STATE OF GUJARAT Vs. AHIR VISA RAWAT

JUDGEMENT

(1.) In this appeal against acquittal the appellant-State has challenged the order of acquittal rendered by the learned Additional Sessions Judge Bhavnagar in sessions case No. 43 of 1980 in favour of respondents Nos. 1 and 2 original accused Nos. 1 and 2. Original accused No. 3 was also acquitted. The State appeal against her acquittal came to be dismissed by this court at admission stage while the appeal against acquittal was admitted only against respondents Nos. 1 and 2 original accused Nos. 1 and 2 respectively. We shall refer to respondents Nos. 1 and 2 with reference to their original position in the sessions Case as accused Nos. 1 and 2 respectively in the later part of this judgment.

(2.) The prosecution case in short against the accused is that in the morning of 28.3.1980 an incident occurred at village Nana Jadara in Mahuva taluka of Bhavnagar district near the Wada or open court-yard of the complainant Manglubhai Tapubha whereunder the complainant received serious injuries at the hands of the accused and his father Tapubha lost his life. The accused are the next door neighbours of the complainant and their residential houses are situated side by side. They are also having back yards or Wadas behind their residential houses which have common intervening boundaries on the side where these two Wadas adjoin each other..The prosecution case is that the complainant and his father were staying in huts constructed by them in their field called wadi situated on the outskirts of their village Came to morning of the incident by about 8-30 a.m. the complainant who had come to Purchase certain household things from the village came to know that the accused were trying to encroach upon a part of their Wada adjoining their residential house in the village. The complainant thereupon returned to his hut situated in the Wadi and conveyed this information to his father. Thereupon the complainants father rushed to the spot with a view to finding out the truth about the complaint against the accused. The complainant also followed. One Vashram Shiba whose services were requisitioned by the complainants father for spreading insecticide in his field also followed the complainant and his father. When they reached their Wada and came near the hedge intervening between the Wadas of the accused and the complainant accused No. 1 Visa Ravat accused No. 2 Gabha Ravat and their mother Sajuben original accused No. 3 were found working in their Wada. They started abusing them when they noticed them. The accused were armed. Accused No. 1 had an axe accused No. 2 had a dharia while accused No. 3 was armed with a stick as well as a sharp cutting instrument like a dagger. According to the prosecution the accused mounted attack on the complainant and his father. Accused No. 1 gave an axe blow on the right shoulder of the complainant. Accused No. 3 gave stick blows and knife blows to the complainant while accused No. 2 gave a dharia blow on the head of the deceased Tapubha. They also started beating the father of the complainant. Deceased Tapubha fell down on the spot after becoming unconscious. The complainant also sat down on spot having received bleeding injuries The accused then fled from the scene of offence. Ultimately the injured complainant as well as his father were removed to Mahuva hospital when they were examined by Dr. Varu ex. 14. The complainant and his father were admitted as indoor patients. The complainant was later on removed to Sir T. Hospital Bhavnagar for further treatment. In the meantime Dr. Varu informed the police station officer Mahuva about the incident. The police station officer came to the hospital and recorded the first information report of the complainant dictated by the complainant. Dr. Varu also examined accused Nos. 1 and 3 who had later on come to Mahuva hospital. We will later on refer to the injuries noticed by Dr. Varu on accused Nos. 1 and 3. Pursuant to the complaint filed by the complainant before the police station officer Mahuva investigation ensued. Statements of various witnesses were recorded panchanama of the scene of offence was made. In the meantime the complainants father succumbed to his injuries. Dr. Charaniya ex. 20 performed the post-mortem examination on the dead body of the deceased. The post-mortem notes are proved and exhibited at ex. 21. Accused Nos. 1 and 2 who had presented themselves in police station at Mahuva were arrested while accused No. 3 was arrested later on from Mahuva hospital where she was admitted as indoor patient. Ultimately all the three accused were chargesheeted for the offences under sections 302 and 326 read with section 34 I.P.C. The learned J.M.F.C. Mahuva committed the accused to stand their trial before the Sessions court at Bhavnagar. Sessions case against them was registered as sessions case No. 43 of 1980 before the learned Additional Sessions Judge Bhavnagar. Charge against them was framed by the learned trial Judge. The accused pleaded not guilty to the charge. The learned trial Judge thereafter held the trial recorded evidence of the prosecution witnesses and after hearing the learned counsel for both sides came to the conclusion that the prosecution had not been able to establish its case against the concerned accused and hence acquitted all the three accused. As noted earlier the State has preferred the appeal before this court against all the three accused. But earlier at admission stage this court was pleased to dismiss the appeal against acquittal against accused No. 3 and appeal against accused Nos. 1 and 2 was admitted to final hearing and that is how it has reached final hearing before us. ... ... ... .... ...

(3.) We may now proceed to deal with the nature of the prosecution evidence led at the trial against tale accused in support of the prosecution case which we have noticed earlier. However before we do so we must mention the fact that the present appeal is an appeal against acquittal. In the light of the settled legal position even though we are entitled to reappreciate the entire evidence if we ultimately find that the view taken by the learned trial judge is equally possible and reasonable in the light of the evidence on record no case for our interference in acquittal appeal can be said to leave been made out by the appellant. If however it is found that the appreciation of evidence made by the learned trial Judge is lope sided perfunctory and the conclusion reached by him on the evidence on record appears to be an impossible one or is an unreasonable one we well be entitled to interfere with the order of acquittal and pass proper orders against the concerned accused. In this connection we may have a birds eye view of the settled legal position. In the case of K. Gopal Reddy v. State of A.P. A.I.R. 1979 S.C. 387 Chinappa Reddy J. speaking for the Supreme Court has made the following pertinent observations in connection with the powers of the appellate court in appeal against acquittal:-