Gujarat High Court
State Of Gujarat vs Nizamuddin Chhotumiya Kaji on 19 August, 2023
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 130 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
and
HONOURABLE MRS. JUSTICE M. K. THAKKER Sd/-
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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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STATE OF GUJARAT
Versus
NIZAMUDDIN CHHOTUMIYA KAJI & 11 other(s)
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Appearance:
MS. MONALI BHATT, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 11,4
MR. B.S.PATEL, SR. ADVOCATE Assisted by
MR CHIRAG B PATEL(3679) for the Opponent(s)/Respondent(s) No.
1,10,12,2,3,5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 19/08/2023
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NEUTRAL CITATION
R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023
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ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI) [1] This is an appeal filed by the State of Gujarat, under Section 378 of the Code of Criminal Procedure, 1973 (for short "the Code"), challenging the judgment and order of acquittal recorded by the learned Additional Sessions Judge, Vadodara dated 10.10.1994 in Sessions Case No.151 of 1994, whereby respondents - accused have come to be acquitted of the charge levelled against them. [2] During the course of trial, accused No.9 - Akhtar Akbar Khokhar, since died, more particularly before charge came to be framed, case against him was ordered to be abated. Two more accused, during the pendency of this appeal, have also died, vide order dated 10.06.2019, appeal qua respondent No.11 i.e. Kamalludin Ibrahim Kaji was ordered to be abated. Again, as recorded in an order dated 23.06.2022, since accused No.4 i.e. respondent No.4 herein has also died, appeal qua him was also ordered to be abated. [3] In view thereof, this appeal is now required to be considered against accused Nos.1 to 3, 5 to 8, 10 & 12 herein. [4] As per the case of the prosecution, on 06.12.1992, Babri Masjid was demolished and pursuant thereto, leaders of one political Page 2 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined party came to be arrested. There was a call of "Bharat Bandh" given by that political party on 09.12.1992. The political party at Village - Sinor had also determined to observe the call of "Bharat Bandh". It had come to the notice of the party workers that some schools in Sinor Village were working, therefore, Secretary of that political party at Village level Mr. Kiritkumar Shah - deceased, Kanubhai, Maheshkumar, Bharat Raj, Hemendra, Nilesh Harsih Raj, went to Gujarati Kumarshala to get it closed. According to the case of the prosecution, there were about 20 to 25 workers of concerned political party, who went to that school. At that time, mob of 100 to 150 people reached there armed with deadly weapons like stick, pipe, knife, chhara (big knife), scissor etc., from Jakatnaka Gate at Sinor. As per the case of the prosecution, mob included Nizamuddin Chhotumiya Kaji - A1 , Salim @ Sallu Malang Kaji - A2, Kadar Sattar Memon -A3, Anwar Akbar Khokhar -A4, and Latif Suleman Memon -A5, as coming out from the FIR. As the case pleaded by the prosecution, the members of the mob caught hold of Kiritbhai Shah and Anwar Akbar Khokhar -A4 gave three to four blows of big knife on the lumber region of deceased - Kiritbhai and Salim @ Sallu Malang Kaji -A2 also gave two blows of knife on the right leg of Kiritbhai - deceased and Kadar Sattar Memon -A3 is said to have given two blows of pipe on the head of Kiritbhai, because of which, he fell down. At that time, Page 3 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined Police arrived and one of the Police man open fired in air from his rifle and the mob dispersed. Kiritbhai was taken to the Government Hospital, which is situated just opposite to the said school but during the treatment he succumbed to the injuries.
[4.1] It is further the case of the prosecution that Shri K.J.Soni, the then Police Sub Inspector, Sinor Police Station, who was on patrolling duty at Village - Sadhli, was informed by wireless to return to Sinor, therefore, he returned to Sinor and came to know about the disturbance as well as murder of Kiritbhai Shah. Then, he recorded the complaint of one Gopal Shah and sent the same to the Police Station for registration of an offence. He then took over the investigation, carried out inquest panchnama and dead body was sent to the Medical Officer through Police Constable - Amanullahkhan for the purpose of postmortem.
[4.2] On carrying out the investigation and on conclusion of it, charge-sheet came to be filed against the aforesaid accused. On case being committed to the Court of Sessions, it was entrusted to the learned Additional Sessions Judge for the purpose of trial. Charge came to be framed against all the accused except accused No.9 - Akhtar Akbar Khokhar as he died prior to framing of charge, vide Exhibit - 23 on 25.07.1994. Since accused pleaded not guilty to the Page 4 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined charge, trial against the accused is conducted by the learned Judge. To prove the charge against the accused, prosecution examined in all 17 witnesses, produced and proved approximately 19 documents. [4.3] On appreciation of the evidence led before it, hearing the prosecution as also the learned advocate for the accused, learned Judge has acquitted all the accused of the charges levelled against them, giving benefit of doubt.
[5] Ms. Monali Bhatt, learned Additional Public Prosecutor assailing the judgment and order of acquittal recorded by the learned Judge took us to the entire evidence recorded by the Court as also the documents, which were produced and proved. According to her submission, the prosecution had proved the guilt of the accused beyond reasonable doubt. She submitted that the learned Judge has failed to consider the evidence adduced by the prosecution in its true perspective.
[5.1] Taking us to the evidence of (PW-1) - Gopalbhai Shah, who is first informant and eye witness to the incident, Ms. Bhatt, vehemently submitted that there is no reason to disbelieve the said witness as he is also an injured eye witness. She has submitted that within no time of occurrence, First Information Report has come to be filed, and therefore, there is no scope of false implication of any of the Page 5 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined accused. Taking us to the findings recorded by the learned Judge, in para - 30, she has submitted that condemning the eye witnesses, in all 6 in number, out of which two are injured eye witnesses, the learned Judge has stated that they have given examination-in-chief, like verbatim reproduction of all facts as if all of them are playing a record, is in consonance with what was witnessed by them, they have deposed to before the Court.
[5.2] She has further submitted that for discarding the deposition of first informant (PW-1) - Gopalbhai, learned Judge has criticized him on the ground that when FIR was given, mob of 100 to 150 persons of a particular community was shown, armed with different weapons coming from Jakatnaka Gate, whereas while deposing before the Court, number of persons in the mob reduced to 10 to 12 persons only. Therefore, she has submitted that it may happen that mob comprising of more persons come to a spot and only persons, who are known and identified by the witness, may be stated before the Court but by that it cannot be said that the prosecution has pleaded a false case. Even witness may not be knowing all the persons present in the mob. Therefore, while deposing before the Court, they may reduce to the persons, who were identified by name, who have assaulted the deceased. She has further submitted that he Page 6 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined named five accused in his deposition before the Court with different weapons who assaulted the deceased but if their involvement into the offence is disclosed by other eye witnesses by name, their arrest into the offence cannot be doubted by the learned Judge. As such, the witness has, according to the submission of learned APP, given very natural version on seeing the attack by the mob and the witness ran away but seeing Police coming there and firing two shots, he mustered courage to come back to the spot. While attempting to rescue the deceased, he was also given kick and fist blow according to the witness. Reasons assigned by the learned Judge, according to submission of learned APP, to discard the testimony of this injured eye witness (PW-1) - Gopalbhai, are such that no person of a normal prudence would discard the evidence of injured eye witness. As such, according to the submission of learned APP, his presence at the time of incident cannot be doubted. If witness has not behaved in a manner, which is expected by the learned Judge, cannot be a ground to discard his testimony. Different witnesses may react in a different manner on witnessing the occurrence, that too, of murder. [5.3] It is further submitted that discrepancy about recording of FIR at the Police Station, as asserted by the witness, or at the Hospital, as asserted by the Investigating Officer, cannot be given Page 7 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined much importance as there is no variation so as to material aspect in the FIR whether it is recorded in the Hospital or at the Police Station. If the person who recorded the FIR asserts that he recorded the same in the Hospital, it is also not supported by any contemporaneous record and therefore, it cannot be made a major ground if Police Officer asserts that it has been recorded in the Hospital. It is submitted that the learned Judge has given undue importance to the answers given by the witness to the questions put in cross-examination that "he does not know". However, drawing attention of the Court to the evidence of the eye witness, she pointed out that the facts, which are not known to him, he may state before the Court that he does not know. But at nowhere in the cross-examination, witness has, in respect of assault to the deceased by different accused with different weapons, stated that he "does not know".
[5.4] The very fact that deceased - Kiritbhai was working in which shift in the school, if witness does not know exactly, he can plead so. However, according to submission of learned APP, it cannot be given much importance so as to discard the evidence led before the Court by him and corroborated by other 5 eye witnesses. Drawing attention of the Court to para-37 of the impugned judgment, 25 issues to which witness has answered that "he does not know", are not of much importance so as to go to the root of the case to discard the Page 8 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined whole testimony of the witness. She has further submitted that the testimony of the first informant (PW-1) - Gopalbhai is discarded on the ground that after giving the whole account in the examination-in-chief of occurrence, the witness thereafter pleaded that he does not know anything else about surrounding happenings, is the incorrect conclusion recorded by the learned Judge and on that ground, his testimony could not have been rejected by the learned Judge. She has further submitted on the ground that when deceased taken to the hospital, despite presence of Police and other witnesses, eye witness has wrongly claimed that he was alone in the hospital. However, according to submission of learned APP, witness took treatment in the hospital on the next day of incident at about 12:30 p.m. and therefore, where the dead body of Kiritbhai lying, naturally he would not know at that time as he was never in the hospital on that day. Therefore, doubting the credibility of the injured first informant, rejecting his testimony as a witness of truth, according to learned APP, the learned Judge has committed grave error, and therefore, the order of acquittal passed by the learned Judge is required to be interfered with.
[5.5] She has further submitted that undue importance is given to FIR reaching late to the learned Magistrate. Though offence came to be registered on 09.12.1992, as endorsed on the FIR, it has Page 9 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined reached to the concerned Magistrate on 17.12.1992. Therefore, drawing attention of the Court to the deposition of the Investigating Officer and the date of arrest of different accused as well as date of statement recorded of the eye witnesses, it is submitted that the names of other accused except named by complainant, were revealed on that very day by other witnesses and in all 6 of them came to be arrested on 10.12.1992 and further few accused were arrested prior to FIR reaching to the Magistrate based on their names revealed during the course of investigation. Despite that, there are no addition of the accused in the FIR by name, which is suggestive of the fact that late reaching of the FIR has not caused any improvement in the prosecution's case or caused prejudice to the accused. Therefore, according to her submission, no undue importance should be given to such circumstance discarding the case of prosecution. [5.6] She has further submitted that under the law, there is no requirement of mentioning name of the accused in the inquest report / panchnama, even if FIR is registered prior to execution of it. Therefore, she has submitted that it can never be a ground to raise any doubt on the point of FIR reaching late to the Magistrate, with a view to create any case. It is further submitted that even if on the point of place of recording FIR, if Investigating Officer is to be Page 10 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined disbelieved, the consistent testimonies of first informant as also other witnesses to the incident could not have been discarded by the learned Judge to acquit the accused.
[5.7] Learned APP has further submitted that exact time of the occurrence, though asserted by the witness to be 11:30 or so, it cannot be discarded if there is any variation of about half an hour or an hour in the testimony of different witnesses. It can never be stated to be with exactness. Some witness may perceive approximate time, some may not look at exact timing in the watch, and therefore, no undue importance to it can be given to discard the evidence of the prosecution. The learned Judge, according to submission of learned APP, thrown overboard the deposition of the eye witnesses on the ground of time of the assault on the basis of deposition of one Police Constable Virpalsinh, who opened fire to disperse the mob, deposed to before the Court that the dead body of deceased was lying there at the place of incident about half and hour. Therefore, it is submitted that based on the presumption that after injured was taken to the hospital, witnesses might have gathered there and they must have decided to lodge a complaint against some of the persons who are leaders of other community against whom they had some grievances. The said finding recorded by the learned Judge, according to submission of learned APP, is without any substance. Any suggestion Page 11 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined with regard to false implication of the leader of a community, though denied by the witness, learned Judge has based his presumption on the said evidence to conclude that prosecution has not presented true account of occurrence through the witnesses but some tainted evidence is led and doubted the truthfulness of the case of the prosecution.
[5.8] It is further submitted that the testimony of other witness (PW-3) - Maheshkumar Mehta has been discarded by the learned Judge based on irrelevant and immaterial contradictions giving undue importance to it. If an eye witness has not stated in the statement from which direction mob had come and he has so stated before the Court, it cannot be said to be such an improvement which doubts the credit of the witness, even if, witness answers the suggestion that he does not remember whether he has stated before the Police that Hareshbhai and Gopalbhai had intervened to rescue the Kiritbhai, cannot be a ground to disbelieve the said witness. So based on irrelevant and immaterial contradictions / improvements in the case, according to submission of learned APP, testimony of an eye witness cannot be discarded if otherwise found to be reliable. If the witness has not deposed to before the Court anything about the Police person coming there at spot, opened up fire to disperse the mob, cannot be a Page 12 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined ground to discard the testimony of the said witness if said evidence is found to be there on the overall view of the prosecution case. [5.9] The finding recorded by the learned Judge, as submitted by the learned APP, with regard to ransacking the shop and setting it on fire having not stated before the Police or before the Court whether seen by him or not, cannot be given undue importance to discard the testimony of eye witness. Learned APP has further submitted that the important aspect missed by the learned Judge while recording the judgment and order of acquittal is the report of FSL. It is submitted that find of blood marks group "A" on the clothes of the deceased, clothes of some of the accused, weapon of offence recovered, if not believed to be discovered from some of the accused, is a vital circumstance proving presence of the accused at the time of occurrence or else no blood marks on the clothes of some of the accused matching with the blood group of the deceased would have been there. At any rate, according to submission of learned APP, even on the weapon of the offence recovered from the accused also there appears the marks of blood group that of the deceased, on it. The said circumstance also cannot be ignored by the learned Judge while discarding the prosecution case in its entirety.
[5.10] Rejection of testimonies of all eye witnesses on the Page 13 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined
ground that they are interested because they hail from same political party, as submitted by the learned APP, is under a wrong premise. Merely because witness belongs to same political party, their testimonies cannot be branded as testimony of the interested witness when one of the party worker is killed. According to submission of learned APP, there exists no other FIR than the one which is produced on record by the prosecution at Exhibit -42. Though first informant may have claimed that he had orally informed the Police at the Police Station with regard to the incident, they have noted it down, it cannot be presumed that there was another FIR registered at Police Station, as PSI Mr. K.J.Soni (PW-17) claims that he recorded complaint at Hospital. Therefore, prosecution cannot be condemned for not producing the FIR which was registered at the Police Station. [5.11] Assailing the judgment and order of acquittal, learned APP submitted that the infirmities narrated in para -79 of the impugned judgment and order, certain infirmities are based on mere presumption, not supported by even evidence based on which it can be presumed. Learned APP, therefore, submitted that based on the evidence led before the Court, keeping in mind the corroborating evidence in the form of documents, Report of FSL, etc., no view other than the view that the accused are guilty of an offence, can be Page 14 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined recorded and therefore, the impugned judgment and order of acquittal is erroneous and requires to be interfered with. According to her submission, the only view possible based on the evidence led before the Court is that the accused are guilty of an offence and therefore, their acquittal recorded by the learned Judge requires to be upturned and accused are required to be punished accordingly for the offence they have committed.
[6.0] As against that, Mr. B.S.Patel, senior advocate, learned counsel assisted by Mr. Chirag Patel, learned advocate for the respondents - accused, submitted that as rightly concluded by the learned Judge, there appears no witness to the incident of murder of the deceased and therefore, at each and every stage there appears deliberate lapses and witnesses posed themselves as eye witnesses, which is not believable. He has further submitted that the conduct of (PW-1) - Gopalbhai Shah, who is the first informant, is also not beyond any doubt. From the narration of incident and the evidence on other corroborative nature, he appears to have not given true account of the same as he has not witnessed the incident at all. Though he asserts, as according to submission of learned counsel, he went to Police Station and gave a complaint, the evidence brought on record by independent witness, if at all is to be believed like K.J.Soni, Investigating Officer, who deposed to before the Court that he Page 15 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined recorded the FIR of Gopalbhai in the hospital. Learned counsel for the respondents - accused further submitted that if injured eye witness - first informant is to be believed, he went to the Police Station and he informed the Police accordingly, which was reduced into writing but that has not been brought to the Court. He has further submitted that a complaint Exhibit -42 produced by the prosecution, claimed to be recorded by PW-17 - K.J.Soni, the Investigating Officer, does not bear the time or the place of recording the same. Therefore, if the witness asserts with regard to complaint given at the Police Station, it is found to be contradictory, that too, on evidence led by the prosecution itself. If Investigating Officer - PSI, is believed to be an independent witness, his conduct is also very much doubtful in respect of investigation carried out into the present offence. He submitted that despite he claims to have recorded the complaint of PW-1 - Gopalbhai Shah at Hospital, his attention was drawn to the assertion made in the inquest panchnama, which recites that after reaching Sinor from Sadhli, he went to the Police Station and took note of complaint filed in respect of murder of Kiritbhai Shah and he proceeded to the Hospital. The said inquest panchnama is carried out at 12:30 p.m. to 1:10 p.m. on that day.
[6.1] He has further submitted that, not only the Police but the Page 16 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined
evidence of doctor, who is presumed to be an independent witness, also does not inspire confidence when he deposed to before the Court with regard to injury sustained by two of the injured - eye witnesses whose medical certificates are produced on record, the date and time of examination is not mentioned in the said certificate. He has further submitted that the Police Constable- Amanullahkhan, who was entrusted duty to take the body to the hospital for the purpose of postmortem, is not examined by the prosecution and surprisingly, the shirt worn by the deceased was not found at the time when inquest panchnama was carried out, is produced by him to PSO. Surprisingly, a panchnama is drawn, that too, by PSO, seizing clothes of the deceased, said to have been produced by said Amanullahkhan. Though witness to the said panchnama has supported the case of the prosecution, according to submission of Mr. Patel, learned counsel, the Police Station Officer who carried out the said panchnama and Amanullahkhan - Police Constable who produced those clothes, have not been examined before the Court and the prosecution has failed to resolve the mystery how the shirt of the deceased, which was not found at the time of inquest panchnama or at the time of postmortem conducted, produced and seized by the Police and sent to the FSL. He has further submitted that the depositions of eye witnesses also do not inspire confidence. The manner in which they deposed to before Page 17 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined the Court during the course of examination-in-chief, they are consistent in respect of assault on the deceased, whereas events which took place at the time of incident as also surrounding circumstance exist thereat at the time, witnesses have conveniently answered that they do not know or are having lack of information on the issue. Therefore, he has submitted that the evidence of the prosecution is lacking in material details and the witnesses who posed themselves as eye witnesses are not believable at all and rightly not believed by the learned Judge. He has further submitted that though two of the injured eye witnesses claimed to have witnessed the incident, they have either superficial or no injury at all, which is visible.
[6.2] He has further submitted that though independent witness, like Medical Officer (PW-2) - Dr. Natvarbhai Nanjibhai deposed to before the Court that injured when brought to the hospital was semiconscious and alive and therefore, he administered glucose saline and thereafter referred to Higher Center like Vadodara, for the purpose of treatment, however, according to submission of learned counsel for the respondents - accused, the case papers produced on record at Exhibit -44 do not reflect his act of administering glucose saline to the injured. He has further submitted that Exhibit -44 also Page 18 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined inspires no confidence as there are overwriting at some important place, does not bear even signature of the witness who deposes before the Court. If that overwritten certificate Exhibit -44 is seen, the injured was advised reference to SSG Hospital, which is written after scoring off to Dabhoi. He has further submitted that despite he examined the patient first and administered glucose saline, nowhere he noted down the external injuries found on the dead body at the time when he examined him. He has further submitted that the postmortem note, is claimed to be issued on 12.12.1992, while postmortem is performed on 09.12.1992. It is prepared based on rough note according to the deposition of the doctor, which is not preserved.
[6.3] Mr. Patel, learned counsel further submitted that all the witnesses who have been examined by the prosecution did not know whether injured Kiritbhai Shah was taken to the hospital alive for treatment at Vadodara and was brought back within 15 minutes in a dead condition. He has further submitted that though witness claimed that Police took the injured to the hospital, nothing is mentioned in the certificate Exhibit -44 that who brought injured to the hospital as also who gave history about various injuries on the body parts and head on 09.12.1992 at 11:45 a.m. Page 19 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined [6.4] Mr. Patel, learned counsel for the respondents - accused further submitted that (PW-9) - Parshottambhai Dhanabhai, Principal of School, where deceased was serving as a Clerk, appears to be got- up witness as brought out on record by the prosecution itself in the examination-in-chief. His statement was recorded on 16.12.1992. In his statement, as deposed to before the Court, one mob wherein Latif Suleman Memon -A5, Iqbal (Bhagat) Rasul Khokhar-A12, Anwar Akbar Khokhar-A4 and 10 others came to his office and asked him why school is not functioning. They also inquired whether school function got over at the instance of any political party, which he denied. Thereafter, the mob containing aforesaid referred accused, left the school. While leaving the school, near staircase, Anwar Akbar Khokhar-A4, Iqbal (Bhagat) Rasul Khokhar-A12 were talking to each other that deceased - Kiritbhai Shah is going against us and he is to be taught a lesson. If the version of the said witness is to be believed that he overheard two of the accused so stated in respect of Clerk of his School, who is also Secretary of one of the political party in a village, he did not bother to inform either to the Police on that very day when he came to know that Kiritbhai is to be taught a lession or to any of the person in his office or in the office of trustee, despite he is having telephone in his own chamber. As brought out in the cross Page 20 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined examination of the witness, there was a police bandobast near his school, he could have informed the police immediately if at all what he deposed to before the Court is believed to be true. [6.5] As admitted by the witness in his cross examination that he did not tell the aforesaid fact to anyone from 09.12.1992 to 16.12.1992, if this witness is to be believed, as revealed from the cross examination of this witness, while he was going towards his home at about 12:50 p.m. from nearby hospital or the Kumarshala, he did not see any police man there. He has further submitted that the learned Judge, while recording an order of acquittal, has given ample reasons, supported by evidence and the documents, if not clean acquittal, raising grave doubt about the manner in which incident occurred and witness deposed to before the Court is believed by the learned Judge, which requires no interference. He has further submitted that from the overall appreciation of evidence, even if, it is re-appreciated, there is no other view possible except the view taken by the learned Judge, and therefore, under the principle of law enunciated by the Supreme Court even if two views are possible, Appellate Court cannot substitute its own view in place of view taken by the learned Trial Court, therefore this Court may not interfere with the order of acquittal recorded by the Trial Judge, and therefore, he Page 21 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined has submitted that the appeal be dismissed.
[7.0] Heard the learned Additional Public Prosecutor for the applicant - State as also the learned counsel appearing for the respondents - accused. Perused the deposition of all the witnesses and documents produced and proved on record in detail as also we have been taken through the reasons assigned by the learned Judge for recording an order of acquittal in detail by both the sides. [8.0] Before embarking upon the detail examination and re- appreciation of the evidence, the principles of law interfering with judgment and order of acquittal, as enunciated by the Supreme Court, is required to be kept in mind. Unless the judgment of the Trial Court is perverse, Appellate Court would not be justified in substituting its own view and reverse the judgment of acquittal. Not only that, if at all on re-appreciation of evidence, even two views of the matter is possible, the view in favour of the accused is to be accepted and in that case, no order of acquittal can be interfered with by the Appellate Court. The Appellate Court would not be justified in setting aside the Trial Court's judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the Trial Court is either perverse or wholly unsustainable in law.
