: (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) Both these appeals arise out of the judgment and order dated 9/4/1999 rendered by the Ld. Addl. Sessions Judge, Jamnagar, in Sessions Case No. 161/1996. Criminal Appeal No. 574 of 1999 came to be filed by the appellant Dhirubha Gulabsinh, who was original accused no. 3 in the aforesaid sessions case and came to be convicted for the offence punishable under section 302 of the Indian Penal Code [IPC] and was sentenced to undergo imprisonment for life and fine of Rs.1,000/, in default to undergo further simple imprisonment of one month. Being aggrieved and dissatisfied by the aforesaid order, original accused no. 3 Dhirubha Gulabsinh filed this appeal. However, in the impugned judgment, the Ld. Addl. Sessions Judge was pleased to acquit Vikramsinh Gulabsinh who was accused no. 2. Being aggrieved and dissatisfied by the acquittal recorded by the Ld. Addl. Sessions Judge, the State of Gujarat filed Criminal Appeal No. 612 of 1999. As both these appeals arise out of the same judgment, we deem it expedient to dispose of both these appeals by this common judgment.
2. The case of the prosecution, in nutshell, is as under :
2.1. It is the case of the prosecution that three accused persons Jambha Raymalji, Vikramsing Gulabsinh and Dhirubha Gulabsinh, at the relevant time i.e., on or about 1/9/1996 were residing at village Makaji Meghpar, Taluka Kalavad. Deceased Prabhatsinh was also resident of the same village. The case of the prosecution is that prior to the date of this incident, before 8 years back, younger brother of deceased Prabhatsinh named Jilubha was murdered and accused Dhirubha Gulabsinh and his family members were involved in the murder of Jilubha. It is the case of the prosecution that at about 7.00 a.m., on 1/9/1996 there was some quarrel between deceased Prabhatsinh and accused Dhirubha Gulabsinh. In that quarrel Prabhatsinh had sustained head injuries. Because of intervention of complainant Dadubha Jilubha, who is nephew of Prabhatsinh, the quarrel was subsided and complainant Dadubha Jilubha brought Prabhatsinh at his residence. However, because of head injury, Prabhatsinh desired to take medical treatment and, therefore, he requested the complainant Dadubha to take him to hospital at Kalavad. As per the case of the prosecution, complainant Dadubha accompanied Prabhatsinh in a tractor at about 8.30 a.m., on the same day i.e., 1/9/1996. When they reached near village Mota Vadala, at that time, as per the case of the prosecution, the aforesaid 3 accused persons intercepted the tractor. Therefore, complainant Dadubha had to stop the tractor and accused Vikramsinh Gulabsinh, who is respondent in Criminal Appeal No. 612 of 1999, caught the collar of the shirt of the deceased Prabhatsinh and told Prabhatsinh as to why did he quarrel with accused Dhirubha Gulabsinh in the morning. As per the case of the prosecution, even coaccused Jambha Raymalji caught Prabhatsinh. Thereupon, accused no. 3 – Dhirubha who is appellant in Criminal Appeal No. 574 of 1999 inflicted knife blows on various parts of the body of Prabhatsinh. Complainant Dadubha tried to intervene, but he could not succeed. When Prabhatsinh was brought to Kalavad in a rickshaw, he died and therefore, complainant Dadubha along with dead body of Prabhatsinh went to Kalavad Police Station and lodged FIR in connection with the offence.
2.2. The Investigating Officer prepared inquest panchnama and panchnama of the scene of offence; statements of witnesses were recorded, post mortem of the dead body of the deceased was performed by the concerned Medical Officer, weapon – knife was recovered in presence of panchas. After completion of the investigation, the Investigating Officer filed chargesheet in the Court of the Ld. Judicial Magistrate First Class, Kalavad. As the offence involved in the case was triable by the Court of Sessions, the Ld. Magistrate committed the case to the Sessions Court, Jamnagar.
2.3. The Ld. Addl. Sessions Judge framed charge against all the 3 accused persons for the offences punishable under sections 302, 341 read with section 114 of the IPC and offence under section 135(1) of the Bombay Police Act. All the three accused persons did not plead guilty and, therefore, prosecution adduced its oral and documentary evidence. After the conclusion of the evidence, the Ld. Addl. Sessions Judge recorded further statements of all the three accused persons and the defence of the accused was of total denial and they stated that they were falsely involved in this case. After appreciating the evidence on record and after hearing the arguments advanced on behalf of both the parties, the Ld. Addl. Sessions Judge delivered the impugned judgment and order on 9/4/1999 and he was pleased to convict original accused no. 3 – Dhirubha Gulabsinh, who is appellant in Criminal Appeal No. 574 of 1999 for the offence punishable under section 302 of the IPC and was sentenced to undergo imprisonment of life and fine of Rs.1,000/ and in default to undergo further simple imprisonment of one month. However, he was acquitted for the offence punishable under section 341 of the IPC and section 135 (1) of the Bombay Police Act. So far as remaining two accused persons original accused no. 1 – Jambha Raymalji and original accused no. 2 Vikramsinh Gulabsinh are concerned, they were acquitted from all the charges levelled against them by the prosecution. Out of the said two accused persons, the acquittal of accused Vikramsinh Gulabsinh is only challenged by the State of Gujarat by preferring Criminal Appeal No. 612 of 1999.
3. So far as Criminal Appeal No. 574 of 1999 is concerned, learned advocate Ms. Sadhna Sagar for the appellant original accused no. 3 Dhirubha Gulabsinh, drew our attention to a latest development regarding one notification issued by the State Government and submitted that as the appellant – accused has crossed 65 years of his age, he was given benefit of the notification and he was released from jail on 6/10/2007. Learned advocate Ms. Sagar further submitted that as the appellant – Dhirubha was released from jail, the appeal preferred by Dhirubha being Criminal Appeal No. 574 of 1999 now carries only academic value and it is further submitted that appellant accused Dhirubhai Gulabsinh is not in service of the Government or any such undertaking of the Government wherein the conviction may come in his way for his vocation and, therefore, she does not press this appeal and requested that the appeal be disposed of accordingly. Ld. APP Ms. Panchal places on record copies of jail records regarding release of the accused Dhirubha Gulabsinh on the basis of the aforesaid notification.
Considering the submission made by learned advocate Ms. Sagar, we deem it expedient to dispose of Criminal Appeal No. 574 of 1999 accordingly.
4. However, so far as Criminal Appeal No. 612 of 1999 preferred challenging the acquittal order passed by the Ld. Addl.
Sessions Judge acquitting original accused no. 2 – Vikramsinh Gulabsinh is concerned, Ld. APP Ms. Panchal submitted that the Ld. Addl. Sessions Judge erred in acquitting the accused Vikramsinh Gulabsinh, who is respondent in the aforesaid appeal. It is submitted that at the time when original accused – Dhirubha Gulabsinh inflicted knife blows on the body of the deceased Prabhatsinh, at that time Prabhatsinh was caught hold of by Vikramsinh. That Vikramsinh took active participation in the commission of the offence. That the entire case rests upon the deposition of the complainant Dadubha Jilubha, who is eye witness to the incident and the deposition of eye witness Dadubha is considered by the Ld. Addl. Sessions Judge for recording conviction of accused Dhirubha Gulabsinh, but his deposition is doubted by the Ld. Addl. Sessions Judge so far as the accused Vikramsinh Gulabsinh is concerned. That at the time of the incident, all the three accused persons including Vikramsinh Gulabsinh came together on a scooter, he took part in commission of the offence, in the sense that Vikramsinh caught collar of shirt of deceased Prabhatsinh. Therefore, it is submitted that the appeal be allowed and the order of acquittal recorded by the Ld. Addl. Sessions Judge acquitting Vikramsinh Gulabsinh be set aside and Vikramsinh Gulabsinh be convicted and sentenced appropriately for the offences charged against him.
5. We have heard the arguments of the learned advocate Mr. Lakhani for the respondent original accused Vikramsinh Gulabsinh.
6. Now perusing the evidence of the witnesses examined by the prosecution in this case, it transpires that the entire case rests upon the testimony of complainant Dadubha Jilubha, who is examined at Exh. 48 in the Sessions Case. Considering his deposition, it transpires that on 1/9/1996 two incidents took place. The first incident took place at about 7.00 a.m., in the morning wherein as per his deposition, there was quarrel between accused Dhirubhai Gulabsinh and deceased Prabhatsinh. In that quarrel, Prabhatsinh sustained some head injuries and he was in need of medical treatment and, therefore, was required to be carried to Kalavad hospital. Therefore, complainant Dadubha Jilubha in his tractor carried Prabhatsinh and they started to go to Kalavad round about 8.00 a.m., in the morning and when they reached near village Mota Vadala at about 8.30 a.m., all the aforesaid three accused persons came there on scooter and intercepted the tractor and the second incident occurred. According to deposition of Dadubha, Vikramsinh caught the collar of the shirt of Prabhatsinh. Prabhatsinh also caught hold of by coaccused Jambha Raymalji. At that time accused no. 3 Dhirubha Gulabsinh inflicted knife blows on various parts of the body of Prabhatsinh and Prabhatsinh succumbed to the injuries. Now considering the cross examination of complainant Dadubha, it transpires that there was no necessity whatsoever either for the present respondent accused Vikramsinh or coaccused Jambha to catch hold of Prabhatsinh. In his crossexamination he stated that he does not know as to at what distance he was standing at the time when Vikramsinh caught collar of the shirt of Prabhatsinh. He even went to the extent of saying that as soon as the accused persons came there, accused Dhirubha directly started inflicting knife blows. Thus, considering the deposition of complainant and manner in which the incident took place, it clearly transpires that at the time of the incident, Prabhatsinh was seated on the mudguard of the tractor. It is no where the case of the prosecution that at the time when accused Dhirubha attempted to inflict knife blow on the body of Prabhatsinh, Prabhatsinh tried to escape and, therefore, any necessity arose to catch him by the remaining two accused persons including respondent Vikramsinh. It further transpires that so far as accused Dhirubha Gulabsinh was concerned, while recording conviction, the Ld. Addl. Sessions Judge not only relied upon the deposition of the complainant cum sole eye witness Dadubha, but also relied upon the evidence in form of extra judicial confession of accused Dhirubha before the Medical Officer while stating the history of injuries on his body. Therefore, the case of the respondent accused Vikramsinh can be very well distinguished from the case of the accused Dhirubha. There is no evidence on record, much less even the case of the prosecution that the respondent accused Vikramsinh caused any injury to the deceased. It is pertinent to note that the prosecution alleged that at the time when accused Dhirubha inflicted knife blows on the body of the deceased, at that time the deceased was caught hold of not only by the respondent – accused Vikramsinh, but even by coaccused Jambha Raymalji. The Ld. Addl. Sessions Judge acquitted both the accused persons, namely Vikramsinh and Jambha Raymalji. Thus identical allegation was there against both of them. Identical evidence was adduced by the prosecution against both of them. However, the acquittal of only Vikramsinh is challenged by the prosecution by preferring the Criminal Appeal No. 612 of 1999. However, we have come to the conclusion that the Ld. Addl. Sessions Judge did not err in recording order of acquittal in favour of the respondent – accused Vikramsinh.
7. In the impugned judgment, while recording the acquittal of respondent accused Vikramsinh, the Ld. Addl. Sessions Judge took into consideration all the relevant aspects of the matter and came to the conclusion that Vikramsinh deserved acquittal. We do not find that the reasonings assigned by the Ld. Addl. Sessions Judge are perverse, arbitrary, illegal or contrary to the evidence on record. Therefore, we do not deem it expedient to interfere with the impugned judgment and order rendered by the Ld. Addl. Sessions Judge, so far as it relates to the acquittal of respondent Vikramsinh.
8. In the result, so far as Criminal Appeal No. 574 of 1999 is concerned, it stands disposed of as not pressed on merits and in light of the entire above discussion, Criminal Appeal No. 612 of 1999 filed by the State of Gujarat challenging the acquittal of respondent accused – Vikramsinh Gulabsinh deserves to be and is hereby dismissed.
( A. L. DAVE, J.) ( J .C. UPADHYAYA, J. ) *Pansala.