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CR.A/384/1987 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 384 of 1987
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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STATE
OF GUJ - Appellant
Versus
KOLI
BHANA SAVJI & 9 ORS - Opponents
=================================================
Appearance :
MS. MITA
PANCHAL,LD. APP for Appellant:
MS. BANNA
DUTTA (appointed) for
Respondents.
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 29/07/2008
ORAL
JUDGMENT
(Per :
HONOURABLE MR. JUSTICE BHAGWATI PRASAD)
Present
appeal is filed by the State against the judgment of acquittal
passed by learned Sessions Judge, Amreli in Sessions Case No. 1 of
1986 dated 31/3/1987.
Heard Learned
counsels for the appellant State and the Respondents.
Learned
Trial Court after considering the case of the prosecution came to
the conclusion that this was a case where both the parties entangled
to a free fight, therefore section 149 was excluded. Regarding
identity, learned trial Judge observed that it was not possible to
identify any particular accused for any particular injury caused
because injured eye witnesses would not have been able to say who
was the author of the particular injury. In this background learned
trial Judge acquitted all the present respondents / original
accused.
Regarding
two other accused i.e. Koli Kesha Manji and Koli Manji Lakhman ?
original accused No. 6 & 8 respectively of Sessions Case No. 1
of 1986 who were convicted by the Sessions Judge under Section 302
I.P. Code, had preferred Criminal Appeal No. 366 of 1987 before this
Court. Aforesaid two accused persons had died during pendency of
their appeal being Criminal Appeal No. 366 of 1987 and therefore
their appeal came to be abated by this Court vide order dated
23/11/1994.
Since
those who were convicted have died and their appeal came to be
abated, and in the findings of the learned Sessions Judge the
respondents in the present appeal are held to be not the authors of
the injuries caused to the injured, section 149 was excluded.
Therefore there would not be any hitch in expressing agreement with
the findings recorded by the trial Court because it was a case of
free fight. In this background present appeal against acquittal
would not survive as no particular role is assigned to any of the
respondents/accused. Therefore it is difficult to reverse the
findings of the trial Court and convert the judgment of acquittal
into conviction.
Present
appeal therefore is not maintainable. In the result the appeal
fails and is dismissed. Bail bonds shall stand cancelled. Registry
is directed to send record & proceedings to the trial Court
forthwith.
[
BHAGWATI PRASAD, J ]
[
S.R. BRAHMBHATT, J ]
/vgn
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