Page 22 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined [9.0] It would be profitable to refer a decision in the case of
Arulvelu and Anr. Versus State represented by the Public Prosecutor and Anr. reported in (2009) 10 SCC 206, relied on by the learned counsel for the respondents - accused in respect of guidelines for the Appellate Court in dealing with the cases, in which, Trial Courts have acquitted the accused, more particularly para-34 therein, which is as under:
"34. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty.
The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused."
Page 23 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined [10.0] Now let us examine the evidence led before the Court
starting with the deposition of (PW-1) - Gopalbhai Kantilal Shah who claims in his First Information Report about mob of 100 to 150 persons, armed with different weapons, of Muslim community, wherein he could identify 5 accused by name mentioned in the FIR being Nizamuddin Chhotumiya Kaji - A1, Salim @ Sallu Malang Kaji - A2, Kadar Sattar Memon -A3, Anwar @ Bago -A4, and Latif Suleman Memon -A5. As such, in his First Information Report, he referred to mob of 100 to 150 persons caught hold of deceased - Kiritbhai and out of the persons named, Anwar @ Bago i.e. Anwar Akbar Khokhar - A4 as also Salim @ Sallu Malang Kaji - A2 said to have assaulted deceased with knife. Though what is stated in the First Information Report is deposed to before the Court, he could identify by name only 5 accused while giving it. Whereas in his examination-in-chief, in para- 2 thereof, he claimed that all accused are of Village - Sinor and he knows all of them, 12 in number, as they are of his own village. However, he named Anwar Akbar Khokhar -A4, Salim @ Sallu Malang Kaji -A2, Kadar Sattar Memon -A3, in his examination-in-chief with their respective weapons, assaulted deceased, he identified named accused before the Court. Surprisingly, though this witness was not knowing all the accused 12 in number as chargesheeted, except named by him, there is no test identification parade conducted by the Page 24 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined Investigating Officer nor any attempt to identify other accused not named by him in his deposition.
[11.0] Though (PW-1) - Gopalbhai Shah claims in his deposition that he attempted to save Kiritbhai from the assault but in cross examination on behalf of the accused he had to admit that it is so stated before the Court for the first time. He has also claimed in his deposition before the Court that when he attempted to save Kiritbhai from the assault, he was also assaulted with kick and fist blows. However, such assertion by the witness in his examination-in-chief cannot be believed for the simple reason that in a communal frenzy when the accused of one community assaults the person of other community, heavily armed with different weapons, they will not assault the rescuer leaving their weapons aside with kick and first blows. Though the said witness deposed to before the Court about the assault on the deceased, he claims to have escaped immediately after the assault but on Police having arrived at the spot immediately and fired two shots from the rifle, he returned back to the place of occurrence. He is candid enough in his cross examination that there is hardly one or two minutes in between escape and return back to the place. However, he did not notice the Police when he escaped. He did not remember which Police had fired shots. He has also, though reduced the assailants to 10 to 12 in his deposition, despite mob of Page 25 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined 100 to 150 Muslim persons is asserted in FIR, in his cross examination stated that how many police men were there "he did not know". Even he did not know after shots were fired by the Police whether members of public assembled there or not. Except and except assault on the deceased, that too, by named accused 5 in number in the deposition, for rest of the surrounding facts and the surrounding events which took place immediately after incident, just prior to the incident and at the time of incident, he pleaded to each question that "he does not know".
[12.0] Despite the deceased was belonging to the political party, to which not only the first informant - Gopalbhai (PW-1) but other eye witnesses who were there at the spot are also belonging to that party, they did not care to take deceased to the hospital. As stated by him in his cross examination, deceased was taken to the hospital by the Police. At the same time, (PW-8) - Vipalsinh, Police Constable, who fired two shots to disperse mob asserted in his deposition that Kiritbhai was taken to hospital by the public. He had to admit in his cross examination that no police personnel but public assembled took Kiritbhai to the Hospital. Though he claims to have gone to the hospital on that day and had seen the dead body of Kiritbhai at about 11:30 -11:45 a.m., he did not inform either the Doctor or the Police present in the hospital about the occurrence Page 26 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined having witnessed by him. He claims to have given his FIR in the Police Station. If his cross examination is seen, after he visited the hospital he straight went to the Police Station and gave complaint about the murder of Kiritbhai. That means after Kiritbhai died, the FIR for the murder of Kiritbhai has been given by the witness to the Police Station on that very day. His further assertion that he met some Police man there and he gave his complaint, whose name he does not know. As per his claim whatever he had stated, the Police man recorded it in writing. He further claims that his signature was also obtained in some register but he was not provided with copy thereof. However, in the very next breath in his cross examination, he states that from Police Station he went straight to the Hospital for the purpose of treatment and he was treated there. He has also stated that Doctor interacted with him about the place and time of injury and his treatment was over by 12:30 p.m. He has denied the suggestion by the learned advocate for the accused that on that day at Sinor, he did not take any treatment. Meaning thereby, he confirms that he took treatment in the hospital on the date of incident i.e. 09.12.1992, which is contrary to the deposition of (PW-2) - Dr. Natvarbhai Nanjibhai who states before the Court that he examined (PW-1) - Gopalbhai on 10.12.1992 at 12:30 p.m. Police yadi (Exhibit -48), prosecution did not produce as it reflected witnesses received injuries in communal Page 27 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined incident with kick and fist blows as also stick respectively, as mentioned in it. However, surprisingly, injury certificates Exhibit -46 and Exhibit -47 of (PW-1) - Gopalbhai and (PW-7) - Hareshbhai does not bear date and time of examination of injured. Not only that it reflects that (PW-1) - Gopalbhai was beaten with lathi and injury was simple in nature which cuts at the root as (PW-1) - Gopalbhai has never said that he was beaten with lathi but he was specific that he was given kick and fist blows by armed accused. However, in the cross examination, he has candidly stated that who and with what weapon he was assaulted is not known to him, whereas in the examination-in-chief, he stated that he was given kick and fist blows by the accused.
[13.0] If deposition of this witness is seen, keeping in mind Police yadi (Exhibit - 48) addressed to Medical Officer, Sinor and medicolegal certificate issued by Medical Officer (Exhibit -46), coupled with the deposition of Doctor himself who treated him, it reveals that on 10.12.1992 a yadi was written by PSI, Sinor addressed to Medical Officer to give treatment and certificate thereof, who was given kick and fist blows. The Doctor in his deposition claimed to have examined PW-1 on 10.12.1992 at about 12:30 p.m., who had come to him with police yadi. However, in the cross examination of the Doctor, who Page 28 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined treated (PW-1) - Gopalbhai Kantilal Shah, in his very first question had to say in his certificate it is reflected that witness - Gopalbhai was examined on 09.12.1992, but he was actually examined on 10.12.1992. As per the deposition of the doctor, on 09.12.1992, he was injured by lathi at about 12:30 p.m. However, injury certificate Exhibit -46 does not reflect the date on which patient was examined, though it is claimed to have been issued on 26.02.1993 as date appended on right side top part of it. The claim made by (PW-1) - Gopalbhai having been assaulted by kick and first blows, appears to be incorrect when he informed to the doctor on 09.12.1992 at about 12:30 p.m. that he received injury with lathi. Though injured witness - Gopalbhai claims to have taken treatment on 09.12.1992, the Police yadi as also doctor who examined him, though date of examination is not mentioned in the certificate itself, claims that he was examined on 10.12.1992 for a complaint of beaten by lathi on 09.12.1992. As such, year and day mentioned in the certificate stated being 09.12.1993 to be written by mistake despite patient was examined on 09.12.1992, as claimed by the doctor who treated (PW-1) - Gopalbhai. If that certificate Exhibit -46 is seen, it is not in a prescribed format of the Government Hospital for Medico Legal case. The date on which patient was examined is also not stated in it. However, conveniently Doctor deposed to before the Court that he was examined on Page 29 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined 10.12.1992 as police yadi Exhibit -48 reflects the date to be 10.12.1992. Because of such anomaly, police yadi Exhibit -48 was not being produced by the prosecution, it has been produced and exhibited as said document referred during the cross examination of the doctor by the defence. What is narrated in the yadi in respect of the injury received by (PW-1) - Gopalbhai, he was given kick and fist blows and witness - (PW-1) in his examination-in-chief was also categoric about the same having received kick and first blows while attempting to save Kiritbhai. However, in the history given to the doctor, as deposed to by (PW-2) - Dr. Natwarbhai Nanjibhai, he was assaulted by lathi and the said history was given by (PW-1) - Gopalbhai himself, as stated by the doctor in his deposition. Therefore, to come out of such discrepancy during the course of cross examination, he has deposed to before the Court that who assaulted him with what weapon he did not know.
[14.0] For discarding the deposition of (PW-1) - Gopalbhai, learned Judge has devoted so many paragraphs with reasons why PW- 1 - Gopalbhai is not believable starting from para-30, while concluding in para -40, it is stated at the end of it that the complainant is not the witness of truth. The learned Judge has assigned good reasons appreciating the evidence of the witness himself, doctor who Page 30 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined examined him as also the investigating officer who recorded his complaint who claims that it is recorded in the hospital as also who issued the yadi to the Doctor dated 10.12.1992, a day after the alleged incident.
[15.0] As such, the investigating officer (PW-17) - K.J.Soni who claims to have recorded the complaint of (PW-1) - Gopalbhai in the hospital contrary to the Gopalbhai's own version about complaint being given in the Police Station does not bear the time starting recording of complaint and ending as also place where it is recorded. Under the normal circumstance, if any complaint / FIR is being recorded out of the Police station, invariably it bears date, time of starting the complaint and ending time along with the place where it is recorded. In this case, complaint Exhibit -42 misses all that requisites of a complaint recorded outside of the Police Station. Not only that, such complaint recorded outside the Police Station has to be sent for the purpose of registration with forwarding letter by the person who recorded it to register in the book kept at the Police Station and with an endorsement of a copy being given to the first informant. Complaint Exhibit -42 does not bear endorsement that copy of it is given to the complainant. As such, (PW-1) - Gopalbhai- first informant has asserted in his deposition that information supplied Page 31 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined by him was recorded by some police man in the police station and no copy of it was ever furnished to him. Be that as it may, for (PW-1) - Gopalbhai, learned Judge has recorded that though he has deposed to with regard to incident in his examination-in-chief while he being cross examined to certain questions put to the witness about the surroundings at the time of incident, presence of other police men in or after the incident, which may have strengthen his assertion having witnessed the incident or proves him wrong, he has answered that "he does not know" for more than 40 times. The demeanor of the witness was recorded in the judgment concluding that he has come to the Court only to give witness evidence regarding implication or involvement of the accused and for rest of the things, he has to say that "he does not know".
[16.0] After critically examining his deposition and the demeanor, the learned Judge, in para -36, concluded that he was not at the place of occurrence, as claimed by him. For that, in para -37 of the impugned judgment and order, learned Judge has enumerated 25 circumstances, the answers to the questions put to him during the course of cross examination, he replied that "he does not know". He would not like to repeat those circumstances but it goes to the root of the case. Referring few of them, if deceased - Kiritbhai was Secretary Page 32 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined of BJP Unit of a Political Party wherein witness himself is a member and active party worker despite he knows that he serving in school which runs in shift but in which shift deceased is working, he pleaded ignorance answering that "he does not know". Though witness (PW-1)
- Gopalbhai and all other party workers, nearly 20 to 25 in number, passed through bus stand, he has again pleaded ignorance that he does not know whether there was a police Bandobast near bus stand on that day or not which was Bharat Bandh call given by a particular party, pursuant to which, they assembled and going to schools which were running on that day, to observe bandh. Though they passed through market near Masjid whether there was any police bandobast or not is also answered by the witness that "he does not know". Despite incident occurred near the residential locality, though adjacent to the market, (PW-1) - Gopalbhai does not know whether person residing near the place of occurrence had come out from their house or not even at the time of incident when police reached the place from which direction they reached witness has stated that "he does not know". Not only that, from which direction the police man who had opened fire, also claimed to be not known to the witness. On top of everything, despite they were in 20 to 25 in number having gone to close the school, mob of 10 to 12 persons, maybe with weapons, when assaulted Kiritbhai, no one has raised hue and cry so Page 33 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined as to bring to the notice of police on Bandobast duty nearby to reach the spot instantly, nor any attempt is made by anyone of them to save Kiritbhai from the assault. The claim that he received injury by lathi as coming out from injury certificate Exhibit -46, there appears no corresponding injury which can be caused by lathi. Therefore, (PW-
1) - Gopalbhai had to state in examination-in-chief that all persons, though armed with different weapons, had given him kick and fist blows and the corresponding injury appears to be only one, that too, a contusion, as reflected from Exhibit -46, on backside of abdomen eliminating the theory of assault with lathi or even kick and fist blows by any of the accused. Such contusion, if at all, is to be believed, may be possible by anything else even by fall or because of a gentle push with hard and blunt object. The claim of (PW-1) - Gopalbhai - first informant having been assaulted with kick and fist blows by heavily armed accused carrying different weapons is not digestible to any man of a normal prudence.
[17.0] So far as deposition of other eye witnesses viz. Maheshbhai, Bharat Raj, Balubhai Tulsibhai, Hareshkumar and Virpalsinh are concerned, learned Judge has dealt with in detail their deposition and appreciated the same on the basis of other material brought on record by assigning good reasons recorded that the Page 34 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined testimony of each witness is not reliable. Witness - Virpalsinh (PW-8) Exhibit -55 who claims to have shot two round in air to disperse the mob is also not believable as prosecution attempted to bring tainted evidence raising strong suspicion regarding truthfulness of the case for the reasons assigned in para -63 of the decision. According to his deposition, deceased - Kiritbhai was lying there in an injured condition for about half and hour at the place. Though claimed in his deposition that he had seen Anwar Akbar Khokhar and one other person at the place of incident, however he identified Anwar as an accused in the Court but another person he was not able to either name or even identify. Coincidentally, while identifying Anwar, he also identified one Salim @ Sallu Malang Kaji -A2 who was also present in the Court. However, surprisingly he has not deposed to before the Court or even identified both the accused assigning them any weapon in their hands, either bloodstain or not, apart from assembly of any other accused present in the mob. If his deposition is seen when he reached the place, Kiritbhai Shah was lying in an injured condition. After assaulting Kiritbhai, if the version of this witness is to be believed, accused Anwar and Salim @ Sallu Malang Kaji were there either they must be armed with any weapon or even their clothes might be stained with blood as they assaulted to the Kiritbhai according to the case of the prosecution but nothing is deposed to by this very witness Page 35 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined who showed Anwarbhai at the place without assigning him any weapon or even bloodstain cloth.
[18.0] Analyzing the evidence of (PW-1) - Gopalbhai, one thing is certain that according to him, he has given information with regard to the incident in the police station which was noted down by the police present whose name he did not know. However, he is candid that it was noted down by the police present there that with a no copy provided to him. On the other, if the deposition of (PW-17) - K.J.Soni, Investigating Officer, who claims to have recorded complaint of Gopalbhai is to be believed, he recorded it in the hospital which is produced at Exhibit -42 and not at the Police Station. If the case pleaded by the prosecution is to be believed, it has not come out with the FIR given by (PW-1) - Gopalbhai in the Police Station for the death of Kiritbhai which was noted down by the police man present in the police station which is being suppressed. Even presuming that it was not an FIR, the prosecution should have come out with any material which is recorded in writing by the police man present in the police station to explain that either it is not an FIR or a cryptic message given by an eye witness which was not capable of being registered as FIR. Having failed to bring it on record, nor producing the FIR, though claimed by the first information (PW-1) - Gopalbhai having been given Page 36 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined in the Police Station, very serious doubt about genuineness of the complaint Exhibit -42 is raised about incident as deposed to by the witnesses, more particularly, when FIR claimed to be registered on the very date of incident has reached to the Magistrate after about 8 days i.e. 17.12.1992, leaving too much scope for police to probable interference in it, even if not real.
