Supreme Court - Daily Orders
Hareshkumar@Bablo Dahyalal Shrimali vs The State Of Gujarat on 5 September, 2022
Author: Chief Justice
Bench: Chief Justice, S. Ravindra Bhat
1
IN THE SUPREME COURT OF INDIAN
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1442 OF 2022
(Arising out of SLP(Crl.) No.10457/2018)
HARESHKUMAR @ BABLO DAHYALAL SHRIMALI APPELLANT(S)
VERSUS
THE STATE OF GUJARAT RESPONDENT(S)
O R D E R
1. Leave granted.
2. This appeal challenges the judgment and order dated 28.01.2016 passed by the High Court of Gujarat of Gujarat at Ahmedabad n Criminal Appeal No. 329 of 2002.
3. The appellant (Original Accused No.2) and six others were tried in the Court of Additional Sessions Judge, Mehsana, Gujarat in Sessions Case No.38 of 2001 for having committed offences punishable under Sections 302, 147, 148, 149, 201 and 120B of the Indian Penal Code (for short, ‘the IPC’) and Section 135 of the Bombay Police Act.
4. The basic facts projected by the Signature Not Verified Digitally signed by DEEPAK SINGH prosecution were mentioned by the trial Court in Date: 2022.09.06 17:28:59 IST Reason: paragraph 2 of its order as under :
The facts of the case are such that, the 2 complainant Babubhai Ramabhai Makwana on 07/10/2000 has stated that, he resides at the Swastik society, Kalol and has three brothers. The youngest is Navin @ Ballu. Before around 6 months, Navin @Ballu meet an accident and therefore he was operated. Due to this reason he used to reside with brother Pravin at 11, Ankur society, since the last six months. On 07/10/2000, the complainant's brother Navin went to the common plot of the society wherein Garba were played. The complainant has further stated that, he along with his mother was sitting in the house of Pravin and were awake. At around 0:45 hours night time, Kishorbhai Chanabhai Parmar arrived to him and told that, outside the Ankur society at the open area, 5-6 persons were beating Navin with weapons and they fled on being challenged. One of the persons used two walking sticks to walk. These people left towards the market yard after causing injuries. The complainant stated that, therefore both of them went at that place by walking. At that time, the other persons of the society had gathered around.These people included Satishbhai Haribhai Chaudhary, Shankarbhai Somabhai Solanki, Ramabhai Virabhai Solanki, etc. The complainant further states that, this particular incident occurred outside the Ankur society, in the open space that is situated near to the gate of society. His brother Navin was in a pool of blood. The complainant further states that, Navin was picked up and taken inside the Ankur society on the road. At that time, his brother was speaking a little bit. He was asked that who had beaten him and therefore he replied that, Sajan Bhikha being handicap by feet and along with him other 5-6 persons used swords and knives to injure him. The complainant further states that, his brother ws in a pool of blood and became unconscious. A rickshaw was called and he, his mother, Ratanben and Indravardan Dhanjibhai Solanki, etc. 3 took his brother in one rickshaw to the government hospital. The doctor examined his brother and declared him dead. The complainant further states that, before eight years, his brother Navin had talked that in the open ground outside the society, Sajan Bhikha Lagdo meet him time and therefore his brother reprimanded him as he had committed rape of a lady before few days but Bhika Lagdo got frustrated. Due to this very issue, Bhikha called other five persons in evening time and at around 0:45 hours, these people caused injuries with deadly weapons and thereby caused the death of complainant's brother. The detailed complaint as for this was filed at the Kalol government hospital in the presence of the Kalol. city PI. The same was registered as Crime 141/2000 under 302, 147, 148, 149, 201 and 120B of the IPC and section 135 of the BP Act.”
5. After considering the entirety of the matter, the trial Court by its judgment and Order dated 10.01.2002 found the appellant guilty of the offence punishable under Section 302 of the IPC while the other accused persons were given benefit of doubt and were acquitted of the charges leveled against them.
