CR.A/1112/1985 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1112 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 ? ========================================= = THE STATE OF GUJARAT Versus AHER VAJSI MERAG AND OTHERS ========================================= =Appearance : MR MAULIK NANAVATI, ADDL PUBLIC PROSECUTOR for the Appellant NOTICE SERVED for Opponent(s) : 1, 12, 16, 24, MR ND NANAVATI for Opponent(s) : 2 - 11,13 - 15,17 - 23,26 - 27. - for Opponent(s) : 0.0.0 ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 28/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/1112/1985 2/6 JUDGMENT 1. The present appeal calls in question the correctness of judgment and order dated 25.06.1985 passed by the Additional Sessions Judge, Jamnagar in Sessions Case No. 27 of 84 acquitting the present respondents of offences punishable under Sections 147, 148, 149, 302 of the Indian Penal Code and Section 25(1) and 27 of the Arms Act. 2. Twenty seven persons were put on trial for rioting and murder of Aher Bogha Karsan, Ramsi Bogha, Mulu Bogha, Vajsi Bogha and Khima Hamir. All the accused persons were alleged to have formed an unlawful assembly and armed with firearms, sharp weapons and sticks are stated to have attacked the deceased and one Dosa Kesar and caused fatal injuries to the deceased at about 9:00am in the sim of village Asota. While Bogha Karsan, Ramsi Bogha and Vajsi Bogha are stated to have died on the spot, Mulu Bogha and Khima Hamir succumbed to their injuries on their way to the hospital. Dosa Kesar who was accompanying the deceased but fled on being attacked by the accused is stated to have informed one Foga Bogha about the incident who eventually registered a complaint with the Khambhalia Police Station. 3. As many as 27 witnesses were examined by the prosecution in support of its case, including the doctors who conducted autopsy of the deceased and panch witnesses. It is not in dispute, however, that all the deceased died a homicidal death. Now coming to the witnesses examined by the prosecution to connect the respondents with the crime, the Trial Court has observed that all the witnesses - Kesur Jesa PW-5, Alsi Jesa PW-6, Kana Jesa PW-7, Amriben Jesa PW-8, and Muriben Jesa PW-9, who were residing near the wadi, where the CR.A/1112/1985 3/6 JUDGMENT incident took place have not supported the case of the prosecution and have been declared hostile. 4. The entire prosecution case rests on Dosa Kesar (PW-4) who was with the deceased at the time of attack and the evidence of Foga Bogha (PW-3) who lodged complaint with the police. The Trial Court has found that the evidence of Dosa Kesar is not of much help to the prosecution as he admits to have run away on seeing the assailants and thus has not witnessed the incident. He also does not state as to who caused what injury to the deceased. As regards Foga Bogha, he is not an eye-witness and was only informed about the incident by Dosa Kesar. His evidence has also not been found reliable. Even circumstantial evidence put forth by the prosecution did not connect the accused with the crime. The Trial Court, therefore, acquitted all the accused persons. 5. We have heard Mr. Maulik Nanavati, Additional Public Prosecutor for the State and Mr. Nirad Buch, Advocate for the respondents. We have perused the judgment of the Trial Court and have also gone through the entire record of the case. 6. Mr. Nanavati, learned Counsel for the State, has strenuously argued that the Trial Court has wrongly disbelieved the evidence of PW 4 -Dosa Kesar, more particularly when he has witnessed the incident and identified the assailants. He has submitted that despite the other witnesses having turned hostile, conviction can be recorded on the evidence of one witness if he is found to be reliable. There cannot be any dispute regarding the said proposition of law. It is the quality of evidence and not the number of witnesses which can bring home the charge of guilt. However, in the instant case, as CR.A/1112/1985 4/6 JUDGMENT rightly observed by the Trial Court, the evidence of Dosa Kesar is not convincing. 7. In the fight that ensued between two parties, one Parbat Pala is also stated to have died and for which a cross complaint has been registered by the assailants. Dosa Kesar does not speak about death of Parbat Pala nor does death of Parbat Pala find mention in the entire investigation. Also Dosa Kesar admits that immediately on hearing the first gun shot, he started running to save his life and hid himself in the neighbouring house. He, therefore, does not know what actually happened and how the deceased sustained injuries. Also, he has not been able to name the persons who formed the attacking group. The Trial Court has noticed that this witness with great difficulty could give names of few persons only and surprisingly, some such names do not find mention in the police complaint. 8. The Trial Court, therefore, arrived at a conclusion that the evidence of this witness does not inspire confidence and is unreliable. The Trial Court has also noticed several material contradictions in the evidence of this witness and Foga Bogha as to the names of assailants, place of incident, who removed the deceased to the hospital and how they were removed. Some names not stated by Dosa Kesar have been given in the complaint lodged by Foga Bogha. It is indeed surprising as to how Foga Bogha, who has not seen the incident and was only conveyed about it by Dosa Kesar mentioned the names of those persons when he was not informed about them by Dosa Kesar. As regards the evidence of recovery of weapon of offence by the accused, we find that the same is not at all CR.A/1112/1985 5/6 JUDGMENT convincing. The weapon allegedly used by the accused and recovered at their instance is a tamancha whereas cartridges fired from a 0.12 bore pistol were found in the body of the deceased and were recovered from the site of offence. Therefore, the Trial Court has rightly observed that the corroborating evidence adduced by the prosecution also does not support its case and in fact casts a doubt over the version given by the witnesses. 9. We find in the case that the investigation was set in motion with the lodging of the F.I.R. by Foga Bogha PW 3. He is not an eye witness. Source of information of this witness is PW 4 Dosa Kesar. In the FIR, names of such persons find mention which were not given out by PW 4 Dosa Kesar. Thus over and above the names given by Dosa Kesar PW 4, some more names have been added or included by complainant. Thus, the entire edifice of the prosecution case is replete with over-implication. 10. According to the PW 4, he has not seen the actual incident. This speaks for his ignorance of the death of a person from the accused side. If he was not aware of the death from the side of the accused then it stands to reason that he does not know the details of the incident. It was a melee where both the parties quarreled and sustained injury. Inference of pre-fight can be safely drawn. In absence of assertion of individual participation, it cannot be said that the conclusion of the trial Court is perverse or not in accordance with law. 11. For the foregoing reasons, we do not find that the findings given by the Trial Court for acquitting the accused are CR.A/1112/1985 6/6 JUDGMENT perverse, conjectural or contrary to the evidence on record. On the contrary, we are of the considered opinion that the reasons are cogent, sufficient and correct. No interference is called for by this Court. The appeal must fail and is, accordingly, dismissed. Bail bonds stand cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar