Gujarat High Court
State Of Gujarat vs Rameshbhai @ Timpo Chadabhai Chauhan on 27 February, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/849/2010 JUDGMENT DATED: 27/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 849 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
RAMESHBHAI @ TIMPO CHADABHAI CHAUHAN & ANR.
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Appearance:
MR JAY MEHTA, APP for the Appellant(s) No. 1
MR PARTHIV BHATT, ADVOCATE for the Opponents/Respondents No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 27/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This acquittal appeal is preferred by the State of
Gujarat against the judgment and order of acquittal dated
08.02.2010 passed by the learned Additional Sessions
Judge, Fast Track Court, Nadiad at Kheda in Sessions Case
No.45 of 2009, whereby, the original accused Nos. 3 and 4
i.e. respondent Nos. 1 and 2 have been acquitted of the
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charges under Sections 302, 326, 307, 504 read with
Section 34 of the IPC and Section 135 of the Bombay
Police Act.
2. All the accused came to be tried for offences
punishable under Sections 302, 307, 326, 504 read with
Section 34 of the Indian Penal Code, 1860 ('IPC', for short)
and Section 135 of Bombay Police Act, 1951 ('B.P. Act', for
short). The trial Court, after appreciation of the evidence,
acquitted the accused as per the below table:
Accused Acquitted from charge
Accused no. 1 - Chadabhai Sections 302 and 504 read with Section
Bhagabha Chauhan 34 of IPC and Section 135 of B.P. Act.
Accused no. 2 - Somabhai Sections 326, 307 and 504 read with
Bhagabhai Chauhan Section 34 of IPC and Section 135 of
B.P. Act.
Accused no. 3 - Rameshbhai @ Acquitted from all the charges i.e.
Timpo Chadabhai Chauhan Sections 302, 307, 326, 504 read with
Section 34 of IPC and Section 135 of
B.P. Act.
Accused no. 4 - Raisingbhai @ Acquitted from all the charges i.e.
Titabhai Chauhan Sections 302, 307, 326, 504 read with
Section 34 of IPC and Section 135 of
B.P. Act.
3. Facts and circumstances giving rise to this appeal
are that, the complainant and the accused are resident of
village; Baladi, Taluka: Mahudha, Dist.: Kheda and they are
also relatives. On 05.07.2008, the complainant PW-1 -
Naresh Chauhan, his father - Ramjibhai and uncle -
Abhabhai PW-12, had gone to their field for cultivation.
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The field of the accused is adjacent to the field of the
complainant party.
According to case of the prosecution, in the noon
hours i.e. at 12-00 noon, the accused in number 4 came
to the field of the complainant party and asked the
deceased Ramjibhai and his brother PW-12 Abhabhai, keep
vacant some of the portion of the land, as it has been
used for personal purpose i.e. bathing and the area,
which was asked to keep vacant, is near the house of the
accused. Since long, the dispute was going on with
respect to said land. The PW-1 as well as deceased
Ramjibhai as well as his brother PW-12 Abhabhai, refused
to keep the said portion of land vacant and confronted
that the said land is in their possession and since long
they are cultivating. On this issue, heated exchange of
words were taken place and according to case of the
prosecution, the accused party hurled abusive and then,
assaulted the deceased Ramjibhai, his brother PW-12
Abhabhai with the weapon Scythe (Dharia) and stick. The
accused No. 1 Chaddabhai Bhagabhai gave a blow on the
left shoulder of the PW-12 Abhabhai with Scythe and due
to the said blow, the left forearm was amputated. The
accused Chaddabhai again gave a blow on the right hand
of the PW-12 Abhabhai, which has resulted into
amputation of right thumb and right index fingure and also
injured him on his right thigh. The deceased Ramjibhai
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when intervened, the accused No.2 - Somabhai, gave a
blow with Scythe Dharia over his left shoulder. It is further
case of the prosecution that, the accused Nos. 3 and 4 i.e.
respondents herein were present armed with wooden stick
at the spot and assaulted the deceased as well as his
brother Abhabhai PW-12. In order to save the deceased as
well as injured, the persons near the vicinity of the area
came there and due to hue and cry, the accused fled away
from the place. The deceased Ramjibhai and injured
immediately taken to the Civil Hospital, Nadiad, and
thereafter referred to Higher Center at Ahmedabad. The
deceased Ramjibhai was declared dead by the doctor at
Ahmedabad, whereas, the injured Abhabhai PW-12, was
admitted in the orthopaedic department at Ahmedabad for
a period commencing from 05.07.2008 to 16.07.2008.
PW-1 - son of deceased Ramjibhai lodged an FIR at
Nadiad and the offence came to be registered with
Mahudha Police Station being I-C.R.No. 83 of 2008, under
Sections 307, 326, 504 read with Section 34 of the IPC and
Section 135 of the Bombay Police Act. The father of PW.1 -
Ramjibhai who sustained injuries over his left hand, died
during the treatment, as a result, the I.O. had added the
Section 302 of the IPC with the permission of the Court.
The investigating officer PW.22, during the
investigation of the case, took visit the place of occurrence
and in the presence of two independent witnesses, drew
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the panchnama of place of incident and collected the
samples of blood etc. for FSL purpose. The I.O. then
recorded the statements of material witnesses. The I.O. on
account of death of Ramjibhai sent his body to the
Government Hospital for postmortem and collected the
P.M. Note as well as treatment case papers of the
witnesses and deceased. The I.O. also arrested the
accused herein and recovered the weapons used in the
crime. The I.O. thereafter, sent the muddamal articles for
FSL purpose and after receiving the necessary reports, he
found sufficient evidence for the charge of murder and
causing grievous injuries to the witnesses, as a result of
which, he filed chargesheet against the accused before
the Jurisdictional Magistrate who committed the case of
the concerned sessions court at Nadiad.
4. After due framing of charge and upon the accused
pleading not guilty, the trial commenced before the
Sessions Court at Kheda.
5. In the course of trial, the prosecution adduced the
following evidence in support of its case:
Oral evidence
PW 1 - Exh. 17 Nareshbhai Ramabhai Chauhan, Complainant
PW 2 - Exh. 20 Amarsinh Ratansinh Parmar, panch witness
PW 3 - Exh. 22 Chandusinh Kalusinh Bhojani, panch witness
PW 4 - Exh. 23 Prabhatbhai Ramanbhai Chauhan, panch witness
PW 5 - Exh. 25 Ramabhai Chaturbhai Sodhaparmar, panch witness
PW 6 - Exh. 26 Yusufkhan Akarkhan Pathan, panch witness
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PW 7 - Exh. 30 Dilawarkhan Usmankhan Pathan, panch witness
PW 8 - Exh. 32 Manharbhai Bhailalbhai Patel, panch witness
PW 9 - Exh. 33 Jayantibhai Hathibhai Talpada, panch witness
PW 10 - Exh. 34 Mahammedmiya Allamiya Malek, panch witness
PW 11 - Exh. 36 Ranabhai Karmanbhai Koli, medical officer
PW 12 - Exh. 37 Abhabhai Shanabhai Chauhan
PW 13 - Exh. 38 Kantaben Ramabhai Chauhan
PW 14 - Exh. 40 Yakubmiya Nayibmiya Malek, Executive Magistrate
PW 15 - Exh. 43 Arvindbhai Vajabhai Chauhan
PW 16 - Exh. 41 Dr. Maheshkumar Parshottambhai Kapadia, medical officer
PW 17 - Exh. 52 Dr. Manishbhai Bachubhai, medical officer
PW 18 - Exh. 54 Dr. Nilakshiben Kantilal, medical officer
PW 19 - Exh. 58 Maganbhai Nagarbhai Talpada, police station officer
PW 20 - Exh. 59 Shatusih Kalusinh Rathod, police sub-inspector
PW 21 - Exh. 61 Dashrathbhai Ramabhai Panchal, police station officer
PW 22 - Exh. 63 Babulal Motan Patil, investigation officer
Documentary evidence
Exh. 18 Complaint
Exh. 21 Panchanama of scene of offence
Exh. 24 Panchanama of clothes of injured Abhabhai Shanabhai
Exh. 27 Panchanama of physical examination of accused
Exh. 28 Panchanama of recovery of clothes of accused Chadabhai and
weapons
Exh. 29 Inquest Panchanama
Exh. 31 Panchanama of clothes of Ramabhai Shanabhai
Exh. 35 Panchanama of clothes of accused
Exh. 47 Post-mortem note
Exh. 42 Dying declaration of Abhabhai Shanabhai
Exh. 48 Medical certificate of cause of death
Exh. 53 Injury certificate of Abhabhai
Exh. 55 Certificate of deceased Ramabhai Shanabhai
Exh. 56 Certificate of injured Abhabhai Shanabhai
Exh. 64 Post-mortem Form
Exh. 65 Receipt of handing over dead body
Exh. 66 Map of scene of offence
Exh. 67 Forwarding note
Exh. 68 FSL receipt
Exh. 69 FSL letter
Exh. 70 FSL report
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Exh. 71 Serological report
6. After closure of the prosecution evidence, the
respondent-accused along with 2 other accused, were
questioned under Section 313 Cr.P.C. to which they stated
that, they were innocent and had been falsely implicated
in the serious offence of murder.
7. Though opportunity was extended, no evidence was
tendered from the side of accused-respondent.
8. After conclusion of trial, relying principally on the
deposition of PW.1, PW.12 and medical evidence including
the postmortem report, the Sessions Court held
responsible the respondent no.2 Somabhai for causing the
death of Ramjibhai under Section 304 Part I of the IPC and
was sentenced to undergo 10 years imprisonment with
fine Rs.5000/- and in default thereof, further imprisonment
of 1 year. The respondent-accused no.1 was held guilty by
the court below for attempt to murder and causing injuries
to the PW.12 - Abhabhai and was directed to undergo 7
years imprisonment and 1 year under Section 307 and 326
of the IPC respectively. So far as respondents accused are
concerned, they have been acquitted of the all charges.
9. In the aforesaid facts and circumstances, being
aggrieved with the clear acquittal of the respondents
original accused Nos. 3 and 4, the State has come with the
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present acquittal appeal.
10. We have heard learned State counsel Mr. Jay Mehta
and Mr. Parthiv Bhatt for the respective parties.
11. Mr. Jay Mehta, learned APP submitted that, the court
below has not properly appreciated the oral as well as
documentary evidence and despite of there is a clear
evidence proving the complicity of the respondents-
accused, they have been acquitted of all charges.
Referring to the evidence of PW.1-complainant- Naresh
Chauhan, PW.12-Abhabhai Chauhan who sustained injuries
in the said incident, Mr. Mehta would urge that, the version
of the witnesses proving the presence of the accused at
the place of incident and assaulting the deceased
Ramjibhai with wooden sticks by them have been proved
and established. There is nothing brought on record to
disprove the case against the respondents on the aspect
of injuries caused to the deceased by them. There is
sufficient medical evidence which corroborates the
testimonies of the eye witnesses about the injuries
sustained by the deceased over his head and according to
opinion of the P.M. Doctor-PW.15, the head injuries found
by him could be possible with the weapon stick. In such
circumstances, it has been submitted that, the conclusion
arrived at by the trial court giving clear acquittal to the
respondents-accused are contrary to the evidence on
record and the reasons assigned by the court below giving
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benefit of doubt would nothing but perverse and arbitrary.
Thus, therefore, it has been prayed that, the prosecution
has proved the case against the accused beyond
reasonable doubt and there is a merits in the appeal which
may be allowed and by allowing the appeal, the accused
may be convicted and sentenced for the charge of murder
and causing grievous injuries.
12. On the other hand, Mr. Parthiv Bhatt, learned counsel
appearing for the respondents-accused opposing the
contentions, would urge that, the court below has
appreciated the evidence on record and recorded its
findings which appears to be reasonable and based on the
evidence on record which does not require interference.
