State Of Gujarat vs Arjunbhai @ Kalabhai
2023 Latest Caselaw 2609 Guj

      R/CR.A/592/1995                                  JUDGMENT DATED: 29/03/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 592 of 1995

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
                        ARJUNBHAI @ KALABHAI & 3 other(s)
================================================================
Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,4
MR. YOGENDRA THAKORE(3975) for the Opponent(s)/Respondent(s) No.
2,3
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     CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
           and
           HONOURABLE MR. JUSTICE M. R. MENGDEY

                                 Date : 29/03/2023

                     ORAL JUDGMENT

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

1. Present appeal has been filed by the State under the provision of Section

R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023

378 of the Code of Criminal Procedure challenging the judgment and order

dated 10-02-1995 passed by learned Additional Sessions Judge, Nadiad in

Session Case No. 222/1994.

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

Respondent Nos. 1 and 4 having expired, the present appeal qua them has been

ordered to have abated.

3. The facts and circumstances giving rise to the filing of the Aappeal are

such that, on 15 December 1993, one Kantibhai Mathurbhai Solanki, registered

a complaint with the Mahudha Police Station District Nadiad to the effect that,

in the morning of 15 December 1993, when he and his partner Vishnuubhai

Shakarabhai Vaghri were working in his farm, his wife Chanchalben had come

to his field to serve tea to them. Thereafter, she went to the well of Jayantibhai

to fetch water for them. At 10 O' Clock in the morning, his wife Chanchalben

had left the field to go home. The way to her home is passed nearby the field

of Arjunbhai Dahyabhai Solanki. Upon reaching the place of incident, his wife

raised cries for help. Upon hearing the cries, he went to the place of incident

and saw that Arjunbhai was inflicting dharia blows upon his wife and

Raymanbhai and Amratbhai were instigating him to kill her. Upon the

complainant reaching there, the three of them ran away from the place. Upon

this, a complaint being I-CR No. 139 of 1993 was lodged before the Mahudha

Police Station, Khedat at Nadiad for offences punishable under Sections 302,

R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023

504, 114 of IPC and Section 135 of the Bombay Police Act against the present

respondents.

4. The investigating agency, after carrying out investigation into the

offence, filed charge sheet against the respondents for the aforesaid offences

with the court of learned Judicial Magistrate First Class, Nadiad.

5. Since the offences alleged against the respondents were exclusively

triable by the court Sessions, the learned Judicial Magistrate First Class

committed the proceedings to the Court of Session in view of the provision of

Section 209 of Cr. P.C.

6. The learned Sessions Judge was pleased to frame charge against the

respondents vide Ex. 2 for the offences punishable under Section 302 read with

Section 114 and Section 201 read with Section 114 of IPC.

7. Since the respondents pleaded not guilty, they were put to trial by the

learned Sessions Judge.

8. The prosecution had tendered oral as well as documentary evidence to

bring home the charge against the respondents. The learned Sessions Judge

after considering the evidence adduced on record, was pleased to acquit the

respondents of the charges framed against them vide impugned judgment and

order.

R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023

9. Being aggrieved and dissatisfied with the same, the appellant State has

preferred the present appeal.

10. Heard learned APP Ms. Jirga D Jhaveri for the appellant State. She

submitted that the prosecution has examined as many as ten witnesses to prove

the charge against the respondents. Two of these witnesses are the eye

witnesses who have clearly stated the manner in which the alleged incident had

taken place. There is nothing on record to discredit the depositions of these eye

witnesses. She also submitted that the medical evidence on record also

corroborated the version given by the eye witnesses and the case of

prosecution. She submitted that the learned Sessions Court has not considered

the evidence adduced by prosecution in the right perspective and has

committed an error in acquitting the respondents of the charge. She therefore,

submitted to allow the present appeal and quash and set aside the impugned

judgment and order and convict the respondent no. 2 and 3 for the charges and

punish them in accordance with law.

