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CR.A/423/1987 2/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 423 of 1987
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 ?
NO
2
To be
referred to the Reporter or not ? NO
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
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 ? NO
5
Whether
it is to be circulated to the civil judge ? NO
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
RAJUBHAI
DHIRUBHAI KUNKAN - Opponent(s)
=========================================================
Appearance
:
Ms.
Mita Panchal, APP, for
Appellant(s) : 1,
MR YM THAKORE, Amicus Curie for the respondent
---------------------------------------------------------
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
And
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 14/07/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
This
is an appeal filed against acquittal award passed by the learned
Additional Sessions Judge, Valsad at Navsari on 31.3.1987 in Sessions
Case No. 35 of 1986.
2. Briefly
stated the prosecution case is that accused Rajubhai Dhirubhai
Kunkana is accused of murdering Dhirubhai, his own father. According
to prosecution, at about 11.00 p.m. on 8.2.1986 father of the
accused quarrelled with Ratniben, wife of the deceased and mother of
the accused. During their quarrel, the deceased Dhirubhai is alleged
to have levelled allegations against the lady ? Ratniben that she
is having illicit relationship with the brother-in-law of the accused
? Sitaram and in that quarrel, he gave a sickle blow to her. At
that time, the accused intervened but he was reprimanded by the
deceased.
3. It
is the further case of the prosecution that at about 1.00 a.m. in
the night (i.e. on 9.2.1986 morning) the accused is alleged to have
given a stick blow to the deceased Dhirubhai near the shop of
Ramanbhai Jinabhai Naika Patel which has resulted into the death of
the deceased. In the morning at about 9.30 a.m. on 9.2.1986 case was
registered with Vasda Police Station. The police after lodging of
F.I.R. carried out usual investigation and submitted chargesheet
before the Court of learned Judicial Magistrate, First Class. The
case was committed to the Court of Sessions, Valsad at Navsari. The
accused pleaded not guilty. Trial was conducted by the learned
Additional Sessions Judge, Valsad at Navsari. The accused was charged
with offence under Section 302 of the Indian Penal Code.
4. The
learned trial Judge after hearing the parties by his judgement dated
31.3.1987 was pleased to acquit the accused person. Thus being
aggrieved by the aforesaid order, the present appeal is filed by the
State.
5. The
learned Additional Public Prosecutor arguing the appeal, submitted
that PW-1 Dahyabhai Vasava, Medical Officer, was examined. The
Medical Officer has performed post mortem of deceased Dhirubhai and
due to injuries death is caused. The post mortem report corroborates
the statement of the doctor that the injuries which caused the death
of the deceased. Apart from the medical evidence, the prosecution has
examined PW-2, Mohanbhai Mamjubhai Patel, the complainant, who lodged
the F.I.R.; PW-3 Ramanbhai Zinabhai Naika Patel and PW-4 Ratniben
Dhirubhai. Though these witnesses turned hostile, yet in their police
version they had implicated the accused because the accused has been
found to be wearing blood stained clothes. Therefore, according to
the learned Additional Public Prosecutor, the prosecution story
should not have been discarded and the same should be given credence.
It being the family affair, the witnesses have turned hostile. That
did not desist the Court from shifting grain from chaff and thus
recording conviction.
6. Per
contra, the learned counsel for the respondent Mr. Y.M. Thakore
submitted that it is incorrect and wrong to say that the prosecution
has credible witness to its credit. Two eye witnesses, PW-3 and PW-4
who were the basis of the prosecution have turned hostile. They have
not supported the prosecution case. There is nothing on record to
establish that the accused was guilty of any offence having been
committed by him. In that background, if the trial Court has
acquitted accused from the charges it cannot be said that any
illegality has been committed by the learned trial Judge.
7. We
have heard the learned counsel for the parties. We have found and
considered that the basis of the prosecution was the statement of
the complainant and two eye witnesses. All three have turned hostile.
The panch witness have also turned hostile. There is no legal
evidence to sustain the charge against the accused person. From the
evidence available to support the case of prosecution, it was not
possible for the trial Court to record any conviction because to
record conviction, legal evidence is required. Legal evidence being
not available, it cannot be said that the learned trial Judge has
wrongly exercised the jurisdiction and acquitted the accused. That
being the position, we are of the considered opinion that in absence
of the evidence the trial Judge was right in acquitting the accused.
We are not persuaded that different view can be taken in this appeal
which is an appeal against the acquittal because the findings of the
learned trial Judge are neither illegal nor perverse. We uphold the
decision of the learned trial Judge and the accused has been rightly
held to be not guilty by the learned trial Judge.
In
the result, the appeal being meritless is dismissed. Bail bonds
stands cancelled.
(BHAGWATI
PRASAD, J)
(S.R.
BRAHMBHATT, J)
(pkn)
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