Gujarat High Court
The State Of Gujarat vs Shaikh Jakirbhai @ Kalumiya ... on 23 March, 2016
Bench: M.R. Shah, Z.K.Saiyed
R/CR.A/2238/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2238 of 2006
With
CRIMINAL APPEAL NO. 2141 of 2006
With
CRIMINAL APPEAL NO. 1912 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE Z.K.SAIYED sd/
=========================================
1 Whether Reporters of Local Papers may be allowed to see NO the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any order made thereunder ?
============================================= THE STATE OF GUJARAT....Appellant(s) Versus SHAIKH JAKIRBHAI @ KALUMIYA FAKIRMIYA....Opponent(s)/Respondent(s) ============================================= Appearance:
Criminal Appeal No.1912 of 2006 Mr. Ashish Dagli, learned advocate for the appellant Mr. K.P. Raval, Addl. Public Prosecutor for the State Criminal Appeal No. 2141 of 2006 MR. K.P. RAVAL ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1 MR M.A. Kharadi, ADVOCATE for the Opponent(s)/Respondents Criminal Appeal No.2238 of 2006 MR. K.P. RAVAL ADDL. PUBLIC PROSECUTOR for the Appellant Mr. Ashish Dagli, learned advocate for the respondent ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 23 /03/2015 Page 1 of 22 HC-NIC Page 1 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. As all these appeals arise out of the impugned judgment and order passed by the learned Principal Sessions Judge, Mehsana passed in Sessions Case No. 149 of 2004 dated 29.09.2006, one appeal being Criminal Appeal No. 1912 of 2006 preferred by the original accused no.1 challenging his conviction for the offence punishable under Section 304 Part I of the Indian Penal Code and another appeal preferred by the State being Criminal Appeal No. 2238 of 2006 for enhancement of the sentence imposed by the learned trial Court imposed while convicting the original accused no.1 for the offence punishable under Section 304 Part I of the Indian Penal Code and another appeal being Criminal Appeal No.2141 of 2006 preferred by the State challenging the impugned judgment and order passed by the learned trail Court acquitting the original accused nos. 2 to 14, all these appeals are decided and disposed of together by this common judgment and order.
2.0. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Principal Sessions Judge, Mehsana passed in Sessions Case No. 149 of 2004, by which, the learned trial Court has convicted the original accused no.1 for the offence under Section 304 Part I of the Indian Penal Code, the original accused no.1 has preferred Criminal Appeal No. 1912 of 2006.
2.1. That feeling aggrieved and dissatisfied with the sentence imposed by the learned trial Court while convicting the Page 2 of 22 HC-NIC Page 2 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT original accused for the offence under Section 304 Part I of the Indian Penal Code, the State has preferred Criminal Appeal No. 2238 of 2006 requesting for enhancement of the sentence.
2.2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Principal Sessions Judge, Mehsana passed in Sessions Case No. 149 of 2004, by which, the learned trial Court has acquitted the original accused nos. 2 to 14 for the offences, for which they were tried, the State has preferred Criminal Appeal No.2141 of 2006.
3.0. It is the case of the prosecution that complainant Hiteshbhai Parshottambhai Patel resident of village Dasaj, Tal:
Unja has filed a complaint before the Unjha Police Station on 12.11.2002 stating the fact that there was Pran Pratishta Mahotsav of Dasajiya Gog Maharaj on 11.11.2002 in village Dasaj. It is further the case of the prosecution that after completion of Mahotsav complainant along with Patel Rameshbhai Shivrambhai were going towards their house and as they have heard regarding assault by Muslim community, both the brothers were going towards their house in hurried manner. It is further the case of the the prosecution that while they arrived near Vadas of Patel, about 20 to 25 persons were putting fire in Grass and all these people were seen by complainant and prosecution witnesses in the light of fire in which accused Kalumiya Fakirbhai Shaikh was armed with gun, accused Kadarbhai Pannubhai Shaikh was armed with gun, Basirbhai Kadarbahi Shaikh was armed with Dharia and accused Ibrahimbhai was armed with sword. It is further the case of the Page 3 of 22 HC-NIC Page 3 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT prosecution that on seeing complainant and prosecution witnesses, all these accused persons were saying that Hindus are going, kill them and thereby accused Kalubhai Fakirbhai has fired from his Gun, and therefore, complainant immediately sit down whereas Rameshbhai was standing and as a result he received injuries of bullet. In the meantime, Patel Kiritbhai Naranbhai Patel from his maholla came to the spot of incident and taken Rameshbhai in his Moholla and thereafter, he was taken to Cottage Hospital, Unjha, where he has been declared dead. It is further the case of the prosecution that during this quarrel, prosecution witnesses Kirtibhai and Virchandbhai has also received injuries, and therefore, he was also admitted in hospital. It was came to know that about 23 persons have received injuries in this quarrel, in which some of the persons were admitted in Civil Hospital, Ahmedabad. It is further the case of prosecution that in the said Pran Pratistha Mahotsav of Dasajiya Gog Mahraj, persons from Muslim community were not invited, and therefore, due to this, feelings of the Muslim community were being hurt and therefore, due to grievance, they have assaulted upon Hindu Community.
