CR.A/491/1987 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 491 of 1987 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 BUDHIABHAI M VARLO ========================================= =Appearance : MS MITA PANCHAL, ADDL PUBLIC PROSECUTOR for the Appellant MS FARHANA Y MANSURI for the Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 07/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been filed by the State of Gujarat against the judgment and order of acquittal dated 5.5.1987 passed by the learned Sessions Judge, Navsari in Sessions CR.A/491/1987 2/8 JUDGMENT Case No.39 of 1986. 2. Prosecution case is that on the date of incident, i.e. on 19.02.1986, deceased Somlu Bhaylu came at the place of complainant Ziniyabhai Maganbhai as a guest for having dinner at 6.00 p.m. At that point of time, both, deceased and complainant, were preparing their dinner with the help of each other. At round 7.00 p.m., deceased came at the residence of complainant Ziniyabhai Maganbhai Varli and he was possessing a wooden stick in his hand and he tried to assault deceased Somlu, but the complainant prevented him. He took away the stick and through it out. Thereafter, the accused caught hold of deceased's hair and dragged him out. Accused took the deceased to the house of his father Machu. There, he first tied Somlu with rope on a wooden pole, where normally animals are tied, and thereafter, he started beating with wooden stick. 3. The complainant was followed them. He intervened and tried to save Somlu. Therefore, he also sustained injuries on his right palm and another assault on his head. He being afraid of accused did not go close and saw the incident in question from a distance. The accused was assaulting the deceased on chest, head and stomach. Because of the said injuries, the deceased fell down and died on the spot. Thereafter, leaving behind the dead body of the deceased, the complainant went to the place of Police Patel for informing the incident. Thereafter, on the next day, the incident was reported before Dharampur Police Station and the same was registered vide C.R. No.I- 7/1986 at around 12.45 p.m. CR.A/491/1987 3/8 JUDGMENT 4. The accused came to be arrested and dead body was sent for performing postmortem. After completion of investigation, charge sheet came to be filed before the competent Court and the same was committed to the Sessions Court for framing charges. The learned Sessions Judge was pleased to frame the charges since the accused pleaded not guilty to the charges and claimed to be tried. After the trial, the learned Judge was pleased to acquit the accused vide order dated 5.5.1987. 5. Being aggrieved and dissatisfied with the said judgment and order of acquittal, the State Government has preferred present appeal before this Hon'ble Court. 1) It was submitted by the learned Additional Public Prosecutor that the prosecution had examined 13 witnesses in support of its case as well as number of documentary evidence, including postmortem report Exh.29. 2) It was submitted that the prosecution has examined PW 1, complainant Ziniyabhai Exh.14, who is the only eye witness to the incident. As per his version, he has stated that he was present at the time of incident which had occurred initially at his place and thereafter, the accused took deceased at the house of his father Machu. There, he tied the deceased with rope and assaulted him. The complainant tried to intervene , therefore, accused also assaulted him on his hand with stick with a view to prevent him from saving deceased. Thus, CR.A/491/1987 4/8 JUDGMENT the complainant was afraid of accused. He saw the incident from a distance in the moonlight. It is also stated by him in his deposition that deceased had shouted for getting help. However, nobody came to rescue the deceased. According to him, approximately 30 houses were there but nobody came to rescue the deceased nor the complainant had tried to save the deceased thereafter. On the contrary, after occurrence of the incident, he went to the place of Police Patel to inform about the incident but as per the advise given by police Patel, no complaint was lodged immediately. The police station was far away at a distance of 9 K.ms. from the place of incident and, therefore, they filed the complaint on the next morning, i.e. 20.02.1986. It is also deposed by the present witness that motive behind the said incident was that wife of accused had run away from his house about 3-4 days prior to the incident. The accused was keeping doubt on the deceased that he had helped his wife in running away from. The accused wanted to take revenge of the said incident, the accused had assaulted the deceased. 3) It was further submitted that prosecution has also examined PW 3 Navsubhai below Exh.17, PW 4 Machubhai Sayabhai below Exh.18, who is father of accused and Bajeeben PW 6, Exh.20 who were declared hostile by the prosecution. 