Gujarat High Court
Mali Ukaji Punamji vs State Of Gujarat on 17 April, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/SCR.A/267/2017 JUDGMENT DATED: 17/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 267 of
2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
==========================================
Approved for Reporting Yes No
✔
==========================================
MALI UKAJI PUNAMJI
Versus
STATE OF GUJARAT
==========================================
Appearance:
MR. SURAJ MATIEDA, for MR P P MAJMUDAR(5284) for the
Applicant(s) No. 1
MR. ROHAN SHAH, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==========================================
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 17/04/2025
ORAL JUDGMENT
[1] This application is filed under Articles 226 & 227 of the
Constitution of India read with Section 482 of the Code of Criminal
Procedure, 1973 (for short 'the Code'), challenging the order passed
by the learned Judicial Magistrate First Class, Dhanera dated
15.09.2014, whereby Criminal Inquiry No.16 of 2004, after recording
evidence of several witnesses, came to be dismissed under Section
NEUTRAL CITATION
R/SCR.A/267/2017 JUDGMENT DATED: 17/04/2025
undefined
203 of 'the Code'. The said order of the learned Magistrate is again
confirmed by the learned Sessions Judge in Criminal Revision
Application preferred by the petitioner as original complainant.
[2] Learned 4th Additional District and Sessions Judge,
Banaskantha at Deesa vide order dated 27.06.2016 in Criminal
Revision Application No.127 of 2014, rejected the said revision
application and confirmed the order passed by the learned
Magistrate dated 15.09.2014 in Criminal Inquiry No.16 of 2004.
[3] Mr. Suraj Matieda, learned advocate for Mr. P.P.Majmudar,
learned advocate for the applicant, attempted to submit that
deceased died because of the head injury, which is not in dispute. He
has submitted that examination of the doctor who performed the
postmortem, is also of no importance as postmortem note is already
admitted into evidence and it has been exhibited on record. He has
further submitted that as such, learned Magistrate should have
ensured presence of the doctor for examining him before exhibiting
the postmortem note. Be that as it may, postmortem note is already
on record of the case, from which, it reflects that deceased died of
head injury. Therefore, he has submitted that this Special Criminal
Application be allowed.
[4] Vide order dated 13.12.2022, Records and Proceedings of
Criminal Inquiry No.16 of 2004 was called for from the Court of
learned Judicial Magistrate First Class, Dhanera. As per the
endorsement in the cause-list, Records and Proceedings are received.
[5] Having heard the learned advocate for the applicant, learned
APP Mr. Rohan Shah for the respondent - State and going through
the judgment and order passed by the learned Magistrate as also
NEUTRAL CITATION
R/SCR.A/267/2017 JUDGMENT DATED: 17/04/2025
undefined
confirmed by the learned Sessions Judge, so also Records and
Proceedings, it appears that death of the deceased - Laljibhai, i.e.
because of head injury, is not in dispute. However, to connect any of
the accused and punish them for the offence, that too, an offence of
murder of someone, there has to be some evidence before the Court,
based on which, they can be called upon to face the trial.
[6] Looking at the judgment and order passed by the learned
Magistrate, it appears that, as per the allegation in the complaint,
deceased had some relations with the niece of accused No.1 -
Nileshkumar Sumermal Jain (Shah) and because of that reason,
accused conspired together to kill deceased - Laljibhai, who is doing
electrical works and used to purchase electric goods on credit basis
from the shop of accused No.1 - Nileshkumar. It is further allegation
in the complaint that deceased - Laljibhai had business relations with
accused No.1 - Nileshkumar and Mahendrabhai Shah, who is
accused No.4 shown in the complaint, and he used to visit frequently
at Shop known as "Mahavir Electrical Services". As per the
complaint, on 19.05.2004 (in the order below Exhibit -1 it is
incorrectly mentioned as 19.05.2014), deceased - Laljibhai left his
home informing the family members that he was proceeding towards
Dhanera to have his dues from different persons on a scooter bearing
registration No.GJ-8B-7299. It is the further allegations in the
complaint that he parked his scooter at Shop known as "Mahavir
Electrical Services" and thereafter, he proceeded on Hero Honda
motorcycle bearing registration No.GJ-8-24-3815. On the said
motorcycle, deceased - Laljibhai, Nileshkumar and Rameshbhai
Lalabhai Tank, who is said to be accused No.2, started therefrom.
[6.1] As per the case of the prosecution, bike was driven by accused
NEUTRAL CITATION
R/SCR.A/267/2017 JUDGMENT DATED: 17/04/2025
undefined
No.1 - Nileshkumar and from behind them, one another bike came
wherein two other persons came and one out of those two persons,
gave iron rod blow over the head of deceased - Laljibhai and
therefore, he became unconscious. However, instead of taking him to
the hospital, accused took him at Deesa and after advice of an
advocate, they have created a case that because of dog crossing the
road, motorcycle wherein deceased - Laljibhai was sitting, slipped
and he received injuries over his head. It is further the case of the
prosecution that accused again came at Dhanera and took deceased -
Laljibhai at Government Hospital. However, they were advised to
take him at Palanpur Hospital and despite that, deceased - Laljibhai
was taken at Ahmedabad Hospital and on the way at Mahesana,
deceased - Laljibhai was got admitted and during treatment, he died.
[6.2] However, as recorded by the learned Magistrate, Ukaji
Punmaji Mali - complainant, Popatji Ukaji, Gangaram Pratapji,
Rajendrakumar Chunilal, Chandrikaben Dahyaji, Ranchhodji Pratapji
and Ashwinkumar Chunilal were examined on behalf of the
prosecution before the Court. However, as recorded in the order,
neither of them are eye-witnesses to the incident. Though, their
deposition establishes that deceased - Laljibhai received injuries and
he was admitted in the Mahesana Hospital, over and above that, as
per witness - Chandrikaben Dahyaji, some persons came to meet
Sardaben - wife of deceased - Laljibhai, and informed that don't file
case, they will up bring their children. However, as recorded by the
learned Magistrate, no such facts have been stated by Chandrikaben
in her deposition. Even if, it is presumed to be correct, it can never
be said that accused conspired together to commit murder of
deceased - Laljibhai. As such, nowhere involvement by name or
identified accused, is established by the prosecution holding them
NEUTRAL CITATION
R/SCR.A/267/2017 JUDGMENT DATED: 17/04/2025
undefined
responsible, either for injury or the death of deceased - Laljibhai. As
further recorded in the judgment of the learned Magistrate, even
complainant - Ukaji Punmaji Mali has deposed to a different story in
his deposition than the story put forth by him in the complaint. In the
deposition before the Court, he stated that his son - Laljibhai,
accused No.1 - Nileshkumar and accused No.2 - Rameshbhai,
started from Deesa and going towards Dhanera, near Samarvada,
one old man was noticed in between road and in attempt to save him
they fell down from Hero Honda and deceased - Laljibhai received
injuries because of that. Even in deposition, accused Nos.1 & 2, said
to have obtained some advise from advocate. Be that as it may,
complaint discloses that someone has given iron rod blow on the
head of the deceased - Laljibhai, which is missing even in the
deposition before the Court. Even if, death of deceased - Laljibhai is
because of head injury is believed, who is author of the injury and
whether that injury was sufficient in ordinary course of nature to
cause death or not, having not been established, that too, any of the
accused are responsible for the same, learned Judge has rightly held
that even no prima facie case is made out to issue even process and
therefore, dismissal of a complaint under Section 203 of 'the Code'
appears to be after examination of evidence brought before the Court
in detail.
[7] Not only that, learned Sessions Judge has examined the case,
considered the precedents relied by the learned advocate for the
applicant herein, learned Sessions Judge has also recorded that
evidence of the complainant and witnesses recorded by the Trial
Judge was also verified by him and confirmed the findings recorded
by the learned Magistrate that no prima facie ground is made out
against the accused for even issuance of process. Therefore, learned
NEUTRAL CITATION
R/SCR.A/267/2017 JUDGMENT DATED: 17/04/2025
undefined
Sessions Judge has also confirmed the order of learned Magistrate
having recorded that learned Magistrate has not committed any
illegality and / or any error in passing the impugned order and
therefore, revision application came to be dismissed.
[8] Not only the learned Magistrate but learned Sessions Judge
has also examined and verified the evidence led before the Court.
Even in this jurisdiction, while exercising power under Articles 226 &
227 of the Constitution of India, I see no reason to interfere with the
findings recorded by the learned Magistrate as also confirmed by the
learned Sessions Judge, even on re-appreciation, that too, in
revisional jurisdiction by it.
[9] Hence, this Special Criminal Application is without any merit
and therefore, it is hereby rejected. Rule is discharged. Records and
Proceedings be sent back to the concerned Trial Court forthwith.
(UMESH A. TRIVEDI, J.)
Lalji Desai
