State Of Gujarat vs Aher Devshi Ranmal

Gujarat High Court

State Of Gujarat vs Aher Devshi Ranmal on 27 January, 2025

Author: A.S. Supehia

Bench: A.S. Supehia, Gita Gopi

                                                                                                                  NEUTRAL CITATION




                           R/CR.A/394/1997                                       JUDGMENT DATED: 27/01/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/CRIMINAL APPEAL NO. 394 of 1997


                      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
                                                                                              √
                      ==========================================================
                                                      STATE OF GUJARAT
                                                            Versus
                                                  AHER DEVSHI RANMAL & ORS.
                      ==========================================================
                      Appearance:
                      MS C.M. SHAH APP for the Appellant(s) No. 1
                      ABATED for the Opponent(s)/Respondent(s) No. 4,5,6
                      BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
                      MR PM LAKHANI(1326) for the Opponent(s)/Respondent(s) No. 1,2,3
                      MRS R P LAKHANI(3811) for the Opponent(s)/Respondent(s) No. 1,2,3
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                               and
                               HONOURABLE MS. JUSTICE GITA GOPI

                                                  Date : 27/01/2025
                                                  ORAL JUDGMENT

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

1. The present appeal is confined to the original accused No.2 - Ahir Devshi Ranmal, accused No.3 - Ahir Malde Ranmal and accused No.4 - Ahir Meraman Naran, respondent Nos.1 to 3 herein. The present appeal is abated so far as rest of the original accused Nos.6 to 8, respondent Nos.4 to 6 herein, are concerned.

NEUTRAL CITATION R/CR.A/394/1997 JUDGMENT DATED: 27/01/2025 undefined

2. The present appeal filed under Sections 378(1)((3) of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 31.01.1997 passed by the learned Additional Sessions Judge, Jamnagar in Special Case No.84 of 1992.

3. The case of the prosecution, as per the charge at Exh.6 and the complaint at Exh.94, registered by the complainant - P.W.6 is that on 24.07.1992, the accused, eight in number had come with a tractor armed with various weapons like scythe, iron rods and sticks assaulted the complainant and the other injured witnesses due to some land dispute. The charge for the offences punishable under Sections 447, 324, 326, 337, 302 read with Section 149 of the Indian Penal Code (for short 'IPC') were framed against the accused persons.

4. At the end of the trial, the trial Court has convicted the original accused Nos.1 and 5 under the provisions of Section 304 Part-1 of the IPC and sentenced them to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs.10,000/-. The trial Court acquitted them for other charges levelled against them and also acquitted the accused Nos.2, 3 and 4 for all the charges vide judgment and order dated 31.01.1997 passed by the learned Additional Sessions Judge, Jamnagar in Special Case No.84 of 1992. The said acquittal has given rise to the present appeal filed under section 378 (3) of the Code of Criminal Procedure, 1973.

5. Learned APP Ms. C.M. Shah, at the outset, while referring to the evidence of the complainant P.W.6 - Ranmal Page 2 of 12 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:57:49 IST 2025 NEUTRAL CITATION R/CR.A/394/1997 JUDGMENT DATED: 27/01/2025 undefined Raide has submitted that the complainant in his FIR as well as before the trial Court has categorically described the role played by the present accused i.e. the accused Nos.2, 3 and 4 in the assault. She has submitted that the accused No.3 had given a blow of wooden bat on the face of the complainant. For the other accused, she has submitted they were all present on the tractor and had arrived with other co-accused on the day of the incident at the field of the complainant and on refusing him not to take the tractor from that way, all the accused had attacked them and they suffered serious injuries.

6. Learned APP Ms. Shah has also referred to the evidence of the injured eye witness P.W.9 - Haja Jiva at Exh.66 and has submitted that he has also reiterated the manner in which they were assaulted by the accused. She has submitted that the assault on this witness was so grievous that he felt unconscious and he was thereafter referred to the Hospital.

7. Learned APP has also referred to the medical evidence to the Doctor Vinaykant Premjibhai Chawda, P.W.2, examined at Exh.36 and another Doctor Navinchandra Kanjibhai Haria, P.W.3, examined at Exh.45, who has specifically narrated the injuries suffered on the complainant and the other injured witnesses. She has submitted that the trial Court ought to have convicted all the accused by taking the aid of Section 149 of the IPC. She has also referred to another injured witnesses P.W.9 - Haja Jiva, who has been examined at Exh.66 and an eye witness P.W.10 - Devabhai Maldebhai, who has been examined at Exh.67.

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8. While referring to the evidence of the Investigating Officer P.W.15 - Jaydevsinh Jaywantsinh Jadeja, who has been examined at Exh.106, she has submitted that his evidence categorically reveals that the incident had occurred on the said day. She has also referred to the deposition of Investigating Officer P.W.20 - Vikramsinh Dasrathsinh Gohil, who has been examined at Exh.121 and has submitted that his evidence reveals that the incident had occurred and all the accused were present on that day and have assaulted the deceased as well as injured persons. Thus, it is submitted that the acquittal recorded by the trial Court may be reversed.