[19.0] Not only that, prosecution has not even tried or attempted to explain why and under which circumstance it reached 8 days late before the Magistrate. The Court is situated within a stone throwing distance from the Police Station as village is too small where the incident occurred. An attempt was made by the prosecution to explain that since there was curfew in the town and the Magistrate was at Karjan, FIR could not reach in time but the said explanation is not supported by any evidence even presuming that there was any curfew was imposed in Sinor town. However, since Police is arresting the accused during that curfew time and producing before the Magistrate for the purpose of even police remand, it cannot be believed that FIR cannot reach to the Magistrate, that too, promptly if not forthwith.
[20.0] According to the case of the prosecution, (PW-8) - Virpalsinh Thakore, who was on Bandobast duty along with Head Page 37 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined Constable - Kantilal at about 10:45 a.m. in the morning on the date of incident, heard commotion near Government Hospital and therefore, they rushed there. According to his deposition, when they reached there, they found deceased - Kiritbhai Shah lying in injured condition. He has further deposed to that he saw Anwarbhai Akbarbhai Khokhar - A4 and one another person whose name he did not remember at that time but was able to identify in the Court. Thereafter, witness identified Anwarbhai Akbarbhai Khokhar -A4 and other person, whom he claims to identify was not able to do the same, whereas he said that at the place of offence Salim @ Sallu -A2 was also there and he is present in the Court. According to his claim, he opened fire in air to dispel the mob and mob dispersed. Thereafter, he went back to his security point for duty. According to this witness, person from public gathered there took injured to the hospital. No police officer can open fire without an order of either his superior or without order of Executive Magistrate present. If his version is to be believed, how many shots were fired in air is not deposed to by him in examination- in-chief.
[21.0] As per his deposition, on the date of incident there was tight police bandobast in Sinor town. Even at the bus stop there were police men deployed. Even near Gujarati Kumar Shala where the Page 38 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined incident occurred is situated within tower point and bus stand point. As per the cross examination of this witness, he did not see any person running from opposite direction, though claimed by other witnesses in their deposition, who claims to be eye witnesses. If version of the eye witness is to be believed, other eye witnesses claimed that Kiritbhai was taken to the hospital by Police. Whereas witness - Virpalsinh at whose prompt action firing two gun shots, mob dispersed, no police man took injured Kiritbhai to the hospital but people assembled there took him to the hospital. Apart from the fact that, without order of the Superior Officer or the Executive Magistrate, no such shots can be fired even in air. As per the evidence led before the Court by the prosecution, he was never ordered by Superior Officer who was with him to fire shots in air. It is coming out from his evidence that no person seen by him armed with any weapon. [22.0] As coming out from the record, witness - Parshottam Galabhai (PW-9) examined at Exhibit -57 who was Principal of Sarvajanik High School where deceased Kiritbhai was working. As per the evidence brought on record, his statement came to be recorded on 16.12.1992 i.e. 7 days after the alleged incident. Though this witness has reacted in a dubious manner to the incident occured, he has come out with a case that on the day of incident, a group of Page 39 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined muslim came to his school and two of the accused talking about teaching lesson to Kiritbhai who is not only serving in his own school but Secretary of Political party in the small village - Sinor, he did not inform anyone even including Kiritbhai despite he is having telephone facility in his own chamber. Before the Court he claims that he overheard conversion in between two of the accused that Kiritbhai is coming in their way and therefore, has to be taught a lesson. [23.0] However, as coming out on record on that very day i.e. 16.12.1992, a report to invoke provisions of Terrorists and Disruptive Activities Act came to be made to the concerned Court, to be recorded in the FIR. Thus, at one point of time, prosecution attempted to create a story of pre planned murder by hatching conspiracy to eliminate the deceased - Kirtibhai Shah through the statement of this witness, but after about 7 days of the alleged incident, though said talk, which was overheard by the witness, occurred on 09.12.1992, the said story of the witness deposed to before the Court appears to be incorrect.
[24.0] Based on the statement of (PW-9) - Parshottambhai Galabhai dated 16.12.1992, a report to add provisions of Terrorists and Disruptive Activities Act (TADA) was made to the jurisdictional Court, which was ultimately dropped. On analyzing his overall Page 40 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined deposition and improbability in his deposition he is branded as got-up witness by the learned Judge and rightly so.
[25.0] So far as rest of the eye witnesses are concerned, they have also given the verbatim story about assault and incident in their examination-in-chief. Even witnesses were confronted with their statement recorded during the investigation and such contradictions were brought on record. Though it may not be that vital, witnesses have attempted to improve upon their version to show that they were alive to other surroundings at the time of incident which was never stated before the Police, like the deposition of (PW-1) - Gopalbhai, there are several answers in the cross examination replied as "he does not know". After stating in detail all those circumstances, learned Judge in para -64, concluded that (PW-3) witness - Maheshkumar Mehta who claims to be an eye witness cannot be believed because he has not given the natural evidence. Though witness - Maheshkumar has not deposed to so many things, what is deposed to also cannot be believed as he has not deposed to with regard to police personnel reaching the place of occurrence and firing shots in air to disperse the mob. His deposition to the effect that despite they show mob of 10 to 12 persons heavily armed attacking Kiritbhai, there was no hue and cry raised by anyone and nobody had Page 41 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined tried to run here or there. The said deposition of the witness cannot be believed for the simple reason that either brave man may try to rescue their colleague or some persons may shout for help and some may run away from the place. However, neither of the courses adopted by these set of eye witnesses as claimed by (PW-3) - Maheshkumar Mehta - eye witness. Despite this witness staying nearby the house of the deceased - Kiritbhai and such a ghastly incident occurred assaulting Kiritbhai, as per his evidence, he did not inform anything about injury caused to Kiritbhai to anybody in the house of the Kirtibhai. Though he was called in the Police Station in the evening, despite that after even reaching home he did not tell anything about Kiritbhai to his family. As per the evidence brought on record on that day, some shops belonging to Muslims were burnt and looted but no witnesses have so stated in their deposition. [26.0] We do not want to lengthen our judgment by recording or repeating what learned Judge has said in respect of eye witnesses, in so many paragraphs that they are not believable at all as their conduct at the time of incident and after the incident is not of a normal prudent man. Though all the witnesses claim to be party workers whose Secretary is being assaulted, they have behaved in a very dubious manner so as to conclude that their reaction or conduct is not of a normal man. As recorded by the learned Judge that their Page 42 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined deposition and demeanor before the Court gives an impression that neither of them has witnessed the incident at all. For saying so, learned Judge has assigned so many reasons, with the view we also subscribe.
[27.0] The investigation into the case conducted by (PW-17) - K.J.Soni, is also not free from doubt. First of all, his claim about recording of complaint in the hospital is belied by the complainant himself that he gave complaint in the Police Station. Absence of any yadi forwarded along with the complaint recorded in the hospital to addressing PSO to register FIR in the form prescribed under Section 154 of "the Code", coupled with the fact that complaint does not bear the place where it is recorded as also time of recording it, not only that, his deposition clearly suggests that he is not telling the truth before the Court. According to him, he was on a patrolling duty at Sadhli and when informed about the incident, he never went to the Sinor Police Station, he denied the suggestion that after taking note of FIR being filed in the Police Station in respect of the incident, he went to the hospital. Whereas, his attention was drawn to the statement recorded in an inquest panchnama which reflects that he went to Sinor Police Station and as offence was registered thereat he took note of it and went to the hospital where dead body was lying. If that Page 43 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined part of the evidence is to be looked into, his claim of having registered the complaint in the hospital falls to the ground. [28.0] Not only that, in his cross examination he had to admit that in that very police station he was serving since 4 months prior to the date of incident. However, he has stated factum of communal violence wherein one mosque was ransacked on 06.12.1992, is incorrect. He has also stated it to be incorrect that for the said incident there was a case filed against one Ramakant Ramanlal Shah. The said Ramakant Ramanlal Shah examined by the prosecution as PW-11 was also a panch witness to the inquest panchnama. If his cross examination is seen, said Ramakant Ramanlal Shah had admitted that on 06.12.1992 when a mosque was ransacked in his village, for that incident there was a case filed against him, however he has explained that he has been acquitted of the charge. This very fact goes to the very credibility of the Police Officer who recorded the complaint as also investigated the case.
