CR.A/275/1987 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 275 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 - Appellant) Versus ADAM YUSUF MANDLI & 1 - Opponents ================================================= Appearance : MS. MITA PANCHAL, LD. APP for Appellant : MR JM BUDHBHATI FOR MR YN OZA for Opponent: 1, NOTICE SERVED for Opponent : 2, ================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 25/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal is filed by the State against the judgment & order of acquittal dated 16/1/1987 passed by learned Add. CR.A/275/1987 2/9 JUDGMENT Sessions Judge, Ahmedabad (Rural) at Narol, passed in Sessions Case No. 14 of 1986. 2. The facts in brief are as under: The case of the prosecution is that on 22/4/1985 between 11.45 am to 12.00 (noon) complainant Prabhasankar along with one another witness Girjasankar reached near the gate of JMFC Viramgam Court for the purpose of attending Court matter. Before the complainant entered into the Court campus it is alleged that accused no.1 Adam Yusuf Mandli fired from his country made revolver on the complainant and upon hearing the sound of firing, complainant turned his face back and saw the accused with country made revolver in his hand. Due to the said firing complainant sustained injuries on left side of his chest. Due to said attack he fell down. Another witness Girjashankar who accompanied complainant held the complainant and took him into inside the Court and closed the door. Due to the firing complainant Prabhasankar seriously injured and he was taken at M.G. Hospital, Viramgam, where the doctor attended him and issued injury certificate and referred the complainant to Civil Hospital, Ahmedabad. Simultaneously the police was informed and therefore, on the basis of police Yadi investigation started. The complainant was treated in Civil Hospital, Ahmedabad. The accused were arrested on 10/5/1985 and the investigation carried out, charge sheet was filed and then the case was committed to the Court of Sessions. After full- fledged trial the accused were acquitted by learned Addl. Sessions Judge, Ahmedabad (Rural) at Narol vide judgment & order dated 16/1/1987. 3. Being aggrieved and dissatisfied with the said judgment & CR.A/275/1987 3/9 JUDGMENT order of acquittal, the State has preferred present appeal. It is reported at Bar that original accused no.1 Adam Yusuf Mandali died on 22/4/1997. Therefore appeal qua accused No.1 Adam Yusuf Mandli is ordered to be abated under Section 394 Cr.P.C. 4. So far as accused No.2 – Kasam Allarakha is concerned, learned APP Ms. Panchal has made following arguments and on the basis of which she prayed that the acquittal order may be reversed considering the evidence and the accused no.2 be sentenced appropriately. 4.1 It is submitted by learned APP Ms. Panchal that the prosecution examined in all 24 witnesses in support thereof and number of documentary evidences had been relied upon, including Ballistic report and evidence of doctor to strengthen the case of the prosecution. 4.2 It is submitted by learned APP that the prosecution had examined PW-1 Dr. K.J. Patel below exhibit-41 who deposed that the complainant had sustained 4 puncher wound injuries on the chest, over & above other injuries also sustained by the complainant. That the injury no. 1 & 4 are exit wounds and no. 2 & 3 are entry wounds which can be caused by firing at a distance of about more than 4 to6 ft. Prosecution also examined PW-9 at Exhibit-73, Dr. Suresh Shah who had examined the complainant and X-ray report shows that foreign body in the lungs like a head of pin. 4.3 Ld. APP further argued that the prosecution also examined PW-7 Shri Hasmukhlal Thakore, Ballistic Expert opinion below exhibit-58 and according to him Mark E, F of parcel of Muddamal No. 6 & 7 are country made revolvers recovered CR.A/275/1987 4/9 JUDGMENT from the possession of both the accused. Both these revolvers were used and this shows that both the accused persons have fired from their respective revolver. 4.4 Learned APP has also submitted that the prosecution had examined PW-12 Prabhasankar Mehta, PW-13 Girjashankar Jatashankar, PW-3 Babaji Dansing, PW-14 Shankar @ Shivsinh Balvantsinh and PW-16 Naresh Trikamlal to prove prosecution case foolproof. However learned trial Judge ignored deposition of these witnesses and on the basis of minor discrepancies acquitted the accused. Considering the over all evidence and its cumulative effect, learned trial Judge should not have acquitted the accused. Learned APP therefore urged that the accused no.2 be appropriately punished by allowing the present appeal. 5. As against that, learned counsel for the respondents – original accused submitted that there are major contradictions in the deposition of complainant and other witnesses. The complainant stated that accused no.1 had fired at him and thereafter when he turned around, he saw both the accused persons having revolver in their hands. Thereafter in his deposition he improved his version by stating that both the accused had fired at him. To support this say, another witness Girjashankar had said that he was little bit behind from complainant and after hearing the sound of firing when he looked backside he found that both the accused persons were having revolver in their hands and thereafter both of them fired twice. 6. This above discussions indicate that eye witnesses have not fully supported the case of the complainant. Besides that even prospection witness No.14 Shankar @ Shivsinh Balwantsinh who narrated the entire incident and said that accused CR.A/275/1987 5/9 JUDGMENT persons had fired once. Thereafter he stated that both the accused persons made two firing each from their respective weapon and due to said firing complainant got injured on the backside of his chest. Thus this witness had come out with a different version, though he was cited as an eye witness. Considering all these contradictions and improvements in the deposition of the witnesses, learned trial Judge has rightly come to the conclusion that even presence of either of the witnesses at the scene of offence was doubtful, but since they were knowing the complainant since long, they came forward to depose only with a view to oblige the complainant even though there appear they did not have seen the incident. Learned trial Judge also taken into consideration that no foreign body is found from the complainant's body. Considering all these aspects, learned trial Judge has rightly acquitted accused which may be upheld in the interest of justice. 7. On the basis of these arguments, Learned trial Judge evaluated the evidence of all three doctors who examined as PW-1, PW-2 and PW-9 at Exh. 41, 44 and 73 respectively and came to the conclusion that as per doctor's deposition complainant sustained injuries by firearm but there is pair of 'through and through' injuries which are even possible by sharp cutting instrument also. In this case it is not possible to say because there were abrasion surrounding the entry wound and therefore the injuries were not caused by sharp cutting instrument. The doctor has further deposited that he has not mentioned in the certificate issued below exhibit-42 and 43 in respect of abrasion found surrounding the wound. Subsequently the patient was referred to Ahmedabad Civil Hospital for further treatment where Civil Surgeon had examined the complainant and the injured complainant was CR.A/275/1987 6/9 JUDGMENT referred to Radiologist for getting X-ray report. Considering the evidence of Dr. S.M. Pandya, PW-2, who in his cross examination regarding the nature of injuries found on the body of the complainant and according to his examination in chief he stated that injury no.2 and 3 were “Entry Wounds” and injury No. 1 and 4 were “Exist wounds”. In his cross examination he had stated that in the certificate exh. 44 issued by him he had not mentioned which are the injuries of 'entry wounds and exist wounds'. Besides that, he had also not mentioned the margin of wounds in his certificate. The doctor has also stated in his cross examination that he can not say that the injuries sustained by the injured was by pellets. It is true that pellets were not found and possibility of muddamal arms being used was completely ruled out. Considering all above facts & circumstances of the case, learned trial Judge held that as per doctors' opinion and the medical certificate one can not come to the conclusion that how the complainant got injured, whether it was by fire arms or by other weapons. 8. Learned trial Judge also evaluated deposition of eye witnesses and chance witnesses who were present at the scene of offence. Learned trial Judge compared their evidences along with the evidence of PW-12 Prabhashankar - complainant and come to the conclusion that the evidence of PW-8, Valbhai Ishwarbhai Gohil, evidence of Executive Magistrate, exh. 70 who recorded dying declaration below exh. 72 and deposition of PW-13 Girja Shankar Dave, PW-14 Shanker Shivsinh Balvant Sinh and PW-16 Nareshbhai Trikambhai Patel. After comparing the deposition of all these witnesses and having found that as per the first version of the complainant it was accused no.1 who fired upon him and thereafter when turned around both the accused were seen armed with country made CR.A/275/1987 7/9 JUDGMENT revolver and two fires were made. In support of that PW-13 Girjashankar deposed that when the first fire took place he was little away from Prabhashankar and after hearing the sound of firing when he looked back, he found revolver in the hands of both the accused and thereafter two fires were shot by both the accused. Therefore the first version of the complainant Prabhashankar and Girjashankar does not corroborate and subsequently Prabhashankar stated in his chief examination that after the first gun shot injury when he turned around he saw revolver in the hands of both the accused. Therefore his first version that he saw accused no.1 first fired at him creates doubtful because both the versions are contrary to each other. 