State Of Gujarat vs Rajput Ramgyansing Jitensing
2023 Latest Caselaw 2344 Guj

      R/CR.A/851/1997                                JUDGMENT DATED: 17/03/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 851 of 1997

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE M. R. MENGDEY

==========================================================

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
                  RAJPUT RAMGYANSING JITENSING & 3 other(s)
==========================================================
Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,2
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 3,4
MR. HARDIK P BAROT(6798) for the Opponent(s)/Respondent(s) No. 3,4
==========================================================

     CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
           and
           HONOURABLE MR. JUSTICE M. R. MENGDEY

                                 Date : 17/03/2023

                                ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE M. R. MENGDEY)

1. At the outset, it is required to be noted that, pending the present

R/CR.A/851/1997 JUDGMENT DATED: 17/03/2023

Appeal, Respondent No. 1 - Rajput Ramgyansing Jitensingh and

Respondent No. 2 - Rajput Satishkumar Ramgyansing have expired, and

therefore, the present Appeal is ordered to be abated qua the aforesaid

Respondents.

2. The present Appeal has been filed by the Appellant - The State of

Gujarat, challenging the judgment and order dated 31.5.1997 passed by

the learned Additional Sessions Judge, Mahesana in Sessions Case No.

42 of 1995, whereby, the Respondents have been ordered to be acquitted

of the charges levelled against them.

3. The facts and circumstances of the case giving rise to the present

Appeal are such that an FIR being I-CR No. 117 of 1994 was lodged by

one Rameshbhai Shitlaprasad Rajput with the Kalol City Police Station

alleging the offences punishable under Section 307, 323, 324, 504, 506(2)

read with Section 114 of the Indian Penal Code and Section 135 of the

Bombay Police Act.

4. The investigating agency, after conclusion of the investigation,

filed charge sheet against the present Respondents for the aforesaid

offences. The offences alleged against the Respondents being exclusively

R/CR.A/851/1997 JUDGMENT DATED: 17/03/2023

triable by the Court of Sessions, the learned Judicial Magistrate First

Class, Kalol was pleased to commit the proceedings to the Court of

Sessions in view of the provisions under Section 209 of the Code of

Criminal Procedure.

5. Upon commital of proceedings the learned Sessions Court framed

charges against the present Respondents by Exh. 15 and since the

Respondents herein pleaded not guilty they were put to trial.

6. The prosecution has examined the following witnesses to bring

home the charges levelled against the Respondents:

Sr.No.                            Name                                  Exh.


















       R/CR.A/851/1997                                 JUDGMENT DATED: 17/03/2023





  15.        Police Jamadar Gopalsing Jorubhai Vaghela                          56
  16.        Head Constable Chimanlal Nanalal Ganpathsing                       59
             Manthursing




6.1        The prosecution has also relied upon the following documentary

evidence in support of its case:

Sr.No.                           Particulars                                  Exh.


      3.     Panchnama of the body of the injured witness                       43
             named Rameshkumar Shitalprasad
      4      Panchnama of the body of the injured witness                       51
             Shrinath
      5      Panchnama of the body of the injured witness                       47
             Ramgyangyansing
      6      Panchnama of the weapon produced by the accused                    38
             Satishkumar
      7.     Panchnama of the weapon produced by Hareshrai                      40
      8.     Certificate regarding the injuries received by                     25

Pajapati Shrinath from Kalol Municipal Medical Hospital.

9. Certificate regarding the injuries received by 26 Avyeshbhai from Kalol Municipal Medical Hospital.

10. Certificate regarding the injuries received by 27 Rameshbhai from Kalol Municipal Medical Hospital.

11. Certificate regarding the injuries received by 28 Shushilbhai from Kalol Municipal Medical

R/CR.A/851/1997 JUDGMENT DATED: 17/03/2023

Hospital.

12. Certificate regarding the injuries received by 33 Shrinath Prajapati from Civil Hospital Ahmedabad.

13. Public Notification issued by District Magistrate 64

14. Copies prepared by the Circle for the place of 23 incident.

Ramgyansing for any further treatment in the hospital

18. Police Yadi for recording the statements of the 68 witnesses.

7. The learned Additional Sessions Judge, after considering the

evidence adduced on record was pleased to acquit the Respondents herein

of the charges levelled against them vide impugned judgment and order

dated 31.5.1997. Being aggrieved and dissatisfied with the same, the

Appellant - The State of Gujarat has preferred the present Appeal under

Section 378 of Cr. P.C.

8. Heard learned APP Ms. Jirga Jhaveri for the Appellant - State.

Learned APP Ms. Jhaveri has taken us to the evidence on record in detail.

She further submitted that as per the evidence adduced by the prosecution

on record, Respondent Nos. 3 and 4 had assaulted the first informant and

injured the witnesses with the use of deadly weapons. The first informant

R/CR.A/851/1997 JUDGMENT DATED: 17/03/2023

as well as the injured witnesses had sustained serious head injuries in the

incident. The medical evidence recorded during the course of trial clearly

supports the case of the prosecution. Upon consideration of depositions

of the first informant and the other injured witnesses, the prosecution has

given reasons to prove the charges levelled against the present

Respondents. Learned APP in her submission further submitted that the

learned Sessions Judge has not appreciated the evidence adduced on

record in its proper perspective. Learned Sessions Judge has committed a

serious error in discarding the evidence adduced by the prosecution on

record. She therefore submitted to allow the present Appeal and quash

and set aside the impugned judgment and order and convict the present

Respondents for the charges levelled against them and to punish them

appropriately.

9. No one appears for Respondent Nos. 3 and 4. Heard learned APP

Ms. Jirga Jhaveri for the Appellant State.

10. In the present case, the first information report has been lodged by

one Rameshbhai Shitlaprasad Rajput. The said FIR in question is on

record vide Exh.36. As per the said FIR on the date of the incident at

4:30 in the evening the first informant along with his friends namely

R/CR.A/851/1997 JUDGMENT DATED: 17/03/2023

Shrinath Vasudev Prajapati alias Babu and Shushilkumar Avyeshbhai had

gone to a Panshop namely Mahakali Pan Center at Kalol. When they

reached the Panshop, the son of Ramgyansing Rajput namely Balkrushn

was present there. Upon reaching the Panshop, the friend of the first

informant namely Shushilkumar had demanded pan masala from the shop

keeper. At that time Balkrushn told the shopkeeper to give pan masala to

him first and started abusing the first informant and his friends, upon

which the first informant and his friends told the said Balkrushn not to

abuse him, upon which the said Balkrushn got agitated and the other

accused persons namely Hareshkumar Ramgyansing Rajput came at the

spot with dharia in his hand, Satish Ramgyansinh Rajput came with

sword and Rajput Ramgyansing Jitensing came with stick in his hands.

Accused Balkrushn had also a pipe in his hands. Balkrushn assaulted the

first informant with a pipe and inflicted a blow on the left side of his

head. Accused Rajput Hareshkumar Ramgyansing inflicted a blow with

dharia on the right side of his head. Accused Satish Ramgyansing Rajput

had assaulted the witness Shrinath @ Babu Vasudev Prajapati with a

sword and Balkrushn had assaulted Sushilkumar with pipe. The first

informant Rajput Rameshbhai Shitlaprasad had been examined as

Prosecution Witness No. 3 vide Exh.35. In his examination-in-chief he

has stated that Balkrushn had assaulted him with a pipe and had inflicted

R/CR.A/851/1997 JUDGMENT DATED: 17/03/2023

the blow on the left side of his head and Harishbhai had inflicted a blow

with dharia on the right side of his head. Thus, as per the version of this

witness, he had received two different blows on his head.

10.1 In this connection, deposition of PW-1 namely Dr. Manishben

Rameshchandra Shah vide Exh.24 requires to be looked into. This

witness was working at Sheth C.S.Hospital, Kalol where the first

informant and other eye witnesses were taken for treatment after the

incident. As per this witness when she examined the said Rameshbhai

Shitlaprasad, there was only one injury on his head that too on the right

side of the head. There is no reference to any injury on the left hand side

of the head of the first informant. Thus the version given by this witness

in the FIR at Exh.36 as well as his deposition vide Exh.35 does not find

support or corroboration in the medical evidence. Moreover, it is also

required to be noted that in the medico legal certificate which is on record

vide Exh.27, also the history has been recorded as assault by pipe. There

is no reference to any assault upon the first informant with dharia. Thus,

there is a contradiction as regards the injury sustained by the first

informant in the evidence of prosecution.

10.2 As per the FIR Exh.36, the alleged incident has taken place near

R/CR.A/851/1997 JUDGMENT DATED: 17/03/2023

Mahakali Pan Center, Kalol whereas the first informant in his deposition

vide Exh.35 has stated that after some verbal exchanges, with the accused

persons he and his friends had gone near Satyam Cinema, where the

accused persons had come, armed with weapons, and started assaulting

the first informant and the other witnesses. Thus, as per the FIR the

alleged incident had taken place near Mahakali Pan Center whereas, as

per the deposition of the first informant himself, the incident has taken

place near Satyam Cinema. Vide Exh.45, the panchnama of the scene of

occurrence is produced on record. As per the said panchnama also, the

alleged incident has taken place near Satyam Cinema. Thus, there is a

contradiction in the evidence of prosecution as regards the place of

incident also.

10.3 In the FIR Exh.36, the first informant has stated that the

accused Satish Ramgyansing Rajput had assaulted Shrinath @ Babu

Vasudev Prajapati with sword, whereas, in the deposition, he has stated

that the accused Satish had inflicted with dharia in the head of Shrinath

@ Babu Vasudev Prajapati.

10.3.1 During the course of trail, the prosecution has tried to

explain this discrepancy by contending that it must be a slip of pen while

R/CR.A/851/1997 JUDGMENT DATED: 17/03/2023

recording the FIR and in place of 'dharia', 'sword' must have been

written.

10.3.2 However, upon perusal of the evidence adduced on record, it

appears that vide Exh.38, a discovery panchnama has been produced on

record. As per the said panchnama, accused Satish had discovered a

sword used in the commission of the offence in question. Thus, it does

not appear that a reference to the sword in the FIR was merely a slip of

pen.

10.3.3 It is also pertinent to note that the other injured witnesses in

their deposition before the learned Sessions Judge have stated that the

said witness Shrinath was assaulted upon with dharia.

11. In view of the aforesaid contradictions in the evidence of the

prosecution, in our view, the learned Sessions Judge cannot be said to

have committed any error in acquitting the respondents herein of the

charges levelled against them.

12. As per the settled legal position, when an order, acquitting the

R/CR.A/851/1997 JUDGMENT DATED: 17/03/2023

accused persons has been recorded, the scope of the appellate court for

interfering with the findings of the Trial Court is very limited. Such

findings can be interfered with only if the findings are perverse and

practically impossible. This view of this Court find support from the

following judgments of the Hon'ble Apex Court:

(i) Harijan Megha Jesha v. State of Gujarat - AIR 1979 SC 1566

(ii) Kora Ghasi v. State of Orissa - AIR 1983 SC 360

12.1 Recently this Court in its judgment in Criminal Appeal No. 271 of

1999 in the case of State of Gujarat v. Jakir @ Ayubbhai Umarbhai

Makrani has also reiterated the same view.

13. In view of the aforesaid observations, the present Appeal, being

devoid of any merit, is hereby dismissed. Bail bond stands cancelled.

(A.Y. KOGJE, J)

(M. R. MENGDEY,J)

J.N.W