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2023 DIGILAW 474 (GUJ)

STATE OF GUJARAT v. RAJPUT RAMGYANSING JITENSING

2023-03-17

A.Y.KOGJE, M.R.MENGDEY

body2023
JUDGMENT : M.R. MENGDEY, J. 1. At the outset, it is required to be noted that, pending the present Appeal, Respondent No. 1-Rajput Ramgyansing Jitensingh and Respondent No. 2-Rajput Satishkumar Ramgyansing have expired and therefore, the present Appeal is ordered to be abated qua the aforesaid Respondents. 2. The present Appeal has been filed by the Appellant-The State of Gujarat, challenging the judgment and order dated 31.5.1997 passed by the learned Additional Sessions Judge, Mahesana in Sessions Case No. 42 of 1995, whereby, the Respondents have been ordered to be acquitted of the charges levelled against them. 3. The facts and circumstances of the case giving rise to the present Appeal are such that an FIR being I-CR No. 117 of 1994 was lodged by one Rameshbhai Shitlaprasad Rajput with the Kalol City Police Station alleging the offences punishable under Section 307, 323, 324, 504, 506(2) read with Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. 4. The investigating agency, after conclusion of the investigation, filed charge sheet against the present Respondents for the aforesaid offences. The offences alleged against the Respondents being exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class, Kalol was pleased to commit the proceedings to the Court of Sessions in view of the provisions under Section 209 of the Code of Criminal Procedure. 5. Upon commital of proceedings the learned Sessions Court framed charges against the present Respondents by Exh.15 and since the Respondents herein pleaded not guilty they were put to trial. 6. The prosecution has examined the following witnesses to bring home the charges levelled against the Respondents: S. No. Name Exhibit 1. Dr. Manishaben Rameshchandra Shah 24 2. Dr. Kant Satabhai Desai 29 3. Rameshbhai Shitlaprasad Complainant 35 4. Nemnarayansing Sukhdevsinh 37 5. Munnasing Rajmansing Rajput 39 6. Shrinath Vasudev Prajapati 41 7. Nareshbhai Bababhai Rathod 44 8. Ramanbhai Somabhai Patel 46 9. Jahur Ahmed Ibrahimbhai Malek 48 10. Surendrasing Virendrasing Rajput 49 11. Dineshsing Bhagwansing Kotewala 50 12. Shushilkumar Avdeshkumar Rajput 52 13. Avvyeshsing Sukhnandansing 53 14. Ramsagarsing Basantsing 54 15. Police Jamadar Gopalsing Jorubhai Vaghela 56 16. Head Constable Chimanlal Nanalal Ganpathsing Manthursing 59 17. Shambhubhai Bechardas Patel 62 18. Baldevbhai Ramabhai Patel 63 6.1 The prosecution has also relied upon the following documentary evidence in support of its case: S. No. Particulars Exhibit 1. FIR 36 2. Avvyeshsing Sukhnandansing 53 14. Ramsagarsing Basantsing 54 15. Police Jamadar Gopalsing Jorubhai Vaghela 56 16. Head Constable Chimanlal Nanalal Ganpathsing Manthursing 59 17. Shambhubhai Bechardas Patel 62 18. Baldevbhai Ramabhai Patel 63 6.1 The prosecution has also relied upon the following documentary evidence in support of its case: S. No. Particulars Exhibit 1. FIR 36 2. Panchnama of scene of offence 45 3. Panchnama of the body of the injured witness named Rameshkumar Shitalprasad 43 4. Panchnama of the body of the injured witness Shrinath 51 5. Panchnama of the body of the injured witness Ramgyangyansing 47 6. Panchnama of the weapon produced by the accused Satishkumar 38 7. Panchnama of the weapon produced by Hareshrai 40 8. Certificate regarding the injuries received by Pajapati Shrinath from Kalol Municipal Medical Hospital. 25 9. Certificate regarding the injuries received by Avyeshbhai from Kalol Municipal Medical Hospital. 26 10. Certificate regarding the injuries received by Rameshbhai from Kalol Municipal Medical Hospital. 27 11. Certificate regarding the injuries received by Shushilbhai from Kalol Municipal Medical Hospital. 28 12. Certificate regarding the injuries received by Shrinath Prajapati from Civil Hospital Ahmedabad. 33 13. Public Notification issued by District Magistrate. 64 14. Copies prepared by the Circle for the place of incident. 23 15. Police Yadi for Shrinath Vasudev and Ramgyansing for any further treatment in the hospital. 57 16. Copy of Station Diary Entry No. 12/96 58 17. Dying Declaration of Shrinath Vasudev 69 18. Police Yadi for recording the statements of the witnesses. 68 7. The learned Additional Sessions Judge, after considering the evidence adduced on record was pleased to acquit the Respondents herein of the charges levelled against them vide impugned judgment and order dated 31.5.1997. Being aggrieved and dissatisfied with the same, the Appellant-The State of Gujarat has preferred the present Appeal under Section 378 of Cr.P.C. 8. Heard learned APP Ms. Jirga Jhaveri for the Appellant-State. Learned APP Ms. Jhaveri has taken us to the evidence on record in detail. She further submitted that as per the evidence adduced by the prosecution on record, Respondent Nos. 3 and 4 had assaulted the first informant and injured the witnesses with the use of deadly weapons. The first informant as well as the injured witnesses had sustained serious head injuries in the incident. The medical evidence recorded during the course of trial clearly supports the case of the prosecution. 3 and 4 had assaulted the first informant and injured the witnesses with the use of deadly weapons. The first informant as well as the injured witnesses had sustained serious head injuries in the incident. The medical evidence recorded during the course of trial clearly supports the case of the prosecution. Upon consideration of depositions of the first informant and the other injured witnesses, the prosecution has given reasons to prove the charges levelled against the present Respondents. Learned APP in her submission further submitted that the learned Sessions Judge has not appreciated the evidence adduced on record in its proper perspective. Learned Sessions Judge has committed a serious error in discarding the evidence adduced by the prosecution on record. She therefore submitted to allow the present Appeal and quash and set aside the impugned judgment and order and convict the present Respondents for the charges levelled against them and to punish them appropriately. 9. No one appears for Respondent Nos. 3 and 4. Heard learned APP Ms. Jirga Jhaveri for the Appellant State. 10. In the present case, the first information report has been lodged by one Rameshbhai Shitlaprasad Rajput. The said FIR in question is on record vide Exh.36. As per the said FIR on the date of the incident at 4:30 in the evening the first informant along with his friends namely Shrinath Vasudev Prajapati alias Babu and Shushilkumar Avyeshbhai had gone to a Panshop namely Mahakali Pan Center at Kalol. When they reached the Panshop, the son of Ramgyansing Rajput namely Balkrushn was present there. Upon reaching the Panshop, the friend of the first informant namely Shushilkumar had demanded pan masala from the shop keeper. At that time Balkrushn told the shopkeeper to give pan masala to him first and started abusing the first informant and his friends, upon which the first informant and his friends told the said Balkrushn not to abuse him, upon which the said Balkrushn got agitated and the other accused persons namely Hareshkumar Ramgyansing Rajput came at the spot with dharia in his hand, Satish Ramgyansinh Rajput came with sword and Rajput Ramgyansing Jitensing came with stick in his hands. Accused Balkrushn had also a pipe in his hands. Balkrushn assaulted the first informant with a pipe and inflicted a blow on the left side of his head. Accused Balkrushn had also a pipe in his hands. Balkrushn assaulted the first informant with a pipe and inflicted a blow on the left side of his head. Accused Rajput Hareshkumar Ramgyansing inflicted a blow with dharia on the right side of his head. Accused Satish Ramgyansing Rajput had assaulted the witness Shrinath @ Babu Vasudev Prajapati with a sword and Balkrushn had assaulted Sushilkumar with pipe. The first informant Rajput Rameshbhai Shitlaprasad had been examined as Prosecution Witness No. 3 vide Exh.35. In his examination-in-chief he has stated that Balkrushn had assaulted him with a pipe and had inflicted the blow on the left side of his head and Harishbhai had inflicted a blow with dharia on the right side of his head. Thus, as per the version of this witness, he had received two different blows on his head. 10.1 In this connection, deposition of PW-1 namely Dr. Manishben Rameshchandra Shah vide Exh.24 requires to be looked into. This witness was working at Sheth C.S. Hospital, Kalol where the first informant and other eye witnesses were taken for treatment after the incident. As per this witness when she examined the said Rameshbhai Shitlaprasad, there was only one injury on his head that too on the right side of the head. There is no reference to any injury on the left hand side of the head of the first informant. Thus the version given by this witness in the FIR at Exh.36 as well as his deposition vide Exh.35 does not find support or corroboration in the medical evidence. Moreover, it is also required to be noted that in the medico legal certificate which is on record vide Exh.27, also the history has been recorded as assault by pipe. There is no reference to any assault upon the first informant with dharia. Thus, there is a contradiction as regards the injury sustained by the first informant in the evidence of prosecution. 10.2 As per the FIR Exh.36, the alleged incident has taken place near Mahakali Pan Center, Kalol whereas the first informant in his deposition vide Exh.35 has stated that after some verbal exchanges, with the accused persons he and his friends had gone near Satyam Cinema, where the accused persons had come, armed with weapons, and started assaulting the first informant and the other witnesses. Thus, as per the FIR the alleged incident had taken place near Mahakali Pan Center whereas, as per the deposition of the first informant himself, the incident has taken place near Satyam Cinema. Vide Exh.45, the panchnama of the scene of occurrence is produced on record. As per the said panchnama also, the alleged incident has taken place near Satyam Cinema. Thus, there is a contradiction in the evidence of prosecution as regards the place of incident also. 10.3 In the FIR Exh.36, the first informant has stated that the accused Satish Ramgyansing Rajput had assaulted Shrinath @ Babu Vasudev Prajapati with sword, whereas, in the deposition, he has stated that the accused Satish had inflicted with dharia in the head of Shrinath @ Babu Vasudev Prajapati. 10.3.1 During the course of trail, the prosecution has tried to explain this discrepancy by contending that it must be a slip of pen while recording the FIR and in place of ‘dharia’ ‘sword’ must have been written. 10.3.2 However, upon perusal of the evidence adduced on record, it appears that vide Exh.38, a discovery panchnama has been produced on record. As per the said panchnama, accused Satish had discovered a sword used in the commission of the offence in question. Thus, it does not appear that a reference to the sword in the FIR was merely a slip of pen. 10.3.3 It is also pertinent to note that the other injured witnesses in their deposition before the learned Sessions Judge have stated that the said witness Shrinath was assaulted upon with dharia. 11. In view of the aforesaid contradictions in the evidence of the prosecution, in our view, the learned Sessions Judge cannot be said to have committed any error in acquitting the respondents herein of the charges levelled against them. 12. As per the settled legal position, when an order, acquitting the accused persons has been recorded, the scope of the appellate court for interfering with the findings of the Trial Court is very limited. Such findings can be interfered with only if the findings are perverse and practically impossible. 12. As per the settled legal position, when an order, acquitting the accused persons has been recorded, the scope of the appellate court for interfering with the findings of the Trial Court is very limited. Such findings can be interfered with only if the findings are perverse and practically impossible. This view of this Court find support from the following judgments of the Hon’ble Apex Court: (i) Harijan Megha Jesha vs. State of Gujarat, AIR 1979 SC 1566 (ii) Kora Ghasi vs. State of Orissa, AIR 1983 SC 360 12.1 Recently this Court in its judgment in Criminal Appeal No. 271 of 1999 in the case of State of Gujarat vs. Jakir @ Ayubbhai Umarbhai Makrani has also reiterated the same view. 13. In view of the aforesaid observations, the present Appeal, being devoid of any merit, is hereby dismissed. Bail bond stands cancelled.