State Of Gujarat vs Thakor Kishanji @ Somo Gabhaji

                                                                             NEUTRAL CITATION




     R/CR.MA/11082/2023                         ORDER DATED: 08/11/2023

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         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO.
                     11082 of 2023
         In R/CRIMINAL APPEAL NO. 1475 of 2023
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                            STATE OF GUJARAT
                                  Versus
                      THAKOR KISHANJI @ SOMO GABHAJI
=============================================
Appearance:
MR RONAK B. RAVAL, APP for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
       and
       HONOURABLE MR. JUSTICE VIMAL K. VYAS

                  Date : 08/11/2023
                    ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. The matter requires consideration. RULE.

2. The present application is filed seeking leave to appeal under Section 378(3) of the Code of Criminal Procedure, 1973.

3. On 17.10.2023, this Court had passed the following order : -

"Though served no one has entered appearance on behalf of the respondent. S.O. to 8.11.2023.

4. Despite the aforesaid order passed by this Court, the respondent has chosen not to appear before this Court.

5. The present applicant - State of Gujarat has preferred the captioned appeal before this Court challenging the judgment and order of acquittal dated 07.03.2023 passed by the Court of Sessions Judge, Mehsana in Sessions Case No.18 of 2020, Page 1 of 6 Downloaded on : Thu Nov 09 20:42:05 IST 2023 NEUTRAL CITATION R/CR.MA/11082/2023 ORDER DATED: 08/11/2023 undefined wherein at the end of the trial, the Trial Court has acquitted the opponent for the offence under Sections 302, 394 and 201 of the Indian Penal Code, 1860 (the IPC) and Section 135 of the Gujarat Police Act, 1951, (the G.P. Act) hence, the present application is filed seeking leave to appeal against the order of acquittal.

6. The facts, in short, giving rise to present leave to appeal are as under:-

6.1 It is the case of the complainant that he lodged a complaint being CR No.I-48 of 2019, on 28.07.2019, before the Vasai Police Station against the respondent for the offence punishable under Section 302, 394, 201 of the IPC and Section 135 of the G.P. Act, alleging that his mother - Chandrikaben is doing household work and the father has been died prior to three years. The complainant is having two brothers, out of which complainant is elder brother and deceased - Vishalkumar is the younger brother, who was unmarried and staying with complainant. The brother of the complainant was driving CNG rickshaw bearing No.GJ-02-YY-4223 on rental basis in Mahesana city.

6.2 It is further alleged that prior to three years, the complainant, his brother, father and mother were staying at village Hathipur, Taluka Vijapur, where brother of the complainant Vishal fell in love with the daughter of Thakor Chanduji Becharji of village Hathipura and therefore, after death of father of complainant, the complainant along with his mother shifted at village Ramosana Gam, Taluka Dist.

NEUTRAL CITATION R/CR.MA/11082/2023 ORDER DATED: 08/11/2023 undefined Mahesana. It is alleged that the wife of complainant checked mobile of deceased Vishalkumar and accordingly, she came to know about love affairs with girl Kajal and as on date of incident, brother of the complainant named Vishalkumar has gone to drive his rickshaw and at about 8.00 hours, the complainant tried to make contact to his brother, but same was cut after two rings, therefore, the complainant again tried to make contact, it was found switched off. Thereafter, again on 28.7.2019 at about 6.00 hours in morning, the complainant tried to make contact to his brother, but it was found switched off.

6.3 Lastly, the complainant made inquiry with regard to whereabouts of his brother and during inquiry one rickshaw driver, who is friend of the deceased gave information to complainant that prior to two days deceased Vishal told me that he is in love with girl named Thakor Kajal of village Hathipura and as it has come to the knowledge of his family, he remains in tension. Thereafter, complainant came to know that dead body of the brother of complainant Vishal is lying in the field of cotton seeds situated in the sim of village Mahadevpura. Therefore, complainant alongwith his mother and wife had gone at the place of offence and seen that dead body of deceased was lying in field with injuries on neck, face, head, behind the head as well as on right hand and also on both shoulders by inflicting sharp edged weapons.

6.4 It is further alleged in complaint that the brother of complainant Vishal is in love with Kajal, the daughter of Thakor Page 3 of 6 Downloaded on : Thu Nov 09 20:42:05 IST 2023 NEUTRAL CITATION R/CR.MA/11082/2023 ORDER DATED: 08/11/2023 undefined Chanduji Becharji of village Hathipura, Taluka Vijapur and as it came to the knowledge of members of her family, Thakor Chanduji Becharji and his son Thakor Manojji Chanduji, both resident of village Hathipura, Taluka Vijapur, Dist. Mahesanavala and husband of Kajal, whose name is not known, resident of Rampura, Taluka Prantijvala, with help of each other caused death of deceased Vishal by inflicting sharp edged weapons. Thereafter, the case was investigated and tried before the Sessions Court and at the end of the Trial, the Trial Court after appreciating necessary evidence laid down by the prosecution has acquitted the respondent for the offence, he was charged.

7. Learned Additional Public Prosecutor has submitted that the Trial Court has erred in acquitting the respondent for the offence, he was charged. He has further submitted that the Trial Court has failed to appreciate all the evidences of 19 witnesses in its true prospective. It is submitted that the case of the prosecution is premised on circumstantial evidence, there is no eye-witness. It is submitted that the Trial Court should have appreciated the evidence of the PW-2 Panch - Amratbhai Ramabhai at Exh.15, who has fully supported the panchnama of place of incident at Exh.16. Similarly, it is submitted that the Serological report of FSL at Exhs.90 and 91 reveal that the presence of blood group 'A' was found on the muddamal leaves and sand recovered from the place of offence. It is submitted by him that the muddamal i.e. the weapon, which was used in commission of offence and clothes of the accused has been recovered and sent to FSL and as per Page 4 of 6 Downloaded on : Thu Nov 09 20:42:05 IST 2023 NEUTRAL CITATION R/CR.MA/11082/2023 ORDER DATED: 08/11/2023 undefined the FSL's report, the presence of blood group 'A' has been found. He has further submitted that the Trial Court has failed to appreciate that the mobile phone of the deceased has been recovered from the house of father-in-law of the accused, wherein sim card was not found. He has further submitted that the Trial Court has failed to appreciate the evidence of PW-8 - Pach Prajapati Rakeshkumar Babubhai at Exh.38. Looking to cross-examination of this witness, two sickle has been found, out of which one was used for commission of offence and another was placed instead of original one. He has further submitted that the Trial Court has failed to appreciate the evidence of PW-20 - Saileshkumar Ramanbhai Patel at Exh.72. According to evidence of this witness, he is dealing with petroleum produced on his Petrol Pump named Bileshwar Petroleum Agency and as per demand of police, he has produced CCTV footage of the petrol pump dated 27.07.2019, in which, rickshaw is seen and accordingly, he has called Engineer of the CCTV camera and gave CCTV footage. He has further submitted that the Trial Court has failed to appreciate the evidence of PW-15 - Ashokji Prahladji Thakor at Exh.54. According to the evidence of this witness, he was serving with Jio Point, Gozaria and he has clearly stated in his evidence that this mobile is of Jio Company having Model No.M-211 and we were selling such type of mobile. It is urged that the present application may be allowed and leave to appeal may be granted.

8. As noted hereinabove, though served, the respondents have chosen not to appear, hence, the contentions and Page 5 of 6 Downloaded on : Thu Nov 09 20:42:05 IST 2023 NEUTRAL CITATION R/CR.MA/11082/2023 ORDER DATED: 08/11/2023 undefined averments made in the present application remained uncontroverted.

9. We have also perused the reasoning given by the Trial Court. Considering the submissions advanced by the learned Additional Public Prosecutor and the averments made in the application, the present application deserves to be allowed. The present application is allowed. Rule is made absolute.

(A. S. SUPEHIA, J) (VIMAL K. VYAS, J) MAHESH/71 Page 6 of 6 Downloaded on : Thu Nov 09 20:42:05 IST 2023