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2020 Supreme(Guj) 114
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Bela M. Trivedi, A.C. Rao, JJ.
State of Gujarat – Appellant
Versus
Amra Samat Rabari & Others – Respondents
R/Criminal Appeal No. 828 of 1994
Decided On : 17-01-2020
For the Appellant : Mr. HK Patel, APP
For the Respondent: Mr. Adil Mehta
Point of Law
That in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence.
Headnote:
Indian Penal Code – Sections 302,149, 307, 143, 148 and 504 – Deceased along with his brothers were working at the field situated at Sim of Village. The accused – respondents herein were grazing their cattle near the field of the deceased. At one point of time, cattle of the accused entered into the field of deceased, and when the deceased and his brothers were trying to get the cattle out of the field, quarrel took place with the accused. During the scuffle, accused pelted stones at the head of deceased and accused inflicted stick blow on the head of deceased. When brother of the deceased intervened to save the deceased, accused inflicted stick blows on his head. Meanwhile when his brother intervened, accused inflicted stick blow on his head and on the other parts of the body. It is the case of the prosecution that all accused were beating indiscriminately. Thereafter, all the three injures were taken to Primary Health Center wherefrom they were taken to Upleta Government Hospital for further treatment where deceased had given complaint before Head Constable between 12:00 and 1:00 noon. Thereafter, all the three were referred to Government Hospital for further treatment. From Hospital injured deceased and brother were referred to Ahmedabad for further treatment. However, on the way to Ahmedabad, deceased succumbed to injuries. Therefore, his dead body was handed over to Rajkot Civil Hospital for postmortem and the brother was admitted in the Ahmedabad Civil Hospital. Held – The impugned judgment and order passed by the learned Additional Sessions Judge in Session Case is quashed and set aside. Under the circumstances, the acquittal of accused no.1 to accused no.5 is set aside. They are convicted for offences punishable under sections 302 read with Section 149, 307 read with Sections 149, 143, 148 and 504 of the Indian Penal Code and sentenced to imprisonment for life. They are ordered to pay fine and in default, to undergo simple imprisonment of two months. They shall have time for surrendering. R&P may be transmitted back to concerned trial Court forthwith. No separate sentence is imposed so far as Sections 143, 148, 149, 307 and 504 of Indian Penal Code are concerned. Concerned District Court is directed to execute this order – Appeal partly allowed. (Para 9)
Facts of the Case:
– Deceased along with his brothers were working at the field situated at Sim of Village. The accused – respondents herein were grazing their cattle near the field of the deceased. At one point of time, cattle of the accused entered into the field of deceased, and when the deceased and his brothers were trying to get the cattle out of the field, quarrel took place with the accused. During the scuffle, accused pelted stones at the head of deceased and accused inflicted stick blow on the head of deceased. When brother of the deceased intervened to save the deceased, accused inflicted stick blows on his head. Meanwhile when his brother intervened, accused inflicted stick blow on his head and on the other parts of the body. It is the case of the prosecution that all accused were beating indiscriminately.
Finding of the Court:
The impugned judgment and order passed by the learned Additional Sessions Judge in Session Case is quashed and set aside. Under the circumstances, the acquittal of accused no.1 to accused no.5 is set aside. They are convicted for offences punishable under sections 302 read with Section 149, 307 read with Sections 149, 143, 148 and 504 of the Indian Penal Code and sentenced to imprisonment for life.
Result: Appeal partly allowed.
JUDGMENT :
A.C. RAO, J.
1. The present Criminal Appeal arises out of the judgment and order dated 29.01.1994 passed in Sessions Case No.125 of 1992 whereby the learned Additional Sessions Judge, Gondal acquitted all the accused of the offences punishable under Sections 302 read with Section 149, 307 read with Sections 149, 143, 148 and 504 of the Indian Penal Code as well as Section 135 of the Bombay Police Act.
2. The prosecution case, in nut shell, is as under :
2.1 On 16.04.1992, during 9:45 to 10:00, the deceased Banesing along with his brother Pravinsinh and Narvirsinh were working at the field situated at Sim of Village Bhimora. The accused – respondents herein were grazing their cattle near the field of the deceased Banesing. At one point of time, cattle of the accused entered into the field of deceased, and when the deceased and his brothers were trying to get the cattle out of the field, quarrel took place with the accused. During the scuffle, accused Natha Maka pelted stones at the head of deceased Banesing and accused Naran Sanga inflicted stick blow on the head of deceased Banesing. When Pravinsinh – brother of the deceased intervened to save the deceased, accused Amra Samant and Batuk Bhika inflicted stick blows on his head. Meanwhile when his brother Narvirsinh intervened, accused Devarkhi Pancha inflicted stick blow on his head and on the other parts of the body. It is the case of the prosecution that all accused were beating Banesing indiscriminately. Thereafter, all the three injures were taken to Bhimora Primary Health Center wherefrom they were taken to Upleta Government Hospital for further treatment where Banesing had given complaint before Head Constable between 12:00 and 1:00 noon. Thereafter, all the three were referred to Junagadh Government Hospital for further treatment. From Junagadh Hospital injured Banesing and Pravinsinh were referred to Ahmedabad for further treatment. However, on the way to Ahmedabad, Banesing succumbed to injuries. Therefore, his dead body was handed over to Rajkot Civil Hospital for postmortem and Pravinsinh was admitted in the Ahmedabad Civil Hospital on 17.04.1992.
2.2 The Investigating Officer recorded statements of witnesses, drew necessary panchnamas and recovered the alleged weapons used in the commission of crime and having found ample involvement of the accused, the chargesheet for offences under Sections 302 read with Section 149, 307 read with Section 149, 143 and 148 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act was submitted before the learned Judicial Magistrate First Class, Upleta, who having found the case as sessions triable, committed the case to the Court of Sessions as per Section 209 of the Code of Criminal Procedure. The Sessions Court framed charges vide Exh.1 against the accused against which the accused pleaded not guilty and requested to be tried. Their further statements under Section 313 were recorded wherein also they pleaded not guilty. To prove its case, the prosecution has examined 41 prosecution witnesses and has produced about 39 documentary evidences. However, the learned Additional Sessions Judge, Gondal, at the end of the trial, vide judgment and order dated 29.01.1994 acquitted all the accused of the offences with which they were charged.
3. Mr.H.K.Patel, the learned Additional Public Prosecutor appearing for the appellant – State has contended that the judgment and order of acquittal passed by the trial Court is contrary to law and evidence on record. It is contended that trial Court has wrongly discarded the evidence of the eye-witnesses whose evidence is acceptable and believable. It is contended that the presence of prosecution witnesses Pravinsinh Khimaji (Exh.16) and Narvirsinh Khimaji (Exh.17), who are injured eye-witnesses to the incident, at the scene of offence cannot be discarded. It is contended that the evidence of these eye-witnesses is corroborated with the evidence of Jagatsinh Jilubha (Exh.18). I
