CR.A/22619/1987 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 226 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = STATE OF GUJARAT Versus SHANKERDAN DAJIBHAI GADHVI AND OTHERS ========================================= =Appearance : MS MITA PANCHAL, ADDL PUBLIC PROSECUTOR for the Appellant MR HM PARIKH for the Opponents MR MM CHARAN & MR DN DESAI for the original Complainant ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 26/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. Present appeal has been filed by the State of Gujarat CR.A/22619/1987 2/8 JUDGMENT against the judgment and order dated 30.08.1986 passed by the learned Additional Sessions Judge, Nadiad in Sessions Case No.51 of 1986, whereby the learned Sessions Judge has acquitted the respondents-accused from the charge levelled against them. 2. It is the prosecution case that on the date of the incident, i.e. 1.12.1985, complainant Khodabhai Kesarbhai Gadhvi was present in his field, which was popularly known as Arniwala field, along with his son Suresh and his wife Maniben and complainant's elder son Mansing's son Bharat who were looking after their field as there was standing crop of Tuver. It is submitted that on the same day, at around 4.00 O'clock, accused Nos. 1 and 2 were present in the field of accused No.1. Thereafter, the complainant saw accused No.2 Naresh sowing the hedge of cactus between the boundary of the field of the complainant as well as the accused persons and, therefore, complainant Khodabhai made a request to Naresh to make the said hedge as per the measured boundary by the competent authority and, therefore, accused No.2 lost his temper and started abusing the complainant. Therefore, on hearing the noise of the complainant and Naresh accused No.2, son of complainant Suresh and wife of the complainant Maniben alongwith grandson Bharat came at the place where they saw that accused No.1 who was also in the field came with Dharia and accused No.1 inflicted dharia blow on the head of Suresh and, therefore, Suresh fell down and hence mother of Suresh, i.e. wife of the complainant, intervened to save his son. Therefore, she received injury by the accused on her head. Therefore, Maniben also fell down. Thereafter, the accused No.1 also inflicted injury to the complainant and CR.A/22619/1987 3/8 JUDGMENT accused No.2, thereafter started beating to the son of the complainant on his back with paras and accused No.3, i.e. Bhagubhai, came with stick in his hand and started assaulting Bharatbhai. Upon hearing the noise, one Galabbhai Shanabhai and Virabhai Dalabhai came to the rescue of the complainant and saved them. 2.1. Thereafter, police was informed and PSI came at the scene of offence and first he made an arrangement to take the injured in the hospital situated at Ghodasar and, thereafter, FIR was lodged at Mahemdabad Police Station on the same day at around 20.45 hours. Initially, offence was registered under Sections 447, 326, 323 and 114 of the Indian Penal Code but injured Suresh succumbed to the injuries at Ahmedabad Civil Hospital around 23.30 hours and, therefore, offence under Section 302 of the Indian Penal Code was added. The accused were arrested. Thereafter, investigation was carried out. Chargesheet was filed. The case was committed to the Court of Additional Sessions Judge, Nadiad. 2.2. Accused pleaded not guilty and, therefore, after full- fledged trial, all the accused persons were acquitted. Against the said acquittal order, the State Government has preferred the present Appeal against all the accused persons. 3. It is submitted by learned Additional Public Prosecutor Ms Mita Panchal appearing for the State-appellant that the prosecution has produced sufficient evidence, viz. PW 1 Medical Officer of Ghodasar Hospital, who had examined the complainant and his wife Maniben. It is also submitted that the prosecution has also examined PW 11 and 12, Dr. Yogeshbhai and Dr. Sunilkumar Medical Officers of CR.A/22619/1987 4/8 JUDGMENT Ahmedabad Civil Hospital below Exh.47 and 53 respectively; who had examined injured Sureshbhai and Dr. Sunilkumar who had performed the postmortem of the dead body of Sureshbhai had deposed that deceased Sureshbhai was having two external injuries and four internal injuries and the said injuries were according to the medical officers can be caused by dharia and the said injuries were anti-mortem injuries and as per the opinion of the said doctors, the cause of death was due to the head injury which caused hemorrhage due to which the deceased died and, therefore, as per the medical evidence it is a case of homicidal death. 4. It is submitted by the learned Additional Public Prosecutor that to connect the accused with the offence, the prosecution had examined injured witnesses, viz. Khodabhai PW 2 below Exh.24, Maniben PW 3 Exh.27 and Bharat PW 4 below Exh.28 respectively as well as two independent eye witnesses, viz. PW 8 Galabbhai Shanabhai below Exh.44 and PW 9 Virabhai Dalabhai below Exh.45 who had supported the case of prosecution but the learned Judge has erred in disbelieving the said depositions of these witnesses even though the prosecution has proved its case beyond reasonable doubt and, therefore, the accused may be convicted for the aforesaid offences. 5. It is also submitted that the panchnama of scene of offence was drawn by the Investigating Agency in presence of the complainant and accused No.1. However, the learned Judge has erred in disbelieving the place of panchnama as one of the panch witness Prabhatsinh stated in his deposition that when the said panchnama was drawn, only complainant and police officers were present but as per the case of the prosecution, CR.A/22619/1987 5/8 JUDGMENT the said place was shown by the complainant and by the accused No.1. However, in the deposition of this panch witness Prabhatsinh, accused No.1 was not present, whereas investigating officer has deposed that accused No.1 was also present but the learned Judge has not accepted the same due to the minor discrepancies in the panchnama and, thereby, committed error in acquitting the accused persons. 6. It is also submitted that the accused had taken a plea of self defence but they had not stated in their statements that they had caused injuries in self defence. The said aspect is not properly established even though the learned Judge had accepted the contention of self defence in favour of the accused. Therefore also, the order of acquittal requires to be quashed and set aside and the accused may be convicted for the offences with which they were charged. 7. Against that, the submission made by the learned counsel for the accused was that it was a case of cross complaint in which both the sides had received injuries and none of the witnesses had explained the said injuries, viz. in this case, there were four injured witnesses who got injured in the said offence and the prosecution had examined them as PW 2, PW 3, PW 14. 8. Even though the complainant has deposed in his examination in chief in para 9 that he saw accused Shankar and Naresh, who were also brought to the Ghodasar Hospital for treatment. However, he denied that he was not aware about the fact that as to how the accused sustained injuries. In short, the prosecution had failed to explain the injuries which are caused to the accused and therefore, it can be said that CR.A/22619/1987 6/8 JUDGMENT prosecution had not proved its case beyond reasonable doubt. 9. It is also submitted by the learned counsel for the accused that the prosecution had not proved the correct place of scene of offence. Even the panchnama was drawn below Exh.36 in presence of the complainant and accused No.1 but the panch witness Prabhatbhai had categorically stated that at the time of drawing the panchnama, accused No.1 was not present. However, the Investigating Officer Mr. Sharma had deposed that panchnama of scene of offence was drawn in presence of the complainant and the accused No.1 jointly. In short, there were discrepancies in the panchnama and even the place of offence was also not proved by the prosecution. In that eventuality, when there is a cross case, it is difficult to hold that as to who were the aggressors in the incident and in absence of that when the injured as well as independent eye witness were examined but they had not categorically stated the specific role of each accused persons and the injuries caused by them, the benefit should be given to the accused persons. 10. Even the accused had also taken a plea of self defence available to them under Sections 96 and 100 of the Evidence Act and as per Section 105 of the Evidence Act, which says that in case of self defence onus lies on the accused persons to prove the existence of circumstances bringing their case within general exception or, or within any special exception and on that line, the learned Judge has evaluated the evidence before it and come to the conclusions that considering the medical evidence coupled with the fact that presence of both the sides was natural in their field and as they were farmers, normally, they keep dharia, a lathi CR.A/22619/1987 7/8 JUDGMENT and hence, considering aver all evidence, even if the plea of self defence is not established fully, accused were in a position to raise a doubt in the mind of the learned Judge and, therefore, considering all these aspects, the learned Judge has rightly acquitted the accused persons. 11. Considering the submissions made by both the parties, the learned Judge has disbelieved the case of the prosecution mainly on the ground that the prosecution had not explained the injuries which were caused to the accused persons. 12. Secondly, the learned Judge has also found that the prosecution had not led the proper evidence to establish that who were the aggressors and in absence of that the learned Judge had held that when the prosecution has failed to establish the occurrence of the place of incident, therefore, benefit should be given to the accused persons. 13. The learned Judge had also held that the injured eye witnesses and independent witnesses had not correctly described the specific role of each of the accused persons and as to who assaulted to whom is also not described very specifically. In absence of that, it is difficult to hold the accused guilty. 14. The learned Judge had considered the plea taken by the accused of self defence. 15. After considering the submissions made by both the parties and on perusing the record it appears that the respondents - original accused were not the aggressors, but in fact were victims of the attack. In that view of the matter, we CR.A/22619/1987 8/8 JUDGMENT are in agreement with the findings recorded by the learned Judge that right to defend themselves accrued in favour of the respondents and it was because of the reasonable apprehension that they acted in right of defence. 16. For the foregoing reasons, we do not find any substance in the appeal preferred by the State. The reasons given by the learned trial Judge are cogent and satisfactory. The appeal, therefore, stands dismissed. Bail bonds stand cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar