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2025 DIGILAW 491 (GUJ)

State of Gujarat v. Govindbhai Zinabhai Rathod

2025-06-18

CHEEKATI MANAVENDRANATH ROY, D.M.VYAS

body2025
JUDGMENT : CHEEKATI MANAVENDRANATH ROY, J. 1. Challenge in this appeal is to the judgment dated 28/09/2012 passed in Sessions Case No.31 of 2011 on the file of the learned 6 th (Adhoc) Additional Sessions Judge, Surat whereby the sole accused in the said case was acquitted of the charge under Section 302 of the INDIAN PENAL CODE . 2. Prefatory facts of the prosecution may briefly be stated as follows: 2.1. On 18/09/2010, at about 9:15 a.m. in the morning when the deceased Vijaybhai Punabhai Rathod (hereinafter referred to as ‘the deceased’) was taking his breakfast along with his parents, PW-7 and PW-17 and sister, PW-8, in their house, a small girl aged about nine years, who is examined as PW-9, came to their house and informed the deceased that the accused is calling him. The deceased has accordingly left the house, and went to the house of the accused, which is also situate in the same street at a distance of 150 feet from the house of the deceased. It is stated that the accused questioned the deceased relating to recovery of a sum of Rs.20/- which was borrowed by the deceased from the accused and that in the said process that there was a quarrel between both of them. When parents of the deceased and sister heard shouts that they all went to the house of the accused and they noticed the accused catching hold of the neck of the deceased and quarreling with him. So they interfered and separated them and tried to pacify them. Thereafter, PW-7, PW-8 and PW-17 and the deceased came back to their house and they went away to attend to their daily labour work. It is stated that the deceased came to the house for lunch in the afternoon of that day and his sister, PW-8, served lunch to him and he could not take lunch stating that he is not feeling well and he slept on a cot. In the evening, when his parents, PW-7 and PW-17 came back to their house, after attending to their labour work, they noticed the deceased lying on the bed in an unconscious state. So, his parents along with their relative, PW-14 took him to the hospital where he was declared dead. In the evening, when his parents, PW-7 and PW-17 came back to their house, after attending to their labour work, they noticed the deceased lying on the bed in an unconscious state. So, his parents along with their relative, PW-14 took him to the hospital where he was declared dead. Autopsy was held over his body and the doctor who conducted autopsy opined that he died due to asphyxia because of throttling of the neck. 2.2. PW-17, who is father of the deceased, lodged a report with the police. A case under Section 302 of the INDIAN PENAL CODE was registered against the accused and it was investigated. After competition of the investigation, charge sheet was filed for the offence punishable under Section 302 of the INDIAN PENAL CODE against the accused. 3. As the offence punishable under Section 302 of the INDIAN PENAL CODE was exclusively triable by the court of sessions, the committal court has committed the said case to the concerned sessions division and thereafter it was made over to the learned 6 th (Adhoc) Additional Sessions Judge, Surat for trial. 4. The trial court has framed a charge for the offence punishable under Section 302 of the INDIAN PENAL CODE against the accused. He denied the said charge and claimed to be tried. 5. The trial took place and at the culmination of the trial, eventually, the accused was found not guilty for the offence punishable under Section 302 of the INDIAN PENAL CODE and he was acquitted of the said charge by the trial court. 6. Aggrieved thereby, the State has preferred the present appeal assailing the legality and validity of the impugned judgment of acquittal. 7. As can be seen from the prosecution version, the genesis of the offence appears to be a dispute arose with regard to recovery of Rs.20/- said to have been borrowed by the deceased from the accused and that to demand the deceased to repay the said amount of Rs.20/- that the accused has sent PW-9, who is a girl of nine years to call the deceased to his house and that after receiving a call from PW-9 that the deceased went to the house of the accused where the quarrel took place and the accused squeezed the neck of the deceased which resulted into his death. 8. 8. However, PW-9, who is the girl who allegedly visited the house of the deceased to call him at the instance of the accused, denied that the accused has sent her to call the deceased and that she went to his house and called him and that thereafter the deceased went to the house of the accused. Therefore, the very fact that the accused called the deceased through PW-9 and that thereafter he went to the house of the accused where the alleged quarrel took place is not believable and said fact is not proved and established by the prosecution, as PW-9 did not support the said version of the prosecution. Surprisingly, even though PW-9 did not support the said version of the prosecution, she was not cross-examined by the learned Additional Public Prosecutor after seeking permission from the trial court and she was not even declared as hostile witness. Therefore, the failure on part of the prosecution to establish the said important material fact that the deceased was summoned by the accused through PW-9 cuts the case of the prosecution at its very roots. 