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2016 DIGILAW 1314 (GUJ)

State of Gujarat v. Arvindbhai Rayjibhai Baria

2016-07-14

ANANT S.DAVE, B.N.KARIA

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JUDGMENT : Anant S. Dave, J. 1. This Appeal under Section 378[1](3) of the Code of Criminal Procedure, 1973 ["CrPC" for short] is preferred by the appellant-State of Gujarat against the order of acquittal passed by the learned Presiding Officer, 7th Fast Track Court, Vadodara in Sessions Case No. 82 of 2005 dated 16th September 2005 whereby the respondents herein were acquitted of the offence punishable under Sections 302, 504 of the Indian Penal Code read with Section 135 of the Bombay Police Act. 2. By an Order of this Court dated 22nd January 2009, Appeal came to be admitted qua respondent No. 1 only, since the respondent No. 2-Kamleshbhai Raujibhai Pagi had expired on 27th May 2005, and the above fact is also recorded in the Order dated 28th September 2015 by this Court. 3. As per the case of prosecution, complainant-Rameshbhai Bachubhai Pagi, who happens to be brother-in-law of the deceased had come with his family at the place of his father-in-law on the eve of "Uttrayan" and he had three brothers-in-law; including deceased Arvindbhai. When he was at the house of Arvindbhai [deceased] on 14th January 2005, Arvindbhai had left his residence for watering the agricultural field and around 15:30 hours and thereafter at 17:00 hours, the complainant heard noise and found that quarrel had taken place between his brother-in-law and accused No. 1 & 2. Immediately, he rushed there and found accused persons abusing his brother-in-law and assaulting him by inflicting blows of weapons like wooden log on head, resulting into his brother-in-law falling down. The complainant also noticed inflicting of further blows by wooden stick on chest part of the deceased and the complainant shouted for help, but accused persons ran away from the place of incident. Immediately, complainant returned to inform his in-laws about the incident and father and mother-in-law, wife and sister reached at the scene of offence. Even other persons viz., neighbours, etc. also gathered there. Another brother of the deceased, namely Mohanbhai [PW : 5] was informed and he also reached at the place of incident and efforts were made to find out vehicle so that injured could be hospitalized, but no such facility was available. Even other persons viz., neighbours, etc. also gathered there. Another brother of the deceased, namely Mohanbhai [PW : 5] was informed and he also reached at the place of incident and efforts were made to find out vehicle so that injured could be hospitalized, but no such facility was available. Thereafter, Mohanbhai informed Sarpanch of village Kuval and also made attempts to inform the Police at nearby outpost at Masar Road and he found only one constable who informed Mohanbhai to hospitalize Arvindbhai and thus, while on his way back, Mohanbhai informed Sarpanch of another village-Muval to inform the concerned Police personnel’s on telephone and thereafter, Police party reached at village Kural and investigation had taken place, for which chargesheet was filed and the trial had taken place in which 10 witnesses and 16 documentary evidences came to be examined by the learned trial Judge who disbelieved the version of the complainant, eye witnesses and also further eye witnesses having found them unreasonable and benefit of doubt was given to the respondents by acquitting them. 4. Learned APP Mr. Rutvij Oza appearing for the appellant-State has taken this Court to the testimonies of Rameshbhai Bachubhai Pagi [PW-1 : Exh. 11]-complainant, who is the eye witness of the incident in question and has deposed supporting the case of prosecution and what was stated by him in the complaint. When the complainant was sitting on the otta of residence of Arvindbhai [deceased], having heard noise, he immediately rushed to the scene of offence and found assailants inflicting repeated blows of weapon viz., log and stick and therefore, it is submitted that by not believing the said witness, the trial Court committed serious illegality resulting into miscarriage of justice. In addition to above, learned APP has taken us to other panch witnesses namely Mohanbhai Motibhai Pagi [PW-5 : Exh. 17], who is also brother of the deceased who contacted Sarpanch of village Kural and made efforts to lodge the complaint but was discouraged by the incharge Police constable and had to return at his village. However, in search of the vehicle to transport body of the deceased to the hospital, he had also contacted Sarpanch of another village Buval for which sufficient record is available and it reveals that corroborating evidence comes on record about involvement of the assailants and police had reached around 11:00/11:30 pm on the same day. However, in search of the vehicle to transport body of the deceased to the hospital, he had also contacted Sarpanch of another village Buval for which sufficient record is available and it reveals that corroborating evidence comes on record about involvement of the assailants and police had reached around 11:00/11:30 pm on the same day. Learned APP has also taken us to the nature of injuries inflicted on the body of the person of deceased, so reflected in the medical certificate and deposed by Dr. Dharmesh Hansraj [PW-6 : Exh. 18] which reveals serious external as well as internal injures of 8 x 6 cm and 4 x 4 cm and presence of linear fracture and haematoma on temporoparietal and occipital region. There was profuse bleeding and internal bleeding of lungs, and therefore, it is submitted that medical expert opined about possibility of injuries by article namely Wooden log. The medical evidence also supports the case of prosecution and the cause of death is stated due to cardio-respiratory failure due to head injury. It is submitted that delay of nine hours in lodging the complaint by itself cannot be said to be fatal as the delay is explained by Mohanbhai, who made all efforts to contact the police nearby at the Police outpost. In continuation, support is also taken from Sumitraben Arvindbhai [PW-3 : Exh. 15] - wife of the deceased, who also reached at the scene of offence and had seen assailants inflicting injuries on the body of the person i.e., her husband. Likewise, testimonies of Laxmiben Rameshbhai, sister of the deceased, who reached at the scene of offence supported the case of prosecution. 