CR.A/59819/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 598 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 GUJAARAT Versus RABARI GOVIND JAGMALBHAI VAGADIA & ANOTHER ====================================== Appearance : Mr Maulik Nanavati, Additional Public Prosecutor for the Appellant MR AD SHAH for the Opponents ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 26/08/2008 CR.A/59819/1987 2/5 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) State of Gujarat, by the present appeal, challenges the judgment and order dated 30.05.1987 passed by the Additional Sessions Judge, Surendranagar in Sessions Case No. 37 of 1986 acquitting the present respondents – original accused of offences punishable under Sections 333, 504, 506(2) read with Section 34 of the Penal Code. Complainant Mohanbhai Dhanjibhai Parmar, working as round forester in the forest department of the State, alongwith watchman Nursha Gulabsha had left for taking round of the forest at about 8:45am on 15.10.1985. While he was riding his bike, accused no. 1 Rabari Govind Jagmalbhai hit him with a stick on his right forearm. As a result, he stopped his motor-cycle. Then accused Govind hit pillion rider Nursha on his left shoulder and left thigh with the stick. Complainant intervened and accused gave him a stick blow on his right wrist. At that time, accused no. 2 Rabari Natha Ukabhai came there and joined accused Govind in the assault and gave three-four stick blows to Nursha on left torso, face, right-hand finger and right leg. On hearing commotion of the scuffle, Bharwad Chota Dana and other villagers who were having tea at a nearby stall came there and separated the accused and victims. Therafter, the accused left the place abusing the complainant and threatened to kill him next time. On the basis of these allegation, a complaint was filed; accused were charge-sheeted and sent for trial. The Trial Court found the evidence of complainant Mohan (PW- 10) and injured Nursha (PW-11) to be self-contradictory and not reliable, and in absence of any other independent evidence corroborating CR.A/59819/1987 3/5 JUDGMENT the version of the complainant and other injured witness, acquitted the present respondents. Heard Mr. Maulik Nanavati, learned Additional Public Prosecutor for the State and Mr. Ashok D. Shah, Advocate for the respondents. Mohanbhai (PW-10) in his complainant has stated about him having been assaulted by both the accused. He has in fact described the nature of injuries inflicted by accused no. 1 Govind and accused no. 2 Natha Uka in detail in his complaint. However, in his deposition, he only mentions about being injured by accused Govind. He does not mention about other accused Natha Uka causing him any injury. He is absolutely silent on presence of accused Natha Uka at the time of incident. Thus, he has given a complete go-by to the initial version of attack given by him in the complaint and has put forward a new story in his evidence. This aspect raises grave suspicion about the credibility of the witness and casts a serious doubt over correctness of his evidence. On the other hand, injured Noorsha (PW-11) talks about both accused being present at the time of incident and both accused causing injury with sticks. Thus the present case is wherein one set of prosecution evidence condemns the other set of evidence produced by the prosecution. In the above state of affairs, we find it difficult to secure a firm ground upon which the conviction of present respondents can be based. The function of the court in a criminal trial is to find whether the person arraigned before it as the accused is guilty of the offence with which he is charged. For this purpose the court scans the material on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to found the conviction of the accused and to hold that he is guilty of the offence with which he is charged. If in a case the prosecution leads two sets of evidence, each one CR.A/59819/1987 4/5 JUDGMENT of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such a situation. We also find that there are several infirmities and discrepancies in the evidence of both injured witnesses. Noorsha does not know the accused persons and according to his own admission, name of accused no. 2 Natha was given by Govind. No test identification parade was held and even at the time of evidence he did not know the name of accused Natha. Further, Noorsha states that Mohanbhai was armed with a gun at the relevant time but Mohanbhai denies that he was carrying gun. This aspect assumes importance as it is very unlikely that the accused would carry out assault if complainant Mohanbhai was having gun. Also, it is highly unnatural that Mohanbhai would not make use of the gun when he was being assaulted. Also, the prosecution, for reasons best known to it, has chosen not to examine any independent witness. Bharwad Chota Dana or any other villager who rushed to the place of incident on hearing the noise of scuffle and stopped the accused from further injuring the victims have not been examined. Forest Officer Shri Gajjar, to whom the victims are stated to have gone immediately after the attack and informed about the incident, has also not been examined. It is also pertinent to note that accused Govind had in the past filed a complaint against Mohanbhai, Noorsha and Shri Gajjar for having caused injuries to him and on differences being settled, the said complaint was withdrawn by accused Govind. This fact would assume relevance in view of the admission by Mohanbhai in his evidence that he had only seen the side of his assailant and he was appearing like Govind Jagmal and hence on suspicion his name was given in the complaint. He has CR.A/59819/1987 5/5 JUDGMENT also stated that Govind was fined and therefore he possibly must have been the assailant and on that basis his name was given in the complaint as the assailant. Thus, the identity of the accused is also not free from doubt. We are, therefore, of the considered opinion that the Trial Court was right in acquitting the accused and the reasons given by it are cogent, sufficient and correct. No interference is called for by this Court. The appeal must fail and is, accordingly, dismissed. Bail bonds stand cancelled. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd