IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 635 of 2003 For Approval and Signature: THE HON'BLE MR.JUSTICE A.R.DAVE HON'BLE MR. JUSTICE MD SHAH ============================================================== ============================================================== STATE OF GUJARAT - Petitioner(s) Versus PATEL RAMESHBHAI RANCHHODBHAI - Respondent(s) ============================================================== Appearance : Ms. Paurami Sheth, A.P.P.for Petitioner No(s).: 1. None for Respondent No(s).: 1. ============================================================== CORAM :THE HON'BLE MR.JUSTICE A.R.DAVE & HON'BLE MR. JUSTICE MD SHAH Date : 21/06/2005 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 of any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? 1. 2. 3. 4. 5. 6. ORAL JUDGMENT (Per : THE HON'BLE MR.JUSTICE A.R.DAVE) . This appeal is filed by the State against the order of acquittal passed by the Additional Sessions Judge (Fast Track Court), Mehsana, in Sessions Case no.188 of 1998 dated 11th February 2003. The accused was charged under the provisions of Section 302 of the Indian Penal Code. The case of the prosecution against the accused is as under: He had strangulated deceased Vithalbhai. It is the case of the prosecution that on muddy land, the deceased was strangulated by the accused by keeping his face on mud and by giving pressure on the face so that the deceased might die of asphyxia, and, according to the prosecution, the deceased ultimately died of asphyxia as per the post mortem report. According to the prosecution, sand which was found from the chappals of the accused and which was at the scene of offence was similar , and as the deceased was a Panchwitness in a case which was pending against the accused, the accused wanted to commit murder. After appreciation of evidence, the trial Court did not find any substance in the complaint, and, therefore, the accused has been acquitted. The learned A.P.P. Ms. Sheth gave us relevant copies of record so that the Court can peruse the evidence which was adduced before the trial Court. We have heard the learned A.P.P. and have also perused the relevant record. Upon perusal of the record, we do1not find any case against the accused so as to hold him guilty of the charge levelled against him. There was no eyewitness, and the evidence which has been adduced by the prosecution is very limited. In fact, the complainant, son of the deceased has consistently stated that the deceased had no animosity with anyone in the village. It appears that the deceased was a teacher, and upon retirement he was also elected as Deputy Sarpanch. The only indication with regard to motive alleged is that the deceased was a Panchwitness in a case which had been filed against the accused. If one looks at the case which was filed against the accused wherein the deceased was a Panchwitness, the deceased was only shown as a Panchwitness in a discovery Panchnama. Another important thing which the prosecution has alleged is that the accused and the deceased were last seen together. In addition to the aforesaid two factors, another factor was that the accused got his left hand shoulder dislocated and, therefore, had gone to see a physician on the day on which the offence had been committed and the dislocation of the shoulder bone was because of the pressure given by the accused to the deceased while trying thrust his face in mud while committing the offence. 7. 8. 9. 10. 11. 12. We have examined the evidence, but we are not in a position to find any substance so as to have a different view than the view which has been expressed by the trial Court. Finding the same type of earth from the chappals of the accused cannot be said to be unusual in a small village. There is nothing to show that the place was such that the sand was absolutely different. With regard to the evidence adduced by some prosecution witnesses to the effect that the accused and the deceased were seen together on the day when the offence had taken place, it is to be noted that all the witnesses had given the said version subsequently and on first occasion, nobody had said anything with regard to the accused being seen with the deceased. With regard to the dislocation of the left hand shoulder of the accused, it cannot be believed that because of the scuffle which the deceased might have had with the accused, the accused got his shoulder bone dislocated. In absence of any cogent evidence, the trial Court did not think it proper to convict the accused. We also share the same view which the trial Court had, and, therefore, we do not think it necessary to interfere, and, therefore, the appeal is dismissed. (A.R.Dave, J.) (M.D.Shah,J.) ard-lee