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2025 DIGILAW 328 (GUJ)

State of Gujarat v. Hemubha Bhikhubha Gohil

2025-03-27

A.S.SUPEHIA, NISHA M.THAKORE

body2025
JUDGMENT : A.S. SUPEHIA, J. The accused Nos.1, 4, 9 and 10 have passed away, their death certificates are ordered to be taken on record. The present appeal stands abated qua the deceased accused. 1. The present appeal is filed challenging the acquittal order dated 23.07.1997 passed in Sessions Case No.33 of 1993 by Additional Sessions Judge, Bhavnagar for the offences punishable under Sections 144 , 147, 148, 447 , 302 and 201 read with Section 149 of the Indian Penal Code, 1860 ( IPC ) and under Section 135 of the Bombay Police Act (B.P. Act). 2. It is the case of the prosecution as per the Charge at Exh.4-A that all the accused had assaulted the deceased - Bhojubha Temubha Gohil on 29.08.1992 by inflicting injuries by sticks and axe on various parts of his body and thereafter, he was tied to the cot and they burnt his body. The entire case of the prosecution hinges on three witnesses i.e. (i) PW-5, Bharatsinh Temubha Gohil, at Exh.39, who is the brother of the deceased, (ii) PW-6, Ladhubha Mohobbatsinh, at Exh.40, who is the uncle of the deceased, and PW-7, Ghanshyamsinh Temubha Gohel, at Exh.42, who is the brother of the deceased. 3. In pursuance to the above allegation of the first informant, the F.I.R. was lodged with the Ghogha Police Station, Bhanvagar for the offences punishable under Sections 302 , 147, 148, 447 , 201 read with 34 of the IPC and Section 135 of the B.P.Act, vide CR No.I-82 of 1992 dated 29.08.1992. The Investigating Agency, during the course of investigation, has recorded statements of the witnesses, medical officer and have drawn various panchnamas for the purpose of proving the offence. After having found sufficient material against the respondents-accused, charge-sheet came to be filed. 4. Upon committal of the case to the Sessions Court, Jamnagar, the learned Sessions Judge framed the charges vide Exh.4-A against the accused. The accused pleaded not guilty and claimed to be tried. They were tried for the said offences and in order to bring home charge, the prosecution has examined 10 prosecution witnesses and also produced various documentary evidence before the Trial Court. 5. Learned APP Mr.Soni has submitted that the Trial Court fell in error in appreciating the oral as well as documentary evidence. They were tried for the said offences and in order to bring home charge, the prosecution has examined 10 prosecution witnesses and also produced various documentary evidence before the Trial Court. 5. Learned APP Mr.Soni has submitted that the Trial Court fell in error in appreciating the oral as well as documentary evidence. It is submitted that there is pristine ocular evidence of forming an unlawful assembly with intention to commit murder of the deceased. He has submitted that the accused are directly implicated in the heinous act of setting the deceased on fire, while he was asleep in the field, resulting in 3rd degree injuries to the deceased and those injuries have been supported by the medical examination and to discard such evidence, no cogent reasons have been assigned by the Trial Court and the accused ought to have been convicted for the offences. It is also submitted that personal grievance was the primary motive behind the crime and the Trial Court ought to have considered the key reason for the murder, which stems-out from the death of a relative or gang member of the deceased. He has submitted that a cycle of violence was initiated by the accused and their family or gang members, when they killed the deceased’s father and hence, in retaliation, the deceased killed one of the respondents’ family or gang members, which ultimately led all the respondents to kill the deceased. 6. Learned APP has submitted that the Trial Court has primarily acquitted the accused on the ground that the evidences of the other interested witnesses and panchas are not trustworthy and hence, they were declared hostile. He has submitted that the submissions of the eye-witnesses, who have identified the accused in their deposition, cannot be believed beyond reasonable doubt. It is submitted that even the medical officer is not supporting the case of prosecution so far as the injuries of the eye-witnesses are concerned. 7. Learned APP has further submitted that the findings of acquittal are contrary to law and evidence on record and the findings recorded are erroneous and based on irrelevant material. It is further contended that the Trial Court has committed an error in acquitting the accused and appreciating the evidence produced on record, though the prosecution had proved the case against the accused. It is further contended that the Trial Court has committed an error in acquitting the accused and appreciating the evidence produced on record, though the prosecution had proved the case against the accused. It is further contended that the Trial Court has given weightage to the minor omission and contradiction in the witnesses, though there was no any material omission and contradiction in the evidence of the witnesses. It is further submitted that the prosecution has established the guilt of all the accused. Thus, it is urged that since the Trial Court has wrongly recorded the order of acquittal, the same deserves to be quashed and the respondents may be convicted for the offences, for which they were charged. 8. Opposing the aforesaid submissions, learned advocate Mr.Devnani has submitted that the acquittal recorded by the Trial Court may not be disturbed. He has referred to the deposition of PW-5, Bharatsinh Temubha Gohil, who is the brother of the deceased, PW-6, Ladhubha Mohobbatsinh, who is the uncle of the deceased and PW-7, Ghanshyamsinh Temubha Gohel, who is the brother of the deceased. It is submitted that all these three witnesses are the interested witnesses. While referring to their depositions, it is submitted that it is their case that on 29.08.1992 at around 3 p.m., all of them had visited the millet farm and while they were working in the farm, the deceased went to a place to take some rest and fell asleep in his cot under the tree, which was at the distance of 900 feet approximately and at that time, they heard some noise and saw some smoke coming out from some distance and accordingly, all the witnesses ran to the location of the alleged offence, where they found that the deceased was set ablaze on the cot and the accused Nos.1 to 10 were standing surrounding the cot carrying deadly weapons like axes and sticks in their hands and on seeing the witnesses, all of them ran away in different directions. It is submitted that the F.I.R. was registered after delay of 4 hrs. and 45 minutes and no explanation has been tendered for such delay. In support of his submissions, he has placed reliance on the judgement of the Apex Court in the case of Nand Lal vs. State of Chhattisgarh , 2023 (10) S.C.C. 470 . 9. It is submitted that the F.I.R. was registered after delay of 4 hrs. and 45 minutes and no explanation has been tendered for such delay. In support of his submissions, he has placed reliance on the judgement of the Apex Court in the case of Nand Lal vs. State of Chhattisgarh , 2023 (10) S.C.C. 470 . 9. Learned advocate Mr.Devnani has submitted that none of the witnesses have actually seen the incident and even as per their deposition, they have arrived at the place, when the incident had already occurred and the accused had ran away. It is submitted that it is highly improbable that the witnesses ran away towards the spot of offence upon hearing some noise and seeing smoke coming out from the trees however, they did not hear any scream from the deceased, when he was actually assaulted by the accused with deadly weapons. It is submitted that time gap between the first blow of injury till final burning of the body remains absolutely unexplained and create serious doubt on the story of the prosecution. 10. Learned advocate Mr.Devnani has also pointed out the Panchnamas at Exh.27, 28 and 34 and has submitted that none of the panchas have supported the case of the prosecution. It is submitted that Panch Witness-3, Jamalbhai Alibhai, who has been projected as pancha of recovery of the weapons, in his deposition has testified that he was called upon at the Police Station and he was shown axes and wooden sticks lying on the table and weapons did not contain any blood stains. He has submitted that few clothes were also shown having oil and blood stains and thereafter, he was asked to put his signature verifying the same. Thus, it is submitted that such panchnama cannot be relied upon. 11. While referring to 11th accused namely, Jeelubha Bhikhubha, it is submitted that the Investigating Officer in his investigation has found that on the date of incident, he was on his duty serving as a Guard Commandant at the Mounted Police Guard, Bhavnagar and his name was not recorded in the charge-sheet. Thus, it is submitted that the complainant has tried to falsely implicate the accused in the offence due to old rivalry amongst them. Thus, it is submitted that the complainant has tried to falsely implicate the accused in the offence due to old rivalry amongst them. He has submitted that father of the deceased was murdered in the year 1982 and amongst such accused, who were arraigned for such murder, one of them is Jamsing Hemantsinh (Hemubha) Gohil, who was later on acquitted from the offence and in order to take revenge, the deceased - Bhojubha Temubha Gohil killed Jamsing Hemantsinh (Hemubha) Gohil in December, 1991 and hence, the F.I.R. was registered on 25.11.1991, and after 5 months of such incident, the deceased was released on bail and he came to his village to meet his brother and other family members and on the same day i.e. on 29.08.1992, he was murdered. 12. While referring to the testimony of the Doctor i.e. PW-1, Dr.Bhanuben Shah, at Exh.21, learned advocate Mr.Devnani has submitted that her testimony reveals that the body, which was found in charred to ashes condition and the body was of someone else, whose death was caused in some motor vehicle accident and burnt after death and wrongly identified as that of deceased - Bhojubha Temubha Gohil by the interested witness. It is submitted that the time of death is not mentioned in the Post Mortem (PM) Report and face was having 3rd degree burns and it was not in a condition that the identity can be revealed. It is submitted that no identification marks could be mentioned in the PM Report and the body did not contain any smell of kerosene, diesel or petrol, which could have been used for burning purpose. 13. It is further submitted by learned advocate Mr.Devnani that no injury marks were found anywhere in the body and it is impossible if 10 accused had thrashed the deceased to death using weapons like axes and sticks. Panch Witness-2, Gajubha Pratapsinh, who is examined at Exh.26, has turned hostile. He was the person, who had identified the body of the deceased. While referring to the deposition of the complainant- PW-5, he has submitted that as per his testimony, all the witnesses had poured water on ablaze body of the deceased, which contradicts the PM Report as charring of the body technically consumes 2 to 3 hours of burning. 14. He was the person, who had identified the body of the deceased. While referring to the deposition of the complainant- PW-5, he has submitted that as per his testimony, all the witnesses had poured water on ablaze body of the deceased, which contradicts the PM Report as charring of the body technically consumes 2 to 3 hours of burning. 14. Finally, while placing reliance on the judgement of the Supreme Court in the case of Ramanand alias Nandlal Bharti vs. State of Uttar Pradesh , AIR 2022 S.C. 5273 , it is submitted that the acquittal may not be interfered with. 15. We have scaled the evidence, which is established on record. We have also perused the findings recorded by the Trial Court acquitting the accused. 16. The case of the prosecution is premised on the circumstantial evidence, as none of three witnesses have actually seen the accused assaulting the deceased. 11 accused were named by the complainant - PW-5 in committing the offence. One of them was Jeelubha Bhikhubha. The Investigating Officer has found that on the day of the alleged incident i.e. on 29.08.1992, he was on his duty serving as a Guard Commandant at Mounted Police Guard, Bhavnagar and hence, his name was not recorded in the charge-sheet. Thus, this fact alone casts doubt on the version of the complainant. 17. It is the case of the prosecution, as mentioned hereinabove, that all the accused had assaulted the deceased - Bhojubha Temubha Gohil with deadly weapons like axes and sticks. The facts suggest that there was family rivalry between the complainant and the accused. The genesis lies in the dispute which had taken place, when one Darbar of village allegedly murdered Temubhai Mohabbatbhai, who is father of the deceased in the year 1982 i.e. on 24.11.1982, which resulted into F.I.R. No.101 of 1982 and the accused were acquitted in that case. 9 (nine) months prior to the present incident, the deceased -Bhojubha Temubha Gohil has allegedly killed one of the accused of the earlier case i.e. Jamsinh Hemantsinh in November, 1991. 9 (nine) months prior to the present incident, the deceased -Bhojubha Temubha Gohil has allegedly killed one of the accused of the earlier case i.e. Jamsinh Hemantsinh in November, 1991. Deceased - Bhojubha Temubha Gohil was arrested but later on, he was released on bail and on 29.08.1992, when he visited the village to meet his brother i.e. the complainant at around 3 p.m., the complainant was resting in his field, they suddenly heard loud noise and saw smoke at the distance and upon approaching the place of incident, they saw that the accused, armed with deadly weapons, had surrounded the cot and he was set on fire and when all 3 witnesses rushed there and tried to extinguish the fire by pouring water, all the accused fled away. 18. The Trial Court, after examining the oral as well as documentary evidence, acquitted the accused for the offence. The star witnesses projected by the prosecution are PW-5, Bharatsinh Temubha Gohil, who is the brother of the deceased, PW-6, Ladhubha Mohobbatsinh, who is the uncle of the deceased and PW-7, Ghanshyamsinh Temubha Gohel, who is also the brother of the deceased. The Trial Court has not found them as reliable witnesses. None of the witnesses have actually seen the assault on the deceased. The identification of the dead body of Bhojubha Temubha Gohil does not inspire confidence. Only PW-5, Bharatsinh Temubha Gohil has identified the body of the deceased however, in his cross-examination, he has admitted that he did not give any reason how he was able to identify the body of the deceased. The PM Report also does not mention any physical marks which would in fact, prove that the dead body was of the deceased - Bhojubha Temubha Gohil. Independent incident, as referred by all 3 witnesses, also is doubtful. It is their case that when all 3 witnesses along with the deceased were present at millet farm, which was having crops of 6 to 7 feet, they heard some noise and saw some smoke coming from the trees, wherein the deceased was taking rest on his cot, and they rushed to the place of incident and saw that the deceased was already burnt by the accused and accordingly when they rushed, all the accused persons ran away without confronting them. PW-7, Ghanshyamsinh Temubha Gohel had admitted that he did not hear any scream and has not seen smoke of fire. He has also admitted that they had reached the farm on tractor along with other 2 witnesses and the tractor was driven by their own driver. The tractor driver was the only independent witness who could have confirmed the presence of the deceased and supported the story of the prosecution however, he has not been examined by the prosecution as witness. Thus, no independent witness or eye-witness has been examined to support the case of the prosecution. 19. The prosecution is unable to explain as to why there was not a single person in the entire village who could have seen 11 accused arriving in the village armed with deadly weapons. The version of the incident, as narrated by the witnesses, does not establish them as reliable whiteness. Curiously, they have deposed that all the accused had surrounded the cot of the deceased, while his body was burning and on their arrival at the spot, they fled away. It is not palatable that all 11 accused, who were armed with deadly weapons, simply ran away and not a single person from the unlawful assembly has either attacked or confronted three witnesses. The witnesses have admitted that it was an monsoon season and in the surrounding agricultural farms of place of incident there was millet grown which was around 6 to 7 feet height. Thus, the manner in which the incident is narrated by these witnesses does not inspire confidence. 20. Panch Witness-3, Jamalbhai Alibhai, who is examined at Exh.33, on which the prosecution has placed reliance for the discovery of the axes and wooden sticks, in fact has testified that he was called upon to the Police Station and he was shown the weapons, which were lying on table and the weapons did not contain any stains. Thus, recovery and discovery of the weapons itself is doubtful and the same is not proved by any evidence. 21. The Trial Court has categorically recorded, while examining the evidence of the Doctor i.e. PW-1 at Exh.21. It is deposed by her that the deceased was having last degree burns in which except the bones, the skin, fats, muscles all gets burnt. 21. The Trial Court has categorically recorded, while examining the evidence of the Doctor i.e. PW-1 at Exh.21. It is deposed by her that the deceased was having last degree burns in which except the bones, the skin, fats, muscles all gets burnt. She has admitted that the face of the deceased was unrecognizable as it was entirely burnt, and except the feet sole, the entire body was burnt. In her cross-examination, she has admitted that the charring of the body can occur within 2 to 3 hours. Thus, the medical evidence does not reconcile with the oral evidence of the witnesses, who have specifically stated that they had poured water on the body of the deceased, while he was burning. This witness has also admitted that no histological test has been conducted which would prove which could have confirmed the injuries were before burning or thereafter. She has admitted that no smell of inflammatory fuel like petrol, diesel or kerosene was emanating from the dead body. There are loop holes in the time lag between hearing of the cries, rushing to the scene of offence immediately, pouring of water and running away of the accused. The Trial Court has recorded that looking to the evidence of the Doctor, PW-1 relating to charring condition of the dead body, it cannot be said that all 3 witnesses have in fact poured water on the deceased. 22. The Supreme Court in the case of Ramanand alias Nandlal Bharti (supra), premised on the circumstantial evidence and has held thus: “116. Thus, none of the pieces of evidence relied on as incriminating by the courts below, can be treated as incriminating pieces of circumstantial evidence against the accused. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. In Shankarlal Gyarasilal (supra), this Court cautioned - " human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions ". This Court has held time and again that between 'may be true' and 'must be true' there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict. [See Ashish Batham v. State of M.P. , (2002) 7 SCC 31 ].” 23. Thus, the Apex court has held that the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was alleged to have been committed. In the present case, the oral evidence of three witnesses who have also admitted the long drawn family rivalry between the accused and them; the narration of the incident by them is also doubtful. Though an independent witness was available, he was not arraigned and examined. 24. Hence, on an overall appreciation of the evidence on record, we do not find any perversity or illegality in the judgement and order passed by the Trial Court acquitting the accused from the offence, for which they were charged. It is settled legal precedent that the acquittal recorded by the Trial Court does not require interference, unless the findings recorded by the Trial Court in appreciating the evidence are perverse and illegal. 25. The present appeal fails. The same is hereby dismissed. 26. Registry shall return the record and proceedings to the trial court.