Gujarat High Court
The State Of Gujarat vs Anadabhai Virabhai Patel & ... on 26 September, 2017
Author: R.P.Dholaria
Bench: Anant S. Dave, R.P.Dholaria
R/CR.A/2098/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2098 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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 ?
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THE STATE OF GUJARAT....Appellant(s)
Versus
ANADABHAI VIRABHAI PATEL & 5....Opponent(s)/Respondent(s)
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Appearance:
MS CHETNA SHAH, APP the Appellant(s)
ABATED for the Opponent(s)/Respondent(s) No. 2 - 3
HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 , 4
-6
MR.MRUDUL M BAROT, ADVOCATE for the Opponent(s)/Respondent(s) No.
1,4-6
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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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ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA)
1. The appellant State of Gujarat has preferred the present appeal under section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 18.7.2006 rendered by learned Additional Sessions Judge, Banaskantha at Palanpur in Sessions Case No.17 of 1996 whereby learned trial Judge was pleased to acquit the accused for the offences under sections 147, 148, 302 read with section 149 of the Indian Penal Code and section 135 of the Bombay Police Act and section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
2. The short facts giving rise to the present appeal are that on 2.12.1995 at about 23.30 hours, the accused, keeping grudge as regards to the general election of Sarpanch, formed unlawful assembly and assaulted with their respective sticks and pipes and committed grievous injuries over the person of deceased Jagmal while he was in outskirt of village Gangol and thereby committed the offences, as alleged.
3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the respondents accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.
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3.1 In order to bring home the guilt, the
prosecution has examined several witnesses and
also produced documentary evidences.
3.2 At the end of trial, after recording the statements of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.
4. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court.
5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed, as such.
5.1 Ms.C.M.Shah, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper-book and evidence on record and argued that the finding recorded by learned trial Court is based Page 3 of 16 HC-NIC Page 3 of 16 Created On Sat Oct 07 07:33:15 IST 2017 R/CR.A/2098/2006 JUDGMENT upon the presumptions and surmises. She further submitted that learned trial Court has not rightly appreciated the evidence on record. She submitted that since the case was rested upon the evidence of eye witnesses i.e. wife and son of the deceased and other corroborative evidences are also available on record, though learned trial Judge did not believe branding them to be interested witnesses and noticing minor contradictions and improvements thereof as well as noticing that the investigating agency has replaced statements of the wife and son of the deceased dated 3.12.1995 and thereby wrongly extended the benefit of doubt though corroborative piece of evidence clearly is indicative that weapon stick and pipe were found blood stained and blood was also ascertained and though there was ample evidence on record to link the accused with the crime in question and wrongfully discarded their evidence. In her submission, learned trial Court has failed to appreciate the evidence on record and wrongly recorded the judgment of acquittal which is required to be reversed and the respondents are required to be convicted, as such.
6. On the other-hand, Mr.Mrudul Barot, learned advocate for the respondents accused has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is Page 4 of 16 HC-NIC Page 4 of 16 Created On Sat Oct 07 07:33:15 IST 2017 R/CR.A/2098/2006 JUDGMENT just and proper. He submitted that learned trial Judge has recorded ample reasons while delivering the judgment and based its findings on the evidence available on record and that there is no evidence on record to link the respondents accused with the crime in question. He submitted that evidence of the wife and complainant is not at all believable as her statement was came to be replaced on 3.12.1995 by the investigating agency and that fact was also narrated while considering the bail application by learned Sessions Judge and even her behaviour as narrated by her is also unnatural and learned trial court has rightly not believed that she stayed at the place of incident from midnight till morning and without asking for help of anybody or without taking away injured to any hospital and rightly discarded. In fact, incident occurred in the early morning as narrated in the medical papers and she has not witnessed but she wrongfully implicated the present accused advancing the case of election dispute which is not supported by even her own deposition and therefore, her entire evidence is rightly discarded by learned trial Court.
6.1 He further argued that barring the evidence of the widow of the deceased, no other evidence is linking the accused with the crime in question and entire evidence appears to have been got up by the investigating agency. In his very lengthy cross examination, so many things are Page 5 of 16 HC-NIC Page 5 of 16 Created On Sat Oct 07 07:33:15 IST 2017 R/CR.A/2098/2006 JUDGMENT becoming doubtful as regards to investigation he has undertaken and the complaint is also lodged after for about 24 hours and even at the time of taking injured to the hospitals at Deodar, Palanpur and Ahmedabad no names of assailants were given and therefore, the investigating agency wrongfully implicated in the statements of the widow as well as son of the deceased dated 3.12.1995. He, therefore, submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in passing the impugned order acquitting the respondents accused, and therefore, the present appeal deserves to be dismissed.
7. This Court has heard Ms.C.M.Shah, learned APP for the appellant State and Mr.Mrudul Barot, learned advocate for the respondents accused.
8. This Court has minutely gone through the impugned judgment and order rendered by learned trial Court as well as the evidence on record in the nature of paper book.
9. PW 1 - Dr.Pravinbhai Nathalal Solanki has deposed that on 3.12.1995 at about 10.00 he was on duty, at that time, relatives of injured Jagmal brought him in the hospital, at that time, they narrated that in the night of 2.12.1995 till morning at 5.00 O'clock on 3.12.1995 assaulted Page 6 of 16 HC-NIC Page 6 of 16 Created On Sat Oct 07 07:33:15 IST 2017 R/CR.A/2098/2006 JUDGMENT with pipe and stick. He examined and found the following injuries.
"O/C. Patient unconscious Not Speaking. T.N.P. Feeble go/minute B.P. 80/60 MM of Hg (1) Abrasion on the Right forehead region 2 cmx 1 cm in size mid swelling present reddish (2) C.L.W. on the midfrontal region skin deep oblique 5 cm x 1/4 cm in size.
(3) C.L.W. on the left parietal region oblique skin deep 2 1/2 cm x 1/2 cm in size.
(4) C.L.W. on the left parietal region skin deep oblique 2 1/2 cm x 1/2 cm in size.
(5) C.L.W. on the left parietal region skin deep oblique 3 cm x 1 cm in size.
Diffused swelling present on left parietal left temporal region.
X ray Skull AP View No.460 Lateral view Fracture of skull bone left parietal, right parietal bone? Left temporal bones detected."
10. PW 2 - Versibhai Vasrambhai Harijan - complainant has deposed that he is resident of village Gangol. Injured Jagmal is his real Page 7 of 16 HC-NIC Page 7 of 16 Created On Sat Oct 07 07:33:15 IST 2017 R/CR.A/2098/2006 JUDGMENT brother. His brother was lying in outskirt of village in front of gate of Harijanvas and Thakorvas. He was called by Amthu Sangram and thereafter he lodged the complaint upon the strength of information given by Kanta - wife of injured Jagmal. In the cross examination, he has admitted that in the general election of Sarpanch, his brother and his uncle were contesting the election and his brother won and injured lost election. He also admitted that there was no contest in between injured and Patel community. He admitted that accused Teja elected uncontested as member. He admitted that he has no personal knowledge regarding the incident, but he stated upon the strength of Kanta.
