Gujarat High Court
State Of Gujarat vs Mashrubhai Ratnabhai Rabari on 31 January, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 826 of 1995
With
R/CRIMINAL REVISION APPLICATION NO. 2923 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
MASHRUBHAI RATNABHAI RABARI & ORS.
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Appearance:
APPEARANCE IN CRIMINAL APPEAL
MR.L.B.DABHI, APP, for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,2,5,7
MR N P CHAUDHARY(3980) for the Opponent(s)/Respondent(s) No. 3,4,6,8
APPEARANCE IN CRIMINAL REVISION APPLICATION
MR KAIVAN K PATEL, for the Applicant
MR.L.B.DABHI, APP, for the Respondent No.9
ABATED 1-2,5,7
MR YOGESH S LAKHANI for the Respondent Nos.3, 4 ,6,8
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 31/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The State has preferred the present appeal under Section 378 of Code of Criminal Procedure against the judgment and order dated Page 1 of 13 Uploaded by SIDDHARTH(HC01065) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:38:45 IST 2025 NEUTRAL CITATION R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025 undefined 26.05.1995 passed by the Additional Sessions Judge, Palanpur in Sessions Case No. 101 of 1993. By the impugned judgment and order, the accused persons were tried for the charge of offence under Sections 147, 148, 149 and 302 of the IPC and Section 135 of the Bombay Police Act.
2.It is an incident where the deceased Kurshibhai Khodabhai Rabari was assaulted by eight assailants armed with sticks on vital part of the body, resulting into death of Kurshibhai.
3. In all, eight accused persons were tried of which reportedly accused No.1-Mashrubhai Ratnabhai Rabari, accused No.2-Chehrabhai Karshanbhai Rabari, accused No.5-Govabhai Ratnabhai Rabari and accused No.7-Malabhai Ratnabhai Rabari have already expired and hence, appeal qua them stands abated. In this connection, this Court had passed an order dated 28.04.2022.
4. Learned Additional Public Prosecutor submitted that the case of the prosecution was based on the deposition of the eyewitnesses whose presence at the time of scene of offense was natural and therefore, the Sessions Court has committed an error in disbelieving the eye-witnesses. It is submitted that merely because an eye-witness is relative of the deceased, cannot be the reason to disbelieve such witnesses.
4.1 Learned APP has thereafter, submitted that the error is committed by the Sessions Court in concluding that the version of the Page 2 of 13 Uploaded by SIDDHARTH(HC01065) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:38:45 IST 2025 NEUTRAL CITATION R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025 undefined eye-witnesses do not match with the documentary evidence insofar as the injuries recorded in the medical case papers. 4.1 It is submitted that the fact that by examining the medical officer, the prosecution is able to establish the injuries. The part of the body on which such injuries are caused and opinion of the medical officer to the effect that the muddamal articles (wooden stick) used in the assault are capable of causing such an injury, is sufficient for the prosecution to establish the homicidal death as well as the role attributed to the accused persons.
4.2 Learned APP has lastly submitted that the prosecution was also able to establish the motive behind the assault as it is coming out clearly on the evidence of witnesses that dispute arose as the deceased had reprimanded accused No.6 for letting the cattle in the open field and when reprimanded, accused No.6 assaulted the deceased with stick and other persons being residents of neighbourhood rushed to the scene of offense and also caused the assault. This incident was established by the prosecution ought to have been believed by the Sessions Court as the prosecution was able to establish the same beyond reasonable doubt.
5. When the matter is called out, learned advocate for the respondents is absent. As the matter is of the year 1995, the Court deems it fit to take up for hearing with the assistance of learned APP.
6. It is found that the informant side has also filed a revision application however, when the matter is taken up for hearing, learned Page 3 of 13 Uploaded by SIDDHARTH(HC01065) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:38:45 IST 2025 NEUTRAL CITATION R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025 undefined advocate for the revisonist is also absent. However, the Court has referred to the pleadings made by the revisionist in the revision application, wherein the pleadings are quite identical to the submissions made by learned APP.
7. The Court has taken into consideration the submission made by learned APP, the pleadings and the records and proceedings.
