Gujarat High Court
Nareshbhai Aatubhai Singhad vs State Of Gujarat on 26 June, 2024
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/CR.A/928/2023 ORDER DATED: 26/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 928 of
2023
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NARESHBHAI AATUBHAI SINGHAD
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. AAMIR S PATHAN(7142) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 4,5
MALAYKUMAR S PATEL(8901) for the Opponent(s)/Respondent(s)
No. 2,3
MR. RONAK RAVAL, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 26/06/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
[1] This Appeal is filed under Section 372 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as "the Code") challenging
the judgment and order of acquittal recorded by the 5 th Additional
Sessions Judge, Bhavnagar at Mahuva on 21.11.2022 in Sessions
Case No.8 of 2021, whereby the respondents - accused came to be
acquitted of the charges punishable under Sections 302, 504 and 34
of the Indian Penal Code read with Section 135 of the Gujarat Police
Act.
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[2] At the time of hearing of this appeal, learned APP Mr. Ronak
Raval, has produced a communication dated 21.01.2023 addressed to
the Office of Public Prosecutor, Bhavnagar by the Under Secretary,
Legal Department, Government of Gujarat, stating therein that State
considers it not appealable and therefore, decided not to prefer an
appeal against the present judgment and order of acquittal.
Therefore, we have heard Mr. Aamir S. Pathan, learned advocate for
the appellant - first informant as also learned Additional Public
Prosecutor.
[3] Since the Records and Proceedings was already called for, it
has reached this Court and we have perused the same.
[4] Heard Mr. Aamir S. Pathan, learned advocate for the appellant.
According to his submission, the first informant who is real brother
of the victim whereas accused and the deceased were friends. He has
submitted that since there were cross cases filed against each other,
injured eye-witnesses in the present case have not supported the
case of the prosecution as they were friends whereas victim has lost
his brother and therefore, this appeal is preferred at his instance. He
has further submitted that though witnesses have turned hostile,
there are other materials on record, based on which, concerned
Court can reach to a conclusion that none else but the accused have
committed an offence of murder. He has further submitted that the
first informant has given true and correct version of the incident and
he has not deviated from his first information and therefore, his
evidence could not have been discarded by the learned Judge and no
judgment and order of acquittal could have been recorded. Not only
that, as per the submission of learned advocate for the appellant,
first informant has identified clothes of the accused as also the
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R/CR.A/928/2023 ORDER DATED: 26/06/2024
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victim, worn at the time of incident, before the Court. He has further
submitted that even Medical Officer has also opined that deceased
died due to serious injuries sustained by him and his death is also
because of those injuries. It is further submitted that as per the
medical evidence, injuries found on the person of the deceased are
by sharp-cutting instrument and it is possible by pointed weapon like
knife, which has been admitted by the doctor. Therefore, Mr. Pathan,
learned advocate for the appellant submitted that the present appeal
may be admitted and allowed.
[5] As against that, Mr. Malaykumar S. Patel, learned advocate for
respondent Nos.2 and 3, submitted that as per the information
supplied by witness - Sagarbhai Dhirubhai Chauhan (PW-11), Exhibit
-47, the first informant gave FIR. However, Sagarbhai has not
supported the case of the prosecution and he is declared hostile. He
has further submitted that if at all Sagarbhai, as per the case of the
first informant, took the deceased to the hospital and present at the
time of incident, he would have surely disclosed the name of the
assailants before the Medical Officer. However, in the history given
to the doctor, no names of the assailants are mentioned. Therefore, it
is submitted that Sagarbhai is not an eye-witness to the incident and
he could not have stated anything to the first informant, as claimed
by him. He has further submitted that, as per the case of the
prosecution, there were four other persons along with the deceased
at the time of incident and all have been examined as (PW-11) -
Sagarbhai Dhirubhai Chauhan, (PW-12) - Jigarbhai Devsibhai Kavad,
(PW-14) - Govindbhai Parshurambhai Kavad and (PW-15) - Rajubhai
Maganbhai Jodiya, however all have not supported the case of the
prosecution and they were declared hostile. Therefore, it is
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submitted that case rests on circumstantial evidence alone.
[5.1] It is further submitted that, so far as other circumstances are
concerned, there appears no reliable evidence and therefore, there is
no question of any circumstances being proved against the accused
so as to convict them. He has further submitted that (PW-3) & (PW-
4), Manishbhai and Jugalbhai, who were panch witnesses to the
scene of offence panchnama, have not supported the case of the
prosecution and they were declared hostile. Except their signature in
the panchnama, they have not supported anything stated therein.
Though (PW-5) - Shaileshgiri and (PW-6) - Dharamsibhai, are panch
witnesses effecting arrest of three of the accused being accused
Nos.2, 3 and 4 and recovery of clothes worn by them, they have not
supported any other panchnamas and they have claimed that they
were never called thereafter for anything and they have not signed
anything thereafter. They have admitted in their evidence that
signatures in all the panchnamas were done at the police station
itself and the clothes were shown by the police which were lying on
the table; whereas (PW-6) - Dharamsibhai Gobarbhai who is panch
witness to the seizure of the Activa as also clothes of the accused,
has also not supported the case of the prosecution, except three pairs
of clothes were sealed in a bag, nothing further stated by him.
[5.2] In short, other panch witnesses have not supported the case
of the prosecution and they have been declared hostile. Even if the
panch witnesses who have supported the case of the prosecution, it
is not on the material aspect which may connect the accused to the
crime. Therefore, he has submitted that learned Judge has, after
examining the evidence adduced before it and appreciating the
documents proved before it, recorded an order of acquittal by a well-
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reasoned order and therefore, it should not be interfered with.
[6] Since State has considered the judgment not appealable and
decided not to prefer an appeal against the impugned judgment and
order, learned APP Mr. Ronak Raval, has requested to pass an
appropriate order.
[7] Having heard the learned advocates for the appearing parties
and going through the impugned judgment and order of acquittal as
also the evidence adduced and documents produced by the parties
and from the records and proceedings which has been called for, let
us examine whether there is any evidence available so as to reach a
conclusion that judgment and order of acquittal is erroneous or
against the evidence on record or not. Considering the fact that
initially, the case of the prosecution was based on four of the eye-
witnesses, some of them are also injured. However, during the
examination before the Court, all the four eye-witnesses have not
supported the case of the prosecution and therefore, they have been
declared hostile. Despite vigorous cross-examination by the learned
APP, nothing yielded out of the same. Since first informant who is
real brother of the deceased gave first information based on
information supplied by (PW-11)-Sagarbhai, when he did not support
the case of the prosecution before the Court, first informant cannot
be believed as he derived knowledge from Sagarbhai when
Sagarbhai does not say so that he is having any knowledge about the
incident. Therefore, case rests only on circumstantial evidence. If
those circumstances are to be considered, other witnesses being
(PW-17) - Parshottambhai Shivabhai Siyad who knows the deceased
as also the eye-witness as well as they were friends and who took
deceased to the hospital in 108 ambulance and present at that time
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but he has also pleaded ignorance about the incident and therefore,
he was also declared hostile. There is also discrepancy with regard to
vehicle in which deceased was taken to the hospital. According to the
case of the prosecution, there is prosecution witness No.17 -
Parshottambhai Shivabhai Shiyal, who claimed that deceased was
taken to the Hanumant Hospital in 108 ambulance, whereas (PW-19)
- Dr. Bhimjibhai Pandav claimed that deceased - Bhavesh was
brought by one Sagarbhai Chauhan in a private vehicle at Hanumant
Hospital. Even some of the accused who received injuries, were also
examined by the very doctor but in the history before him, no names
of assailants by the accused were mentioned. At the same time, even
if they have any injury, it is the duty of the prosecution to prove that
they have received any injury in the very same incident which has
occurred where deceased died. Neither from the evidence of (PW-19)
- Dr. Bhimjibhai Pandav, nor from any other material, it can be said
that the accused received injury in the incident whereby scuffle took
place between the deceased and the injured accused.
[8] So far as evidence of Doctor who performed the postmortem, is
concerned, there is no dispute with regard to injury sustained by the
deceased and because of those injuries, deceased succumbed to
death. Before convicting the accused, there has to be some evidence
against the accused that they have caused such fatal injury to the
deceased before recording an order of conviction. All the four eye-
witnesses, as referred to hereinabove, have not supported the case of
the prosecution, nor witness - Sagarbhai has stated that he informed
about the incident to the first informant. Therefore, there appears no
corroboration to the first information given by the appellant. Not only
that the discovery of weapon panchnama has not been proved as the
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panch witnesses have not supported the case of the prosecution who
witnessed the discovery but even Investigating Officer (PW-22) at
Exhibit -74, Dhirendrasinh Dharmendrasinh Zala has also not
deposed to before the Court about the disclosure made by the
accused and at their instance, weapons discovered thereafter.
Therefore, discovery of weapons can never be said to be proved.
Therefore, the circumstance that accused armed with muddamal
weapon and any further circumstance that they are stained with a
blood, that too having blood group of the deceased on it is not
available to the prosecution even as a connecting link to indict the
accused into the crime. So far as blood sample of deceased drawn
by the doctor sent for blood grouping, though it was found to be
human blood, its' group could not be determined as reflected in a
serological report dated 30.03.2021 which is at Exhibit -91. Not only
that, even clothes of deceased found to be stained with two different
blood groups which is not possible. Once blood group of the
deceased could not be determined, either on the weapon or on the
clothes of any of the accused, any blood group is found, it leads
nowhere to connect the accused with the crime.
[8.1] Therefore, not only there is no any direct evidence, there
appears no circumstantial evidence as well, based on which, it can be
concluded that none else but accused have committed crime so as to
convict them. We are conscious of the fact that unless and until only
view that the accused have committed crime can be taken based on
evidence before the Court, we cannot interfere with the well-
reasoned order of the acquittal, even if, there two views are possible.
Furthermore, the innocence of the accused is strengthened by an
order of acquittal and therefore, while exercising the appellate
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powers determining acquittal appeal, evidence and the documents
are required to be closely scrutinized, which we have undertaken and
we failed to find even any circumstance based on which accused can
be convicted.
[9] Since we have perused the entire records and proceedings as
also the judgment and order of acquittal passed by the learned
Judge, we do not find any error in a well-reasoned judgment and
order so as to reverse an order of acquittal and therefore, this appeal
filed by the victim, that too, where State has considered judgment to
be not appealable, we dismiss the same. Records and Proceedings be
sent back to the concerned Trial Court forthwith.
[10] Accordingly, the present appeal fails and it is hereby
dismissed.
(UMESH A. TRIVEDI, J.)
(CHEEKATI MANAVENDRANATH ROY, J.)
Lalji Desai
