{"id":62258,"date":"2008-07-03T00:00:00","date_gmt":"2008-07-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gadaji-vs-unknown-on-3-july-2008"},"modified":"2015-06-12T13:00:27","modified_gmt":"2015-06-12T07:30:27","slug":"gadaji-vs-unknown-on-3-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gadaji-vs-unknown-on-3-july-2008","title":{"rendered":"Gadaji vs Unknown on 3 July, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Gadaji vs Unknown on 3 July, 2008<\/div>\n
Author: R.P.Dholakia,&Nbsp;Honourable Mr.Justice Jhaveri,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/18\/2003\t 2\/ 19\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 18 of 2003\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE R.P.DHOLAKIA\t:\tSd\/-  \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE KS JHAVERI \t\t:\tSd\/-\n \n\n \n=======================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n\n\n \n\n=======================================================\n\n\n \n\nGADAJI\nMANAJI THAKOR - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=======================================================\nAppearance : \nMS\nSHILPA R SHAH for Appellant(s) : 1, \nMR HL JANI APP for Opponent(s)\n: 1, \n======================================================= \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE R.P.DHOLAKIA\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE KS JHAVERI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 03\/07\/2008\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE R.P.DHOLAKIA)<\/p>\n
\t\tThis
\n\t\tCriminal Appeal under Sec.374 of the Code of Criminal Procedure
\n\t\t(‘the Code’ for short) has been filed by the appellant-original
\n\t\taccused, who has been convicted to suffer rigorous imprisonment for
\n\t\tlife and fine of Rs.500\/-, in default, to suffer simple
\n\t\timprisonment for three months for the offence under Section 302 of
\n\t\tthe Indian Penal Code vide judgment and order of conviction dated
\n\t\t29.11.2002 delivered by the Learned Addition Sessions Judge, Fast
\n\t\tTrack Court, Patan in Sessions Case No.397 of 2002.\n<\/p>\n
\t\tThe
\n\t\tcase of the prosecution in short is that on 09.10.2000 at about
\n\t\t8:00 a.m., when the complainant was at his residence, he received
\n\t\tphone call from one Ranubhai informing him that Bhikhaji is sick
\n\t\tand, hence, he was instructed to reach Village : Der immediately.
\n\t\tIn pursuance of that, the complainant along with other family
\n\t\tmembers had gone to Chadasana village, where they were informed
\n\t\tthat Bhikhaji is killed. Thereafter, they reached the scene of
\n\t\toffence and saw the dead body of his son lying on cot covered with
\n\t\tblanket. At that time, his niece, Suryaba was also there. Upon
\n\t\tseeing the dead body, they found the injuries on the neck, head and
\n\t\tother parts of the body of the deceased. Upon making inquiry from
\n\t\tSuryaba, she informed them that herself and Bhikhaji had gone to
\n\t\tVillage : Der at the residence of Gandaji, but none was present
\n\t\tthere and, hence, they had gone to the residence of Pathuji, where
\n\t\tall family members were present and stayed for half an hour.
\n\t\tThereafter, Gandaji came to the residence of Pathuji and invited
\n\t\tboth of them for lunch, however, Bhikhaji said no, but ultimately,
\n\t\the agreed to take lunch.\n<\/p>\n
\t\tThereafter,
\n\t\tthey went to the house of Gandaji, where Gandaji and his brothers
\n\t\twere present. After some time, quarrel took place between them, at
\n\t\tthat time, she was sitting very near to door. Thereafter, when her
\n\t\tuncle was taking lunch, Gandaji gave 7 blows of wooden log on the
\n\t\tneck of her uncle and, thereafter, he threw wooden log and took
\n\t\tKasai and gave 5 blows of it on the head. As a result of that,
\n\t\tBhikhaji fell down there. Immediately thereafter, she went to the
\n\t\thouse of Pathuji to inform him about the incident, but none was
\n\t\tthere and, hence, she went to the house of Bhikhaji’s father-in-law
\n\t\tand informed them about the incident and stayed there. Today, in
\n\t\tthe morning, when she came back to see Bhikhaji then, she saw that
\n\t\tBhikhaji is lying on cot and he is no more. Here in the above facts
\n\t\tfrom the Suryaba, the complainant went to Patan Taluka Police
\n\t\tStation and lodged the complaint to that effect, which has been
\n\t\tregistered as I-C.R.No.230\/2000 with Patan Taluka Police
\n\t\tStation under Section 302 of the Indian Penal Code.\n<\/p>\n
\t\tThereafter,
\n\t\tP.S.O. of Patan Taluka Police Station handed over the investigation
\n\t\tto Police Inspector of Patan Taluka Police
\n\t\tStation, Shri A.H. Jardosh. In pursuance of that, he started
\n\t\tinvestigation into the matter. He sent yadi to Executive Magistrate
\n\t\tfor inquest on the body of the deceased and, thereafter, he went to
\n\t\tVillage : Der and visited the scene of offence. As it was an
\n\t\toffence of visitation, he informed the superior officer. When the
\n\t\tExecutive Magistrate reached the scene of offence, inquest
\n\t\tpanchnama came to be drawn in the presence of panchas and,
\n\t\tthereafter, he made arrangement for sending dead body for
\n\t\tpostmortem. He drew panchnama of scene of offence in the presence
\n\t\tof panchas, seized muddamal and recorded the statements of various
\n\t\twitnesses. On production of the clothe of the deceased by the
\n\t\tPolice Constable, same were seized after following required
\n\t\tprocedure. Thereafter, he also made search of accused and arrested
\n\t\thim after preparing arrest panchnama. Thereafter, the accused
\n\t\texpressed his willingness to produce the muddamal alleged to have
\n\t\tbeen used in the commission of offence. He therefore called the
\n\t\tpanchas and prepared primary panchnama and went in police jeep
\n\t\talong with panchas, police personnel and accused. Thereafter, the
\n\t\taccused asked to stop the vehicle at a place and he took out the
\n\t\tmuddamal Sikas and wooden log and handed over the same to police
\n\t\tand, therefore, he completed the second part of the panchnama there
\n\t\titself. He sent all the muddamal to FSL for analysis and on
\n\t\treceiving the FSL report and postmortem note, same were kept in
\n\t\tinvestigation file.\n<\/p>\n
\t\tUpon
\n\t\tcompletion of investigation, he submitted the charge sheet against
\n\t\tthe accused in the Court of learned 2nd Joint Judicial
\n\t\tMagistrate (First Class), Patan.\n<\/p>\n
\t\tAs
\n\t\tthe offence alleged against the accused was exclusively triable by
\n\t\tthe Court of Sessions, the Learned
\n\t\t2nd Joint Judicial Magistrate (First Class), Patan
\n\t\tcommitted the case to the Court of Sessions, Patan where it
\n\t\twas numbered as Sessions Case No.397 of 2002 and transferred to the
\n\t\tCourt of Learned Additional Sessions Judge, Camp at Patan for
\n\t\ttrial.\n<\/p>\n
\t\tOn
\n\t\tproduction of the accused, the learned Additional Sessions Judge
\n\t\tframed charge against the accused vide Exh.1 on 11.06.2002. The
\n\t\taccused pleaded not guilty to the charge and claimed to be tried.\n<\/p>\n
\t\tTo
\n\t\tprove the case against the accused, the prosecution examined 22
\n\t\twitnesses. The prosecution also placed reliance upon several
\n\t\tdocumentary evidence 32 in numbering.\n<\/p>\n
\t\tOn
\n\t\tsubmission of closing purshis by the prosecution, Learned
\n\t\tAdditional Sessions Judge recorded the further statement of the
\n\t\taccused under Section 313 of the Code qua
\n\t\tthe incriminating question wherein the accused came out with the
\n\t\tcase of total denial. Thereafter, on hearing, the Learned
\n\t\tAddition Sessions Judge, Fast Track Court, Patan, delivered the
\n\t\timpugned judgment, which gave rise to prefer this Criminal Appeal.\n<\/p>\n
\t\tHeard
\n\t\tlearned Counsel for the appellant-accused, Ms.Shilpa R. Shah and
\n\t\tlearned APP, Mr.H.L. Jani for the State.\n<\/p>\n
\t\tIt
\n\t\thas been mainly argued by the learned counsel for the
\n\t\tappellant-accused, Ms.Shah that the prosecution has failed to prove
\n\t\tthe guilt against the accused beyond reasonable doubt. It has been
\n\t\targued that the prosecution has only placed reliance upon the
\n\t\tevidence of child witness viz., Suryaba, who was aged about 11
\n\t\tyears at the time of incident.\n<\/p>\n
\t\tAfter
\n\t\ttaking us through the evidence of Suryaba, it is argued that her
\n\t\tevidence is not trustworthy, not believable and not free from
\n\t\tdoubt. It is argued that as the child, Suryaba is not the witness
\n\t\tof incident, her conduct is also required to be kept in mind. It
\n\t\thas been argued that it is true that if the evidence of said child
\n\t\twitness is believable, free from doubt and trustworthy then the
\n\t\tCourt can certainly rely upon and convict the appellant-accused,
\n\t\tbut here in this case, her evidence is not trustworthy. As per the
\n\t\tevidence on record, there are 50 houses adjacent to each other and
\n\t\tsaid place is known as Thakor Madh and after the house of Gandaji,
\n\t\tthere is adjoining house of Manaji, house of Pathuji. It has been
\n\t\targued that the incident has taken place in broad day light at
\n\t\tabout 14:30 hours and, therefore, it is very difficult to accept
\n\t\tthe say of the prosecution that none came out from any house though
\n\t\tincident has taken place in front of their house. Not only that,
\n\t\taccording to her, if we believe the evidence of Suryaba and other
\n\t\tthen though 24 hours have passed and though third house is the
\n\t\thouse of father-in-law of the deceased, nobody has taken care of
\n\t\tdeceased that too also the wife of the deceased was also there. It
\n\t\thas been argued that, therefore, evidence of Suryaba creates doubt
\n\t\tin the mind of all concerned.\n<\/p>\n
\t\tAfter
\n\t\ttaking us through the evidence of Suryaba, she has argued that she
\n\t\twas not present at the time of incident as she has categorically
\n\t\tstated that she had taken lunch at the residence of Manaji, the
\n\t\tfather of accused and, thereafter, there is no evidence on her part
\n\t\tthat she went to the house of Gandaji along with her maternal uncle
\n\t\tand, therefore, according to her, her evidence is not free from
\n\t\tdoubt.\n<\/p>\n
\t\tSimultaneously,
\n\t\tshe has also taken us through the oral evidence of complainant and
\n\t\tother witnesses and argued that all other witnesses are not the
\n\t\twitnesses of incident and practically, none has supported the
\n\t\tprosecution case.\n<\/p>\n
\t\tShe
\n\t\thas also taken us through the evidence of Chakiben, wife of the
\n\t\tdeceased and argued that she has categorically deposed in her
\n\t\tevidence that after the incident, they came to know about the
\n\t\tincident, however, she did not go there. She has also stated that
\n\t\tSuryaba informed that the deceased was killed by Gandaji by giving
\n\t\tblow of wooden log and sikas. Showing the same, it has been argued
\n\t\tthat in this circumstance, the evidence of child witness, Suryaba
\n\t\tthat nobody came to save Bhikhaji for 24 hours from 2:00 p.m. to
\n\t\t11:00 a.m. of next day is not required to be believed.\n<\/p>\n
\t\tShe
\n\t\thas also taken us through the oral evidence of P.W.No.15,
\n\t\tDr.Amrutbhai Vihabhai Patel, Exh.29, who has performed the
\n\t\tpostmortem and argued that in para 5 of his evidence, there is no
\n\t\tevidence worth the name to the effect that the injuries received by
\n\t\tthe deceased were sufficient to cause death.\n<\/p>\n
\t\tLastly,
\n\t\tit has been argued that at the most, it is an incident which even
\n\t\tas per the say of the prosecution, has taken place after the
\n\t\taltercation between the parties and both were in drunken condition
\n\t\tand, therefore, it is required to be considered as a result of
\n\t\tsudden provocation and in any circumstances of the matter, it
\n\t\tcannot be said that it is a case falling under Section 302 of the
\n\t\tIndian Penal Code.\n<\/p>\n
\t\tMs.Shah
\n\t\thas also drawn our attention that the accused has already undergone
\n\t\tmore than 8 years and, hence, some sympathy should be shown towards
\n\t\tthe accused.\n<\/p>\n
\t\tLearned
\n\t\tAPP, Mr.H.L. Jani, has also taken us through the oral evidence of
\n\t\twitnesses, upon which, reliance has been placed by the learned
\n\t\tcounsel for the appellant-accused, Ms.Shah.\n<\/p>\n
\t\tMr.Jani
\n\t\thas objected the submissions made by the learned counsel, Ms.Shah
\n\t\tmainly on the ground that the oral evidence of child witness,
\n\t\tSuryaba is trustworthy and is required to be believed, but on a
\n\t\tmaterial point, he has no answer regarding her conduct and also
\n\t\tregarding her presence at the time of incident. He has also argued
\n\t\tthat the Court can certainly rely upon the oral evidence of child
\n\t\twitness as the same is trustworthy, free from doubt and believable.
\n\t\tAfter taking us through the oral evidence of Suryaba, it is
\n\t\tsubmitted that she is the witness of incident and her evidence is
\n\t\trequired to be believed and it is a serious offence, wherein the
\n\t\tpresent deceased has been invited and killed by Gandaji and,
\n\t\ttherefore, according to him, no lenient view is required to be
\n\t\tshown towards the appellant-accused.\n<\/p>\n
\t\tWe
\n\t\thave gone through the oral as well as documentary evidence shown to
\n\t\tus by the learned counsel for the respective parties together with
\n\t\tthe reasoned judgment delivered by the court below.\n<\/p>\n
\t\tHere
\n\t\tin this case, only evidence of child witness, Suryaba (P.W.No.2,
\n\t\tExh.7) is required to be taken into consideration. At the time of
\n\t\trecording her evidence, she was 13 years and her evidence is
\n\t\trecorded in the month of July, 2002 and the incident has taken
\n\t\tplace in the year 2000 and, therefore, at the time of incident, she
\n\t\twas 11 years. It is required to be noted that she is the child
\n\t\twitness and she claims herself to be a witness of incident and,
\n\t\thence, her evidence is required to be scrutinized minutely and
\n\t\tafter evaluating the same, if the Court comes to a conclusion that
\n\t\ther evidence is trustworthy then certainly, the Court can rely upon
\n\t\tand convict the accused only on the basis said evidence. For the
\n\t\tpurpose of deciding this appeal, we have minutely evaluated the
\n\t\tevidence of Suryaba.\n<\/p>\n
\t\tIt
\n\t\tis established from her evidence that she and her maternal uncle,
\n\t\tBhikhaji went to Village : Der at the residence of Gandaji, at that
\n\t\ttime, it was 12:00 a.m., however, none was there and, therefore,
\n\t\tthey went to the house of Pathuji, who is the father-in-law of
\n\t\tBhikhaji, where they stayed for half an hour. Meanwhile, Gandaji
\n\t\tcame and invited them and, thereafter, they went to the house of
\n\t\tManaji, which is also adjoining of Gandaji and she stayed. She also
\n\t\tdeposed that when Gandaji and Bhikhaji went to market, she took her
\n\t\tlunch at the house of Manaji and, thereafter, she was playing with
\n\t\tthe daughter of her maternal uncle, Sajjan. Thereafter, Gandaji and
\n\t\tBhikhaji came there and after some time, altercation took place
\n\t\tbetween them and at the time of taking lunch, Gandaji gave 7 blows
\n\t\tof wooden log on the neck of the deceased, Bhikhaji and,
\n\t\tthereafter, he threw said wooden log and took up Sikas and gave 5
\n\t\tblows of it on the head of Bhikhaji and, thereafter, he dragged him
\n\t\tout side the house. Immediately thereafter, she went to the house
\n\t\tof Pathuji, but nobody was there at that time and, therefore, she
\n\t\tcame back and, thereafter, stayed at the residence of Manaji for
\n\t\tsome time and, thereafter, she stayed at the residence of Vinuji
\n\t\tand on the next day, she came back along with Vinuji and saw that
\n\t\tBhikhaji was lying on cot and Vinubhai informed Pathuji regarding
\n\t\tillness of Bhikhaji. In turn, Pathuji informed Ranuji and Ranuji
\n\t\tinformed Sihori by phone at the place of Bhikhaji to his father.
\n\t\tShe has further deposed that thereafter at 11:00 a.m., maternal
\n\t\tgrand father came there along with other people and, thereafter,
\n\t\tgrand maternal father went to Police Station and lodged the
\n\t\tcomplaint. She also identified muddamal Sikas into the Court as
\n\t\talso the appellant-accused.\n<\/p>\n
\t\tAforesaid
\n\t\twitness was also examined by the learned advocate before the Court
\n\t\tbelow. In her cross-examination, she admitted that there was an
\n\t\taltercation between the deceased Bhikhaji and his wife, Var
\n\t\tChakibhai and, therefore, Chakiben was staying at her parental home
\n\t\tat Village : Der. She admitted that the house of Pathuji is also
\n\t\tsituated in Village : Der and in the same Maholla along with 50
\n\t\tother houses, however, she denied that adjoining house of Pathuji
\n\t\tis the house of Manaji, but she admitted that Manaji’s house is at
\n\t\ta little bit distance. She also admitted that she shouted for help,
\n\t\tbut nobody came to rescue, thereafter, she went to the house of
\n\t\tPathuji and stayed there for half an hour, however, she has not
\n\t\tsaid anything regarding the incident to anybody on that day.
\n\t\tThereafter, she went to the house of Vinubhai and slept there. On
\n\t\tthe next day early in the morning, she came back to see her
\n\t\tmaternal uncle, Bhikhaji and, thereafter, she seat there till
\n\t\tcomplainant and other came there at 11:00 a.m. She has also
\n\t\tadmitted that Police recorded her statement after eight days at
\n\t\tSihori.\n<\/p>\n
\t\tThus,
\n\t\tas per her evidence, she claims herself to be a witness of
\n\t\tincident, who was aged about 11 years at the time of incident.\n<\/p>\n
\t\tIt
\n\t\tis required to be noted that the place of incident is the house of
\n\t\tGandaji and adjoining house is of father of Gandaji viz., Manaji
\n\t\tand next house is of Pathuji. It is to be noted that the incident
\n\t\thas taken place at 2:30 p.m. and as per evidence on record, there
\n\t\tare 50 houses situated adjoining to each other and all are from
\n\t\tsame community. It is evident from the evidence on record that
\n\t\tthough the deceased was assaulted and though Suryaba shouted for
\n\t\thelp, none came to rescue the deceased. Not only that, nobody
\n\t\treached the scene of offence until 24 hours and before the father
\n\t\tof the deceased comes.\n<\/p>\n
\t\tP.W.No.19,
\n\t\tVarbai @ Chakiben Bhikhuji, Exh.35 who is wife of the deceased has
\n\t\tadmitted that she came to know about the incident on the same day
\n\t\tand also came to know that her husband has succumbed to the
\n\t\tinjuries. She also admitted that Suryaben came to her house and
\n\t\tinformed them about the incident, at that time, her father, mother
\n\t\tand other family members were present. She has also admitted that
\n\t\tthere are 50 house in Village : Der and her father is a leader of
\n\t\tparty. As against this, it is to be noted that Suryaba has already
\n\t\tdeposed that she has not informed anybody till 11:00 of next
\n\t\tmorning till her maternal grand father and others came.\n<\/p>\n
\t\tAs
\n\t\tagainst this, the complainant is not the witness of incident as he
\n\t\twas informed by Suryaba about the incident.\n<\/p>\n
\t\tThus,
\n\t\tin short, as per the evidence of Suryaba, she has not informed even
\n\t\tVinubhai, where she stayed whole night, not even Manaji or Pathuji
\n\t\tor Bachiben. Over and above this, though the incident has taken on
\n\t\tbroad day light, though all are related to each other, though his
\n\t\twife was also there in next door and though dead body was lying
\n\t\tthere in front of the house of Gandaji, nobody has taken care to
\n\t\tsee the deceased, which creates doubt in the mind of the Court.\n<\/p>\n
\t\tSuryaba
\n\t\tdeposed that she is much more mature, but her aged is such and with
\n\t\tthis, whether one can act way in which, she did i.e. she stated
\n\t\tthat her maternal uncle is no more and he succumbed to the injuries
\n\t\tand, thereafter, she seat down there for a considerable time. Not
\n\t\tonly that, though shouted, none came to help her, which creates
\n\t\tdoubt in the mind of all concerned as to whether she was there at
\n\t\tthe time of incident or not. Simultaneously, if she was there,
