Gujarat High Court
State Of Gujarat vs Thakore Somaji ... on 18 March, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Vipul M. Pancholi
R/CR.A/852/1992 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 852 of 1992
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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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....Appellant(s)
Versus
THAKORE SOMAJI PRABHATJI....Opponent(s)/Respondent(s)
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Appearance:
MS MAITHILI MEHTA, APP for the Appellant(s) No. 1
MR MJ BUDDHBHATTI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 18/03/2015
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R/CR.A/852/1992 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The State has filed this appeal calling in question the judgement of acquittal dated 6.2.1991 rendered by the learned Sessions Judge, Banaskantha, in Sessions Case No. 2/1988.
2. Briefly stated, prosecution version was that on 23.7.1986, when the complainant Thakorbhai Amthabhai along with head constable Lalsing Umedsing were at village Rajpur in connection with prohibition drive, they saw the accused Amuji Prabhatji and Somaji Prabhatji carrying sticks and two empty cans. When intercepted and questioned about where did they get the cans for carrying liquor, they started getting restless. While the complainant tried to catch them, accused Amuji Prabhatji got excited and started giving stick blows to the constable Lalsing Umedsing on the head and other parts of the body. When the complainant tried to catch Amuji Prabhatji, coaccused Somaji Prabhatji gave stick blows to him on the head, neck and other parts of the body. Constable Lalsing Umedsing received serious injuries and he lost consciousness. With the help of passer by, the complainant shifted him to hospital where he was treated. Both the accused were therefore, charged with offences punishable under sections 307 read with section 114 of the Indian Penal Code. During the course of trial, accused no.1 Amuji Prabhatji died. The trial therefore, was conducted against the sole surviving accused Somaji Prabhatji. The trial Court acquitted him upon which the State has Page 2 of 7 R/CR.A/852/1992 JUDGMENT presented this appeal.
3. Complainant Thakorbhai Amthabhai, PW2 was examined at exh.14. As per his deposition on 23.7.1986 when he and constable Lalsing Umedsing were at village Rajpur in connection with prohibition drive, they met Amuji Prabhatji and Somaji Prabhatji coming from opposite direction carrying sticks and empty cans. When questioned, Amuji Prabhatji got excited, started giving stick blows to Lalsing Umedsing. When he tried to stop Amuji Prabhatji, co accused Somaji Prabhatji also gave stick blows to him on all parts of the body. Accused thereafter, ran away with the sticks. Lalsing Umedsing had fallen down on the ground and was not talking. He waited at the spot for about one and half hours when one Hothibhai came. With his help he brought Lalsing on the road from where he took him in a rickshaw to the Government hospital at Deesha and, thereafter, proceeded to lodge the FIR.
In the cross examination, he agreed that the incident happened near Chamunda Mata temple which is situated on Juna Deesha road. Nearby there were about 15 houses and several shops. Right behind the temple is the place for dyeing. He however, did not know whether at the said place number of people were present through the day doing the dyeing work. Rapar village had population of 1000 to 1200 houses. He had taken Lalsing to hospital and immediately left.
4. Injured Lalsing Umedsing, PW5, was examined at exh.20.
According to his deposition, Amuji Prabhatji had given a
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R/CR.A/852/1992 JUDGMENT
stick blow on his head. He fell down and lost consciousness. Even after he fell down, Amuji Prabhatji continued to give him stick blows. At that time, Somaji Prabhatji was beating Thakorbhai.
In the cross examination, he agreed that the dyeing place was at the distance of about 20 feet from the temple. They had seen the accused coming from a distance of about 30 feet. When they were questioning the accused, they did get restless, but did not attempt to run away.
5. Hothibhai Ramji Thakor,PW6, exh.21, was the person who helped the complainant in putting Lalsing in rickshaw. He deposed that on the date of incident, he had gone near the village Rajpur for collecting wood. At about 5 O'clock, in the evening, he had started his work. At 7 O' clock, he had finished his work when he saw two people with sticks running away towards village Malgadh. When he went further, he saw one person lying on the floor bleeding. Another person Thakorbhai was also injured. He and Thakorbhai brought the injured near the road and stopped a rickshaw. After putting these people in rickshaw, he went home.
In the cross examination, he stated that when asked who beat up Lalsing, he was told that some two people had come and beaten and went away.
6. Dr. Rasiklal Amrutlal Raval, PW3, exh.15 had examined both the injured persons at Deesha Government hospital. He had recorded 3 CLW on the head of Lalsing which had Page 4 of 7 R/CR.A/852/1992 JUDGMENT caused swelling. Blood was coming out from the wound and also from the ear. He was feeling dizzy. He and taken xray but did not find any fracture in the skull. On several parts of body of Thakorbhai, he had noticed bruises and abrasions. According to him, such injuries could have been caused with a stick. Since the stick blow was given to Lalsing on the head, in his opinion, if blow was given with greater force, it could have proved fatal.
7. This in the nutshell is ocular evidence.
8. The investigating agency did collect other materials such as blood soiled clothes from the spot and clothes of the injured persons were produced before the court. In view of the fact that the main alleged assailant Amuji Prabhatji died during the trial and the trial thus abated qua him, the case that survives against accused Somaji Prabhatji is in narrow confines.
9. On the basis of evidence on record, the learned Judge found inherent contradictions and improbabilities in the version of the witnesses. It was noted that though the incident took place close to other human settlements, no other witnesses were examined, except the police witnesses. The learned Judge found it highly improbable to believe that two civilians would attack two policemen though they themselves were armed with mere sticks. Interalia, on such grounds, prosecution case was discarded and accused was acquitted.
10. We must reassess the evidence bearing in mind the Page 5 of 7 R/CR.A/852/1992 JUDGMENT inherent limitations of an acquittal appeal. Merely because another view is possible would not justify reversing the judgement of acquittal and record a conviction. Unless the evidence unerringly suggest only to one possibility and the findings arrived at by the Courts below are perverse, the decision cannot be interfered with. With this background in mind, we may reassess the evidence.
11. As noted, according to the complainant Thakorbhai Amthabhai, PW2, incident took place near the temple. He however, agreed that close to the temple, there were several houses and shops. He also agreed that right behind the temple, there was place for dyeing. Though he was not aware whether through out the day, several people were present for the dyeing work, witness Lalsing Umedsing agreed to such suggestion. This witness had also stated that after Lalsing collapsed and lost consciousness, the accused ran away. Since there was no help, he had waited for one and half hours before Hothibhai Thakor, PW6, came along. With his help, he brought Lalsing on the main road to put him in rickshaw. Hothibhai Thakor on the other hand stated that he had gone near the village to collect wood at about 7 O' clock. He completed his task when he saw two people with sticks running away. He went further to find one person lying injured on the road and complainant standing besides him. Version of these two witnesses clearly are contradictory. According to the complainant he had to wait for one and half hours before help arrived. Hothibhai however, claimed to have seen the two accused persons running away. If there was a gap between one and half hours between the incident and Page 6 of 7 R/CR.A/852/1992 JUDGMENT Hothibhai arriving at the scene, it was simply impossible for him to have seen the accused running away. There is thus a gross exaggeration by the prosecution.
12. Further according to Lalsing, they had seen the accused coming from opposite direction from the distance of about 30 feet. If the accused were carrying sense of guilt, they had no reason to approach the police party. They could as well have made their escape good. Instead, they walked up to the police people and assaulted them, according to the prosecution, though their cans were empty and had no traces of alcohol. The entire incident took place near the human settlement with several houses and shops and dyeing Ghat frequented by workers. No other person came for help at the time of occurrence of the incident or nearly one and half hour thereafter. All these aspects improbablise the prosecution version atleast so far as surviving accused is concerned. Therefore, we see no case at all.
13. Criminal appeal is dismissed.
R&P be sent back to the concerned trial Court.
(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) raghu Page 7 of 7