Gujarat High Court
State Of Gujarat vs Kantibhai Moghjibhai Khant on 10 January, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
R/CR.A/445/2003 JUDGMENT DATED: 10/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 445 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT
Versus
KANTIBHAI MOGHJIBHAI KHANT & ORS.
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Appearance:
MR UTKARSH SHARMA, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3,4,5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 10/01/2025
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.22 of 2000 dated 05.10.2002 by learned Additional Sessions Judge, Panchmahals at Godhra, wherein and whereby all the accused were acquitted for the offences punishable under Sections 323 and 307 read with Section 114 of the Indian Penal Code, 1860 (for short "the IPC"). The accused are eight in number, who are arraigned in the offence and acquitted by the trial Court.
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2. It is the case of the prosecution, as per the F.I.R. at Exh.23, which is registered on 25.08.1999 and Charge at Exh.2, that at Batakwada Village at around 11 a.m., all the accused assaulted PW-3 - the injured witness viz. Bharatbhai Khemabhai Khant. As per the medical evidence, there are five injuries received by him due to assault of knife by the accused No.1, while the other accused caught hold of him.
3. The trial Court, after examination of the ocular as well as the documentary evidence, has acquitted the accused for the offence. The reason assigned by the trial Court for acquitting the accused is that the prosecution has miserably failed to establish the actual scene of offence, where the incident has occurred and also the genesis of the incident as alleged by the complainant. The trial Court has also observed that the important witnesses are also not examined by the prosecution.
4. So far as the medical evidence is concerned, it is not doubtful that the injured witness has received five injuries inflicted by sharp weapon and all the wounds were clean and sharp edged. The certificate dated 06.10.1999 at Exh.16 and MLC establish such injuries. The history recorded by the doctor does not refer to the names of the accused.
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5. Learned APP at the outset, has submitted that the impugned order, recording the acquittal of all the accused, is required to be quashed and set aside since the findings recorded by the trial Court run contrary to the ocular as well as medical evidence. At the outset, he has referred to the evidence of the injured witness and has submitted that his evidence clearly establishes that the incident has occurred and he was assaulted by the accused. He has also referred to the deposition of PW-5 - complainant, who is the father of the injured witness. It is submitted that his evidence is sufficient enough for inviting conviction of the accused, more particularly accused No.1, who was carrying the weapon and has inflicted serious blows on the injured witness. It is submitted that the injured witness has remained in the hospital for 11 days. Thus, it is urged that the order of acquittal passed by the trial Court may be set aside.
6. We have examined the evidence threadbare along with the findings of the trial Court. It is pertinent to note that as the per the Charge at Exh.2 and the complaint at Exh.23 dated 25.08.1999, the incident has occurred on 25.08.1999 at around 11 a.m. at Batakwada village. It is alleged that the accused No.1 has inflicted knife blows, accused Nos.2 and 6 had caught hold of the injured witness, where rest of Page 3 of 7 Uploaded by N.V.MEWADA(HC01571) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:25:13 IST 2025 NEUTRAL CITATION R/CR.A/445/2003 JUDGMENT DATED: 10/01/2025 undefined the accused had assaulted him by giving kicks and fist blows. Thus, the charge under Section 307 read with Section 114 and Section 323 of the IPC was framed.
7. We may first examine the evidence of PW-3 - the injured witness (Exh.20). He has categorically stated that on 25.08.1999, while he was present at his home and was having his meal, all the accused rushed there and lifted him. He has stated that though they came to assault his brother Mansing instead he was assaulted by them and accordingly, accused No.1 - Kantibhai Moghjibhai Khant inflicted five knife blows on him and he was unconscious because of such assault. He has specifically deposed that he is not aware about the cause of such assault and he has referred all the accused are close relatives.
8. Similarly, the father of the injured witness and also the complainant i.e. PW-5, Khemabhai Khant, who is examined below Exh.22, has narrated the incident that the incident had happened on 25.08.1999 at 11 a.m. at his home however, he was not present. He was informed about such incident by his son - Mansing and on his return, the villagers have informed him about the incident.
9. There is an eye-witness i.e. PW-4, Gautambhai Sadubhai, who is examined below Exh.4 by the prosecution. He has also referred the incident Page 4 of 7 Uploaded by N.V.MEWADA(HC01571) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:25:13 IST 2025 NEUTRAL CITATION R/CR.A/445/2003 JUDGMENT DATED: 10/01/2025 undefined that happened on 25.08.1999 however, it is pertinent to note that he has shifted the place of incident from home of the injured witness and the complainant to open place on the road. He has specifically stated that when the incident had happened, he was at home and when he heard hues and cries, he came out of his house and saw that the accused and injured witness were quarreling. He has only referred to the name of the accused No.1, who was holding knife however, he was unable to identify or name of other accused. In his cross-examination, it is elicited that the injured witness was assaulted by the accused at the place, which was at least 30 feet away from his house.
10. The evidence of all these aforesaid witnesses is read and examined. Neither the reason or genesis of assault is emerging nor actual place of the incident where the alleged incident has occurred, is established.
11. At this stage, we may refer to the scene of offence panchnama at Exh.25, which has been prepared in presence of Mansing, who is the son of the complainant and brother of the injured witness, wherein place of the incident is referred to as his house. The scene of offence does not refer to any blood stains or any noticeable sign, which can suggest that such Page 5 of 7 Uploaded by N.V.MEWADA(HC01571) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:25:13 IST 2025 NEUTRAL CITATION R/CR.A/445/2003 JUDGMENT DATED: 10/01/2025 undefined incident, which involves eight accused, has happened in the house. The trial Court, after examining such fact, has concluded that the prosecution has miserably failed in pointing out the place of incident.
12. We may also refer to the contents of the complaint, which is registered by PW-5 - father of the injured witness. He has categorically stated that some incident had occurred one day prior to the date of incident i.e. on 24.08.1999 involving his son - Mansing, which pertains to his bullocks having trespassed in the land of the accused.
13. The injured witness and the complainant have tried to suppress the actual genesis of the incident and in fact, the injured witness has deposed that he is not aware why he was assaulted. It is also very pertinent to note that as per his evidence, the accused No.1 has in fact, came to assault his brother. The brother of the injured witness, who is the most important witness, and could have supported the case of the prosecution, has not been examined in the trial Court. The trial Court has also recorded that on physical examination of the accused No.1, it was found that there were injuries, which he had suffered on his back however, no explanation is coming.
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14. On an overall appreciation of the evidence as well as the findings of the trial Court, we are not inclined to interfere with the acquittal recorded by the trial Court acquitting the accused, for the offence for which they were charged.
15. The appeal, in view of the foregoing observations, fails. The same is hereby dismissed.
Registry to send back the Record and proceedings to the concerned Court.
Sd/-
(A. S. SUPEHIA, J) Sd/-
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