Gujarat High Court
State Of Gujarat vs Sunil @ Dhamo Vipulbhai @ Vitthalbhai ... on 28 March, 2023
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/3921/2023 ORDER DATED: 28/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 3921 of 2023
In R/CRIMINAL APPEAL NO. 440 of 2023
With
R/CRIMINAL APPEAL NO. 440 of 2023
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STATE OF GUJARAT
Versus
SUNIL @ DHAMO VIPULBHAI @ VITTHALBHAI DHAVAL
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Appearance:
PUBLIC PROSECUTOR for the Applicant(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 28/03/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE) ORDER IN CRIMINAL MISC.APPLICATION NO.3921 OF 2023
1. This application is filed for grant of Leave to Appeal against the acquittal recorded by the Sessions Judge, Jamnagar vide order dated 09.09.2022 in Sessions Case No. 76 of 2012.
2. From the record, it appears that the incident took place as under:-
2.1 Earlier complainant Keshav @ Keshu Khimjibhai Vaghela, resident of Jamnagarvala infilcted knife blow to Harish Jayantilal Zala and accordingly, enmities has taken place between the parties. Therefore, in continuation of earlier enmities, accused no.1 on 17.01.2012 in between 20.30 hours to 23.30 hours, gone at the rental house of complainant with accused no.2, raised dispute with deceased Ajaj and broken door Page 1 of 3 Downloaded on : Tue Mar 28 20:49:55 IST 2023 R/CR.MA/3921/2023 ORDER DATED: 28/03/2023 of rental house of complainant. Thereafter, while complainant alongwith witnesses Mamad and Rafik were going to leave Ajaj at his house on Motor Cycle at that time near Old Railway Station, again accused no.1 and 2 raised dispute with complainant and witnesses, gave filthy abuses and accused no.2 gave slap to complainant, accused nos.3 to 9, formed unlawful assembly and assaulted upon complainant and prosecution witnesses with clear intention to cause death of deceased Ajaj and witnesses Mamad and Rafik by their respective weapons like Dhoka, iron Pavdi, knife etc. Though it was within knowledge of accused no. 1 that act committed by him would be sufficient to cause death of deceased in ordinary course of nature, despite the fact he gave blow of knife deceased on chest and right hand and right leg and thereby caused fatal injuries, accused no.2 caused severe injuries to complainant on right side of chest as well as to witness witness Rafik on right hand shoulder, accused no. 3 gave pipe blow to witness Mamad on head and accused no. 4 gave blow of Dhoka on head of complainant and witnesses and other accused persons caused damage to motor cycle of complainant by inflicting iron Pavdi and DhoKa. The respondents have also committed breach of notification issued by District Magistrate, Jamnagar under Gujarat Police Act.
Thus, the respondents have committed offence under sec. 120(b), 143, 147, 148, 149, 302, 323, 324, 326, 427, 504 of IPC and Section 135(1) of Gujarat Police Act and therefore, complaint in this regard has been lodged before Police Inspector, Jamnagar City "B" Division Police Station, Jamnagar, which was registered as CR No.I-169/2012 for the alleged offences under sections 120
(b), 143, 147, 148, 149, 302, 323, 324, 326, 427, 504 of IPC and Section 135(1) of Gujarat Police Act and investigation machinery Page 2 of 3 Downloaded on : Tue Mar 28 20:49:55 IST 2023 R/CR.MA/3921/2023 ORDER DATED: 28/03/2023 put into motion.
3. The Court has find that the injured eye-witness Keshav @ Keshu Khimjibhai Vaghela, who was examined at Exh.139 has witnessed the incident, suffered injury and deposed in his deposition attributing clear-cut role to the respondent, who has inflicted knife blows on the vital part Chest, Right Hand and Right Leg of the deceased - Ajaj, and thereby, causing death. This witness has also given root cause because of which the incident has taken place thereby giving the motive behind the commission of the offence. It appears that the evidence of this witness is not correctly appreciated by the Sessions Court.
4. In view of aforesaid, the Court finds sufficient reason to allow the present application. Therefore, present application for grant of Leave to Appeal is allowed.
ORDER IN CRIMINAL APPEAL 440 OF 2023.
Appeal is admitted.
Issue bailable warrant in the sum of Rs.5000/- against the respondent-original accused.
(A.Y. KOGJE, J) (M. R. MENGDEY,J) GIRISH Page 3 of 3 Downloaded on : Tue Mar 28 20:49:55 IST 2023