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2023 DIGILAW 1040 (GUJ)

State Of Gujarat v. Dineshbhai B Solanki

2023-09-02

A.S.SUPEHIA, M.R.MENGDEY

body2023
JUDGMENT : A.S. SUPEHIA, J. 1. The present appeal is directed against the judgment and order dated 27.04.1994 passed by learned Additional Sessions Judge, Amreli acquitting the accused, who were charged with the offence under Sections 148, 307 read with Sections 149, 326 read with Sections 149, 506(2) read with Section 149 of the Indian Penal Code, 1860 (IPC). 2. The State has presented this appeal challenging such acquittal. The appeal has abated so far as the accused nos.2 and 7 are concerned, as they have passed away. 3. The case of the prosecution, as per the charge at Exh.1, is that on 07.05.1989 at around 19 hours, the accused, who were eight in numbers having armed, (accused no.1 with axe, accused no.2 with spade, accused nos.3, 4 and 5 with sticks, accused no.6 with shovel, accused no.7 with iron pipe and accused no.8 with shovel), had assaulted the son of the complainant - Pravinsinh Laxmanbhai (PW-1). The trial Court, after examination of the documentary as well as oral evidence, has acquitted the aforesaid accused. 4. At the outset, learned Senior Advocates appearing for the respective parties have submitted that all of them have settled the dispute. 5. Learned advocate Mr.Hardik A. Dave appearing for the injured witness (PW-1) has tendered the affidavit dated 05.07.2023 and has submitted that he has no dispute between any of the accused and the present respondents and his family are in fact altogether living along with the family of the accused persons and they are having good terms. It is further submitted that Laxmansinh Zala, who is the complainant, has passed away on 28.05.2015. The affidavit dated 05.07.2023 is ordered to be taken on record. Registry shall accept vakaltnama of learned advocate Mr.Hardik A. Dave as and when it is filed. 6. At the outset, learned APP Mr.Kanva Antani, has submitted that the trial Court has misdirected itself in appreciating the evidence, which has surfaced on record. While inviting the attention of this Court to the deposition of PW-1, who is the injured witness, he has submitted that the witness has categorically named all the accused and each of the role attributed to them in assaulting him. While inviting the attention of this Court to the deposition of PW-1, who is the injured witness, he has submitted that the witness has categorically named all the accused and each of the role attributed to them in assaulting him. It is submitted that as per the deposition of PW-1 and the complaint given by his father reveal that all the accused had gathered on the aforesaid day and have come in various vehicles and threatened him that they would today kill him and accordingly, all of them assaulted the son of the first informant, who was seriously injured. In support of his submissions, he has placed reliance on the medical certificate at Exh.28 and has submitted that the said medical certificate reveals that there were various injuries found on the body of PW-1 and he was admitted in the hospital on 08.05.1989 and was discharged on 19.05.1989. 7. Learned APP Mr.Antani has submitted that the trial Court should have appreciated the evidence of PW-1 as well as the evidence of Dr.Kiritkumar Mohanbhai, (PW-12), who had initially treated the injured witness at Kodinar Hospital. He has further referred to the deposition of Dr.Rajesh Acharatlal Domadiya (PW-10), who has treated the injured on 08.05.1989 at Mithabai Lohana Hospital, Veraval and has described the injuries, which were present on PW-1. It is submitted that the aforesaid evidence, if read closely, would in fact reveal that the incident had occurred on 07.05.1989 and PW-1 was mercilessly assaulted by the accused. He has further referred to the deposition of the first informant (PW-7), who is the father of the injured witness (PW-1), and has submitted that his deposition would reveal that there was an enmity between the accused and his son and they had threatened that the accused would murder him. It is, thus, submitted that the trial Court should not have acquitted the accused in view of the evidence, which has surfaced and the same would reveal the complicity of all the accused in the offence. Hence, it is urged that even if the accused and the complainant have settled the matter, the same would not wipe out the offence. Hence, it is urged that the acquittal recorded by the trial Court is required to be reversed. 8. Hence, it is urged that even if the accused and the complainant have settled the matter, the same would not wipe out the offence. Hence, it is urged that the acquittal recorded by the trial Court is required to be reversed. 8. Per contra, learned Senior Advocate Mr.Lakhani and learned Senior Advocate Mr.N.D.Nanavaty appearing for the respondents have submitted that no evidence is coming forth as to what led to the involvement and arrest of original accused no.8, more particularly in absence of any disclosure of identity of the said accused and no Test Identification (TI) Parade being carried out by the Investigating Agency. It is submitted that in all three witnesses have been examined by the prosecution so as to lend credence to the theory of them being chance witnesses and that they were travelling in a ST Bus, which was passing by the place of incident and that they had witnessed the incident and then intervened and saved the victim from further assault at the hands of the accused and then had taken him in the ST Bus to his home. 9. It is contended that Shri Karshanbhai Sarangbhai has been examined by the prosecution as PW-2. It is submitted that the said witness was serving at Union Bank of India, Kodinar as a peon, whereas the first informant herein was the Chairman of the said Bank. It is submitted that the said witness has not supported the case of the prosecution and has been declared hostile. It is submitted that, this witness has admitted in his deposition that it was the first informant, who was the President of the said bank, had in fact employed him in the services of the Bank. 10. It is pointed out by learned Senior Advocate Mr.Lakhani that, Shri Keshubhai Nondhanbhai (PW-3), has also not supported the case of the prosecution and has been declared hostile. It is submitted that the said witness is also an employee of the Union Bank, Kodinar, wherein the first informant was serving as a President and the present witness too as like PW- 2 was also employed at the instance of the first informant. It is submitted that, Bhikhabhai Nathubhai was examined by the prosecution as PW-4, who has also not supported the case of the prosecution and has been declared hostile. It is submitted that, Bhikhabhai Nathubhai was examined by the prosecution as PW-4, who has also not supported the case of the prosecution and has been declared hostile. It is submitted that the said witness categorically admits that he has not disclosed any fact pertaining to the assailants to the first informant as claimed by him. 11. It is submitted that Shri Rambhai Bhojabhai, (PW-5), who was serving as the driver of a S.T. Bus, which is stated to have stopped at the scene of offence, whereby three individuals i.e. PW-2, PW-3 and PW-4 had disembarked and saved PW-1 from further assault and had also taken him to his home from the scene of offence in the said bus. It is submitted that the said witness has been declared hostile by the prosecution. 12. Similarly, it is contended that Shri Bhanjibhai Punjabhai (PW-6), who was serving as a conductor of the S.T. Bus, has also not supported the case of the prosecution and has been declared hostile, more particularly when he has stated in his deposition that during the journey, the bus had never stopped, except for its regular stopping points. It is submitted that this witness also states that no injured person was made to sit in their bus nor is he aware of any incident as alleged by the prosecution. It is submitted that Lakshmanbhai Alshibhai Zala, (PW-7) is not an eye-witness of the alleged incident and is a hearsay witness and he is the father of the victim i.e. PW-1 and the first informant in the present case. 13. Learned Senior advocates have also submitted that Shri Merubhai Lakhmanbhai, (PW-8), a panch witness of the panchanama of the seizure of the clothes/weapons of the accused person produced below Exh.24, has deposed that no bloodstains are found on the clothes/weapons on any of the accused. It is submitted that Parbatbhai Virabhai, (PW-9), the panch for the scene of offence panchanama produced below Exh.26 has not supported the case of prosecution and has been declared hostile. 14. It is submitted that Parbatbhai Virabhai, (PW-9), the panch for the scene of offence panchanama produced below Exh.26 has not supported the case of prosecution and has been declared hostile. 14. Learned Senior advocates have also submitted that Shri Champaksinh Harisinh Zala, the Investigating Officer, (PW-11), who was serving as Police Sub-Inspector at Kodinar Police Station during the period of the offence and he had recorded the complaint of PW-7 has admitted in his cross-examination that no material was collected by him during the course of investigation pertaining to the alleged motive of there being an accounting dispute between the parties or the transfer of the son-in-law of respondent herein. It is submitted that on the day of the incident, the Station Diary contains an entry pertaining to the present incident, however, when the authorities had reached to the hospital for inquiry of the said incident, the victim had already taken discharge and left. 15. It is submitted that the incident as alleged had taken place in the year 1989 and the respondents were acquitted by the trial Court in the year 1994. It is submitted that as on today, out of the eight respondents, two respondent i.e. the respondent nos.2 and 7 have passed away and the appeal qua them has been abated vide order dated 03.03.2022. It is submitted that as a matter of recorded PW-7 i.e. the first informant has also passed away during the pendency of the present appeal. 16. We have heard the learned advocates appearing for the respective parties. 