[29.0] Not only that, he had to admit in his cross examination that while he carried out inquest panchnama, there was no shirt on the body of the deceased - Kiritbhai. However, during the course of evidence led before the Court, (PW-12) - Upendra Babubhai Soni came to be examined who is a panch witness to the recovery of Page 44 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined clothes of the deceased which includes white colored bloodstained with cut marks shirt. However, prosecution has miserably failed to show on record how that white colored bloodstained containing cut marks shirt which was not there when inquest panchnama was carried out on the body as also when postmortem was performed which was also not there, how it could be recovered. Witness (PW-17) - K.J.Soni (PSI), has attempted to say that said panchnama is carried out by PSO. Surprisingly, neither the PSO nor any person who had produced that clothes have been examined by the prosecution and still it is a mystery as the shirt was also sent to the FSL for the purpose of serological report, which was never found on the body when inquest and postmortem was performed.
[30.0] Another independent witness like (PW-2) - Dr. Natvarbhai Nanjibhai also appears to be not telling the truth before the Court. In his deposition, he has stated that injured Kiritbhai was brought to his PHC at about 12:30 p.m. on 09.12.1992. However, in the next breath he improved that he was brought at 11:45 a.m. without police yadi and he was on a last breath and therefore, he administered glucose saline and referred him to Vadodara. He has further stated that injured was taken out of PHC and thereafter his dead body was sent to Sinor, PHC. However, examination note Exhibit -44 produced by the Page 45 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined Doctor reflects that not only there are certain interpolations on material aspect but it misses even the signature of the Doctor himself. The said certificate does not record that who brought the patient and from whom history was taken. Not only that, the story of he was breathing his last and glucose saline was administered to the patient, is also missing from that certificate itself. Under the circumstances, the claim of the Doctor reflected from Exhibit -44 that patient - Kiritbhai Shah was brought to him breathing his last and he referred him to Vadodara, appears to be incorrect. The advise, as referred to Dabhoi, is scored off and instead SSG is reflected from Exhibit -44. Blood pressure also recorded in that document is not only overwritten but certain part of that certificate is scored off. On top of everything, no any injuries with their measurement is noted down in the said certificate and the general statement is recorded in that certificate came with "H/O various injuries on the body part and on head, on 09.12.1992, 11:45 to PHC Sinor, without police yadi, patient semiconscious". Since the said certificate is unsigned by that very witness who claims to have recorded, the same is open for correction at any time even after the date which is mentioned in it. Not only that, the very Doctor when he has performed the postmortem, he records in column No.7 that shirt - "undressed" from the body without any further noting down in it whether he undressed it or he was brought Page 46 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined undressed. If at all he undressed the same, he must record the same in postmortem note and to whom he entrusted the clothes of the deceased. Not only that, the postmortem report is silent about who identified the dead body as also who brought the dead body. In column No.2, by whom the corpse was brought, a long bracket is shown to be by PSI, Sinor which is incorrect even as per deposition of PSI, Sinor as he did not bring the dead body to the Doctor for the purpose of postmortem. The name of the dead body on which postmortem was performed is written as per Police inquest as reflected from the postmortem note.
[31.0] Surprisingly, though postmortem on the dead body was performed on 09.12.1992, postmortem note came to be prepared on 12.12.1992. However, it is attempted to be explained that while performing postmortem, Doctor noted down injuries and measurement in a rough note which was never preserved by him. Doctor had to admit in his cross examination that postmortem note was prepared on 12.12.1992 and the details therein was never filled in at the time of performing postmortem. However, the details, as mentioned in the postmortem report, were noted down in the rough note which is not with him. In absence of rough note preserved and produced before the Court, his claim with regard to what is seen by Page 47 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined him and noted down in a rough note cannot be believed, more particularly, when there are also certain doubts created in his injury certificate issued in respect of injured eye witnesses for the reasons stated in earlier paragraphs, his claim with regard to information filled in postmortem note on 12.12.1992, in absence of rough note being shown or preserved, creates doubt as he did not even record the injuries in the certificate Exhibit -44, when he first examined the deceased. Not only that, Exhibit -44 certificate is not even signed by him. From the evidence led before the Court, by examining eye witnesses as also the doctor, there appears a great doubt about Kiritbhai Shah being brought to the hospital alive or breathing last or even in a dead condition.
[32.0] If at all the say of the doctor is to be believed, as Exhibit - 44, certificate is prepared on the very same day, he could have prepared the postmortem note on that very day noting down the injuries as found and noted in it. If at the time of carrying out the postmortem, any rough notes are prepared noting down any external or internal injuries, nothing prevented him from noting down external injuries found at the time of examination of the patient first, which is not reflected in Exhibit -44 certificate claimed to have been issued on that very day i.e. 09.12.1992.
Page 48 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined [33.0] Not only that, the very doctor who issued certificates
Exhibit -46 and 47 in respect of two injured eye witnesses, does not bear the date of examining those two witnesses by him. On the contrary, what appears from the certificate itself, though recorded as an history given, showing the date and time, maybe the time of examining them. However, (PW/1) - Gopalbhai Kantilal Shah in an examination-in-chief, claims to have been beaten by kick and fist blows and in cross- examination he had to admit that who and where he was assaulted he does not know. However, he denies the suggestion that he did not take any treatment at Sinor Hospital on that day. Meaning thereby, witness asserts to have taken treatment on 09.12.1992 and by 12:30 his treatment was over. Whereas doctor in his deposition claims to have examined the witness on the next day i.e. 10.12.1992. Not only that, nowhere in the certificate Exhibit -44, it is stated that who brought the patient to the hospital, since patient was being examined without Police yadi. Not only that, as mentioned in it "came with H.O. various injuries on the body part and head on 09.12.1992 at 11:45" but how and in what manner injuries were caused is not mentioned in the said history. Even person who gave history is also not reflected in the said certificate. Even the claim of doctor that he administered the glucose saline, is also not supported by any contemporaneous record including Exhibit -44.
Page 49 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined [34.0] Over and above that, if the deposition of (PW-2) - Dr.
Natvarbhai Nanjibhai is to be believed, so far as clothes on the dead body received, it was wearing white shirt, banian, black color pant of blood stains. However, if column No.7 of the postmortem report is seen for the clothes, more particularly shirt, it is written "undressed" from the body. If at all, it is undressed by the doctor himself, he would have said in his deposition that he undressed that shirt from the dead body. However, inquest panchnama reflects that dead body did not have any shirt over it. If while performing inquest panchnama, dead body did not have shirt on it, how come it has been found wearing it while it was sent for the purpose of postmortem as deposed to by the doctor in para-2 of his deposition. Not only that, there is no evidence coming forth from any of the witnesses that how and in what manner that shirt undressed from the dead body as claimed by the doctor reached and through whom for the purpose of examination in the FSL and before that who has seized it and from whom. If evidence in that respect is to be seen, witness (PW-12) - Upendra Babubhai Soni claims that on 09.12.1992 he was called as panch witness at about 11:30 a.m. to 12:00 p.m. and Police shown him one pant, white shirt and banian. Pant was having cut marks on the right side and banian was having blood marks. He has also stated that shirt was also having Page 50 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined blood marks as also cut marks. However, which Police had shown to him these clothes, is not deposed to by him. Even prosecution has also not come out by examining that witness who was in custody of those clothes shown to the panch witness and how Mr. K.J.Soni (PW-
17) - Investigating Officer submitted that the said panchnama is carried out by the Police Station Officer and at the same time, he said that dead body was sent to the hospital for the purpose of postmortem through Amanullahkhan. Neither Amanullahkhan nor PSO who executed that panchnama is examined before the Court. So, it remains a mystery that a white shirt worn by the deceased at the time of the incident, as deposed to by the eye witnesses, was not there when inquest panchnama was carried out on the dead body. Suddenly, dead body reached wearing that white shirt as deposed to by the doctor and he undressed the same. How it was undressed, either by cutting or manually, is not deposed to by the doctor. Not only that whether it was received in undress by shirt or not is also not stated in PM note or even in his deposition. However, as mystery could be, it was received in the FSL having bloodstain over it. There is no evidence led by the prosecution that who removed shirt from the body and then entrusted to whom, how it reached to any Police so as to execute a panchnama as deposed to by (PW-12) - Upendra Babubhai Soni.
