Gujarat High Court
State Of Gujarat vs Dajibhai @ Talsibhai Khatubhaipatel on 3 January, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
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R/CR.A/593/2002 JUDGMENT DATED: 03/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 593 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS 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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STATE OF GUJARAT
Versus
DAJIBHAI @ TALSIBHAI KHATUBHAIPATEL & 5 other(s)
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Appearance:
MR TIRTHRAJ PANDYA, APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1,2,3,4,5,6
MR RUSHABH R SHAH(5314) for the Opponent(s)/Respondent(s) No.
1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 03/01/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
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R/CR.A/593/2002 JUDGMENT DATED: 03/01/2024
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1. The instant appeal filed under the provisions of Section
378(1) of the Code of Criminal Procedure, 1973, arises from the
judgment and order dated 10th January 2002 passed by the
learned Additional Sessions Judge, Panchmahals at Godhra, in
Sessions Case No.94 of 2001, acquitting the respondent-accused
for the offences punishable under Sections 143, 144, 147, 148,
504, 302, 307, 323, 324, 506(2) read with Section 149 of the
Indian Penal Code.
2. The case of the prosecution in short is that on 4 th February
2001, the respondents-accused nos.1 to 6 formed an unlawful
assembly with a common object to commit the offence for getting
share in the property and they were armed with sticks, bow &
arrows, iron pipes, etc. As per the case of the prosecution and as
per the charge Exh.2, the accused Ratilal gave a stick blow on
the head of the deceased Maneklal, who is the bother of the
complainant (PW1), the accused Dajibhai aimed an arrow at
Maneklal, which struck on the wrist of deceased, the accused
Gulabbhai Dajibhai gave a blow with iron pipe on the right hand
of the deceased, the accused Amarsinh Dajibhai gave stick blows
on the head of the deceased. It is further alleged that Ramilaben,
her mother and her elder sister-in-law Surajben had intervened.
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The accused Keshamben gave stick blows on the back of
Revaben, the accused Dajibhai Khatubhai aimed an arrow at
Ramilaben, which struck on her left hand and the accused
Ratilal also inflicted stick blows on her left hand. It is further
alleged that at that point of time the complainant came to the
scene of offence and on account of fear, he hid himself behind
the house and noticed the incident. Thereafter, the accused
persons fled away from the place of the incident after
administering threat to them. Accordingly, PW1 registered the
complaint on 5th January 2001 with the Morva Police Station.
3. After the investigation, the accused persons were charged
and accordingly they were tried for the offences for which they
were charged. The trial court, after examining 15 witnesses and
also documentary evidence, acquitted the respondents-accused.
4. Learned APP, while assailing the judgment and order of the
trial court acquitting the respondents-accused, has submitted
that the trial court has ignored the evidence of the most
important witness, i.e. the complainant - Devidas Zavrabhai,
who is examined below Exh.11. The evidence of PW13 - Revaben
Parvatbhai (Exh.42) and PW10 - Ramilaben Devidas (Exh.35)
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reveals the complicity of the accused in the offence. Learned APP
has submitted that the two injured witnesses PW10 and PW13
have supported the case of the prosecution and have narrated
the incident as if it had happened, and once the presence is
accepted, the evidence clearly establishes that the accused were
armed with various weapons and have brutally assaulted the
deceased. Learned APP has also referred to the postmortem
report (Exh.28) and has submitted that the injuries which were
suffered by the deceased reconciled with the evidence of the eye-
witnesses who are also the injured witnesses. While referring to
the evidence of the Investigating Officer, learned APP has
submitted that his evidence reveals that appropriate panchnama
was undertaken and the weapons were recovered and were sent
to the FSL, which also proves that the incident had occurred.
Learned APP has also referred to the scene of offence panchnama
(Exh.17). In support of his submission, he has submitted that
the place of incident reveals blood stains and hence, it is
established that the incident had occurred. While referring to the
findings of the trial court, learned APP has submitted that the
trial court has believed the medical evidence which reveals that
the injured eye-witnesses PW13 and PW10 have referred to the
names of the accused persons and it is specifically stated that
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they were assaulted by the accused persons, namely, Dajibhai,
Gulabbhai, Mangalsinh, Ratilal, Keshamben and Amarsinh. He,
thus, submitted that despite the aforesaid evidence, the trial
court has fell in error in acquitting the accused. Hence, it is
urged by him that the judgment and order acquitting the
accused requires to be quashed and set-aside.
