Gujarat High Court
State Of Gujarat vs Aher Devshi Ranmal on 27 January, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
R/CR.A/394/1997 JUDGMENT DATED: 27/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 394 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
AHER DEVSHI RANMAL & ORS.
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Appearance:
MS C.M. SHAH APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 4,5,6
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
MR PM LAKHANI(1326) for the Opponent(s)/Respondent(s) No. 1,2,3
MRS R P LAKHANI(3811) for the Opponent(s)/Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 27/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal is confined to the original accused
No.2 – Ahir Devshi Ranmal, accused No.3 – Ahir Malde
Ranmal and accused No.4 – Ahir Meraman Naran, respondent
Nos.1 to 3 herein. The present appeal is abated so far as rest
of the original accused Nos.6 to 8, respondent Nos.4 to 6
herein, are concerned.
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2. The present appeal filed under Sections 378(1)((3) of the
Code of Criminal Procedure, 1973 is directed against the
judgment and order dated 31.01.1997 passed by the learned
Additional Sessions Judge, Jamnagar in Special Case No.84 of
1992.
3. The case of the prosecution, as per the charge at Exh.6
and the complaint at Exh.94, registered by the complainant –
P.W.6 is that on 24.07.1992, the accused, eight in number
had come with a tractor armed with various weapons like
scythe, iron rods and sticks assaulted the complainant and the
other injured witnesses due to some land dispute. The charge
for the offences punishable under Sections 447, 324, 326, 337,
302 read with Section 149 of the Indian Penal Code (for short
‘IPC‘) were framed against the accused persons.
4. At the end of the trial, the trial Court has convicted the
original accused Nos.1 and 5 under the provisions of Section
304 Part-1 of the IPC and sentenced them to undergo rigorous
imprisonment for 10 years and also to pay a fine of
Rs.10,000/-. The trial Court acquitted them for other charges
levelled against them and also acquitted the accused Nos.2, 3
and 4 for all the charges vide judgment and order dated
31.01.1997 passed by the learned Additional Sessions Judge,
Jamnagar in Special Case No.84 of 1992. The said acquittal
has given rise to the present appeal filed under section 378
(3) of the Code of Criminal Procedure, 1973.
5. Learned APP Ms. C.M. Shah, at the outset, while
referring to the evidence of the complainant P.W.6 – Ranmal
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Raide has submitted that the complainant in his FIR as well as
before the trial Court has categorically described the role
played by the present accused i.e. the accused Nos.2, 3 and 4
in the assault. She has submitted that the accused No.3 had
given a blow of wooden bat on the face of the complainant.
For the other accused, she has submitted they were all
present on the tractor and had arrived with other co-accused
on the day of the incident at the field of the complainant and
on refusing him not to take the tractor from that way, all the
accused had attacked them and they suffered serious injuries.
6. Learned APP Ms. Shah has also referred to the evidence
of the injured eye witness P.W.9 – Haja Jiva at Exh.66 and has
submitted that he has also reiterated the manner in which
they were assaulted by the accused. She has submitted that
the assault on this witness was so grievous that he felt
unconscious and he was thereafter referred to the Hospital.
7. Learned APP has also referred to the medical evidence
to the Doctor Vinaykant Premjibhai Chawda, P.W.2, examined
at Exh.36 and another Doctor Navinchandra Kanjibhai Haria,
P.W.3, examined at Exh.45, who has specifically narrated the
injuries suffered on the complainant and the other injured
witnesses. She has submitted that the trial Court ought to
have convicted all the accused by taking the aid of Section
149 of the IPC. She has also referred to another injured
witnesses P.W.9 – Haja Jiva, who has been examined at Exh.66
and an eye witness P.W.10 – Devabhai Maldebhai, who has
been examined at Exh.67.
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8. While referring to the evidence of the Investigating
Officer P.W.15 – Jaydevsinh Jaywantsinh Jadeja, who has been
examined at Exh.106, she has submitted that his evidence
categorically reveals that the incident had occurred on the
said day. She has also referred to the deposition of
Investigating Officer P.W.20 – Vikramsinh Dasrathsinh Gohil,
who has been examined at Exh.121 and has submitted that his
evidence reveals that the incident had occurred and all the
accused were present on that day and have assaulted the
deceased as well as injured persons. Thus, it is submitted that
the acquittal recorded by the trial Court may be reversed.