Page 51 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined [35.0] The argument pressed into service by the learned APP
that weapons discovered / recovered as also the clothes of the deceased and clothes of one of the accused were seized, all were stained with human blood, that too, of "A" blood group. Therefore, it corroborates the evidence led by the prosecution and that is why, learned Judge could not have acquitted all the accused. However, further statements recorded of each accused under Section 313 of "the Code", if examined, no such circumstance having bloodstains on the weapons discovered / recovered or the clothes of the accused were ever put to the accused for the purpose of explanation which is an important exercise to be undertaken giving opportunity to the accused to explain the evidence appearing against him / them. Learned APP is unable to show if such question is put to any of the accused for the purpose of explanation under Section 313 of "the Code". Therefore, it is in noway the evidence which could be used for the purpose of corroboration, that too, evidence appearing against the accused. As such, on detail examination and appreciation of evidence by the learned Judge, assigning good reasons in detail, when deposition of eye witnesses held to be not believable and their evidence is discarded, evidence of this nature as contained in Report of FSL, more particularly serological report becomes useless, more particularly, when if that evidence appearing against accused was Page 52 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined never put to them in a further statement under Section 313 of "the Code".
[36.0] Moreover, as per deposition of (PW-12) - Upendra Babubhai Soni, who is a panch witness to the seizure of clothes of the deceased, which is said to have been executed at about 11:30 a.m. to 12:00 p.m. as the witness was called at that time in the Police Station. As such, as per the prosecution, deceased died somewhere around 12:00 or 12:30 p.m. on 09.12.1992 and dead body reached the Doctor for the purpose of postmortem at 1:30 p.m. In any case clothes of the deceased could not have been recovered, that too, in the Police Station at about 11:30 a.m. to 12:00 p.m., as claimed by (PW-12) - Upendra Babubhai Soni, as (PW-17) - K.J.Soni, Investigating Officer, stated in his evidence that said panchnama came to be carried out by the Police Station Officer in the Police Station. If evidence of (PW-12) - Upendra Babubhai Soni is seen, Police had shown black colored pant, white colored shirt as also banian. However, there is no evidence that who produced the clothes said to have been worn by deceased and how that person came in possession of those clothes, is also not answered by the prosecution. If the deposition of said witness is further seen, in examination-in-chief itself he has stated that he was never called by the Police to become panch witness on any other occasion. He has candidly stated further in it that no clothes worn by Page 53 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined any of the accused are shown to him by Police. He was shown documents mark 40/10 which is a panchnama drawn by PSI, Sinor Police Station with regard to discovery of clothes worn at the time of incident by Salim @ Sallu Malang Kaji (A2), appears not only the name but signature of Upendra Babubhai Soni as panch No.2 in that panchnama Exhibit -74. Panchnama which is said to be drawn for recovery of muddamal clothes worn by the deceased, executed on 09.12.1992, whereas panchnama (Exhibit -74) where the present witness - (PW-12) Upendra Babubhai Soni is also a panch witness came to be executed on 12.12.1992. (PW-12) - Upendra Babubhai Soni does not say anything with regard to witnessing panchnama carried out on 12.12.1992 and on the contrary, he has candidly stated before the Court that he was never called as panch witness again as also he was never shown even clothes of any of the accused. [37.0] Similarly, deposition of (PW-16) - Mahendra Ambalal Patel who is panch witness to the panchnama claimed to be discovery of clothes worn by Salim @ Sallu Malang Kaji -A2 where the witness shown as panch No.1 and he never talks about any panchnama executed on 09.12.1992 in presence of PW-12 - another panch witness Upendra Soni, reflecting recovery of clothes of the deceased. Though (PW-12) - Upendra Babubhai Soni and (PW-16) - Mahendra Ambalal Patel are the panch witnesses to two of the panchnamas, Page 54 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined they never said before the Court that they were the panch witnesses to both panchnamas i.e. seizure of the clothes of the deceased as also the discovery of clothes of accused - Salim @ Sallu Malang Kaji (A2) being executed. (PW-12) - Upendra Babubhai Soni talks about only seizure of the clothes of the deceased which is again under a cloud as shirt which was not there over the dead body when inquest panchnama was carried out, it was not there when postmortem was performed, how that shirt and clothes worn by the deceased reached to the Police Station, that too, through whom is also a mystery to be answered by the prosecution and prosecution has not answered it at all. As admitted by (PW-16) - Mahendra Ambalal Patel in his cross examination that first informant - Gopalbhai and he himself stays in very same maholla. If deposition of first informant is seen, as admitted by him in cross examination in para-9, though he denied the suggestion that to help heirs of deceased - Kiritbhai, he engaged 3 or 4 advocates, however first informant - Gopalbhai had to admit in his cross examination that it is true that two advocates have been engaged on their behalf to help heirs of the deceased. (PW-16) - Mahendra Ambalal Patel, despite he took part in two panchnamas drawn on different dates, has never disclosed it to the Court that he has also witnessed the execution of another panchnama along with other witness (PW-12) - Upendra Babubhai Soni. Since the first Page 55 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined informant - Gopalbhai is interested in the prosecution, being worker of a political party whose Secretary is murdered, engaged two advocates to help the prosecution, stays in the same Maholla where PW-16 is staying, a possibility cannot be ruled out that both the panch witnesses i.e. (PW-12) - Upendra Soni as also (PW-16) - Mahendra Ambalal Patel are within the control of the first informant and very well advised by two advocates helping prosecution in cleverly suppressing two different panchnamas, drawn on different dates, though witnessed by PW-12 and PW-16, they have not stated it before the Court that they are panch witnesses to two different panchnamas.
However, as stated hereinabove, the bloodstain found on the washed off clothes of the accused - Salim @ Sallu Malang Kaji -A2, as reflected from the serological report cannot be used against him as the said circumstance appearing against him was never put to him in a statement recorded under Section 313 of "the Code" of the said accused.
[38.0] Considering overall circumstance, as aforesaid, the incident appears to have not occurred as claimed by the eye witnesses and the manner in which investigation is carried out as also deposition of Doctor who is expected to be independent has not acted like, that also creates doubt about the genuineness of investigation itself.
Page 56 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023 NEUTRAL CITATION R/CR.A/130/1995 JUDGMENT DATED: 19/08/2023 undefined [39.0] On overall analysis and re-appreciation of evidence
brought on record, there appears no room to take a different view than the view taken by the learned Judge in this appeal. [40.0] Having considered the entire evidence and re- appreciating the same, we are unable to disturb the findings of the learned Judge acquitting accused and therefore, this Appeal deserves to be dismissed and it is hereby dismissed. Records and Proceedings be transmitted back to the concerned Trial Court.
Sd/-
(UMESH A. TRIVEDI, J.) Sd/-
(M. K. THAKKER,J.) Lalji Desai Page 57 of 57 Downloaded on : Sun Sep 17 01:49:21 IST 2023