Gujarat High Court
State Of Gujarat vs Pravinbhai Veerabhai Makvana on 7 December, 2023
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
R/CR.MA/18098/2023 ORDER DATED: 07/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 18098
of 2023
In F/CRIMINAL APPEAL NO. 36636 of 2023
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STATE OF GUJARAT
Versus
PRAVINBHAI VEERABHAI MAKVANA
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Appearance:
MR BHARGAV PANDYA, APP for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 07/12/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. RULE. On 29th November 2023, this Court passed the
following order :
"Though served, no one has chosen to appear on behalf of
the respondents.
Stand over to 7.12.2023."
2. Today also, the position remains unaltered. No one has
chosen to enter appearance on behalf of the respondents.
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R/CR.MA/18098/2023 ORDER DATED: 07/12/2023
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3. The applicant-State has filed the aforesaid Criminal Appeal
against the acquittal of the respondents who were charged for
the offences punishable under Sections 143, 147, 148, 149, 302,
307, 326, 325, 324, 323, 504, 506(2), 294(B) of the Indian Penal
Code and Section 135 of the Gujarat Police Act, by impugned
judgment and order dated 25.08.2023 passed in Sessions Case
No.40 of 2020.
4. Learned APP has submitted that the learned Judge has
erred in holding that the prosecution has failed to prove beyond
reasonable doubt that the complainant (i.e. deceased) was
residing at Junagadh. On 07.08.2020, at about 9 O' clock in the
morning, the complainant (i.e. deceased) had gone to graze the
cows. At that time, near the bus stand, the present accused
persons came with weapons and used filthy language and asked
the complainant that why he had beaten his son a few days ago
and thereafter, accused no.1 inflicted pipe blows on the hands
and legs of the complainant, accused no.3 inflicted 'dhariya'
blows on the hands and legs of the complainant, accused no.2
also inflicted 'dhariya' blows on the hands and legs of the
complainant.
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5. Learned APP has further submitted that the learned Judge
ought to have appreciated that the dying declaration of the
deceased, which is produced at Exh.97, was recorded by the
Executive Magistrate in presence of the doctor. At that time, the
deceased was very much conscious and capable of recording his
dying declaration and he had very specifically mentioned how
and why the incident took place and what is the motive behind
commission of the offence by the accused. This is fully supported
by the evidence of the Executive Magistrate, who recorded the
dying declaration, and the doctor, who treated him. From the
medical case papers and the post mortem note, it can be noted
that it is a case of homicidal death and not suicidal death.
However, as the learned Judge has failed to properly appreciate
the evidence of these witnesses, the impugned judgment and
order of acquittal passed by the learned Judge being illegal,
invalid and improper, the same deserves to be quashed and set
aside.
6. It is further submitted that the learned Judge has erred in
not appreciating the evidence of the injured person P.W.12,
Haridasbapu Gururadhavdasji Maharaj, who has been examined
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at Exh.71, who is the eye witness and who was very much
present at the time of the incident. The learned Judge ought to
have appreciated that P.W.2 Dr.Prakashbhai Bherumal Trilokani
examined at Exh.20, P.W.3 Dr.Chauham Amardas Deshani
examined at Exh.27, P.W.13 Tejasbhai Dhanjibhai Kagthara
examined at Exh.74, P.W.15 Prafulbhai Mansukhgiri Aparnathi
examined at Exh.76, P.W.16 Jitendrabhai Kantibhai Gohel
examined at Exh.77, P.W.17 Pratikbhai Maisurbhai Khambhla
examined at Exh.78, P.W.18 Itishaben Odhavjibhai Rojasara
examined at Exh. 82, P.W.19 Govindbhai Rajabhai Solanki
examined at Exh.84, P.W.21 Gayatriben Vijaykumar Sharma
examined at Exh.91 and P.W.22 Amitkumar Ashokkumar
Mulchandani examined at Exh.95, all these witnesses have fully
supported the case of the prosecution.
7. Learned APP has submitted that the learned Judge ought
to have appreciated the contents of the scene of offence
panchnama which was produced at Exh.50, dying declaration
which was produced at Exh.97, inquest panchnama which was
produced at Exh.47, FIR which was produced at Exh.100, post
mortem report which was produced at Exh.18 and the FSL
report which was produced at Exh.119, in light of the evidence of
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R/CR.MA/18098/2023 ORDER DATED: 07/12/2023
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the Investigating Officer, by the evidence of whom, those
documents have been proved.
8. The averments made in the application have remained
uncontroverted. We have also examined the evidence as
discussed by the trial Court and the order passed by the trial
Court. Prima facie, we are of the opinion that the leave is
required to be granted.
9. In the aforesaid facts and circumstances, the present
application for leave to appeal is allowed. Rule made absolute.
10. Registry shall notify the main Criminal Appeal on 14 th
December 2023.
(A. S. SUPEHIA, J.)
(VIMAL K. VYAS, J.)
/MOINUDDIN