9. In support of her submissions, learned APP has referred
to the decision of the Supreme Court in case of Mano Dutt
And Another vs. State of Uttar Pradesh, (2012) 4 SCC 79, for
the proposition of law that the absence of any investigation
with regard to the injury suffered by the accused, cannot be
made the basis for their acquittal.
10. Per contra, learned senior advocate Mr. P.M. Lakhani
appearing for the respondents-accused has submitted that the
acquittal recorded by the trial Court may not be interfered, as
there is no perversity or illegality committed by the trial Court
in acquitting the accused. He has submitted that in fact, there
is no investigation done with regard to the assault on the
accused by the complainant side. He has referred to the
statements recorded under Section 313 of Cr.P.C. and
submitted that the accused have categorically stated that
initially the assault was done by the complainant side and they
had acted in self-defence and due to the quarrel injuries had
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suffered on both the sides.
11. Learned senior advocate Mr. P.M. Lakhani has referred
to the medical evidence of the accused and submitted that
they were also grievously injured whereas, all the injured
witnesses as well as the complainant has suppressed the
incident. It is also submitted that the investigation with
regard to the injuries suffered by the accused is not
investigated and hence, the trial Court has precisely acquitted
the accused for the offences. It is also submitted that the facts
of the case and the manner in which the incident had
occurred does not satisfy the ingredients of section 149 of the
IPC and as the trial Court has not taken aid of the said section
while convicting the other accused.
12. In support of his submission, learned senior advocate
Mr. Lakhani has placed reliance on the judgment in case of
Lakshmi Singh and Others v. State of Bihar, AIR 1976
Supreme Court 2263.
13. Since the appeal is only confined to the original accused
Nos.2, 3 and 4 i.e. Ahir Devshi Ranmal, Ahir Malde Ranmal
and Ahir Meraman Naran, we have examined the matter and
the evidence as well as the judgment of the trial Court in
context to their role, as canvassed by the prosecution before
the trial Court and learned APP before us. On a perusal of the
charge at Exh.6, we have noticed that there is no specific
allegations levelled against the accused Nos.2 and 4 i.e. Ahir
Devshi Ranmal and Ahir Meraman Naran. However, the
charge refers to the role played by the accused No.3 – Ahir
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Malde Ranmal and the offence under Section 326 of IPC has
been invoked against him along with accused Nos.7 and 8 for
assaulting the complainant.
14. The deposition of the complainant at Exh.61 describes
the role of the accused No.2 only. There is no reference to the
role to the accused Nos.1 and 3 in his deposition except that
they were sitting on a tractor. It is deposed that the accused-
Ahir Malde Ranmal had assaulted him with the wooden bat on
his face. When he was confronted with the other evidence
about the assault and the injury suffered to the accused
persons, he has totally denied the same. He has categorically
in his cross-examination stated that he has not seen anyone
suffering the injuries of any blood oozing from the body of the
accused. Thus, he has totally denied the other incident.
Similar is the evidence of the other eye witnesses P.W.9 as
well as P.W.10.
15. At this stage, we may refer to the deposition of P.W.3 –
Dr. Navinchander Kanjibhai, which has been examined at
Exh.45. He has referred to the injury suffered by the accused-
Malde Ranmal and he refers that he has suffered three
injuries. The Medical Certificate produced at Exh.51 of the
said accused reveals following injuries:
H/o Assault by Dhariya & axe today at 8 AM
O/E 1.1 W 3″ x 1″ x bone deep obliance on Lt. Parieto occipital
region lateral part2.1 W 5″ x 2″ x muscle deep on Posterior axillary grouve Lt.
