Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 655 (GUJ)

STATE OF GUJARAT v. HARIBHAI RATNABHAI AALGOTAR

2023-04-21

A.Y.KOGJE, M.R.MENGDEY

body2023
JUDGMENT : A.Y. KOGJE, J. 1. The present appeal preferred by the appellant-State is against the judgment and order dated 31.08.1994 by the Additional Sessions Judge, Bhavnagar recording acquittal of 13 accused persons, who were charged for the offence under Section 302, 147, 148, 149, 323, 324 and 325 of the Indian Penal Code and Section 135 of the Bombay Police Act in Sessions Case No. 121 of 1993. 2. The State has preferred an appeal against all the 13 accused persons acquitted, however, by order dated 01.05.1996, this Court admitted the appeal only qua respondent nos. 1, 2. 5, 6 and 7, whereas remaining respondents-accused viz. accused no. 3, 4, 8, 9, 10, 11, 12 and 13, the appeal came to be dismissed. 3. It is reported that pending the appeal, the respondent nos. 5 and 7 have expired and therefore, qua these two accused i.e. accused no. 5-Panchabhai Jivabhai Aalgotar and accused no. 7-Natha Jivabhai Aalgotar, the appeal stands abated. Therefore, effectively, the present appeal is against the accused no. 1-Haribhai Ratnabhai Aalgotar, accused no. 2-Bhopabhai Ratnabhai Aalgotar and accused no. 6-Rajabhai Jivabhai Aalgotar. 4. It was the case of prosecution that on account of alleged illicit relationship between the Panchabhai (accused no. 5) and one Maniben, who was the relative of the original complainant-Sondabhai Jesingbhai, who had objected to such relationship, the assault was carried out and in the assault, it is alleged that all the accused persons were armed with weapons like axe, dhariya, pipes/sticks and in the assault, they caused injuries to the deceased-Sarabhai Jesingbhai, which resulted into death. 5. The respondents were accordingly charge-sheeted and tried for the aforesaid offences, however, by the impugned judgment and order, they were acquitted. 6. Learned APP has argued that it is a case of homicidal death where by examining the medical officers, the prosecution was able to establish the cause of death, attributable injuries sustained by the deceased during the assault and that the injuries caused to the deceased were possible by the weapons. 6. Learned APP has argued that it is a case of homicidal death where by examining the medical officers, the prosecution was able to establish the cause of death, attributable injuries sustained by the deceased during the assault and that the injuries caused to the deceased were possible by the weapons. 6.1 It is submitted that it is a case of eye-witnesses whose presence at the scene of offence cannot be doubted nor can their evidence given by the witnesses be doubted and from the version of these witnesses, the role attributed to each of the accused is coming out very clearly, and therefore, on the basis of such evidence, the Sessions Court ought to have convicted the accused. 6.2 Learned APP has placed reliance upon the evidence of those witnesses which according to the prosecution were present at the scene of offence and had also sustained injuries, and therefore, their evidence is required to be believed. She has relied upon the evidence of witness-Sondabhai Jesingbhai, who was examined at Exh.37 on behalf of prosecution. She has also relied upon the evidence of Bhalabhai Vihabhai, who was examined at Exh.47 on behalf of prosecution. She has drawn attention of this Court to the scientific evidence to submit that even the report of the F.S.L. supported the case of the prosecution inasmuch as the blood stains were found on the weapons, which were recovered during the course of investigation. 6.3 It is submitted that an error is committed by the Trial Court in relying upon the minor contradictions, as such contradictions would not affect the case of prosecution. 7. As against this, learned advocate for the respondent-saccused has submitted that the prosecution has in fact failed to make out the case and has even failed to establish accurately the place of incident. 7.1 It is submitted that the prosecution witnesses themselves have indicated two separate places where the incident has taken place. 7.2 It is submitted that the prosecution has failed to establish the motive, as in the charge framed, the motive is indicated about an alleged illicit relationship, whereas the deposition of witness Eye-witness Bhalabhai Vihabhai has given the motive about the previous altercation between Sarabhai Jesangbhai and Panchabhai Jivabhai. 7.2 It is submitted that the prosecution has failed to establish the motive, as in the charge framed, the motive is indicated about an alleged illicit relationship, whereas the deposition of witness Eye-witness Bhalabhai Vihabhai has given the motive about the previous altercation between Sarabhai Jesangbhai and Panchabhai Jivabhai. 7.3 It is submitted that the prosecution has not examined the real witnesses to the incident, whereas the witnesses, who have been examined have given contradictory version with regard to injuries. 7.4 It is submitted that the Sessions Court has correctly taken into consideration the evidence of the Medical Officer, who has opined that the fatal injury caused to the deceased was not possible by the weapons recovered during the investigation, and therefore, the weapons to which the respondents-accused are attributed are not connected with the offence. 8. Having considered the rival submissions made by learned advocates for the parties and having perused the documents on record, the incident took place on 25.04.1993 in night hours and the reason for such incident was an alleged illicit relationship of one of the accused with one Maniben, who was related to the informant. 9. The gist of the is that on 25.04.1993, Sarabhai Jesingbhai, brother of the complainant Sondhabhai Jesingbhai, left from his plot at Sinhor Village at about 8 p.m. and he was passing by a small temple of Hanumanji. At that time, all the accused persons, formed unlawful assembly and attacked the deceased Sarabhai Jesingbhai, with a common intention to kill him. At that time, accused persons Panchabhai Jivabhai, Haribhai Ratnabhai, Bhopabhai Ratnabhai and Vashrambhai Hirabhai were carrying axes and accused persons Nathabhai Jivabhai and Rajabhai Jivabhai were carrying scythes and the remaining accused persons were carrying sticks. All the accused persons, carrying such lethal weapons, caused riot and formed unlawful assembly with intention to kill Sarabhai Jesingbhai and all the accused persons were members of the unlawful assembly. The common intention of the aforesaid unlawful assembly was to kill the deceased Sarabhai Jesingbhai. In order to execute the aforesaid intention, Panchabhai Jivabhai and Haribhai Ratnabhai inflicted blows of axe on the head of the deceased Sarabhai. Nathabhai Jivabhai and Rajabhai Jivabhai inflicted blow of scythe on the head of the deceased Sarabhai. By doing so, the four accused persons caused injury on the head of the deceased Sarabhai and caused his death. In order to execute the aforesaid intention, Panchabhai Jivabhai and Haribhai Ratnabhai inflicted blows of axe on the head of the deceased Sarabhai. Nathabhai Jivabhai and Rajabhai Jivabhai inflicted blow of scythe on the head of the deceased Sarabhai. By doing so, the four accused persons caused injury on the head of the deceased Sarabhai and caused his death. The four accused persons were aware of the fact that there is full probability that upon inflicting injury by axe and scythe on the head of Sarabhai Jesingbhai, it will cause his death, yet the accused persons caused injury to the deceased Sarabhai Jesingbhai, intentionally. 10. The accused were charged for the offence under Sections 302, 143, 147, 148 and 149 of the Indian Penal Code against Panchabhai Jivabhai (Accused No. 5), Haribhai Ratnabhai (Accused No. 1), Bopabhai Ratnabhai (Accused No. 2), Vashrambhai Hirabhai (Accused No. 10), Nathabhai Jivabhai (Accused No. 7) and Rajabhai Jivabhai (Accused No. 6), whereas remaining accused were charged for the offences under Sections 302,143, 147, 148 and 149 of the Indian Penal Code. On account of the use of weapon like axe to Panchabhai and Sondhabhai were also charged for the offence under Sections 323 and 149 of the Indian Penal Code, whereas remaining were charged with Section 149 and 325 of the Indian Penal Code. 11. Exh.39 is the evidence of Dr. Ashok Parikh, who performed P.M. Mortem and has deposed that the deceased has received six different injuries and such injuries can be caused by sharp weapon. He has deposed that injury nos.1 to 3 could be caused by axes and dhariya. However, injury nos. 5 and 6 can be caused by inflicting knife blows. 12. It is pertinent to observe that in the cross-examination when the muddamal article weapons used in the offence were shown to the Doctor, he has deposed that the injuries cannot be caused by those weapons. A specific questions were put in cross-examination to this witness after showing him the muddamal articles which included axe and dhariya and he has deposed that the injuries caused to the deceased may or may not be possible by such weapon considering the bled of these weapons. A specific questions were put in cross-examination to this witness after showing him the muddamal articles which included axe and dhariya and he has deposed that the injuries caused to the deceased may or may not be possible by such weapon considering the bled of these weapons. In the opinion of the Court, though by this witness, the prosecution has successfully proved the death being homicidal, but his deposition damages the case of prosecution to the extent of use of weapons recovered and attributed to the accused could cause such injuries. 13. The complainant Sondhabhai was examined vide Exh.37 on behalf of prosecution and in so far as the place of incident is concerned, this witness has deposed that the incident took place near Hanuman deri where the accused had assaulted with axes and sticks. In the cross-examination, however, he deposed that the incident took place at Sankadi Sheri, which is a place away from the Hanuman deri and any incident that take place at Sankadi Sheri, cannot be viewed from Hanuman deri. This aspect is evident from the panchnama of scene of offence which has recorded the findings of stain of blood at a place of Sankadi Sheri. 14. Again eye-witness Bhalabhai Veerabhai, who was examined at Exh.47 on behalf of prosecution has deposed that the incident took place at Sankadi Sheri and there were 13 persons present. This witness has not actually attributed the weapons to the accused persons and the same does not match with the case of the prosecution. The statement of this witness was recorded both at Sinhor Police Station and Bhavnagar Police Station and the version given by this in deposition contradicts both the versions given in the statements before the police. It would be pertinent to observe that the deposition of this witness also creates a doubt about the presence of complainant Sondhabhai at the place of incident. 15. The Trial Court has found that the version of each of the eye witnesses are contradictory with regard to the place of incident. The Court has also found that the presence of Sondhabhai is doubtful, as the report of the Doctor does not indicate any injury on Sondhabhai, whereas Sondhabhai has deposed about he also being beaten, and therefore, there was an exaggeration in the version of this witness. The Court has also found that the presence of Sondhabhai is doubtful, as the report of the Doctor does not indicate any injury on Sondhabhai, whereas Sondhabhai has deposed about he also being beaten, and therefore, there was an exaggeration in the version of this witness. The Court having found this witness not completely reliable has therefore, correctly not considered his evidence. The Court has also taken into consideration that the out of the 6 injuries, 3 injuries were such which could not have been inflicted by the weapons which were recovered. 16. The Court has also observed that the complainant himself had a bad track record in previous cases. It has also observed that though the witnesses have referred to assault by the stick, no injuries were shown to be sustained by stick. The Court finds that the manner and method in which the incident took place, other witnesses were examined by the Investigating Officer, but the same were not been examined in the trial. 17. The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad vs. State of Bihar and Another, (2022) 3 SCC 471 , wherein the Apex Court has examined the case law with regard to the power of the High Court to overturned the decision of the Sessions Court where an another view is possible. Examining the case including that of Chandrappa and Others vs. State of Karnataka, (2007) 4 SCC 415 , the Apex Court has culled out the general principles regarding the powers of the Appellate Court while dealing with the appeal against the order of acquittal. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence, and thereafter, upon securing of acquittal, the presumption is further reinforced, reaffirmed and strengthened, and therefore, whenever there are two reasonable conclusions are possible on the basis of the evidence on record, ordinarily, the Apex Court would not disturb the findings of acquittal recorded by the Trial court. 18. 18. Considering the overall evidence of prosecution and the reasons assigned by the Sessions Court in rejecting such evidence, the Court does not find any reason to interfere with the impugned judgment and order. 19. In the result, the appeal fails and is dismissed. The judgment and order dated 31.08.1994 passed in Sessions Case No. 121 of 1993 by the Additional Sessions Judge, Bhavnagar stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R&P be sent back to the concerned Trial Court, forthwith.