Kanubhai Udesing Bariya and Others vs State of Gujarat

Z.K.Saiyed, J.—The Appellants have preferred the present Appeal u/s 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction and sentence dated 01st April 2000 passed by the learned Additional Sessions Judge, Panchmahals at Godhra, in Sessions Case No. 351 of 1999, whereby the learned Judge was pleased to convict the Appellants-accused under Sections 304 Part-II and 324 of the Indian Penal Code.

It is the case of the prosecution that on 16th September 1999 at the time when the complainant and her husband was at home, the accused No. 1 came and asked for chicken (hen). Therefore, the complainant replied that wait until her son came. It is also the case of the complainant that listening the reply of the complainant, the accused No. 1 got annoyed and in abusing language asked the complainant to give him chicken (hen). At that point of time, two son of the complainant came and told the accused No. 1 to go away. It is the case of the complainant that the accused No. 1 got annoyed and gave a stick blow to her son Kanu on his nose. Thereafter, accused Nos. 2 and 3 came there and the accused No. 3 gave Axe blow on the head of her son Ramesh. It is also the case of the complainant that seeing this, her daughter-in-law, wife of Ramesh, intervened. It is the case of the complainant that the accused No. 2 had given Axe blow on her head. It is further the case of the complainant that thereafter all the accused have given kick and fist blows to her, Minaben, daughter-in-law and her daughter. It is also the case of the complainant that all the accused have also given kick and fist blows to her husband also. It is the case of the complainant that thereafter, as the peoples gathered, all the accused ran away by abusing us. Therefore, after taking treatment, complaint was registered by the complainant.

Thereafter statements of some witnesses were recorded and panchnama of seen of offence was also drawn. Thereafter, charge was framed against the Appellants-accused and as they have denied the case and claimed to be tried, trial was conducted against the Appellants-accused persons.

Thereafter the trial was conducted before the learned Judge. To prove the case of the prosecution, prosecution has examined five witnesses and also produced oral as well as documentary evidence in support of the prosecution case. After filing of the closing pursis, the learned Judge has recorded the statements of the present Appellants-accused u/s 313 of the Code of Criminal Procedure, 1973, in which the Appellants have denied the case of the prosecution and contended that false case is filed against them.

After hearing both the sides at length, the learned Additional Sessions Judge, Panchmahals at Godhra, passed the judgment and order of conviction and sentence dated 01st April 2000 in Sessions Case No. 351 of 1999, whereby the learned trial Judge was pleased to convict the Appellants u/s 304 Part-II read with Section 114 of the Indian Penal Code and ordered to undergo rigorous imprisonment for a period of four years and also imposed fine of Rs. 500/- each, and in default of payment of fine, ordered to undergo rigorous imprisonment for a further period of one month. The learned trial Judge has also convicted the Appellants u/s 324 read with Section 114 of the Indian Penal Code and ordered to undergo rigorous imprisonment for a period of one year and also imposed fine of Rs. 250/- each, and in default of payment of fine, ordered to undergo rigorous imprisonment for a further period of one month. However, it was clarified that both the sentences shall run concurrently.

Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence dated 01st April 2000 in Sessions Case No. 351 of 1999, the Appellants above-named preferred the present appeal.

Heard Mr. B.Y. Mankad, learned Counsel for Mr. U.M. Shahstri, learned Counsel for the Appellants and Mr. R.C. Kodekar, learned Additional Public Prosecutor for the Respondent-State.

Mr. Mankad has contended that the Respondent No. 3-accused has expired and therefore, case against the Respondent No. 3-accused is abated. He has also contended that the witnesses have turned hostile and even documentary evidence is also not supported the case of the prosecution beyond reasonable doubt. He has read the oral evidence of P.W. No. 1 and contended that from the oral evidence of this witness, injury is established, but in cross-examination, doubt is created. He has also read the oral evidence of P.W. No. 2 and contended that this witness was unable to identify the accused as well as role of the accused persons. He has also read the oral evidence of P.W. No. 3 and contended that she is also unable to explain the role of the Appellants and even present of the accused is also not established. He has also read the oral evidence of other witnesses and contended that they have also not supported the case of the prosecution and even identification and presence of the Appellants-accused is not established beyond reasonable doubt. He, therefore, contended that looking to the facts of the case, circumstantial evidence produced on record of the case, conduct of the complainant and other witnesses and the documentary evidence produced on record of the case, the judgment and order of conviction passed by the learned Judge is illegal, unjust and bad in law and hence, the same is required to be quashed and set aside in the interest of justice.

As against this, Mr. R.C. Kodekar, learned Additional Public Prosecutor, has read the charge as well as oral evidence and documentary evidence of the prosecution witness and argued that the order passed by the learned trial Judge is absolutely just and proper. He has also contended that the learned trial Judge has considered each and every aspects of the matter and has passed absolutely just and proper order. He, therefore, contended that the judgment and order of conviction and sentence passed by the learned trial Judge is required to be confirmed.

I have gone through papers produced before me and the judgment and order of conviction passed by the learned trial Court. I have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions advanced by learned Counsel for the parties.

Looking to the papers produced on record and facts and circumstances of the case, it appears that eye-witnesses are unable to identify the Appellants-accused and even prosecution has failed to establish the role of the Appellants-accused. It is true that medical evidence is corroborative piece of defence, but when the eye-witnesses have not supported the case of the prosecution, I am of the opinion that learned trial Judge has committed grave error in passing the judgment and order. Looking to the overall facts of the case, circumstantial evidence produced on record, I am of the opinion that when prosecution has failed to prove its case beyond reasonable doubt against the Appellants-accused, the judgment and order of conviction and sentence passed by the learned trial Judge is required to be quashed and set aside.

From the perusal of the papers and oral as well as documentary evidence, I am not in agreement with the reasons assigned by the learned trial Judge and I am of the opinion that the learned trial Judge has committed error in convicting the Appellants. Hence, the judgment and order of conviction and sentence passed by the learned trial Judge is required to be quashed and set aside.

In view of above observations, present appeal is allowed. The judgment and Order of conviction and sentence dated 01st April 2000 passed by the learned Additional Sessions Judge, Panchmahals at Godhra, is hereby quashed and set aside. Since the Appellants are on bail, no order in respect of setting them at liberty is passed. The Appellants are hereby acquitted from the charges levelled against them. Bail bond, if any, shall stands discharged. Record and Proceedings, if any, be sent back to the trial Court forthwith.