4) It was further submitted that prosecution has also examined PW 5 Bhailu Bapji below Exh.19 who is CR.A/491/1987 5/8 JUDGMENT father of deceased but according to his version, he has learnt about the said incident from the complainant since he is residing at another village namely Chodha which is 25 miles away from the scene of offence and, therefore, neither he has seen the incident nor he has given the correct story of prosecution and, therefore, his version was not believed by the learned Judge, as his version was contrary to the prosecution case. 5) It was further submitted that the prosecution has also examined PW 7 and PW 9 Panch witnesses in whose presence the accused has recovered the muddamal, namely stick and bush shirt worn by him which contains blood stains and they have supported the case of prosecution with regard to recovery of the said muddamal. 6) It was further submitted that the prosecution has also examined PW 10 Dr. Panwala who performed the postmortem Exh.28 and PW 13 Dr. Prabhakar who treated the complainant Exh.38 and after considering the deposition of Dr. Panwala, the learned Judge has accepted that cause of death of the deceased was homicidal and with regard to deposition of Dr. Prabhakar is concerned, the learned Judge has not at all considered the evidence of Dr. Prabhakar in his finding but considering the FSL report and the deposition of the complainant in which there are minor contradictions came up on record, however, the learned Judge has disbelieved the same ignoring the fact that as per the CR.A/491/1987 6/8 JUDGMENT deposition of doctor that it is a homicidal death. Therefore, when the medical evidence was corroborating the prosecution, therefore, minor contradiction in the deposition of the complainant should have been ignored. The learned Judge ought to have accepted the version of prosecution and ought to have convicted the accused for the offence with which he was charged. 7) As against the submissions made by the learned Additional Public Prosecutor, the learned counsel for the respondent stated that the story given by the prosecution is contrary to the record namely as per the prosecution case the incident had occurred at 7.00 p.m., however, the complaint which is exhibited at Exh.15, shows the time of incident at 12.45 p.m. in the night. Accepting the case of the prosecution as it is, then the story given by the complainant that after hearing the shouting from deceased for help, nobody came to rescue the deceased. When it is stated by the complainant that near his house, there were 30 houses situated, therefore, the version given by the complainant that none came forward to help the deceased is highly improbable. 8) As per the postmortem report which was performed by the prosecution witness PW 10 Dr. Panwala at around 8.30 p.m. and as per his report, the deceased might have died before about six hours. Therefore, the story of the prosecution for occurrence of the incident at around 7.00 p.m. on CR.A/491/1987 7/8 JUDGMENT 19.02.1986 is not corroborating and even as per the deposition of PW 12 Kantibhai Somabhai Patel Exh.32, registration of FIR was at 12.45 a.m. on 20.02.1986, they reached at the scene of incident at 2.00 p.m. and thereafter, inquest panchnama was drawn and dead body was sent for postmortem. Considering the cumulative effect of evidence of all these witnesses, according to the learned Judge, it is doubtful that witness might have been present there and hence, the learned Judge after considering the overall effect of only eye witness PW 1 Ziniyabhai, has acquitted the accused person and there is no error committed by the learned Judge and hence, the order of acquittal may kindly be upheld. Therefore, considering all these submissions made by the learned counsel for the respondent, this appeal be dismissed. 6. We have heard the learned counsel for the parties. The case rests on the evidence of the complainant eye witness PW 1 Ziniyabhai. At the time when the first incident took place, the deceased and the witness who is relative were present. It sounds improbable that the accused alone could force the deceased to the place of occurrence. 7. Another factor in the eye witness account is that the deceased was tied by a rope. This appears to be a situation which cannot stand to reason as a single man cannot be accepted to be powerful enough to over power another individual to tie him to a pole. Medical evidence on this CR.A/491/1987 8/8 JUDGMENT score is silent and there are found no ligature marks on the person of the deceased. 8. The witness wants the Court to believe that one man did everything as stated, the deceased suffered without protest and the eye witness kept on watching. The whole sequence is full of improbabilities. 9. It is noteworthy that one account is that the incident took place at round 7.00 p.m. Second account is around 10.30 p.m. According to the medical evidence, the death was occurred at about six hours before the p.m. which was conducted in the evening of next day. Thus, probable time of death is nowhere close to the stated time of death. 10. In the aforesaid circumstances, where there are highly improbable circumstances, it cannot be accepted that the approach of the trial, Court can be termed to be one which is against the law or perverse. In that background, we are not persuaded that the appeal deserves to be accepted. Consequently, the same is dismissed. The accused cannot be held guilty of the charges. Bail bond is ordered to be cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar