Gujarat High Court
State Of Gujarat vs Shakil @ Dilip Arvindbhai Vaghela on 8 November, 2023
Bench: A.S. Supehia
NEUTRAL CITATION
R/CR.MA/10372/2023 ORDER DATED: 08/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO.
10372 of 2023
In R/CRIMINAL APPEAL NO. 1367 of 2023
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STATE OF GUJARAT
Versus
SHAKIL @ DILIP ARVINDBHAI VAGHELA
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Appearance:
MR RONAK B. RAVAL, APP for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 08/11/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The matter requires consideration. RULE.
2. The present application is filed seeking leave to appeal
under Section 378(3) of the Code of Criminal Procedure, 1973.
3. On 17.10.2023, this Court had passed the following
order : -
"Though served no one has entered
appearance on behalf of the respondents.
S.O. to 8.11.2023.
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R/CR.MA/10372/2023 ORDER DATED: 08/11/2023
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4. Despite the aforesaid order passed by this Court, the
respondents have chosen not to appear before this Court.
5. The present applicant - State of Gujarat has preferred the
captioned appeal before this Court challenging the judgment
and order of acquittal dated 05.01.2023 passed by the Court of
Sessions Judge, Surendranagar in Sessions Case No.21 of
2019, wherein at the end of the Trial, the Trial Court has
acquitted the opponents for the offence under Sections 302,
397, 504 and 114 of the Indian Penal Code, 1860 and Section
135 of the Gujarat Police Act, 1951, hence, the present
application is filed seeking leave to appeal against the order of
acquittal.
6. Learned Additional Public Prosecutor has submitted that
the Trial Court, without appreciating the evidence laid down by
the prosecution, has acquitted the respondents for a serious
offence punishable under Sections 302, 397, 504 and 114 of
the IPC and Section 135 of the GP Act. Learned Additional
Public Prosecutor has further submitted that the evidence of at
least 8 witnesses would reveal that the respondents are
directly involved in the offence, for which, they were charged.
He has further submitted that the Trial Court has failed to
NEUTRAL CITATION
R/CR.MA/10372/2023 ORDER DATED: 08/11/2023
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appreciate the complaint at Exh.49, which gets corroboration
from the evidence of complainant (PW-16) - Jayeshnath
Parshurambhagat Nath at Exh.48. He has further submitted
that the Trial Court has failed to appreciate the evidence of
PW-13 - Dr.Mukeshbhai Samatbhai Sakariya at Exh.37, who
performed the postmortem of the deceased in the penal of
Dr.Methyo Konyak. It is submitted by the learned APP that
according to evidence of this witness, the deceased was
having four injuries on his body, out of which injury Nos.1 and
2 were fetal in nature and as per opinion of the Medical Officer,
the cause of death is due to shock and hemorrhage as a result
of head and brain injuries. He has further submitted that the
Trial Court has failed appreciate evidence of PW- 20 Lalo @
Kalpeshbhai Mansukhbhai Vasani at Exh.59. According to
evidence of this witness, accused Shakun and Shakil raised
quarrel with Bapu and accordingly Bapu told him to place, the
accused persons leave place, got excited and accused Shakun
pushed Bapu away and while Bapu fallen down, accused Shakil
brought hammer and inflicted on head of Bapu. He has also
identified muddamal hammer as article No.5 - Hammer, then
in that case, the Trial Court has committed error in acquitting
the respondents. He has submitted that the Trial Court has
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erred in holding that the evidence of PW-20 Lalo @ Kalpesh
Mansukhbhai at Exh.59 is not reliable and trustworthy so as to
convict respondents for the alleged offence. It is submitted
that the Trial Court has erred in observing minor omissions,
inconsistencies contradictions in the evidence and of
witnesses, which does not go to the route of prosecution. It is
urged that the present application may be allowed.
7. As noted hereinabove, though served, the respondents
have chosen not to appear, hence, the contentions and
averments made in the present application remained
uncontroverted.
8. We have also perused the reasoning given by the Trial
Court. Considering the submissions advanced by the learned
Additional Public Prosecutor and the averments made in the
application, the present application deserves to be allowed.
The present application is allowed. Rule is made absolute.
(A. S. SUPEHIA, J)
(VIMAL K. VYAS, J)
MAHESH/71