17. As per the charge, PW-1 was assaulted on 07.05.1989 at 19 hours, at Village Patiya, Taluka Kodinar, District Junagadh by eight accused, who were armed with various agricultural tools. As per the charge, the accused no.1 armed with axe, accused no.2 armed with spade, accused nos.3, 4 and 5 armed with sticks, accused no.6 armed with shovel, accused no.7 armed with iron-pipe and accused no.8 armed with shovel. PW-7, who is the father of PW-1, had given complaint on 08.05.1989 at Exh.22 alleging assaulted by eight accused. It is interesting to note that the accused no.8 is not named in the complaint and it is also undisputed fact that no TI parade is carried out. It would be relevant to appreciate the evidence of the doctor (PW-12), who has initially examined the injured. It is interesting to note that the accused no.8 is not named in the complaint and it is also undisputed fact that no TI parade is carried out. It would be relevant to appreciate the evidence of the doctor (PW-12), who has initially examined the injured. As per his deposition at Exh.35 and medical certificate issued by the doctor at Exh.36 reveals that there were 7 injuries, which were found on the body of the deceased. The same are as under:- i. C.L.W. 8cm X 1cm X bone deep over to mid parietal region anteriorly; ii. C.L.W. 1.5 cm X 5 cm X skin deep on Lt and upper side of occipital bone; iii. C.L.W. crush injury over the Rt middle finger; iv. swelling ¯c tenderness over the Rt upper leg and over knee jt. c lathi’ s impression mark; v. abrasion over Lt. knee; vi. abrasion over the Lt. elbow; vii. Lathi’s impression mark over the Lt. side of the back 2 cm X 6 cm; viii. Lathi’s impression mark over the Lt. Ant. Sup. Iliac spine; ix. Multiple abrasion over the Lt. upper thigh; x. tenderness over the back. In his deposition below Exh.35, he has specifically stated that all the injuries, as per his certificate at Exh.36, were simple in nature and the same can be recovered within a period of one week. It is further deposed by him that the patient (PW-1), was to be taken at Veraval for treatment, however, he did not refer to have the treatment at Veraval Government Hospital and he was taken as per the wish of the relatives. Thereafter, the injured was taken to Veraval Hospital and Dispensary, which was run by a Trust. He has also accordingly described the injuries and issued a certificate at Exh.28. It is interesting to note that as per the aforesaid certificate, the following injuries are recorded:- i. H/o alleged unconsciousness for about 30 minutes after injury; ii. Pain back of neck; iii. stitched wound approx 7 cm long on middle skull extending from frontal hair line upto middle of skull; iv. stitched wound approx 15 cm long on occipital region; v. swelling (Hematoma) Right, Temporal region approximately 2” in diameter; vi. swelling (Hematoma) on frontal region above Right eye approx 1” in diameter. vii. Painful neck movements with local tenderness over C3, C4, C5 (cervical spine) viii. stitched wound approx 15 cm long on occipital region; v. swelling (Hematoma) Right, Temporal region approximately 2” in diameter; vi. swelling (Hematoma) on frontal region above Right eye approx 1” in diameter. vii. Painful neck movements with local tenderness over C3, C4, C5 (cervical spine) viii. Multiple contusion marks on limb and back Considering the above injuries, these injuries can be regarded as grievous injuries, but would be confirmed by further investigation. The said certificate states that the patient was unconscious for about 30 minutes after injury, which runs contrary to the deposition and observation of the doctor (PW-12), who had initially treated the injured (PW-1). 18. In the cross-examination of the doctor (PW-10), it is elicited that when the patient was brought to the hospital, he was conscious and he remained as such and he was never unconscious at that time when he was admitted in the hospital. It is pertinent to note that when the injured was admitted initially at Kodinar Hospital, the doctor had stitched wound being injury 1 and 2. It is also elicited in his cross-examination that the injuries, which were recorded as per the certificate, were not in any manner fatal to his life. As per the certificate issued by the said doctor of the hospital and dispensary at Veraval, the injured was admitted in hospital on 08.05.1989 and he was discharged on 19.05.1989. From the deposition of the aforesaid doctor reveals that the injured has not named any of the accused in the offence, no history is recorded by the doctor. From his deposition, it is revealed that the injuries, which were suffered by PW-1, were not grievous or serious injuries and the same are simple injuries. 19. The father of the injured, thereafter, gave complaint on 08.05.1989 i.e. on the next date. The father of the complainant (PW-7) in his evidence at Exh.21, has deposed that the accused had constantly beaten and assaulted his son with various weapons as mentioned hereinabove. In his cross-examination, it is elicited that the complaint has been given after taking advise of the advocate, who had instructed to type the incident. Since the entire details in the complaint are given by the present witness as per the instructions of PW-1, and he was not the eye- witness and his testimony cannot be considered fatal for the accused. Since the entire details in the complaint are given by the present witness as per the instructions of PW-1, and he was not the eye- witness and his testimony cannot be considered fatal for the accused. The injured (PW-1) has deposed that he was constantly assaulted for a period of 15 to 20 minutes by the accused with all the weapons as narrated hereinabove. The same runs contrary to the injury certificate. In the examination-in-chief, the injured has attributed various weapons to each of the accused, however, in the cross-examination, it is elicited that he is not aware about the details of the accused as to who had carried which weapon and he is also not aware that which of the accused has inflicted injuries on him. It is interesting to note that, in the cross-examination, he has deposed that there is a financial relationship between the accused and his family. He has admitted that his uncle - Bhagvanbhai and the accused Dinesh are son-in-law and father-in-law respectively. It is surprising that he has denied that he does not know his brothers of his father-in-law and further he asserted that he does not know that his real brother is engaged to the daughter of the accused - Dinesh. He has further denied the relationship. A close scrutiny of his evidence does not make him a reliable witness and the same suffers from improvement as well as contradiction. It is further elicited in his cross-examination that he did not inform his family members with regard to the incident and he was in a semi-conscious state. It is further stated by in his cross-examination that when he reached at Kodinar Hospital, he was unconscious and thereafter, he has informed his father about the incident and he did not name any of the accused. Further, it is elicited from him that he had informed the police about the incident on the second day at the Veraval Hospital to his father. The panchas have also turned hostile and not supported the case of the prosecution, who have recovered the clothes and the weapons. 20. We have also threadbare perused the findings of the trial Court. In our considered opinion, the trial Court has precisely acquitted the accused for the offence, after appreciating the oral as well as the documentary evidence. 21. The Supreme Court way back in the case of Hallu & Ors. 20. We have also threadbare perused the findings of the trial Court. In our considered opinion, the trial Court has precisely acquitted the accused for the offence, after appreciating the oral as well as the documentary evidence. 21. The Supreme Court way back in the case of Hallu & Ors. vs. State of Madhya Pradesh, AIR 1974 S.C. 1936 , has held that if two views of evidence are possible, then the High Court should not interfere with the order of acquittal. In a recent decision, in the case of Roopwanti vs. State of Haryana & Ors., AIR 2023 S.C. 1199 , the Apex Court has reiterated the law, while dealing with the acquittal appeal. The same are as under:- “9. Further, in the case of Suman Chandra Vs. Central Bureau Of Investigation, Criminal Appeal No.1645 of 2021 wherein the acquittal of the accused was challenged, this court held that while exercising its powers to reverse an acquittal, the order of the trial court must not only be erroneous, but also perverse and unreasonable. The relevant paragraph of the judgment is being extracted herein: “It is well settled law that reversal of acquittal is permissible only if the view of the Trial Court is not only erroneous but also unreasonable and perverse. In our considered opinion, the view taken by the Trial Court was a possible view, which was neither perverse nor unreasonable, and in the facts and circumstances of the present case, ought not to have been reversed or interfered with by the High Court.” 10. Similarly in the case of Mrinal Das & Others Vs. The State of Tripura, this Court held that interference in a judgment of acquittal can only be made if the judgment is “clearly unreasonable” and there are “compelling and substantial reasons” for reversing the acquittal. The relevant paragraph of the judgment is being reproduced herein: "An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed". 22. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed". 22. Under these circumstances and in light of the settled proposition of law, we do not find that the trial Court has acted in a perverse manner in appreciating the evidence or the view expressed by the trial Court is unreasonable and erroneous. We do not find any compelling and substantial evidence in reversing the judgment of the trial Court, more particularly the fact that today the family of the accused and the injured are peacefully and happily residing altogether. The affidavit of the injured reveals that the original first informant has passed away on 28.05.2015 and the accused i.e. the respondent no.1 - Dineshbhai Boghabhai Solanki got married with the daughter of the accused no.1 and they are residing as husband-wife along with him in joint family. He has expressed that he has no objection if the impugned judgment of acquittal may not be disturbed in the interest of all the parties. 23. Hence, the present appeal fails. The same is rejected.