Referring to the oral as well as documentary evidence
adduced by the prosecution, Mr. Bhatt has submitted that,
there was over implication of the respondents-accused in
the said incident. The respondents-accused are sons of
accused no.2-Somabhai and therefore, the male members
of entire family were being roped in the serious offence of
murder. The injured Abhabhai-PW.12, did not have
disclosed names of the respondents-accused as assailants
when his statement in the form of dying declaration
recorded by Executive Magistrate-PW.14. Even the injured
witness - PW.12 and complainant - PW.1, have not stated
in clear terms in their deposition about the role attributed
to the respondents-accused. In general terms, the names
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of the respondents-accused being referred by the
witnesses, however, on which part of the body, the
accused assaulted the deceased as well as PW.12, has not
been clarified which clearly indicative of the facts that, the
presence of the respondents-accused were not there and
due to their relations with the principal accused, they have
been shown as accused by the PW.1 and PW.12. It is the
bounden duty of the prosecution to prove the case against
the accused beyond reasonable doubt and in the facts of
present case, the court below, has not placed reliance on
the version of the witnesses about the complicity of the
accused. In such circumstances, it is prayed that, the
findings of acquittal arrived at are not erroneous or
contrary to the evidence, and in absence of any
exceptional circumstances, no case is made out
warranting interference with the findings of acquittal and
therefore, the acquittal appeal having no any merits and
same may be dismissed.
13. We have heard learned counsel for the parties and
considered their rival submissions made hereinabove and
also went through the records with utmost circumspection.
14. Before the trial court, there were 4 accused. The
respondents-accused were shown in the chargesheet as
accused no.3 and 4. They are sons of the principal
accused. The facts about the farm land are not in dispute.
It is on record that, prior to the incident, there was a
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dispute about the place where the accused generally used
the said place for bathing purpose. The house of the
accused are adjacent to the said disputed place and
unfortunately, the place on official record would under the
occupation of the complainant party. This was the root
cause of the incident. The accused no.1 and 2, armed with
scythe (dharia) assaulted the deceased Ramjibhai and
PW.12-Abhabhai brother of the deceased. So far as
respondents-accused are concerned, it is alleged that,
they assaulted the deceased with wooden stick. The
Doctor who had treated the deceased Ramjibhai did not
find any injuries over the head. However, the PM Doctor
found fracture injuries over the head of the deceased. We
have carefully perused the oral evidence of PW.1 and
PW12 who claimed to be eye witness of the incident. The
other witnesses have no personal knowledge as they were
not present at the place. The said two eye witnesses in
their respective testimonies stated that the respondents-
accused assaulted the deceased, except general
statement, no any specific version being given by them
against the respondents-accused. The Executive
Magistrate-PW.14 recorded the statement of the injured
Abhabhai-PW12 wherein he had not disclosed the names
of the accused as assailants. The court below after
appreciation of evidence, held that, the ingredients of
Section 34 are not attracted and accordingly, the act of
individual accused was being considered while fixing their
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liability. In these background facts, after reanalysis of the
evidence of witnesses as referred above, we do not find
any evidence for establishing an overt act, so far as
respondents-accused are concerned.
15. In the aforesaid circumstances, after appreciating the
oral as well as documentary evidence, we have no
hesitation in holding that, the prosecution failed to
produce sufficient material to prove the guilt of the
respondents-accused. The law of interfering with the
judgment of acquittal is well settled. The interference with
the acquittal appeal is justified only when there is element
of perversity traceable from the findings recorded by the
court below in appreciation of the evidence.
16. For the above discussion and reasons thereof, we see
no reason or justification to interfere with the findings of
acquittal. In the result, the appeal stands dismissed. The
judgment of acquittal is hereby confirmed. Registry shall
send the R & P to the concerned Trial Court henceforth.
Sd/-
(ILESH J. VORA,J)
Sd/-
(HEMANT M. PRACHCHHAK,J)
TAUSIF SAIYED