11. The Appeal is opposed by learned advocate Shri Yogendra M Thakore

appearing for the respondents. He submitted that the depositions of the eye

witnesses are not reliable as they are far from true. In fact, the complainant and

his brothers had mortgaged their parcel of land with the Respondent No.1 and,

with a view to avoid the repayment of the amount borrowed from him, the

present false complaint has been lodged by the complainant. He also submitted

R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023

that there are material contradictions in the evidence of the prosecution, which

are fatal to the case of prosecution. He therefore, submitted that the impugned

judgment and order does not call for any interference at the hands of this court.

He therefore submitted to dismiss the present Appeal.

12. Heard learned Advocates for the parties and perused the record. The

case of prosecution rests on mainly two witnesses namely, (1) Kantibhai

Mathurbhai Solanki, who happens to be the husband of the deceased

Chanchalben and also the first informant and (2) Kailasben Raijibhai Solanki.

Both these witnesses, as per the prosecution, are the eyewitnesses to the

incident. Kantibhai Mathurbhai Solanki has been examined vide Ex. 11 before

the learned Sessions Judge. In his examination-in-chief, he has stated that, on

the fateful day, he and Vishnubhai were working in his farm. At 9 O' Clock in

the morning, his deceased wife Chanchalben came to the farm and went to

fetch water to the well of Jayantibhai and came back to the farm, and thereafter,

left for home with fodder. She must have reached around three farms away

when he heard her cries for help, and therefore, he rushed to the spot and saw

that Arjun was giving dharia blows to his wife and, Raymanbhai and

Amrutbhai were also present on the spot, and they were instigating Arjun to kill

his deceased wife. Chanchalben had sustained injuries on her jaw, hand and

palm. The incident took place on the kachha road near well of Arjunbhai.

Upon plain reading of this deposition, it appears that the incident in question

had happened at least three farms away from the place where this witness was

R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023

present. This witness has been cross examined in detail on this aspect. The

witness in his cross examination, more particularly in para 10, has stated that

the farm of Rasikbhai is to the west of the well of Arjunbhai. The farm of

Rasikbhai is admeasuring 12 bighas and two farms of Ramanbhai are adjacent

to the farm of Rasikbhai. He also admits that his farm is to the South of the

farm of Rasikbhai after 3 or 4 farms. He also admits that the road from his farm

to the place of incident is zig-zag and there are trees on the sides of the road.

Considering the aforesaid facts, it appears that this witness was at quite a

distance from the place of incident at the time of incident. The deceased must

have been assaulted when she raised cries for help and, upon hearing these

cries, the witness had rushed to the place. At the first place, it is also doubtful

that the witness would have heard the voice of the deceased from this far and

secondly, it is hard to believe that, upon being assaulted, the deceased raised

cries for help and the assailants waited at the scene till this witness reached the

place of incident. The witness in his cross examination also states that when he

reached the place of incident, the deceased had fallen down, she was injured

and was bleeding profusely. That means, when this witness reached the place

of incident, the incident was already over, and therefore, there was no question

for this witness having seen the incident as per his claim.

13. The witness has stated in his deposition that one month prior to the

incident, Arjun had tried to molest the deceased. He had intervened at that time

and Arjun was made to apologise in front of the village people, and therefore,

R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023

he had an axe to grind against the deceased, and therefore, he had killed the

deceased. Upon perusal of the FIR lodged by this witness, there is no reference

to any such incident in the FIR. This raises serious doubts about the motive

sought to be attributed to the incident by the prosecution.

14. The witness has also been cross examined on the aspect of his land

being mortgaged with Arjun. On the first breath, the witness denies this fact,

but upon being shown the mortgage deed, he admits that he and his brothers

had borrowed money from Arjun and had mortgaged their land in return with

Arjun. This indicates that this witness has a tendency to lie. This also makes

the story of the defence that since the first informant and his brothers did not

want to repay the amount borrowed by them from Arjun, a false complaint was

filed. It has also come on record that the first informant and his brother owed

money to Arjun towards water charges which were not paid by them for long.