\n\t\twhether she was present at the time of incident or not because as
\n\t\tper her evidence, she was playing with the daughter of Bhikhaji at
\n\t\tthe residence of Manaji and, therefore, her claim that she is the
\n\t\twitness of incident also creates doubt.\n<\/p>\n
\t\tOver
\n\t\tand above, in her evidence, there are exaggeration to that effect
\n\t\tthat Gandaji has given seven blows of wooden log on neck of the
\n\t\tdeceased and eight Sikas blow on head and that too also, first he
\n\t\tgave wooden log then threw wooden log, took Sikas and gave 5 blows
\n\t\tof it to the deceased. However, medical evidence is contrary to the
\n\t\tevidence of child witness, Suryaba as there are no injuries of
\n\t\tSikas. Not only that as per the evidence of doctor, who has
\n\t\tperformed postmortem, there are only three injuries out of which,
\n\t\ttwo fracture and one is on back side and, therefore, her deposition
\n\t\tto the effect that accused has given seven blows to the deceased is
\n\t\texaggerated or we can say that it is concocted one. Even doctor has
\n\t\tnot opined that the injuries received by the deceased are
\n\t\tsufficient to cause death in ordinary course of nature. However, we
\n\t\taccept that there are no evidence which connected the accused with
\n\t\tthe crime and on detailed scrutiny of the evidence of the child
\n\t\twitness, we are of the opinion that her evidence is not trustworthy
\n\t\tand not free from doubt and, therefore, the conviction on the basis
\n\t\tof only on her evidence resulted into injustice to the accused and
\n\t\tas the evidence of Suryaba creates doubt, we give the accused the
\n\t\tbenefit of doubt.\n<\/p>\n
\t\tThe
\n\t\tprosecution has failed to prove the discovery panchnama as the
\n\t\tmuddamal, which have been found on public place and same were
\n\t\teasily available to all concerned. Over and above this, the
\n\t\tprosecution has not produced both weapons into the Court.\n<\/p>\n
\t\tOver
\n\t\tand above, the appellant-accused has already undergone more than
\n\t\teight years of sentence and, hence, we are of the opinion that if
\n\t\twe give benefit of doubt, it will meet the ends of justice.\n<\/p>\n
\t\tAs
\n\t\tfar as the homicidal death is concerned, same has not been disputed
\n\t\tby the learned counsel for appellant-accused. Then also, we have
\n\t\tgone through the same and it is proved by the prosecution by way of
\n\t\toral evidence of Dr.Amratbhai Vihabhai Patel, P.W.No.15, Exh.29.
\n\t\tThrough him, the prosecution has also proved the P.M.Note Exh.30.\n<\/p>\n
\t\tIt
\n\t\tis true that it is a heinous crime, but looking to the facts and
\n\t\tcircumstances of the case and keeping in mind the above aspect of
\n\t\tthe matter, there is no evidence worth the name to connect the
\n\t\taccused with the crime in question and, hence, the benefit of doubt
\n\t\tis required to be given to him.\n<\/p>\n
\t\tIn
\n\t\tthe result, the appeal is allowed. Judgment and Order of conviction
\n\t\tand sentence dated 29.11.2002 delivered by the Learned Additional
\n\t\tSessions Judge, Fast Track Court, Patan in Sessions Case No.397 of
\n\t\t2002 are quashed and set aside. He is, therefore, ordered to be set
\n\t\tat liberty forthwith, if not required in any other offence.\n<\/p>\n
\t\t\t\t\tSd\/-\t\t\t\tSd\/-\n \n\n\n\t(R.P.DHOLAKIA,\nJ.) (K.S.JHAVERI, J.)\n \n\n\n\/patil\n\n    \n\n \n\t   \n      \n      \n\t    \n\t\t   \u00a0\u00a0\u00a0\n\t   \n      \n\t  \t    \n\t\t   Top\n\t   \n      \n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Gadaji vs Unknown on 3 July, 2008 Author: R.P.Dholakia,&Nbsp;Honourable Mr.Justice Jhaveri,&Nbsp; Gujarat High Court Case Information System Print CR.A\/18\/2003 2\/ 19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 18 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd\/- HONOURABLE MR.JUSTICE KS JHAVERI : Sd\/- ======================================================= […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-62258","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nGadaji vs Unknown on 3 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gadaji-vs-unknown-on-3-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gadaji vs Unknown on 3 July, 2008 - 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