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Gujarat High Court · body

2016 DIGILAW 1515 (GUJ)

State of Gujarat v. Hindu

2016-07-27

ANANT S.DAVE, B.N.KARIA

body2016
JUDGMENT : Anant S. Dave, J. 1. This Appeal is preferred by the State of Gujarat under Section 378 [1](3) of the Code of Criminal Procedure, 1973 against the judgment and order dated 21st December 2005 passed by the learned Presiding Officer, Fast Track Court No. 4, Morbi in Sessions Case No. 14 of 2011, acquitting the respondents herein of the offence punishable under Sections 147, 148, 149, 427, 323, 324, 337, 307 of the Indian Penal Code read with Sections 37 [1]& 135 of the Bombay Police Act. 2. Prosecution case has genesis in a complaint dated 27th August 2000 filed by the complainant-PW :1 that the incident took place in the field of the complainant, which is located between the way of village Mintana and Valsan, near cancel where the accused persons formed an unlawful assembly, since a civil suit filed against them with regard to the disputed land of Mitana village in which an order was passed by the Civil Court in favour of the complainant to which accused had disagreed and dissatisfied with, decided to kill complainant and his family. Thus, with a common intention to kill the complainant and his family and to damage the property of the complainant, they formed an unlawful assembly and assaulted members of the family of the complainant; including the complainant, with weapons like Axe, Dhariya, Sticks and stones. The version of the complainant is into two parts viz., initially, Jemalbhai [PW-2] and Ajitbhai [PW-5] who had taken shelter in the house which was broken by the assailants and had beaten them. Even a two wheeler "Hero Honda motor cycle" of PW-5 was also damaged. Upon receiving information about this part of the incident, the complainant-PW-1 and his aunty-Hajuben Jemalbhai [PW-2] went on a Rajdoot motorbike from agricultural field to village Mitana and when they reached nearby canal, on the way to village Valasan, the assailants who were hidden behind the bushes, assaulted them viz., A-1 had an Axe; while A-3 had sickle, A-2 had a dhariya and other accused had sticks and the complainant was assaulted by A-1 with axe. He was given two blows on his head by A-1 with Axe and other persons had beaten him with stick, while Hajuben Jemalbhai, who tried to intervene and save the complainant, also received injuries with the weapons. 3. He was given two blows on his head by A-1 with Axe and other persons had beaten him with stick, while Hajuben Jemalbhai, who tried to intervene and save the complainant, also received injuries with the weapons. 3. The chargesheet was filed before the learned JMFC, who committed the case to the Sessions Court, where it was tried as Sessions Case No. 14 of 2001. 4. In the backdrop of the case of prosecution as above, at the end of trial, resulted into acquittal, though prosecution had examined 12 witnesses and produced 31 documentary evidences, and therefore, the learned APP Mr. Rutvij Oza would contend that the learned trial Judge has failed to consider testimonies of injured eye-witness viz., PW-1 Hussenbhai Osmanbhai Sandhi; PW-2 Hajuben, w/o. Jamalbahi Sandhi; PW-3 Jemalbhai Mamadbhai Sandhi and PW-5 Jayesh Kandhabhai Bavaji. According to learned APP, it emerges from their testimonies that they were assaulted with deadly weapons and injuries were received on vital part of the body, which duly get corroboration from medical evidence describing injuries on their body for which testimony of Dr. Ashwinkumar Devrajbhai Tank [PW-8] again supports the case of prosecution. According to learned APP, clothes of injured were sent to FSL and blood stain marks analyzed by FSL and report has been submitted confirming the blood group of the injured. In the case on hand, panchnama of the scene of offence was drawn. Sulemanbhai had also supported the case of prosecution whereby it is stated that damage of two wheeler belonging to PW-5 Jayesh K. Bavaji was found at the scene of offence. The testimony of PW-1 Husseinbhai Osmanbhai Sandhi is consistent with the testimonies of PW-2 Hajuben Jamalbhai Sandhi; PW-3 Jemalbhai Mamadbhai Sandhi and PW-5 Jayesh K Bavaji and not believing the same on the ground of discrepancies, omissions and contradictions by the learned trial Judge, the case has resulted into miscarriage of justice which requires to be reversed by this Court in exercise of appellate powers; as prayer for. 5. As against the above, Mr. Tolia, learned advocate for the defence has taken us to the complaint [Exh. 27] dated 27th August 2000 and version of the complainant initially recorded and improved substantially in his testimony, and that of the other injured witness which reveal a case of falsely implicating the accused. 