State Of Gujarat vs Shankarbhai Shanabhai Chavada
2023 Latest Caselaw 8776 Guj

Gujarat High Court

State Of Gujarat vs Shankarbhai Shanabhai Chavada on 19 December, 2023

Author: A.S. Supehia

Bench: A.S. Supehia

                                                                                 NEUTRAL CITATION




     R/CR.A/131/1999                             JUDGMENT DATED: 19/12/2023

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         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/CRIMINAL APPEAL NO. 131 of 1999

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA                        Sd/-
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS                       Sd/-
============================================
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 ?

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                              STATE OF GUJARAT
                                   Versus
                       SHANKARBHAI SHANABHAI CHAVADA
============================================
Appearance:
MS KRINA P. CALLA, APP for the Appellant(s) No. 1
MR PRATIK B BAROT, ADVOCATE for the Opponents
============================================
    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
          and
          HONOURABLE MR. JUSTICE VIMAL K. VYAS

                             Date : 19/12/2023
                             ORAL JUDGMENT

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

1. The present appeal has been preferred by the State of Gujarat under Section 378(1)(3) of the Code of Criminal Procedure, 1973 ('the Cr.P.C', for short) challenging the judgment and order of acquittal dated 30.11.1998 passed in Sessions Case No.124 of 1995 by the Additional Sessions

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Judge, Vadodara, whereby the respondents have been acquitted for the offence, for which, they were charged. As per the charge at Exh.1, the respondents-accused were charged for the offence punishable under Sections 302, 34 and 114 of the Indian Penal Code, 1860 ('the IPC', for short) and also for the offence under Section 135 of the Bombay Police Act in Sessions Case No.124 of 1995.

2. It is the case of the prosecution that on 20.08.1995 at 14:00 hours, all the accused - respondents committed murder of the deceased by inflicting a blow of dhariyu (scythe) on his vital part i.e. stomach. It is the case of the prosecution that the accused Nos.2, 3 and 4, caught hold the deceased, whereas the accused No.1 had inflicted such fatal blow of dhariyu (scythe) on the vital part of the deceased, which resulted into his death.

3. Learned Additional Public Prosecutor Ms.Krina Calla, appearing for the applicant - State, has submitted that the impugned judgment and order of acquittal passed by the Trial Court is required to be quashed and set aside as the Trial Court has not properly appreciated the evidence in its true perspective. It is submitted by the learned Additional Public Prosecutor that the complainant - Shantaben Dolatsinh (PW-1), who is the wife of the deceased in her complaint as well as in her deposition at Exh.12, has categorically emphasized the facts of incident describing the murder of her husband. It is submitted by the learned Additional Public Prosecutor that her evidence would reveal that three accused had caught hold the deceased, whereas the accused No.1 had inflicted the fatal

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blow of dhariyu (scythe) on the vital part of the deceased. Similarly, it is submitted that the Trial Court has not appreciated the evidence of the eye-witnesses i.e. the PW-1- Shantaben Dolatsinh at Exh.12, the PW-2 - Chimanbhai Bacharbhai at Exh.13, the PW-3 - Sureshbhai Jashubhai at Exh.14 and the PW-4 - Kanubhai Khodabhai at Exh.19. While referring to the deposition of the Investigating Officer, she has submitted that as per his evidence, the accused were involved in the brutal murder of the deceased. She has also referred to the evidence of Dr.Vaishakhi Yashvatray (the PW-5), who is examined at Exh.20 as well as the PM report at Exh.21 and has submitted that the injuries inflicted on the deceased would corroborate the evidence of the eye-witnesses and the complainant. Thus, it is urged that the impugned judgment and order of acquittal passed by the Trial Court is required to be quashed and set aside and the respondents accused may be convicted for the offences, for which, they were charged.

4. In response to the aforesaid submissions, learned advocate Mr.Pratik B. Barot, appearing for the respondents has submitted that in fact, the present case is of no evidence and the Trial Court after appreciating both ocular as well as documentary evidence has precisely acquitted the respondents for the offence, for which, they were charged. Learned advocate Mr.Pratik B. Barot, has submitted that in fact, there was a cross-case and the defence has pointed out the same during the trial. It is submitted that the Trial Court has taken into consideration the aforesaid aspect as the prosecution was unable to point out the correct facts of the cross-case and in fact, it is submitted that the complainant and

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the so called eye-witnesses have suppressed the true facts of the incident.

