CR.A/2103/2005 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2103 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 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 BHARWAD MERAMAN NATHABHAI & ORS ========================================= Appearance : MR DIPEN A DESAI APP for Appellant MR HRIDAY BUCH for Respondents ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 13/03/2008 CR.A/2103/2005 2/7 JUDGMENT ORAL JUDGMENT :(Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 The instant Criminal Appeal is preferred by the State under Section 378 of the Code of Criminal Procedure against the judgment and order delivered by learned Sessions Judge, Junagadh, on 13th of May, 2005, in Sessions Case No. 28 of 2004, whereby present respondents being accused of the said Sessions Case came to be acquitted by the Trial Court for the offences punishable under Sections 302, 143, 147, 148, 149, 323 and 504 of the Indian Penal Code as well as for the offence punishable under Section 135 of the Bombay Police Act. 2 Learned APP Mr. Dipen A Desai for the State was heard. Leave to Appeal is granted. Appeal is Admitted. Learned Advocate Mr. Hriday Buch waives for respondents No. 1 to 6. 3 Learned APP and learned Advocate for the respondents requested this Court to hear this Appeal finally as the Record and Proceedings summoned from the Trial Court is available with this Court and that they would provide extra copies of the evidence recorded during the trial and the documents produced on record. In the facts and circumstances of this matter, the request of learned Counsels appearing for the parties is granted and the Appeal is heard finally. 4 As per the prosecution case, complainant Premjibhai @ CR.A/2103/2005 3/7 JUDGMENT Kalubhai Devraj Vejabhai Koli was residing at village Plasva and was doing the work of driving was present at his house on 28th of February, 2004 with his parents and brothers. After taking supper, father of the complainant had been to take pan from nearby cabin. Thereafter, brother of the complainant – Dilip came running and stated to the complainant that a quarrel had ensued and father of the complainant was seriously injured. Complainant and his mother Manjuben had been to the pan cabin and noticed that accused Bharwad Meraman Nathabhai with iron pipe, accused Dilipsingh Gumansingh with iron pipe, accused Bhupat Chanabhai with stick, accused Bhanubhai Nathabhai Bharwad with iron pipe, accused Raja Bhanubhai Bharwad with iron pipe and accused Keshubhai Manjibhai with iron pipe, were indiscriminately beating the father of the complainant. Accused Dilip and accused Meraman had inflicted injuries on legs and hands of the father of the complainant. Dilipbhai intervened in the quarrel and accused had also beaten with pipe on left hand wrist of Dilipbhai. Accused Meraman caused injury to mother of the complainant. Thereafter in one auto rickshaw, all the six accused absconded. While they were running away, accused Meraman threatened the complainant that complainant was preferring applications against the accused in respect of their quarry. Father of the complainant then was brought to Junagadh Civil Hospital. He was seriously injured and on account of injuries he died. Postmortem was conducted on 29th of February, 2004. The deceased was Devraj Vejabhai. 5 A complaint came to be filed in this respect before Junagadh CR.A/2103/2005 4/7 JUDGMENT Taluka Police Station and on crime being registered, PSI Manepara was entrusted with the investigation and he filed charge sheet against all the six respondents. Learned Judicial Magistrate, First Class, committed this case to the Court of Sessions at Junagadh, which was numbered as Sessions Case No. 28 of 2004. Vide Exhibit-1, charge was framed against all the six respondents and was read over to them and each of the respondents pleaded not guilty and, hence, they were put to trial. To prove the prosecution case, Dr. Rameshkumar Arjanbhai Musadia is examined at Exhibit – 35, who had treated the deceased at 11.00 p.m. on 28th of February, 2004. In his deposition, he described the injuries received by the deceased and stated that on 29th of February, 2004, deceased Devaraj Vejabhai died at 2.20 a.m. He also stated that injuries were serious and sufficient in ordinary course of nature to cause death. This witness also had examined witness Manjulaben Devraj, witness Premji Devraj and Dilip Devraj. He produced on record the injury certificates in this respect. 6 Dr. Mukesh Revashankar Mehta examined by the prosecution at Exhibit -49 is the witness, who conducted postmortem on the deceased on 29th of February, 2004. According to him, the cause of death was multiple injuries on the body of the deceased. 7 Prosecution also examined eye witnesses i.e. Premji @ Kalu Devraj, at Exhibit-43, Manjuben Devraj, widow of the deceased at Exhibit-45 and Delip Devraj, son of the deceased at Exhibit-46. According to all these CR.A/2103/2005 5/7 JUDGMENT three witnesses, none of them noticed the incident and when they reached near the pan cabin, they found deceased in bleeding condition. There was darkness at that time and none of the accused was present at the spot of the incident. All the three witnesses were turned hostile and were cross-examined by the prosecution, but nothing fruitful to the prosecution could be extracted. Divaliben, examined at Exhibit – 47 is also an eye witness, but she has also not supported the prosecution case. One more witness Bhupat Kababhai Tariya, examined at Exhibit -70, stated that he had not brought the accused at village Khadiya on disguise of one bhajan programme. It was alleged by the prosecution that this witness had brought all the accused to village, but he has not supported the prosecution case. 8 Panch witnesses of the scene of offence Shashikant Vajeram, examined at Exhibit-21 and Dilipbhai Khimabhai, examined at Exhibit – 23 also did not support the prosecution case. Recovery panchas of panchnama, examined at Exhibit – 24 Vallabhbhai Chhaganbhai Dabhi and at Exhibit-26 Karshanbhai Ranchhodbhai also did not support the prosecution case. Panchas of arrest panchnama also turned hostile. 9 This is all the evidence of the prosecution. 10 We have carefully gone through the Record and Proceedings of the Trial Court. We have reappreciated the evidence, as aforesaid. We have considered the vital features of the case and reasonable probabilities arising CR.A/2103/2005 6/7 JUDGMENT out of the circumstances of the case. We have also taken into consideration the reasons assigned by the Trial Court for the acquittal and the contentions raised by learned APP and learned Advocate for the respondents. 11 It is crystal clear that none of the witnesses even two sons and widow of the deceased did not support the prosecution case. Though it is proved beyond doubt that the death of the deceased was culpable homicide, there is no other evidence to connect the accused with the incident. None of the panchas has supported the prosecution case and recovery panchas for the recovery of the weapons and arrest of the accused also could not be proved. Even panchnama at Exhibit–31, discovery of iron pipes, from the accused Raja Bhanubhai Bharwad could not be proved because panchas of the panchnama firstly did not support the prosecution case and it is found from the record that the Investigating Officer Mr. Manepara could not be examined by the prosecution. It is revealed from application at Exhibit – 72 that though the trial was adjourned for the evidence of Investigating Officer Mr. Manepara and though the summons was served upon him, he could not remain present before the court and application at Exhibit-72 therefore preferred by APP on 12th of May, 2005 to adjourn the case. This application was rejected by the Trial Court and, therefore, the discovery from the accused also could not be proved. 12 This is an appeal against an order of acquittal. The scope of the appeal against an order of acquittal is well settled. The order of acquittal CR.A/2103/2005 7/7 JUDGMENT cannot ordinarily be interfered with even if the second legitimate view is possible from the evidence recorded during the trial, than the view taken by the Trial Court. In this case, the question of second view does not arise as none of the witnesses supported the prosecution case and that there is no other circumstances to connect the accused with the crime. It is well settled that, unless and until, the appellate court comes to the conclusion that the findings of the Trial Court are perverse, manifestly erroneous, palpably wrong and demonstrably unsustainable, no interferenceb is permitted3 in the order of Trial Court. We have gone through the appreciation undertaken by the Trial Court and the conclusions arrived at thoroughly. We have found that the findings arrived at by the Trial Court cannot be labelled as perverse or unsustainable as due appreciation of evidence is undertaken by the Trial Court. In view of this, no interference is warranted in the judgment and order impugned in this Appeal and, hence, the following Order : “Appeal stands dismissed.” (J. R. VORA, J.) (M. R. SHAH, J.) pnnair