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IN THE HIGH COURT OF GUJARAT
Hon’ble Mr. Chief Justice Bhaskar Bhattacharya
Hon’ble Mr. Justice Justice J.B. Pardiwala
Bhimsingbhai Varjubhai Rathwa & Anr.
Versus
State of Gujarat
Criminal Appeal No. 1066 of 2006—Decided on 25/07/2012
Held :
It appears from the order passed by the learned Sessions Judge that the said Court, for convicting the appellants, relied upon the oral evidence given by two alleged eyewitnesses, viz. PW. 1 Sangudiben, the widow of the deceased and PW. 9 Kamlesh, the son of the deceased. [Para 12]
In view of the above materials on record, Court is left with no alternative but to conclude that the case made out by the complainant that the accident occurred in her presence and in the presence of her sons at 7.00 PM in the evening of 22nd April 2004 is absolutely a false and fabricated one. It is impossible to rely upon such witnesses to convict the accused persons. [Para 20]
Head Note :
(b) Criminal Law — Appeal against conviction — Appellant violating the condition of temporary bail — Failing to surrender or absconding condign — Plea to dismiss appeal till accused surrenders or rearrested — Not sustainable — Under the Criminal Procedure Code once an appeal is admitted there is no scope of dismissing appeal on other grounds than merits or on abatement.
Held :
Under the Code of Criminal Procedure, once an appeal is admitted, there is no scope of dismissing the appeal on other grounds than merits or on abatement. In the Code of Criminal Procedure, no power has been given to the appellate Court to dismiss the appeal merely on the ground that the appellant had, by violating the conditions of temporary bail, failed to surrender or absconded. Once an appeal has been admitted, it has to be heard on merits if the learned advocate for the appellant is prepared to argue the matter. [Para 10.2]
Law Laid Down :
The right of appeal is not a mere matter of procedure but is a substantive right.
Bhaskar Bhattacharya, CJ.—This appeal is at the instance of two convicted persons and is directed against an order of conviction and consequent sentence dated 1st April 2006 passed by the learned Additional Sessions Judge, Fast Track Court No. 2 at Chhotaudepur, Distt. Vadodara in Sessions Case No. 54 of 2004. By the said order, the learned Sessions Judge convicted the Appellant No. 1 under Section 302 read with Section 114 of the Indian Penal Code and sentenced him to imprisonment for life and a fine of Rs. 100/-; in default of payment of fine, the Appellant No. 1 was directed to undergo further imprisonment for one month. So far as the charge under Section 135 (1) of the Bombay Police Act is concerned, the Appellant No. 1 was directed to undergo rigorous imprisonment for 4 months and a fine of Rs. 50/- with a stipulation that in default of payment of fine, the Appellant No. 1 would undergo further rigorous imprisonment for 3 months.
1.1 So far as the Appellant No. 2 is concerned, he was charged for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code, 135 (1) of the Bombay Police Act and under Section 504 and 323 of the Indian Penal Code. By the aforesaid order, the Appellant No. 2 was sentenced to rigorous imprisonment for life with a fine of Rs. 100/- for charge under Section 302 of the Indian Penal Code read with Section 114 of the Indian Penal Code. In default of payment of fine, the Appellant No. 2 was directed to undergo further imprisonment for one month. So far as the charge under Section 135 (1) of the Bombay Police Act is concerned, the Appellant No. 2 was directed to undergo rigorous imprisonment for 4 months and a fine of Rs. 50/- with a condition that in default of payment of fine, he would undergo rigorous imprisonment for 3 months. The Appellant No. 2 was, however, acquitted of the charges punishable under Section 504 and 323 of the Indian Penal Code.
2. The case made out by the prosecution may be summarized thus:
2.1 The complainant, viz. one Sangudiben, widow of the victim, viz. Nanubhai Varjubhai Rathwa, was residing with her husband and two sons at village Vejapur.
2.2 At about 7.00 PM on 22nd April 2004, Sangudiben and her husband [the victim], Kamlesh and Mahesh [her sons], after taking their dinner sat in the courtyard near their house. At that time, when the deceased had gone to sit in the open ground to answer the nature’s call, Bhimsingbhai Varjubhai Rathwa [Accused No. 1], his son Nareshbhai Bhimsingbhai Rathwa [Accused No. 2] and Ramjudiben [Accused No. 3] [wife of Accused No. 1 and mother of Accused No. 2] being armed with bamboo sticks and stick rushed towards the victim with abusing words and Bhimsinghbhai [Accused No. 1] gave a blow on the back part of the victim, as a result of which, the victim had fallen down. At that time, the Accused No. 2, the son of the Accused No. 1 was shouting saying “you want share in land and in palm tree” and started giving blows with the bamboo stick on the back part of the victim. At that time Ramjudiben, the wife of the Accused No. 1 and the mother of the Accused No. 2, being armed with a stick in her hands had given stick blows twice or thrice on the victim.
2.3 Sangudiben, the complainant, felt that they would further beat her husband and as such, she went to rescue her husband from their clutches. At that time, the Accused No. 2 had given kick blows twice or thrice on her abdomen.
2.4 Hearing the cries of Sangudiben, Mahesh, her son, and Gohtabhai Devlabhai Rathwa, son of an uncle, had arrived.
2.5 Sangudiben immediately came back to her house and took a cot and thereafter, she and Gohtabhai lifted up the victim in the cot and brought him near her house. At that time, they discovered that the victim had already died.
2.6 Thereafter, Gohtabhai and one Ramsinhbhai informed Kandlabhai, the leader of the village, about the incident. Kandalbhai informed the police. Police came to the house of Sangudiben and thereafter, a complain
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