Therefore, aforesaid complaint was filed before Unjha Police Station for the alleged offences under Sections 147, 148, 149, 504, 302, 307 of the IPC as well as Section 135 of the Bombay Police Act, Section 25(1)(A)(A) of the Arms Act and Section 3, 4 and 5 of the Explosive Substance Act.
3.1. The aforesaid FIR was investigated by the Police Inspector, Unjha Police Station Sahdevsinh Bahdursinh Gohil - PW No.7. He recorded the statement of the concerned witnesses. He Page 4 of 22 HC-NIC Page 4 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT also drawn inquest panchnama of deceased Rameshbhai Patel. He collected the documentary evidence against the accused. After conclusion of the investigation, the Investigating Officer filed the charge sheet against the accused persons for the offences under Sections 147, 148, 149, 504, 302, 307 of the IPC as well as Section 135 of the Bombay Police Act, Section 25(1) of the Arms Act and Section 3, 4 and 5 of the Explosive Substance Act, in the Court of learned JMFC, Unjha. As the case was exclusively triable by the learned Court of Sessions, the learned JMFC, Unjha committed the case to the Sessions Court, Mehsana which was numbered as Sessions Case No.149 of 2004. That the learned trial Court framed the charge against all the accused at Exh.5 for the offence under Sections 147, 148, 149, 504, 302 and 307 of the IPC and Section 135 of the Bombay Police Act and Section 25 of the Arms Act and Section 3, 4 and 5 of the Explosive Substance Act. All the accused pleaded not guilty and therefore, all of them came to be tried by the learned trial Court for the aforesaid offences.
3.2. To prove the case against accused, the prosecution examined following witnesses:
Sr. No. Name of the witness Exh. No. 1 Dr. Rameshbhai Maganbhai Shah 33 2 Bhailalbhai Khubalbhai Makwana 64 3 Hiteshbhai Parshotamdas Patel 66 4 Kirtibhai Narayanbhai Patel 91 5 Mahemudali Pannumiya Saiyed 94 6 Samatbhai Gigabhai Basiya 95 7 Sahdevsinh Bahdursinh Gohil 97 Page 5 of 22 HC-NIC Page 5 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT
3.3. Through the aforesaid witnesses, prosecution were brought on record following documentary evidence:
Sr. No. Documentary evidence Exh. No. 1 Postmortem note of Rameshbhai Patel 34 2 Certificate of cause of death 35 3 Certificate with respect to injury sustained 36 by Kirtibhai. 4 Map prepared by the Circle Officer 65 5 Complaint 67 6 Panchnama of discovery of weapon 96 7 Report made to Police Inspector, Unjha 98 8 Depute Order 99 9 Report given by Bomb Squad, Ahmedabad 100 10 Entry of Muddamal 101 11 Receipt of dead body received 102 12 Notification of prohibition of use of 103 weapon 13 Receipt of Muddamla received 104 105 14 Letter of FSL 106 15 Letter of FSL 107 16 Receipt of Muddamla received 108 to 110 17 Letter of FSL 111 18 Serological report 112 19 Letter of FSL 113 20 Letter of FSL 114 21 Serological Report 115 22 Letter of FSL 116
3.4. That after closing purshis submitted by the prosecution, Page 6 of 22 HC-NIC Page 6 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT further statement of all the accused under Section 313 of the Code of Criminal Procedure were recorded. All of them stated that they have not committed any offence and they have been falsely implicated in the case. That at the conclusion of the trial, the learned trial Court by impugned judgment and order has held original accused no.1 Shaikh Jakirbhai @ Kalumiya Fakirmiya guilty for the offence under Section 304 Part I of the IPC as it was on the death of deceased Rameshbhai Patel and sentence to undergo 7 years Rigorous Imprisonment with fine of Rs. 5000/ and in default to undergo further one year Rigorous Imprisonment. That by impugned judgment and order the learned trial Court has acquitted rest of the accused i.e. original accused nos. 2 to 14. Hence, original accused no.1 has preferred Criminal Appeal No. 1912 of 2006 challenging his conviction for the offence under Section 304 Part I of the IPC and State has preferred Criminal Appeal No. 2238 of 2006 for enhancement of the sentence imposed by the learned trial Court while convicting the original accused for the offence punishable under Section 304 Part I of the IPC and State has also preferred Criminal Appeal No. 2141 of 2006 challenging the impugned judgment and order of acquittal passed by the learned trial Court acquitting the original accused nos. 2 to
