STATE OF GUJARAT Vs. SHASHIKANT MOTIBHAI MACHHI

JUDGEMENT

(1.) The present appeal is directed against the judgment and order dated 15.5.2006 passed by the learned Additional Sessions Judge, Fast Track Court No.4, Panchmahal at Godhra in Sessions Case No.255 of 2005 whereby present respondents-original accused were acquitted of the charges levelled against them.

(2.) The case of the prosecution in brief is that on 27.2.2002 pursuant to the Godhra train carnage, the respondents accused armed with deadly weapons formed an unlawful assembly and on 1.3.2002 at about 11 'O clock, at Village Munpur, Taluka Kadana, District Panchmahal, created an atmosphere of terror and the mob has set on fire the houses as well as the shops belonging to the complainant Yusufbhai Satarbhai Shaikh as well as witnesses Mahammad Yusuf, Salim Sattar and Rauf Sathar Shaikh and looted jewellery and cash of Rs. 15,68,800/- and ultimately caused damage to the tune of Rs. 9,17,000/- and thereby committed the offences punishable under sections 143, 147, 436, 395, 398 and 120B of the Indian Penal Code and as the respondents are alleged to be the assailants in committing the commission of crime, a complaint came to be lodged at Ditwas Police Station being C.R.No.I-27 of 2002. Investigating Officer in pursuance to the said complaint has carried out investigation by recording statements of relevant witnesses, arresting the accused persons pursuant to the material found against them and recovering the muddamal by drawing panchnama and upon completion of investigation, a charge sheet came to be filed against the accused persons on 5.6.2005.

(3.) Learned APP, Mr. J.K. Shah, appearing for the State has contended that a serious error has been committed by the learned trial Judge in passing the order of acquittal. There was no justifiable reason to grant even the benefit of doubt to the respondents accused. While contending this, Mr. Shah has drawn the attention of this Court to a charge which has been framed on 27.2.2002 and further has drawn the attention to the deposition of the complainant-Yusufbhai Satharbhai Shaikh, P.W.No.10 and contended that though this witness has substantiated the case of the prosecution, the learned Judge has misconstrued this evidence and wrongly given benefit of doubt. Mr. Shah has further taken us to the evidence of P.W.No.8, Salambhai Satharbhai Shaikh, examined at Exh.27 and contended that though this witness has not supported the case of the prosecution, a reasonable inference can be drawn from the version of this witness in co-relation with other material on record. Mr. Shah has further taken us to the evidence of another witness, Raufbhai Satharbhai Shaikh, P.W.No.9 and raised similar contention that though this witness has been declared as hostile, his examination to some extend is supporting the case of the prosecution and therefore, a serious error is committed by the learned trial Judge. In addition thereto, Mr. Shah has taken us to other parts of evidence brought to be pressed into service to prove the case and for that, P.W.No.13, Mahammad Yusuf Abdul Rahim Shaikh, examined at Exh.40 is also stated to have supported the case of the prosecution. The entire narration of this witness, according to Mr.Shah, is establishing the guilt of the respondents accused and since this deposition has not been appreciated in its proper perspective, the finding arrived at by the learned trial Judge is perverse to the record. Similarly, Mr.Shah has drawn attention to the deposition which is produced at Exh.53 of P.W.No.17, Sursinh Tajsinh Ravat, who at the relevant point of time was Mamlatdar of Kadana and looking to this deposition, Mr. Shah has contended that he has substantially supported the case of the prosecution. The entire narration of evidence of this witness clearly indicates that a serious error is committed by the learned trial Judge. Further material fact which has been pointed out by Mr. Shah is that the respondents accused have been identified indirectly by the witness so much so that evidence of hostile witnesses no doubt cannot be relied upon, but a reference is coming out about the incident in question which the respondents accused are very much alleged to have committed and therefore, the learned trial Judge has straightaway in a slip slot manner given benefit of doubt without assigning any cogent reason and therefore, such an error of exercise of jurisdiction requires to be corrected by this Court and ultimately by referring to these witnesses and the evidence collected by the prosecution, Mr. Shah has requested the Court to allow the appeal by quashing and setting aside the impugned order of acquittal passed by learned Additional Sessions Judge.