3.Abrasion 1″ x 1″ on Rt.knee with stabbing
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16. From the evidence of the Investigating Officers P.W.15
(Exh.106), P.W.16 (Exh.107) and P.W. 20 (Exh.121), discloses
that there was a cross FIR, which was registered by the
present accused. Thus, it is not in dispute that incident had
occurred on said day involving the complainant side as well as
the accused side. We may also refer to the statements of the
accused recorded under Section 313 of the Cr.P.C., wherein
they have categorically stated that they were assaulted by the
complainant with deadly weapons like scythe and iron roads
and there were also pelting of stones on each other side,
which has resulted injuries. These facts are absolutely
suppressed by the witnesses.
17. The trial Court after recording the evidence of the
injured witnesses as well as the complainant has held that the
prosecution has miserably failed to prove the manner in which
the actual incident has occurred and the injuries suffered by
the accused. The medical evidence also corroborates that the
accused had also suffered injuries in the incident.
18. We may, at this stage, refer to the observation of the
Supreme Court in case of Lakshmi Singh (supra). The same
are as under:
“11. …It seems to us that in a murder case, the non-explanation of
the injuries sustained by the accused at about the time of the
occurrence or in the course of altercation is a very important
circumstance from which the Court can draw the following
inferences:
(1) That the prosecution has suppressed the genesis and the origin
of the occurrence and has thus not presented the true version;
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(2) that the witnesses who have denied the presence of the injuries
on the person of the accused are lying on a most material point
and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the
injuries on the person of the accused it is rendered probable so as
to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries
on the person of the accused assumes much greater importance
where the evidence consists of interested or inimical witnesses or
where the defence gives a version which competes in probability
with that of the prosecution one…”
19. Thus, as per the law enunciated by the Supreme Court,
the non-explanation of the injuries sustained by the accused at
the time of occurrence or in the course of altercation is very
important circumstance from which the Court can draw the
inferences, such as, the prosecution has suppressed the
genesis and the origin of the occurrence and has not
presented the true version and also that the witnesses, who
have denied the presence of the injuries on the person of the
accused are lying on a material point. It is further held that
the omission on the part of the prosecution to explain the
injuries on the person of the accused assumes much greater
importance where the evidence consists of interested or
inimical witnesses or where the defence gives a version,
which competes in probability with that of the prosecution
one.
20. The accused in their defence have specifically mentioned
that the act was done in defence, and they were assaulted by
the complainant and other persons. In the statement recorded
under section 313 of the Cr.PC, they have categorically
mentioned the assault on them. The medical evidence also
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corroborates their version. We may at this stage refer to the
decision of the Supreme Court in the case of Darshan Singh v.
State of Punjab and Another, reported in (2010) 2 SCC 333,
wherein the Supreme Court has summarized the principle and
scope of Sections 96 and 106 of the IPC, which deals with the
right of preventive defence. The same is as under :-
“58. The following principles emerge on scrutiny of the following
judgments:
(i) Self-preservation is the basic human instinct and is duly
recognized by the criminal jurisprudence of all civilized countries.
All free, democratic and civilized countries recognize the right of
private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is
suddenly confronted with the necessity of averting an impending
danger and not of self-
creation.
(iii) A mere reasonable apprehension is enough to put the right
of self defence into operation. In other words, it is not necessary
that there should be an actual commission of the offence in order
to give rise to the right of private defence. It is enough if the
accused apprehended that such an offence is contemplated and it
is likely to be committed if the right of private defence is not
exercised.
(iv) The right of private defence commences as soon as a
reasonable apprehension arises and it is coterminous with the
duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate
his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not
to be wholly disproportionate or much greater than necessary for
protection of the person or property.
(vii) It is well settled that even if the accused does not plead self-
defence, it is open to consider such a plea if the same arises from
the material on record.
(viii) The accused need not prove the existence of the right of
private defence beyond reasonable doubt.
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(ix) The Indian Penal Code confers the right of private defence
only when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of
losing his life or limb may in exercise of self defence inflict any
harm even extending to death on his assailant either when the
assault is attempted or directly threatened.”