14. Criminal Appeal No. 1912 of 2006 4.0. Shri Ashish Dagli, learned advocate for the original accused no.1 has vehemently submitted that in the facts and circumstances of the case the learned trial Court has materially Page 7 of 22 HC-NIC Page 7 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT erred in convicting the original accused no.1.
4.1. It is vehemently submitted by Shri Dagli, learned advocate for the original accused no.1 that impugned judgment and order of conviction is exfacie illegal, erroneous and bad in law and in fact the same is passed without appreciating the facts and circumstances as well as evidence on record.
4.2. It is vehemently submitted by Shri Dagli, learned advocate for the original accused no.1 that as such in the present case the the prosecution has relied upon in all total 7 witnesses. It is submitted that from the deposition of none of the witness the prosecution has established any link of the appellant accused, for which, he has connected with the crime.
4.3. It is vehemently submitted by Shri Dagli, learned advocate for the original accused that as such place of incident is also not proved by the prosecution and as such each witness of the prosecution has made an attempt to exaggerate the version and story put forward by the prosecution about the occurrence of the incident. It is submitted that entire conduct of the complainant as narrated by him before the incident and after the incident, is also suspicious one and therefore, the Court below ought not to have convicted the original accused no.1 relying upon the deposition of the original complainant.
4.4. It is vehemently submitted by Shri Dagli, learned advocate for the original accused no.1 that as such one Tajmohmad Page 8 of 22 HC-NIC Page 8 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT Torejkhan Pathan filed a complaint against 10 persons for the incident of 11.11.2002 and all of them were tried in Sessions Case No.131 of 2004. It is submitted that it was alleged against them on 28.07.2002 where Maha Sammelan of Vishwa Hindu Parished in the Ghogha Maharaj temple was held and some speech was given which tantamount to instigating the mob and for which complainant and other persons were attacked by deadly weapon and caused death of one person. It is submitted that one another Sessions Case No. 215 of 2004 was also instituted at the instance of one Shri Sahdevsinh Bahadursinh Gohil - original complainant and said complaint was filed in all against 123 persons for the offence under Sections 435 and 436 of the Indian Penal Code and other provision of the Indian Penal Code. It is submitted that in so far as aforesaid two cases are concerned, the learned Sessions Court has acquitted all the accused and on the identical line of evidence, the appellant herein - original accused no.1 has been convicted. It is submitted that therefore, the impugned judgment and order of conviction is liable to be quashed and set aside. It is submitted that in absence of any independent piece of evidence and any corroborative piece of evidence to connect the appellant with crime, the learned trial Court ought not to have convicted the original accused no.1.
4.5. It is vehemently submitted by Shri Dagli, learned advocate for the original accused no.1 that in the present case as such prosecution has miserably failed to prove that fire arm was used by the appellant herein - original accused no.1 or even the presence of the appellant was established by independent piece of Page 9 of 22 HC-NIC Page 9 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT evidence at the time of incident. It is submitted that at the time of incident it was a dark night. It is submitted that story put forward by the complainant that he has noticed the face of the appellant along with other accused during the night hours in the flames of fire is not believable. It is submitted that so far as other accused are concerned they are acquitted. It is vehemently submitted that evidence of injured witness Kirtibhai Naranbhai Patel who has been examined at Exh. 91 as an injured witness has not supported the case of the prosecution fully and at all vital events, he has not supported the case of the prosecution. It is submitted that still the learned trial Court has convicted the original accused relying upon such piece of evidence which deserves to be quashed and set aside.
Making above submissions, it is requested to quash and set aside the impugned judgment and order of conviction passed by the learned trial Court convicting the original accused no.1 for the offence under Section 304 PartI of the Indian Penal Code.
5.0. Without prejudice to the above submissions, Shri Dagli, learned advocate for the original accused no.1 has submitted that as such incident had taken place due to some misunderstanding and because of rumor. It is submitted that as such there was no dispute between two communities at all either in the past and / or thereafter. He has placed on record the affidavit of original complainant stating that after the incident had taken place on 11.11.2002 which was because of misunderstanding and because of the rumor there is peace prevailing in the village and no untoward incident has taken place of whatsoever. It is submitted that both the communities respect each other and they also respect each Page 10 of 22 HC-NIC Page 10 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT other's religion.
6.0. Present appeal preferred by the original accused no.1 is opposed by Shri K.P. Raval, learned Additional Public Prosecutor appearing on behalf of the State. It is submitted that on appreciation of evidence and record, more particularly, deposition of the injured witness Kirtibhai Patel and when presence of the original accused no.1 has been established and proved and that he was having fired arm with him and he fire at the person who died and when injured witness Kirtibhai Patel identified the original accused no.1 in the flame, no error has been committed by the learned trial Court convicting the original accused no.1. It is therefore, submitted that impugned judgment and order passed by the learned trial Court convicting the original accused no. 1 is not required to be interfered with.
Criminal Appeal No. 2238 of 2006 7.0. Shri K.P. Raval, learned Additional Public Prosecutor for the State has vehemently submitted that manner in which, the original accused no.1 caused the death of deceased Rameshbhai by fire arm, the learned trial Court has materially erred in imposing sentence of 7 years RI only while convicting original accused no.1 for the offence under Section 304 Part I of the Indian Penal Code. It is vehemently submitted by Shri Raval, learned Additional Public Prosecutor for the State that as such no cogent reasons have been assigned by the learned trial Court while imposing the lessor punishment while convicting the original accused no.1 for the Page 11 of 22 HC-NIC Page 11 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT offence under Section 304 Part I of the Indian Penal Code. It is submitted that in the facts and circumstances of the case the learned trial Court ought to have imposed the maximum punishment provided for the offence under Section 304 Part I of the Indian Penal Code.
Making above submissions, it is requested to allow present Criminal Appeal and enhance the sentence imposed by the learned trial Court.
8.0. Shri Dagli, learned advocate for the original accused no.1 without prejudice to his rights and contentions in Criminal Appeal No. 1912 of 2006 has submitted that in the facts and circumstances of the case and by giving cogent reasons when learned trial Court has imposed the sentence of 7 years RI while convicting the original accused no.1 for the offence under Section 304 Part I of the Indian Penal Code and when the learned trial Court has exercised the discretion judiciously, it is requested not to interfere with the same. Making above submissions, it is requested to dismiss the Criminal Appeal No. 2238 of 2006.
Criminal Appeal No.2141 of 2006 9.0. Shri K.P. Raval, learned Additional Public Prosecutor for the State has vehemently submitted that in the facts and circumstances of the case and more particularly, when all the accused nos. 2 to 14 were the members of unlawful assembly with a common object and when the learned trial Court has as such convicted the original accused no.1 having caused the death of Page 12 of 22 HC-NIC Page 12 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT deceased Rameshbhai by firm arm, the learned trial Court has materially erred in acquitting the original accused nos. 2 to 14.
9.1. It is submitted by Shri Raval, learned Additional Public Prosecutor for the State that the findings recorded by the learned trial Court while acquitting the original accused nos. 2 to 14 are just contrary to the evidence on record. It is submitted that while acquitting the original accused the learned trial Court has not properly appreciated the evidence on record, more particularly, deposition of complainant - Hiteshbhai P Patel who has been examined at Exh.66. It is vehemently submitted by Shri Raval, learned Additional Public Prosecutor appearing on behalf of the State that in the present case - original complainant has as such identified original accused nos. 2 to 4 in the Court and therefore, it is proved that the original accused nos. 2 to 4 were present at the time of incident and as they were members of unlawful assembly. The learned trial Court ought to have convicted them even with the aid of Section 149 of the Indian Penal Code.
9.2. It is further submitted by Shri Raval, learned Additional Public Prosecutor for the State that the learned trial Court ought to have appreciated the evidence of complainant wherein he has clearly stated that mob of Muslim community were putting fire in the Grass of Patel. It is submitted that as such out of the original accused nos. 2 to 14, 4 to 5 persons were identified by the accused during identification parade. It is submitted that therefore, the learned trial Court has materially erred in acquitting original accused nos 2 to 14. It is further submitted that even some of the Page 13 of 22 HC-NIC Page 13 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT accused persons have produced the Mudamal, Dhariya, Sword, Farsi etc. which were recovered by drawing panchnama. It is submitted that in spite of the above, the learned trial Court acquitted the original accused nos. 2 to 14 which has resulted into miscarriage of justice.
Making above submissions, it is requested to allow present appeal and to quash and set aside the judgment and order of acquittal passed by the learned trial Court acquitting the original accused nos. 2 to 14 and to punish them also for the offence under Sections 304 Part I of the Indian Penal Code, for which, original accused no.1 has been convicted.
10. Present appeal is opposed by Shri M.A. Kharadi, learned advocate for the original accused nos. 2 to 14. It is vehemently submitted by Shri M.A. Kharadi, learned advocate for the original accused nos. 2 to 14 that in the present case on appreciation of evidence and by giving cogent reasons when the learned trial Court has acquitted the original accused nos. 2 to 14, the same is not required to be interfered with in exercise of appellate jurisdiction.
10.1. It is vehemently submitted by Shri M.A. Kharadi, learned advocate for the original accused nos. 2 to 14 that the findings recorded by the learned trial Court while acquitting the original accused nos. 2 to 14 are on appreciation of evidence which can never be said to be either perverse or / and contrary to the evidence on record. It is submitted that therefore, unless and until the findings are either perverse and / or contrary to the evidence on record, interference of this Court against the order of acquittal Page 14 of 22 HC-NIC Page 14 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT in exercise of appellate jurisdiction is not called for.
10.2. It is submitted that on appreciation of evidence the learned trial Court has specifically given the finding that the prosecution has miserably failed by leading cogent evidence that the original accused nos. 2 to 14 were present at the time of incident and / or that any of them have participated in commission of offence. It is submitted that on appreciation of evidence the learned trial Court has also given the finding that the prosecution has failed to prove by leading the cogent evidence that any of the accused formed the unlawful assembly with an object to commit the offence either of rioting and / or to cause the death of deceased Rameshbhai. It is submitted that therefore, the learned trial Court has rightly given the finding that none of the accused nos. 2 to 14 were member of the unlawful assembly with a common object either to commit the offence of rioting and / or to cause the death of deceased Rameshbhai. It is submitted that therefore, no error has been committed by the learned trial Court in acquitting the original accused nos. 2 to 14.
10.3. Without prejudice to the above submissions, Shri M.A. Kharadi, learned advocate for the original accused nos. 2 to 14 has submitted that as such incident had taken place due to some misunderstanding and because of rumor. It is submitted that as such there was no dispute between two communities at all either in the past and / or thereafter. He has placed on record the affidavit of original complainant stating that after the incident had taken place on 11.11.2002 which was because of misunderstanding and Page 15 of 22 HC-NIC Page 15 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT because of the rumor there is piece prevailing in the village and no untoward incident has taken place of whatsoever. It is submitted that both the communities respect each other and they also respect each other's religion.
11.0. Heard the learned advocates for the respective parties at length. We have gone through the entire judgment and order passed by the learned trial Court and the findings recorded by the learned trial Court. We have reappreciated the entire evidence on record both oral as well as documentary.
11.1. At the outset, it is required to be noted that in all 14 persons were tried together and they were charged for the offence under Sections 147, 148, 149, 504, 302, 307 of the IPC as well as Section 135 of the Bombay Police Act, Section 25(1)(A)(A) of the Arms Act and Section 3, 4 and 5 of the Explosive Substance Act. That by impugned judgment and order the learned trial Court has convicted the original accused no.1 only for the offence under Section 304 Part I of the Indian Penal Code for having caused the death of deceased Rameshbhai by fire arm. That by impugned judgment and order the learned trial Court has acquitted the original accused nos. 2 to 14 from all the offences, for which, they were tried. That on appreciation of evidence, the learned trial Court has specifically given the finding that the prosecution has failed to prove by leading cogent evidence that there was unlawful assembly formed with a common object to commit the offence of rioting and to cause the death of deceased Rameshbhai Page 16 of 22 HC-NIC Page 16 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT 11.2. The original accused no.1 has preferred appeal challenging his conviction for the offence under Section 304 Part I of the Indian Penal Code and State has preferred the appeal for enhancement of the sentence imposed by the learned trial Court while convicting the original accused no. 1 for the offence under Section 304 Part I of the Indian Penal Code, the State has also preferred an appeal challenging the order of acquittal of the original accused nos. 2 to 14. At this stage, it is required to be noted that the State has not preferred any appeal challenging the acquittal of the original accused no.1 for the offence under Section 302 of the Indian Penal Code.
12.0. Now, so far as the conviction of the original accused no.1 for the offence under Section 304 Part I of the Indian Penal Code for having caused the death of deceased Rameshbhai is concerned, from the evidence on record and even from the impugned judgment and order passed by the learned trial Court it emerges that case rest upon sole deposition of the original complainant Hiteshbhai only. One another injured witness Kirtibhai Patel who has been examined at Exh.91 has not supported the case of the prosecution. One another injured witness Virchand who had alleged to have sustained injuries by fire arm had died during the pendency of the trial and therefore, he could not be examined. Therefore, the case rest upon the deposition of the original complainant Hiteshbhai who has been examined at Exh. 66. Now, on appreciation of deposition / evidence of original complainant Hiteshbhai, we are of the opinion that it will not be safe to convict the original accused solely relying upon the deposition of original Page 17 of 22 HC-NIC Page 17 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT complainant - Hiteshbhai and in absence of nay other corroborative evidence. According to the original complainant, in the night he along with Rameshbhai were proceedings towards their house and that he was walking ahead of deceased Rameshbhai and even according to him Rameshbhai was behind him. According to the said witness, he had seen the grass burning and the flames of the fire in the Vada of Patel and in the light of the flames, he had seen four to five persons possessing with them the weapons. He had categorically stated that along with him and Rameshbhai nobody was there. However, it is required to be noted that as per deposition of the Doctor Rameshbhai Shah who has been examined at Exh.33 two other persons Kirtibhai and Virchand were brought to his hospital having punctured wound which are possible by fire arm. Ofcourse, Kirtibhai - injured witness has denied having sustained any injuries by pellet by fire arm. It was dark nigh and there is serious dispute with respect o place incident where the deceased Rameshbhai died and looking to the distance between Patel Vada and place of incident and when the original complainant Hiteshbhai was walking ahead of deceased Rameshbhai, it is very doubtful that he had seen original accused no.1 by causing injury on the deceased by fire arm. According to said witness, after the deceased Rameshbhai sustained injuries, Kirtibhai and Virchandbhai took the Rameshbhai inside the compound wall and thereafter he went to the Mohala after some times. Initially he had said that except he and deceased Rameshbhai nobody was there. Therefore, there are material contradictions in the deposition of said witness. As observed herein above, Kirtibhai injured witness had not supported the case of the Page 18 of 22 HC-NIC Page 18 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT prosecution. Therefore, deposition of original complainant is not corroborated by any other evidence. Even otherwise, looking to the place of incident and it was dark night and manner in which, the original complainant has described the commission of offence, we are of the opinion that it will not be safe to convict the original accused no.1 solely relying upon the deposition of original complainant - Hiteshbhai. Even considering the panchnama of the place of the incident and the distance between the alleged place of incident and the Patel Vada where the grass was put to fire and in whose flames, the complainant had identified original accused no.1 and one another, it is very doubtful that he could have seen and / or identified the original accused no.1 causing injuries on the deceased Rameshbhai by fire arm. Even the hight of the compound wall of the Vada was 7 ft. As observed herein above, according to the original complainant he was walking ahead of the Rameshbhai
- deceased was walking behind him. Therefore, also it is very doubtful that he could have seen the original accused no.1 having caused injury by firearm on the deceased Rameshbhai. Under the circumstances and in absence of any other corroborative evidence and as observed herein above, it will not be safe to convict the original accused no.1 solely relying upon the deposition of the original complainant Hiteshbhai. We are of the opinion that the learned trial Court has committed error in convicting the original accused no.1 solely relying upon the deposition of original complainant Hiteshbhai. Under the circumstances, impugned judgment and order of conviction passed by the learned trial Court convicting original accused no.1 deserves to be quashed and set aside. Consequently, appeal preferred by the State for Page 19 of 22 HC-NIC Page 19 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT enhancement of the sentence convicting the original accused no.1 for the offence under Section 304 Part I of the Indian Penal Code does not survive.
