State Of Gujarat vs Koli Mohan Nanubhai

Citation : 2025 Latest Caselaw 1665 Guj
Judgement Date : 7 January, 2025

Gujarat High Court

State Of Gujarat vs Koli Mohan Nanubhai on 7 January, 2025

Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
                                                                                                                    NEUTRAL CITATION




                             R/CR.A/605/1995                                      JUDGMENT DATED: 07/01/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/CRIMINAL APPEAL NO. 605 of 1995


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE A.Y. KOGJE                                             Sd/-

                       and
                       HONOURABLE MR. JUSTICE SAMIR J. DAVE                                          Sd/-

                       ==========================================================

                                     Approved for Reporting                       Yes           No

                       ==========================================================
                                                       STATE OF GUJARAT
                                                             Versus
                                                 KOLI MOHAN NANUBHAI & ORS.
                       ==========================================================
                       Appearance:
                       MR. L. B. DABHI, APP for the Appellant(s) No. 1
                       ABATED for the Opponent(s)/Respondent(s) No. 1
                       BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2,3
                       DR. HARDIK K RAVAL(6366) for the Opponent(s)/Respondent(s) No. 2,3
                       ==========================================================

                            CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
                                  and
                                  HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                                              Date : 07/01/2025

                                                 ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. Present Appeal is preferred by the State under Section-378 of the Page 1 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 28-02-1995 passed in Sessions Case No.116 of 1991 by the Additional Sessions Judge, Bhavnagar. By the impugned judgment and order, the Sessions Court has acquitted three respondents-accused from the charges of Section-302, 323, 324, 114 of Indian Penal Code. Reportedly, respondent-accused No.1 has expired, pending the Appeal and therefore, the Appeal qua him has already been declared as abated by order dated 22-06-2022 passed by this Court.

2. The Sessions Case arose out of the FIR registered as C.R. No.I- 57/1991 with Vartej Police Station for the offence punishable under Sections 302, 323, 324, 114 of Indian Penal Code in connection with incident, which took place on 15-05-1991 alleging that on account of small quarrel of removing of leaves of the tree, there was an altercation, because of which respondents-accused assaulted Mavjibhai Nanubhai (since deceased), his wife namely Lakhuben (PW-2) and nephew; Bhalabhai; PW-3 with the use of dangerous weapons like kos, (flat and pointed iron rod)stick and rap (iron blade) respectively.

3. Learned APP on behalf of the State has submitted that the State having examined Medical Officer as PW-1 at Exh-13 was able to establish Page 2 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined on record that the deceased had received 11 injuries on vital part of the body and on account of such injuries, the deceased had suffered intracranial hemorrhage due to shock of injuries. Through this witness, therefore, the prosecution was able to establish homicidal death. Learned APP has further submitted that the prosecution had examined two witnesses, who were not only eye-witnesses, but had also sustained injuries. He took this Court to the evidence of PW-2; Lakhuben, who is also informant and has submitted that this witness has given clear narration of how the incident had taken place and which respondents- accused had caused assault by using specific weapons. 3.1 It is submitted that from this witness also, the motive of the respondents-accused was established, as in her deposition, it is coming out on record that with regard to the land, there was earlier dispute, which was existing.

3.2 Learned APP has submitted that yet another eye-witness; Bhalabhai who is nephew of the deceased, was also examined as PW-3 and his version also gives clear role attributed to respondents-accused and the weapons used, as also motive attributed. Despite this, an error is committed by the Sessions Court in not believing version of eye-witnesses Page 3 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined and discarding their version merely on minor discrepancy with regard to the usage of weapons and nature of injuries sustained and not matching with declared assault.

3.3 Learned APP has thereafter submitted that even arrest panchnama of the respondents-accused No.2 and 3, which are placed at Exh-22 and Exh-23 respectively. Blood stains were found on the cloths of the respondents-accused and those stains as per FSL Report at Exh-35 are of the Blood-group belonging to the deceased and the injured eye-witness, being Blood-group-A and B respectively.

3.4 Learned APP has thereafter submitted that an error is committed by the trial Court in not considering evidence of Medical Officers, who had treated two injured eye-witnesses and evidence of these two witnesses namely PW-1 and PW-7, who have examined injured eye- witnesses, go on to show injuries sustained by each of the eye-witnesses and therefore, presence of witnesses could not be doubted, when the incident took place. Moreover, it is submitted that considering the place of incident also, which is residential area of the complainant side as well as accused side, presence of witnesses is quite natural and hence also, sufficient weightage ought to have been given by the trial Court to the Page 4 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined evidence of these two witnesses.

4. As against this, learned Advocate for the respondents-accused has submitted that version of the witnesses, though they were termed as eye- witnesses, was completely unreliable and the Sessions Court has given cogent reasons for disbelieving two eye-witnesses. He has therefore, taken this Court to evidence of informant, who herself is an eye-witness and has also taken this Court to dying declaration of this very witness, which is exhibited at Exh-43.

4.1 Learned Advocate for the respondents-accused has submitted that if version given by this very witness in the dying declaration, then there is no detail with regard to assault by respondents-accused upon the deceased. Very first version in the dying declaration coming out even as per the case of the prosecution is that respondents-accused had assaulted this witness with the use of rap (iron blade) on her head and accused no.2 using stick, whereas in her deposition before the trial Court, she has given narration, which is completely different from the version of very witness in the dying declaration.

4.2 In so far as version of the second eye-witness; Bhalabhai, it is submitted that even from his own deposition, it is coming out that he Page 5 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined had reached place of offence after sometime, where he did not view actual assault on the deceased. This witness has also referred to in his evidence about the usage of knife in causing assault. However, case of the prosecution itself is not attributing the usage of knife to any of the respondents-accused. It is submitted that this witness in his deposition has changed place of incident by deposing that assault had taken place at one place and from there, dead body of the deceased was dragged to another place, but panchnama of scene of offence though recorded in detail, does not disclose any sign of dragging the dead body and therefore, this witness was not reliable witness for assault by respondents- accused upon the deceased.

4.3 Learned Advocate for the respondents-accused has thereafter submitted that though the prosecution relies upon tracing of blood-stains on the clothes of respondent-accused Nos.2 and 3 as well as on the weapons used, the prosecution has failed to bring on record Blood-group of the deceased as well as that of Blood-group of witness; Lakhuben. It is submitted that Blood-group-A of the deceased was ascertained by the prosecution only on the basis of Blood-group found from the sample collected from scene of offence, which according to learned Advocate cannot be considered as an accurate proof of Blood-group of the deceased.



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                                                                                                               NEUTRAL CITATION




                             R/CR.A/605/1995                                 JUDGMENT DATED: 07/01/2025

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                       4.4      Learned Advocate for the respondents-accused has submitted that

witnesses on which the prosecution seeks to rely upon, are close relatives of the deceased and therefore, interested witnesses and though, there were several other witnesses, who had gathered in view of the fact that area was residential area, still no independent witnesses have been examined, as in support of the prosecution and therefore also, decision of the Sessions Court was justified.

4.5 Lastly, learned Advocate for the respondents-accused has submitted that from the beginning, it has been stand of the defence that the deceased had lost his tamper and had rushed towards accused persons with rap (iron blade) in his hand and out of fear, respondents-accused had locked themselves inside house, which the deceased tried to open with the use of rap (iron blade) and during that period, rap (iron blade) had broken into two pieces, which was found in the panchnama of scene of offence. It is submitted that therefore, defence had probablized attempted assault by the respondents-accused and therefore, benefit be given to respondents-accused.

5. Having considered the rival submissions of the parties and having perused the documents on record, incident allegedly took place on 15-05- 1991 at approximately 4.30 hours, when the deceased and his wife; PW-2 Page 7 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined were picking up leaves of Jambudi tree, at that time, when respondent Nos.1,2 and 3 confronted them , there was a verbal altercation, because of which, respondent Nos.1, 2 and 3 assaulted the deceased as well as PW-2.

5.1 The FIR was duly registered as C.R. No.I-57/1991 with Vartej Police Station and after due investigation, t he complaint was filed on 15-05-1991. The Sessions came to be committed by the concerned Magistrate Court after due compliance of Section-207 of Cr.PC. and as the respondents-accused pleaded innocence and claimed to be tried and the charge came to be framed vide Exh-3, wherein it is alleged that on 15/05/1991 or at the course of time of around 04:30 Hrs. in the evening, as the deceased namely, Mavajibhai Nanubhai and his wife - complainant namely, Lakhuben were collecting jamun leaves, all you three accused persons assaulted Mavjibhai Nanubhai and inflicted the blows of weapon viz. the accused no.1 with kos,, accused no.2 with the stick and the accused no.3 with rap , causing injuries and death and thereby committed his murder. Further, at the same place and time, the accused no.3 , Ramjibhai Parshottambhai inflicted the blows of Rap head and right hand of the complainant , Lakhuben Mavjibhai causing her simple hurt and the accused no.2 inflicted the stick blow to said Lakhuben Mavjibhai and caused her simple hurt. Therefore, the accused no.3 Page 8 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined committed the offence u/s 324 and 323 r/w s.114 of the Indian Penal Code. accused no.2 committed the offence u/s 323 and 324 r/w s.114 of the Indian Penal Code and accused no.1 committed the offence u/s 324 and 323 r/w s.114 of the Indian Penal Code. Furthermore, at the same time and place, the accused no.3 assaulted Bhalabhai Kanabhai with Rap and inflicted its blow with the intention to cause him injury on head. As he raised his left hand for self defence, he got its blow on his left hand and thereby sustained injury. Accordingly, accused no.3 committed offence u/s 324 of the Indian Penal Code and accused nos.1 and 2 committed the offence u/s 324 r/w s.114 of the Indian Penal Code. 5.2 The case of prosecution is based on version of Medical Officer, who performed Postmortem, two eye-witnesses, panch-witnesses and the documents of the Forensic Science. The prosecution had examined Medical Officer as PW-1 at Exh-13, who has performed postmortem report of the deceased; Mavjibhai. From his deposition, it is coming on record that deceased; Mavjibhai sustained 11 injuries on vital parts of the body and such injuries were caused by the dangerous weapons. This witness has also opined regarding cause of death and through this witness, postmortem note came to be exhibited vide Exh-14. In the Postmortem Report, cause of death is assigned to shock due to Page 9 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined intracranial hemorrhage. This witness has also examined injured witness; Bhalabhai, who has sustained incised wounds on the left arm. This document is Exh-15. From the evidence of this witness, the prosecution was able to establish homicidal death of Mavjibhai. 5.3 However, during the course of investigation itself, in cross examination, inflicting of injuries, nature of injuries sustained and the muddamal Articles by which such injuries could be caused has come on record. In the cross examination, in response to the question asked about usage of kos in inflicting and causing injuries sustained, this witness has given indication that as there is no cut, which was found on the clothes of the deceased corresponding to the injuries, use of kos is ruled out. This witness has also ruled out usage of kos as there was no corresponding fractured injuries to injury nos.6 to 10. In fact, evidence of this witness goes on to indicate that injuries of incise nature, which are fatal arising out of use of Muddamal Article No.6. Muddamal Article No.6 is knife, which was seized during the execution of panchnama of scene of offence. Even as per the prosecution, none of the accused have been assigned with usage of knife. Charge itself is attributing the accused no.1 with kos, accused no.2 with stick and accused no.3 with rap (iron blade). Therefore, when this witness has indicated injuries sustained by the Page 10 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined accused, was probable caused by the use of Muddamal Article No.6 (knife) and none of the respondents-accused have been attributed with knife, role of the accused as attributed by the prosecution, becomes doubtful.

