Gujarat High Court
State Of Gujarat vs Vaghabhai Chhaganbhai Patel on 24 March, 2023
Bench: A.Y. Kogje
R/CR.A/229/1998 JUDGMENT DATED: 24/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 229 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
And
HONOURABLE MR. JUSTICE M. R. MENGDEY
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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 ?
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STATE OF GUJARAT
Versus
VAGHABHAI CHHAGANBHAI PATEL & 5 other(s)
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Appearance:
MS. C.M.SHAH, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 3,4,5
ADVOCATE NOTICE NOT RECD BACK for the Opponent(s)/Respondent(s)
No. 2
MR. MAULIK M. SONI, ADVOCATE for the Opponent(s)/Respondent(s) No. 6
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 24/03/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE M. R. MENGDEY)
1. The present Appeal has been filed by the Appellant - State of Gujarat
R/CR.A/229/1998 JUDGMENT DATED: 24/03/2023
under the provisions of Section 378 of the Code of Criminal Procedure 1978
challenging the judgment and order dated 22.9.1997 passed by the learned
Additional Sessions Judge, Panchmahal at Godra in Sessions Case No. 5 of
1996.
2. At the outset, it is required to be noted, pending the present Appeal, the
Respondent Nos. 3, 4 and 5 have expired, and therefore, the present Appeal has
abated qua them.
3. The facts and circumstances giving rise to the filing of the present
Appeal are that, an FIR came to be lodged by one Bhemabhai Kalubhai with
Devgarhbaria Police Station on 28.7.1995. On the basis of the said FIR, the
offence was registered against the present Respondents for the offence
punishable under Sections 145, 147, 148, 504, 355, 506(2), 307, 323 and 149 of
the Indian Penal Code.
4. After conclusion of the investigation, the investigating agency filed
charge sheet against the Respondents for the aforesaid offences. Thereafter,
the offence being exclusively triable by the Court of Sessions, the learned
Judicial Magistrate First Class committed the proceedings to the Court of
Sessions under the provisions of Section 209 of the Cr.P.C. The charge was
framed against the Respondents vide Exh.2 for the aforesaid offences on
3.5.1997.
R/CR.A/229/1998 JUDGMENT DATED: 24/03/2023
5. Thereafter since the Respondents pleaded not guilty, they were put to
trial. The learned Additional Sessions Judge after considering the oral as well
as documentary evidence adduced on record by prosecution was pleased to
acquit the Respondents herein of the charges levelled against them.
6. Being aggrieved by and dissatisfied with the same, the Appellant - State
has preferred the present Appeal.
7. Heard learned APP Ms. C.M.Shah for the Appellant - State. She
submitted that in the present case, the FIR was lodged by Bhemabhai Kalubhai
who sustained injuries in the alleged incident. In addition to this, another
witness namely Shantilal Maganlal had also sustained injuries in the incident.
Both these injured witnesses have supported the case of prosecution in their
depositions before the learned Sessions Judge. She submitted that the learned
Sessions Judge has committed an error in disbelieving the depositions of these
witnesses. She further submitted that the medical evidence produced on record
vide depositions of the Doctors as well as medical certificates, also support and
corroborate the case of the prosecution. The learned Sessions Judge, therefore,
ought to have convicted the Respondents for the offence charged against them.
She therefore submitted to allow the present Appeal and quash and set aside the
impugned judgment and order.
8. Though served, nobody appears for Respondent No.1 and 2. Learned
Advocate Mr. Maulik M. Soni states at the bar that he has instructions to
R/CR.A/229/1998 JUDGMENT DATED: 24/03/2023
appear on behalf of Respondent No.6. He submitted that there are material
contradictions in the evidence adduced by the prosecution which goes to the
root of the case of the prosecution, and therefore, the learned Sessions Judge
was justified in acquitting the Respondents herein of the charges leveled
against them. The learned Additional Sessions Judge does not appear to have
committed any error in passing the impugned judgment and order. He
therefore submitted to dismiss the present Appeal.
9. Heard learned Advocates for the parties and perused the record.
10. The FIR in the present case was lodged by Bhemabhai Kalubhai on
28.7.1995 i.e. on the date on which the alleged incident had taken place. As
alleged in the FIR, on the date of incident, at around 5 O' Clock in the evening,
the first informant was present in his house. At that time he heard some
commotion in the house of Shantibhai Maganbhai and therefore he went there.
The Respondents herein were present in the house of Shantibhai and they were
asking Shantibhai as to why he did not vote for them in the election and started
abusing Shantibhai. After some time, the Respondents dispersed from the
place. Thereafter the first informant along with Shantibhai and others were
going to lodge the complaint to the Piplod Police Station. When they were
going to the Piplod Police Station, the Respondents intercepted them on the
way and Respondent No.3 gave a stick blow on the head of the first informant
which had hit him above the right eyebrow. The other Respondents also started
R/CR.A/229/1998 JUDGMENT DATED: 24/03/2023
giving kicks and fist blows to the first informant. Respondent No.3 also put
his foot on the neck of the first informant and thus tried to kill the first
informant.
11. As alleged in the FIR, the Respondent No.3 (since deceased) inflicted a
stick blow upon the head of the first informant and also tried to kill him by
putting his foot on his neck. The first informant after the incident was taken to
the General Hospital at Devgadhbaria where he was examined by Dr.
Chandrahas Keshavrav who has been examined in the present case as Witness
No.1 vide Exh.9. The Doctor in his deposition has described the injuries
sustained by the first informant in the alleged incident. As per the deposition
of the Doctor, the first informant had sustained two injuries in the incident, out
of which, one was above the right eyebrow and the another on the back. As
stated by the Doctor, there was no injury caused to the first informant on his
neck. A specific question in this regard has been asked to the said Doctor in
cross-examination, wherein the witness has stated that there was no injury on
the neck of the first informant nor did he complain of any injury on his neck.
12. The first informant who has been examined before the learned Sessions
Judge vide Exh.17, in his examination-in-chief has stated that Ranchodbhai
Morarbhai had inflicted a stick blow above his right eyebrow. Thereafter he
had fallen down and thereafter the said Ranchodbhai Morarbhai had put his
foot on his neck.
R/CR.A/229/1998 JUDGMENT DATED: 24/03/2023
Comparing this version with what is stated by him in the FIR, there is
nothing to indicate in the FIR that after receiving the blow by the stick, the first
informant had fallen down. Considering these facts, the allegation that
Respondent No.3 had put his foot on the neck of the first informant, does not
appear to have been proved by prosecution.
13. The another witness who was allegedly injured in the incident is
Shantibhai Maganbhai, who, after the alleged incident was taken to
J.H.Chauhan Hospital at Devgarhbaria, where he was examined by Dr.
Kamalkumar Harishankar Mishra, who has been examined as PW2 vide
Exh.13. He, in his deposition has stated that injury sustained by the said
Shantibhai Maganbhai were simple in nature. There was no injury on the vital
part of his body. The injuries sustained by the witness Shantibhai Maganbhai
were not likely to cause death.
Similarly, the injuries sustained by the first informant were also simple
in nature and were not likely to cause death as stated by Dr. Chandrahas
Keshavrav in his deposition.
14. Having regard to the nature of injuries caused to both the witnesses as
well as the fact that the injuries caused to them were not likely to cause death,
no intention or knowledge can be attributed to the accused persons in the
present case as envisaged under Section 307 of IPC, and therefore, the
ingredients required for attracting the provision of Section 307 of IPC are not
R/CR.A/229/1998 JUDGMENT DATED: 24/03/2023
made out in the present case.
15. As per the case of the prosecution, the alleged incident had taken place
because Shantibhai Maganbhai had not voted for Respondent No.3 -
Ranchodbhai Morarbhai Patel who was contesting election for the post of
Sarpanch.
15.1 From the facts emerging on record it appears that Respondent No.3 -
Ranchodbhai Morarbhai Patel got elected in the said election for the post of
Sarpanch. When he had won the election and was elected for the post of
Sarpanch, there was no reason to go the place of Shantibhai Maganbhail and
threaten him for not voting for him. The said Shantibhail Maganbhai has been
cross-examined in detail. In his cross-examination he has admitted that
Babubhai Chhaganbhai and Mavsinh Gamjibhai were not contesting any
election in their village. He also admits that Ranchodbhai Morarbhai Patel i.e.
Respondent No.3 got elected in the said election as Sarpanch. He was elected
as Sarpanch for the third time and, in the last election, he was elected with high
margin. He also admits that there were many residents in the village who had
not voted for Ranchodbhai Morarbhai Patel and Ranchodbhai knew all those
persons who had not voted for him. He also admits that Ranchodbhai
Morarbhai Patel did not quarrel with the other persons who had not voted for
him.
R/CR.A/229/1998 JUDGMENT DATED: 24/03/2023
16. Considering these facts, the motive attributed for the incident in the case
of prosecution, does not inspire any confidence. At the cost of repetition, it is
required to be noted that once the Respondent No.3 was elected in the said
election, there was no reason for him to ask Shantibhai Maganbhai as to why
he did not vote for him and threaten him.
17. From the facts emerging from the record, it appears that son of the first
informant namely Bhemabhai Kalubhai was contesting election for the panel
opposing Respondent No.3 and he had lost the said election. Therefore, the
present FIR appears to be nothing but an afterthought to get Respondent No.3
who was elected as Sarpanch, disqualified from the said post.
18. In view of the aforesaid discussion, the learned Additional Sessions
Judge, Panchmahal at Godhra does not appear to have committed any error in
passing the impugned judgment and order. The present Appeal, being devoid
of merit, is hereby dismissed. Bail bond stands cancelled.
(A.Y. KOGJE, J)
(M. R. MENGDEY,J)
J.N.W / 7
