STATE OF GUJARAT Vs. HASANBHAI IBRAHIMBHAI SINDHI

JUDGEMENT

(1.) THE State of Gujarat is before this Court by way of the present appeal under Section 378 of the Code of Criminal Procedure against judgment and order of acquittal passed by the learned Additional Sessions Judge, Vadodara in Sessions Case No.52 of 1986 dated 19.05.1986.

(2.) THE facts leading to the present appeal are set out in the judgment. It is the case of the complainant that complainant-Mansukhbhai Ramabhai Tadvi, resident of village Ratanpur, Tal. Sankheda was going to 'beed' (grass land) of Joshi Kiritkumar Kaniayalal for cutting grass with his father-Ramabhai Madhabhai (deceased), Bachubhai Desai, Ishwar Dalsukh, Uked Nana, Mansukh Vitthal and other labourers from their village at about 07.30 am. THE 'beed' in question is situated near village Damoli. When they were going, near the field of Joshi Keshav Ranchhod of their village, the accused came from the opposite side. THE accused were working as 'Simrakha' (village guard). THE accused were armed with sticks. When they came near the complainant and his group, accused Hasan Ibrabhim gave stick blows on both the legs of Mansukhbhai Ramabhai Tadvi (complainant), which were followed by blows on left hand elbow, on the right side of the head and in the back. At that time, father of the complainant-Ramabhai Madhabhai Tadvi (deceased) and Amarsinh Hirabhai, who is 'Mukadam' had intervened. Accused Hasan Ibrahim gave blows to the father of the complainant on the right hand, right eye and also on the head and other accused gave stick blows to Amarsinh on the back and also gave him kick and fist blows. On labourers accompanying the complainant making hue and cry, the accused ran away. 2.1 THE complaint was filed at Sankheda Police Station at about 12.15 pm by the complainant. THE offence was registered for an offence under Section 325 of the Indian Penal Code. Injured persons ? Mansukhbhai (complainant), Ramabhai (father of the complainant) and Amarsinh were sent to Sankheda Hospital with 'Yadi' for treatment. After giving initial treatment, the injured were sent to Government Hospital, Vadodara. THE PSI went to the scene of offence and got the panchnama of the scene of offence prepared and thereafter investigated the matter. While investigation was in progress, injured Ramabhai Madhabhai died on 17.11.1985-the next day of the incident. THErefore, offence of murder was added. Inquest panchnama was drawn; the Circle Inspector was sent 'Yadi' for drawing sketch of the scene of offence; the additional statements of the witnesses were recorded. 2.2 After the investigation, charge sheet was filed and as the offence under Section 302 of the Indian Penal Code was triable tried only by the learned Sessions Judge, the case was committed to the Court of Sessions under Section 209A of the Code of Criminal Procedure. 2.3 THE learned Additional Sessions Judge, after framing charge, examined the following witnesses:- Sr. No. Name of the witness Exh. No. 1. Dr.Sutappa Basu-P.W. No.1 10 2. Mansukhbhai Ramabhai-complainant-P.W. No.2 12 3. Amarsinh Hirabhai-injured eyewitness-P.W. No.3 14 4. Bachubhai Desaibhai-P.W. No.4 15 5. Ukedbhai Manabhai-P.W. No.5 16 6. Koyaji Bhatu-P.W. No.6 17 7. Sumitraben Amarsinh-P.W. No.7 18 8. Jashvantsinh Jagatsinh-P.W. No.8 25 2.4 Besides the aforesaid oral evidence, following documentary evidences were also taken into consideration by the learned Additional Sessions Judge:- Sr. No. Description of documentary evidence Exh. No. 1. List of muddmal property 4 2. Inquest Panchnama 7 3. Panchnama of place of offence 8 4. Map of scene of offence 9 5. Postmortem note 11 6. Complaint 13 7. Panchnama of muddamal stick 20 8. Do 21 9. Do 22 10. Do 23 11. Medical certificate 24 2.5 THE learned Additional Sessions Judge, after framing issues, appreciated the evidence led by the prosecution and on appreciation of the evidence, ordered acquittal by judgment and order dated 19.05.1986.

(3.) ON perusal of the judgment and order, we find that the learned Additional Sessions Judge has taken required pain to appreciate the evidence led before him. The learned Additional Sessions Judge has rightly recorded while recording acquittal that, 'the evidence is required to be appreciated in light of the facts of the case, more particularly for testing veracity of the evidence, one has to be careful and has to consider that whether the witness is deposing true and correct facts before the Court'. Besides that, the learned Additional Sessions Judge has rightly recorded that, 'it is the case of the accused complainant himself that the accused attacked the complainant-Mansukhbhai and seeing that, the deceased-father of the complainant and injured eyewitness intervened so as to save the complainant. But them, as the accused continued to give stick blows, the deceased sustained injuries. In that view of the matter, question of 'intention to kill' the deceased requires a careful examination'. The learned Additional Sessions Judge has taken sufficient care to appreciate the evidence of the complainant, who sustained injuries. The learned Additional Sessions Judge has minutely brought out the contradictions in the evidence of the complainant while appreciating the same in light of the evidence of the other injured eyewitness. While considering the evidence of the complainant, the learned Additional Sessions Judge has rightly noticed contradictions about recording of FIR. The complainant has deposed that, 'after the incident, he had gone to Sankheda Police Station and the FIR was lodged there'. As against that, he has also stated that, 'the FIR was recorded at the place of incident and after recording the FIR, they were sent in a cart to Sankheda Hospital'. ON taking into consideration the variance in an important matter of recording of FIR, the learned Judge has held that the witness is not reliable. ON totallity of the evidence, he has found that the evidence of these witnesses cannot be relied upon. 5.1 It is a settled position of law that in acquittal appeal, the appellate Court has to be mindful that, what is required to be tested in the acquittal appeal is whether judgment recording acquittal is so erroneous that it is required to be reversed. Otherwise, it is a settled position of law that even when two views are possible, the order of acquittal is not to be disturbed and the same is to be maintained.