The FIR being C.R.No.51 of 1993 came to be registered in connection with the incident which took place on 10.05.1993 at 18:00 hours, wherein the deceased Kurshibhai Khodabhai Rabari was assaulted by the accused persons with sticks Vide Exh.3 charge came to be framed, wherein it is alleged that on 10.05.1993 at 18-00 o'clock or during that time, near Chabutra at Krishnapura in Saamdhi Mota-vas village of Palanpur Taluka of Banaskantha district, the accused persons formed unlawful assembly in furthefrance to the common intention of causing death of the deceased Kurshibhai Khodabhai Rabari with lethal weapons such as sticks and by using force, committed riot and thereby have committed punishable offense under Section 147, 148 and of Indian Penal Code within the jurisdiction of this Court. Further, on the said date, time and place, with intention of fulfilling the common intention of the said unlawful assembly, the accused No.7, Rabari Malabhai Ratanabhai and accused No.6 Maganbhai Ramabhai Rabari, despite having knowledge or despite having reason to believe that, the deceased Kurshibhai Khodabhai Rabari would die due to inflicting blows of stick on his head, you accused No.7, Rabari Malabhai Page 4 of 13 Uploaded by SIDDHARTH(HC01065) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:38:45 IST 2025 NEUTRAL CITATION R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025 undefined Ratanabhai and accused No.6 Maganbhai Ramabhai Rabari inflicted blows of stick on the head of the deceased Kurshibhai Khodabhai Rabari and accused Nos. 1, 2, 3, 4, 5 and 8 indiscriminately inflicted blows of stick on hands, legs and various parts of the body of deceased Kurshibhai Khodabhai Rabari and murdered the deceased Kurshibhai Khodabhai Rabari him by causing his death and thereby have committed punishable offense under Section 302 and 149 of Indian Penal Code.
8. The prosecution has examined Medical Officer as PW-1-Dr. Babulal Becharbhai Suratiya at Exh.15. In his deposition, he has described seven external injuries and three internal injuries and has given the cause of death as shock and hemorrhage due to head injury. This witness was shown the muddamal articles sticks and the witness has opined that the injury sustained by the decease are possible by the use of the muddamal articles. Therefore, through this witness, the prosecution has established the postmortem report vide Exh.16.
9. The prosecution has therefore, established the fact of homicidal death of Kurshibhai. However, what is relevant for the purpose of this case is the role played by the responents-accused persons and for that reason, the prosecution has examined PW-2-Rajabhai Bhagwanbhai Rabari, who is the cousin brother of the deceased. According to this witness, he has deposed that he reached the place of incident upon being informed by his relative Sitaben and when he reached the place she saw the incident taking place where the accused persons were indiscriminately assaulting the deceased person.
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The Court has perused the cross-examination of this witness at length and it appears that the present witness could not be termed to be a natural witness, accompanying the deceased when the incident took place, but has reached the place of incident only upon being informed by his relative namely Sitaben, who is examined as PW-3. Apparently, the version which is coming out therefore, of this witness cannot be relied upon as he reached the place of offense of offense later on.
10. According to the Court, the only person who can be treated as eye- witness is Sitaben Malabhai Rabari, who is niece of the deceased and is examined as PW-3 vide Exh.26. In her deposition, she has stated that in the evening hours, after completing their agricultural work at their agricultural field she had left alongwith her uncle (deceased) towards their home and on the way near Chabutra they came across Maganbhai Ramabhai (Accused No.6) standing there with stick and the deceased therefore, confronted the said Maganbhai Ramabhai on the issue of letting the cattle into their village and reprimanded him, it is at that stage, that accused No.6 assaulted with stick to deceased on his head. As a result, he fall down and thereafter, other accused person who were residents of neighbourhood rushed towards the scene of offense and started indiscriminate assault upon the deceased person. In the cross- examination, this witness was asked questions with regard to the daily routine of her coming and going to the agricultural field and to question, whether this witness was a genuine witness and also the version of this Page 6 of 13 Uploaded by SIDDHARTH(HC01065) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:38:45 IST 2025 NEUTRAL CITATION R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025 undefined witness with regard to the participation of accused other than accused No.6 in the incident of assault for invoking Section 149 of the Indian Penal Code. Apparently, it has come out from the cross-examination that the incident had taken place at a public place chabutra which would be crowded and at a time, where it is expected that there would be several witnesses to the incident despite this it is only eye-witness on which the prosecution has relied upon. Over all reading of deposition of this witness indicates that insofar as the first incident between Maganbhai Ramabhai and assault carried out by him is concerned, appears to be an incident which has genuinely taken place however, with regard to the participation of other accused persons rushing from their respective home to the scene of offense and carrying out the assault appears to be an exaggerated version.
11. As the witness has given a version beyond what actually has taken place, the Sessions Court was justified in discarding the evidence of this sole eye-witness.
12. Insofar as the the sole eye-witness version is in doubt, obviously the prosecution can still strengthen their case on the basis of corroboration that may be available to support the version of the eye- witnesses. In the present case, the prosecution has examined panch witnesses of the discovery panchnama during which the muddamal article sticks allegedly used in the offense have been discovered. PW-4 is the panch witness of the panchnama for discovery of sticks from accused Nos.1 to 6 however, this witness has not supported the case of the prosecution. Similarly, PW-5 Malabhai Virjibhai Desai vide Exh.28 Page 7 of 13 Uploaded by SIDDHARTH(HC01065) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:38:45 IST 2025 NEUTRAL CITATION R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025 undefined has been examined, who was a panch witness to the discovery panchnama of stick discovered from accused Nos.7 and 8. This witness has also not supported the drawing of panchnama. The co-panch PW- 6-Nagjibhai Kalyanbhai Desai of panchnama at Exh.30 has also not supported the case of the prosecution.
13. The Court has thereafter, taken into consideration the evidence of the Investigating Officer, who has carried out the investigation and has referred to the discovery panchnama (marks 14/6) which was given Exh.60, however, except for referring to the execution of panchnama vide Exh.40 and Exh.41 respectively, no further details have been narrated during his evidence in chief.
14. The Court has thereafter, perused the evidence of the FSL and the report exhibited vide Exh.42 would indicate that the articles sent for FSL did not consist of any article which would connect the respondents- accused persons with the offense. All the articles which were sent consisted of the clay and controlled clay and the clothes of the deceased which he was wearing at the time of offense. Insofar as the sticks which, were discovered are concerned, the panchnama itself would indicate that no stain of blood was found on the stick.
15. In that eventuality also, the prosecution has failed to establish the connection of use of stick at the time of incident in assault on the deceased. The Court has observed that the description of injury would indicate that injuries were stained with blood which would indicate that if Page 8 of 13 Uploaded by SIDDHARTH(HC01065) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:38:45 IST 2025 NEUTRAL CITATION R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025 undefined there was a assault by the sticks which are discovered, the same would leave a mark or a stain which is not found in the present case.
16. The Court has also perused the reasonings assigned by the Sessions Court in disbelieved the eye-witness, which according to the Court, are justifiable. The sessions court has assigned its own reasons for not considering the evidence of Sita Ben and has recorded in the impugned Judgment that :-
Sitaben has stated that, only two of them i.e. Sitaben and Kurshibhai were present at the place of offense and at the time of incident and after the incident also, she has not seen any other person coming at the place of offense except the accused persons and other four persons including the son of Kurshibhai and the complainant etc. As stated by her, there is a public road at the place of incident and the road leads towards Gharpadi and Nava Gaam. She states that, generally there would be movement of many people at the place of offense. She also states that, the houses of Kalyan Hira, Raja Hira, Moti Kopa are situated at the place on the east of the road after the area of Krishnapura ends and they reside there with their family. However, she has stated that, all of them came to reside there after the incident occurred. Whatever it may be, but one fact is certain that, the said incident occurred at the cross roads of the village and it can be believed that, there would be movement of people on that road as it was evening time and there is a Dairy nearby and in any circumstance, it is not believable that, there was no one on this type of road having such Page 9 of 13 Uploaded by SIDDHARTH(HC01065) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:38:45 IST 2025 NEUTRAL CITATION R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025 undefined movement and it appears to me that, Sitaben is not stating truth in her deposition about this issue. It is an undisputed fact that, the sole witness of the incident is Sitaben and as she is the niece of Kurshibhai, the Court should examine her evidence closely because she is an interested witness. In addition to that, both the parties had animosity regarding election which is an established fact on record and considering the same, Sitaben is an interested witness and therefore her evidence should be closely examined. In this manner, if we closely examine the evidence of Sitaben, she has stated a fact in her statement that, all the eight accused persons had beaten Kurshibhai with more than one stick which cannot be counted. On the basis of this fact, there should be numerous injuries on the body of Kurshibhai but, if we see the deposition of the Doctor, the deceased Kurshibhai had sustained eight external injuries and as stated by Dr. Babulal Bechardas Sutariya, out of all the eight external injuries, injury No.7 on the head was caused due to blood clot, therefore injury No.7 is not an independent injury. Whereas, the Doctor has stated in his aforesaid cross-examination that, injury No.1 can be caused due to injury No.2.
