CR.A/110919/1986 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1109 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 KODARBHAI KANAJI & OTHERS ====================================== Appearance : Mr IM Pandya, Additional Public Prosecutor for the Appellant MR BS SUPEHIA for the Opponents ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 21/07/2008 CR.A/110919/1986 2/5 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been preferred by the State of Gujarat against the judgement and order of acquittal dated 1.5.1987 passed by the learned Sessions Judge, Sabarkantha at Himatnagar in Sessions Case No.11 of 1986. Briefly stated, the case of the prosecution is that on Holi festival deceased Badaji Sukhaji had a quarrel with the present respondent – original accused. Respondent No.4 had illicit relations and therefore there was animosity. On 24th May 1985 deceased had gone to the Court for hearing at Vijaynagar. But the hearing was fixed on 27th May 1985. Since the deceased did not return home, a complaint was given by Rupaji Rudaji, PW 2 who is elder brother of deceased. During search it was found that the dead body was buried in the field of Mahuva. It was found that the skin was removed from the face. The victim could be recognised by the clothes worn by him. The evidence of Rupaji Rudaji, PW 2 supports the case of prosecution. He deposes that on last Holi festival incident of quarrel took place with accused. He alleged that accused No.4 had illicit relations with the wife of the deceased. Maknai Sukaji, PW 4 in his deposition at Exhibit 16 stated that he met deceased Badaji at 7.30 PM on 24th May 1985. He further stated that deceased went along with one Galaji Dataji. Thereafter, on the next day he came to know about murder of Badaji. Therefore, they were last seen together. Galaji Dantaji, PW 6 deposes in his evidence at Exhibit 18 that he took tea in a hotel with deceased. Thereafter, they went together for CR.A/110919/1986 3/5 JUDGMENT going home, but took different roads. He further deposes that thereafter he saw all the accused persons chasing deceased Badaji. Out of curiosity he stayed there and saw accused No.1 giving stick blow on the head of Badaji because of which he fell down. Accused No.4 gagged the mouth of Badaji while accused No.5 inflicted knife blow on the chest. Dr Manish Suvera, PW No.1 stated in his evidence that cut marks were found on throat and other parts of body of Badaji. The injuries are found to be sufficient to cause death. As per Post Mortem Report at Exhibit 12 following injuries were found on the person of the deceased:­ 1. Incised wound on left parieto occipital region of 8 cm x 1 cm oblique in direction. 2. Incised wound over occipital parietal region of 7 cm x 1 cm x 1 cm 3. Stab wound on back just medial to medial angle of left scapula 7 cm x 2 cm. 4. 2 stab wounds on right side of neck 4 cm below angle of mandible 5. Upper 1.8 x 2 cm which has cut the carotid artery and jugular vein. 6. Lower one 6 cm x 2 cm 7. Stab wound on lt side of neck which cut down postereo lateral part of larynx upper part. 8. Incised wound on right hand in between index and middle finger 2 cm x 5 cm. 9. Both lungs were congested. Samatbhai Hakubhai, PW No.10, Investigating Officer deposed that accused desired to show knife. Accused had hired room. Shoe and piece of banian was bound. There was blood on piece of banian. Deceased was buried in the field. Bedsheet was found with bloodstains, CR.A/110919/1986 4/5 JUDGMENT which belonged to accused No.4. The case of the prosecution is based on circumstantial evidence. The evidence of the main witness, Galaji Dantaji, PW No.6 is not believed by the trial Judge because on the fateful day Galaji Dantaji and deceased were returning home from Vijaynagar and at Mahuva field they parted their ways. He further stated that thereafter he saw the accused were chasing deceased and he stayed back there till the incident of assault was over but he did not shout nor made any attempt to interfere or save the deceased. This witness did not inform the brother of the deceased about the incident and after the incident he went home and slept normally. Further, the statement of Galaji Dantaji was recorded on 30th May 1985 i.e. after six days of the incident and till that date he did not inform anyone about the incident. He did not inform the police also who visited the village on the next day of the incident. Thus, the evidence of Galaji Dantaji was not considered to inspire confidence. We have heard the learned counsel for the parties and have gone through the record. The only alleged eye witness is a person of casual approach. He states that while he saw the accused following the deceased, he stood up and saw the incident. Firstly, this is an improper behaviour. Secondly, he could not be a bystander. In any case, he was required to report the matter forthwith. He kept silent. This silence has the effect of branding him a witness of no worth. With this evidence having gone there would hardly be any material on record to order conviction. In the aforesaid background, if the trial Court has ordered acquittal, then we do not think any illegality has been committed by trial Court. We accordingly uphold the order and dismiss the appeal. The accused is held not guilty of offences charged. CR.A/110919/1986 5/5 JUDGMENT Bail bonds be cancelled. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd