Gujarat High Court
Bhagvatsinh Deepsinh Puwar vs State Of Gujarat on 27 November, 2025
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 39 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
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BHAGVATSINH DEEPSINH PUWAR
Versus
STATE OF GUJARAT
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Appearance:
MR BC DAVE(245) for the Appellant(s) No. 1
MR ROHANKUMAR H. RAVAL, ADDITIONAL PUBLIC PROSECUTOR for
the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 27/11/2025
ORAL JUDGMENT
1. The appellant-accused was serving in the Police
Department, who came to be convicted on 13.12.2005 by
the learned Additional Sessions Judge, Court No.9,
Ahmedabad City in Sessions Case No.236 of 2003
whereby under Section 307 of the Indian Penal Code
(IPC), the appellant was sentenced to undergo two years
of rigorous imprisonment and payment of fine of
Rs.1,000/- and in default of payment of fine, to further
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undergo 3 months rigorous imprisonment. The benefit of
set-off was given to the accused.
2. The proceedings against the accused was under Sections
307, 506 of the IPC, under Sections 66(1)(b) and 85(1)(3)
of the Bombay Prohibition Act and under Sections 110
and 117 of the Bombay Police Act.
3. The charge against the accused was framed below Exhibit
6. As per the complaint, on 04.06.2002 at about 10.30
night near Mahakali Road, Shahibaug, Ahmedabad, the
accused was in an inebriated condition on the public
road and was behaving in a disorderly manner under the
influence of alcohol. Thus, the accused was charged
under the Bombay Prohibition Act. Further, as per the
complaint, on the referred date and place, when the
complainant asked the accused for money of the
telephone calls, the accused threatened to kill the
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complainant and pointed the rifle at the complainant and
fired. Thus, the proceedings were ordered under IPC.
4. The complaint is by Chhatrasinh Khumsinh Rajput at
Exhibit 12, who had declared before the Police Inspector,
Madhupura Police Station, Ahmedabad City, that he was
staying at Radha Vallabh Chali, Opposite Mahakali
Mandir, Shahibaug with his family. Being handicapped
by left leg, therefore, was allotted the STD PCO Booth
from the Telephone Department, at a concessional rate
which he was running opposite Mahakali Mandir in the
name of 'Ganesh Telecom'. The timings of his telephone
booth was from 6.00 in the morning to 11.00 in the
night.
5. According to his complaint, opposite his booth, there is a
police booth. Police Constable Bhagvatsinh Deepsinh
Puwar (accused) was on duty in the area. The
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complainant knew the accused very well since the
accused was working on this point for a very long time.
According to the complainant, the accused used to go to
his STD PCO for making calls, local as well as outgoing
to several area, and would even go for having his food
at Ramesh Hotel, which is near the complainant's STD
PCO Booth.
6. The complainant demanded Rs.225/- which was due from
the accused. The complainant further alleged that on
04.06.2002 at about 10.30 night, his daughter-Dadam was
sitting at the telephone booth and he and his wife-
Paniben were sitting at the corner of the shed. There was
a curtain hanging from the shed, at that time, the
accused was having some dispute with a person at the
lodge. When the complainant and his wife came out,
they saw Bhagvatsinh Deepsinh Puwar in police uniform
with a rifle and was moving in an disorderly manner, at
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that time, the complainant asked for the money, the
accused suddenly got angry, verbally abused him and
removed one cartridge from his pant pocket, inserted it
into the rifle saying "Uda Doonga, Khoon Kar Doonga".
He pointed the rifle at the complainant, and, as
complainant got afraid, he hid himself behind the
curtain. It is also stated by the complainant that at that
time, the accused with an intention to kill him had fired
from his rifle and on hearing the sound, he hid himself
in the corner of the booth. The complainant stated that
the customers visiting Ramesh Lodge and Ramesh
Solanki's son and others jumping the compound wall of
the police line entered the compound.
7. During that time as per the complainant, the CRPF
Jawans were patrolling there and came at the place, they
took the rifle, from the hands of accused, at that time,
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Bhagvatsinh tried to release himself from their grip. The
complainant said that many people had gathered there.
The complainant further stated that the Jawans forcefully
took the rifle from the accused and took the accused to
Modi Ni Chali.
8. As per the complainant, thereafter, he came to know that
the accused was in an inebriated state and was struggling
to release himself from the clutches of CRPF Jawans but
on the apprehension that he would fire again, the Jawans
made the accused forcefully sit on the road in Modi Ni
Chali and took away the rifle and cartridges from him.
