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CR.A/1112/1985 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1112 of 1985
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
==========================================
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 ?
==========================================
THE
STATE OF GUJARAT
Versus
AHER
VAJSI MERAG AND OTHERS
==========================================Appearance
:
MR MAULIK
NANAVATI, ADDL PUBLIC PROSECUTOR for the
Appellant
NOTICE SERVED for Opponent(s) : 1, 12, 16, 24,
MR ND
NANAVATI for Opponent(s) : 2 - 11,13 - 15,17 - 23,26 - 27.
- for
Opponent(s) : 0.0.0
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 28/07/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
1. The
present appeal calls in question the correctness of judgment and
order dated 25.06.1985 passed by the Additional Sessions Judge,
Jamnagar in Sessions Case No. 27 of 84 acquitting the present
respondents of offences punishable under Sections 147, 148, 149, 302
of the Indian Penal Code and Section 25(1) and 27 of the Arms Act.
2. Twenty
seven persons were put on trial for rioting and murder of Aher Bogha
Karsan, Ramsi Bogha, Mulu Bogha, Vajsi Bogha and Khima Hamir. All
the accused persons were alleged to have formed an unlawful assembly
and armed with firearms, sharp weapons and sticks are stated to have
attacked the deceased and one Dosa Kesar and caused fatal injuries to
the deceased at about 9:00am in the sim of village Asota. While
Bogha Karsan, Ramsi Bogha and Vajsi Bogha are stated to have died on
the spot, Mulu Bogha and Khima Hamir succumbed to their injuries on
their way to the hospital. Dosa Kesar who was accompanying the
deceased but fled on being attacked by the accused is stated to have
informed one Foga Bogha about the incident who eventually registered
a complaint with the Khambhalia Police Station.
3. As
many as 27 witnesses were examined by the prosecution in support of
its case, including the doctors who conducted autopsy of the deceased
and panch witnesses. It is not in dispute, however, that all the
deceased died a homicidal death. Now coming to the witnesses
examined by the prosecution to connect the respondents with the
crime, the Trial Court has observed that all the witnesses – Kesur
Jesa PW-5, Alsi Jesa PW-6, Kana Jesa PW-7, Amriben Jesa PW-8, and
Muriben Jesa PW-9, who were residing near the wadi, where the
incident took place have not supported the case of the prosecution
and have been declared hostile.
4. The
entire prosecution case rests on Dosa Kesar (PW-4) who was with the
deceased at the time of attack and the evidence of Foga Bogha (PW-3)
who lodged complaint with the police. The Trial Court has found that
the evidence of Dosa Kesar is not of much help to the prosecution as
he admits to have run away on seeing the assailants and thus has not
witnessed the incident. He also does not state as to who caused what
injury to the deceased. As regards Foga Bogha, he is not an
eye-witness and was only informed about the incident by Dosa Kesar.
His evidence has also not been found reliable. Even circumstantial
evidence put forth by the prosecution did not connect the accused
with the crime. The Trial Court, therefore, acquitted all the
accused persons.
5. We
have heard Mr. Maulik Nanavati, Additional Public Prosecutor for the
State and Mr. Nirad Buch, Advocate for the respondents. We have
perused the judgment of the Trial Court and have also gone through
the entire record of the case.
6. Mr.
Nanavati, learned Counsel for the State, has strenuously argued that
the Trial Court has wrongly disbelieved the evidence of PW 4 -Dosa
Kesar, more particularly when he has witnessed the incident and
identified the assailants. He has submitted that despite the other
witnesses having turned hostile, conviction can be recorded on the
evidence of one witness if he is found to be reliable. There cannot
be any dispute regarding the said proposition of law. It is the
quality of evidence and not the number of witnesses which can bring
home the charge of guilt. However, in the instant case, as rightly
observed by the Trial Court, the evidence of Dosa Kesar is not
convincing.
7. In
the fight that ensued between two parties, one Parbat Pala is also
stated to have died and for which a cross complaint has been
registered by the assailants. Dosa Kesar does not speak about death
of Parbat Pala nor does death of Parbat Pala find mention in the
entire investigation. Also Dosa Kesar admits that immediately on
hearing the first gun shot, he started running to save his life and
hid himself in the neighbouring house. He, therefore, does not know
what actually happened and how the deceased sustained injuries.
Also, he has not been able to name the persons who formed the
attacking group. The Trial Court has noticed that this witness with
great difficulty could give names of few persons only and
surprisingly, some such names do not find mention in the police
complaint.
8. The
Trial Court, therefore, arrived at a conclusion that the evidence of
this witness does not inspire confidence and is unreliable. The
Trial Court has also noticed several material contradictions in the
evidence of this witness and Foga Bogha as to the names of
assailants, place of incident, who removed the deceased to the
hospital and how they were removed. Some names not stated by Dosa
Kesar have been given in the complaint lodged by Foga Bogha. It is
indeed surprising as to how Foga Bogha, who has not seen the incident
and was only conveyed about it by Dosa Kesar mentioned the names of
those persons when he was not informed about them by Dosa Kesar. As
regards the evidence of recovery of weapon of offence by the accused,
we find that the same is not at all convincing. The weapon allegedly
used by the accused and recovered at their instance is a tamancha
whereas cartridges fired from a 0.12 bore pistol were found in the
body of the deceased and were recovered from the site of offence.
Therefore, the Trial Court has rightly observed that the
corroborating evidence adduced by the prosecution also does not
support its case and in fact casts a doubt over the version given by
the witnesses.
9. We
find in the case that the investigation was set in motion with the
lodging of the F.I.R. by Foga Bogha PW 3. He is not an eye witness.
Source of information of this witness is PW 4 Dosa Kesar. In the
FIR, names of such persons find mention which were not given out
by PW 4 Dosa Kesar. Thus over and above the names given by Dosa
Kesar PW 4, some more names have been added or included by
complainant. Thus, the entire edifice of the prosecution case is
replete with over-implication.
10. According
to the PW 4, he has not seen the actual incident. This speaks for his
ignorance of the death of a person from the accused side. If he was
not aware of the death from the side of the accused then it stands to
reason that he does not know the details of the incident. It was a
melee where both the parties quarreled and sustained injury.
Inference of pre-fight can be safely drawn. In absence of
assertion of individual participation, it cannot be said that the
conclusion of the trial Court is perverse or not in accordance with
law.
11. For
the foregoing reasons, we do not find that the findings given by the
Trial Court for acquitting the accused are perverse, conjectural or
contrary to the evidence on record. On the contrary, we are of the
considered opinion that the reasons are cogent, sufficient and
correct. No interference is called for by this Court. The appeal
must fail and is, accordingly, dismissed. Bail bonds stand cancelled.
(BHAGWATI
PRASAD, J.)
(S.R.BRAHMBHATT,
J.)
omkar
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