CR.A/116219/1985 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1162 of 1985 With CRIMINAL REVISION APPLICATION No. 388 of 1985 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 VALLABH HIRJI PATEL AND OTHERS ========================================= =Appearance in Criminal Appeal No.1162 of 1985 : MR MAULIK G NANAVATI, ADDL PUBLIC PROSECUTOR for the Appellant MR ND GOHIL for the Opponents Appearance in Criminal Revision Application No.388 of 1985 MR VC SHAH for Original Complainant MR MAULIK G NANAVATI, ADDL PUBLIC PROSECUTOR for the State ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 16/07/2008 ORAL JUDGMENT CR.A/116219/1985 2/10 JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. Present Appeal has been filed by the State against the judgment and order dated 06.06.1985 passed by the learned Sessions Judge, Bhavnagar in Sessions Case No.50 of 1985, acquitting the accused persons. 2. It is a prosecution that on 5th November, 1984, at about 4.00 p.m., at village Pithavadi, Taluka Savarkundla, District Bhavnagar, accused Nos. 1 to 10 came in two motor cars to kill Pragjibhai Mohanbhai Patel. The accused were armed with sword, axe, gun. The accused dashed one of the cars to Pragjibhai and passed the car in such a way that the deceased cannot come out from the land. The accused got down from the car and assaulted on Pragjibhai. Due to the scuffle, Pragjibhai received serious injury and one Nathabhai was injured. The FIR was filed by Pragjibhai Mohanbhai Patel against the accused and, subsequently, he expired on the same day on 5.11.1984 at 23.15 approximately (within 4 hours from the registration of FIR). 3. Thereafter, the case was investigated by the Investigating Agency, charge sheet was filed and the case was committed to the learned Judicial Magistrate First Class. However, as it was a sessions triable case, it was placed before the learned Sessions Judge, Bhavnagar. The learned Sessions Judge has framed the charge. The accused have not pleaded guilty and, therefore, after full-fledge trial, the learned Sessions Judge vide judgment and order dated 6.6.1985 was pleased to acquit the accused Nos.1,2,7,8,9 and 10 by giving benefit of doubt and as there was no evidence CR.A/116219/1985 3/10 JUDGMENT against accused Nos.3,4,5 and 6, they were acquitted of the charges levelled against them. 4. Being aggrieved and dissatisfied with the said judgment and order, the State Government preferred the present appeal before this Court. 5. The learned Additional Public Prosecutor on behalf of the State Government has mainly submitted the incident took place on 5.11.1984 at 4.00 p.m. at broad-day light and all the accused came in two cars and were armed with deadly weapons. 6. It is submitted that the prosecution has examined number of witnesses. 6.1. PW 1 (injured eye witness) Shri Nathabhai Dahyabhai was examined at Exh.38. He was sitting at Shri Laxmanbhai Kalabhai's shop as per his deposition, there were many independent persons available in the street. No independent witness was examined by the prosecution. His statement was recorded on 5.11.1984 at 22.00 hours. He has given further statement and same was recorded by the Investigating Agency on 9.11.1984. As per his deposition, accused were wearing helmet and their faces were covered, therefore, he has not identified any accused even though some of the accused were from his own village. Before doctor, he has not disclosed the name of assailant. He was admitted in K.K. Hospital, Savarkundla on 5.11.1984 at 6.25 hours (18.23 hours) and was discharged on 15.11.1984. He received two injuries by sharp cutting instruments. As per CR.A/116219/1985 4/10 JUDGMENT medical certificate, the patient will take about 3 to 4 weeks to be alright. 6.2. PW 2 Rambhai Gigabhai, who was cousin brother of PW 1, was examined at Exh.39. He took injured witness, i.e. complainant Pragjibhai Mohanbhai Patel, to the hospital and admitted him at hospital. As per his statement, he is eye witness to the incident but he has not named any one before the Investigating agency as well as before the doctor when injured witness Pragjibhai Mohanbhai was admitted as an indoor patient (as per Exh.53 Indoor case papers). In his deposition before the Court, he has not shown any light on the incident. 6.3. PW 3-Bhojabhai Golanbhai was examined at Exh.40. As per his statement before the Investigating Agency, the incident has taken at his residential premises. In his deposition before the Court, he deposed that none has witnessed the actual incident. He has not supported the prosecution case and he was declared as hostile witness. 