STATE OF GUJARAT versus KALUSINH @ HARPALSINH on 2 May 2019

1. This appeal is preferred by the State of Gujarat arising fromthe judgment and order dated 05.03.2009 in Criminal Appeal No.127 of2001, in and by which the High Court of Gujarat acquitted the accusedNo.2-Kalusinh @ Harpalsinh Bhamarsinh from the offence under SectionD302 and other offences.

2. Case of prosecution is that on 23.11.1997 at about 9.00 p.m.accused No.1-Ashok Singh Jayendra Singh, accused No.2-Kalusinh,accused No.3-Gayendra Singh, accused No.4-Balbadhra Singh, accusedNo.5-Dhermandra Singh along with their servant accused No.6-EMohanbhai Ramjibhai and others were ploughing the disputed landregarding which there was a civil suit pending in the civil court. Accordingto the prosecution the said land used as road was used by the complainantand his family members for having ingress and egress. On the date ofthe incident i.e., on 23.11.1997 at about 9.00 p.m. when accused personswere ploughing the land, the complainant party intervened and objectedFto their act in carrying out the ploughing.

3. Thereafter, accused Nos.1 and 2 fired three gun shots whichhit deceased Somiben, wife of Hirabhai (PW-5), Ramanbhai (PW-6)and Nandaben (PW-7) due to which Somiben died on the spot and PWs6 and 7 got injured. Thereafter, all the accused ran away from the placeGof occurrence. On the basis of the complaint lodged by complainant(PW-3), on 24.11.1997, FIR was registered against all the accused underSections 302, 307, 120B IPC read with Section 34 IPC and other offences.

4. Upon completion of investigation, charge sheet was filed againstthe appellant and other co-accused under Sections 302, 307, 120B IPC

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read with Section 34 IPC, 143, 147, 148, 149, Section 506 (II), 323 and504 IPC, under Section 25(c) of the Arms Act and under Section 3(1)(x)of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act, 1989.

5. Relying upon the evidence of injured witnesses Ramanbhai(PW-6) and Nandaben (PW-7) and recovery of weapons from theaccused, the trial court vide its judgment dated 15.11.2000 convictedaccused No.1-Ashok Singh and accused No.2-Kalu Singh under Section302 read with Section 34 IPC and sentenced them to undergo lifeimprisonment. They were further convicted under Section 307 read withSection 34 IPC and were sentenced to undergo rigorous imprisonmentfor seven years each and under Section 25(c) of the Arms Act theywere sentenced to undergo three years of rigorous imprisonment, forthe conviction under Section 3(1)(x) of the Schedule Castes and ScheduleTribes (Prevention of Atrocities) Act, 1989, they were sentencedto undergo rigorous imprisonment for six months along with find ofRs.500/-. The trial court acquitted all the other accused of all the charges.

6. In appeal, the High Court has affirmed the conviction of theaccused No.1-Ashok Singh but acquitted the accused No.2-Kalusinh byholding that the identification of Kalusinh is doubtful and the benefit ofdoubt has to be given to the accused No.2.

7. We have heard Mr. Anuj Bhandari, learned counsel appearingfor the appellant and Ms. Jesal Wahi, learned counsel appearing for therespondent. We have perused the impugned judgment and other materialsplaced on record.

8. In the complaint filed by complainant-Somabhai Rupabhai(PW-3), it has been stated that accused No.1-Ashoksinh Jayendrasinhand accused No.2-Kalusinh @ Harpalsinh Bhamarsinh fired gun shotsfrom their guns, whereas in the statement before the court, PW-3 hasstated that Kalusinh fired three shots which injured Ramanbhai(PW-6)and Nandaben (PW-7). There is thus contradiction in the case of theprosecution and sentence adduced in the court as to who fired the gunshots. Likewise, the recovery of the weapons from the accused is alsonot proved by convincing evidence. The post-mortem certificate (Ex.P-52) does not indicate as to whether the gun shots wounds on the body ofdeceased Somiben were caused by rifle or by gun. In the absence ofdefinite evidence as to whether the fatal gunshot wounds were adduced A

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Aeither by the rifle or by double barrel gun, it cannot be said that theimpugned judgment of the High Court acquitting the accused suffersfrom perversity substantial error warranting interference in the order ofacquittal

9. In the impugned judgment, the High Court observed that thereBis dispute as to the identity of accused No.2-Kalusinh and acquittedaccused No.2 by holding that the identity of accused No.2 becomessuspicious. The relevant portion of the judgment reads as under:- “It was pitch dark night at 9.00 p.m. when in the village the incidentoccurred it is alleged that there was a lamp in the lane and tractorCwas lighted but when this incident occurred and was first reported,it has not been reported in the police statement. Therefore, if theomission is taken as is occurred in the police statement, it shouldbe seen that there was no light at the time when the incidentoccurred. In this background, we would see that when the disputeabout identity of Kalusinh @ Harpalsinh is there and it is statedDthat Kalusing is not as Kalusinh and in fact Harpalsinh, a serverof Army. His identity as accused becomes suspicious in the mindof the Court. Therefore, it cannot be said that it was Kalusing @Harpalsinh Bhamarsinh who was the person who caused gunshotand who made gunshots at the incident. Therefore, he deservesEbenefit of doubt”.

10. Upon consideration of evidence adduced by the prosecution,in our view, the above findings recorded by the High Court is a plausibleview which cannot be patently erroneous warranting interference withthe judgment of acquittal. Hence, we do not find any good groundFwarranting interference with the order of acquittal insofar as accusedNo.2-Kalusinh @ Harpalsinh Bhamarsinh is concerned. This appeal is,accordingly, dismissed.

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Devika Gujral

Appeal dismissed.

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