State Of Gujarat vs Koli Jesang Bhagwan
2023 Latest Caselaw 2889 Guj

     R/CR.A/419/2002                                JUDGMENT DATED: 12/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 419 of 2002


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI                                Sd/-

and
HONOURABLE MRS. JUSTICE M. K. THAKKER                                  Sd/-

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1     Whether Reporters of Local Papers may be allowed                   No
      to see the judgment ?

2     To be referred to the Reporter or not ?                            No

3     Whether their Lordships wish to see the fair copy                  No
      of the judgment ?

4     Whether this case involves a substantial question                  No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                              STATE OF GUJARAT
                                    Versus
                       KOLI JESANG BHAGWAN & 2 other(s)
==========================================================
Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR ASHISH M DAGLI(2203) for the Opponent(s)/Respondent(s) No. 1,2,3
==========================================================

    CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
          and
          HONOURABLE MRS. JUSTICE M. K. THAKKER

                                Date : 12/04/2023

                               ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)

R/CR.A/419/2002 JUDGMENT DATED: 12/04/2023

1. Learned APP Ms. Jirga Jhaveri appearing for the

appellant - State produces on record the statement of

Gugabhai Bhagwanbhai Kakrecha recorded by police Head

Constable, Halvad Police Station stating therein that Jesang

Bhagwan, respondent No. 1 - accused no. 1, who happens to

be elder brother of the person whose statement was

recorded, has expired on 03.12.2017 and produced the xerox

copy of death certificate. Alongwith the said statement and

certificate, xerox copy of death certificate in respect of

Gagjibhai Vitthalbhai, who happens to be respondent no. 3 -

accused no. 3 who has expired on 25.11.2011 is also

produced. The said fact is also confirmed by learned

advocate Mr. Ashish Dagli who represents both of them. In

view thereof, the present Appeal abates for the death of

those two respondents qua them and it remains only against

respondent no. 2 - accused no. 2 - Koli Kamuben w/o Jesang

Bhagwan.

2. This Appeal is filed by the State of Gujarat under

R/CR.A/419/2002 JUDGMENT DATED: 12/04/2023

section 378 of the Code of Criminal Procedure, 1973

(hereinafter referred to as 'the Code') challenging the

judgment and order of acquittal recorded by Additional

Sessions Judge, Dhrangadhra dated 07.11.2001 rendered in

Sessions Case No. 12 of 1998 against the respondents -

accused. However, as order passed today, pursuant to

statement recorded by Police Head Constable, Halvad Police

Station of Gugabhai Ghagwanbhai Kakrecha, who happens to

be younger brother of respondent no. 1 - accused no. 1 - Koli

Jesangbhai Bhagwanbhai, who has died on 03.12.2017 and

pursuant to xerox copy of death certificate in respect of

respondent no. 3 - accused no. 3 Koli Gagjibhai Vitthalbhai,

the appeal is ordered to be abated qua them. Therefore, this

Appeal, that too, at the instance of the State, is heard against

respondent no. 2 - accused no. 2 Koli Kamuben w/o

Jesangbhai Bhagwanbhai only.

3. Heard Ms. Jirga Jhaveri, learned APP for the State.

4. According to her submission, prosecution examined

19 witnesses and produced and proved certain documents to

R/CR.A/419/2002 JUDGMENT DATED: 12/04/2023

bring home the charge against the respondents - accused.

She has further submitted that considering the depositions of

eye-witnesses, PW 13 - Jadubhai Devashibhai, PW 14 - Dhiru

Amarshi, PW15 - Dilu Amthubhai, PW16 - Bhoja Karamshi

Bharvad, PW17 - Mahavirsinh Mahobatsinh, the prosecution

has successfully brought home the charge against the

respondents - accused and since the order of acquittal

recorded by the learned Sessions Judge is erroneous and

perverse not considering the relevant evidence in its true

perspective, this Appeal requires to be entertained and

allowed. She has further submitted that this is a case of

ghastly murder committed by the accused and they are said

to have beheaded deceased Lakhubha and buried him in the

forest area.

5. After reading the evidence of aforesaid five

witnesses, she has submitted that they were the eye

witnesses and they had seen the incident, though it was not

immediately reported to the police, their evidence in respect

of involvement of the respondents - accused, proved the

charge against them and accused are required to be

R/CR.A/419/2002 JUDGMENT DATED: 12/04/2023

convicted for the offence of murder of deceased Lakhubha

and suitably punished.

6. We would have heard further in detail, though

reading of evidence is almost over, but since all the male

accused who are said to be armed with deadly weapons and

assaulted the deceased as per the case of prosecution,

though evidence in respect thereof lacking, have died and

respondent no. 2 - accused no. 2 - Kamuben herein is the

only surviving accused, against whom this Appeal is now

heard. However, while going through the charge, as also

considering the evidence in detail, there appears no active

participation of the surviving accused - respondent though

all the accused have been charged for destruction of

evidence under section 201 and sharing common intention

under section 34 of the Indian Penal Code (hereinafter

referred to as 'the IPC' for short). Considering the charge

Exh. 18 at page 59, it is clear that how and in what manner,

she has participated in the crime or she had shared a

common intention to commit murder of deceased, is clearly

lacking in the charge. Not only that, out of 19 witnesses,

R/CR.A/419/2002 JUDGMENT DATED: 12/04/2023

neither of them is involving present surviving respondent -

accused into the crime. If the evidence is considered of

PW13 - Jadubhai Devshibhai, who is the prosecution witness

before whom accused no. 3 Gagjibhai Vitthalbhai is said to

have made extra judicial confession, but he did not support

the prosecution case and declared hostile at the trial.

Though appeal against respondent no. 3 - accused no. 3

Gagjibhai is also abated, the said evidence is of no use

against the surviving accused.

7. PW 14 - Dhiru Amarshi also claimed to be an eye-

witness to the incident, but he is also a witness to the so

called extra judicial confession of accused no. 3 - Gagjibhai

Vitthalbhai, who under the influence of alcohol claimed that

he killed deceased Lakhubha, though the very said witness,

in the cross-examination, turned the table and claimed that

he did not have any talk with accused no. 3 - Gagjibhai

Vitthalbhai nor accused no. 3 - Gagjibhai Vitthalbhai told him

anything. So again there is no evidence against surviving

accused Kamuben, and therefore, his evidence is also not of

any use.

R/CR.A/419/2002 JUDGMENT DATED: 12/04/2023

8. PW 15 - Dilabhai Amthubhai is a witness, who

claimed that accused no. 1 Jesangbhai Bhagwanbhai and his

wife accused no. 2 - Kamuben were quarreling against each

other and accused no. 1 - Jesangbhai armed with dhariya and

surviving accused Kamuben was having some domestic

goods with her. Though the said witness does not throw light

on the real incident, he projects only the fight or quarrel

between the husband and wife against each other, without

anything further mentioned therein. Therefore also, his

evidence is of no use for the purpose of determining this

appeal against surviving accused Kamuben.

9. PW 16 - Bhojabhai Karamshi also claims to be an

eye-witness to the incident. He has in his deposition stated

that he alongwith Mahavirsinh went in search of cow of

Mahavirsinh, then they saw Koli Karshan Prabhu passed

them running and despite their attempt to know why he is

running, he did not stop. Surprisingly, PW 17 Mahavirsinh

also refers about the presence of Koli Karshan Prabhu, who

is not examined by the prosecution to prove the case against

any of the accused. However, PW 16 Bhojabhai Karamshi

R/CR.A/419/2002 JUDGMENT DATED: 12/04/2023

refers that accused no. 1 - Raysang Manga who died during

the trial and case against him was abated during it and

therefore, his name is not reflected in the copy of the

judgment and present respondents were re-numbered as

accused no. 1 to 3. Though he also deposes with regard to

some disputes in between the accused, though he named

accused no. 1, 2, 4 i.e. male accused but for lady accused, he

has not named her but one lady/woman was also there.

However, witness Bhojabhai has further deposed that PW 17

Mahavirsinh asked him to run and therefore, both had

returned back towards village. His deposition further asserts

that three accused and one woman were quarreling with

whom is not known as he could not witness the same

because he was frightened. Though the said witness claims

that after two days, they met Akhubha, father of deceased

Lakhubha and regretted that what has happened, is not

good. He claims that after complainant Chandubha arrived,

an FIR came to be filed. He has further in his examination-

in-chief, despite he witnessed some quarrel in between

accused and one woman, they did not utter anything for a

R/CR.A/419/2002 JUDGMENT DATED: 12/04/2023

pretty long time of approximately one month from the

missing of deceased Lakhubha and atleast 14 days after the

dead body of deceased Lakhubha found, which is

unbelievable. Further, he has asserted in his examination-in-

chief that three male accused and one woman seen who else

was there when asked, he candidly admitted that he along

with Mahavirsinh did not see anything at that time. In short,

the said witness is also neither naming the surviving accused

Kamuben nor even identifying her even before the Court, so

his evidence is also not helpful to the prosecution to bring

home the charge against her.

10. Next is the witness PW 17 Mahavirsinh Bhagwatsinh,

whose deposition refers surviving accused respondent no. 2 -

accused no. 2 as wife of Jesang standing along with other

accused near Lakhubha, who was lying at the liquor den of

accused Jesang Bhagwan. The said witness has further

attributed weapons in the hands of Jesang Bhagwanbhai and

Raysang Manga. However, the said witness has not stated

anything about even accused armed with weapons attacked

deceased Lakhubha, who was lying there in the pool of blood.

R/CR.A/419/2002 JUDGMENT DATED: 12/04/2023

He has further not stated in his deposition that any of the

accused carried even blood stained weapons at that time.

Most importantly this witness though attributes presence of

the wife of the accused Jesang Bhagwan, he did not attribute

anything against her, therefore, from his examination-in-chief

alone, there appears no material evidence against the

surviving accused Kamuben, so as to convict her for any of

the offences, that too, for the death of deceased Lakhubha.

Surprisingly, this very witness in his cross-examination

admitted in clear terms that he did not go to the father of

deceased Lakhubha to inform that Lakhubha is murdered.

He has also further admitted that he has not even informed

anyone in the village about the same. He has gone to an

extent that he did not part with the said information to his

own father who is staying with him. Such conduct of the

witness whose statement is recorded after about a month of

deceased Lakhubha went missing and 14 days after his dead

body found from the place, where witness claims to be

present on that day. Such unnatural conduct of the witness

throws great doubt on his version stated before the Court.

R/CR.A/419/2002 JUDGMENT DATED: 12/04/2023

At the sametime, the said witness is not material so far as

surviving accused is concerned, as he does not involve her in

the crime and her presence at the spot is quiet natural being

liquor den of her deceased husband and nothing more.

11. As coming out from the case of the prosecution

through Akhubha Bhuvabha P.W. 6, who happens to be the

father of deceased Lakhubha, who is not an Eye Witness to

the incident claim that accused Kamuben caught hold legs of

the deceased and one Jadia severed the head of Lakhubha

with dharia. Though the said assertion in the examination-in-

chief is admitted by the witness himself to have not stated

before the police and has not witnessed the incident himself,

the said witness derived knowledge from P.W 16 Bhojabhai

Karamshi Bharvad, whose evidence is already referred to

hereinabove. As per the claim of the witness - Akhubha after

killing deceased Lakhubha, he was buried then and there and

salt was also sprinkled. Though he is not an Eye Witness, he

has gone to depose to that incident. However, as per the

prosecution case, the dead body of the deceased was taken

out on 12.11.1992 i.e. after about 16 days of deceased

R/CR.A/419/2002 JUDGMENT DATED: 12/04/2023

Lakhubha went missing. Very surprisingly, not only the

present witness Akhubha, his other brothers never cared to

know and ascertain where deceased Lakhubha has gone.

Most surprisingly, despite the claim that head of the

deceased Lakhuba was severed from his body and it was

taken out in that position knowing full well the homicidal

death of the deceased, police was not informed and

cremation was performed, as if nothing has happened. Still

however after witness Chandubha - son of P.W. 6 Akhubha

who was staying at Mumbai came back to the village, an FIR

has come to be filed on 26.11.1992 i.e. exactly after one

month of the deceased Lakhubha went missing and 14 days

after the dead body was found and cremated directly by the

witness. Therefore, the witness have deprived even the

prosecution to have the dead body examined by Doctor and

Postmortem performed over the same to establish the

offence committed by the accused in absence of that

corroborative material and in view of the evidence examined

and recorded in earlier process, it is clear that no view other

than view taken by the learned Judge can be taken by this

R/CR.A/419/2002 JUDGMENT DATED: 12/04/2023

Court that too in Appeal arising from an order of acquittal.

12. Considering the charge, surviving accused asked to

face, absence of any evidence against her from the

deposition of any of the witnesses, we see no reason to

interfere with the order of acquittal so far as it relates to

surviving accused Kamuben. After detailed scrutiny of the

evidence, learned Sessions Judge has passed an order of

acquittal in their favour. Therefore, we do not find any

compelling reasons to interfere with the order of acquittal in

respect of surviving lady accused Kamuben as the view taken

by the learned Judge is probable and does not call for any

interference. The view taken by the learned Judge is the only

view which could have been taken on the material evidence

available and re-appreciated by us. Even if two views are

possible, the Appellate Court cannot substitute its own view

and in that circumstances, the view taken by the learned

Judge appears to be the only view which could have been

taken and therefore, we see no substance in this acquittal

appeal. Hence, we dismiss the same.

R/CR.A/419/2002 JUDGMENT DATED: 12/04/2023

13. The Criminal Appeal is dismissed accordingly. Bail

bonds stand cancelled. Record and proceedings be sent back

to the concerned Court forthwith.

Sd/-

(UMESH A. TRIVEDI, J)

Sd/-

(M. K. THAKKER,J) AMAR SINGH