11. PW 4 - Kantaben Jagmalbhai - widow of deceased Jagmal deposed that she was residing along with her family at village Gangol. On the day of incident, her husband was sitting over in the outskirt of village along with Anda Vira. That fact was narrated by his son Kanu and further her husband told her to prepare food and she was waiting for dinner, but he did not arrived upto 11.00 pm and thereafter she heard scuffle and she rushed to the place of incident, at that time, accused Teja Hari and Devsinh Hari assaulted her husband with stick, at that time, they were in all seven persons and they were indiscriminately assaulting and they were Teja Hari, Devsinh Rupa, Anda Vira, Babra Devsi, Page 8 of 16 HC-NIC Page 8 of 16 Created On Sat Oct 07 07:33:15 IST 2017 R/CR.A/2098/2006 JUDGMENT Ishwar Tulsi, Mana Hari and Jama Devsi etc. Babra Devsi and Isha Tulsi were armed with pipes and others with stick. She further deposed that she tried to save her husband, at that time, she was also assaulted. She shouted for help also and thereafter for whole night, she sat over there and in the early morning, she informed her brother-in-law Amthubhai for calling the complainant and thereafter injured was taken to the hospital at Deodar and his brother-in-law Versinh lodged the complaint thereafter and from Deodar, her husband was shifted to the Civil Hospital, Palanpur and from where he was again shifted to the Civil Hospital, Ahmedabad where he lived for three days and on the fourth day, he succumbed to the injuries. She stated that incident occurred because of election dispute. Patels were pressing her husband to withdraw candidature who was contesting against his real uncle Sagrambha. She identified the accused before the Court as well as muddamal articles. In her cross examination, she admitted that village having 42 to 50 houses of Patels as well as 40 houses of Thakors and Harijans. She also admitted that there was no talking terms with accused Anda for about last five years. She also admitted that election was over for about three months prior to the incident and her husband lost the election and her uncle-in-law won election and became Sarpanch. She also admitted that injured who was lying in outskirt of village Page 9 of 16 HC-NIC Page 9 of 16 Created On Sat Oct 07 07:33:15 IST 2017 R/CR.A/2098/2006 JUDGMENT surrounded with several houses belonging to Thakors and Harijans communities. She also admitted that she did not try to call anybody for help for taking injured to the hospital and she did not try even to call anybody for help for the whole night. She admitted that Amthu arrived at the place of incident and thereafter he slept at his house. She denied the fact that her husband lodged the atrocity complaint against Thakor community. 2 - 3 cases and also the complaint was lodged against her husband by Thakors. Though such documents were came to be produced in her deposition, though she refused.
12. PW 5 - Kanubhai Jagmalbhai Chauhan deposed that incident occurred on 2.12.1995 Saturday at about 11.00 pm. He heard shouting her mother and therefore, they reached to the place of incident and he noticed all the accused were there and they were holding sticks and pipes and were also assaulting indiscriminately to his father and thereafter the accused left the place of incident. He stayed along with her mother for whole night at the place of incident till the son rises. Thereafter, the complainant was called and the complaint was given and his father died on 6.12.1995. His examination in chief came to be challenged by the defence as if he did not view the incident and certain contradictions are brought on record.
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13. PW 9 - Dr.Devanbhai Govindbhai Desai has been examined by the prosecution who carried out autopsy on 6.12.1995. He stated that cause of death is "due to head injury. Injuries are possible by hard and blunt object like lathi, pipe or hard blunt long object. Injuries were homicidal in nature and sufficient to cause the death."
14. PW 12 - Popatlal Somabhai - Assistant Sub Inspector deposed that on 3.12.1995 complainant - Versinh lodged the complaint. In his cross examination, he has admitted that he recorded the complaint in the blank paper. He further admitted that he did not mention the place and time over such complaint. Even, he did not mention time when the complaint was came to be completed. He further admitted that he reported to the superior officer wherein it was mentioned as sharp weapon. He admitted that complainant has not stated that accused were holding sharp weapon. Further, he has admitted that in the report, he narrated sharp weapon at his own which was not stated by the complainant.
15. PW 13 - Dr.Digant Kalidas Dixit deposed that on 3.12.1995 at about 5.03 evening injured Jagmal was brought in the Civil Hospital, Palanpur along with transfer memo. Whereupon examination, six injuries were found and all injuries were of CLW nature. In his cross Page 11 of 16 HC-NIC Page 11 of 16 Created On Sat Oct 07 07:33:15 IST 2017 R/CR.A/2098/2006 JUDGMENT examination, he has admitted that his relatives gave history that at about 6.00 O'clock on 3.12.1995 he was found unconscious on the outskirt of village.
16. PW 15 - Dalabhai Arjanbhai Desai has deposed that on 3.12.1995 he was serving as PSI at Deodar. He took over investigation from ASI Bhavansinh. He visited the place of incident and recorded the statements of some of the witnesses and arrested the accused and carried out various panchnamas. In the cross examination, the defence asked as regards to the recording of double statements of witness Kanta widow of the deceased as well as Kanu son of the deceased which he did not accept and also he has not accepted that statements which were noticed by the Sessions Court while considering bail application and were in favour of the accused came to be destroyed by him. In his cross examination, the defence has brought on several infirmities in the investigation.
