CR.A/1226/1986 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1226 of 1986 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 RAMESHBHAI SHANKERBHAI THAKORE AND OTHERS ========================================= =Appearance : MS MITA PANCHAL, ADDL PUBLIC PROSECUTOR for the Appellant MR BHAVIN S RAIYANI, appointed as Amicus Curie for the Opponents ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 21/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. Present Appeal has been filed by the State of Gujarat against the judgment and order of acquittal passed by the CR.A/1226/1986 2/5 JUDGMENT learned Additional Sessions Judge, Baroda in Sessions Case No. 77 of 1985 8.7.1986. 2. It is the case of the prosecution that deceased Ganpat on the date of the incident, i.e. on 7.5.1985, went to attend a marriage function of son of one Kabhai Patel at Priyalakshmi Mill at around 8.30 O'clock in the evening. In the said function, he met one of the accused, Rajeshbhai, i.e. Accused No.2, with whom a quarrel was taken place and with the intervention of the other persons, who were present in the marriage function, the dispute was resolved. 3. But, thereafter, deceased Ganpat went for making a complaint that all the three accused persons have beaten him. Upon his complaint, Babban (complainant) went along with him at the house of accused No.1's father Shankarbhai's house for the purpose of making complaint. In turn, Shankarbhai had informed them that they should come after his son return home. These talks were going on among them. Meanwhile, all the three accused persons came from Baroda Railway Station side and accused Nos.2 and 3 caught hold of deceased Ganpat and Ramesh gave two slab wounds by Gupti in the back of the deceased and, therefore, the deceased fell down, then he was taken to the hospital in Auto Rickshaw, where Doctor declared him dead. 4. Thereafter, complainant Babban lodged FIR at Sayajiganj Police Station at 11.15 p.m. Thereafter, postmortem was performed. The accused were arrested. Investigation was carried out. Chargesheet was filed and, thereafter, same was committed before the learned Additional Sessions Judge, CR.A/1226/1986 3/5 JUDGMENT Baroda and then, charge was framed. All the accused persons pleaded not guilty. Trial was conducted and all the accused were acquitted. Therefore, being aggrieved by the decision, the present Appeal is preferred against all the accused. 5. It is submitted by Ms. Mita Panchal, learned Additional Public Prosecutor appearing for the State- appellate, that the prosecution has produced sufficient evidence, viz. the witnesses have been examined below Exhs., 4,5,6 and 7 viz. brother deceased Babban, below Exh.13 (page 15), Vimalbai- wife of deceased Ganpatbhai below Exh.17 (page 19), Vitaben Babubhai below Exh.18 (page 22), Bhikharam Mahipatbhai below Exh.19 (chance witness) (page 24), who has supported the case of the prosecution beyond reasonable doubt. 6. In support of that, the prosecution has also examined Medical Officer, Dr. Pravinbhai, as PW 2 below Exh.9, who was in-charge Medical Officer on the date of the incident, i.e. 7.5.1985, at SSG Hospital, Baroda, who had first examined deceased Ganpat at 10.30 p.m. and declared him dead. Dr. Kishorbhai Desai, PW 1 has performed postmortem and according to him, the death of the deceased was homicidal death. It can be caused due to the injuries which are inflicted to the deceased by Gupti and hence, considering their deposition, the learned Sessions Court ought to have convicted the convicted the persons. 7. However, the learned Trial Judge has not considered the same because according to the learned Judge, three eye witnesses, PW 4, PW 5 and PW 6 have not supported the case CR.A/1226/1986 4/5 JUDGMENT of the prosecution fully and there are major contradictions in their depositions. Besides that, all these three witnesses are related to the deceased person and, therefore, they are termed as interested witnesses and, therefore, the learned Judge has not accepted the version of these eye witnesses. 8. It is further submitted that even chance witness Bhikharam, who has been examined as PW 7, has also not narrated the case of the prosecution as per the story given by the prosecution side. Not only that but, there are major contradictions which are noticed by the learned Judge in the deposition of the other witnesses and present witness Bhikharam and, therefore, according to the learned Judge, he would not have been at the time of incident and, therefore, his evidence is also disbelieved by the learned Judge. 9. Against the said finding, the submission made by the learned counsel for the respondents is that if we look into the evidence of eye witnesses, coupled with the fact that as per the statement of Salim Gafoor, the deceased was present at Priyalakshmi Mill Chawl, then presence of the deceased at both places creates a doubt in the case of the prosecution. Not only that but there are major contradictions in the deposition of eye witnesses. Therefore, merely it is a case of homicidal death and gupti is recovered that would not connect the accused persons with the incident and, therefore, the learned Judge has rightly acquitted all the accused persons and the same may be upheld considering the evidence on record. 10. The prosecution has also tried to say that the deceased CR.A/1226/1986 5/5 JUDGMENT has made an oral dying declaration. Fact about the dying declaration is not mentioned in the FIR. Thus, it is an improvement. It may also be noticed that the condition of the deceased was not such which is commensurate with the probability that he could make a dying declaration. In the background, it will be seen that the prosecution is guilty of bringing a false evidence. If this factor is taken into consideration, then contradiction in the statements of eye witnesses if not made the basis of the conviction, then, we do not think that any perversity has been committed by the Trial Judge. In that background, we are not persuaded to disturb the acquittal and, consequently, the appeal is dismissed. Bail bonds stand cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar