CR.A/252/1987 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 252 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 KHODABHAI K GADHVI AND OTHERS ========================================= =Appearance : MS MITA PANCHAL, ADDL PUBLIC PROSECUTOR for the Appellant Mr MR MM CHARAN & MR DN DESAI for the Original Complainant NOTICE SERVED for Opponent(s) : 1 - 3. ========================================= = 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/252/1987 2/7 JUDGMENT against the judgment and order dated 30.08.1986 passed by the learned Additional Sessions Judge, Nadiad in Sessions Case No.91 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 Shankarbhai Dajibhai Gadhvi was present in his field, which was popularly known as Arniwala field, along with his nephew Nareshkumar and the accused were also present in their field along with son Sureshbhai for 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, when nephew of the complainant Naresh was sowing the hedge of cactus between the boundary of the field of the complainant as well as the accused persons and, therefore, accused No.1 Khodabhai made a request to Naresh to make the said hedge as per the measured boundary by the competent authority and, therefore, Naresh lost his temper and started abusing the accused. Therefore, on hearing the noise of Naresh, the complainant came at the place where he saw that son of accused No.1 was having dharia in his hand and accused Nos. 1 and 2 were having sticks and accused No.3 was having wooden log. Thereafter, Sureshkumar inflicted dharia blow on the back side of the neck of the complainant and accused No.2 gave stick blow on the back of the complainant and, therefore, the complainant fell down and accused Nos. 2 and 3 caused injuries to Naresh. Upon hearing the noise, one Kanrajbhai Kanabhai Gadhvi and others came to the rescue of the complainant and saved them. CR.A/252/1987 3/7 JUDGMENT 2.1. Thereafter, the 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 21.00 hours. Thereafter, offence was registered under Sections 447, 324, 323, 504 and 114 of the Indian Penal Code. 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 was 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 injured Naresh. And as per the deposition of the said doctor, the complainant had received six injuries and Naresh had received two injuries for which a certificate had been issued and according to him, injury No.1 caused to complainant can be caused if a person sleeps down on wet land and he had also stated that injury Nos.2 and 4 can be caused by stick and injury Nos. 3 and 6 can be caused by thorn of cactus and so far as injury received by Naresh is concerned, if a person falls down on land having rough surface, such kind of injury can be caused. CR.A/252/1987 4/7 JUDGMENT 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. Shankarbhai PW 2 below Exh.17, Naresh PW 4 Exh.20, Bhagwatbhai PW 5 below Exh.21 and Dhanrajbhai Kanabhai PW 6 Exh.22 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 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. 6. 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 4, PW 5 and PW 6. 7. Even though the complainant and the other witnesses have been examined by the Medical Officer of Ghodasar Hospital, none of the witness had explained that CR.A/252/1987 5/7 JUDGMENT how the accused have received injuries. In short, the prosecution had failed to explain the injuries which are caused to the accused and, therefore, it can be said that the prosecution had not proved its case beyond reasonable doubt. 8. 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.29. The prosecution had not proved the said panchnama with a view to establish that who were the aggressors and when there is a cross case, it is necessary to establish that who were the aggressors and in absence of that, it is difficult to hold the accused guilty. Therefore, the benefit of doubt to the accused persons. 9. 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 and hence, considering aver all evidence, even if the plea of self defect 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 CR.A/252/1987 6/7 JUDGMENT Judge has rightly acquitted the accused persons. 10. 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. 11. Secondly, the learned Judge has also found that the prosecution has 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. 12. 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. 13. The learned Judge had considered the plea taken by the accused of self defence. 14. We have heard the learned counsel for the parties. The foremost question in this case is as to who were aggressors. Whether the accused or the complainant. If this question has not been established by cogent evidence as found by the learned Sessions Judge, then much requires to be seen in the prosecution case. CR.A/252/1987 7/7 JUDGMENT 15. The Trial Court had the benefit of watching the demeanor of the prosecution and thus, that factor is very vital. It is such a factor which determines the nature of witnesses. 16. In the aforesaid background, when we find that there are injuries on the persons of the accused, the same has not been explained by the prosecution. This shakes the theory of the prosecution case. In this background, we have to judge the prosecution case. 17. The fight was sudden, both parties have taken law into their hand. Right of private defence has been held to be proved. To destabilize these findings in an appeal against acquittal is a difficult proposition unless the same are found to be perverse. 18. In the light of the evidence of prosecution, the findings of the Trial Court do not appear to be such as can be branded as canvassed by the learned counsel for the State. Thus, we find that no interference is called for. There is no force in the State appeal. The same is, therefore, dismissed. Bail bonds stand cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar