CR.A/1389/1986 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1389 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 IBRAHIM ANWARKHA DAYMA AND OTHERS ========================================= =Appearance : MR SP HASURKAR, ADDL PUBLIC PROSECUTOR for the Appellant MR PRITESH B KHAMBHOLIYA for MR NK MAJMUDAR for the Opponents ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 22/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. Present Appeal has been filed by the State of Gujarat CR.A/1389/1986 2/5 JUDGMENT against the judgment and order of acquittal dated 6.8.1986 rendered by the learned Additional Sessions Judge, Vadodara in Sessions Case No.29 of 1986 acquitting the accused persons of the charge. 2. The case of the prosecution is that Usmankhan Shahidkhan Dayma filed a complaint on 11.10.1985 stating inter alia that he is resident of village Vasan, Taluka Tilakwada, District Baroda and he stays in this village alongwith his five brothers and one brother Shahidkhan is residing separately nearby in the same village. He further states that his uncle's son Mohammed Afzal Dayma has got some land dispute with one Ambalal Darji of the same village. At about 11 O'clock in the morning on the very day, when he was at home, Ambalal Darji, his son Pravinchandra Ambalal Darji and Allahrakha Khan came there and on seeing them, the complainant Asked Ambalal Darji why he is talking ill about him and threatening him for killing. When the complainant said this, there were verbal altercations and Ambalal Darji gave shouts that 'finish them all' and while saying this, Ibrahimkhan Anwar Dayma, Shahidkhan Dayma and Sulemankhan came with dhariya and sticks and started beating them. Thereby, Ibrahimkhan Anwarkhan Dayma gave blow on the head of the complainant's brother and his wife Anwarbibi also came running there, who was beaten with stick and son Siddique Hussein was beaten with stick by Ambalal Darji. Anwarkhan Dayma gave bhala blow on his back as well as on left shoulder. Shahidkhan gave ax blow to Mustafa on his hand and fractured the same. CR.A/1389/1986 3/5 JUDGMENT 3. This incidence is allegedly seen by all members of the area and on these facts, investigation started and after completion of the investigation, charge-sheet was filed against eight respondent accused for the offence punishable under Sections 149, 148, 302 read with Sections 323, 324, 325, 452 of the Indian Penal Code and Section 135 of the Bombay Police Act. Since the case was triable by the Court of Sessions, the same was committed to the Court of Sessions and after framing the charge, all the accused persons did not plead guilty and, therefore, trial was proceeded against them. After considering the evidence which was led before the learned Additional Sessions Judge, Vadodara, he came to the conclusion that the charge is not proved beyond doubt and investigation which was done is partial investigation and interested witnesses are not believable and, therefore, acquitted all the accused persons giving them the benefit of doubt. 4. Being aggrieved, the State has preferred the present appeal. The learned Additional Public Prosecutor took us with the record and proceedings and argued that the prosecution case was rested upon the version of the three injured witnesses, namely Usmankhan PW 5 at Exh.28 (page 19 to 20), Mustafakhan Sahidkhan PW 6 at Exh.16 (page 23) and Anwarbibi PW 7 at Exh.31 (page 26 to 27), have consistently supported the version of Usmankhan, the complainant and contended inter alia that since the accused persons were aggressor, they came to be place of the complainant with all deadly weapons in their hand and they gave blows to Mohammed Hanif on his head and also inflicted injuries on witnesses, stated hereinabove. All these witnesses ought to CR.A/1389/1986 4/5 JUDGMENT have been believed by the learned Sessions Judge. 5. The learned Additional Public Prosecutor further contended that the injury certificates of Usmankhan is at page 97, Anwarbibi at page 98 and Mustafakhan at page 90, which clearly reflect that all the injured witnesses have received grave injuries and all the accused ought to have been convicted for the offence charged against them. He further contended that Latifkhan PW 8, Exh.32 (page 28) was as such obliging weightage so as to doubt the credibility of the injured witnesses. 6. We have gone through the record and proceedings carefully. We have also considered the injuries which were present on deceased Mohammed Hanifkhan (page 91- Postmortem report and page 93-injuries). It is clearly reflected that said Mohammed Hanifkhan received only one injury on head, which proved to be fatal. We have also considered the injury of Anwarkhan, which are quoted hereinbelow: “1. A dark bluecontusion of size 3” x 1 ½” on medical hide of Rt. thigh 5” above Rt. Knee. 2. An incised wound of size ¾ “ x 1 mm. x 1 mm. on lateral aspect of ring finger at dispil phalanx of Rt. Head. 3. An incised wound of size ½ “ x 1 mm x 1 mm on medical aspect of little finger at dispil phalanx of Rt. Head. CR.A/1389/1986 5/5 JUDGMENT 4. An ahraision of size 1 cm. x 1 cm. on posterior aspect of Rt. fore arm 4” below elbow.” 7. Perusing the entire record, we do not find any explanation on the injury of the accused persons from the side of prosecution. Latif in his deposition has stated that both the parties were quarreling. He has also admitted that deceased Anwarkhan had fallen on ground. If this version is correct then coupled with the fact of injuries of the deceased, there is a defence available to the accused. 8. In the aforesaid circumstances, the learned Trial Judge has not accepted the prosecution story, then it cannot be said that one possible view of law has not been taken by the Trial Judge. In this background, the appeal against acquittal is not liable to be accepted. Hence, the Appeal is dismissed. Bail bonds are cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar