indian Penal Code. However, from the testimony of the Investigating Officer, it can be borne out that the incident is a result of free fight between two groups belonging to accused persons as well as deceased. There are injuries to the accused side as well. The injurers were also brought on record by way of deposition of the Doctors as defence witness who had examined the accused persons. The explanation of the injuries on the accused would create doubt about the prosecution having been Page 32 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined truthful about the real genesis of the incident. From the ocular testimony, medical evidence as well as scientific evidence, it can be discerned that the accused and in particular, accused nos.5, 6 and 10 had given blows to the deceased. However, when injuries are sustained in the incident to the accused as also the real genesis is in question, pertinent questions are required to be put to the eyewitness with regard to the injuries to the accused. In the instant case, only answer given by the eyewitness (PW-1) is that the injuries on the accused persons may have been caused by the weapons brought by the accused themselves. Thus, though the testimony of the eyewitnesses and the presence of such witnesses cannot be doubted, but the real genesis of the incident is doubted. It is not clear as to whether common object of the unlawful assembly was the cause of the death of the deceased.
23. It can be observed that through the credible testimony of the injured eyewitness, other eyewitness as well as medical evidence, the order of acquittal qua respondent accused nos. 5, 6 and 10 cannot be sustained. However, as the genesis of the incident is doubtful, the case would not fall under Section 302 of the Indian Pena Code, but would fall in Part-II of Section 304 of the Indian Penal Code. Therefore, the order acquittal qua respondent accused nos. 5, Page 33 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined 6 and 10 is quashed and they are hereby convicted in Part-II of Section 304 of the Indian Penal Code.
23.1 As far as respondent accused no. 3 is concerned, the only allegations against him are of abusing the deceased. Therefore, the order of acquittal qua accused no. 3 is confirmed.
24. There is no dispute to the fact about ocular evidence and medical evidence against respondent accused nos. 5, 6 and 10. However, the real genesis is doubted, which will lead to an observation that the incident occurred in a heat of moment and neither party could control the anger. There were injuries to the deceased as well as the accused. The incident happened almost 31 years back and much water has flown down the river by this time. The unfortunate incident leading to loss of precious life and sustaining the injuries by the accused persons may have happened in a spur of moment. Therefore, while reversing the impugned judgment and order of the trial court dated 25.10.1996 qua respondent accused nos. 5, 6 and 10 qua convicting them, the sentence should be restricted to the period of incarceration already undergone by them. This view is also taken by the Hon'b;e Apex Court in the case of Hussainbhai Asgarali Lokhandwala v. State Page 34 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined of Gujarat rendered in Criminal Appeal No. 1691 of 2023 dated 14.08.2024. In this context, the impugned judgment and order dated 25.10.1996 passed by the learned Sessions Judge, Surat in Sessions Case No. 142 of 1994, is required to be quashed and set aside qua respondent accused nos. 5, 6 and 10.
24.1. Before we proceed to pass the final order, it must be noted that this Court vide order dated 24.04.2024, has appointed learned advocate Mr. Pranjal Buch as Amicus Curiae in the matter. The Court fixes fees of Rs.25,000/- for amicus curiae Mr. Pranjal Buch for the assistance rendered by him in the matter. The fees determined shall be paid by the State Legal Services Authority.
25. The appeal is partly allowed. The impugned judgment and order dated 25.10.1996 passed by the learned Sessions Judge, Surat in Sessions Case No. 142 of 1994, acquitting accused no. 3 - Sureshb Khodabhai of all the charges stands confirmed.
26. However, insofar as the acquittal of respondent accused no. 5
- Dinesh Nathubhai, respondent accused no. 6 - Jayantibhai Valjibhai and respondent accused no. 10 - Sindhya alias Manish Chandangir Goswami is concerned, the same is quashed and set aside and all the three accused i.e. respondent accused nos. 5, 6 and 10 are convicted Page 35 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024 NEUTRAL CITATION R/CR.A/123/1997 CAV JUDGMENT DATED: 18/10/2024 undefined for the offences punishable under Section 304 Part-II of the Indian Penal Code. For conviction under Section 304 Part-II of the Indian Penal Code, the sentence of all the above said three accused persons is confined to the period of incarceration already undergone by them. Bail Bonds stands cancelled.
27. This order is to be reported to the trial court, Surat for keeping on record. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(SUNITA AGARWAL, CJ ) (PRANAV TRIVEDI,J) phalguni Page 36 of 36 Uploaded by PHALGUNI PATEL(HC00175) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:28:09 IST 2024