5. Learned advocate Mr.Pratik B. Barot, for the respondents has further submitted that in fact, the presence of the complainant, who is the wife of the deceased, is also doubtful and it is not established that actually, she has witnessed the incident. He has also submitted that surprisingly, the complainant has not informed her son, who is 18 years of age, about the incident for 2 days and did not name the present respondents. Learned advocate Mr.Pratik B. Barot, while inviting the attention of this Court to the evidence of other witnesses, has submitted that they are projected as eye- witnesses and their evidence reveals that in fact, they have not witnessed the incident and even they were not present at the time of the incident.

6. Learned advocate Mr.Pratik B. Barot, has submitted that the Trial Court has precisely appreciated the evidence of Dr.Vaishakhi Yashvantray (PW-5) at Exh.20 and in juxtaposition, while referring to the PM report, it is submitted that it is not possible that the injuries, which were found on the deceased could have been inflicted with a weapon like dhariyu (scythe). Thus, it is urged by the learned advocate Mr.Pratik B. Barot, that the evidence does not in any manner suggest the complicity of the respondents with the offence and Trial Court has acquitted the respondents after analyzing the evidence, which has surfaced and hence, the acquittal may not be reversed.

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7. We have heard the learned advocates appearing for the respective parties. We have also scaled the evidences as well as the observations of the Trial Court.

8. As per the charge at Exh.1, on 20.08.1995 at about 14:00 hours, the accused Nos.2, 3 and 4 caught hold of the deceased, whereas the accused No.1 had inflicted the blow of dhariyu (scythe) on the abdomen of the deceased, which resulted into his death. At the outset, we may refer to the PM report at Exh.21, more particularly in column No.17, which specifies the following injuries: -

"Single : stab wound elliptical shape with sharp margins and acute angled edges, borders show slight conlesion on (L) side of immbiticians, 8 am above anterior suspension there is splinem obliquely placed in mind deviation this prolapsed of omentine present, from the wound muffins for 2 cm length. No other injury around direction as shown in dragra dealing"

9. The doctor (the PW-5), who is examined at Exh.20, in her deposition has specifically stated that as per her opinion, the injuries, which are found on the deceased, cannot be inflicted by the weapon like dhariyu (scythe). Thus, the medical evidence suggests that the injuries, which were found on the body of the deceased, could not have been inflicted by the weapon, which has been attributed to the accused No.1. We have also perused deposition of the complainant, who is wife of the deceased at Exh.12. Her deposition reveals major contradictions and though, she is referred to the presence of other eye-witnesses and their evidence reveals that in fact, the other eye-witnesses' presence is doubtful at the scene of the offence. Her cross-examination indicates that she has not

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stated about the assault of dhariyu (scythe) on her deceased husband in her complaint. In fact, the complainant has admitted that at the time of incident, she was present at her field and she was cutting grass. Moreover, it is surprisingly to note that she has admitted that she did not reveal the assault on the deceased to her 18 years of old son even for a period of 2 days.

10. We have also examined the evidence of the other eye- witnesses. The same also suffers from major omissions, contradictions and improvements.

11. The evidence of the Investigating Officer (the PW-11) points out major omissions and contradictions in the evidence of the complainant as well as other eye-witnesses. From his evidence, it is revealed that in fact, there was a cross-case and one of the witness, who was registered the complaint against the present accused Rangeetbhai Shankarbhai was assaulted by the deceased. Thus, the vital aspects have been withheld or not disclosed by the complainant in her evidence. Neither the so called eye-witnesses have supported the facts of the cross- case. The evidence of the Investigating Officer reveals that one of the witness-Chandaben, who was projected as an eye- witness, was not present at the scene of offence. His evidence also reveals that the witness of cross-case Bacchubhai Mahijibhai, whose statement was recorded by the Investigating Officer on 21.08.1995, is not examined as witness and the Investigating Officer has supported that as per his statement, which was recorded, the complainant, who is the wife of the deceased, was not present at the scene of offence.

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12. Thus, the overall evidence suggests that the findings of the Trial Court do not in any manner can be termed as perverse or illegal, hence, we are fully agree with the findings recorded by the Trial Court and there is no error committed by the Trial Court in appreciating the oral as well as documentary evidence, hence, the respondents are precisely acquitted.

13. For the foregoing reasons and analysis, the present appeal fails and the same stands disposed of accordingly. Record and proceedings shall be returned to the concerned Trial Court forthwith.

Sd/-

(A. S. SUPEHIA, J)

Sd/-

(VIMAL K. VYAS, J) MAHESH/94