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2012 DIGILAW 42 (GUJ)

State of Gujarat v. Shambhu Bhikha Vedva Vaghari

2012-01-19

G.B.SHAH, RAVI R.TRIPATHI

body2012
JUDGMENT : G.B. Shah, J. Present appeal U/s. 378 of the Code of Criminal Procedure, 1973 is directed against judgment and order dated 29th March 1990, passed by the learned Additional Sessions Judge, Bhavnagar (hereinafter referred to as 'the learned Sessions Judge') in Sessions Case No. 72 of 1987, whereby, the learned Sessions Judge was pleased to acquit all the accused persons of all the charges levelled against them. 2. At the outset, it is required to be noted that present appeal is restricted qua respondent Nos. 2 and 4 as respondent Nos. 1 and 3 viz. Shambhu Bhikha Vedva Vaghari and Jiva Vana Vedva Vaghari respectively, have already expired. 3. Brief facts of the prosecution case are that the deceased – Vimalaben had gone for pilgrimage to Jain Temples situated at Shetrunjay mountain at Palitana from Ahmedabad. It is the case of the prosecution that the accused managed to take her away from the mountain on 24th April 1986 and after robbing her ornaments and other articles from her person and subsequently she was killed. 3.1 After the case was committed by the learned Judicial Magistrate First Class, Palitana, the accused were produced before the learned Sessions Judge at Bhavnagar. The learned Sessions Judge framed Charge against the accused and read over to the accused. The accused, in turn, pleaded not guilty to the charge and consequently, the learned Sessions Judge, Bhavnagar conducted the trial. 3.2 To prove the guilt against the accused, the prosecution has examined in all 37 witnesses. In order to support the case, the prosecution has produced on record several documentary evidence like FIR, Photographs with negative, Panchnama of place of offence, Map of place of offence, Discovery Panchnama, Panchnama about seizure of Gold Chain, Panchnama about identification of Gold Chain, Panchnama about seizure of Turban (Safa), Statement of Baghu Sartan recorded by learned Judicial Magistrate First Class, Bhavnagar, Copy of forwarding letter with Analysis Reports of laboratory about the bones, clay, hair, pieces of bangles etc., Copy of forwarding letter along with Report of the Anatomy Department of MP Medical College, Jamnagar, Fingerprint Expert Report along with copy of forwarding letter and so on. 3.3 At the end of trial, after recording the statements of the accused U/s. 313 of the Code of Criminal Procedure and hearing the arguments on behalf of the prosecution and the defence, the learned Sessions Judge, Bhavnagar acquitted the respondents accused of all the charges levelled against them by judgment and order dated 29th March 1990. 4. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Judge, the appellant State has preferred the present appeal. 5. We have heard learned Additional Public Prosecutor Mr. L.R. Pujari. The learned Additional Public Prosecutor vehemently submitted that the learned Sessions Judge has erred in acquitting the respondents – accused, though there are ample direct and indirect evidence to connect the accused with the crime, produced in this case. The learned Additional Public Prosecutor further submitted that the learned Sessions Judge has erred in discarding the evidence of the complainant, whose evidence gets corroboration from FIR, which was lodged immediately after the incident. The learned Additional Public Prosecutor also submitted that the learned Sessions Judge has erred in discarding the evidence of the prosecution witnesses, who have supported the prosecution case without any cogent reason. The learned Additional Public Prosecutor also submitted that the learned Sessions Judge has committed a grave error in not holding that the accused No. 1, in order to cause death of deceased – Vimalaben, assaulted her and committed murder. The learned Additional Public Prosecutor further submitted that the learned Sessions Judge has committed an error in holding that the respondents - accused had concealed the dead body of the deceased by cutting it into pieces and putting them in a gunny bag and thereby destroyed the evidence. The learned Additional Public Prosecutor also submitted that the learned Sessions Judge has committed an error in acquitting the respondents – accused of the charges of Sections 302 and 201 of the IPC. He also submitted that the learned Sessions Judge has erred in holding that the prosecution has failed to prove that the accused Nos. 2 to 4 had dishonestly possessed the Golden ornaments. Last but not least, the learned Additional Public Prosecutor submitted that the judgment and order of acquittal passed by the learned Sessions Judge is erroneous and is required to be quashed and set aside. 6. 2 to 4 had dishonestly possessed the Golden ornaments. Last but not least, the learned Additional Public Prosecutor submitted that the judgment and order of acquittal passed by the learned Sessions Judge is erroneous and is required to be quashed and set aside. 6. We have carefully considered the submissions made by the learned Additional Public Prosecutor in light of the oral as well as documentary evidence forthcoming on the record. Referring the said evidence, it is clear that the case of the prosecution mainly stands on the circumstantial evidence. It is important to note that, in this matter, initially, an inquiry was held vide Inquiry No. 2 of 1986 by the Head Constable Shri R.M. Parmar of Palitana Town Police Station. Thereafter, the Inquiry was proceeded with by local PSI Shri Rajpara. During the course of the inquiry, statements of several witnesses were recorded but no clue could be found and so, the matter was handed over to C.I.D. Crime Branch Police. It appears that, in the beginning, Police Inspector Shri Jadeja proceeded with the said Inquiry. He also recorded some statements and verified the statements previously recorded in the Inquiry. It further appears that, after the said inquiry was handed over to C.I.D. Police Inspector Shri Pardeshi, he also recorded statements of several witnesses and accordingly, Shri Pardeshi proceeded with the said inquiry from 28th October 1986 to 22nd November 1986 and on 22nd November 1986, on the basis of the FIR, exh. 135 of the first informant, Mr. Pardeshi registered the offences of this case as referred above. 