Gujarat High Court
The State Of Gujarat vs Ayar Karshan Ananda & ... on 26 September, 2017
Author: Anant S. Dave
Bench: Anant S. Dave, R.P.Dholaria
R/CR.A/2091/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2091 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE Sd/-
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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THE STATE OF GUJARAT....Appellant(s)
Versus
AYAR KARSHAN ANANDA & 9....Opponent(s)/Respondent(s)
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Appearance:
MR RUTVIJ OZA, APP for the Appellant(s) No. 1
MR KB ANANDJIWALA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
- 10
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 26/09/2017
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R/CR.A/2091/2006 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. This appeal is preferred by the State of Gujarat, appellant-original complainant, under Section 378 (1) (3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 27.7.2006 passed by learned Additional Sessions Judge, Fast Track Court No.4, Gandhidham in Sessions Case No.15 of 1999 whereby the respondents are acquitted of the offences under Sections 147, 148, 149, 302, 323, 326, 504, 506 (2) of the Indian Penal Code and Section 135 of the Bombay Police Act, in view of failure on the part of the prosecution to prove its case beyond reasonable doubt.
2. When this appeal is taken up for hearing, Shri Anandjiwala, learned Senior Counsel appearing for the defence has produced xerox copies of death certificates of accused no.1 and accused no.2 viz. Aayar Karsan Aanada and Aayar Momaya Aananda issued by concerned Talati-cum-mantri of village under the provisions of the Registration of Births and Deaths Act, 1969, which are ordered to be taken on record, and accordingly, we order that appeal qua both the above accused stands abated.
3. The case of the prosecution is that the complainant Gelabhai Dosabhai Rajput was residing at Phulpur, Taluka- Rapar, Kutch and was doing agricultural activity and having 20 to 22 acres of land. The complainant was having wife, two sons and a daughter in his family. On 16.9.1992, they went to their relatives' home at Hamirpur Village and stayed at night in his sister's house. On 17.9.1992, at about 10 hours, they left Hamirpur. While going to Phulpur Sanva Village, one donkey cart was passing in which Suja Deva (PW-4), Naran Bhura and Page 2 of 9 HC-NIC Page 2 of 9 Created On Mon Oct 02 05:15:43 IST 2017 R/CR.A/2091/2006 JUDGMENT Deva Bhura (now deceased) were sitting and they were going to their field. At about 2 p.m. they reached their field. During that period, Karsan Anand Ayar, A-1, Momaya Anand Ayar, A-2 and Devsar Anand Ayar, A-3 all residing at Sanva Village and one Nagdan Momaya Ayar were there. Out of these four persons, Karasan Anand Ayar was having sharp Dharia and other three were having lathis in their hands. Devsura Anand came at Devbhura, abusing him and told that why he kept watering Nali in the field of Deva Bharai. In this manner, Devsura Anand was enraged and assaulted Deva Bhura with lathi on both hands. Karsan Anand assaulted with dharia on Suja Deva's head and leg. During the quarrel, complainant came there, separated them from each other, Samtha Deva Rajput and Rana Akha Rajput residing at Sanwav were abusing the above four accused and threatened Karsan Anand saying that today he was safe but in future he would kill him. In this way, complainant Suja Deva, Bhura Deva and Narayan got serious injuries on head, legs and hand. They were carried to government hospital, Bhimsar for their treatment. Then they went to lodge the complaint.
4. Accordingly, C.R.No.48 of 1992 came to be registered at Bhimsar Police Station. During investigation it was found that the opponent accused committed the offence as charged against them and they faced the trial in Sessions Case No.15 of 1999 for the offences punishable under Section 147, 148, 149, 302, 323, 326, 447, 504, 506 (2) of Indian Penal Code and under Section 135 of the Bombay Police Act.
5. The prosecution has examined following witnesses in support of its case.
Page 3 of 9 HC-NIC Page 3 of 9 Created On Mon Oct 02 05:15:43 IST 2017 R/CR.A/2091/2006 JUDGMENT No. Name Exh. PW-1 Hasmukhlal Kashiram. 39 PW-2 Gela Dosabhai. 42 PW-3 Dahyalal Tribhovan. 46 PW-4 Sujabhai Devabhai Rajput. 50 PW-5 Samat Deva. 62 PW-6 Ranabhai Akhabhai. 63 PW-7 Husen Mamad Nareja. 65 PW-8 Jesharkhan Bhaykhan Baloch. 67 PW-9 Mahipatsinh Rajkamalji. 72 PW-10 Dr.Pravinchandra Popatlal Changela. 73 PW-11 Balvantsinh Kanubha Zala. 77 PW-12 Raniben w/o. Samatbhai. 79 PW-13 Nathubhai Naranbhai. 80 PW-14 Dungarbhai Dhanabhai Maraj. 83 PW-15 Shankarbhai Bhurabhai. 85 PW-16 Nodhabhai Shambhubhai Gohil. 86 PW-17 Salimbhai Munshi Shah. 88 PW-18 Kantilal Premji Pethani. 100 PW-19 Kiritkumar Ranmal Kantawala. 105
6. The prosecution has also produced 13 documentary evidence in support of its case. Learned trial Judge after appreciating the evidence on record acquitted the accused persons of the charges levelled against them and being aggrieved by it, the State has preferred present appeal.
7. In the backdrop of above, Shri Rutvij Oza, learned APP has invited our attention to entire record of the case and testimonies of 19 witnesses and 13 documentary evidence. It is submitted that complainant, PW-2, Gela Dosabhai is an eye witness and PW-4, Suja Deva, an injured eye witness, who no doubt survived but his dying declaration was recorded by Page 4 of 9 HC-NIC Page 4 of 9 Created On Mon Oct 02 05:15:43 IST 2017 R/CR.A/2091/2006 JUDGMENT learned Executive Magistrate vide Exh.102. It is submitted that testimonies of eye witnesses and injured eye witness, as above, ought to have been believed by learned trial Judge inasmuch as PW-1, doctor in-charge of government hospital, Bhimsar, who directed injured and deceased for further treatment at Bhuj Hospital deposed vide Exh.39. In continuation of testimonies of Prosecution Witnesses viz. PW-2 and PW-4, Naran Gova, who was also injured and whose dying declaration was recorded by PW-18 also supported the case of the prosecution. However, the above witnesses died during trial in natural course. Other two eye witnesses, PW-5, Samtabhai and PW-12, Raniben, wife of PW-5 not only named the accused but weapons carried by the accused and injuries inflicted as shown in the postmortem report, 11 in numbers, on various parts of the body of the injured, who succumbed to the injuries were found to be cause of death and, therefore, collectively all such evidence establish guilt of the accused, for which learned trial Judge ought to have ordered conviction for the offences for which they were charged. Inter alia, our attention is drawn to testimonies of other witnesses, panch witnesses and police witnesses and Deputy Mamlatdar, who had recorded statement of injured initially.
8. Shri Anandjiwala, learned Senior Counsel appearing for the respondents would contend that the judgment and order of acquittal of the respondents by learned trial Judge is based on appreciation of evidence on record and for the conclusion of no guilt of the accused and failure on the part of the prosecution to prove its case beyond reasonable doubt, reasons assigned and findings recorded by learned trial Judge are sound and proper exercise of appreciating the evidence, which warrants Page 5 of 9 HC-NIC Page 5 of 9 Created On Mon Oct 02 05:15:43 IST 2017 R/CR.A/2091/2006 JUDGMENT no interference by this Court in exercise of its appellate powers. By taking us to the testimonies of PW-2, complainant and eye witness vis-a-vis complaint lodged by him vide Exh.42 and Exh.89 respectively, it is submitted that initially four persons were named as accused having inflicted injuries with wooden stick and dharia on different parts of body of injured but later on in his testimonies, ten persons are named as accused by attributing wooden stick in inflicting injuries by them. Likewise, PW-4 vide Exh.50, injured eye witness, attributes overt act of usage of dharia by A-1, now deceased, on hands of Deva Bhura, the deceased and also by A-2 and A-5 on the deceased but at the same time no where such injuries are noticed much less any material is brought on record. The deceased received 11 injuries and barring fractures on left and right hand and one CLW on right hand all other injuries were abrasion and simple in nature. That even cause of scuffle and assault and timings of such an assault so deposed by various witnesses having striking discrepancies and they are not sure whether such instance took place at 11 a.m. or 2 p.m. By taking us to the medical certificate issued by the concerned doctor, it is submitted that barring above no other medical paper about initially disclosing involvement of the accused appears on record. Be that as it may, according to learned counsel for the defence there is total absence of FSL analysis or any other steps taken by investigating agency to establish guilt of the respondents. It is submitted that when injured had survived after medical treatment, statement recorded before Executive Magistrate, PW-18 ought not to have been exhibited but at the same time in the above dying declaration, an attempt was made to implicate all relatives of other accused who were not even named in the FIR. Thus, when it is stated Page 6 of 9 HC-NIC Page 6 of 9 Created On Mon Oct 02 05:15:43 IST 2017 R/CR.A/2091/2006 JUDGMENT that there was a civil dispute about the possession or ownership or both of the land in question no material is brought on record whether any civil case was pending in the Court and any order was passed by the Civil Court either of granting injunction or appointing Court Commission etc. Learned trial Judge has, therefore, carefully appreciated the evidence and has found vital omissions, material discrepancies and contradictions about initiation of crime and timings and even failure to bring on record ownership or possession of the land in question for which dispute is alleged to have taken place, the appeal preferred by the State of Gujarat lacks merit and deserves to be dismissed.