9. Learned advocate for the appellant Mr. B.C. Dave
referring to the observations of the learned Judge and the
deposition of the witnesses submitted that the case
against the accused under the Bombay Prohibition Act
and the Bombay Police Act has not been proved. The
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conviction against the accused is under Section 307 of
IPC with the allegations that the accused had fired at the
complainant with the official revolver which was with
him in the capacity of police. It is further submitted
that the learned trial Court Judge has not even cared to
see whether any ballistic report has been brought on
record to prove the case of actual firing. It is further
submitted that the case proceedings at Exhibit 29 would
clearly prove that no such Arms Examination Certificate
or the opinion with regard to the firing of the cartridge
has been placed on record and therefore, the accused was
constrained to move Exhibit 29 making a prayer before
the learned Judge to give a Status Report in accordance
with the provisions of Sections 207 and 238 of Cr.P.C.
Learned advocate Mr. Dave submitted that the learned
Judge ordered the opinion as confirmed in 'A', to be
furnished to the accused. The date of order is
02.05.2005.
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10. Learned advocate Mr. B.C. Dave submitted that the
proceedings and the record does not show any ballistic
report with regard to the firing report, is on record.
FSL,report of State of Gujarat refers to the sealed
parcels. The Ballistic department of said FSL in their
inter-department communication, sent the sample to
Biological Department on 18.01.2002 for examination of
the blood. Learned advocate Mr. B.C. Dave submitted
that the said Report at Exhibit 44 shows parcels as one
received from ballistic department, and the sample was
an old half sleeve synthetic open dirty shirt with blood
stains on it, while Parcel D was received from ballistic
department contained pant. Mr. B.C. Dave submitted
that such does discloses examination of rifle and empty
cartridge or the live bullets. Learned advocate Mr. B.C.
Dave submitted that the Serological group Report dated
11.03.2003 shows Blood Group 'B'. Though the police
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had produced on record, the document Exhibit 43 of the
Ravangi Nondh (Despatch Note) in connection with I-C.R.
No.199 of 2002 where the description of the muddamal
at Serial No.1 :- Musket :- 410 rifle where on the butt in
english inscribed as ADC :- 993 with bolt open with a
sealing stripe. It was valued at Rs.33,000/- as Mark 'A'.
At Serial No.2 :- Musket :- 410 rifle with an empty
cartridge yellow in colour and on the cap K.F. 410 I92
was embossed valued at Rs.00.00 in a sealed/closed
condition given Mark 'B'. At Serial No.3, at the time of
incident, the clothes of the accused, i.e.half sleeve khakhi
coloured open shirt with two front pockets tucked with
press buttons. On the shirt, in the front, there were
blood stains, shirt valued at Rs.00.00 in a sealed
condition was given Mark 'C'. At Serial No.4, a khakhi
coloured pant, on its right side, as well as on the left
side,blood stains were seen scattered. These are valued at
Rs.00.00,in sealed condition were Marked as 'D'.
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11. Learned advocate Mr. B.C. Dave submitted that Mark 'A'
for the rifle and Mark 'B' was with the query as to
whether there was any round of fire. Mark 'C' and 'D'
were sent for finding the opinion of the presence of the
remnants of firing and Mark 'C' and 'D' was also for
knowing blood group. It is submitted that the learned
Judge has failed to consider the Report nor any mention
has been made of such report in the judgment nor report
was produced, though the accused had asked for the
same and thus, stated that the conviction under Section
307 of IPC does not stand proved and should be
considered as no actual firing from the alleged official
weapon.
12. Advocate Mr. Dave contended that the complainant and
his daughter have turned hostile. None have supported
the case of firing. Denial of the alleged incident by the
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complainant does not prove the complaint. The wireless
message which was sent to the police, though received,
has not been proved on record. The Station Diary has
not been produced. The contradiction are with the
evidence of the PW16-Police Inspector-Vakatsinh Devisinh
Vanar and PW12-PSI Ahmedkhan Ajikhan and rest of the
witnesses. The contradictions create doubt. The
production of the rifle as well as the cartridge was not at
the behest of the accused, while the panchnama would
show that the person from CRPF, one named Madhavan
had produced the weapon who was not examined as a
witness during the trial. Learned advocate Mr. Dave
stated that the complainant had referred to the Lodge
owner Rameshbhai and his son. The dispute was known
to them, however that fact has not been proved on
record by examining Rameshbhai or his son. The
complaint referred to the incident as it happened at
10.30 pm while the witness from CRPF states to have
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occurred at about 9.30 night.
13. Countering the above arguments, learned Additional
Public Prosecutor Mr. Rohankumar H. Raval submitted
that PW16-Police Inspector-Vakatsinh Devisinh Vanar has
given cause of the incident. The Police Inspector had
stated that he had received the information, that near
Mahakali Mandir, Madhubhai Lawn, a police constable
had fired and hence, he reached the place of incident.
The accused gave his complaint at the place of incident
and the panchnama of the physical condition of the
accused was also drawn. The rifle as well as the used
cartridge and the live cartridges were taken from the
place of incident. The clothes, rifle and the cartridges
were sent for physical examination to the FSL. The
incident had occurred as the complainant had asked for
Rs.225/- which was due from the accused towards the
STD PCO Booth. The Report was sent to the superior
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Officer. Learned APP has submitted that the evidence
with rifle issued in the name of accused has been proved,
there was no other cause, except for the present accused
who was present there to fire which has not been
disputed. Thus, it is is even submitted that in absence
of the ballistic report, reliance has to be placed on the
deposition of the witnesses, who are from the Police
Department as well as the CRPF Jawans who have no axe
to grind against the accused. It is further submitted that
the acquittal under the Bombay Prohibition Act is on a
technical ground and further stated that under Section
307 IPC, to prove the offence, the injury is not required
to be proved. Intention of the accused is the major
element. The major aspect which has been believed by
the learned trial Court, after analysis of evidence of the
witnesses, has come to the conclusion that the accused
had used the official rifle for firing and had pointed the
rifle to the complainant, which itself proves his intention
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to kill the complainant.
14. In the background of the arguments canvassed by learned
advocate Mr. B.C. Dave for the appellant and learned
APP Mr. Rohankumar H. Raval for the State, the analysis
of the evidence would be required of the witnesses so
examined. The prosecution had examined about 16
witnesses and had relied upon 11 documentary evidences
to prove the case against the accused. The accused in
his statement under Section 313 of Cr.PC stated that he
is innocent, he had not done any firing and he had not
consumed any liquor.
15. The complainant-Chatrasinh Khumsinh Rajput examined
as PW1 has not supported the prosecution case. He has
referred to the complaint at Exhibit 13 where he
identified his thumb impression. The complainant stated
that he does not have any knowledge about the incident,
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the police had called him at 9 o'clock from his home and
he has put his thumb impression. On the date of the
incident at about 7 o'clock after closing the STD PCO
Booth, he had returned back home. The evidence of the
complainant suggests that Ganesh Telecom was opposite
Mahakali Temple, Shahibaug, Ahmedabad and he was
running the telephone booth since 1992. The timings
were from 7.00 in the morning to 7.00 in the night. He
says that he does not know that the incident had
occurred 2-3 years ago when the riots were going on.
Complainant admits of a police point opposite his booth
and that the police would often come to his STD PCO
Booth for making telephone calls. The STD PCO Booth
was beside Ramesh Hotel and also stated that the
appellant would come to eat there. This witness was
declared hostile. The Public Prosecutor was permitted
to cross examine him in accordance with Section 154 of
the Evidence Act, where the complainant denied the
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version given in the complaint. He denied of asking any
dues of Rs.250/- of telephone bill from the accused. He
also denied of demanding money from the accused. The
complainant also denied that the accused was under the
influence of alcohol. The complainant denied the fact
that the accused got angry and had removed the
cartridge from his pocket and had assaulted him with a
rifle, abusing and pointing the same to him was saying
"Uda Doonga, Khoon Kar Doonga". He had denied of
any of such facts as stated in the complaint. He denied
of the incident as given in the complaint and also of his
hiding behind the curtain, on hearing the sound of firing.
The complainant also denied of the CRPF Jawan coming
there, apprehending the accused, snatching away the rifle
from the hands of the accused, emptying the cartridges
from his pocket and seizing them.
16. In the cross examination, the complainant stated that in
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and around the neighboring vicinity of Mahakali Temple,
there were many liquor dens. Because of the riots, at
that time, patrolling were conducted by the armed police
of SRPF and CRPF Jawans. He denied the suggestion
that because of patrolling, the business of liquor was
down. According to the complainant, the police had
come to call him and had taken his thumb impression.
He does not know what was written in the complaint.
