CR.A/24219/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 242 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 KALABHAI VAJABHAI PARMAR - Opponent(s) ========================================================= Appearance : Mr. S.P. Hasurkar, APP, for Appellant(s) : 1, Mr. U.S. Brahmbhatt, for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 24/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/24219/1987 2/5 JUDGMENT This appeal is filed against the acquittal order passed by the learned Additional Sessions Judge, Sabarkantha at Himatnagar on 27.11.1986 in Sessions Case No. 27 of 1986. By the said order the learned trial Judge has acquitted the accused for the offences with which he was charged. 2. The facts of the prosecution case is that are on 30.11.1985 at about 9.00 a.m. at Khedbrahma, Taluka – Mouje Umra village there was a quarrel between the complainant's uncle Vajaji Kirabhai and his son Kaliabhai regarding non- bringing his wife and the accused Kaliabhai inflicted injury by arrow (Tir) and ultimately the deceased died and the criminal proceedings against the accused before the learned Additional Sessions Judge at Himatnagar in Sessions Case No. 27 of 1986 were initiated. The trial was conducted by the learned trial Judge on production of direct evidence of eye witnesses and depositions of the complainant and the other evidences i.e. panchnama of weapon, place of offence, panchnama Exh. 10, Exh. 9 dead body, Exh. 11, Exh. 12 arrest panchnama (inquest) and Exh. 27 i.e. discovery panchnama i.e. Tir-Kamtha and by Exh. 10 specifically Article – Tir Rado and Forensic Science Laboratory Report Exh. 14 and analysis result. 3. The prosecution case is standing upon direct evidence i.e. evidence of eye witnesses Exh. 6 Hakmabhai Bhikhabhai P.W. No. 1 (complainant) along with Exh. 7 complaint of Hakmabhai. Then Exh. No. 15 Kirabhai Ghenabhai and Exh. 16 Dasarathbhai Galabhai Exh. 17 Nathabhai Bhikhabhai Parmar, and Exh. 18 Vadliben wife of Vaja Kirabhai and Exh. 19 Modarben wife of Baka Vaja, Exh. 19 and then CR.A/24219/1987 3/5 JUDGMENT Exh. 20 Nathabhai Vajabhai. 4. It is urged that the aforesaid eye witnesses the learned trial Judge has rightly held that he cannot treat them as eye witness. In disbelieving the version of the aforesaid witnesses, elaborate discussion of the evidence has taken. It is further contended that the learned trial Judge has rightly come to the conclusion that none of the eye witnesses had seen the episode and incident and therefore they cannot be believed and there is no perversity in finding of the learned trial Judge and thereby disbelieving the eye witnesses. 5. The learned trial Judge has disbelieved the aforesaid eye witnesses. Thus the direct evidence of the prosecution should be discarded. Thus the case would fall under circumstantial evidence and therefore this be treated a case of circumstantial evidence. Tir Rada was found near the dead body thus cannot be treated to be an incriminating circumstance. 6. It is argued by the learned Additional Public Prosecutor that the case rests on the testimony of eye witness and the reason given by the trial Court is not justifiable. When direct evidence is available the same can be discarded only on cogent reasons. 7. Exh. 28 depositions of I.O. Madhubhai Vasava, shows that article 1 Tir Rado is not legally proved prosecution and so far as recovery of Tir Kamtha – article 3 is concerned Exh. 10 there is no dispute about the recovery of Tir-Kamtha which is a common article and weapon for Adivasis and used to CR.A/24219/1987 4/5 JUDGMENT as a matter of routine by all and only by recovery of these articles accused cannot be connected with the crime. 8. The learned trial Judge has appreciated all the points elaborately in the judgement and it is not proved by the prosecution that a specific injury sustained by the deceased by the very arrow of the accused. Prosecution miserably failed to this aspect that injury was sustained by the Tir recovered. Hence the learned trial Judge has rightly acquitted the accused and that has been discussed elaborately and it was a defence from the accused, no injury has been sustained by the accused by the specific muddamal produced by the prosecution and so far as incident of death of the deceased by arrow is not a matter of dispute by the defence side. 9. And thus upon material available on record, depositions and documentary evidence produced by the prosecution side, the learned trial Judge has rightly acquitted the accused under Section 302 of the Indian Penal Code. 10. We have given our thoughtful consideration to the arguments and have perused the record. The evidence of eye witness is considered by the trial Judge to be inconsistent to that prosecution. Strangely clear identity of the accused is not established. Actual act of shooting the arrow is not attributable to the accused in the facts of the case. The shaky evidence of the eye witness is not supported by any corroborative evidence which can assure to the mind of the Court. However, in cross- examination none of the above referred witnesses appear to have seen the incident. So far as Vadadiben is concerned, she has admitted in her cross-examination that when the incident CR.A/24219/1987 5/5 JUDGMENT occurred she was out of the house and Vajabhai had already received arrow injuries and when she reached the scene of offence Vajabhai had already received arrow injuries and was down on the floor. Other prosecution witnesses, namely, Keshabhai Ghenabhai PW-3 and Harthabhai PW-4 were declared hostile. In these set of circumstances, none of the witnesses appear to have been trustworthy. In absence of evidence of consistent nature it will not be appropriate for us to disturb the findings of the trial Judge. The same being not possible in view of the facts. Thus no interference is called for. No force. Appeal is dismissed. Bail bond is cancelled. (BHAGWATI PRASAD, J) (S.R. BRAHMBHATT, J) (pkn)