9. Having heard learned APP for the State of Gujarat and learned Senior Counsel for the respondents herein and having gone through the record of the case and the judgment and order under challenge we are unable to persuade ourselves with the submissions made by learned APP that judgment and order of acquittal requires to be interfered with. We are broadly in agreement with the reasonings and findings on the basis of which conclusions are drawn by the trial Court about no guilt of the accused but we have again appreciated the evidence in light of arguments advanced by learned APP and has found that reasonings given by trial Court in the backdrop of evidence, even testimonies of eye witnesses as well as injured eye witnesses, medico-legal evidence etc. cannot be said to be wholly illegal or unsustainable or contrary to parameters laid down by the Apex Court for appreciating such evidence by the trial Court.
10. The following circumstances, for which evidence was Page 7 of 9 HC-NIC Page 7 of 9 Created On Mon Oct 02 05:15:43 IST 2017 R/CR.A/2091/2006 JUDGMENT appreciated by the trial Court on scrutiny are found by us to establish that prosecution has failed to prove its case beyond reasonable doubt.
(i) PW-2, the complainant, though named four accused initially having dharia and sticks in the hands of assailants, in his testimonies implicated six other accused and all of them with wooden stick. None of the above article was sent for any FSL analysis.
(ii) PW-4, injured eye witness, who survived the injuries his dying declaration was initially recorded by PW-18 and another injured Naran Gova, who expired during trial in natural course, his dying declaration was also recorded by PW-18, implicating four and five persons respectively with stick or dharia or both.
To some extent version of PW-4, who survived his injuries in dying declaration named four persons and in his testimonies vide Exh.50 named ten accused with dharia and wooden sticks and inflicting injuries on hand of deceased and PW-4 by accused no.1 and injury by wooden stick on PW-4 by accused no.2. But again as per medical evidence no such injury of dharia is found on any part of body of either injured or the deceased.
(iii) The cause of death of deceased, as per postmortem report was shock due to multiple injuries on various parts of body and no disclosure initially at Primary Health Center, Bhimsar, where the injured were taken creates doubt about the truthfulness and creditworthiness of the eye witnesses and injured eye witnesses PW-2, PW-4, PW-5 and PW-12.
(iv) Further, we find the prosecution has also failed to bring
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on record details about revenue record or any Court case to establish ownership or possession or both of land in question for which alleged dispute had taken place.
(v) Absence of blood on various articles like stick etc. and no FSL analysis is the major lacunae in the investigation particularly when the eye witnesses have different version about number of assaults, usage of weapons or articles like sticks and possibility of injuries by dharia, resulting into giving benefit of doubt to the respondents by the trial Court, we are not inclined to delve deep into the basic theory of offences under Sections 147, 148, 149 etc. of the Indian Penal Code, whether there was an unlawful assembly or not.
11. In absence of merit, the appeal deserves to be dismissed. For the foregoing reasons, this Criminal Appeal is dismissed. The impugned judgment and order of acquittal dated 27.7.2006 passed by learned Additional Sessions Judge, Fast Track Court No.4, Gandhidham in Sessions Case No.15 of 1999 whereby the respondents are acquitted of the offences under Sections 147, 148, 149, 302, 323, 326, 504, 506 (2) of the Indian Penal Code and Section 135 of the Bombay Police Act is confirmed. Bail bond, if any, of the accused stands cancelled. Record and proceedings be sent back to the Court below forthwith.
Sd/-
(ANANT S.DAVE, J.) Sd/-
(R.P.DHOLARIA,J.) *malek Page 9 of 9 HC-NIC Page 9 of 9 Created On Mon Oct 02 05:15:43 IST 2017