Bhanabhai Patel Vs. Navnitbhai Nathubhai Patel & Ors  Insc 207 (26 March 2004)
Balarkrishnan & B.N. Srikrishna.
APPEAL NO. 1081 OF 1997 K.G. BALAKRISHANN, J.
two appeals arise from the same Judgment passed by the Division Bench of High
Court of Gujarat whereby the respondents herein were acquitted of the charges
framed against them under Sections 144, 148, 302 read with Section 149 and
Section 135 of Bombay Police Act. Among the five respondents, the 5th respondent
passed away during the pendency of the appeals. All the respondents were found
guilty by the Addl. Sessions Judge, Surat for all the offences charged against them and for the main offence
under Section 302 read with Section 149, they had been sentenced to undergo
imprisonment for life.
appeal filed by these respondents, the High Court was of the view that the
prosecution failed to bring home their guilt. Accused no. 5 was the paternal
uncle of deceased Natwarlal Bhanubhai. Accused No. 2 is the son-in- law of
accused no. 5. Accused No. 1 is a brother of Accused No. 2. Accused no. 3 and
accused no. 4 are cousins of accused no. 2. The prosecution case was that on 13th November, 1985, all the accused formed themselves
into an unlawful assembly and went to the house of the deceased and forcibly
took him to a nearby Babul tree and caused him a series of injuries and he died
on the spot. PW 7 is the widow of deceased and PW 4 is the son of the deceased.
At the time of the incident, some children were playing in the neighbourhood.
On seeing the assault, they made a noise and after hearing the noise, PW 2, PW
3 and PW 11, the brother of the deceased came to the place of occurrence. PW 11
took the injured Natwarlal Bhanubhai to the Civil Hospital at Surat where the Doctor examined him and declared him to be dead.
the side of the prosecution, PW 7 and PW 4 were examined as eyewitnesses. PW
11, who gave the FI statement deposed that he had seen the accused persons at
the place of the incident. The High Court held that there were certain
infirmities in the prosecution case, and hence the accused persons were not
guilty of the offences charged against them.
learned Counsel for the appellant submitted that PW 7 and PW 4 who claimed to
be eyewitnesses cannot be believed for various reasons. It was submitted that
the incident happened on 13.11.1985 but these two witnesses were questioned by
the Investigation Officer only on 15.11.1985. No proper explanation was given
by the Investigation Officer. There is evidence to show that the Investigation
Officer had visited the house of the deceased on the very next day. It seems
that there was an attempt by the prosecution to show that PW 7 the widow of the
deceased was unconscious during this period and therefore, she could not be
questioned by the Police. But they could have questioned PW 4, the son of the
deceased at least on the very next day. The delay in questioning these
witnesses by the Investigation Officer is a serious mistake on the part of the
prosecution. We do not think that the High Court erred in disbelieving these
the brother of the deceased gave the FI Statement wherein he stated that he was
the eyewitness. He gave a detailed account regarding the alleged manner in
which the incident happened but when he was examined as a witness, he stated
that he came to the scene of occurrence only after the incident and the accused
were found standing near the deceased with various weapons.
the evidence of PW 11 also is tainted with certain embellishments.
learned Counsel for the respondents pointed out various infirmities in the
prosecution case. According to PW 7 and PW 4, the accused came to their house,
pulled the deceased out of the house and took him to a nearby babul tree.
the accused who were armed with weapons did not assault the deceased at the
house itself still remained a mystery? This caused some suspicion as the defence
version was that the deceased was having an affair with another woman and in
that connection, there was a quarrel and he must have been done away with by
some other assailants and they brought the dead body near the Babul tree and
left it there.
being an appeal against acquittal, this Court would be slow in reversing the
finding entered by the High Court unless there is perverse and erroneous
appreciation of evidence. If the High Court, for acquitting the accused has
given certain tenable reasons, this Court would not be justified in interfering
with such acquittal. We do not think that the High Court has taken a view which
was not plausible in view of the overall evidence given by the prosecution.
the prosecution could establish a serious and strong suspicion against the
respondents, we do not think that this case calls for reversal of the Judgment
of the High Court.
appeals filed by the de-facto complainant and by the State are dismissed