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Gujarat High Court · body

2016 DIGILAW 1147 (GUJ)

State of Gujarat v. Laxibhai Kakadbhai Varli

2016-06-21

ANANT S.DAVE, B.N.KARIA

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JUDGMENT : Anant S. Dave, J. 1. The present appeal is preferred by the appellant-State, against the judgment and order of acquittal dated 18.05.2005, passed by the learned Additional Sessions Judge, Valsad, in Sessions Case No. 16/2003, for the offences punishable under Section 143, 147, 148, 332, 342, 395 of the Indian Penal code and under Section 25(1)(A)(C) of the Arms Act. 2. The case of the prosecution is that, the complainant D.N. Rao was In-charge as P.S.I. of Kaprada Police Station from 21.05.1997. On 23.05.1997, at 17:00 hours Range Forest Officer Shri Arjunbhai Chaudhary and Beat Guard Pankajbhai Vasantji Rathod came to the police station and gave a written application for providing protection. Pursuant to such complaint police escort was provided for Burla village. It is the prosecution case that the Tempo No. GJ-1-TT-6896 was containing 'Kher' wood. The said wood was removed by the employees of the Forest Department. It was not possible to remove the tempo. The tempo was to be seized. Necessary entry was made in the station diary and at 17:15 hours along with the employees of the Forest Department and Police Jamadar Khusalbhai Mangalbhai and Kantibhai Noane they left for Burla village in the Government jeep and reached at 17:40 hours. The tempo was lying there. They supervised the tempo, the wheel of the tempo, diesel tank, lights, seats were taken away. The axel was broken, at that time the officers went to the residence of the opponent accused No. 1 for further investigation. He was not available at his residence. Inquiry was made from Mohanji Kakadbhai. At that time, during this process the opponent accused came with deadly weapon and were abusing they came with the common intention to assault the complainant and their raiding party. The shoulder badge of the complainant was snatched away. The revolver was also snatched away by the opponent accused No. 1. At that time, other persons also gathered there. The complainant was dragged by shirt. His revolver was thrown towards Rambhai who was Ex-Police. Rambhai took that revolver and fired towards the complainant. The said firing was made from the Government revolver, other four rounds were also fired in the air. Thus the scuffle took place. After firing from the revolver of the complainant the revolver was returned. Shoulder belt was returned in broken condition. Five rounds were fired from the revolver. 3. Rambhai took that revolver and fired towards the complainant. The said firing was made from the Government revolver, other four rounds were also fired in the air. Thus the scuffle took place. After firing from the revolver of the complainant the revolver was returned. Shoulder belt was returned in broken condition. Five rounds were fired from the revolver. 3. Upon filing of the complaint, investigation was carried out and the accused were arrested and charge-sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same was committed to Sessions Court and registered as Session Case No. 16 of 2006, for the offence punishable under Sections 143, 147, 148, 332, 342, 395, 307 of Indian Penal Code read with Section 25(1) of the Arms Act. The accused pleaded 'not guilty' and claimed to be tried. 4. During the trial, the prosecution has examined the following witnesses:- S. No. Name of the witness Exhibit Beat No. 1. Lalmiyan Shaikhali Shaikh 13 2. Seeraaj Allarakhhu Shaikh 16 3. Dilipkumar Natwarlal Rao 19 4. Arjunbhai Anchhibhai Chaudhary 20 5. Pankajbhai Vasantji Thakore 22 6. Kantibhai Keshurbhai Patel 28 7. Dr. Dhanjibhai Naranbhai Patel 33 8. Gajanand Krishnadin Bindre 37 5. The prosecution has also produced and relied upon the following documentary evidences:- S. No. Particulars of the document Exhibit Beat No. 1. Panchnama of the place of offence 14 2. Panchnama of muddamal recovery 15 3. Medical Certificate of Arjunbhai 34 4. Medical Certificate of Pankajbhai 35 5. Original Complaint 38 6. FSL Report 39 7. FSL Report 40 6. At the end of the trial, the Court below recorded further statements of the accused persons under Section 313 of the Cr.P.C. and thereafter, passed the impugned judgment and order acquitting the accused-respondents. Being aggrieved and dissatisfied with the impugned judgment of acquittal of the accused, the State has approached this Court by way of present appeal. 7. In the context of the case, Mr. Rutvij Oza, learned APP has taken us to oral as well as documentary evidences and read out the testimonies of PW-3 Mr. Dilipkumar N. Rao, at Exh19, PW-4, Mr. Arjunbhai Anchhibhai Chaudhary, at Exh.20, PW-5, Mr. Pankajbhai Vasantji Thakore, at Exh.22, and testimony of PW-7, Dr. 7. In the context of the case, Mr. Rutvij Oza, learned APP has taken us to oral as well as documentary evidences and read out the testimonies of PW-3 Mr. Dilipkumar N. Rao, at Exh19, PW-4, Mr. Arjunbhai Anchhibhai Chaudhary, at Exh.20, PW-5, Mr. Pankajbhai Vasantji Thakore, at Exh.22, and testimony of PW-7, Dr. Dhanjibhai Naranbhai Patel at Exh.33, and documentary evidence namely Panchnama of Scene of Offence, at Exh.14, Panchnama of recovery of Muddamal at Exh.15, Medical Certificates of Arjunbhai and Pankajbhai at Exh. 34 and 35 respectively, complaint at Exh.38 etc., and contended that the trial Court having found that the escorting police party and forest personnels were assaulted and also received injuries failed to appreciate evidence on record and erred in ordering acquittal, and therefore, interference of this Court is solicited. Learned APP has taken us to evidence at Exh.19, given by D.N Rao and submitted that the above PW-3, In-Charge of Kaparada Police Station, with Range Forest Officer Shri Arjunbhai Chaudhary and another Beat Guard came there seeking police protection in view of one tempo lying at village Burla and was to be recovered. The above witness has categorically deposed that having made entry into the register along with forest employees had gone to the village and upon finding the spare parts of the tempo stolen, made an inquiry at the house of one Mahesh Kakad and Laxi Kakad, and thereafter, scuffle had taken place. When the inquiry was made, initially, they were challenged and upon a voice raised by Laxi Kakad, other persons joined the assault forming an unlawful assembly and an assault was made on Government employees on duty, which is a serious crime. Particularly, in the back drop of evidence that surfaces, revolver of PW-3 was snatched away and a shot was fired at him and he was manhandled and beaten along with other personnels. It is further submitted by the learned APP that, serious view ought to have been taken of convicting the accused by inflicting maximum punishment as prescribed under the statute. Learned APP has vehemently argued the case of the prosecution is brushed aside by the trial Court, when corroborating evidence was also available in the form of deposition of medical certificates about the injuries caused on other police personnel. Learned APP has vehemently argued the case of the prosecution is brushed aside by the trial Court, when corroborating evidence was also available in the form of deposition of medical certificates about the injuries caused on other police personnel. Non examination of independent witnesses by itself would not make any dent in the case of prosecution and panchnamas drawn of scene of offence and recovery of muddamal reveal that, the accused were the real culprits and minor discrepancies or contradictions in testimonies of witnesses recorded by police ought to have been ignored by believing the case of the prosecution. In all, it is submitted that the appeal deserves to be allowed by convicting and awarding sentence to the respondents. 8. As against above, Mr. Rushabh Shah, learned advocate appearing for the respondents has taken us to testimonies of PW-3 complainant and the complaint lodged by him and contended that in the complaint, revolver was snatched away by Laxi Kakad and was thrown by him towards Ramabhai an ex-Police, who fired a shot, while in his testimony PW-3 states that Laxi Kakad himself had snatched away revolver and fired one round towards him. Likewise, other witnesses including the Range Forest Officer are not consistent about who fired the shot and one PW-5, state that Mahesh Kakad another accused had snatched away service revolver of PSI Rao-PW-3, which was thrown by Mahesh Kakad to Ramabhai who fired the shot from the revolver. Thus, different versions are appearing on record about firing a shot from service revolver of PW-3, resulting into acquittal of the accused after appreciation of other evidence cannot be said to be contrary to law. Along with the above, Mr. Shah has taken us to oral as well as documentary evidence including that of drawing of panchnama not at the place of offence, but at the out post and recovery of muddamal, particularly, revolver of PW-3 and other items including empty cartridges etc., by one Rameshbhai who is not examined creates doubt about the case of the prosecution. Further, nothing comes on record how PW-3 and other Government personnel were rescued for which no documentary evidence was produced or any one examined. Collectively, in appreciation of evidence by the trial Court, no error appears. Further, nothing comes on record how PW-3 and other Government personnel were rescued for which no documentary evidence was produced or any one examined. Collectively, in appreciation of evidence by the trial Court, no error appears. In the view taken by the trial Court, innocence of the accused is proved beyond reasonable doubt and hence no interference is warranted by the Appellate Court in exercise of powers under Section 378 r/w. Section 383 of the Cr.P.C. 9. Having heard learned counsel appearing for the respective parties and on perusal of record of the case and judgment and order of acquittal under challenge, we find that there is a force in the arguments canvassed by Mr. Rushabh Shah, learned counsel for the respondent and major discrepancy and contradictions appear about firing of shot from service revolver of PW-3 and the incidence in question. Further, the manner in which role of accused is described creates doubt in absence of any cogent material on record. Investigating Officer PW-8 at Exh.37, deposes that in the complaint no detail is provided about the age and residence of the accused and that is also not reflected even after further statement of the complainant is recorded. Even there appears to be over writing about the date of the offence and no one has put signature on it. The description of the incident is even not supported by Forest Beat Guard too has different version. Not drawing of panchnama at the scene of offence, as such may not be fatal to the case of prosecution, but acquittal with number of lacunae from the stage of filing complaint till completion of investigation do not persuade us to believe case of the prosecution that absence of medical certificates about injuries on PW-3, though deposed by the doctor reveal simple injuries of bruises etc., and thus findings about no guilt of the accused and doubtful case of the prosecution giving the benefit to the accused by the learned trial judge warrants no interference by this Court and hence the appeal filed under Section 378(1)(3) of Cr.P.C., is rejected.