Gujarat High Court
State Of Gujarat vs Rathod Dhana Karsanbhai on 7 January, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
R/CR.A/361/2003 JUDGMENT DATED: 07/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 361 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
RATHOD DHANA KARSANBHAI & ORS.
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Appearance:
MR HADIK SONI, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 07/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal 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 Sessions Case No.17 of 2002 dated 18.12.2002 by learned Additional Sessions Judge, Fast Track Court, Dhrangadhra, Dist. Surendranagar, wherein and whereby all the accused were acquitted for the offences punishable under Sections 302, 323, 324, 506(2) and 114 of the Indian Penal Code, 1860 (for short "the IPC") and Section 135 of the Bombay Police Act (for short "the B.P.Act").
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2. The case of the prosecution, as per the Charge at Exh.14 is that the accused on 08.02.2001, brutally assaulted the first informant (deceased) between 21:00 to 21:30 hrs. due to some matrimonial dispute with his wife. All the accused have been charged for the offences punishable under Sections 302, 323, 324, 506(2) read with Section 114 of the IPC and Section 135 of the B.P.Act.
3. Pursuant to the allegations made by the first informant-deceased, the F.I.R. was registered with Dhrangadhra Police Station being CR. No.I-27 of 2002 for the abovementioned offences. During the course of investigation, the investigating agency recorded the statements of witnesses, prepared various panchnamas, including panchnama of the scene of offence, and collected medical documents, including Post Mortem report. Additionally, the agency seized evidentiary material such as weapons used in the alleged attack on the first informant-deceased i.e. axe, iron rod and a sickle to substantiate commission of the offence.
4. The trial Court famed charges against the accused for the aforementioned offences. The trial Court has examined total 16 witnesses and also the documentary evidence and ultimately Page 2 of 7 Uploaded by N.V.MEWADA(HC01571) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:38:17 IST 2025 NEUTRAL CITATION R/CR.A/361/2003 JUDGMENT DATED: 07/01/2025 undefined acquitted the accused for the offences, for which they were charged.
5. Learned APP Mr.Soni at the outset, has submitted that the judgement and order passed by the trial Court acquitting the accused for heinous offence is required to be quashed and set aside as the evidence, which has been led by the prosecution, has not been appropriately appreciated. He has placed reliance on the deposition of PW-1 Medical Officer viz. Shri Mansukhbhai Dhanjibhai Patni, who is examined at Exh.26, and has submitted that the same reveals that the deceased had suffered 8 injuries on the vital parts of his body, which caused his death. He has also referred to the Post Mortem report and has submitted that this evidence clearly establishes that the deceased was brutally assaulted by the accused. For rest of the witnesses, he has submitted that though they have not supported the case of the prosecution, including PW-2 father of the deceased viz. Shri Chhaganbhai Kalabhai, who is examined at Exh.28, the offence committed by the accused is proved by circumstantial evidence.
6. Learned APP has further submitted that the F.I.R. itself was registered by the deceased, who has categorically narrated the incident and hence, it can be stated / treated as a Dying Page 3 of 7 Uploaded by N.V.MEWADA(HC01571) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:38:17 IST 2025 NEUTRAL CITATION R/CR.A/361/2003 JUDGMENT DATED: 07/01/2025 undefined Declaration. In support of the contents of the F.I.R., he has referred to the deposition of PW-9 Shri Ashokpuri Kanpuri, who is examined at Exh.36 and has submitted that he was Police Constable at the hospital, who has registered the F.I.R. and also supported the contents of the F.I.R. Thus, it is urged that the acquittal recorded by the trial Court may be set aside, as it does not reconcile with the facts and evidence, which are established on record.
7. We have perused the judgement and order of acquittal passed by the trial Court, the documentary as well as ocular evidence. At the outset, it is pertinent to note that all the witnesses, including the panch witnesses have turned hostile and have not supported the case of the prosecution, except the Investigating Officers and the Medical Officer.
8. The entire case of the prosecution hinges on the contents of the F.I.R., which was registered in view of the statement made by the deceased. He has referred to the incident, which has happened on 08.02.2001 and has submitted that due to some matrimonial dispute with his wife, the accused had assaulted him brutally with dangerous weapons like axe, iron rod etc. PW-1-Mansukhbhai Dhanjibhai, the Medical Officer, who has examined the deceased, has referred to 8 injuries. The Page 4 of 7 Uploaded by N.V.MEWADA(HC01571) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:38:17 IST 2025 NEUTRAL CITATION R/CR.A/361/2003 JUDGMENT DATED: 07/01/2025 undefined injuries reveal that the deceased had suffered serious injuries on his jaw, "CL wound of 2*1/2 cm oblique fresh on upper-lip through upper-lip with fracture of upper jaw and dislocation of teeth", "CL wound of 1*1/4 cm muscle deep on tongue fresh, an incised wound of 8*1/4 cm bone deep, transverse, fresh below mandibular lower boarder."
9. In the evidence of PW-9 Police Constable (Exh.36), who was posted at the hospital and has registered the F.I.R., has categorically stated that the deceased was unable to speak. In his cross-examination, it is elicited that he has not recorded the F.I.R. in presence of the Medical Officer and moreover, has not identified the impression of thumb print.
10. Thus, the requirement as to whether the deceased was actually fit for recording the incident, as recorded in the F.I.R., is not emerging from the record in wake of the fact that he had suffered serious injuries on his face, jaw, and tongue. It is also admitted that no further steps recording the Dying Declaration of the deceased, after registration of the F.I.R has been taken. Thus, the FIR which has been registered by PW-9 cannot be considered as a compelling Dying Declaration in view of lack of authenticity by the Police Constable, who has Page 5 of 7 Uploaded by N.V.MEWADA(HC01571) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:38:17 IST 2025 NEUTRAL CITATION R/CR.A/361/2003 JUDGMENT DATED: 07/01/2025 undefined recorded the F.I.R. and also in absence of any conformity of the Medical Officer, who could have certified that the deceased was in a fit state of mind and in a condition to record the contents of the F.I.R.
11. Thus, the case of the prosecution, which hinges only on the contents of the F.I.R., cannot be accepted and the accused cannot be convicted for the offence like murder, which invites sentence for life in absence of any corroborative piece of evidence. As mentioned hereinabove, all the witnesses including the father of the deceased PW-2 Chhaganbhai Kalabhai has turned hostile and has not supported the case of the prosecution. The panchas, who have undertaken necessary panchnama of discovery of the weapons, have also not supported the case of the prosecution. The Investigating Officer, who is supposed to prove the panchnama, as per the requirement of Section 27 of the Evidence Act, has also not proved the same.
12. Hence, we do not find any infirmity or illegality in the judgement and order passed by the learned Sessions Judge.
13. Under the circumstances, and in light of the foregoing observations, the present appeal fails. The same is hereby dismissed.
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Sd/-
(A. S. SUPEHIA, J) Sd/-
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