STATE OF GUJARAT Vs. BHOVANBAI ALIAS BHAGWANBHAI BAVABHAI

JUDGEMENT

(1.) The present Criminal Appeal is filed by the State against the judgment and order, dated 19.1.1994, passed by the learned Sessions Judge, Valsad at Navsari in Sessions Case No.1 of 1990 whereby, the learned Sessions Judge was pleased to acquit all the respondents accused from the offence punishable under Sections 143, 144, 147, 148, 149, 342, 323 r/w Section 302 of the Indian Penal Code.

(2.) Brief facts leading to the case of prosecution is that on 25.9.1989 at about 22.00 to 24.00 hours at Gaurishankar Maholla, Patel Faliya of village Jalalpore, the respondents accused, who were armed with weapons, assembled with a common intention, conspired and attacked one Laljibhai and Kishorbhai Somabhai, who were initially brought to the house of Laljibhai at about 10.00 hours in the night. It is the case of the prosecution that serious injuries have been caused by all the accused persons and their infliction was sufficient enough to cause death and on account of this, Kishorbhai Somabhai succumbed to the injuries, where as out of this incident the injured witness Laljibhai and Savitaben were detained illegally against their wish and thereby, these accused persons in connivance with each other have committed an offence. The complaint further revealed that initially Bhavanbhai Dhirubhai along with two other persons on 25.9.1989 had brought Laljibhai and Kishorbhai at their place in the vehicle of Dhirubhai and at that point of time, it was noticed that situation of Laljibhai and Kishorbhai was serious and were not in a position to speak. Both these persons were shifted with the help on the first floor and the persons then went away. The case has further travelled on the assertion that thereafter, some more 10 persons came to the house in which Dhirubhai and Kalubhai were also noticed, who came around 10.30 to 11.00 hours and had beaten up and threatened of dire consequences. The attacked was made in what manner is described in detail in the complaint in which it has been specifically alleged that accused No.2 Dhirubhai gave 4 to 5 blows of hockey to Kishorbhai, who died and other accused persons had beaten by giving fist blows. On account of this episode which continued for about 15 to 20 minutes, Kishorbhai was badly injured and thereafter, the persons went away. So much so that after a further period of half an hour, again accused Dhirubhai and Kalubhai both came with other accused persons, namely, accused Nos.4, 5 and 6 in which Dhirubhai was armed with hockey and Kalubhai was having no weapon and again caught Kishorbhai and gave blows on several parts of the body. This again continued for about 10 minutes and then, they went away. Subsequently, on next morning, the injured were taken to the hospital for treatment but, Kishorbhai succumbed to the injuries. Thereafter, in the morning hours at about 5.00 O'clock, police came to the spot which ultimately led to filing of the complaint before the Jalalpore Police Station being C.R.No.107 of 1989 for offence punishable under Sections 302, 147, 149, 342 and 323 of IPC. Initially, one Vitthalbhai Kuvarji gave an application, who is the neighbour of Laljibhai Patel, who is injured and pursuant to which, the complaint appears to be set in motion which application dated 26.9.1989 is produced at Exh.15. Pursuant to this complaint, the Investigating Officer carried out the investigation in detail, drawn panchnama of scene of offence, also drawn the panchnama for arrest of the accused, also prepared the inquest panchnama and conducted all necessary steps to investigate the complaint and after collecting the entire material during the course of investigation, a charge-sheet came to be prepared and the same was submitted to the concerned Judicial Magistrate. Since the incident in question is a serious offence, not triable by the learned Magistrate, the same was committed to the sessions and after committal order, it was registered as Sessions Case No.1 of 1990 before the learned Sessions Judge, Valsad at Navasari. The trial court, after hearing both the sides, framed the charge at Exh.1 which was made to understand to the accused persons. But since the respondents accused denied the offence being committed, the case was then put up for trial. With a view to prove the case, the prosecution has led the evidence in the form of oral as well as documentary evidence. The prosecution has examined following witnesses to prove the case against the respondents accused. List of those witnesses examined by the prosecution is reproduced hereinafter ; <FRM>JUDGEMENT_277_LAWS(GJH)3_2017_1.html</FRM>

(3.) Mr.L.R.Poojari, learned APP for the appellant State has vehemently contended that there is a serious error committed by the trial court in passing the order of acquittal, more particularly when with the aid and assistance of injured witness and other independent witnesses, the prosecution has proved the case beyond the reasonable doubt. Learned APP has, by referring to several evidences forming part of the paper book compilation, contended that there appears to be serious error committed by the trial court which warrants interference of this Court. While contending this, learned APP has drawn our attention to the various evidences in the following manner :