Upon considering the evidence of the Doctor, Injury No. 1 is also not independent injury. Therefore, Kurshibhai sustained only six injuries on the whole body except two injuries. If each of the eight persons would have hit a stick then Kurshibhai would sustained at least eight injuries. However, as stated by Sitaben, Kurshibhai sustained many stick blows from all directions. Under these circumstances, it is not possible that one injury occurs on the other one and therefore it should Page 10 of 13 Uploaded by SIDDHARTH(HC01065) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:38:45 IST 2025 NEUTRAL CITATION R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025 undefined be more than six injuries. However, no such type of injury is found. As stated by Sitaben, accused persons had caused injuries to her uncle by sticks and therefore blood was oozing from the body. The clothes were sent to Forensic Science Laboratory for the investigation which were seized from the body of the deceased. The report of Forensic Science Laboratory is produced at Exhibit-42. It may be stated as per the report at Exhibit-42 that blood was found on the dhoti, kurta and vest. Blood of A-Group was found on it. Blood of A-Group was also found on the soil seized from the place. Therefore, it is proved by the report of Forensic Science Laboratory at Exhibit-42 that the blood was oozing from the body of the deceased. The blood must be found on the object by which the deceased was hit. As per the case of the prosecution, the accused persons hit stick blows to the deceased. These sticks were seized from the accused persons after the panchnama was drawn at Exhibit 40 and
41. The pancha Vajesingh Bechar, Panchabhai Hirabhai, Malabhai Devjibhai and Nagjibhai Kalyanbhai were examined vide Exhibit 27, 57, 28 and 29 respectively. As these four panchas do not corroborate with the case of the prosecution, they have been declared as hostile by the prosecution. Therefore, the fact it is not proved that, the accused persons produced the muddamal sticks or the muddamal sticks were found from the accused persons. Even if we believe for the sake of argument that, sticks were seized only from the accused persons and even if the panchnama at Exhibit 40 and 41 is read, it did not appear that the blood stains were found on the stick. In addition to that, no blood was found on the clothes of the accused. Now, if Kurshibhai had Page 11 of 13 Uploaded by SIDDHARTH(HC01065) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:38:45 IST 2025 NEUTRAL CITATION R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025 undefined excessive bleeding, the blood would have been spilled on the ground and the drops of blood must have been splashed on the ground and on the stick and on any of the accused persons. However, no such fact is found in this case. Therefore, it is not admissible that the accused persons had inflicted stick blows to Kurshibhai. Therefore, it can be stated that there is fact in the case of the accused that someone killed Kurshibhai and his dead-body was thrown in the outskirts of the village and a false case was filed due to animosity with the accused persons. If such was not the case, any person would have been testified as witness if any person residing nearby or passing from there would have been examined by the prosecution. No such witnesses have been examined.
17. However, upon considering the deposition of Sitaben, she has stated in her deposition that many injuries were sustained. However, upon considering the evidences of the Doctor, Kurshibhai sustained only six injuries. No corroboration is found to the sole eye witness.
17. 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 Page 12 of 13 Uploaded by SIDDHARTH(HC01065) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:38:45 IST 2025 NEUTRAL CITATION R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025 undefined 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 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.
18. In view of the aforesaid finding, the Court does not find any to interference. In the result, the appeal fails and is dismissed. The judgment and order of acquittal 26.05.1995 passed by the Additional Sessions Judge, Palanpur in Sessions Case No. 101 of 1993 stands confirmed. Bail and bail-bonds of the accused, if any, stand discharged. Records and proceedings be sent back to the concerned trial Court.
19. In view of the order passed in the appeal the Criminal Revision Application does not survive. Hence, the same stands disposed of accordingly.
(A.Y. KOGJE, J) (SAMIR J. DAVE,J) SIDDHARTH Page 13 of 13 Uploaded by SIDDHARTH(HC01065) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:38:45 IST 2025