CR.A/139319/1986 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1393 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 ? 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 BABUBHA JORUBHA & 2 - Opponent(s) ========================================================= Appearance : Mr. S.P. Hasurkar, APP, for Appellant(s) : 1, MR KANDRAP H DHOLKIA for Opponent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 23/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/139319/1986 2/5 JUDGMENT This is an appeal filed by the State against the order of acquittal passed by the learned Additional Sessions Judge, Jamnagar, in Sessions Case No. 107 of 1985 on 8.8.1986. 2. The facts in brief are that Nanji Parbat Patel of village Pasaya District Jamnagar lodged FIR on 20.4.1985 stating inter alia that at 6 O'clock in the morning he heard some shouts from river side of the village and therefore he started running towards river and he met Hathi Mandan near compound of Popatbhai and he said to the complainant that somebody has severally beaten Popatbhai. Therefore, I am going with a cart to bring him. 3. The complainant immediately went to the river side and he was that Popatbhai was lying down. He was profusely bleeding. Damjibhai Patel, Govindbhai Patel, Vallabhhai Patel, Pancha Patel, Gokal Patel and others were present around Poptabhai. He said that these people told him that Darbars of our village - Babubhai, Batukbhai and Bharatsinh who are brothers have beaten Popatbhai with iron pipes. Popatbhai has told all these people about the incident and stating inter alia that Batukbhai was with Desi tamancha and he fired two shots and other brothers have beaten him with pipes. He has not asked him whether there were any injury caused out of firm CR.A/139319/1986 3/5 JUDGMENT arms. Meanwhile, Mandanbhai Bharwad brought his cart and Popatbhai was put in the said cart and they brought cart in the compound of Popatbhai and from there he was taken to Jamnagar in the tractor of Mulji Bharwad. He was in semi- unconscious stage. 4. It is further stated in the complaint that the reason for beating Popatbhai was a previous enmity on account of cross complaint. After completion of investigation, chargesheet was filed against respondent accused. Since the case was triable by Court of Sessions, it was committed to the said Court and after framing of the charge, plea was recorded. Accused did not plead guilty and, therefore, they were put to the trial. After recording the evidence the learned Sessions Judge was pleased to acquit the respondent accused vide his judgement and order dated 8.8.1986. 5. Being aggrieved by the aforesaid Judgement the State is in the appeal. 6. The learned Additional Public Prosecutor took us through the record and proceedings and contended that looking to the injuries on the body of the deceased (page 85 – Post -mortem report) it appears that all these injuries were possible by iron pipe and no injury was caused by fire arm and more particularly when victim himself has informed to CR.A/139319/1986 4/5 JUDGMENT surrounding people about identity of the accused, the learned Judge ought not to have acquitted them. 7. We have gone through the record and we are not impressed by this submission for the simple reason because Nanji Parbat Patel, PW-2, though states in his deposition before the Court (at page 93) that he himself heard deceased Popatbhai was giving names of the accused persons but in the FIR he is not stating about the same. He was meticulously cross-examined on this aspect. A witness who is the first informant and misses to mention the most important circumstance in the FIR then its improvement in subsequent stage cannot be considered reliable. 8. There is another witness Shamjibhai Becharbhai who is also extensively considered by the learned Sessions Judge (para-7 at page 321) but the presence of such witness is not corroborated by the evidence of Mandanbhai Bharwad (at page 117 PW 5) who turned hostile and did not support the prosecution. Even perusing the FIR, Nanji Parbat Patel does not state the presence of Shamjibhai anywhere; moreover, considering Exh. 66 (original papers will have to be perused) when Dr. Jadeja (p. 275 original papers) examined victim, the time of the assault was recorded as 5.00 a.m. while in the complaint it is stated to be 6 O'clock in the morning. This time CR.A/139319/1986 5/5 JUDGMENT gap has further bearing because there also no names of the accused were given and subsequently when FIR (at page 99) was lodged at about 10.30 a.m., first time the names of the accused persons figuring. 9. In the aforesaid set of circumstances the learned Sessions Judge has rightly come to the conclusion that sufficient deliberation has been made on the side of the complainant for framing accused person in the complaint. We have also gone through the observations made by the learned Sessions Judge regarding preparation of map of scene of offence. There had been casualness in the investigating process. Looking into the entirety of circumstances of the case we do not find any reason to interfere with the findings recorded by the learned Sessions Judge in acquittal appeal. Therefore, the appeal fails and is dismissed. Bail bond of each of the accused stands cancelled. (BHAGWATI PRASAD, J) (S.R. BRAHMBHATT, J) (pkn)