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2025 DIGILAW 213 (GUJ)

State of Gujarat v. Batukbhai Mohanbhai Koli

2025-03-05

A.S.SUPEHIA, NISHA M.THAKORE

body2025
JUDGMENT : A.S. SUPEHIA, J. 1. Learned Additional Public Prosecutor Ms. Patel has tendered the report of the Police Inspector, “B” Division Police Station, Rajkot City, wherein, the death certificate of the accused no.4 - Raghubhai Dayabhai Rathod is produced. She has submitted that he passed away on 02.08.1997. The said report along with the death certificate are ordered to be taken on record. Hence, the present appeal stands abated so far as accused no.4 is concerned. 2. Present appeal emanates from the impugned judgment and order dated 19.06.1997 passed by the learned Additional Sessions Judge, Rajkot in Sessions Case No.59 of 1994 acquitting the accused from the offences punishable under Sections 452, 302, 504, 34 and 37(1) of the Indian Penal Code, 1860 (“IPC” for short) and Section 135 of the Bombay Police Act, 1951. 3. The case of the prosecution as per the charge at Exh.6 is that on 3.2.1994 at 1.30 in the afternoon all the accused came to the deceased house, broke the door and inflicted blows of knife, pipe as well as stone on his head, side flank / lumber and on his legs, in his house and also outside the house, which resulted into his death. A complaint was registered by the deceased - Anubhai Lakhmanbhai Koli on 3.2.1994 at Exh.76. In the complaint, the deceased has mentioned names of four accused and also other persons. The trial Court, after examining the oral as well as documentary evidence, has acquitted the accused for the offences for which, they were charged, which has resulted into the present appeal. 4. Learned Additional Public Prosecutor has submitted that the case of the prosecution hinges on the dying declaration two in numbers. She has submitted that the evidence, which has been established by the prosecution, is not appreciated by the trial Court in its true perspective and hence, the acquittal is required to be reversed. While referring to the first dying declaration, which is recorded in the form of entry at Exh.37 in the police station, she has submitted that the deceased had given names of six accused, including the present four, who had assaulted the deceased by knife and stone. Further reference has been made to the contents of the FIR by the learned Additional Public Prosecutor at Exh.76. Further reference has been made to the contents of the FIR by the learned Additional Public Prosecutor at Exh.76. She has submitted that in the said complaint the deceased has referred to the names of four accused and specific role in assaulting him. Further reference is made by her on the dying declaration recorded by the Executive Magistrate at Exh.41 and has submitted that in the said dying declaration also the deceased has referred to the role of the present accused who had brutally assaulted the deceased. Learned Additional Public Prosecutor has also referred to the testimony of the Medical Officer – PW 13 at Exh.42 and has submitted that his evidence reveals that when the dying declaration at Exh.41 was recorded by the Executive Magistrate, the deceased was conscious. She also refers to the postmortem report and the injuries suffered by the deceased and has submitted that the injuries, which are inflicted on the deceased and as mentioned in the postmortem report, reconciliation the role played by the accused as referred in the dying declaration. Learned Additional Public Prosecutor has also referred to the FIR registered by Nabuben W/o Dhirubhai at Exh.59, which shows that there was prior enmity between the deceased and the accused. Thus, she has submitted that there is ample evidence to prove the complexity of the present accused in the offence and hence, the acquittal may be reversed. 5. We have examined the evidence and also the findings recorded by the trial Court, as mentioned herein above. As per the charge at Exh.6, the incident has occurred on 3.2.1994 at 1.30 in the afternoon. The reason assigned in the said charge for the incident is the relationship of accused nos.1 and 3 with some lady Nabuben (PW 9), which resulted into altercation. The charge also mentioned that on the said day all the four accused assaulted the deceased at his home by breaking the door and forcibly entering the same. It mentions that the accused had inflicted blows of knife, pipe as well as with stone in his house and outside the house. It is mentioned that the injuries are inflicted on his head at the abdomen and his leg. Ultimately, during the treatment, the deceased succumbed to his injuries. The entire case of the prosecution hinges on two dying declarations. The incident has been recorded in the station diary at Exh.27. It is mentioned that the injuries are inflicted on his head at the abdomen and his leg. Ultimately, during the treatment, the deceased succumbed to his injuries. The entire case of the prosecution hinges on two dying declarations. The incident has been recorded in the station diary at Exh.27. The station diary entry at Exh.27 mentions names of six accused. The name of two accused i.e. Ratabhai Dayabhai and Somabhai Dayabhai do not refer in the charge-sheet. The station diary also refers that the accused was inflicted blows with knife and stone and thereafter he was taken to the hospital and was admitted in ward no.1. The station diary refers that information was given by one Osaman Alibhai Sandhi, however he has not been examined as witness. 6. The First dying declaration is in the form of complaint at Exh.76 dated 3.2.1994, which has been given by the deceased. In the said complaint dated 3.2.1994, the deceased has stated that the incident happened in the afternoon at 1.30 when he along with his mother -Maniben and Nabuben were present at his home and at that time Batukbhai Mohan (accused no.1), Kishorbhai Dahyabhai (accused no.2) Bhagabhai Mohan (accused no.3) and Raghubhai (accused no.4) came at his house and forced their entry by breaking the door and thereafter they abused him and Nabuben (PW 9). It is further alleged by him that at that time these accused took him outside his house and at that instance Soma Mohan and Rata Daya had come on the scooter and had taken away Nabuben and these accused started assaulted him and he ran towards the river where the accused -Kishor, who was armed with knife, gave a blow on his left abdomen and arm-bit, whereas, the second blow was administered on his side flank/lumber where the accused -Batukbhai Mohan, who was also armed with the knife inflicted a blow on his head and accused – Raghubhai Dahya was armed with the pipe, inflicted blow on his right kneecap, and the accused Bhagabhai inflicted a blow of stone on his right foot. Thereafter, it is mentioned that listening to his cries, his neighbours Osmanbhai and Mohmadbhai Valimohmad and others persons had gathered and thereafter, he was taken to a Rickshaw to the dispensary and while on the way they met with an Ambulance and accordingly, he was taken to the Government Hospital. 7. Thereafter, it is mentioned that listening to his cries, his neighbours Osmanbhai and Mohmadbhai Valimohmad and others persons had gathered and thereafter, he was taken to a Rickshaw to the dispensary and while on the way they met with an Ambulance and accordingly, he was taken to the Government Hospital. 7. The second dying declaration, on which the prosecution is heavily placed reliance, is at Exh.41, which is recorded by the Executive Magistrate. The contents of Exh.41, which read thus: “I was sleeping in my residential house located in Jangleshwar at 12.30 hours in the afternoon. Batuk Mohan, Soma Mohan, Bhaga Mohan, Kishor Daya, Rata Daya, Raghu Dayay, Babu Mohan, Prabhaben and other eight ladies residing in Chunarawad, broke open the door while was sleeping and dragged me to Aaji River. I was assaulted over there with knife and pipe – knife blow was given on head. Kishor Daya and Batuk Mohan broke my legs by inflicting stone blows. Thereafter, people of surrounding area gathered and rescued me. Ambulance of hospital was called and (illegible)bhai, my mother, Hajiben and other unknown persons admitted me in a government hospital. I was in conscious state when I was admitted in the hospital.” 8. A combined reading of all the aforesaid evidence i.e. station diary at Exh.27 and complaint at Exh.76 and dying declaration recorded by the Executive Magistrate at Exh.41 reveals that there is major inconsistency in describing the role names and number of the accused. 9. We may at this stage refer to the evidence of Medical Officer, who has treated the deceased. The PW 13 – Navalkumar Devshankar Shilu at Exh.42 has submitted that the dying declaration was recorded after he had certified that the deceased was conscious. The Doctor said that when the dying declaration was recorded the deceased was conscious and thereafter also. She has referred to the injuries recorded in the postmortem report and the cause of death. The cause of death recorded in the postmortem report by the Medical Officer is “shock on account of intra abdominal hemorrhage due to injury to meseateric vessels & injury to vera Cava.” Thus, even if the dying declaration recorded by the Executive Magistrate at Exh.41 is believed, the injury which is inflicted by the accused no.2 by knife is on the head, whereas, accused no.1 has inflicted the injury on his foot by stone. The postmortem report reveals that the deceased had suffered 17 injuries. 10. Thus, even if the version before the Executive Magistrate, which has been narrated by the deceased, is taken as it is, he has only named two accused no.2 -Kishorabhai and accused no.1 (Batukbhai Mohanbhai) who had inflicted the blows by stone on his legs and foot. The said dyeing declaration is also singed by the deceased himself. 11. We have also noticed that none of the eyewitnesses including the mother, who has examined as PW 2 Maniben, sister in law – PW 3- Savitaben Tigubhai and PW 9 Nabuben Dayabhai, who were present at the scene of incident, have not supported the case of the prosecution and have been declared hostile. Thus, the role attributed to the present accused in the dying declaration and the manner of assault is inconsistent. It is settled legal position of law that conviction can be premised on the basis of the dying declaration even they are multiple in numbers and no further corporation is required, if the dying declaration inspires confidence. However, in the present case, as mentioned herein above, the prosecution has been negligent in framing the charge against the accused, number of accused right from the station diary varies in the station diary at Exh.27, six accused are named, who have inflicted the blows by knife and others. The person, who has named in the station diary - Osaman Alibhai, is not examined as a witness. Thereafter, in the FIR, the deceased had named four accused and the roles described by him also is inconsistent to the dying declaration. In the dying declaration at Exh.41, he has named 8 accused and other 8 ladies, who have been inflicted the injuries by knife and pipe, and a specific role is only attributed to the accused no.2 and accused no.1, who has inflicted the blows with stone. Hence, the prosecution has failed to establish the offence beyond the reasonable doubt. We do not find any perversity or illegality committed by the trial Court to such an extent, which calls for reversal of the acquittal of the accused. Hence, the present appeal fails and same stands dismissed. 12. Registry is directed to send back the Record and Proceedings of the case to the concerned court forthwith.