CR.A/998/1983 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 998 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 ? 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 ========================================================= THE STATE OF GUJARAT - Appellant(s) Versus CHANDAJI BASKHUJI & 21 - Opponent(s) ========================================================= Appearance : Ms. Mita Panchal, APP, for Appellant(s) : 1, UNSERVED-EXPIRED (N) for Opponent(s) : 1, 6, 8,10 - 11,13 - 15, 17, 19, MR PR NANAVATI for Opponent(s) : 2 - 5, 7, 9, 12, 16, 18,20 - 22. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 14/07/2008 CR.A/998/1983 2/6 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR. JUSTICE BHAGWATI PRASAD) This is an appeal against acquittal award dated 10.6.1983 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No. 15 of 1983 where 22 persons were prosecuted. 3 of the accused persons alleged to have fired and one person is alleged to have died and 2 persons have sustained injuries. 2. The facts of the prosecution case as narrated in the FIR lodged by Vastaji Vashramji Thakor before the P.S.I. Mr. S.S. Chavda of Patan Taluka Police Station on 17.10.1982 at 6.30 p.m. at village Elampur are that the election of Gram Panchayat of Elampur was held on 5.9.1982 and in that election for the post of Sarpanch of Elampur Gram Panchayat, accused No. 4 Vajesing Raimalji was a candidate and the first informant Vastaji's brother Pathuji's son Keshaji Pathuji was opposing the accused No. 4 in the election. However, the accused No. 4 won the Gram Panchayat Election thereby defeating Keshaji Pathuji. After one and a half month of the said election, on 17.10.1982 at about 2.00 p.m., accused No. 11 – Babuji Raimalji visited the shop of the first informant Vastaji's uncle Adaji Hiraji situated on the naka or entrance of the maholla in which the complainant and his relatives were living. Adaji's wife Jamiben was sitting at the shop, at that time when accused No. 11 visited it. It was alleged that he asked for a packet of bidi on credit which she refused to give and in retaliation, accused No. 11 gave her a blow with a spear on her left wrist and started hurling abuses at her. On hearing the CR.A/998/1983 3/6 JUDGMENT abuses, the deceased Pathuji Vashramji and his group arrived over there. Soon after this, the other accused armed with different weapons like dharia, sticks, spears, dhokas, kators etc., came running to the said post. Thereafter, an armed quarrel ensued between the group of the accused and the group of the complainant, whereby members of both the groups sustained injuries. 3. It has been alleged by the prosecution that the accused No. 11 Babuji Raimalji had voluntarily caused grievous hurt by means of a spear to the left writ of witness Jamiben Adaji and broke her wrist. The accused No. 19 Shankarji Kanaji had committed murder of Pathuji Vashramji by firing two gun shots with the intention or knowledge that he would kill the said Pathuji and further he also voluntarily caused simple and grievous hurt to witness Adaji Hiraji with an iron kator. The accused No. 4 Vajesing Raimalji had voluntarily caused hurt to witness Ambalal Vastaji by a stick. The accused No. 21 – Sardarji Kanaji had voluntarily caused hurt to witness Jawani Vashramji by a spear and the accused No. 17 had voluntarily caused hurt to Jawanji Vashramji by means of a stick. The accused No. 1 Chandaji Baskuji had voluntarily caused hurt to witness Jaswantji Madhuji by means of a stick and the accused No. 16 Ladji Chandaji had voluntarily caused hurt to Prahladji Madhuji by an iron kator and the accused No. 3 Chanduji Dhulaji had also voluntarily caused hurt to the said witness Prahladji Madhuji by means of an iron kator. The accused No. 2 Shivuji Pradhanji had voluntarily caused hurt to witness Ambaji Deshalji by a spear and the accused No. 3 Chandaji Madarji had voluntarily caused hurt to the said witness Ambaji by a dharia. CR.A/998/1983 4/6 JUDGMENT The accused No. 10 Nathuji Kuverji had voluntarily caused hurt to witness Lilaben by stick and the accused No. 8 Amaraji Rajaji voluntarily caused hurt to witness Shantokben by spear and the accused No. 18 – Kadvaji Jagdevji voluntarily caused hurt to witness Sitaben by a dharia and the accused No. 14 Vanrajji Kaluji voluntarily caused hurt to witness Kadvaji by a sword and the accused No. 9 Galbuji Kaluji voluntarily caused hurt to Kadvaji by a stick and the accused No. 12 Chhatrasing Pradhanji and the accused No. 15 Jaktaji Rajaji attempted to kill witnesses Jawanji Vashramji and Jaswantji Madhuji respectively by firing gun shots towards them. 4. According to the defence story, the complainant, his brother Pathuji Vashramji and some other 22 persons which included some of the prosecution witnesses had gone in the maholla of the accused No. 4 with a view to take revenge of the election in which Pathuji's son had lost the election against the accused No. 4. The group of the complainant tried to kill the accused No. 4 and fired gun and tamancha and had also used other weapons whereby causing injuries to accused Nos. 16 to 22 and some other persons living in the maholla of the accused No. 4. In order to escape their liability of this incident, the complainant lodged a false complaint by creating a false story of the incident which had never taken place near the shop of Adaji Hiraji. The accused had also filed a cross case bearing Sessions Case No. 16 of 1983 against the complainant and his 22 group members. The said cross case has also resulted into acquittal and no appeal against the order of acquittal in the said Sessions Case No. 16 of 1983 has been filed. CR.A/998/1983 5/6 JUDGMENT 5. The learned Sessions Judge, after examining the witness, came to the conclusion that the complainants were aggressors . The reason being one of the accused persons Vajesing Raymalji – accused No. 4 won the election of Sarpanch and being aggrieved by the defeat, the complainants made assault. It stands to reason that in this one feels retaliating attitude and in that background, if on the facts of the case, the learned Sessions Judge was of the opinion that the loser made an assault. In that background, if the accused persons in defence have used guns to ward off their assault which was made on them, it cannot be said that the findings arrived at by the learned Sessions Judge are incorrect. Further, we find that accused No. 19 and 15 who were said to have used guns are already died. Only accused No. 12 is surviving who has caused minor bruises, two injuries on the eye witness. Therefore, the surviving accused is not guilty of causing any such injury which may persuade us to hold that the finding of the trial Court as such can be interfered in an appeal filed against the acquittal. Thus before any appeal against acquittal is entertained, we should first conclude that the findings of the trial Court are perverse and are not sustainable and that those two are unavailable to us. Therefore, we find that the present appeal is not liable to be entertained. This conclusion of ours is further fortified from the fact that there was an appeal against cross case and in that acquittal was recorded. The State has not preferred any appeal. Therefore, there had unjust treatment meted out to the accused persons in this case. Consequently, the appeal stands dismissed. CR.A/998/1983 6/6 JUDGMENT The appeal against respondent Nos. 1, 6, 8, 10, 11, 13 to 15, 17 and 19 is abated as they are reported dead as submitted by the learned Additional Public Prosecutor herself. Bail bonds of rest of the accused stand cancelled. (BHAGWATI PRASAD, J) (S.R. BRAHMBHATT, J) (pkn)