6.4. PW 14- PSI Gopalbhai Chaturbhai Patel was examined at Exh.82. He lodged the complaint and investigated the case and searched the houses of accused. Initially, when he searched the houses of accused after registration of the FIR, he did not notice/ recover any weapons from the accused or from the irrespective houses. Accused were present before him but they were not arrested. The clothes were not blood stained. Subsequently, on the same day, at evening time, again when their (accused) houses were searched, weapons were recovered and accused were wearing blood CR.A/116219/1985 5/10 JUDGMENT stained clothes and they were subsequently arrested on the same day. He has not intimated about the incident, i.e. serious offence, to his immediate superior officer immediately. He has not mentioned about the patient's condition whether he is in a position to depose or not for D.D. He also deposed that even though the injured was in a position to sign but his signature was not obtained but the thumb impression was taken on D.D. yadi. 6.5. PW 4- Laxmanbhai Kalabhai was examined at Exh.42. He is shopkeeper and on the day of incident, he was doing his business and selling articles from his shop. He has recent some sound and running of prosecution witnesses. But, when he deposed before the Court, he deposed that he has closed his shop when the actual incident took place and actually, he has not seen incident. 6.6. PW 5- Dr. Bhanu Shankar Joshi, was examined at Exh.43. He is serving as Medical Officer at Savarkundla Government Hospital, where the injured were given treatment and they were admitted. In the injury certificate, Exh.44, the name of the respondents accused were not given and it was disclosed that some unknown persons have given blow. The above case papers were prepared on 5.11.1984 at 4.00 p.m. As per Exh.53, the medical case paper of indoor patient Pragjibhai Mohanbhai that it reveals that his health was very poor, he was unconscious, his pulse were 120/M and B.P. 60/40 at 18.25 hours on 5.11.1984. The assailants' names were not disclosed before the doctor and it was mentioned that some unknown person has assaulted. CR.A/116219/1985 6/10 JUDGMENT 7. The learned APP has submitted that even though the incident took at broad-day light, one person was seriously injured and others have received injuries. The complainant received the serious injury, he was admitted in the hospital and subsequently, he has expired. Though the injured has not named any one and it was stated that some unknown persons have assaulted because they were wearing helmet and, therefore, they were not identified. The deadly weapons were used and injured has received serious injuries and due to serious injury, he has expired and, therefore, all the accused persons should be punished for the offence under Sections 147, 148, 302, 324, read with Section 149 of the Indian Penal Code and Section 25(1) of the Indian Arms Act. 8. However, the Court below has not believed the said arguments of the learned APP mainly on the following reasons:- 8.1. The injured were at first point of time examined by the village doctor, even though he was not examined as witness. 8.2. Before the Government doctor at Savarkundla, at Government Hospital, both the injured have taken the treatment but they have not disclosed the name of the respondent accused and it was informed to the doctor that some unknown persons have assaulted. Some of the accused were close relatives and from the same village, even though their names were not disclosed before doctor who has treated at Savarkundla Hospital and it was clearly mentioned that some of the unknown persons have assaulted them. CR.A/116219/1985 7/10 JUDGMENT 8.3. Complainant- Pragjibhai Mohanbhai was seriously injured and due to loss of blood, he was almost in coma, his middle meningeal arches and nerves were cut, his B.P. was 40-60 and pulse were 120/M, his eye were very poor and he was unconscious. As per Exh.53, the injured was admitted at Hospital on 5.11.1984 at 18.25 hours and history was given that some unknown person has assaulted. On 5.11.1984, at 16.00 hours, when complainant was admitted at hospital and his condition was very serious as per the details given above and he was very serious, whereas FIR was registered on 5.11.1984 at 19.15 and injured witness who was serious and not in a position to depose, i.e. Pragjibhai Mohanbhai Patel, was shown as the complainant. 