NEUTRAL CITATION
R/CR.MA/10372/2023 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.
10372 of 2023
In R/CRIMINAL APPEAL NO. 1367 of 2023
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STATE OF GUJARAT
Versus
SHAKIL @ DILIP ARVINDBHAI VAGHELA
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Appearance:
MR RONAK B. RAVAL, APP for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2
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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 respondents.
S.O. to 8.11.2023.
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NEUTRAL CITATION
R/CR.MA/10372/2023 ORDER DATED: 08/11/2023
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4. Despite the aforesaid order passed by this Court, the respondents have 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 05.01.2023 passed by the Court of Sessions Judge, Surendranagar in Sessions Case No.21 of 2019, wherein at the end of the Trial, the Trial Court has acquitted the opponents for the offence under Sections 302, 397, 504 and 114 of the Indian Penal Code, 1860 and Section 135 of the Gujarat Police Act, 1951, hence, the present application is filed seeking leave to appeal against the order of acquittal.
6. Learned Additional Public Prosecutor has submitted that the Trial Court, without appreciating the evidence laid down by the prosecution, has acquitted the respondents for a serious offence punishable under Sections 302, 397, 504 and 114 of the IPC and Section 135 of the GP Act. Learned Additional Public Prosecutor has further submitted that the evidence of at least 8 witnesses would reveal that the respondents are directly involved in the offence, for which, they were charged. He has further submitted that the Trial Court has failed to Page 2 of 4 Downloaded on : Thu Nov 09 20:42:03 IST 2023 NEUTRAL CITATION R/CR.MA/10372/2023 ORDER DATED: 08/11/2023 undefined appreciate the complaint at Exh.49, which gets corroboration from the evidence of complainant (PW-16) - Jayeshnath Parshurambhagat Nath at Exh.48. He has further submitted that the Trial Court has failed to appreciate the evidence of PW-13 - Dr.Mukeshbhai Samatbhai Sakariya at Exh.37, who performed the postmortem of the deceased in the penal of Dr.Methyo Konyak. It is submitted by the learned APP that according to evidence of this witness, the deceased was having four injuries on his body, out of which injury Nos.1 and 2 were fetal in nature and as per opinion of the Medical Officer, the cause of death is due to shock and hemorrhage as a result of head and brain injuries. He has further submitted that the Trial Court has failed appreciate evidence of PW- 20 Lalo @ Kalpeshbhai Mansukhbhai Vasani at Exh.59. According to evidence of this witness, accused Shakun and Shakil raised quarrel with Bapu and accordingly Bapu told him to place, the accused persons leave place, got excited and accused Shakun pushed Bapu away and while Bapu fallen down, accused Shakil brought hammer and inflicted on head of Bapu. He has also identified muddamal hammer as article No.5 - Hammer, then in that case, the Trial Court has committed error in acquitting the respondents. He has submitted that the Trial Court has Page 3 of 4 Downloaded on : Thu Nov 09 20:42:03 IST 2023 NEUTRAL CITATION R/CR.MA/10372/2023 ORDER DATED: 08/11/2023 undefined erred in holding that the evidence of PW-20 Lalo @ Kalpesh Mansukhbhai at Exh.59 is not reliable and trustworthy so as to convict respondents for the alleged offence. It is submitted that the Trial Court has erred in observing minor omissions, inconsistencies contradictions in the evidence and of witnesses, which does not go to the route of prosecution. It is urged that the present application may be allowed.
7. As noted hereinabove, though served, the respondents have chosen not to appear, hence, the contentions and averments made in the present application remained uncontroverted.
8. 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 4 of 4 Downloaded on : Thu Nov 09 20:42:03 IST 2023