CR.A/897/1988 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 897 of 1988 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 CHANDUBHAI DAHYABHAI SOLANKI ========================================= =Appearance : MR SP HASURKAR, ADDL PUBLIC PROSECUTOR for the Appellant NOTICE SERVED for Opponent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 01/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. Present Criminal Appeal has been filed by the State of Gujarat against the judgment and order of acquittal dated CR.A/897/1988 2/4 JUDGMENT 28.7.1988 passed by the learned Additional Sessions Judge, Nadiad in Sessions Case No.131 of 1988. 2. The case of the prosecution, in brief, is that on 28.6.1987, Vimlaben Dayabhai Solanki, filed a complaint stating, inter alia, that she is doing labour work and her father passed away before 3 years. Her mother is alive and she has got three brothers and the complainant is eldest one. She is married to Chhatrasinh Chudasma. However, that marriage is broken and she is now staying with one Sardarsingh. Her brother Chandubhai (Accused herein) has lost his mental balance and is roaming here and there. At about 12.00 noon, he came home and started beating her mother mistaking her identity that as that of complainant because she was wearing the Saree of complainant and after beating, she was profusely bleeding and passed away. 3. The accused beat her mother with wooden log and since his mother started shouting, the complainant came there and saw Chandubhai was beating her. On these and other facts, a complaint came to be filed. After investigation, chargesheet was filed against Chandubhai for the commission of offence punishable under Section 302 of the Indian Penal Code. Since the case was triable by the Court of Sessions, the same was committed to the Court of Sessions. 4. The Additional Sessions Judge, Kheda at Nadiad framed the charge and the accused did not plead guilty and, therefore, trial proceeded against him and after considering the evidence, the learned Additional Sessions Judge was pleased to acquit the respondent accused. Being aggrieved by the said judgment CR.A/897/1988 3/4 JUDGMENT of acquittal, the State has preferred this appeal. 5. The learned Additional Public Prosecutor drew our attention to the evidence of Vimlaben and other Medical evidence and contended that the said accused ghastly attacked aged mother, who died on the spot, and the said incidence is witnessed by the complainant herself. Perusing the medical evidence, it is apparently clear that injuries which the deceased has sustained was sufficient to cause her death. In this set of circumstances, the learned Additional Sessions Judge ought not to have acquitted the respondent. 6. We have gone through the record and proceedings and we have minutely examined the evidence of Vimlaben PW 1 at Exh.7. We fail to appreciate the contention raised by the learned Additional Public Prosecutor that how the said evidence of Vimlaben be said to be helping the prosecution case in any manner. Her evidence is full of contradiction and clearly reflects that she is not the eye witness, as sought to be contended by the learned Additional Public Prosecutor. In para 4 of her evidence, she clearly admits that when she went to her mother, she saw Chandubhai was coming from a lane and she also admits that she has not seen Chandubhai beating her mother with wooden log. The prosecution examined Govindbhai Poonambhai and Ramabhai as PW 3 and PW 4 respectively, who did not support the prosecution and turned hostile. 7. Thus, the whole case is heard on the evidence of PW 1 Vimlaben. She, in her deposition, has admitted that, 'she has not seen the accused beating the deceased. But, I have learnt CR.A/897/1988 4/4 JUDGMENT it later. It was my conjecture'. With the aforesaid statements, no witness can be considered to be worthy of credit as an eye witness. If her evidence is excluded then there remains no other evidence on record. Other two eye witnesses, PW 3 and PW 4, having not supported the prosecution case, no reliable evidence is available on record to convict the accused. In this set of circumstances, we do not find it fit to interfere with the findings of the learned Additional Sessions Judge and consequently the appeal is dismissed. Bail bond stands cancelled. (BHAGWATI PRASAD J.) (S.R.BRAHMBHATT, J.) omkar