CR.A/40119/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 401 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 ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= STATE OF GUJARAT - Appellant(s) Versus MER SAMAT DEVA & 8 - Opponent(s) ========================================================= Appearance : Mr. Maulik Nanavati, APP, for Appellant(s) : 1, MR YOGESH S LAKHANI for Opponent(s) : 1 - 9. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 10/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/40119/1987 2/6 JUDGMENT The present appeal has been filed by the State of Gujarat against the judgment and order dated 21.3.1987 passed by the learned Sessions Judge, Junagadh in Sessions Case No.103 of 1986. By the said judgement, the learned trial Judge has acquitted the accused of the charges. 2. The prosecution case, briefly stated, is that, on 15.9.1985, all accused came together between 8.00 and 9.00 p.m. at the residence of complainant Deva Bhura and made attack on Nagjan Parbat, fiance of bai Vali, daughter of complainant and another witness bai Gigi. The attack was preceded by some injuries to the complainant and bai Gigi also. 3. Accused No.1 was having double barrel gun. Accused Nos. 3, 4, 6, 7 & 8 were having sticks. Accused No. 2 was having Tamancha and accused No.5 was having spear. 4. The incident is stated to have taken place as alleged by the prosecution for the reasons that the deceased was not allowing the betrothal relation to come to an end of the daughter of sister of accused No.1. After the incident, all the accused went away. 5. There is a dispute about the betrothal of young Bai Shanti to the family of the accused. Nagajan Parbat is the deceased who is to be son-in-law of the complainant Deva Bhura. The accused wanted that Nagajan Parbat must prevail upon the parents of Bai Shanti with whom betrothal has taken CR.A/40119/1987 3/6 JUDGMENT place. As the prosecution case goes that betrothal has taken place since Vikram's childhood. That due to passage of time of betrothal as Vikram has not grown up major, the parents of the girl were not keen to marry their daughter to Vikram and they wanted that there should be a persuasion from the side of the deceased to the parents of Vikram and writing should be made to release Bai Shanti from the betrothal. 5. It is alleged that on the date of incident complainant Deva Bhura and deceased Nagajan Parbat were sitting on a cot in the falia of Deva Bhura. At that time accused came and caused death of Nagajan Parbat. 6. On the basis of the aforesaid facts, trial was conducted and after trial the learned Judge had recorded findings in the following manner: (i) That the complainant, though an injured eye witness, does not support the case of the prosecution nor does he identify any of the accused in the Court. That the complainant says that he gave names of accused at the instance of his wife Gigi. Another injured eye witness Bai Gigi is stated to have told to the neighbour about some strangers having assaulted and caused injuries which is so testified by neighbour Arjan Josha PW 6, which falsifies the story given by Gigi to police. There is serious doubt about the incident having taken place at 8.00 to 9.00 p.m. on 15.9.1985 for following reasons: (a) The injured and the complainant were examined in hospital on 16.9.1985 at 9.30 a.m. and 9.40 a.m. CR.A/40119/1987 4/6 JUDGMENT respectively and the Doctor certifies the age of injury to 1 to 2 hours. Meaning thereby, the incident has possibly taken place only in the morning of 16.9.1985 and not on 15.9.1985 as projected by the prosecution. (b) On first examination of the deceased, only two injuries were noticed, whereas in P.M. examination five injuries were noticed. The Doctor, who performed P.M. Testified that remaining injuries are such that could be noticed only after 4 to 5 hours and 12 hours respectively which further fortifies the incident not having taken place on 15.9.1985 at night hours. (P.M. performed on 17.9.1985 at 9.15 a.m.) (c) The independent witnesses testify about some incident taken place at the house of the complainant either after midnight or early in the morning of 16.9.1985. (d) There are serious doubts raised about the time of incident and manner in which the incident has taken place. 7. The witnesses are found to be interested and inimical. It is unnatural that nobody makes any attempt to remove injured to Bagvadar hospital which is hardly 8 Kms. from the place of the incident for more than 12 hours, when there are 10 to 12 tractors in the village. 8. The conduct of all interested and inimical eye witnesses is found to be highly unnatural. CR.A/40119/1987 5/6 JUDGMENT 9. There was no electricity in village and even otherwise, it was not possible to identify the assailants as the incident has taken place in the darkness. 10. If the manner in which the incident is stated to have taken place, there would be more number of injuries found on the body of the deceased. However, there was only five injuries found in P.M. examination, whereas only two are found when deceased was first examined. 11. Ocular version is found in complete contradiction with the medical evidence. Bai Veji and Bai Vali (aged about 13 years) are also not believed by the Court for the detailed reasons given in the order. 12. We have given our thoughtful consideration and considered the facts on record. It is established that the complainant himself told the Court that he has not given the names of the accused as per his information but he did say at the instance of his wife then the whole prosecution story becomes a serious doubt. This conclusion further stands fortified from the fact of the prosecution given at the time of incident at about 8 to 9 p.m. On 15.9.1985 whereas medical evidence tells that where the injured and the complainant were examined in hospital at 9.30 a.m. and 9.40 a.m. on 16.9.1985 where the injuries were of 1 or 2 hours earlier. Therefore, the incident was taken place only in the morning of 16.9.1985 instead of 15.9.1985. From the medical evidence it is stated that in the post-mortem examination 5 injuries were noticed whereas on first examination of deceased only 2 injuries were noticed. Such injuries only become permanent only after 4 to CR.A/40119/1987 6/6 JUDGMENT 5 hours and such permanence having become after that time be clear that the date of incident what the prosecution has conducted. Thus, in our opinion that time of incident has been altered. The witnesses have admitted that the names of the accused were not known. Then there is fabrication at large in the prosecution that witnesses were not knowing as to when the incident occurred. In that background the prosecution has materially fabricated the evidence. In that background the trial Court has acquitted the accused. We do not see any reason to interfere with the findings recorded by the learned trial Judge. Hence the appeal is dismissed. Bail bond stands cancelled. (BHAGWATI PRASAD, J) (S.R. BRAHMBHATT, J) (pkn)