CR.A/1107/1986 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1107 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 VRUJLAL BHAGWANBHAI PATEL AND ANOTHER ========================================= =Appearance : MR SP HASURKAR, ADDL PUBLIC PROSECUTOR for the Appellant MR DN VORA for Opponent(s) : 1 - 2. MR TUSHAR L SHETH for Opponent(s) : 1 - 2. ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 12/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been filed by the State of Gujarat against the judgment and order dated 26.5.1986 passed by CR.A/1107/1986 2/6 JUDGMENT the learned Additional Sessions Judge, Rajkot at Gondal in Sessions Case No.44 of 1985, acquitting the present respondents- original accused for the offence punishable under Section 451, 302 read with Section 114 of the Indian Penal Code. 2. Patel Bachubhai Madhabhai, complainant, lodged an FIR on 6.5.1985 stating inter alia that on earlier day, while he was in his field, his uncle's son Vaju Bhagwan (present accused), came to the fields on horse and asked him to untie his plough and asked him to vacate the land. Upon saying so, he came there alongwth another person whose oxen was borrowed by the complainant and the said person was directed to take possession of those animals and thereafter, the complainant untied his plough from those oxen and returned animals to the owner thereof. Thereafter, he came back to the village and reported the incident to one Kaba Patel and Vera Bhikha Hirpara that they assumed to persuade to accused. Thereafter, the complainant again went to the field and at 4 O'clock, once over again, accused came with axe and ordered the complainant to vacate the field or else he would kill him. The complainant came back to home and at late night, the accused came to his house. While he was sleeping in osari alongwith his daughter, the accused gave a stick blow. However, the said blow landed on his daughter and she died on spot. On this facts and others, FIR came to be lodged. After investigation, the police filed chargesheet. Thereafter, the case was committed to the Court of Sessions. The learned Sessions Judge framed the charge. The accused did not plead guilty, therefore, he was put to the trial. After considering the evidence, the CR.A/1107/1986 3/6 JUDGMENT learned Judge was pleased to acquit the respondent accused. Being aggrieved by the same, the State has filed this appeal. 3. The learned Additional Public Prosecutor contended that though the incident had occurred at night time, the night was two days earlier of full moon day and light was enough to identify the accused. Moreover, the house of of the complainant and the house of the accused are very near to each other and they are related to each other and, therefore, there was no question of not identifying the accused person even at the late night. Immediately, just before wielding the stick blow, the complainant was awaken and, therefore, there was no question of not identifying the accused person at midnight. Even the wife of the complainant also supported the version, she was sleeping inside the room near osari, she came out immediately and deposed to have seen the accused running. The learned Additional Public Prosecutor further contended that there was previous animosity and the accused was very influential person in the town and he is relative of the complainant in whose possession the field belonging to the accused was there at the relevant point of time. In this set of circumstances, prior dispute between the complainant and the accused is sufficient to indicate motive behind the crime. The learned APP further contended that the learned Sessions Judge erroneously and unnecessarily pondered around minor and trifle contradiction, like seizure of gani bag containing blood stain is considered and the said evidence having not found convincing, acquitted the accused. Moreover, the learned Judge has also erroneously not believed the evidence of the complainant and his wife and acquitted the respondent-accused. CR.A/1107/1986 4/6 JUDGMENT 4. We have considered the judgment and evidence on record. We have considered the evidence of PW 4- Exh.15 of Bachubhai Madhabhai- complainant and also the evidence of PW 7 Kamuben, wife of the complainant at Exh.20. We find that the said evidence is not believable because the complainant in his FIR tried to implicate one more person whose identification was never disclosed and was never brought before the Court in any manner. Moreover, the conduct of the complainant that after the incident, he simply sat for hours together with the body of his daughter and at about 4 O'clock, he went to police Patel for informing about the incident is unbelievable. Even at midnight, he did not give any shout or alarm to seek help from neighbours, which appears to be very unnatural conduct. In the FIR, he states that just before wielding blow, the accused talked him and said him that he will have to vacate the land. The said words are not stated before the Court. Before the Court, the complainant states that since the bed was moved slightly, he asked him, 'who is there' and asked him what is to be done; immediately thereafter, the accused gave blow and ran away. 5. The complainant's wife was also examined as PW 7 at Exh.20. In her deposition, she deposed that she recognized one and she did not recognize the other person. She said that she had seen the accused wielding blow of stick, but she does not state that there were actual verbal altercations which were stated to be deposed by the complainant. Moreover, the other witnesses regarding the incident occurred on earlier day, have not supported the prosecution case. Even Jivabhai Lakhabhai, police Patel, who was examined as PW 8 at Exh.21 said that the complainant came to him at about 4'clock CR.A/1107/1986 5/6 JUDGMENT and reported the death of his daughter but has not stated anything other than this. 6. In this set of circumstances, the version of the complainant regarding 4 O'clock he has gone to police Patel and informed him about the incident and disclosed the name of the accused to police Patel is not supported by the evidence of Jivabhai. In that view of the matter, what follows is that until 4 O'clock in the morning, he was not known the name of the accused. This inference is further strengthened from the fact that the versions of the husband and wife are indicative of a fact that both have different version to give. If their version is judged in the background that the husband has asked a pertinent question, 'who is there', if identity was known, such question will not be asked. Another aspect which goes to the root of the matter that there was his person, who the second one was is not known. This knocks out the claim that the witness could identify the accused. The other witness of discovery of stick has not supported the prosecution. We have carefully considered the other evidence, which was relied upon by the learned Sessions Judge for acquitting the accused. We think that we will not be able to take any other view than what is taken by the learned Sessions Judge in acquitting the accused. In view of the above circumstances, since primary evidence does not support the prosecution case, the appeal is dismissed. Bail bonds stand cancelled. (BHAGWATI PRASAD, J.) CR.A/1107/1986 6/6 JUDGMENT (S.R.BRAHMBHATT, J.) omkar