Gujarat High Court
State Of Gujarat vs Pravinbhai Veerabhai Makvana on 7 December, 2023
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
R/CR.MA/18098/2023 ORDER DATED: 07/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 18098
of 2023
In F/CRIMINAL APPEAL NO. 36636 of 2023
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STATE OF GUJARAT
Versus
PRAVINBHAI VEERABHAI MAKVANA
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Appearance:
MR BHARGAV PANDYA, APP for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 07/12/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. RULE. On 29th November 2023, this Court passed the following order :
"Though served, no one has chosen to appear on behalf of the respondents.
Stand over to 7.12.2023."
2. Today also, the position remains unaltered. No one has chosen to enter appearance on behalf of the respondents. Page 1 of 5 Downloaded on : Fri Dec 08 20:41:56 IST 2023
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3. The applicant-State has filed the aforesaid Criminal Appeal against the acquittal of the respondents who were charged for the offences punishable under Sections 143, 147, 148, 149, 302, 307, 326, 325, 324, 323, 504, 506(2), 294(B) of the Indian Penal Code and Section 135 of the Gujarat Police Act, by impugned judgment and order dated 25.08.2023 passed in Sessions Case No.40 of 2020.
4. Learned APP has submitted that the learned Judge has erred in holding that the prosecution has failed to prove beyond reasonable doubt that the complainant (i.e. deceased) was residing at Junagadh. On 07.08.2020, at about 9 O' clock in the morning, the complainant (i.e. deceased) had gone to graze the cows. At that time, near the bus stand, the present accused persons came with weapons and used filthy language and asked the complainant that why he had beaten his son a few days ago and thereafter, accused no.1 inflicted pipe blows on the hands and legs of the complainant, accused no.3 inflicted 'dhariya' blows on the hands and legs of the complainant, accused no.2 also inflicted 'dhariya' blows on the hands and legs of the complainant.
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5. Learned APP has further submitted that the learned Judge ought to have appreciated that the dying declaration of the deceased, which is produced at Exh.97, was recorded by the Executive Magistrate in presence of the doctor. At that time, the deceased was very much conscious and capable of recording his dying declaration and he had very specifically mentioned how and why the incident took place and what is the motive behind commission of the offence by the accused. This is fully supported by the evidence of the Executive Magistrate, who recorded the dying declaration, and the doctor, who treated him. From the medical case papers and the post mortem note, it can be noted that it is a case of homicidal death and not suicidal death. However, as the learned Judge has failed to properly appreciate the evidence of these witnesses, the impugned judgment and order of acquittal passed by the learned Judge being illegal, invalid and improper, the same deserves to be quashed and set aside.
6. It is further submitted that the learned Judge has erred in not appreciating the evidence of the injured person P.W.12, Haridasbapu Gururadhavdasji Maharaj, who has been examined Page 3 of 5 Downloaded on : Fri Dec 08 20:41:56 IST 2023 NEUTRAL CITATION R/CR.MA/18098/2023 ORDER DATED: 07/12/2023 undefined at Exh.71, who is the eye witness and who was very much present at the time of the incident. The learned Judge ought to have appreciated that P.W.2 Dr.Prakashbhai Bherumal Trilokani examined at Exh.20, P.W.3 Dr.Chauham Amardas Deshani examined at Exh.27, P.W.13 Tejasbhai Dhanjibhai Kagthara examined at Exh.74, P.W.15 Prafulbhai Mansukhgiri Aparnathi examined at Exh.76, P.W.16 Jitendrabhai Kantibhai Gohel examined at Exh.77, P.W.17 Pratikbhai Maisurbhai Khambhla examined at Exh.78, P.W.18 Itishaben Odhavjibhai Rojasara examined at Exh. 82, P.W.19 Govindbhai Rajabhai Solanki examined at Exh.84, P.W.21 Gayatriben Vijaykumar Sharma examined at Exh.91 and P.W.22 Amitkumar Ashokkumar Mulchandani examined at Exh.95, all these witnesses have fully supported the case of the prosecution.
7. Learned APP has submitted that the learned Judge ought to have appreciated the contents of the scene of offence panchnama which was produced at Exh.50, dying declaration which was produced at Exh.97, inquest panchnama which was produced at Exh.47, FIR which was produced at Exh.100, post mortem report which was produced at Exh.18 and the FSL report which was produced at Exh.119, in light of the evidence of Page 4 of 5 Downloaded on : Fri Dec 08 20:41:56 IST 2023 NEUTRAL CITATION R/CR.MA/18098/2023 ORDER DATED: 07/12/2023 undefined the Investigating Officer, by the evidence of whom, those documents have been proved.
8. The averments made in the application have remained uncontroverted. We have also examined the evidence as discussed by the trial Court and the order passed by the trial Court. Prima facie, we are of the opinion that the leave is required to be granted.
9. In the aforesaid facts and circumstances, the present application for leave to appeal is allowed. Rule made absolute.
10. Registry shall notify the main Criminal Appeal on 14 th December 2023.
(A. S. SUPEHIA, J.) (VIMAL K. VYAS, J.) /MOINUDDIN Page 5 of 5 Downloaded on : Fri Dec 08 20:41:56 IST 2023