9. In support of her submissions, learned APP has referred to the decision of the Supreme Court in case of Mano Dutt And Another vs. State of Uttar Pradesh, (2012) 4 SCC 79, for the proposition of law that the absence of any investigation with regard to the injury suffered by the accused, cannot be made the basis for their acquittal.

10. Per contra, learned senior advocate Mr. P.M. Lakhani appearing for the respondents-accused has submitted that the acquittal recorded by the trial Court may not be interfered, as there is no perversity or illegality committed by the trial Court in acquitting the accused. He has submitted that in fact, there is no investigation done with regard to the assault on the accused by the complainant side. He has referred to the statements recorded under Section 313 of Cr.P.C. and submitted that the accused have categorically stated that initially the assault was done by the complainant side and they had acted in self-defence and due to the quarrel injuries had Page 4 of 12 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:57:49 IST 2025 NEUTRAL CITATION R/CR.A/394/1997 JUDGMENT DATED: 27/01/2025 undefined suffered on both the sides.

11. Learned senior advocate Mr. P.M. Lakhani has referred to the medical evidence of the accused and submitted that they were also grievously injured whereas, all the injured witnesses as well as the complainant has suppressed the incident. It is also submitted that the investigation with regard to the injuries suffered by the accused is not investigated and hence, the trial Court has precisely acquitted the accused for the offences. It is also submitted that the facts of the case and the manner in which the incident had occurred does not satisfy the ingredients of section 149 of the IPC and as the trial Court has not taken aid of the said section while convicting the other accused.

12. In support of his submission, learned senior advocate Mr. Lakhani has placed reliance on the judgment in case of Lakshmi Singh and Others v. State of Bihar, AIR 1976 Supreme Court 2263.

13. Since the appeal is only confined to the original accused Nos.2, 3 and 4 i.e. Ahir Devshi Ranmal, Ahir Malde Ranmal and Ahir Meraman Naran, we have examined the matter and the evidence as well as the judgment of the trial Court in context to their role, as canvassed by the prosecution before the trial Court and learned APP before us. On a perusal of the charge at Exh.6, we have noticed that there is no specific allegations levelled against the accused Nos.2 and 4 i.e. Ahir Devshi Ranmal and Ahir Meraman Naran. However, the charge refers to the role played by the accused No.3 - Ahir Page 5 of 12 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:57:49 IST 2025 NEUTRAL CITATION R/CR.A/394/1997 JUDGMENT DATED: 27/01/2025 undefined Malde Ranmal and the offence under Section 326 of IPC has been invoked against him along with accused Nos.7 and 8 for assaulting the complainant.

14. The deposition of the complainant at Exh.61 describes the role of the accused No.2 only. There is no reference to the role to the accused Nos.1 and 3 in his deposition except that they were sitting on a tractor. It is deposed that the accused- Ahir Malde Ranmal had assaulted him with the wooden bat on his face. When he was confronted with the other evidence about the assault and the injury suffered to the accused persons, he has totally denied the same. He has categorically in his cross-examination stated that he has not seen anyone suffering the injuries of any blood oozing from the body of the accused. Thus, he has totally denied the other incident. Similar is the evidence of the other eye witnesses P.W.9 as well as P.W.10.

15. At this stage, we may refer to the deposition of P.W.3 - Dr. Navinchander Kanjibhai, which has been examined at Exh.45. He has referred to the injury suffered by the accused- Malde Ranmal and he refers that he has suffered three injuries. The Medical Certificate produced at Exh.51 of the said accused reveals following injuries:

H/o Assault by Dhariya & axe today at 8 AM O/E 1.1 W 3" x 1" x bone deep obliance on Lt. Parieto occipital region lateral part 2.1 W 5" x 2" x muscle deep on Posterior axillary grouve Lt.

3.Abrasion 1" x 1" on Rt.knee with stabbing Page 6 of 12 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:57:49 IST 2025 NEUTRAL CITATION R/CR.A/394/1997 JUDGMENT DATED: 27/01/2025 undefined

16. From the evidence of the Investigating Officers P.W.15 (Exh.106), P.W.16 (Exh.107) and P.W. 20 (Exh.121), discloses that there was a cross FIR, which was registered by the present accused. Thus, it is not in dispute that incident had occurred on said day involving the complainant side as well as the accused side. We may also refer to the statements of the accused recorded under Section 313 of the Cr.P.C., wherein they have categorically stated that they were assaulted by the complainant with deadly weapons like scythe and iron roads and there were also pelting of stones on each other side, which has resulted injuries. These facts are absolutely suppressed by the witnesses.

17. The trial Court after recording the evidence of the injured witnesses as well as the complainant has held that the prosecution has miserably failed to prove the manner in which the actual incident has occurred and the injuries suffered by the accused. The medical evidence also corroborates that the accused had also suffered injuries in the incident.

18. We may, at this stage, refer to the observation of the Supreme Court in case of Lakshmi Singh (supra). The same are as under:

"11. ...It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

NEUTRAL CITATION R/CR.A/394/1997 JUDGMENT DATED: 27/01/2025 undefined (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one..."

19. Thus, as per the law enunciated by the Supreme Court, the non-explanation of the injuries sustained by the accused at the time of occurrence or in the course of altercation is very important circumstance from which the Court can draw the inferences, such as, the prosecution has suppressed the genesis and the origin of the occurrence and has not presented the true version and also that the witnesses, who have denied the presence of the injuries on the person of the accused are lying on a material point. It is further held that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version, which competes in probability with that of the prosecution one.

20. The accused in their defence have specifically mentioned that the act was done in defence, and they were assaulted by the complainant and other persons. In the statement recorded under section 313 of the Cr.PC, they have categorically mentioned the assault on them. The medical evidence also Page 8 of 12 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:57:49 IST 2025 NEUTRAL CITATION R/CR.A/394/1997 JUDGMENT DATED: 27/01/2025 undefined corroborates their version. We may at this stage refer to the decision of the Supreme Court in the case of Darshan Singh v. State of Punjab and Another, reported in (2010) 2 SCC 333, wherein the Supreme Court has summarized the principle and scope of Sections 96 and 106 of the IPC, which deals with the right of preventive defence. The same is as under :-

"58. The following principles emerge on scrutiny of the following judgments:

(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries.

All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-

creation.

(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.

(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

(vii) It is well settled that even if the accused does not plead self- defence, it is open to consider such a plea if the same arises from the material on record.

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

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(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."

21. The Supreme Court in the case of Sukumaran v. State Rep. by the Inspector of Police, reported in AIRONLINE 2019 SC 137 has held as under :-

"33. Section 97 of IPC provides that a right of private defence extends not only to the defence of one's own body against any offence affecting the human body but also to defend the body of any other person. The right also embraces the protection of property, whether one's own or another person's, against certain specified offences, namely, theft, robbery, mischief and criminal trespass. The limitations on this right and its scope are set out in the sections which follow. For one thing, the right does not arise if there is time to have recourse to the protection of the public authorities, and for another, it does not extend to the infliction of more harm than is necessary for the purpose of defence. Another limitation is that when death is caused, the person exercising the right must be under reasonable apprehension of death, or grievous hurt, to himself or to those whom he is protecting; and in the case of property, the danger to it must be of the kinds specified in Section 103. The scope of the right is further explained in Sections 102 and 105 of the IPC.(See observations of Justice Vivian Bose in Amjad Khan vs. Haji Mohammad Khan, AIR 1952 SC 165)"

22. Keeping in mind the aforesaid principles and applying the same to the facts of the case, the evidence which is established on record reveals that the complainant had tried to suppress the true and correct facts. The Investigating Officer also did not care to investigate the entire incident and did not think it fit to call for an explanation of the injuries suffered by the accused.

23. In the instant case, as we have noticed hereinabove and on overall appreciation of the evidence, we completely agree Page 10 of 12 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:57:49 IST 2025 NEUTRAL CITATION R/CR.A/394/1997 JUDGMENT DATED: 27/01/2025 undefined with the findings recorded by the trial Court that the prosecution has suppressed the genesis and the origin of the occurrence. The witnesses have also denied the presence of injuries on the accused and have not established themselves as a reliable witness. Thus, the actual genesis on which the incident had occurred is not established in the present case. We also failed to understand the framing of charge under the provision of section 149 of IPC in wake of the incident. The evidence does not in any manner satisfy the ingredients of section 149 of the IPC.

24. In the case of Ram Kumar v. State of Haryana, AIR 1995 SC 280, Supreme Court has held as under:

"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."

25. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh, (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh, (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Page 11 of 12 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:57:49 IST 2025 NEUTRAL CITATION R/CR.A/394/1997 JUDGMENT DATED: 27/01/2025 undefined Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.

26. It is settled legal precedent that the inference of common object has to be drawn from various factors such as, the weapons with which the members were armed, their movement, the acts of violence committed by them. In the present case, when the witnesses have not established themselves as a reliable witnesses and have not come out with the true facts and the genesis of the incident, the present accused cannot be convicted by taking aid of section 149 of the IPC.

27. Thus, on the overall appreciation of the evidence and threadbare examination of the judgment of the trial Court, we find that the trial Court has not committed the perversity or illegality, inviting interference of this Court while examining the appeal.

28. In light of the above, the appeal stands dismissed. Record & Proceedings be sent back to the concerned Trial Court forthwith.

(A. S. SUPEHIA, J) (GITA GOPI,J) Pankaj /4 Page 12 of 12 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:57:49 IST 2025