13. Now, so far as appeal preferred by the State challenging the impugned judgment and order of acquittal of the original accused nos. 2 to 14 is concerned, it is required to be noted that the case rests upon the deposition of original complainant Hiteshbhai. On reappreciating the entire evidence on record, more particularly, the deposition of the original complainant and as per his evidence, he could identify only Kalubhai, the original accused no.1 and that too in the light of the flames and that the prosecution has failed to prove the case against the original accused nos. 2 to 14 and as observed herein above, even qua the case against the original accused No. 1, it will not be safe to rely upon the deposition of the original complainant in absence of any other corroborative piece of evidence and when the learned trial Court has specifically given the finding that the prosecution has failed to prove that the accused nos. 2 to 14 were the members of the unlawful assembly having a common object and has acquitted the original accused nos.2 to 14, we are of the opinion that the same is not required to be interfered with in exercise of the appellate jurisdiction. Even the presence of the original accused nos. 2 to 14 has not been established and proved by the prosecution by leading cogent evidence. In view of catena of decisions of the Hon'ble Supreme Court, this Court, unless, it is found that the findings recorded by the learned trial Court while acquitting the accused are perverse and / or contrary to the evidence on record, the Appellate Page 20 of 22 HC-NIC Page 20 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT Court would not be justified in interfering with the order of acquittal. Under the circumstances, we see no reason to interfere with the impugned judgment and order of acquittal passed by the learned trial Court in exercise of appellate jurisdiction.
13.1. At this stage, it is required to be noted that as per the affidavit filed by the original complainant and other village peoples the incident had occurred on 11.11.2002 due to some misunderstanding and the rumor and in fact one dog was killed, however there was a rumor that there is quarrel between two communities and therefore, incident had taken place on some misunderstanding. It is also reported that after the incident had taken place, it is harmony between two communities, they respect the religion of each other and no untoward incident had place thereafter and during these 14 years. However, the aforesaid has nothing to do with the present judgment and order and independently and on appreciation of evidence, we are of the opinion that the impugned judgment and order of conviction passed by the learned trial Court convicting the original accused no.1 cannot be sustained for the reasons stated herein above and no error has been committed by the learned trial Court acquitting original accused nos. 2 to 14.
14.0. In view of the above and for the reasons stated above, Criminal Appeal preferred by the original accused no.1 succeeds. The impugned judgment and order convicting the original accused for the offence under Section 304 Part I of the Indian Penal Code is hereby quashed and set aside and the original accused no.1 is Page 21 of 22 HC-NIC Page 21 of 22 Created On Wed Mar 30 00:03:09 IST 2016 R/CR.A/2238/2006 CAV JUDGMENT acquitted for all the offences for which he was charged and tried. Consequently, Criminal Appeal No. 2238 of 2006 preferred by the State for enhancement does not survive and same stands dismissed / disposed of.
14.1. In view of the above and for the reasons stated above, Criminal Appeal No. 2141 of 2006 preferred by the State is hereby dismissed. The impugned judgment and order passed by the learned Principal Sessions Judge, Mehsana in Sessions Case No. 149 of 2004 acquitting the original accused nos. 2 to 14 stands confirmed.
sd/ (M.R.SHAH, J.) sd/ (Z.K.SAIYED, J.) Kaushik Page 22 of 22 HC-NIC Page 22 of 22 Created On Wed Mar 30 00:03:09 IST 2016