CR.A/423/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 423 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 ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= STATE OF GUJARAT - Appellant(s) Versus RAJUBHAI DHIRUBHAI KUNKAN - Opponent(s) ========================================================= Appearance : Ms. Mita Panchal, APP, for Appellant(s) : 1, MR YM THAKORE, Amicus Curie for the respondent --------------------------------------------------------- CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD And HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 14/07/2008 CR.A/423/1987 2/5 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) This is an appeal filed against acquittal award passed by the learned Additional Sessions Judge, Valsad at Navsari on 31.3.1987 in Sessions Case No. 35 of 1986. 2. Briefly stated the prosecution case is that accused Rajubhai Dhirubhai Kunkana is accused of murdering Dhirubhai, his own father. According to prosecution, at about 11.00 p.m. on 8.2.1986 father of the accused quarrelled with Ratniben, wife of the deceased and mother of the accused. During their quarrel, the deceased Dhirubhai is alleged to have levelled allegations against the lady – Ratniben that she is having illicit relationship with the brother-in-law of the accused – Sitaram and in that quarrel, he gave a sickle blow to her. At that time, the accused intervened but he was reprimanded by the deceased. 3. It is the further case of the prosecution that at about 1.00 a.m. in the night (i.e. on 9.2.1986 morning) the accused is alleged to have given a stick blow to the deceased Dhirubhai near the shop of Ramanbhai Jinabhai Naika Patel which has resulted into the death of the deceased. In the morning at about 9.30 a.m. on 9.2.1986 case was registered with Vasda Police Station. The police after lodging of F.I.R. CR.A/423/1987 3/5 JUDGMENT carried out usual investigation and submitted chargesheet before the Court of learned Judicial Magistrate, First Class. The case was committed to the Court of Sessions, Valsad at Navsari. The accused pleaded not guilty. Trial was conducted by the learned Additional Sessions Judge, Valsad at Navsari. The accused was charged with offence under Section 302 of the Indian Penal Code. 4. The learned trial Judge after hearing the parties by his judgement dated 31.3.1987 was pleased to acquit the accused person. Thus being aggrieved by the aforesaid order, the present appeal is filed by the State. 5. The learned Additional Public Prosecutor arguing the appeal, submitted that PW-1 Dahyabhai Vasava, Medical Officer, was examined. The Medical Officer has performed post mortem of deceased Dhirubhai and due to injuries death is caused. The post mortem report corroborates the statement of the doctor that the injuries which caused the death of the deceased. Apart from the medical evidence, the prosecution has examined PW-2, Mohanbhai Mamjubhai Patel, the complainant, who lodged the F.I.R.; PW-3 Ramanbhai Zinabhai Naika Patel and PW-4 Ratniben Dhirubhai. Though these witnesses turned hostile, yet in their police version they had implicated the accused because the accused has been found to be wearing blood stained clothes. Therefore, according to the learned Additional Public Prosecutor, the prosecution story should not have been discarded and the same should be given credence. It being the family affair, the witnesses have turned hostile. That did not desist the Court from shifting grain from CR.A/423/1987 4/5 JUDGMENT chaff and thus recording conviction. 6. Per contra, the learned counsel for the respondent Mr. Y.M. Thakore submitted that it is incorrect and wrong to say that the prosecution has credible witness to its credit. Two eye witnesses, PW-3 and PW-4 who were the basis of the prosecution have turned hostile. They have not supported the prosecution case. There is nothing on record to establish that the accused was guilty of any offence having been committed by him. In that background, if the trial Court has acquitted accused from the charges it cannot be said that any illegality has been committed by the learned trial Judge. 7. We have heard the learned counsel for the parties. We have found and considered that the basis of the prosecution was the statement of the complainant and two eye witnesses. All three have turned hostile. The panch witness have also turned hostile. There is no legal evidence to sustain the charge against the accused person. From the evidence available to support the case of prosecution, it was not possible for the trial Court to record any conviction because to record conviction, legal evidence is required. Legal evidence being not available, it cannot be said that the learned trial Judge has wrongly exercised the jurisdiction and acquitted the accused. That being the position, we are of the considered opinion that in absence of the evidence the trial Judge was right in acquitting the accused. We are not persuaded that different view can be taken in this appeal which is an appeal against the acquittal because the findings of the learned trial Judge are neither illegal nor perverse. We uphold the decision of the CR.A/423/1987 5/5 JUDGMENT learned trial Judge and the accused has been rightly held to be not guilty by the learned trial Judge. In the result, the appeal being meritless is dismissed. Bail bonds stands cancelled. (BHAGWATI PRASAD, J) (S.R. BRAHMBHATT, J) (pkn)