9. Besides the aforesaid, other thing weighed before the learned trial Judge was the deposition off PW-13 Girjashankar who is a tenant of the complainant. Therefore there are all possibilities that he may depose in favour of the complainant with a view to oblige him and hence also narration of how the incident had started, more precisely incident of firing was not corroborated in the deposition of both these witnesses. Other witness PW-14 Shankarbhai Shivsinh also claimed to have seen the incident and had deposed in his evidence that he know complainant Prabhashankar since last five years and office of Prabhashankar is situated near his tea stall. This witness claims to have seen the incident and also identified both the accused in the Court and stated in his examination in chief that both the accused were in possession of revolver in their hands. According to him both the accused had fired and thereafter complainant turned around and saw both the accused persons and in his cross examination he stated that he had not disclosed before the police about both the accused having fired and when complainant turned around he saw CR.A/275/1987 8/9 JUDGMENT both the accused with weapons. This witness had further deposed that on the date of incident he reached near the Court between 10.30 to 11.00 am and thereafter said incident had occurred between 11.30 – 12.00 noon and he saw this incident from a distance of 30 – 40 ft. Considering version of this witness and comparing with the deposition of Prabhashankar the complainant, Learned trial Judge found material contradiction of facts. That, as per the say of complainant the first firing was made by the accused no.1 and thereafter when he turned around he saw the accused persons were possessing arms on their hands. Whereas this witness deposed that both the accused had fired and thereafter complainant turned around and saw accused persons possessing revolver in their hands. Learned trial Judge therefore doubted whether the incident had occurred in presence of present witness? and even his presence itself was doubtful. Hence learned trial Judge disbelieved his version. Considering the cumulative effect of all the evidences learned trial Judge acquitted the accused persons as aforesaid. 10. We have heard learned counsels for the parties, and perused the record & proceedings of the case. Positive case of the prosecution is that there are two pellet injuries which are exit wounds. It was a fire by revolver, which is not of a different weapon. In case of pellets generally for one shot more pellets may come out. In first version gun shot being multiple is not specifically indicated. Only narration is that the accused was seen holding the weapon. 11. One of the accused Adam Yusuf Mandli who is alleged to have fired at the complainant is dead and the case against him is abated. The witnesses are not confident as to which CR.A/275/1987 9/9 JUDGMENT fire was effective. In fact they are not even sure as to who fired first and whose fire became effective. They were not in a position to inform the Court about the fact that fire of which accused resulted into injury. 12. When the effectivity of the fire is not deposed and the arm recovered from the present respondent Kasam Allarakha was found to be damaged, then in all probabilities his weapon was incapable of causing the alleged injury. In this background, if the contradiction as seen by the trial Court are kept in view, then, in our view it would not be a case where the view taken by the trial Court can be considered to be improbable. 13. In view of the above discussions, when the accused assailant – Adam Yusuf Mandli has died, there are reasonable doubt about the complicity of the respondent accused – Kasam Allarakha being fired from his fire arm. In our view, the appeal deserves no merit and requires to be dismissed. Consequently the State Appeal is dismissed. Bail bonds of accused are cancelled. Registry is directed to send record & proceedings to the trial Court forthwith. [ BHAGWATI PRASAD, J ] [ S.R. BRAHMBHATT, J ] /vgn