CR.A/1654/2004 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1654 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 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 ? ========================================= THE STATE OF GUJARAT Versus RAMESHBHAI BHANABHAI ========================================= Appearance : MR KP RAVAL APP for Appellant ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 08/01/2008 ORAL JUDGMENT :(Per : HONOURABLE MR.JUSTICE J.R.VORA) CR.A/1654/2004 2/6 JUDGMENT 1 Instant Appeal is preferred by the State under Section 378 of the Code of Criminal Procedure, against the judgment and order delivered by the Additional Sessions Judge, Third Fast Track Court, Amreli, on 19th of January, 2004, in Sessions Case No. 32 of 1999, whereby the present respondent came to be acquitted by the Trial Court, for the charges levelled against him under Sections 504, 323, 326 and 302 to read with Section 114 of the Indian Penal Code. 2 Learned APP Mr.K.P. Raval was heard in detail in respect of this Appeal. We have called for the Record and Proceedings from the Trial Court and we have carefully, even at this stage, gone through the Record and Proceedings and have re-appreciated the evidence with respect to the reasoning of the Trial Judge regarding acquittal of the respondent. 3 As per the brief facts of the case, the complaint has been offered by Devuben, wife of Sondabhai Arjanbhai, at village Pipalva, Taluka – Lathi, District – Amreli. Complainant was staying at such village with her husband and children. On 17th of February, 1999, at about 7.00 a.m., complainant, her daughter and two sons were at their residence, at that time, present respondent and his father deceased accused Bhanabhai Valabhai called Ramesh, son of the complainant. CR.A/1654/2004 3/6 JUDGMENT When Ramesh went to the accused, the accused abused Ramesh. Complainant and her daughter intervened and attempted to prevent accused from abusing. However, the accused infuriated and present respondent, who had an iron pipe with him, gave a blow on the head of Hansaben, daughter of the complainant. Nanjibhai, other son of the complainant intervened, but the accused gave a blow with iron pipe on his head also. Deceased - accused Bhanabhai Valabhai inflicted one stick blow on left hand of the complainant. On account of this commotion, husband of the complainant and other persons reached at the spot and both the accused ran away. It appears that, the other accused i.e. Bhanabhai Valabhai has since died, he was not made respondent in the appeal. Hansaben, who was injured and was serious, was admitted to the hospital and during treatment, Hansaben died. 4 The reason which the complainant stated for the incident that on earlier day, respondent insisted that the son of the deceased Hansaben to take some material from the market and on denial, he was beaten by the accused. Complaint was lodged at Lathi Police Station and investigation was handed over to ASI Vanrajsinh Tapubha. The accused was arrested. 5 Charge was framed against the accused, who pleaded not CR.A/1654/2004 4/6 JUDGMENT guilty and, therefore, the prosecution examined as many as 12 witnesses and produced on record voluminous documents to prove its case. On evidence of the prosecution being over, the learned Trial Judge recorded statement of the accused under Section 313 of the Code of Criminal Procedure wherein his defence was of total denial. After hearing both the parties, the learned Trial Judge came to the conclusion of acquittal and, hence, this Appeal. 6 While going through the Record and Proceedings, it clearly established that the death of Hansaben was culpable homicide, and for that purpose, Dr. Shobhnaben Manubhai Mehta is examined as PW-6 vide Exhibit-30, who had first treated the deceased at Amreli. From there, deceased was transferred to Rajkot Civil Hospital where she died and postmortem was performed by Dr. Jagadishchandra Devrajbhai Tank, PW-7, Exhibit -31. Postmortem Note is produced on record and accordingly the death was due to haemorrhage on account of head injuries 7 Now probing further, during the appreciation of evidence, it is found that complainant Devuben, examined as PW-1, Exhibit-9, stated before the Court that she did not notice the incident and she stated that she could not say that who caused injuries. She was CR.A/1654/2004 5/6 JUDGMENT declared hostile by the prosecution. PW-2 Rameshbhai Sondabhai, examined at Exhibit-11 and PW-10 Nanjibhai Sondabhai, examined at Exhibit 36 were also the eye witnesses of the incident and brothers of the deceased. Both of them stated that they had also not witnessed the incident. Both of them were declared hostile by the prosecution and in cross-examination, nothing could be brought on record to support the prosecution. One more eye witness Ramjibhai Karsanbhai as PW-3 is examined at Exhibit – 12. He also did not support the prosecution case. PW-4 Arjanbhai Kalyanbhai, examined at Exhibit – 13, is also an eye witness and he has also not supported the prosecution case. Other witness Kanabhai Vihabhai, PW-5, examined at Exhibit – 14, one more eye witness, also did not support the prosecution case. In addition to this evidence, prosecution also examined police witnesses i.e. Shamatsinh Dipsinh Solanki, ASI of Lathi Police Station; Vanrajsinh Tapubha, ASI of Chavand Outpost and Navalsinh Bhikhubha Jadeja, PSI of Lathi Police Station, but they performed their duty after recording of the complaint. 8 This is all the evidence of the prosecution. When none of the witnesses supported the prosecution case as to connect the accused with the crime, even nearest relatives of the deceased did not support the prosecution case, the learned Trial Judge, therefore, acquitted the CR.A/1654/2004 6/6 JUDGMENT accused on the ground that there was no iota of evidence to come to the conclusion that the accused respondent was involved in the incident. 9 We have, as aforesaid, re-appreciated the evidence and come to the conclusion that there is no evidence to connect the accused with the crime. The appreciation of evidence undertaken by the Trial Court cannot be differed as the same is proper and according to law. No second view is possible from the record and proceedings of the case. This being an appeal against the acquittal, as per the settled law, the order of acquittal cannot be interferred with unless it is found that the conclusions arrived at by the Trial Court are perverse, manifestly erroneous, palpably wrong or demonstrably unsustainable. We are unable to come to the conclusion that the findings arrived at by the Trial Court are perverse so as to be interferred with. Therefore, this Appeal fails and we summarily dismiss the same. 10 In the result, Leave to Appeal is refused. Appeal stands dismissed. (J. R. VORA, J.) (M. R. SHAH, J.) pnnair