5.4 The Court may thereafter consider the evidence of PW-2; Lakhuben Bholabhai at Exh-16, who is wife of deceased and also herself injured. While appreciating evidence of this witness, the Court may refer to dying declaration recorded of this very witness, which is on record at Exh-43, wherein she has stated before the Executive Magistrate about picking up of leaves, when verbal altercation took place and arrival of her elder brother in law; Ramjibhai (respondent No.3) with rap (iron blade) in his hand and delivering blow on her head and Lakhmanbhai (respondent No.2) arriving at scene with stick and giving her blow. She has categorically stated in this document that except for that she has nothing more to add. If this version which was recorded immediately after the incident, is compared with deposition of witness, then it is clearly coming out that this witness has traveled much beyond what has been stated in her first version, in the dying declaration wherein at the first instant, she has not disclosed any assault over her husband by any of the accused, but in her deposition, she has gone on to state that assault by Page 11 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined each of the respondents-accused not only on herself, but also upon her husband. this creates doubt on the version of this witness. 5.5 One more aspect, which requires consideration is deposition of Medical Officer, who had examined this witness namely Dr. Dhirajlal Girdharlal Adheda; PW-7 at Exh-45. Through this witness, the prosecution has brought on record Exh-46, which is treatment Certificate of witness; Lakhuben. This document in the history does not disclose name of any of the accused and this document was also immediately upon incident having taken place. One more reason for not believing the witness is comparing the evidence of this witness with regard to the injuries sustained by the deceased with probable cause of death arising out of injuries as mentioned by the Medical Officer; PW-1, who has attributed the fatal injuries to knife, whereas this witness has not mentioned anything with regard to usage of knife.

5.6 The Court may thereafter consider the evidence of PW-3; Bhalabhai at Exh-18. This witness is nephew of the deceased and in his deposition, he has stated that while he was eating, he could hear commotion of Lakhukaki; PW-2 and therefore, he went towards residence of Mohankaka, where he found his uncle was lying down and respondents- accused were armed with kos, stick and rap (iron blade). He confronted Page 12 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined three persons and therefore, they also tried to assault him. As a result, he tried to escape from the place, but while doing so, respondents- accused assaulted PW-2. This witness also deposed that accused persons dragged dead body of his uncle from his agricultural field and placed it in front of the house of respondent-accused No.1 (Mohanbhai). In the deposition of this witness, it is coming on record that when panchnama for scene of offence was being executed, Investigating Agency came across Muddamal Article; knife, which is identified as Muddamal Article No.6, which was having blood-stains on it.

5.7 This witness in the cross examination has also indicated that he is unaware as to whether he has referred the assault by knife in his Police Statement. This witness while referring to scene of offence panchnama has also stated about two locations, where two blades of rap (iron blade) were lying at quite distant.

5.8 The Court has thereafter taken into consideration very panchnama; Exh-20 of scene of offence, which was proved by PW-4; Nanjibhai Kababhai at Exh-19. This document clearly shows presence of Muddamal Article No.6; knife, which was lying just near to scene of offence, whereas two parts of broken rap (iron blade) lying at two different places. Scene of offence panchnama, however, does not disclose and Page 13 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined support version of witness that the deceased was dragged from one place (filed of Mavjibhai) to the house of Mohanbhai. Exh.-33 is Map of the place, where the incident took place. There also, the prosecution is unable to clearly establish whether the accused persons had dragged the dead body from one place to another. Therefore, version given by eye- witness; PW-3; Bhalabhai was rightly not accepted as crystal evidence, on which the conviction could be based.

5.9 The Court may thereafter consider the arguments advanced by learned APP with regard to FSL Report, wherein the prosecution has vide Exh-35 placed on record Serological Report of blood-stains. The Report finds mention of two blood-groups namely blood-group-A and blood- group-B. It is case of the prosecution that the deceased was having blood-group-A, while injured eye-witness; wife of the deceased was having blood-group-B. Perusal of entire record including Postmortem Report, there does not appear to be any sample, which was drawn to establish blood-group of the deceased as well as PW-2 and therefore, the prosecution has left in the realm of presumption that as blood-group, which was found in the control-clay from the scene of offence was of blood-group-A. Blood-group of the deceased was also to be presumed as blood-group-A. In absence of establishing actual blood-group of the Page 14 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined deceased as blood-group-A and the prosecution witness no.2 as blood- group-B, finding of blood-group on the cloths as well as upon the weapons alleged against each of the respondents-accused will be of no consequence.

5.10 The Court has also perused impugned judgment and order, wherein the Sessions Court has assigned cogent reasons in not accepting version of the so called eye-witnesses and the Court finds no reasons to interfere with such findings given. The Court finds that the trial Court, in not considering the evidence of two eye-witnesses, has held that in addition, the witness namely, Bhalabhai Kanabhai states during his deposition that both the blows were inflicted to him on the same leg and thereafter he was watching from the place away from there. The complainant has not stated before Mamalatdar that aforesaid witness was present at the time of incident. He has stated that he reached on hearing the commotion. But, it appears from deposition of Panch that distance between the houses of him and his uncle is 2000 feet. This witness states during cross-examination that he was present at the said place while his uncle was drifted from there. Whereas, no any marks indicating dragging the dead body were seen. He has also stated during cross-examination that blood oozing out from his uncle was falling on the soil. His uncle taken Page 15 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined 20-25 away. But, no such facts are found from Panchnama. Under the circumstances, presence of this witness at the scene of incident cannot be believed. Despite he was present, when the police came in the evening, he did not inform anything to them. The police inquired from him on next day at around half past nine - ten hrs. He has also stated during his cross-examination that the blow was inflicted to his uncle in the manner swaying the cricket bat. But, the doctor has denied the fact that any injury must have occurred by this much force. Under the circumstances, his presence is suspicious. The fact can also not be believed that he may hear uproar from the scene of incident, because his residence is located at a distance of 2000 feet. Under the circumstances, the fact of the Prosecution is unbelievable.

5.11 Lastly, the Court may consider probable defence taken by the respondents-accused wherein in the F.S. recorded under Section-313 of Cr.PC., the respondents-accused has stated as under:

"When I and Ramji Parshottam pointed out my aunt regarding jamun and its leaves, she got angry. On coming to know the same, my uncle came with Rap for beating me. As both of us were hiding in the house, when my uncle used Rap to break the door open, the said Rap was broken. Uproar of quarreling was heard from outside and we could not see from inside. Aunt was armed with stick. As it was silent, we came out and my aunt was lying there in blood smeared condition. The said stick was lying there and knife was lying away from there. We have not committed any offence."
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NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined 5.12 This defence taken is further probablized by the document, which is panchnama of scene of offence at Exh-20, wherein two broken blades of rap (iron blade) have been found lying at scene of offence at two different places and therefore, question of usage of rap (iron blade) in inflicting injuries on the deceased is highly doubtful. 5.13 The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad Vs. State of Bihar & Anr. reported in (2022) 3 SCC 471, wherein the Apex Court has examined the case law with regard to the power of the High Court to overturned the decision of the Sessions Court where an another view is possible. Examining the case including that of Chandrappa & Ors. vs. State of Karnataka reported in (2007) 4 SCC 415, the Apex Court has culled out the general principles regarding the powers of the Appellate Court while dealing with the appeal against the order of acquittal. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence, and thereafter, upon securing of acquittal, the Page 17 of 18 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:04:46 IST 2025 NEUTRAL CITATION R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025 undefined presumption is further reinforced, reaffirmed and strengthened, and therefore, whenever there are two reasonable conclusions are possible on the basis of the evidence on record, ordinarily, the Apex Court would not disturb the findings of acquittal recorded by the Trial court.

6. In view of the reasonings assigned herein above as also the reasons assigned by the trial Court in the impugned judgment and order, the Court finds no reason to interfere with the acquittal recorded by impugned judgment and order dated 28-02-1995 passed in Sessions Case No.116 of 1991 by the Additional Sessions Judge, Bhavnagar.

7. In the result, the appeal fails and is dismissed. The judgment and order of acquittal dated 28-02-1995 passed in Sessions Case No.116 of 1991 by the Additional Sessions Judge, Bhavnagar, stands confirmed. Bail and bail bonds of the accused, if any, stand discharged. R & P be sent back to the concerned Trial Court.

Sd/-

(A.Y. KOGJE, J) Sd/-

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