STATE OF GUJARAT versus KALUSINH @ HARPALSINH

Citation: [2019] 7 S.C.R. 473 · Decided: 02-05-2019 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Dismissed
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Judgment (excerpt)

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STATE OF GUJARAT
v.
KALUSINH @ HARPALSINH
(Criminal Appeal No. 1125 of 2010)
MAY 02, 2019
[R. BANUMATHI AND S. ABDUL NAZEER, JJ.]
Appeal: Appeal against acquittal – Prosecution case was that
on the fateful day when the accused persons were ploughing the
disputed land, complainant party objected to their act of ploughing
whereafter accused no.1 and 2 fired three gun shots which hit wife
of PW-5, PW-6 and PW-7 – Wife of PW-5 died on the spot and PW-
6 and PW-7 got injured – Trial court convicted accused no.1 and 2
under s.302 r/w s.34 – High Court confirmed conviction of accused
no.1, however, acquitted accused no.2 by holding that the
identification of accused no.2 was doubtful and therefore he was
entitled to benefit of doubt – State’s appeal against acquittal – Held:
There was contradiction in prosecution’s case and statement made
in the court as to who fired the gun shots – Likewise, the recovery
of the weapons from the accused was also not proved by convincing
evidence – The post-mortem certificate did not indicate as to whether
the gun shots wounds on the body of deceased were caused by rifle
or by gun – In absence of definite evidence as to whether the fatal
gunshot wounds were caused either by the rifle or by double barrel
gun, it cannot be said that the impugned judgment of the High Court
acquitting the accused suffered from perversity warranting
interference – Penal Code, 1860 – s.302.
Dismissing the appeal, the Court
HELD : The High Court observed that there was dispute as to
the identity of accused No.2 and acquitted accused No.2 by holding
that the identity of accused No.2 became suspicious.  The  findings
recorded by the High Court is a plausible view which cannot be
patently erroneous warranting interference with the judgment of
acquittal. Therefore, there was no good ground warranting
interference with the order of acquittal insofar as accused No.2
was concerned. [Paras 9, 10] [476-B; E-F]
   [2019] 7 S.C.R. 473
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SUPREME COURT REPORTS
[2019] 7 S.C.R.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1125 of 2010.
From the Judgment and Order dated 05.03.2009 of the High Court
of Gujarat at Ahmedabad in Criminal Appeal No. 10 of 2001.
Ms. Jesal Wahi, Ms. Hemantika Wahi,  Kabir Hathi,  Advs. for
the Appellant.
Anuj Bhandari, Abhinav Srivastava, Ms. Ruchi Kohli, Advs. for
the Respondent.
The Judgment of the Court was delivered by
R. BANUMATHI, J.
1. This appeal is preferred by the State of Gujarat arising from
the judgment and order dated 05.03.2009 in Criminal Appeal No.127 of
2001, in and by which the High Court of Gujarat acquitted the accused
No.2-Kalusinh @ Harpalsinh Bhamarsinh from the offence under Section
302 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, accused
No.5-Dhermandra Singh along with their servant accused No.6-
Mohanbhai Ramjibhai and others were ploughing the disputed land
regarding which there was a civil suit pending in the civil court. According
to the prosecution the said land used as road was used by the complainant
and his family members for having ingress and egress. On the date of
the incident i.e., on 23.11.1997 at about 9.00 p.m. when accused persons
were ploughing the land, the complainant party intervened and objected
to their act in carrying out the ploughing.
3. Thereafter, accused Nos.1 and 2 fired three gun shots which
hit deceased Somiben, wife of Hirabhai (PW-5), Ramanbhai (PW-6)
and Nandaben (PW-7) due to which Somiben died on the spot and PWs
6 and 7 got injured. Thereafter, all the accused ran away from the place
of occurrence. On the basis of the complaint lodged by complainant
(PW-3), on 24.11.1997, FIR was registered against all the accused under
Sections 302, 307, 120B IPC read with Section 34 IPC and other offences.
4. Upon completion of investigation, charge sheet was filed against
the 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 and
504 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 the
accused, the trial court vide its judgment dated
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