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2017 Supreme(Guj) 127
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Akil Abdul Hamid Kureshi and Biren Vaishnav, JJ.
State of Gujarat - Appellant
Vs.
Amrabhai Madiyabhai Damor and Ors. - Respondents
Criminal Appeal No. 740 of 1994
Decided On : 25-01-2017
For the Appellant : Jirgha Jhaveri, APP.
For the Respondents:HCLS Committee and P.V. Patadiya, Advocate.
Headnote:
Constitution of India, Article 14 –Indian Penal Code, Sections 143, 147, 148, 302, 323, 149, 395, 397, and, 395 –Bombay Police Act, Section ,135, - Acquittal appeal has been filed by the State challenging the judgment and order dated passed in Sessions Case -By the aforesaid judgment, original accused have been acquitted of the charge under section of the IPC and under section -filed complaint before the police station alleging that he along with his brother and others had gone to village to attend the wedding. While returning when they went to accused place as his sons marriage was scheduled on that day his brother was detained and handed over to police by and others -Since his brother was handed over to the police on the following day he along with and others went to question him as to why his brother was handed over to police -Both of them returned to the village and went back at place at around 4 in the evening with others -At this point of time accused were carrying and Manu were carrying bow and arrow -They started accusing and attacked him with –Held, Judgment under challenge found that the time of the incident itself as narrated by the complainant and the Prosecution Witness brother of the complainant is at variance -Though the incident is stated to have occurred as a result of visit following date in two parts i.e. in the morning and in the afternoon, testimony of these witnesses insofar as time of the incident is concerned, same is in contrast to each other -At one stage the complainant states time of the incident is at around in the afternoon brother -Prosecution Witness at various stages in his cross examination stated that the incident incurred occurred at then says that the incident occurred at around in the afternoon -In his cross examination stated that it was in the evening he saw the complainant and four others having come to his residence being taken by the police. Based on this set of evidence on record, learned Judge thought it fit to acquit the accused of the offence they were charged with by his impugned judgment -Having independently assessed the evidence on record at our hands we do not find any reason to upset the acquittal of the accused as the view that the learned Judge has taken is a possible view and therefore, the acquittal handed out by the learned Judge by judgment and order dated is confirmed - Criminal Appeal is dismissed.
Biren Vaishnav, J.
1. This acquittal appeal has been filed by the State challenging the judgment and order dated 28.1.1994 passed in Sessions Case No. 68/1993. By the aforesaid judgment, original accused have been acquitted of the charge under sections 143, 147, 148, 302, 323, 149 of the IPC and under section 135 of the Bombay Police Act.
2. Navlabhai Tejiyabhai Sangadiya filed complaint before the police station alleging that on 23.2.1993, he along with his brother Bhudiya, Mangu and others had gone to village Gamla to attend the wedding. While returning when they went to accused No. 1 Amra Madiya's place as his son's marriage was scheduled on that day, his brother Mangu was detained and handed over to police by Amra Madiya and others. Since his brother was handed over to the police on the following day i.e. on 23.2.1993, he along with Pidiya and others went to question him as to why his brother was handed over to police. Both of them returned to the village and went back at Amra Madiya's place at around 4 in the evening with others. At this point of time Amra Madiya and Tejiya Madiya, accused No. 1 and 2 were carrying a dhariya, Kanu Madiya and Manu Madiya were carrying bow and arrow. They started accusing Pidiya Ditiya and attacked him with the dhariya. When Pidiya ran towards the hillock, Amra Madiya and Tejiya Madiya accused No. 1 and accused No. 2 hit him on his head with the dhariya, Suresh Rama was attacked by Mesu Bhavla and Ditiya Narsing accused No. 5 and 6 with bow and arrow. Suresh suffered injuries on the cheek as a result of hit by arrow. The others Mangaliya Nura, Bhudiya Tejiya, Raman Mathur in order to escape the attack ran towards the house of Sarpanch. In the meantime, the other villagers gathered at the scene. Pidiya Ditiya succumbed to his injuries. Suresh Rama who was injured also succumbed to the injuries.
3. Charge was therefore, framed at exh.3, whereby six accused were charged for offence under sections 147, 148, 149, 302 read with section 34 of the IPC for causing death of Pidiya Ditiya and Suresh Rama and injuries to others with deadly weapons on their hand.
4. In order to sustain the charge, essentially three witnesses out of 13 witnesses have been examined who were either injured eyewitnesses or have heard about the incident.
5. Navlabhai Tejiyabhai, Prosecution Witness No. 2, was examined at exh.35. He is the complainant. According to the testimony of this witness, he along with his brother Bhudiya, Mangu Dugdo Javlo had gone to village Gamla to attend their cousin Dinesh's wedding. Next morning, when they were on their way to Itava in order to attend the wedding, they had went at Amra Madiya's place since their was a marriage at his home. They had met Nandu a girl in that family from their village. At that point of time, Amra Madiya accused No. 1 and Tejiya Madiya accused No. 2 and others started attacking them with weapons. Mangu at this point started running in other direction. He was subsequently detained by the police. On the next day, he went to Amra Madiya's place to ask him as to why his brother Mangu was detained. Mangaliya Nura, Raman Mathur, Bhudiya Tejiya, Suresh Rama accompanied him to Amra Madiya's place. Amra Madiya, according to the testimony of this witness, informed him that his brother Mangaliya was handed over to the police. Thereafter, Amra Madiya and Tejiya Madiya started attacking the complainant and others. Amra Madiya accused No. 1 and Tejiya Madiya accused No. 2 had a dhariya whereas Ditiya Narsing, Mesu Bhavla, Kanu Madiya and Manu Madiya were carrying bow and arrow. According to this witness, all of them started attacking these persons. As a result of this, all of them ran towards the field. Some ran towards the hillock, rest of them ran towards the north direction. Tejiya Madiya had attacked Pidiya Ditiya with dhariya. Amra Madiya had also attacked Pidiya Ditiya on his head with dhariya. Pidiya Ditiya died on the spot. When they started running away from the sce