5. We have heard learned APP at length and have also
examined the evidence threadbare. As per the charge (Exh.2),
the case of the prosecution as mentioned herein above is that all
the accused formed an unlawful assembly and inflicted various
blows with arrows, iron pipes and stick on the deceased as well
as the injured witnesses on 4th February 2001. The complainant,
who is examined as PW1 below Exh.11, accordingly lodged the
complaint on 5th February 2001 (Exh.12). A perusal of his
evidence reveals that he has seen the incident from behind a
wall through a crack which was 2 fingers wide in the night hours
at around 8:00 p.m. The evidence reveals that he has admitted
in his cross-examination that there was a winter season and at
around 7:00 p.m. it was dark and there was no light. The
Investigating Officer (PW14), who is examined at Exh.44, has
also admitted in his evidence that there was no light. It is the
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case of the prosecution that the accused had also inflicted
injuries on the injured witnesses as well as the deceased by bow
& arrows. In the evidence of the Investigating Officer, he has
stated that he had collected 5 arrows, however, except one
arrow, he did not send the other arrows to the FSL. Reading the
evidence of the complainant in juxtaposition the evidence of the
Investigating Officer, it is manifest that it is highly improbable
that the complainant has seen the incident through a crack in
the wall and that too in the dark outside his house in a street as
there was no light. The trial court has accordingly considered his
evidence and has recorded a finding that it is highly improbable
that the eye-witness has seen the incident, that too, assigning
role to each of the accused persons with the weapons through
which they inflicted injuries on the deceased. It is also noticed by
the trial court and the evidence of the witness also reveals that
subsequently after registering the present complaint, the
complainant had again registered another complaint involving
eighteen accused, for which no explanation has been tendered
by him. His evidence does not, in any manner, reveals or
establishes him as a reliable witness and is tainted with major
contradictions and omissions. Similarly, the injured witness -
Ramilaben Devidas (PW10), who is examined at Exh.35, has
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narrated the incident. However, the same suffers from major
contradictions. She has admitted that she had not seen the
accused when they had arrived and she is not aware when they
had entered in the house. The defence has been able to establish
major contradictions and omissions as well as improvements in
her evidence. The same is the position with the testimony of the
injured witness - Revaben Parvatbhai (PW13), who is examined
at Exh.42. Though the history, which is recorded by
Dr.Rameshchandra (PW15), who is examined at Exh.50, reveals
the name of the accused, but the same is recorded on 6 th
February 2001, i.e. after two days of the incident and after the
registration of the complaint. It is well settled legal precedent
that the conviction for a serious offence under Section 302 of the
Indian Penal Code cannot be recorded merely on the recording of
the history by the doctor unless the same is corroborated by
further evidence. The entire case of the prosecution is premised
on the evidence of these three witnesses. The panchnama is not
proved as the panchas have turned hostile. There is
contradiction with regard to infliction of wounds or injuries with
the arrows in the testimony of the injured witnesses as well as
the complainant. The manner in which the incident has been
narrated by these three witnesses also does not reconcile with
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each other. The medical history of PW13 - Revaben Parvatbhai
(Exh.42) naming the accused does not find place in her police
statement, which is recorded under Section 161 of the Code of
Criminal Procedure. It is also interesting to note that the wife of
the deceased, namely, Surajben, though was present at the time
of the incident and would have been a vital witness, is not
examined by the prosecution. Similarly, the father of the
deceased, namely, Zavrabhai, who was also present at the time
of the incident, is also not examined as a witness. All the three
witnesses are inconsistent in narrating the manner in which the
incident has occurred. From the evidence, it is revealed that the
witnesses have tried to attribute both, stick and bow & arrow, in
the hands of one of the accused Dajibhai. However, the case of
the prosecution is not that he was armed with stick. Similarly, it
is noticed that the witness - Revaben Parvatbhai (PW13), though
has admitted that she has seen the incident and also the
accused, however, in the court, while identifying them, she
committed major mistakes/errors and, instead of two chances
given to her, she was unable to identify the accused Gulabbhai
and instead she named him as Amarsinh. She has identified the
accused Amarsinh as Mangalsinh and Gulabsinh as Ratilal.
Thus, her evidence before the trial court does not, in any
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manner, inspire confidence and it cannot be said that she has
actually seen the accused in the night hours when the incident
had occurred. None of the evidence of the aforesaid witnesses
qualifies as of pristine quality and the conviction for a serious
offence like murder cannot be premised on an evidence which is
doubtful in nature.
6. We have threadbare perused the findings of the trial court
and we do not find that the same is tainted with any illegality or
perversity. Hence, we are not inclined to reverse the acquittal of
the respondents-accused.
7. The appeal fails and is hereby dismissed. Records and
proceedings be sent back to the concerned trial court.
(A. S. SUPEHIA, J.)
(VIMAL K. VYAS, J.)
/MOINUDDIN