5. As against the above, Mr. Tolia, learned advocate for the defence has taken us to the complaint [Exh. 27] dated 27th August 2000 and version of the complainant initially recorded and improved substantially in his testimony, and that of the other injured witness which reveal a case of falsely implicating the accused. At every stage, the complainant and other injured witnesses have tried to suppress genesis of the crime and when suppression about vital part of the case of prosecution appear on record, no corroboration can be sought for from other independent witnesses. Learned advocate for the defence has taken us to the complaint and submitted that no mention is made by the complainant about the nature of weapons used by assailants to cause injury upon Hajuben. The documentary evidence in the form of injury certificate of all the injured do not mention usage of axe or dhariya and what is stated is that they were beaten by stick. Though named later on, the assailants were not named before the Medical Officer of Civil Hospital, Rajkot and the above fact is evident from the testimony of Dr. Ashwinkumar Devrajbhai Tank [PW-8], inter alia, it is stated that none of the injuries was found serious enough to cause death and even possibility of such injury by weapon like Dhariya or axe was also ruled out and injuries on the head of PW-1 Husseinbhai Osmanbhai Sandhi and PW-2 Hajuben Jamalbhai Sandhi was not possible by any sharp edged weapon. Finally, it is submitted that the injured did approach Tankara Police Station after the incident and the above fact is evident by perusing Exh. 83 that entry made by the concerned Incharge Police constable namely Chandubhai, ASI around 12:15 on 27th August 2000, who was not examined during the trial and the entry reveals that the injured were brought by one Keshubhai Alabhai, Police Constable of Tankara Police Station and the above information was intimated to ASI of Tankara. None of the weapons used in commission of the crime contained blood stain and when the learned trial Judge has appreciated such evidence threadbare, resulting into acquittal of the accused, in absence of any error either of law or going a goodbye to any settled principles of criminal jurisprudence deserves no interference by this Court. Accordingly, the present Criminal Appeal deserves to be dismissed. 6. Accordingly, the present Criminal Appeal deserves to be dismissed. 6. Having heard learned advocates appearing for the respective sides and on perusal of the record; including the judgment and order under challenge, we are in agreement with the submissions made by learned counsel for the defence and also with the reasonings, findings and conclusion drawn by the learned trial Judge and exclusive reasons may not be necessary, but we find that PW-1 Husseinbhai Osmabhai Sandhi and PW-2 Hajuben Jamalbhai Sandhi are not speaking truth in as much as immediately after the incident, it is stated that all of them had travelled by a bus to Rajkot Civil Hospital. While the record reveals, as per Exh. 83, that they had gone to Tankara Police Station and accompanied by a constable, they went to Rajkot Civil Hospital. Even PW-1 and other injured prosecution witnesses have not disclosed names of the assailants before PW-8 Dr. Ashwinkumar Devrajbhai Tank and even usage of any weapon like Dhariya or Axe and only stated about they having received injuries by stick blows. None of the assailant was named initially while they were admitted in the hospital. Further at Rajkot Civil Hospital, an entry at Exh. 83 recorded by ASI-Chandubhai about Police Constable Keshubhai Alabhai from Tankara Police Station accompanying the injured was not examined which creates doubt about the correctness of the version of the case of prosecution. Injured Hajiben, though surviving, but her Dying Declaration was recorded and to be treated as a previous statement in presence of Executive Magistrate, no documentary evidence much less examination of the above Executive Magistrate appears on record, which again creates doubt about the case of prosecution. In the testimony of PW-3 Jemalbhai Mamadbhai Sandhi, it comes on record that masons were working at the house where incident had taken place. Though independent, no statement was recorded much less examination. Likewise, second part of the complaint about assault by the assailants upon PW-1 Husseinbhai Osmanbhai Sandhi and PW-2 Hajuben Jemalbhai Sandhi, the assailants had no knowledge of their visiting the place of offence from Vadi of PW-1 so that they waited by the side of the road in bushes, which otherwise used by villagers and take risk of committing the crime. 7. 7. The evidence; as above, duly appreciated by the trial Court and the view taken, resulted into acquittal of the respondents cannot be said to be not a plausible one warranting any other view or conclusion and even if it is so, the view taken by the trial Court resulting into no guilt of the accused is to be given primacy and to be confirmed. No case is made out. Hence, the present Appeal fails and the same is dismissed.