CR.A/58719/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 587 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 GULMOHMAD ISMAIL GANDHI AND OTHERS ========================================= =Appearance : MR PD BHATE, ADDL PUBLIC PROSECUTOR for the Appellant MR HARESH JOSHI for MR PM THAKKAR for the Opponents ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 13/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal is filed against the order of acquittal CR.A/58719/1987 2/5 JUDGMENT passed by the learned Sessions Judge, Amreli in Sessions Case No. 25 of 1985 on 16.5.1987. 2. The prosecution story, in brief, are that on 29.3.1985, a complaint came to be filed by one Chhaganbhai Arjanbhai stating inter alia that he is residing at Abhelvad of Kodinar, Taluka of Amreli district and deceased Ravjibhai is his elder brother and earning his livelihood by agriculture. He and his brother are staying separately. Deceased has two wives, namely Kadviben and Savitaben and son named Girishbhai. That on the day of incidence, at about 7 O'clock, he went to Ravjibhai for daily work and then went in bullock cart to the fields. On the way, he came near the fields of Ravjibhai and met Ghulam Mohammedbhai. Ghulam Mohammed had bhala in his hand, and Januben, who is wife of Ghulam Mohammed was having axe in her hand and Prabhashankar was having stick in his hand. They obstructed their bullock cart and said to the complainant that they would not allow them to go further in bullock cart and if they would go they would be beaten. Upon this altercation, complainant came back to Ravjibhai and informed about the incident and after leaving bullock cart at home, Ravjibhai and other labourers went to the fields and when they came to be fields of Ghulam Mohammed, Ghulam Mohammed and other accused persons namely Prabhashankar Premjibhai and Bai Januben beat them with weapons. Ghulam Mohammed gave spear blows on stomach and again gave two blows, one on chest and other on thigh. Prabhashankar gave stick blows and Januben gave axe blows on side portion of the chest and they were shouting that 'finish them off today'. Thereafter, when they were beating Ravjibhai, other persons intervened and, therefore, accused went away. Thereafter, Ravjibhai was found dead and he was brought home. On these facts, complaint came to be filed. The accused persons were also injured and they also have lodged a complaint against Bauchand Ram and Juma Omar. After completion of the investigation, charge sheets were filed in the present case as well other cross CR.A/58719/1987 3/5 JUDGMENT complaint, which was tried vide Sessions Case No.26/1985. 3. It would be pertinent to note here that the State has preferred present appeal against acquittal of present respondent. Similarly, in Sessions Case No.26/1987, the respondent-accused No.1 Memon Juma Omar is convicted and sentenced 3 years rigorous imprisonment for the offences under Section 326, he is convicted and sentenced for 3 months for the offence under Section 323 and he is further convicted and sentenced for 1 month simple imprisonment for the offence under Section 447. For the offence under Section 323, the accused No.2 was sentenced for 3 months and for the offence under Section 447, he was convicted and sentenced for 1 month. In the said appeals, namely Criminal Appeal Nos. 433/1987 and 581/1987, we have considered the said appeals and enhanced the fine to the tune of Rs.2500/- in each of the matter because according to our opinion, the punishment imposed was inadequate, but we were not inclined to send the accused persons to jail after lapse of such a long time. 4. Coming back to the present case, after considering the oral as well as documentary evidence, the learned Sessions Judge was pleased to acquit the accused persons. Being aggrieved by the said acquittal, the State is in appeal. 5. The learned Additional Public Prosecutor has strenuously supported the contentions raised in the memo of appeal and contended that there is an abundance evidence on record which goes to show that the accused persons are author of the injuries inflicted upon the deceased Ravjibhai Arjanbhai as well as other injured persons. It has come into evidence that the accused No.1- Ghulam Mohammed has inflicted spear blow on Ravjibhai Arjanbhai, who succumbed to the injuries which is corroborated by medical evidence on record and the same ought to have been CR.A/58719/1987 4/5 JUDGMENT considered. It has also come out of the evidence that accused No.2 inflicted blow with an axe and accused No.3 inflicted stick blow on deceased Ravjibhai. In this set of circumstances, the learned Sessions Judge ought not to have acquitted the respondent accused persons. 6. We have considered the reasons given by the learned Sessions Judge carefully and we are in full agreement with appreciation of evidence recorded by the learned Sessions Judge in this regard. It has come into evidence that it is Ravjibhai and other witnesses in this sessions case, who were aggressor, went to the field belonging to the present accused persons, despite Court's injunction order was operating against them. The present accused has also received injuries of which witnesses are authors and though it was a case of free fight, the root cause were witnesses in the present case. Though there was an injunction, witnesses trespassed in the fields of the accused persons and in the said course, the incidence has occurred and in this set of circumstances, the present accused persons have exercised their right of private defence, as recorded by the learned Sessions Judge as main ground for acquitting the respondent accused. We have already considered evidence and conviction recorded in cross-case and enhanced the fine imposed on the respondent accused persons in Criminal Appeal No.433/1987 and 581/1987 and accordingly, we do not find it worthwhile interfering the acquittal recorded by the learned Sessions Judge in the present case. Appeal fails and hence dismissed. Bail bond stands cancelled. (BHAGWATI PRASAD, J.) CR.A/58719/1987 5/5 JUDGMENT (S.R. BRAHMBHATT, J.) omkar