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Judgment
A.S. Supehia, J
Rule.
On 26.9.2023, this Court had passed the following order:
“Though served, no one has entered appearance on behalf of the respondents.
Stand over to 10.10.2023.
Today, though served, no one has appeared on behalf of the respondents.
The present application is filed seeking leave to appeal against the judgment and order of acquittal dated 13.02.2023 passed by Additional Sessions Judge, Amreli in Sessions Case No. 51 of 2011.
Learned APP submitted that the present application may be allowed since the Trial Judge has not appreciated the evidence so prospective and has erroneously acquitted the respondents for the offence which they were charged.
Learned APP further submitted that the Trial Court has failed to appreciate evidence of PW1, Dr. Tarik Yasinbhai Baloch at Exh.20. According to evidence of this witness, on 17.10.2009, while he was discharging his duties as a Medical officer with Una Samoohik Arogya Kendra, the injured complainant Bhavan Devabhai Bambhaniya and prosecution witnesses Chothiben Panchabhai Bambhaniya, Pancha Rama, Dhirubhai Bhagwanbhai, Khoda Pancha and Babubhai Panchabhai Bambhaniya were brought before him for treatment. According to evidence of this witness, the injuries caused to the complainant and prosecution witnesses were fatal in nature and the same were possible by hard and blunt substance, then in that case the learned Judge has committed error in acquitting the respondents for the offence under Sections 307 and 325 of the Indian Penal Code, 1860 (the IPC).
Learned APP further submitted that the Trial Court has failed to appreciate evidence of PW2 (complainant) Bhavanbhai Devabhai Bambhaniya at Exh. 54. According to evidence of this witness, the incident has taken place prior to four years in between 5.00 to 6.00 p.m. According to evidence of this witness, while accused Punjabhai Nathubhai was installing pipeline in his field, he has informed not to install the pipeline in field, the accused persons gone away at home and while complainant alongwith Babubhai were returning home, the accused persons, including Punjabhai Nathubhai, Pravinbhai Nathubhai, Samatbhai Punabhai, Kalubhai Chothabhai, Dhirubhai Samatbhai and Lakhmanbhai Samatbhai made assault upon the complainant and prosecution witnesses, in which Punjabhai Nathubhai was armed with dharia, Samatbhai Punabhai was armed with pipe, Kalubhai Chotabhai was armed with axe, Pravinbhai Nathubhai was armed with bhala, Balubhai Chothabhai was armed with badiyo (stick). According to evidence of this witness, the accused Punjabhai inflicted axe blow on the head of Babubhai Panchabhai and accused Kalubhai Chothabhai inflicted dharia blow on the head, but he is not aware about the assault made on his right hand due to which the last finger of the right hand has been cut off. Thereafter, all the accused persons gave blows of their respective weapons haphazardly to the complainant and prosecution witnesses and therefore, the learned Judge has committed error in acquitting the respondents for the offence under Sections 307 and 325 of the IPC.
Learned APP submitted that the Trial Court has failed to appreciate evidence of PW3, Dr. Jayantibhai Jaysukhbhai Chikani at Exh. 73. According to evidence of this witness on 18.10.2009, while he was discharging his duty with Civil Hospital, Junagadh, he has examined injured Babubhai Panchabhai and before this witness, the injured gave history that he is assaulted by a mob of 10 to 12 persons at village Bhada. According to evidence of this witness, the injuries caused to the injured could have been possible by dharia, axe, bhala, sticks etc. and were fatal in nature, then in that case, the Trial Court has committed error in acquitting the respondents for the offence under Sections 307 and 325 of the IPC.
Similarly, learned APP submitted that the Trial Court has failed to appreciate the evidence of PW1, Dr. Tarik Yasinbhai Baloch at Exh. 20 and PW3, Dr. Jayantibhai Jaysukhbhai Chikani at Exh.73, which would establish that the injuries caused to the injured Babubhai on the head was fatal in nature.
We have heard learned APP.
According to the prosecution case on 17.10.2009 at about 17. 00 hours at village Bhada, the complainant Bhavanbhai Devabhai informed the respondents not to install the irrigation water pipeline in his filed and accordingly enmity has taken place and in continuation of the aforesaid enmities, all the accused persons with clear intention to fulfill their motive, formed an unlawful assembly and though it was within knowledge of the respondents that unlawful assembly formed by them is illegal, despite the fact as a part of the member of unlawful assembly, assaulted upon the complainant and prosecution witnesses by their respective weapons like axe, dharia, bhala, iron pipe, wooden dhoka and sticks and out of the aforesaid accused persons, accused Punjabhai gave blow of axe on the head and right hand last finger of the complainant – Punjabhai and also caused injuries to prosecution witnesses – Dhirubhai, Babubhai, Chothiben Panchabhai, Rambhai and Khodabhai and thereby caused fatal injuries. Thus, the respondents have attempted to cause death of the complainant and committed breach of notification issued by District Magistrate, Amreli and committed offence under Sections 307, 323, 325, 147, 148, 149 of the IPC and Section 135 of the Gujarat Police Act. Therefore, a complaint in this regard has been lodged before Police Inspector, Nageshri Police Station, which was registered as CR No.I-28/2009 for the offences under Sections 307, 325, 323, 147, 148, 149 of the IPC and investigation machinery put into motion.
Despite the issuance of Notice, the respondents have chosen not to appear and the averments and the contentions raised in the application seeking leave to appeal remain uncontested.
Considering the submissions advanced by the learned advocate for the applicant and the avernments made in the application, the present application deserves to be allowed. The present application is accordingly allowed. Rule made absolute.