8.4. As per the investigation paper, the incident has taken place on 5.11.1984 at 16.00 hours. The FIR was registered on 5.11.1984 at 19.15 hours. The assailants' names were not disclosed till 12.00 to 12.30 of 6.11.1984. Accused were arrested on 6.11.1984 at 19.30 hours. When the accused houses were searched, no weapons were recovered and their clothes were not found/noticed with blood stain but on the same day evening, on 6.11.1984, when the accused were arrested, their clothes were with blood stain and the weapons were recovered from their respective houses. 8.5. Before going to the hospital, the police station was on the way but the police was not informed about the serious offence. 8.6. The police officer has not intimated to the superior CR.A/116219/1985 8/10 JUDGMENT officer about the seriousness of the offence and no date was mentioned. 8.7. At Exh.61, Panchnama, there is no mention of the C.R. number, therefore, from that, it is crystal clear that till the panchnama was drawn, the FIR was not registered and the accused names were not disclosed. 8.8. The Deputy S.P. visited the site of offence on 8.11.1984 at 10.00 a.m. He verified the case papers and initial in the paper. There is no signature of the Dy.S.P. in Exh.83, i.e. the statement of the deceased or in the FIR. 8.9. In the I.O.'s deposition, i.e. PW 14 Exh.82, PSI Shri J.C. Patel deposed there is no mention in the case diary about the calling of Exexutive Magistrate for recording D.D. It is not mentioned in the case diary that patient was conscious when yadi of D.D. was prepared. 8.10. From the hospital, where the injured was treated, the residential premises of Executive Magistrate was hardly one kilometer away. 8.11. As the accused were wearing helmets, their identity was not disclosed. 8.12. The FIR was lodged, accused's names were disclosed, accused were very much present at their respective houses, their houses were searched, no weapons were recovered, accused clothes were not found with blood stain, the FIR was registered for a serious offence and one CR.A/116219/1985 9/10 JUDGMENT person was seriously injured, even though accused were present before the Investigating Agency, they were not arrested but on the same day at evening, when again the houses of the accused were searched by police, the weapons were recovered and the accused were wearing blood stain clothes when they were called before I.O. From the above facts, it is crystal clear that the probable story narrated by the I.O. and the investigation carried out by the I.O. is not true and believable and it is doubtful. 8.13. The FIR was registered on 5.11.1984 at 19.15 hours, whereas, as per the police diary, the I.O. visited first time the hospital on 5.11.1984 at 20.00 hours and till 6.11.1984 at 14.00 hours, no name of accused were made known to Dy.S.P./ D.S.P. (superior Police Officer) about the serious offence. 9. From the above facts, it is crystal clear that even the injured eye witnesses have not disclosed the name of assailants before the doctor when they were given treatment by the doctor and in the medical case papers, it was mentioned that some unknown persons have assaulted. The accused persons were from the same village and some of the accused were the close relatives of the complainant and injured persons even though their names were not disclosed. It is the case of the prosecution that the accused were wearing helmets and, therefore, they were not identified on broad- day light. It seems that due to one or other reason, the complainant and the witnesses have involved the respondent accused falsely in captioned case. No independent witnesses were examined, even though the incident has taken place on CR.A/116219/1985 10/10 JUDGMENT broad-day light on a public road where many independent witnesses were present. Even the village doctor of Pithavadi village before whom the injured witnesses were taken and first-aid was provided by him, even though he was not examined as the prosecution witness. Therefore, considering the above facts, the prosecution has not established their case beyond reasonable doubt and involvement of the accused persons in the captioned case is doubtful. Therefore, the acquittal order is confirmed in the facts and circumstances of the case and the appeal of the State is dismissed. Bail bonds stand cancelled. ORDER IN CRIMINAL REVISION APPLICATION NO.288 OF 1985: In view of the judgment and order passed in Criminal Appeal No.1162 of 1985, the present application does not survive and is accordingly, disposed of. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar