CR.A/404/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 404 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 MANGALBHAI JHINABHAI RATHOD ========================================= =Appearance : MR PD BHATE, ADDL PUBLIC PROSECUTOR for the Appellant MS SHILPA R SHAH for the Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 04/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been filed by the State of Gujarat CR.A/404/1987 2/6 JUDGMENT against the judgment and order dated 7.3.1987 passed by the learned Additional Sessions Judge, Baroda in Sessions Case No.138 of 1986, whereby the learned Judge has acquitted the accused- respondent of the offence punishable under Section 302 of the Indian Penal Code. 2. The prosecution case, in brief, is that on 21.4.1986, accused Mangalbhai is alleged to have quarreled with his wife for not preparing food. Earlier also, several time, they had quarreled and Narmadaben- deceased went to her father's house but again after conciliation, she returned to her matrimonial house. 3. On the day of incident, accused Mangalbhai started beating his wife Narmadaben with stick and rubber horse pipe and because of several injuries, Narmadaben expired. Thereafter, the accused went to the house of the mother of Narmadaben at Raika. He told the mother and the brother of Narmadaben that Narmadaben is sick and come to see here. Thereafter, mother of the deceased Gangaben and brother went to Dodka village, there they found that Narmadaben is dead. It was allegedly because the accused had beaten Narmadaben with stick and rubber horse pipe. Mother of the deceased Gangaben and brother went back at Raika village and Gangaben mother of the deceased informed this incident to her another son Rameshbhai Mangalbha. Rameshbhai Mangalbhai lodged a police complaint at Bhadarva Police Station. 3. After the Sessions Court framed charge, the same being denied by the accused, the trial took place. The prosecution CR.A/404/1987 3/6 JUDGMENT has examined 8 witnesses and several documentary evidences were also produced to prove guilt against the accused. 4. It is submitted by learned Additional Public Prosecutor Mr. P.D. Bhate that the prosecution has examined 3 eye witnesses, (1) PW 1 Swaroopben Fulabhai Exh.12, (2) PW 6 Fulabhai Jivabhai Exh.18, and PW 2- minor daughter of the deceased Laxmi Mangabhai aged about 8 years Exh.13. Out of these eye witnesses, PW 1 Swaroopben Fulabhai and PW 6- Fulabhai Jivabhai have turned hostile. Only PW 2 minor Laxmi Mangalbhai has supported the case of the prosecution. 5. Minor Laxmi Mangalbhai says in her deposition that my father has beaten my mother with stick and rubber horse pipe. She had been beaten by the accused on her whole body. She identified the stick and the clothes which were worn by her mother at the time of incident. She further says in her deposition that neighbours came at the place of incident but they did not try to save her mother. She further says that she did not return with her mother and brother of the deceased at Raika. She says in her deposition in para 11 that when she came, her mother was lying on soil. 6. The prosecution has examined PW 3 Exh.14 Dr. Rajnikant Biharilal Patel. He says in his deposition that on 22.4.1986, at about 4.00 p.m., dead body was brought before him. He found 17 external injuries on dead body. As per the deposition of Doctor, injuries were possible with stick and rubber horse pipe. In his cross-examination, he says that if immediate treatment would have been given, the deceased would have survived. He also says that because of these injuries, death is CR.A/404/1987 4/6 JUDGMENT possible. He produced P.M. report at Exh.9. 7. The prosecution has also examined one important witness PW 7 Exh.21- Rameshbhai Mangalbhai, who is brother of the deceased, who did not lodge complaint. According to this witness, accused Mangalbhai had come at his place and informed us that, 'Narmadaben is sick and you come to see her'. He further says in his cross-examination that Laxmi Mangalbhai was staying at Raika. He lodged F.I.R., which is at Exh.22. 8. The prosecution has also examined other witnesses PW 5, Exh.17 Pratapsinh Chhatrasinh, Head Constable and PW 8 Exh.24 Sureshsinh Chandrasinh Chavda, Police Sub Inspector- Investigating Officer. Thus, as per the submission of the learned Additional Public Prosecutor, the prosecution has proved the case beyond reasonable doubt and he heavily relied upon the deposition of PW 2 Laxmi Mangalbhai daughter of the deceased. 9. Against the submission of the learned Additional Public Prosecutor, Shilpa Shah, learned advocate for the respondent, submitted that the learned Trial Court has not erred in acquitting the accused under Section 302 of the Indian Penal Code. She submitted that Laxmi Mangalbhai PW 2 has clearly stated in cross-examination that she did not go to Raika with mother and brother of the deceased. The learned advocate for the respondent heavily relied upon the deposition of Rameshbhai Mangalbhai PW 7 Exh.21. According to the deposition of this witness, accused himself went at Raika and informed mother and brother of the deceased that CR.A/404/1987 5/6 JUDGMENT Narmadaben is sick and you come. Learned advocate for the respondent submitted that Laxmi Mangalbhai (minor) was not at Dodka village at the time of incident because this witness Rameshbhai Mangalbhai has clearly stated in his deposition that Laxmi Mangalbhai was staying at Raika. Moreover, at Raika village, police took thumb impression of Laxmi Mangalbhai on writing and police has informed Laxmi to make statement that accused Mangalbhai has killed her mother. 10. As per the deposition of PW 2, Laxmi Mangalbhai as well as Rameshbhai Mangalbhai PW 7, it does not inspire confidence and the learned Sessions Judge has rightly passed order of acquittal giving benefit of doubt to the accused. She says that the order passed by the learned Trial Court may be upheld. 11. We have heard the learned counsel for the parties and have given our thoughtful consideration to the material available on record. The principal witness of the prosecution is the child witness PW 2 Laxmi. Her very presence at the scene of occurrence is a question of serious doubt. Her ordinary place of residence according to PW 7 Rameshbhai was not her own house. She used to live at her maternal's residence. Thus, without there being any cogent proof of the fact that on the day of incident, she was at the scene of occurrence, it does not show to reason that one could be on the scene occurrence. She being a child. It is commonly understood that children live in a make believe world and thus possibility cannot be ruled out that she was a got up witness. CR.A/404/1987 6/6 JUDGMENT 12. The other witness PW 7 cannot be considered to be a witness of incident. PW 1 Swaroopben and PW 6 Fulabhai have not supported the prosecution case, having turned hostile. Thus, there was no admissible evidence on record to sustain the charges as framed against the accused. Thus, if the Trial Court has not found any case having made out against the accused, it cannot be said that any illegality was committed. 13. In view of the aforesaid, it will not be considered prudent if the reasoned findings of the Trial Court acquitting the accused are disturbed. Consequently, we do not consider it appropriate to disturb the same and consequently we affirm the same. The appeal of the State is, therefore, dismissed. Bail bond of the accused is cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar