ARJUNBHAI VALLABHBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) An incident occurred on 26.11.1998, at about 9.15 p.m. at Daudpor faliya of Village Gangadia, where it is alleged that a group of about twenty persons attacked the house of Ratanbhai Jivanbhai Dhodia Patel. They forcibly broke-upon the entrance to the house and trespassed into the house. They dragged Ratanbhai Jivanbhai Dhodia Patel out of the house and took him away. After sometime, they brought him back in front of the house and assaulted him with bamboo stick, indiscriminately. Because of the assault, Ratanbhai suffered multiple injury, which also damaged stomach and intestines, and ultimately succumbed to the injuries. In the course of the transaction, persons, who tried to intervene, namely Dahyabhai Jivanbhai, Tulsiben Dahyabhai and Ramilaben Shankarbhai, were also attacked and hurt was caused to all of them with bamboo sticks. Dahyabhai Jivanbhai, brother of Ratanbhai, the deceased, lodged an FIR in the next morning with Anaval outpost, falling under Mahuva police station. On basis of that FIR, offence was registered and investigated. Upon investigation, it was found that the twenty assailants named by the witnesses were;

(2.) It is brought to our notice that appellant No.5 Bhagubhai Gurjibhai Dhodia Patel is absconding since 20.2.2007. Our attention is drawn to the judgment of this Court in the case of Mahendra Bhogilal Tadvi Vs. State of Gujarat, 2009 1 GLR 91, by learned APP. However, in our view, that judgment may not be applicable for the facts of the present case, for the reason that the absconding appellant is only one of the appellants and the appeal of rest of the appellants cannot be dismissed for fault on part of appellant No.5, nor can the appeal of appellant No.5 be segregated. Under the circumstances, since in this case, there is plurality of appellants, the judgment will not be applicable to the present case. Virtually, the facts, the evidence, and reasons for conviction and lastly the grounds for assailing the judgment are common and so inextricably mixed together that they cannot be separated and, therefore, the appeal is to be decided on merits. So far as the abscondence part is concerned, it would be open for the authorities concerned, to take action against the absconding appellant for his abscondence.

(3.) We have heard learned advocate Mr.D.A.Chaudhary appearing for Mr.R.J.Goswami for the appellants. He submitted that the trial Court has erred in relying on evidence of first informant Dahyabhai Jivanbhai, PW-7, Tulsiben Dahyabhai, PW-8 and Ramilaben Shankarbhai, PW-9 and Bharatbhai Dahyabhai, PW-10. He submitted that all these witnesses, they claim to be eye-witnesses, but, if their evidence is seen, the first informant says that upon seeing the crowd, he took shelter in a cupboard and shut the door, obviously, he could not have seen the incident. Mr.Chaudhary submitted further that apart from this, if the evidence of all these four eye-witnesses is seen, they suffer from the defect of improvements and omissions. The trial Court could not have relied upon their evidence.