Apart from this, there are several other contradictions between the deposition

of this witness and the FIR lodged by him. These contradictions have been duly

proved by the defence. These contradictions are material and go to the root of

the case of prosecution. Considering all these aspects as regards deposition of

this witness, there is serious doubt about the trustworthiness and truthfulness of

this witness, and therefore, it would not be safe to convict the Respondents on

the basis of deposition of this witness.

15. Another eye witness sought to be relied upon by prosecution is

R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023

Kailasben Raijibhai Solanki. As per the case of prosecution, she was

approaching the place of incident when the deceased was being assaulted by

the respondents. The witness states that the incident had taken place near the

tank. Arjun had inflicted 10 to 12 dharia blows upon the deceased who was

her aunt. There is no reference to the presence of this witness in the FIR.

Therefore, she appears to be a got up witness. Upon perusal of cross

examination of this witness it appears that what is stated by this witness in her

examination-in-chief is highly unreliable.

16. As per the case of prosecution, there were two other eyewitnesses to the

incident namely Vishnubhai and Lakshmiben. They have not been examined

for the reasons best known to the prosecution. Vishnubhai, who was working

in the field with the first informant, also has not been examined.

17. It is emerging from record that there were other fields adjacent to the

place of incident and people were working in those fields at the time of

incident. Therefore, if the deceased had raised cries for help, they would have

been the first persons to hear the same and to reach the place of incident. As

per the case of prosecution, it was the witness Kantibhai who was at a distance

from the place of incident, reached the place first. This also appears to be

highly improbable. Secondly, there is no investigation carried out as regards

the fact as to whether the persons working in the adjacent fields had witnessed

the incident or not. This raises serious doubts about the manner in which

R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023

investigation has been carried out.

18. Another aspect which creates doubt about the case of prosecution is with

regard to registration of FIR. The first informant Kantibhai states in his

deposition that he had lodged the FIR in the Mahudha Police Station and after

the FIR was recorded, the Jamadar had come to the police station. Whereas,

witness no. 10 Mahendrasinh Raol who is the Investigating Officer, states in

his deposition Ex. 36 that upon receipt of information about the incident, he

had rushed to the place of incident after making an entry in this regard in the

Police Station Diary. The husband of the deceased i.e Kantibhai was present

there and his FIR was recorded in his presence. The FIR which is produced on

record is recorded in the presence of this witness which is recorded at the place

of incident. The complaint, which was lodged by Kantibhai in the police

station, is not produced on record. It is also pertinent to note that witness

Kantibhai states in his deposition that after he lodged his complaint in the

police station, the police had come to the place of incident. Therefore, the

complaint lodged by him in the police station attains significance, but,

unfortunately, the same is not produced on record. It is also required to be

noted that as per the provision of Section 157 of Cr.P.C, after the offence is

registered, it is mandatory to forward the FIR to the concerned Magistrate

immediately. In the present case, the FIR has been forwarded to the Magistrate

on the next day. This also raises serious doubts about the case of prosecution.

R/CR.A/592/1995 JUDGMENT DATED: 29/03/2023

19. As per the case of prosecution, the role attributed to Respondent no. 4 is

of harbouring the other accused. However, upon considering the evidence of

prosecution in its entirety, there is no iota of evidence in this regard.

20. Thus, there are several loopholes in the evidence adduced on record by

prosecution which seriously dent the case of prosecution and render the

evidence highly unreliable. Therefore, the learned Additional Sessions Judge,

Kheda does not appear to have committed any error in acquitting the

Respondents of the charges. The present appeal, therefore, being devoid of any

merit, is hereby dismissed. Bail bond stands cancelled.

(A.Y. KOGJE, J)

(M. R. MENGDEY,J)

J.N.W