State Of Gujarat vs Raju @ Deny Nagabhai Naranbhairabari

Gujarat High Court

State Of Gujarat vs Raju @ Deny Nagabhai Naranbhairabari on 6 January, 2025

Author: A.S. Supehia

Bench: A.S. Supehia, Gita Gopi

                                                                                                                  NEUTRAL CITATION




                            R/CR.A/832/2003                                      JUDGMENT DATED: 06/01/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/CRIMINAL APPEAL NO. 832 of 2003

                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       and
                       HONOURABLE MS. JUSTICE GITA GOPI
                       ==========================================================
                                   Approved for Reporting                       Yes           No

                       ==========================================================
                                                STATE OF GUJARAT
                                                      Versus
                                   RAJU @ DENY NAGABHAI NARANBHAIRABARI & ORS.
                       ==========================================================
                       Appearance:
                       MS CHETNA SHAH, APP for the Appellant(s) No. 1
                       ABATED for the Opponent(s)/Respondent(s) No. 2
                       MR HARSHAD K PATEL(2844) for the Opponent(s)/Respondent(s) No. 3
                       UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 1,4
                       ==========================================================
                         CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                               and
                               HONOURABLE MS. JUSTICE GITA GOPI

                                                   Date : 06/01/2025
                                                   ORAL JUDGMENT

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

1. The present appeal stands abetted so far as accused Nos.1, 2 and 4 are concerned, as they have passed away. The appeal is only confined to the accused No.3 viz. Rakesh @ Gudu Kamalbhai Devtadin Gupta.

2. The present is filed under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.) against the judgement and order passed in Atrocity Sessions Case No.1 of 2001 dated 29.03.2003 by the learned Additional Page 1 of 10 Uploaded by N.V.MEWADA(HC01571) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:33:28 IST 2025 NEUTRAL CITATION R/CR.A/832/2003 JUDGMENT DATED: 06/01/2025 undefined Sessions Judge, 7th Fast Track Court, Junagadh, wherein and whereby all the accused were acquitted for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short "the IPC"), Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "the Atrocities Act") and Section 135 of the Bombay Police Act (for short "the B.P.Act").

3. The case of the prosecution, as per the Charge at Exh.1, is that on 17.09.2000 at about 10:45 pm the complainant, who is the brother of the deceased, was sitting with his friends Chana Babu and Kisan Baijuram Dhamel near Sadguru Marble at Pancheshwar road. At that time, PW-28- Mansukh Bavanjibhai and PW-15-Dharmendra @ Dhamo Khetabhai came there in rush and informed the complainant that accused No.1-Raju @ Deny Nagabhai Naranbhai Rabari and other persons were assaulting the deceased-Mohanbhai Somabhai with swords and knives. On coming to know about the incident, he immediately informed the Police on telephone and rushed to the place of incident and saw that his brother was lying dead in the pool of blood.

4. The reason assigned for assaulting is of quarrel between the deceased and accused No.1- Raju @ Deny Nagabhai Naranbhai Rabari. The role Page 2 of 10 Uploaded by N.V.MEWADA(HC01571) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:33:28 IST 2025 NEUTRAL CITATION R/CR.A/832/2003 JUDGMENT DATED: 06/01/2025 undefined assigned to the accused No.3 is that he caught hold of the deceased, while other accused were assaulting the deceased. The trial Court, after examining the ocular as well as documentary evidence, has acquitted all the accused for the offences, for which they were charged, which has given rise to the present appeal.

5. Learned APP Ms.Chetna Shah at the outset, has submitted that the judgement and order passed by the trial Court is required to be quashed and set aside since the trial Court has failed to appreciate the evidence in its correct perspective. She has submitted that the accused No.3 had caught hold of the deceased, to facilitate the other accused to inflict fatal blows on the deceased, which resulted into his death.

6. While referring to the Post Mortem (P.M.) report at Exh.46, learned APP Ms.Shah has submitted that the deceased had suffered 27 injuries and he was brutally murdered by all the accused. It is also submitted that all the accused were having knowledge that the deceased belongs to the Scheduled Caste and hence, the offence punishable under Section 3(2)(v) of the Atrocities Act was established.

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7. While referring to the evidence of the complainant i.e. brother of the deceased, who is examined at Exh.72 as PW-26, learned APP has submitted that he has categorically referred that he was informed about the incident by two of the eye-witnesses, who had seen the accused inflicting blows on the deceased with deadly weapons like swords and knives. She has also referred to the evidence of the eye witnesses being PW-15-Dharmendra @ Dhamo Khetabhai examined at Exh.61, PW-28-Mansukh Bavanjibhai examined at Exh.76 and PW-33-Firozbhai Salambhai examined at Exh.88. She has submitted that though they are declared hostile, their evidence cannot be totally discarded since their evidence would reveal that the accused No.3 was present at the scene of offence and he caught hold of the deceased, while other accused were assaulting the deceased brutally with deadly weapons.

8. Learned APP has referred to the evidence of the Investigating Officer more particularly, the second Investigating Officer being PW-35- Sureshchandra Umapati Pandey examined at Exh.95 and has submitted that he has proved the contents of the panchnama though the panchas have turned hostile. While referring to the contents of the panchnama, it is submitted that discovery of knives and swords at the instance of accused Nos.1 and 2 have been proved by the evidence of Page 4 of 10 Uploaded by N.V.MEWADA(HC01571) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:33:28 IST 2025 NEUTRAL CITATION R/CR.A/832/2003 JUDGMENT DATED: 06/01/2025 undefined the Investigating Officer. She has also refer to the scene of offence panchnama at Exh.27 and has submitted that the same categorically establishes that the incident has occurred and it is urged that since the trial Court has failed in appreciating the evidence of the relevant witnesses, the acquittal order may be set aside.

9. We have examined the findings of the trial Court threadbare in light of the evidence, which have been established on record.

10. As narrated hereinabove, as per the charge at Exh.1, the incident has occurred on 07.09.2000 at about 10:45 pm when the complainant, who is the brother of the deceased, was informed that his brother was brutally assaulted by the accused by swords and knives. The examination of the evidence of the complainant-PW-26-Sureshbhai Somabhai, who is examined at Exh.72, reveals that he was not present at the scene of offence but he was informed about the incident by PW-28-Mansukh Bavanjibhai and PW-15-Dharmendra @ Dhamo Khetabhai. Accordingly, on such information having received, he immediately contacted the Police on telephone and rushed to the scene of offence and found that his brother was lying dead in the pool of blood. Thus, this witness is not an eye-witness to the incident, but was informed about the incident by two eye-witnesses.

NEUTRAL CITATION R/CR.A/832/2003 JUDGMENT DATED: 06/01/2025 undefined

11. At this stage, it would be apposite to refer to the witnesses, who have been projected as the eye-witnesses by the prosecution.

(i) PW-28-Mansukh Bavanjibhai examined at Exh.76 has turned hostile. He, on the contrary, has asserted that he has not seen the incident and he has categorically deposed that he has not seen the accused No.3 holding the deceased, while other accused were inflicting blows. The cross-examination of the said witness is a futile exercise as nothing has emerged from his evidence.

(ii) PW-15-Dharmendra @ Dhamo Khetabhai examined at Exh.61 has also been declared hostile. He has also totally denied of having seen the accused committing the offence.

(iii) PW-33- Firozbhai Salambhai examined at Exh.88. His evidence meets the same fate and he has also turned hostile.

12. Thus, three witnesses, whose evidence would be very vital for proving the offence against the accused, have not supported the case of the prosecution and their examination also has not borne any fruits.

13. The other relevant witnesses, which the prosecution has projected, are PW-22-Laxmiben Page 6 of 10 Uploaded by N.V.MEWADA(HC01571) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:33:28 IST 2025 NEUTRAL CITATION R/CR.A/832/2003 JUDGMENT DATED: 06/01/2025 undefined Lakhabhai and PW-23-Manish Shantilal. As per the case of the prosecution, the accused No.3 has made extra-judicial confession before them about the offence. PW-22-Laxmiben Lakhabhai examined at Exh.68 is the mother of the accused No.4 and she has also not supported the case of the prosecution and has taken total volte face about the extra-judicial confession. Similarly, PW-23- Manish Shantilal is the brother-in-law of the accused No.3 and has also turned hostile and has not supported the case of the prosecution.

14. We have also examined panchanamas at Exhs.13, 16, 18, 21 and 27. None of the panch witnesses have supported the case of the prosecution and have turned hostile.

15. As per the settled legal precedent, in case a panch witness turns hostile, the panchnama can be proved through the evidence of the Investigating Officer, as per the requirement of Section 27 of the Indian Evidence Act, 1872. We have also perused the evidence of the PW-35-Investigating Officer at Exh.95. His evidence does not in any manner, reveals that he has proved the panchnama, as per requirement of the law. He has only referred to the panchas and has submitted that this panchnama was carried out by the panchas.

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16. The Apex Court in the case of Ramanand @ Nandlal Bharti Vs. State of Uttar Pradesh, 2022 AIR SC 5273 has observed thus:

"54. The reason why we are not ready or rather reluctant to accept the evidence of discovery is that the investigating officer in his oral evidence has not said about the exact words uttered by the accused at the police station. The second reason to discard the evidence of discovery is that the investigating officer has failed to prove the contents of the discovery panchnama. The third reason to discard the evidence is that even if the entire oral evidence of the investigating officer is accepted as it is, what is lacking is the authorship of concealment. The fourth reason to discard the evidence of the discovery is that although one of the panch witnesses PW-2, Chhatarpal Raidas was examined by the prosecution in the course of the trial, yet has not said a word that he had also acted as a panch witness for the purpose of discovery of the weapon of offence and the blood stained clothes. The second panch witness namely Pratap though available was not examined by the prosecution for some reason. Therefore, we are now left with the evidence of the investigating officer so far as the discovery of the weapon of offence and the blood stained clothes as one of the incriminating pieces of circumstances is concerned. We are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth.

55. *** *** ***

56. 56. The requirement of law that needs to be fulfilled before accepting the evidence of discovery Page 8 of 10 Uploaded by N.V.MEWADA(HC01571) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:33:28 IST 2025 NEUTRAL CITATION R/CR.A/832/2003 JUDGMENT DATED: 06/01/2025 undefined is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW-7, Yogendra Singh is that he has not proved the contents of the discovery panchnama and all that he has deposed is that as the accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh.5). There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses though examined yet have not said a word about such discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place."

17. Thus, the Apex Court, while examining the provisions of Section 27 of the Indian Evidence Act, 1872 has held that in order to enable the Court to safely rely upon the evidence of the Investigating Officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this Page 9 of 10 Uploaded by N.V.MEWADA(HC01571) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:33:28 IST 2025 NEUTRAL CITATION R/CR.A/832/2003 JUDGMENT DATED: 06/01/2025 undefined purpose the Investigating Officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place.

18. The trial Court, after finding such lacuna in the investigation in the case of prosecution and more particularly in light of the witnesses who have turned hostile and other witnesses having not supported the case of the prosecution, has precisely acquitted the accused for the offence.

19. Thus, so far as the role of the accused No.3 is concerned, against him, it is alleged that he has caught hold of the deceased while other accused have inflicted blows on the deceased, the same is not established in any manner by cogent evidence.

20. Under the circumstances, and in light of the foregoing observations, the present appeal fails. The same is hereby dismissed.

Registry shall return the Record and proceedings to the concerned Court.

Sd/-

(A. S. SUPEHIA, J) Sd/-

(GITA GOPI,J) NVMEWADA/D-1-10 Page 10 of 10 Uploaded by N.V.MEWADA(HC01571) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:33:28 IST 2025