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GUJARAT HIGH COURT
Hon’ble Mr. Justice K.S. Jhaveri & Hon’ble Mr. Justice K.J. Thaker
The State of Gujarat
Versus
Najabhai Bhanabhai @ Devayatbhaider & Ors.
Criminal Appeal No. 2054 of 2006—Decided on 20/06/2013
Held :
From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. [Para 5.3(16)]
In the present case, no eye witness has corroborated the evidence showing the presence of present respondents. The injured witness PW-28 Kumarsinh Raisinh Ex. 147, has categorically stated in his evidence that though other accused were present there but only Vaju Kana had inflicted injuries. The trial Court while considering the oral as well as documentary evidence has clearly observed that there is no any evidence to convict the respondents. The prosecution has miserably failed to prove the case against the accused beyond any reasonable doubt. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. [Para 6.1]
Law Laid Down :
While exercising an appellate power against a Judgment of acquittal the High Court should not ordinarily interfere unless the decision is perverse.
K.J. Thaker, J.—The present appellant-State has preferred this appeal under Section 378 of the Code of Criminal Procedure, against the judgment and order dated 28.4.2005 passed by the learned 5th Fast Track Court Judge, Gondal in Sessions Case No. 117/2000, whereby, the learned trial Judge has acquitted the respondents of the charges leveled against them.
2.1 The brief facts of the prosecution case is that on 15.8.2000 at about 7.30pm to 8.00pm, when complainant was to take supper, at that time, Chandrasinh son of his younger brother and Kumar son of his cousin brother had gone to village for engaging labourers. Thereafter, at about 8.00pm, one Kanjibhai had informed the complainant that two persons of your family are lying near the shop of Vaju Kanji. Therefore, complainant, his cousin brother Natubhai, Chandubhai and Ravjibhai went to the shop of Vaju Kanji where they found Chandrasinh son of his younger brother and Kumar son of his cousin brother son of his younger brother and Kumar son of his cousin brother in injured condition in the street opposite to the said shop. At that time, wife of one Ranjitbhai and other women who were present there, had informed the complainant that present respondents have assaulted the Chandrasinh and Kumar with deadly weapons like sword, dhariya,Axe and went away. Thereafter, both the injured persons were taken to the Government Hospital, at Jetpur, in the meantime, Chandrasinh had died and since Kumar was serious, he was taken to Rajkot hospital.
2.2 The respondents - accused came to be arraigned for committing the murder and after the investigation was complete, the charge-sheet was laid against the present respondents. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 117/2000.
2.3 Thereafter, the Sessions Court framed the charge below Exh. 1 against the respondents for commission of the offence under Sections 302, 307, 147, 148, 149 of IPC and Sections 37(1) and 135 of the B.P. Act. The respondents-accused have pleaded not guilty and claimed to be tried.
2.4 To prove the case against the present respondents, the prosecution has examined the following witnesses:
1. Bhanjibhai Nanjibhai Dhandhal, CPI, Ex. 44
2. Raghubhai Mansukhbhai Ex. 67
3. Mahmadbhai Abubhai Ex. 69
4. Madhubhai Bhimbhai Vala Ex. 70
5. Bhavinising Mansing Chauhan Ex. 72
6. Rajubhai Bhalajibhai Ex. 75
7. Mukeshbhai Ramjibhai Ex. 76
8. Manojbhai Takhubhai Ex. 78
9. Suresh Bhanubhai Ex. 81
10. Madhubhai Chanabhai Ex. 82
11. Yogeshvan Raghuvan Ex. 84
12. Navabkha Hajikha Ex. 85
13. Mahebubbhai Osmanbhai Ex. 88
14. Hemantbhai Kanjibhai Ex. 90
15. Meghjibhai Lavabhai Ex. 95
16. Nanjibhai Laxmanbhai Ex. 98
17. Bharatsinh Bhojubha Jadeja Ex. 102
18. Ramaben Ranjitbhai Ex. 105
19. Manubhai Bachubhai Ex. 111
20. Kalubhai Jivabhai Ex. 112
21. Dr. Nikita Bharatbhai Padiya Ex. 113
22. Dr. Naginbhai Bhovanbhai Sarvaiya Ex. 122
23. Dr. Hemang Harishchandra Vasavada Ex. 135
24. Hitendrasinh Natvarsinh Ex. 139
25. BharatbhaiGovindbhai Ex. 140
26. Bahadurbhai Ranjitbhai Ex. 142
27. Kanjibhai Laxmanbhai Ex. 143
28. Kumarsinh Raisinh Ex. 147
29. Lakhubha Bhurubha Chudasama, PSI, Ex. 148
30. Kantaben w/o Nathabhai, ASI Ex. 163
2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the respondents-accused.
1. Yadi Ex. 45
2. Map Ex. 46
3. Panch rojkam Ex. 47
4. Rough map Ex. 48
5. Inquest panchnama Ex. 68
6. Panchnama of scene of offence place Ex. 71
7. Panchnama of clothes of injured Ex. 73
8. Panchnama of clothes of deceased Ex. 77
9. Panchnama of person of injured Ex. 79
10. Panchnama of clothes of accused Ex. 83
11. Panchnama of clothes of accused Ex.86
12. Panchnama of clothes of accused Ex. 87
13. FIR Ex. 91
14. Arrest panchnama Ex. 96
15. Panchnama of muddamal weapon Ex. 99, 100 & 101
16. Arrest panchanama Ex. 103
17. Case papers of injured Ex. 114 & 115
18. Case papers of injured Ex. 116
19. Yadi for PM Ex. 11
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