9. Although the prosecution has cited four independent witnesses, who are all inmates of the said street and neighbours of the accused examined as PW-10 to PW-13, none of the said independent witnesses, who are said to be the eye witnesses to the occurrence, which allegedly took place in the broad day light at about 9:15 a.m. in the morning, supported the prosecution case. They did not depose that the deceased came to the house of the accused and that there was a quarrel between both of them and that they have seen the accused catching the neck of the deceased or squeezing his neck. Therefore, the evidence of PW-10 to PW-13 is of no use to the prosecution to establish its case. 10. There remains the evidence of PW-7, PW-8 and PW-17. PW-7 is the mother of the deceased, PW-17 is the father of the deceased and PW-8 is the sister of the deceased. They stated that after hearing shouts from the street that they immediately went to the house of the accused and, at that time, they have seen the accused quarreling with the deceased. PW-7 and PW-17 further stated that they have seen the accused catching the neck of the deceased. They stated that after hearing shouts from the street that they immediately went to the house of the accused and, at that time, they have seen the accused quarreling with the deceased. PW-7 and PW-17 further stated that they have seen the accused catching the neck of the deceased. But their testimony given to that effect is completely discredited from the evidence elicited by the accused in their cross examination. According to the version of PW-7, PW-8 and PW- 17, all of them together went to the house of the accused after hearing shouts. So, when all three of them went together to the house of the accused, all of them must be in a position to see the accused catching the neck of the deceased. But, PW- 8, who is the sister of the deceased, did not say in her evidence that she has seen the accused catching the neck of the deceased. She only stated that she has seen both of them quarreling with each other. 11. So the evidence of PW-8 is not useful to the prosecution case to prove the fact that the accused caught the neck of the deceased or squeezed his neck. Although PW-7 and PW-17 who are the parents of the deceased stated in their examination in chief that they have seen the accused catching the neck of the deceased, when they reached his house at 9:15 a.m., their testimony given to that effect is found to be not believable from the evidence elicited in their cross- examination. It is stated by both of them i.e. PW-7 and PW-17 that they are labourers by profession and usually they leave the house at 7:00 a.m. in the morning to attend to their labour work and on the date of the offence also that they left the house at the usual time. Therefore, this evidence establishes that they left the house even on 18/09/2010 when the alleged offence took place at the usual time i.e. 7:00 a.m. in the morning. When that be the case, their evidence given in the examination-in-chief that after hearing shouts at 9:15 a.m. that they reached the house of the accused and have seen the accused catching the neck of the deceased is not believable. Therefore, their evidence is not reliable and the same is liable to be discarded. 12. When that be the case, their evidence given in the examination-in-chief that after hearing shouts at 9:15 a.m. that they reached the house of the accused and have seen the accused catching the neck of the deceased is not believable. Therefore, their evidence is not reliable and the same is liable to be discarded. 12. When the evidence of PW-7 and PW-17 is discarded as not believable and when independent eye witnesses did not support the prosecution case, it is to be held that the prosecution has miserably failed to prove the guilt of the accused for the offence punishable under Section 302 of the INDIAN PENAL CODE . Although the medical evidence on record, as can be seen from the testimony of the doctor, who is examined as PW-15, and the postmortem report proves that the accused died due to asphyxia on account of throttling, the prosecution failed to prove that it is the accused who has subjected the deceased to manual strangulation and that he is responsible for his homicidal death. So the case of the prosecution against the accused is not proved beyond all reasonable doubt, as required under law. 13. The trial court, after considering the evidence on record and on proper appreciation of the same, arrived at a right conclusion that the prosecution failed to prove the case against the accused for the offence punishable under Section 302 of the INDIAN PENAL CODE with acceptable legal evidence. Upon considering the said evidence and on re-appreciation of the same, we are also of the same view that the prosecution failed to prove the case against the accused for the offence punishable under Section 302 of the INDIAN PENAL CODE with legal evidence beyond any reasonable doubt. Therefore, it does not warrant any interference in this appeal. No case is made out by the prosecution to interfere with the impugned judgment of acquittal passed by the trial court which is based on proper findings recorded by the trial court on proper appreciation of the evidence on record. 14. Therefore, the appeal fails and it is liable to be dismissed. Resultantly, the appeal is dismissed. Bail bond, shall stand cancelled. Record and proceedings be sent back forthwith to the concerned court.