6. During the course of its judgment, the trial Court made following observations :
“11. In this case the complainant Babubhai Ramabhai Makwana is the brother of deceased Navin but he is not the eye witness.
xxx xxx xxx 4 ….The witness Kishor Chanabhai has stated that while he saw from the lights lit for Garba, he viewed that Rajendra Bhikha, Bharat Ramji, Kismat Ramji, Haresh Dahyabhai, Amrish Balulal, Jayesh Rama and Prakash Virchand were present. In this manner, it has come in the deposition of the witness Kishor Chanabhai that he has viewed all the accused as an eye witness. But if the complaint of the complainant is considered, he has specifically mentioned in it that, "your brother Navin is being beaten by 5 to 6 persons and one of them was walking with two walking sticks” is what was stated by Kishorbhai Chanabhai to the complainant. Thus, it seems that this witness did not knew the names at the time when he informed as to the incident to the complainant.
xxx xxx xxx
17.….The prosecution has also examined other witnesses for the oral dying declaration. Meanwhile the witness Kishor Chanabhai also states in his deposition that, Babubhai asked Navin that who beat him and while saying a little bit, Navin stated, ‘Sajan @ Rajendra Bhika and 5-6 other persons injured him with knives and swords.”
7. The appellant being aggrieved, filed Criminal Appeal No.329 of 2002 challenging his conviction and sentence while Criminal Appeal No.394 of 2002 was preferred by the State questioning the acquittal of the other accused.
8. By its judgment and order which is presently under challenge, the High Court affirmed 5 the order of acquittal recorded against rest of the accused but did not find any reason to interfere with the order of conviction recorded against the appellant.
9. According to the High Court, the facts that a ‘gupti’ was recovered at the instance of the appellant; that the ‘gupti’ carried blood stains; and that the blood group matched with that of the deceased, were completely against the appellant.
10. In this appeal, we have heard Mr. Aaftabhsen Ansari, learned Advocate in support of the appeal and Ms. Archana Pathak Dave, learned Advocate for the State.
11. The portions quoted hereinabove clearly show that PW-2, who was the principal witness had not even named any person other than the Original accused No.1. Even the dying declaration which was allegedly made by the deceased to said witness also did not mention any name other than the original accused No.1.
12. The case of the appellant, therefore, stands on more or less identical grounds like the rest of the accused. The only distinguishing feature, which weighed with the High Court is the 6 recovery of ‘gupti’ and the blood stains on said weapon.
13. Given the facts and circumstances of the case, the aforesaid feature of the matter, in our view, would not be sufficient to record and sustain conviction and sentence against the appellant.
14. We, therefore, give benefit of doubt to the appellant and allow the instant appeal by setting aside the order of conviction and sentence recorded against him.
15. The appellant be set at liberty, unless his custody is required in connection with any other case.
…………………………………….CJI.
(Uday U. Lalit) …………………………………………….J. (S. RAVINDRA BHAT) NEW DELHI SEPTEMBER 05, 2022 7 ITEM NO.31 COURT NO.1 SECTION II-B S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Crl.) No(s). 10457/2018 (Arising out of impugned final judgment and order dated 28-01-2016 in CRA No. 329/2002 passed by the High Court Of Gujarat At Ahmedabad) HARESHKUMAR @ BABLO DAHYALAL SHRIMALI Petitioner(s) VERSUS THE STATE OF GUJARAT Respondent(s) (IA No. 158203/2018 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT AND IA No. 158204/2018 - EXEMPTION FROM FILING O.T.) Date : 05-09-2022 This matter was called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE S. RAVINDRA BHAT For Petitioner(s) Mr. Aaftabhusen Ansari,Adv.
Mr. A.A. Pandya, Adv.
Mr. Prakash Ranjan Nayak, AOR For Respondent(s) Ms. Archana Pathak Dave, Adv.
Ms. Deepanwita Priyanka, AOR UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is allowed by setting aside the order of conviction and sentence recorded against the appellant. The appellant be set at liberty, unless his custody is required in connection with any other case.
Pending applications also stand disposed of.
(NEETU KHAJURIA) (VIRENDER SINGH) ASTT. REGISTRAR-cum-PS COURT MASTER (Signed order is placed on the file.)