Gujarat High Court
State Of Gujarat vs Popatbhai Nanjibhai Asari on 18 February, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
R/CR.A/1116/1997 JUDGMENT DATED: 18/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1116 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT
Versus
POPATBHAI NANJIBHAI ASARI & ANR.
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Appearance:
MS JIRGA D JHAVERI, APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1,2
MR.MRUDUL M BAROT(3750) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 18/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
(1) The present appeal emanates from the
judgement and order of acquittal dated 28.08.1997
passed by the learned Additional Sessions Judge,
Sabarkantha at Himmatnagar in Sessions Case
No.112 of 1996, whereby the trial Court has been
pleased to acquit the accused for the offences
punishable under Sections 302 and 114 of the
Indian Penal Code, 1860 (IPC) read with Section
135 of the Bombay Police Act, 1951 (B.P.Act).
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(2) The case of the prosecution in nutshell and
as per the Charge at Exh.10 is that on 17.08.1996
at around 12 O'clock, the accused - Popatbhai
Nanjibhai Asari had inflicted blow of axe on the
head of the deceased, whereas another accused -
Shankarbhai Makanbhai Asari had assaulted the
deceased - Dashrathbhai Nanjibhai Asari by
inflicting kick and fist blows, which resulted
into his death instantly.
(3) Learned APP Ms.Jhaveri has submitted that an
F.I.R. was lodged before Bhiloda Police Station,
Dist. Sabarkantha for the offences punishable
under Sections 302, 114 of the IPC read with
Section 135 of the B.P.Act. She has submitted
that the investigating agency, during the
investigation, recorded the statements of
witnesses from various panchnamas for the purpose
of proving the offence. It is further contended
that the trial Court has committed an error in
acquitting the accused, by not appreciating the
evidence produced on record, though the
prosecution had proved the case against the
accused. She has submitted that the trial Court
has relied on minor contradiction and discarded
the evidence of the witnesses. It is further
submitted that the prosecution has established
the guilt of both the accused and, therefore, the
acquittal order may be quashed and set aside.
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(4) Learned APP has further submitted that before
the trial Court, the doctor, who performed the
post mortem of the deceased, has accepted that
the injuries inflicted upon the deceased is
possible with axe. She has submitted that the
wife of the deceased Dashrathbhai and the minor
son Ajaybhai, both are the eye-witnesses, as per
the case of prosecution and an axe, which was
used in the offence, was discovered at the
instances of the accused, which was seized by the
police. It is submitted by her that Panch -
Bachubhai Panaji has supported the case of the
prosecution. She has submitted that the trial
Court has not believed the family members, as
they are the interested and related witnesses.
Hence, she has urged that the present appeal may
be allowed.
(5) We have heard the learned APP appearing on
behalf of the appellant - State and also perused
the documents on record, as pointed out by her.
(6) PW-1, complainant, the wife of the deceased
viz. Kantaben D. Asari has registered the F.I.R.
at Exh.18. As per the contents of the F.I.R., she
has submitted that in the night hours, she along
with her son had gone to sleep at her in-laws'
house and at that time, accused - Shankarbhai,
who is her relative and also neighbour, was
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trying to have electric connection from the
electric pole, which was objected by her husband.
It is alleged by her that at that time, the
accused switched off the light of the bulb and at
around 10 O'clock, another accused - Popatbhai,
who is the younger brother-in-law, came with an
axe and inflicted blow on the head of her husband
by saying that why he asked the accused -
Shankarbhai to switch off the lights. It is
alleged by her in her complaint that some
altercation had taken place between both the
accused and accordingly, accused - Popatbhai had
inflicted one blow of axe on the head of the
deceased, whereas accused - Shankarbhai had given
kick and fist blows. It is further alleged that
because of this assault, the deceased fell down
and both the accused had lifted the deceased and
put him in the cot and went away and thereafter,
the deceased passed away within an hour. She has
further stated in her complaint as well as in her
deposition that no one had come to her house for
the entire night because of fear of the accused
and at around 6 O'clock on the morning, her uncle
-Maganbhai, who is residing nearby, visited their
house and thereafter, she informed about the
incident and after such information, one
neighbour - Chhaganbhai Kavji also came over
there and accordingly, along with her uncle -
Maganbhai, she went for registration of the
F.I.R. at the Police Station.
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(7) In her deposition at Exh.17, PW-1, Kantaben,
has stated that on the next day, she has
registered the F.I.R. In her cross-examination,
it is elicited from her that the distance between
her and the place, where the assault has taken
place was 500 ft. and there was no light when the
incident was taken place and there is fence,
which is at person's height surrounding the house
of the accused - Shankarbhai. She has also
deposed that after her husband was injured, he
remained alive for at least one hour. In her
cross-examination she has reduced the distance
from 500 ft. to 200 ft. and deposed that when in
the morning, she got up, she went to Maganbhai's
home, which is adjacent to her house and informed
him about the incident. She has further admitted
that the house of the accused - Popatbhai is
around 200 ft. from her house.
(8) Thus, the conduct of the complainant does not
appear to be natural as she waited for the entire
night with the dead body and did not raise alarm
to neighbour - Maganbhai and informed him in the
morning about the incident, when he visited the
house. It is also established fact from the
deposition that she was sleeping at the house of
her in-laws with her son. Neither the neighbour -
Maganbhai nor the in-laws of the complainant have
been examined as witnesses by the prosecution.
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Another eye- witnesses, which the prosecution has
projected, is minor son i.e. PW-2 aged about 11
years at the time of giving deposition at Exh.19.
He has referred that he went to the grand
parents' house for sleeping at night and the
house of the accused - Shankarbhai was adjacent
to such house. He has also reiterated the facts
verbatim, as mentioned by PW-1 - complainant.
(9) In the cross-examination, it is elicited from
PW-2 that on the day of the incident, it was dark
and in the morning, he accompanied her mother
i.e. PW-1 - complainant for registering the
F.I.R. He has also deposed that he was sitting in
the varandah (courtyard) along with his deceased
father and grand father at the time of incident.
witnesses, it is surprising to note that there is
no whisper about the in-laws/grand parents of PW-
1 and PW-2 respectively. Both of them have spent
the entire night with the dead body without
informing the police or anyone else, including
the neighbours.
(11) At this stage, we may refer to the
evidence of PW-7, who is Police Patel and
neighbour of the complainant. His evidence is
hearsay as he was informed by the complainant
about the incident and accompanied them to the
registration of the F.I.R. In his cross-
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examination, he has admitted that he is serving
as the Police Patel since five years and the
distance between his house and the house of the
deceased was half kilometer.
(12) Despite the status of PW-7, who was
neighbour and is Police Patel, PW-1 - complainant
and her in-laws did not think fit to inform him
about the incident of during entire night.
(13) PW-6, Ravjibhai Nemajibhai Asoda, who is
examined below Exh.27, who has prepared the scene
of offence panchnama at Exh.28, has deposed that
the house of the accused - Shankarbhai is
surrounded by fencing, which is of the person's
height and he has admitted that he was called by
the father of the deceased. The scene of offence
panchnama shows that the house of the accused -
Shankarbhai is 54 ft. away from the house of
Maganbhai Dhodabhai. The panchnama reveals about
the blood having being found near cot.
(14) The prosecution has also placed reliance
on the discovery of the axe however, we find that
the discovery panchnama is not proved as per the
requirement of Section 27 of the Indian Evidence
Act, 1872, which is precisely held by the trial
Court. The Forensic Report also does not reveal
any blood on the axe, which has been allegedly
recovered at the instance of the accused.
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(15) The trial Court had threadbare examined
all the evidence, as mentioned hereinabove, and
found that the case of the prosecution is
doubtful. We also find that in wake of the
aforesaid facts and on the day of the incident
when it was dark and assault had also taken place
at considerable distance and also looking to the
unnatural conduct of the complainant coupled with
the fact that vital witnesses have not been
examined, we find that the judgement and order
recording acquittal of the trial Court acquitting
the accused, for which they were charged, does
not require any interference.
(16) In view of the foregoing reasons, the
present appeal fails. Record and Proceedings to
be sent back.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(GITA GOPI,J)
NVMEWADA/D1-40
