Gujarat High Court
The State Of Gujarat vs Dipak @ Dipo Pahelvan Nagjibhai ... on 25 September, 2023
Bench: A.S. Supehia
NEUTRAL CITATION
R/CR.A/1237/2005 JUDGMENT DATED: 25/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1237 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE M. R. MENGDEY Sd/-
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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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THE STATE OF GUJARAT
Versus
DIPAK @ DIPO PAHELVAN NAGJIBHAI MACHHI & 4 other(s)
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Appearance:
MS KRINA CALL, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 25/09/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. In the present appeal, presented under Section 378(1)(3)
of the Code of Criminal Procedure Code, 1973 (for short, "the
Cr.P.C."), the State has assailed the judgment and order dated
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28.02.2005 passed by the learned District Judge, Vadodara in
Sessions Case No.84 of 2001, wherein and whereby, at the end
of the trial, the accused - respondents have been acquitted for
the offence punishable under Sections 143, 147, 148, 307 and
149 of the Indian Penal Code, 1860 (for short, "the IPC") as
well as Section 135 of the Gujarat Police Act, 1951 (the
G.P.Act), since the prosecution has failed to prove its case
beyond reasonable doubt.
2. The brief facts leading to filing of the present appeal as
per the case of the prosecution and as per the charge at Exh.6
is that on 23.07.2000, at about 22:30 hours, in Baroda City,
Kishanvadi area, near the house of the complainant - Dipak
Dinkar Rao, an accident of scooter took place between the
complainant and accused. Due to which, there was a quarrel
between the parties. It is alleged that all the accused along
with deceased accused Mahesh @ Kuchdo Virabhai formed
unlawful assembly with a clear intention and causing injuries to
the complainant and prosecution injured witness - Prakash @
Guddu Dinkar Rao with deadly weapons like dagger, swords,
iron pipe, sticks etc. It is further alleged that the complainant -
Dipak Dinkar Rao has tried to intervene in the quarrel with an
intention to save the prosecution witness - Prakash @ Guddu
Dinkar Rao, however he was also assaulted. It is further
alleged that all the accused have formed unlawful assembly
with a common object of riot and to commit breach of
Notification issued by the Commissioner of Police under
Section 135 of the G.P.Act, in respect of the weapons. The Trial
Court, after examining total 17 witnesses as well as
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documentary evidences, has acquitted all the accused by
giving benefit of doubt.
3. Learned Additional Public Prosecutor Ms.Calla, appearing
for the State has submitted that the impugned judgment and
order passed by the Trial Court acquitting the respondents
accused for the offences, for which, they were charged by
giving benefits of doubt, is required to be quashed and set
aside as the same is not premised on the appropriate
appreciation of the evidence. It is submitted that the Trial
Court should have appreciated the evidence of the
complainant at Exh.24 in its true perspective since he has
clearly identified the accused, who had given blows to him as
well as weapons used in commission of offence. It is submitted
that the contents of the complaint at Exh.25 gets corroborated
with the evidence of the complainant at Exh.24. Learned APP
has further pointed out the evidence of the Medical Officer
(PW-13) - Dr. Meena Robin Cristian at Exh.39, wherein she has
stated that the injuries mentioned in the certificate at Exh.40
can be caused by the respective weapons, which were seized
as muddamal. She has submitted that the PW - Prakash @
Guddu, who is an injured witness, has also given history with
regard to the assault by naming the accused and thus, the
Trial Court should have appropriately considered the evidence
of the doctor Mr.M.R.Christian at Exh.13. Learned APP has
further referred to the deposition of Dr.Bhikhubhai M. Patel, at
Exh.41 (PW-14), who has given treatment to the injured
witness - Prakash @ Guddu (PW-8). She has also referred to
the deposition of PW-8 - Prakash @ Guddu at Exh.30 and has
submitted that he has supported the case of the prosecution.
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Learned APP has further referred to the statement of eye-
witness - Magan S. Chauhan, who is examined at Exh.36 (PW-
10). Learned APP has submitted that the entire evidence,
which is established on record inconclusively points out the
guilt of the accused. Thus, it is submitted that the impugned
judgment and order of acquittal acquitting the respondents
may be set aside.
4. Though served, the respondents have chosen not to
appear before this Court to defend their case in the appeal.
5. We have heard the learned APP as well as examined the
evidence on record.
6. The case of the prosecution stems out of the complaint
dated 23.07.2000 at Exh.25, as per the case of the
complainant - Dipak Dinakar Rao (PW-6) at Exh.24, on
23.07.2000, he and the injured witness - Prakash @ Guddu
were assaulted by the accused - Dipak @ Dipo Pahelvan,
Mahesh @ Kuchdo Virabhai and Mahesh @ Begi Danjibhai
Parmar, in view of the scooter accident at Kishanvadi area. In
his complaint, he has narrated that he was assaulted by an
iron pipe, sword and other weapons. He has also named three
accused, as mentioned hereinabove, were armed with various
weapons and they along with other accused assaulted them
again, when his brother - Prakash @ Guddu was taking his food
at home. Initially, he has stated that accused - Dipak @ Dipo
Pahelvan threatened him by showing a dagger and he ran
away from the spot, thereafter, the accused - Mahesh @ Begi
armed with an iron pipe, Mahesh @ Kuchdo with sword, the
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accused - Lalo @ Machko with sword, Rakesh Ramanbhai
Machhi and Raju @ Batko Shivajirao Jadav were armed with
sticks and they assaulted his brother Prakash @ Guddu with all
these weapons and when he tried to intervene, the accused
Mahesh @ Begi assaulted him with pipe, Raju @ Batko and
Rakesh Machhi with sticks.
7. Thus, as per the complaint dated 23.07.2000, the entire
incident has occurred due to an altercation, which has taken
place after the scooter accident. The complainant is examined
at Exh.24. He has stated in his deposition that his brother
Prakash @ Guddu was externed from Vadodara, however he
has come to Vadodara from Ahmedabad in order to attend the
death ceremony of his grandfather on 23.07.2000 and were
staying at their uncle's home at Kishanvadi area. In his
deposition, he has further stated that after his brother was
assaulted, he has taken him to SSG Hospital (Sir Sayajirao
General Hospital) and thereafter, he was taken to the hospital
of Dr.Bhikhubhai Patel and he was admitted for 6-7 days in his
hospital. He has identified the accused in the Court as well as
muddamal articles (weapons). The version of the injured
witness, as narrated in the examination-in-chief with regard to
assault by the particular weapon, does not reconcile since in
the examination-in-chief itself a contradiction is established.
He has narrated the different weapons in the hands of
accused.
8. In his cross-examination, it is elicited that he has not
undergone any treatment. It is further elicited that in the
hospital, he has named all the six accused and has also named
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the weapons carried by them. It is further stated that his
brother has accordingly mentioned the same before the
concerned doctor. There are contradictions, which have been
established in his cross-examination with regard to the
accused - Dipak @ Dipo Pahelvan threatening him with a
dagger. The contradiction is also revealed with regard to
accused - Laalo, Raju and Rakesh. Further, contradiction is
revealed with regard to his brother having been assaulted by
the accused and while beating him, he was taken to him near
temple. Further contradiction with regard to accused - Mahesh
@ Begi armed with sword and accused Mahesh @ Kuchdo
armed with iron pipe, have been brought out. Thus, his
deposition reveals that the complainant is not consistent with
regard to the weapons used in assaulting his brother.
9. The injured witness - Prakash @ Guddu (PW-8) is
examined at Exh.33. He has also narrated the incident as
narrated by the complainant. In his cross-examination, it is
elicited that the incident has occurred in front of the house of
his uncle - Chandrakant, which does not corroborate with the
evidence of complainant, who has stated that the incident had
occurred about 150 feet away near the house of one Bharwad.
In his cross-examination, he has submitted that there were
blood spilled in the compound of the house of his uncle and he
was taken within 15 minutes to the SSG hospital. It is further
narrated by him that after he was taken to SSG Hospital, within
15 minutes, the police has arrived and his brother had given
the complaint and thereafter he was taken to the hospital of
Dr.Bhikhubhai Patel and a surgery was performed on him and
he remained unconscious for 1-2 days. It is further stated that
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his statement was recorded by the police in the hospital of
Dr.Bhikhubhai Patel and he has accordingly, given the details
of the weapons carried out by the accused. In his cross-
examination, it is further elicited that when the incident had
occurred, there was no quarrel with the accused and there
were also no prior altercation or fight between him and the
accused. The narration of the registration of the complaint by
both the complainant and his brother do not reconcile with
each other, since the complainant stated that he had narrated
the incident to the police after his brother was taken to
hospital of Dr.Bhikhubhai Patel, whereas the injured refers the
complaint having been given at the SSG Hospital. His
deposition also does not reconcile with the facts narrated in
the complaint with regard to the weapons assigned to each of
the accused and the reason for fight. His deposition revealed
that the witness has identified the muddamal articles, which
are used as weapons and the fact of holding the accused the
respective weapons, which are narrated in the complaint gets
reconcile with the evidence of this witness. However, in his
cross-examination, it is elicited and he has denied that the
incident has occurred due to the scooter accident. This witness
presence in Vadodara appears to the doubtful since the
evidence reveals that he was externed for two years from
Vadodara City. No investigation is done in this regard.
10. The Investigating Officer (PW-17) examined below
Exh.48, has referred to the panchnamas prepared by him,
which includes the discovery panchnama of the weapons. It is
deposed by him that both the complainant as well his brother
Prakash @ Guddu had come to the police station and
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registered the complaint. Thus, there is major contradiction
established with regard to the registration of the FIR, since the
complainant has stated that the FIR was registered after he
was brought in the hospital of Dr.Bhikhubhai Patel, the injured
witness says that the FIR was registered at the SSG Hospital,
whereas the Investigating Officer has specifically stated both
had come to the police station and accordingly, the FIR was
registered.
11. It is also established that the FSL report does not in any
manner implicate the respondents in the offence, neither any
blood has been found on the clothes of the accused nor on the
weapons. The discovery panchnama does not satisfy the
provisions of Section 27 of the Evidence Act. It is not proved
either by the Investigating officer or by the panchas.
12. Doctor- Bhikhubhai Manubhai Patel (PW-14), who is
examined below Exh. 41, in his deposition, has stated that
both the complainant as well as his brother have not named
the accused. Doctor - M.R. Cristian (PW-13) in her deposition
below Exh. 39, stated that the complainant and his brother had
named three accused - Dipak @ Dipo Pahelvan, Lalo @ Machko
and Mahesh @ Kuchdo, who have assaulted them with the
sword and pipe respectively. Thus, before this witness also, the
injured as well as complainant have not assigned the weapons,
as narrated in the complaint and the evidence. In her cross-
examination, it is elicited that she had not issued any
certificate as to whether the injury was grievous or not. She
has further admitted that looking to the depth of the injuries, it
can be said that they are not inflicted by the weapons as
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mentioned in her deposition such as dagger, sword, pipe,
sticks. Thus, the evidence, which has surfaced is of doubtful
character and hence, we do not find any infirmity in the
judgment of the Trial Court acquitting the accused by giving
them benefit of doubt.
13. Accordingly, the appeal fails and the same is dismissed.
Record and proceedings, if any, shall be returned to the
concerned Trial Court, forthwith.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(M. R. MENGDEY,J)
MAHESH/74