17. The daughter of the complainant was manning the STD
PCO Booth and was examined as PW2, who also has not
supported the police case and has denied the whole
incident. In the same way, the wife of the complainant
and mother of PW2, who was examined as PW3 has not
supported the prosecution case.
18. PW4-Manoj Makwana has been the panch, the
panchnama-Exhibit 19 was drawn in connection with the
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cartridges and rifle. He denied of those being seized in
his presence. After being declared hostile, the panch had
not supported the prosecution case. In the cross
examination, the learned Public Prosecutor had put
certain suggestions. The witness has denied of the
presence of accused-Bhagvatsinh Deepsinh Puwar when
he was called in Modi ni Chali, near Mahakali Mandir.
He has also denied of any unpleasant smell of alcohol
from the mouth of the accused, denied of the eyes of
accused in red, walking in an imbalanced manner. The
suggestion that CRPF Sipahi Shri. Madhavan had
produced one rifle and one used cartridge and other eight
live cartridges was denied by this PW4.
19. The relevant fact which was produced through PW4-
panch witness which requires appreciation in context with
the incident is the alleged rifle and the used cartridges
produced by CRPF Jawan Shri. Madhavan, who has not
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been examined in the present case. The whole incident
as pointed out is that the accused had raised his rifle
against the complainant and had fired one round. Even
the panch witness PW5-Pudlik Vithalrao, who is the
panch at Exhibit 20 has very categorically stated that
nothing was seized in his presence. The fact of CRPF
Shri. Madhavan producing the rifle as well as the used
cartridge and the live bullets has not been supported by
PW5. The deposition of PW5 however affirms that at the
time, there were riots in the city and near Mahakali
Mandir there was CRPF point, but he does not know the
police presence though PW5 confirmed that at the time
of incident, Bhagvatsinh Deepsinh Puwar was having his
service at the point. He denies of the accused having
consumed liquor and also denied of the incident which
was alleged to have taken place near Ganesh Telecom
Booth and has categorically affirmed of no muddamal
being seized. According to the cross examination, the
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group had dispersed within 10-15 minutes. The police
had taken the signature on a blank paper, and he stated
that he has no knowledge of what use, the police had
made of the blank paper on which his signature was
taken.
20. PW6-Munnasinh Ramavtaar and PW7-Babubhai Chauhan
were examined as panch for panchnama-Exhibit 22 of
seizing clothes of accused in their presence, they have
denied the same. Both the witnesses confirmed about
the riots near Mahakali Mandir and the police point
deployed there. PW8-Gajanand Nenuram Marwadi stated
that the police had forcibly taken his signature in Exhibit
24 and PW9-Bharatbhai Kaluji has also not supported the
panchnama-Exhibit 27. The panchas have not supported
the police case of seizing the rifles, cartridges or clothes
of the accused.
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21. The learned trial Court has not believed the case of the
prosecution against the accused under the Bombay
Prohibition Act. PW10-Sureshkumar Vishwanath Dave
who was the person serving in FSL as a Scientific Officer
in the Alcohol Department was examined and the Ethyl
Alcohol in the blood of the accused was found as
0,0913%.
22. Learned APP Mr. Rohankumar H. Raval has stressed upon
the provisions of the Bombay Prohibition Act to submit
that as laid down under Section 66 of the Prohibition
Act, to prosecute, one has to prove consumption of liquor
with the concentration of alcohol in the blood of the
accused person as not less than 0.05% weight in volume.
It is submitted that the quantity was found to be beyond
the limit and hence, stated that the acquittal is not in
accordance with law.
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23. Countering the same, learned advocate Mr. B.C. Dave has
submitted that the State has not challenged the acquittal
under the Prohibition Act and further has referred to
Sub-section (2) to Section 66 of the Prohibition Act.
Referring to the deposition of PW15-Dr. Parul Rameshbha
Vaghela, learned advocate Mr. B.C. Dave has drawn the
attention of the Court with regard to the bottle produced
during the cross examination as Mark 'B'. Learned
advocate Mr. Dave submitted that the bottle which
contained liquor was Byer's Tonic-250 ml and the Doctor
had referred to the description of the bottle in the
evidence of the bottle containing alcohol concentration
10% of V.V.
24. Section 66 of the Bombay Prohibition Act, 1949 reads
thus :-
"66. Penalty for illegal cultivation and collection of hemp and
other matters. - [(1) Whoever in contravention of the provisions of
this Act, or of any rule, regulation or order made, or of any
license, permit, pass or authorization issued, thereunder :-
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(a) [x x x]
(b) consumes, uses, possesses, or transports any intoxicant [(other
than opium)] or hemp,
(c) taps or permits to be tapped any toddy producing tree,
(d) draws or permits to be drawn toddy from any tree, shall, on
conviction, be punished,-
(i) for a first offence, with imprisonment for a term which
may extend to six months and with fine which may extend
at one thousand rupees:
[xxx]
(ii) for a second offence, with imprisonment for a term
which may extend to two years and with fine which may
extend to two thousand rupees.
[xxx]
(iii) for a third or subsequent offences, with imprisonment
for a term which may extend to two years and with fine
which may extend to two thousand rupees.
[xxx]
([(e) enters the territory of the State in an intoxicating condition
or under the influence of an intoxicating (other than opium) or
hemp, after having consumed such intoxicant or hemp at any
place outside the State.]
[(2) Subject to the provisions of sub-section (3), where in
any trial of an offence under clause (b) of sub-section (1) for the
consumption of an intoxicant [or in any trial of offence under
clause (e) of sub-section (1) for entry in the territory of the State
after consumption of an intoxicant or hemp at any place outside
the State.] It is alleged that the accused person consumed liquor,
and it is proved that the concentration of alcohol in the blood of
the accused person is [not less than 0.05 per cent wight in
volume] then the burden of proving that [the liquor consumed was
a medical preparation consumed in quantity not in excess of
normal dose as defined in section 24-A or that the liquor
consumed was a toilet preparation], or an antiseptic preparation
or solution, or a flavouring extract essence or syrup, containing
alcohol the consumption of which is not in contravention of the
Act or any rules, regulations or orders made thereunder, shall be
upon the accused person, and the Court shall in the absence of
such proof presume to the contrary.
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(3) The provisions of sub-section (2) shall not apply to the
consumption of any liquor-
(a) by in-door patients during the period they are being
treated in any hospital, convalescent home, nursing home,
or dispensary, maintained or supported by Government or a
local authority, or by charity, or
(b) by such other persons, in such other institutions, or in
such circumstances as may be prescribed."
25. The initial burden thus, lies on the prosecution to prove
the liquor levels of not less than 0.05% in weight in
volume. The bottle produced in evidence contained was
Bayer's Tonic-250 ml. The Court shall in absence of
proof shall presume the contrary.
26. Here in the present case, the accused has stated in his
further statement under section 313 Cr.P.C that on that
day, he was on duty and no one had come to relieve
him and he fell ill. He consumed 'Bayer's tonic'. He
also stated in his statement that he was working at the
residence of Member of Legislative Assembly Shri. Bharat
Barot, it was believed that he was giving information to
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MLA Shri. Barot with regard to liquor/bootlegging and
gambling den and therefore, has been falsely implicated
in the matter.
27. PW11-Arvindsinh Balwantsinh has proved by his evidence
that rifle 410 No.993 alongwith 10 cartridges were
issued to the accused police constable-Bhagvatsinh
Deepsinh Puwar and he had made necessary entry of
issuance in the register. The witness had made the
entry in the original weapon register and he had referred
to entry dated 04.06.2002 at Page 20 regarding issuance
of the rifle and cartridges to the accused. A photocopy
of the register was produced at Exhibit 34. In the cross
examination, the witness confirmed that the rifle issued
to the accused was very old and was of English period.
He further stated that every month at the Police Head
Quarters, necessary entry would be made of the arms
which would be sent to the Police Station. Whether the
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rifle are serviceable or non-serviceable, such entries are
made in the Register. The issuance of rifle and bullets
thus seems to be proved.
28. PW16-Police Inspector-Vakatsinh Devisinh Vanar, was
serving at Ahmedabad City, Crime Branch in February
2005. Additional charge was given to him of the
Dariapur Police Station. On 04.06.2002, when he was at
Madhupura Police Station, at about 10.41 night, he
received a message from the Control room where he was
informed that near Mahakali Mandir, Madhubhai Lawn, a
police constable had fired. He reached the place of
incident. At the place of incident, CRPF Jawan had
informed him about the incident. The complaint was
written by his Writer. PW16 identified the thumb
impression of the complainant. According to the
deposition of PW16, the accused Police Constable was
detained by CRPF Constable who were present there at
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Modi ni Chali. The panchnama of the physical condition
of the accused was drawn at Exhibit 19. He further
stated that the clothes of the accused had blood stains.
There was injury above his eyes and his eyes were red.
He could not maintain his balance and was stammering.
There was stench of alcohol from his breath, accused was
taken to Civil Hospital. The panchnama-Exhibit 27 was
drawn at the place of incident in his presence. He
further stated that at about 2.30pm after permission, the
accused was brought before him. The certificate of
treatment was received, during which the statement of
the witnesses were recorded, which included the
statement of son of lodge owner. CRPF Jawan who had
taken the accused for treatment, their statements were
also recorded.
29. It requires observation that though this PW16 had come
there at the place immediately after having received the
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message from the control and had also taken a
complaint, he had not made any arrangements for
sending the accused for medical treatment with his own
police personnel, as according to his deposition, in his
case that the CRPF Jawan had taken the accused for
treatment.
30. The physical condition of the accused was recorded, there
were blood stains on his clothes and injury on the eye.
The blood was found on his uniform, how he sustained
injury on the eye does not become clear. Further the
deposition of PW15-Dr. Parul Rameshbha Vaghela
becomes relevant. Her deposition at Exhibit 39 states the
history which was recorded on 07.03.2002 at 8.30 p.m.
the accused was beaten by stick and such history was
given to the Doctor. The injury recorded in the Medical
Certificate produced by the witness shows that there was
2 x 0.5 cm CLW on the left eye upper and bruises of 3 x
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3 cm on the upper part of the left leg. For further
treatment, the accused was sent to Dr. Ghasura in
Surgical Ward. The documents of Surgical Ward has
been produced on record. Exhibit 41-Form A is also
issued by the concerned Medical Officer which record
that the left leg was not proper, due to pain. How the
accused sustained injuries does not get proved while the
accused before doctor stated that at about 8:30 pm he
was beaten. The injuries proves the beating.
31. PW16-PI in his deposition further stated that after
drawing panchnama of the physical condition of the
accused, CRPF Jawan P. Madhavan produced one rifle,
one used maxim and eight live cartridges which were
seized. The panchnama appears to have been drawn
only after the CRPF Jawan brought back the accused,
why the rifle and the cartridges were seized from the
CRPF Jawan does not get proved. The history of the
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incident as has been given by the accused before the
PW15-Dr. Parul Rameshbha Vaghela is of the beating he
received at 8.30 night while the allegation of the firing is
of 10.30 night, does not get corroboration with the I.O.
who stated that he had come there at 10.41pm, but there
is no mention of the I.O. that prior to registering of the
complaint, he had seen the accused at the place of
incident. The clear case of I.O. is that the CRPF had
taken the accused for medical treatment. The incident
had occurred at 8.30 pm which gets reflected in the
history before the Doctor. The complainant has not
supported the prosecution. The case of the complainant
alleging incident of 10.30 night, of the firing is not
proved by FSL Report, while the FSL Report of
biological department on the samples sent by the
Ballistic Department proves the presence of the blood on
the old dirty uniform of the accused.
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32. The P.I.-Investigating Officer stated that he had drawn
the panchnama of the rifle and the cartridge. According
to him, he had sealed the live as well as the used
cartridges and had sent the rifle, cartridge and clothes to
the FSL. The despatch note he produced at Exhibit 43
and according to him, Exhibit 44 was the evidence of
receipt of muddamal.
33. Exhibit 44 is from the FSL Department dated 25.06.2002.
The communication is by the FSL Department to the
Police Inspector about the receipt of four muddamal. The
learned trial Court Judge has not made any observations
with regard to the FSL Report which is attached
alongwith Exhibit 44 in the judgment. The rojnama of
the trial at Exhibit 44 refers to Mark 10/9 as the receipt
by FSL regarding the muddamal. Exhibit 30 is the
Alcohol Examination Certificate dated 29.06.2002 by the
FSL, but the FSL Report dated 13.03.2003, though has
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been produced alongwith Exhibit 44-the receipt issued by
the FSL, has not been produced and proved in evidence
which is only with regard to Parcel 'C' and 'D'. No
report has been sent by FSL about Parcel 'A' and 'B'.
The analysis Report is by the Biological Department. No
ballistic report of the alleged service rifle has been
proved on record. The allegation by the complainant was
that the rifle was pointed to him but he has denied the
said fact in his deposition. The prosecution has produced
on record the panchnama Exhibit 27 though not proved
by the panchas, at the place of accident, which is shown
as on Mahakali Road, Shahibaug, Police Headquarters,
Outside Police Line Compound, Opposite Ganesh Telecom,
the tar road. The road was minutely observed and no
noticeable signs were found. It was noted that almost
about at 10 feet distance was Ganesh Telecom and on the
east, there was a kachha roof lodge which was
adjourning to the police headquarters compound. The
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electricity pole No.1741 was also noted and the light was
in a working condition. The road was on the eastern
side towards Mahakali Temple and on the southern side
was Government 'A' Colony. The police had not seized
anything from the place of incident.
34. The Officer stated that till the time the chargesheet was
filed, no FSL Report was received. In the cross
examination he had stated that he has not received the
name and address of the person alleged in the incident in
the message from control. He had not seized any record
from the wireless message book nor any statement of the
constable connected with the wireless message was
recorded. He denied the suggestion that the message
prior to 10.41 hours was against the investigation and
therefore, it has not been deliberately produced.
35. The witness as a Investigating Officer stated that ASI
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Ahmedkhan Hajikhan has not reached the place of
incident, prior to him and also denied the suggestion that
ASI Ahmedkhan Pathan had taken the accused to the
hospital and produced before him at the police station at
10.45 pm.
36. In the cross examination, the Investigating Officer
affirmed that the residence of the Member of Legislative
Assembly was in the police station in the jurisdiction of
Madhupura and that more than one constable or head
constable are deputed for MLA protection. The IO could
not say without the record whether the accused was
deputed at the residence of MLA Babubhai Barot. He
affirmed that in the past, there were record of bootlegger
in Dudheshwar area known as 'bhabhi na adda' and
denied the suggestion of any record of trade of english
liquor by big traders near Vadilal Icecream.
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37. The I.O. affirmed that rifle and cartridge were not seized
from the actual possession of the accused and also
affirmed that there was no injury from the firing. He
denied the suggestion that the accused was giving
information to MLA and therefore, under that suspicion
has been falsely framed in the matter.
38. The evidence of the I.O. does not inspire confidence. The
report of the examination of the rifle as well as the used
cartridge is not proved on record to prove the case of
actual firing from his service rifle. The reason has not
been proved of the blood found on the uniform of the
accused and the injuries on his body. The history before
the Dr-PW16 proves that the accused was beaten with a
stick at 8.30 at Madhupura. It appears that the Doctor
even stated at 1.10 hours at night, the accused had come
with the written yadi of Madhupura Police Station.
However, the evidence of the I.O. would suggest that the
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CRPF Jawan had taken the accused for medical
treatment. The weapon as well as the cartridges were
seized from CRPF Jawan, the history before the Doctor
proves that some incident had occurred at 8.30 pm., the
I.O. has not produced the message from the control
room, which he received. The alleged incident is shown
of 10.30 by the complainant and the I.O. states that he
had received the control message at 10.41 pm.
39. CRPF Jawan-Iqbal Jagasinh was examined as PW14. He
was working at Mahakali Temple area in CRPF Battalion
No.138. He stated that in Platoon No.5 posted at
Mahakali Temple in their company was Havaldar Narayan
Dutt, Dev Husain and another constable P. Madhavan,
Bhargav, Burman. He stated that the incident had
occurred at 9.30 pm. They were patrolling their duty
time was 9 to 12, they heard the firing near Sogaj and
when they reached the place, they saw a policeman with
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a rifle in his hand who was walking in a disorderly
manner. He and Madhavan caught him. According to the
witness, Madhavan has held his rifle and he had
restrained the accused from one side. According to the
witness, accused was in an intoxicated state. The camp
was at Sogaj where gradually they brought him. The
witness stated that when they had held him, their
Havaldar was with them and Camp Commander was also
present there to whom they had handed over the
accused. They informed their Company Commander
who also had come there. The police too had come
who took the accused.
40. The fact becomes contrary about the place of offence as
recorded in the panchnama which is not the same place
as stated by this CRPF witness. The firing was heard at
Sogaj where there was Camp of CRPF. Why the matter
was reported to the Company Commander and not
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immediately to the police has not been explained by the
witness. In cross examination, the witness stated that
they were at a distance of 20 to 30 gaj away from
Mahakali Temple where they heard the firing.
P.Madhavan was ahead of him. He also stated that the
area between Mahakali Temple and the lane was a
crowded area. Curfew was there on that day after 6.00
pm, there was frequency of people when they heard the
noise of firing, many people had gathered there.
According to him, police had come before 10.30 pm.
41. PW13-Narayan Dutt Shri Badri Dutt is from Battalion
No.171. CRPF witness was also on duty at Paltu Post
No.5. Alongwith him, were two Havaldars and two
Sipahis. The firing incident occurred at 9.30, they went
there. According to him P. Madhavan and Iqbalsinh were
ahead of them and they had caught hold of one person
who was brought before him. Police Constable
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Madhavan stated that the said person had fired,
thereafter, they took him to their Camp. According to
the witness, the person whom they had apprehended had
a rifle and cartridges in his bag and the used cartridge
were in his rifle. The apprehended police was in
uniform with the name plate. The witness had not seen
the rifle number. In the cross examination, he had
stated that he had not given the report to the superior
officer. He stated that during the time of riots, police
would generally have the bullet kept ready in the
magazine and would load the rifle. He also stated that
accidentally while cleaning the rifle, fire can take place.
42. PW12 is Ahmedkhan Hajikhan. He was a PSI at
Madhupura Police Station on 04.06.2002. He was on
patrolling duty in his requisite vehicle. The vehicle
operator Laxmansinh had informed him that there was
firing by police constable at telephone booth of
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Chatrasinh at Devjipur Mahakali Road. Therefore, he
immediately went to to Modi ni Chali where he saw that
CRPF police had restrained accused, at that time, senior
PI Shri. Vaner had come there, the witness stated that
the accused was under the influence of alcohol. Shri.
Vaner had asked him to take the accused to Civil
Hospital under the written yadi, therefore, he took him
to Civil Hospital. The Doctor gave him treatment and
took his blood. The police had given the Certificate. He
brought the accused to police station and had handed
over the certificate and accused to the PI. The police
witness though states of taking the accused to the Civil
Hospital under police yadi, he has no knowledge that the
accused was injured. He does not even know whether
blood had fallen on the clothes of the accused. In the
cross examination, the witness was asked about the duty
list, the topography of the area and has referred about
the wireless set in the vehicle. He does not recall the
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exact message given by Laxmansinh on wireless nor had
he got the message recorded in his police statement. The
witness stated that after receiving the message, he
reached the place of incident, it was 23.05 hours. The
witness also affirmed about the residence of MLA Barot
in Madhupura Police Station area. He does not know
whether accused was giving information regarding the
liquor and gambling den to MLA Shri. Barot. The
evidence of this witness also becomes doubtful. He too
has not produced any record of the wireless message.
The witness has no information about the physical
condition of the accused when he had taken him to the
hospital.
43. On overall analysis of the evidence and more specifically,
the history before the Doctor, it appears that some
incident had occurred at 8.30 pm. The accused had
informed the Doctor that he was beaten with a stick, the
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injuries of the accused were proved by the Doctor. The
firing as alleged could not be proved. No ballistic report
has been produced on record. The complainant has
totally denied the incident. The evidence of the CRPF
and the police does not get co-related. The sequence of
the incident had not been proved. Some contrary facts
were there which have been suppressed by the I.O. The
blood stains on the uniform of the accused coupled with
the physical injury would lead to the conclusion that
actually the accused was a victim. The person Madhavan
who had first held the accused and from whose custody,
the rifle and the cartridge as well as the bullets were
produced has not been examined. The complainant
appears to have no knowledge of the incident. He has
merely put his thumb impression on the complaint under
the instructions of the I.O., who had taken the
complaint, recorded the statement of witnesses and
investigated the matter further had also filed the charge-
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sheet. The whole process had been conducted by a
single individual. There appears to be no fairness in the
investigation.
44. In the above analysis of the evidence, without the
corroborating evidence of expert in the form of ballistic
report, the case of firing could not be believed. At the
place of incident, no gun powder was found nor any gun
powder was found on the clothes of the accused. The
position of the projectile (bullet), the propellant
(gunpowder) and the primer (which ignites the powder)
are the necessary components to be proved during the
trial to establish the case of firing.
45. In the result, in view of the observations made herein
above, the conviction order passed by the learned trial
Court fails merits. Thus, the appeal is allowed. The
judgment and order of conviction and sentence dated
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13.12.2005 passed by the learned Additional Sessions
Judge, Ahmedabad City in Sessions Case No.236 of 2003
is set aside. The appellant is acquitted of all the charges
levelled against him. Bail bond, if any, stands discharged.
Record and proceedings be sent to the concerned Court
forthwith.
Sd/-
(GITA GOPI, J)
CAROLINE / SB-1 # 1