5. Thus, according to the learned APP, absence of examining independent witness by itself will not make any dent in the case of the prosecution when eye-witness at the scene of offence had described the incident and overact on the part of the assailants inflicting injuries on the vital part namely head of the deceased duly gets support and corroboration from the medical evidence. It is, therefore, submitted that the appeal deserves to be allowed by setting aside the acquittal and conviction under Section 302 IPC be recorded and sentenced be imposed accordingly. 6. Learned advocate Mr. It is, therefore, submitted that the appeal deserves to be allowed by setting aside the acquittal and conviction under Section 302 IPC be recorded and sentenced be imposed accordingly. 6. Learned advocate Mr. Gajendra Bhagel appearing for the respondent, at the outset, would contend that having appreciated evidence on record, the learned trial Judge has found case of the prosecution is not established and failure to prove its case beyond reasonable doubt for which benefit of doubt is given to the respondent cannot be said to be palpably contrary to law, warranting interference in exercise of power by this Court. Learned advocate for the defence has taken us through the concerned findings given by the trial Court based on major discrepancies and vital omissions and material contradictions in the testimonies of complainant [PW-1]; wife-Sumitraben Arvindbhai [PW-3] and PW-5 Mohanbhai Motibhai and police witnesses and submitted that the version of PW-5 Mohanbhai Motibhai Pagi making efforts to lodge complaint and inform the police is not supported. According to him, delay of nine hours in lodging the complaint is fatal to the case of prosecution. Inspite of pucca tar road available for approaching nearby Police station and hospital at Padra, no efforts were made and on the contrary, PW-5 Mohanbhai has returned from the outpost at Masar Road. It is submitted that the above all there appears to be absence of motive and the incident referred to for cause of scuffle and grudge kept for all the thirteen years prior to the incident accusing A1 of abducting sister of the deceased. It is also submitted that for reasons best known to the prosecution, Sarpanch of Village Kural and another Sarpanch of village Muval are not examined, who were independent witnesses and could have thrown light on the case and strengthened the case of prosecution. It is, therefore, submitted that in absence of merits, this Appeal deserves to be rejected. 7. We have carefully perused the record of the case and submissions made by the learned APP and learned advocate appearing for the respondent. The trial Court, while appreciating evidence on record and particularly eye-witness, complainant [PW-1] has found that it is doubtful whether the above witnesses had seen the assailants inflicting blow of wooden log. 7. We have carefully perused the record of the case and submissions made by the learned APP and learned advocate appearing for the respondent. The trial Court, while appreciating evidence on record and particularly eye-witness, complainant [PW-1] has found that it is doubtful whether the above witnesses had seen the assailants inflicting blow of wooden log. Instead of providing immediate relief, the above witness returned to his residence and thereafter his parents, wife and sister of deceased visited the scene of offence where dead body of Arvindbhai was lying. The day on which incident had taken place is 14th January 2005 where number of residents would be available in a colony occupied by particular community. Not a single person is examined as eyewitness. The conduct of another brother of the deceased i.e., Mohanbhai Motibhai Pagi [PW-5] of informing incident to Sarpanch of two villages viz., Kural and Muval; having made attempts to contact nearby out-post at Masar Road is also doubtful, as no corroboration is made by any other evidence. On the contrary, police personnels do not confirm or support the above story of Mohanbhai Motibhai Pagi. That, village Kural where the deceased was residing was well connected with pucca tar road with nearby town namely Padra and it has also come on record that private and public transport was available to provide immediate and better treatment to the injured. But, without seeking any medical help, it was believed that injured had succumbed to injuries and till the Police mobile van arrived at the scene of offence, no action was taken. Even failure on the part of the prosecution to examine two important independent witnesses viz. Sarpanch of two village also create doubt about the case of prosecution. Testimony of Dr. Dharmesh Hansraj Sharma [PW-6] reveal nature of injuries, but again no definite opinion is given about possibility of death by any other weapon or under different circumstance. We are in agreement with the findings of the trial Court about absence of motive and for about 13 years no untoward incident had taken place for which any record is available, except the say of the relatives of the deceased. We are in agreement with the findings of the trial Court about absence of motive and for about 13 years no untoward incident had taken place for which any record is available, except the say of the relatives of the deceased. Thus, omission of vital nature, major discrepancies and material contradictions noticed and found by the learned trial Judge in testimonies of eye witnesses, which resulted into acquittal of the respondent cannot be said to be incorrect appreciation of substantial in nature, and accordingly, we find no reason or ground to interfere with such reasonings and conclusion drawn by the learned trial Judge. 8. Thus, in absence of merit, the present Appeal must fail and accordingly, the same is dismissed. Rule nisi discharged with no order as to costs.