17. PW 17 - Dr.Dipak Bijolbhai Pranami has deposed that he was serving as Medical Officer in the Civil Hospital, Palanpur. On 3.12.1995 at about 12.30 noon injured Jagmal was shifted from Deodar to his hospital along with referral note. The relatives of the injured gave history of assault. The patient was unconscious and was not responding.
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18. We have thoughtfully considered the
rival submissions came to be advanced. We have
gone through the entire Record and Proceedings as well as the impugned judgment.
19. Indisputably, entire case of the prosecution rests upon the oral depositions of widow Kanta and son Kanu of deceased Jagmal. Indisputably, FIR at Exh.94 came to be lodged by Versinhbhai which was upon the strength of information given by the aforesaid widow Kantaben and he has clearly admitted that he has no personal knowledge regarding the incident.
20. In view of the aforesaid nature of evidence, only evidence of Kantaben as well as Kanubhai were found to be decisive. While appreciating their evidence, learned trial Judge recorded several reasons commencing from paragraphs 23 to 45 wherein several reasons while appreciating the evidence recorded by learned trial Judge for discarding their evidence together with documentary evidences at Exhs.208 and 209 which are orders of learned Sessions Judge while considering the bail application at that time the crucial stage of investigation was going on. At that time, while deciding the bail application, learned Sessions Judge recorded that while the Court perused the police papers, at that time, double statements dated 3.12.1995 were Page 13 of 16 HC-NIC Page 13 of 16 Created On Sat Oct 07 07:33:15 IST 2017 R/CR.A/2098/2006 JUDGMENT found on record which were different in nature and finding that sort of investigation, learned Sessions Judge also made certain observations as regards to serious dereliction in duty on the part of investigating agency and it was also directed to look into the matter, as such.
21. On going through the entire Record and Proceedings while considering the evidence on record, especially as per the prosecution case, incident occurred on 2.12.1995 during nocturnal hours at about 11.00 O'clock and thereafter for the whole night, widow of deceased Kantaben and her son sat at the place of incident without informing anybody as regards to incident, without asking any help from any inhabitant of the village or even without taking away injured for any treatment to any hospital though the hospital was only about 10 kms away from the place of incident and even though as admitted by both the eye witnesses that the place of incident was surrounded for about 40 houses belonging to their community and Thakor community barring 50 houses belonging to Patel community. Indisputably, from the medical case papers, it is revealed that history was given that incident occurred at about 6.00 O'clock in the morning and that report was also came to be made by the concerned police to the superior officer. Learned trial Court has rightly noted that if the widow and his younger son of the deceased were at the place of incident Page 14 of 16 HC-NIC Page 14 of 16 Created On Sat Oct 07 07:33:15 IST 2017 R/CR.A/2098/2006 JUDGMENT and sat for whole night along with injured and the complaint is came to be lodged after about 24 hours before the police, than while carrying injured to three hospitals i.e. Deodar, Palanpur and Ahmedabad, they were also accompanied along with the injured, they could have named the accused at-least.
22. We have reappreciated the entire evidence of aforesaid both the eye witnesses in light of their cross examinations and in conjoint reading with the depositions of treating Doctor and Investigating Officer, on appreciation of their evidence, learned trial Court has rightly discarded their evidence as the evidence on record clearly indicates that the deceased also previously lodged 3 - 4 complaints against Thakor community and the deceased and family of the deceased were litigating and they were well aware of the court proceedings and other proceedings before the police as well as hospital. If they have in fact viewed the incident assaulting the accused, they could have promptly lodged the complaint and could have took the injured to the hospital.
23. The reasons assigned by learned trial Court commencing from paragraphs 23 to 41 are in consonance with the evidence available on record and we also concur with the reasons assigned by learned trial Judge.
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24. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper.
25. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondents accused of the charges leveled against them. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same.
26. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith.
(ANANT S.DAVE, J.) (R.P.DHOLARIA,J.) pathan Page 16 of 16 HC-NIC Page 16 of 16 Created On Sat Oct 07 07:33:15 IST 2017