CR.A/468/1983 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 468 of 1983 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 ULFATSINH RAMLAKHANSINH & OTHERS ====================================== Appearance : Mr IM Pandya, Additional Public Prosecutor for the Appellant MR JM PANCHAL for Opponent(s) : 1 - 6. - for Opponent(s) : 7, ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT CR.A/468/1983 2/5 JUDGMENT Date : 14/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal is filed by the State of Gujarat being aggrieved by the Court of the Additional Sessions Judge, Ahmedabad in Sessions Case No.139 of 1992 dated 20th December 1982. According to the prosecution case, one Mataprasad who happens to be the uncle of the complainant was in need of residential premises and at the instance of the complainant, the same was arranged by accused No.6. The complainant had paid an amount of Rs.500/- by way of Paghadi for getting the residential premises. The premises which was given was got vacated and on this Rs.500/- was demanded again. On this trifle issue, it is said that the incident had occurred on demand of the money back. The accused is alleged to have caused injuries to the complainant. According to the prosecution case, complainant – Munsising sustained the following injuries:- “1. CLW T shape over the right parietal region, each limb of of T shape measuring 1½” x ½” x scalp deep; 2. CLW 1½” x ½” x scalp deep over mid parietal region; 3. Abrasion 1” x ½” x over front of left leg; 4. Diffused tender swelling over left lateral malleolus; and 5. Diffused tender swelling over right leg.” The brother of the complainant, Munnasing had also been injured whose injuries are as follows:- CR.A/468/1983 3/5 JUDGMENT “1. CLW 1½” x ½” x scalp deep over the right parietal region; 2. 2 CLWs over left parietal region: (1) 1½” x ½” x scalp deep and (2) ½” x ¼” x scalp deep; 3. Incised wound over left side of forehead ¾” x ¾” x scalp deep; 4. Incised wound 1” x ¼” x skin deep over palmer aspect of right little finger with diffused tender swelling over whole finger. There was fracture of proximal phalanx.” The learned trial Court after considering the case of the prosecution has come to the following findings: “... Apart from this exaggeration of this story put forth by him, there is no doubt whatsoever that his evidence is completely inconsistent with the medical evidence. ... From the aforesaid evidence it transpires that the witness Munnasing, in the first place, has entirely changed the place of occurrence. His house is admittedly not opposite the house of accused No.6. ... Now, the case which he has put forth in the statement before the Executive Magistrate is that as he was assaulted by these persons his brother intervened and then his brother sustained injuries. Thus, he has totally changed the version so far as this aspect is concerned. Thirdly, the reason for the initiation of the quarrel according to the dying declaration was an old enmity but now before the court he has come out with a story that there were some altercations between his brother and accused No.6 in respect of Paghadi amount. It is thus clear that the story which he has put forth in the dying declaration Exhibit 13 is completely inconsistent with the case which he has made out CR.A/468/1983 4/5 JUDGMENT before the Court. ... Again as stated above, the story which he has stated in the dying declaration is completely contradictory so far the place, the time and the reason for which the quarrel started and that the two versions are so very inconsistent that it is not possible to reconcile the same. In other words, the story put forth by the witness Munnasing is so full of falsehood that it is difficult to sift grain from chaff and it is in these circumstances that it is difficult to accept his version as correct...” The learned Public Prosecutor arguing the appeal submitted that it was a case where there were two injured eye witnesses. When the case is made up on the testimony of eye witnesses, then, the trial Court should have been slow on rejecting the testimony of the injured eye witnesses because they would not spare the actual assailant and name somebody else. In that background, the findings arrived at by the trial Court are perverse. Per contra, the learned defence counsel stated that when the prosecution has taken liberty to change the entire texture of the prosecution case inasmuch as the place of occurrence, the weapons of offence, the reason of quarrel, etc all have been changed to suit the story of the prosecution. There had been contradictions and embellishment to a great extent. Therefore, the findings arrived at by the trial Court should not be interfered with blindly. We have considered the rival submissions and we are of the considered opinion that the finding arrived at by the trial Court that the weapon of offence, dharia was used is negatived by the medical evidence. The manner of occurrence has been changed to an extent where it cannot be reconciled who was the first victim. Thus, the CR.A/468/1983 5/5 JUDGMENT prosecution is not coming with the story which led to the consequences as alleged by the prosecution. If the prosecution takes liberty of changing the prosecution case at will, then, it is very difficult to arrive at a conclusion where it can be said that the prosecution tried to establish a case beyond reasonable doubt. The aforesaid offence which has been recorded by the prosecution proved by the trial Court are in conformity with the criminal jurisprudence as is prevailing in the country and in that background we are of the considered opinion that in the appeal where the prosecution has changed correct version at will, the findings arrived at by the trial court are not liable to be interfered with. In that view of the matter, the findings arrived at by the trial Court deserves to be affirmed. Consequently, we affirm the same and dismiss the appeal. Bail bonds are cancelled. (Bhagwati Prasad, J.) (S.R.BRAHMBHATT, J.) *mohd