21. The Supreme Court in the case of Sukumaran v. State
Rep. by the Inspector of Police, reported in AIRONLINE 2019
SC 137 has held as under :-
“33. Section 97 of IPC provides that a right of private defence
extends not only to the defence of one’s own body against any
offence affecting the human body but also to defend the body of
any other person. The right also embraces the protection of
property, whether one’s own or another person’s, against certain
specified offences, namely, theft, robbery, mischief and criminal
trespass. The limitations on this right and its scope are set out in
the sections which follow. For one thing, the right does not arise if
there is time to have recourse to the protection of the public
authorities, and for another, it does not extend to the infliction of
more harm than is necessary for the purpose of defence. Another
limitation is that when death is caused, the person exercising the
right must be under reasonable apprehension of death, or grievous
hurt, to himself or to those whom he is protecting; and in the case
of property, the danger to it must be of the kinds specified in
Section 103. The scope of the right is further explained in Sections
102 and 105 of the IPC.(See observations of Justice Vivian Bose in
Amjad Khan vs. Haji Mohammad Khan, AIR 1952 SC 165)”
22. Keeping in mind the aforesaid principles and applying
the same to the facts of the case, the evidence which is
established on record reveals that the complainant had tried
to suppress the true and correct facts. The Investigating
Officer also did not care to investigate the entire incident and
did not think it fit to call for an explanation of the injuries
suffered by the accused.
23. In the instant case, as we have noticed hereinabove and
on overall appreciation of the evidence, we completely agree
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with the findings recorded by the trial Court that the
prosecution has suppressed the genesis and the origin of the
occurrence. The witnesses have also denied the presence of
injuries on the accused and have not established themselves
as a reliable witness. Thus, the actual genesis on which the
incident had occurred is not established in the present case.
We also failed to understand the framing of charge under the
provision of section 149 of IPC in wake of the incident. The
evidence does not in any manner satisfy the ingredients of
section 149 of the IPC.
24. In the case of Ram Kumar v. State of Haryana, AIR 1995
SC 280, Supreme Court has held as under:
“The powers of the High Court in an appeal from order of acquittal
to reassess the evidence and reach its own conclusions under
Sections 378 and 379, Cr.P.C. are as extensive as in any appeal
against the order of conviction. But as a rule of prudence, it is
desirable that the High Court should give proper weight and
consideration to the view of the Trial Court with regard to the
credibility of the witness, the presumption of innocence in favour
of the accused, the right of the accused to the benefit of any doubt
and the slowness of appellate Court in justifying a finding of fact
arrived at by a Judge who had the advantage of seeing the witness.
It is settled law that if the main grounds on which the lower Court
has based its order acquitting the accused are reasonable and
plausible, and the same cannot entirely and effectively be
dislodged or demolished, the High Court should not disturb the
order of acquittal.”
25. As observed by the Hon’ble Supreme Court in the case of
Rajesh Singh & Others vs. State of Uttar Pradesh, (2011) 11
SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan
and Another vs. State of Madhya Pradesh, (2011) 6 SCC 394,
while dealing with the judgment of acquittal, unless reasoning
by the learned trial Court is found to be perverse, the
acquittal cannot be upset. It is further observed that High
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Court’s interference in such appeal in somewhat
circumscribed and if the view taken by the learned trial Court
is possible on the evidence, the High Court should stay its
hands and not interfere in the matter in the belief that if it
had been the trial Court, it might have taken a different view.
26. It is settled legal precedent that the inference of
common object has to be drawn from various factors such as,
the weapons with which the members were armed, their
movement, the acts of violence committed by them. In the
present case, when the witnesses have not established
themselves as a reliable witnesses and have not come out with
the true facts and the genesis of the incident, the present
accused cannot be convicted by taking aid of section 149 of
the IPC.
27. Thus, on the overall appreciation of the evidence and
threadbare examination of the judgment of the trial Court, we
find that the trial Court has not committed the perversity or
illegality, inviting interference of this Court while examining
the appeal.
28. In light of the above, the appeal stands dismissed.
Record & Proceedings be sent back to the concerned Trial
Court forthwith.
(A. S. SUPEHIA, J)
(GITA GOPI,J)
Pankaj /4
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