6.1 It is the case of the prosecution that incident of abduction of Vimalaben near Padmavati Temple was seen by witness Pushpashriji Maharaj. Her deposition is at exh. 127, recorded in Hindi language by the Chief Judicial Magistrate, Gwalior (Madhya Pradesh) as per the Commission issued by the concerned Court. She has mainly deposed that, 'while getting down the hill, the said woman, when she reached near Padmavati Temple, at that time, one man, by catching hold of the throat of that woman, had forcibly taken away the said woman on left side. The said man covered his head with a piece of cloth, which covered his both ears'. According to this witness, she had not seen the face of the said man because she was frightened and talked about the incident to a Jain Saint - Chunilal Maghaji. The said man covered his head with a piece of cloth, which covered his both ears'. According to this witness, she had not seen the face of the said man because she was frightened and talked about the incident to a Jain Saint - Chunilal Maghaji. On the said night, at about 2 O'clock, police had visited this witness and on being asked, she informed the police that, 'she had illusion about the incident'. It is not in dispute that the witness – Chunilal Maghaji had not seen any woman being taken away by any person. He only came to know about the incident from Pushpashriji Maharaj. He (Chunilal) has further deposed that, 'after he reached Dharmashala, he talked about the incident to Munim of the said Dharmashala'. Thus, we can see that nothing fruitful has come out from the above depositions, who are the main witnesses as per the case of the prosecution. 6.2 The prosecution has also examined one Gokul Ghugha at exh. 25. According to the case of the prosecution, this witness saw accused No. 1 taking away Vimalaben on his head in the Chhiperwala Gala of the mountain. He was on the upper side of the mountain and that, on the lower side of the mountain, one Baghu Sartan was grazing his goats. He further stated that, the said man, who was going with on his head something like goat or something else and the said man had run away in the Chhiperwala Gala and so, he made shouts and asked Baghu as to with what, whether with goat or with anything else, the said man was going and that, who was going in the Gala whereupon, Baghu replied that said man was like Shambhu'. So, the version of this witness – Gokul Ghugha is that, the man who was seen by him, running away in the Chhiperwala Gala had on his head something and said man was like Shambhu and he came to know about this from the witness – Baghu Sartan. The prosecution has also examined Baghu Sartan at exh. 53, but there is nothing in the deposition of Baghu Sartan to show that he informed witness – Gokul Ghugha that the man who was running away in the Chhiperwala Gala looked like Shambhu. On the contrary, Baghu Sartan, exh. The prosecution has also examined Baghu Sartan at exh. 53, but there is nothing in the deposition of Baghu Sartan to show that he informed witness – Gokul Ghugha that the man who was running away in the Chhiperwala Gala looked like Shambhu. On the contrary, Baghu Sartan, exh. 53 has stated that, 'in this matter, he came to know from witness – Gokul Ghugha that one man was seen by Gokul Ghugha running away. Even in the deposition of Baghu Sartan, there is nothing to show that Gokul Ghugha told him that the said man was like Shambhu or Shambhuda – accused No. 1 of this case'. 6.3 It is the fact that the statement exh. 99 of Baghu Sartan under Section 164 of the Criminal Procedure Code was recorded before the learned Magistrate. The witness - Baghu Sartan, in his deposition on oath before the trial Court, has not supported the contents of his statement at exh. 99. He has deposed that, he had made the said statement before the learned Magistrate out of fear of beating by police. No doubt, this fact had not been disclosed before the learned Magistrate. Under the circumstances, it can be said that Baghu Sartan has made contradictory statements and it can be easily said that he is a perjurer but thereby, his statement - exh. 99 cannot be taken as substantive evidence and it does not help the prosecution to prove the case against the accused, more particularly, accused No. 1, who has already expired. 6.4 Thus, referring the above-referred depositions of the main witnesses, the learned trial Judge has rightly held that the prosecution has miserably failed to prove the circumstantial evidence to connect the accused with the crime alleged against them. 6.5 It is important to note that the prosecution has relied upon evidence about the discovery of bones, hair etc. at the instance of accused No. 1. The discovery of incriminating articles viz. bones, hair by accused No. 1 is not proved beyond doubt against accused No. 1. According to us also, the alleged discovery does not comply with the provisions of Section 27 of the Evidence Act, 1872 and so, the evidence of discovery of the bones etc. is of no value or assistance to the prosecution to prove the offences charged against accused No. 1. According to us also, the alleged discovery does not comply with the provisions of Section 27 of the Evidence Act, 1872 and so, the evidence of discovery of the bones etc. is of no value or assistance to the prosecution to prove the offences charged against accused No. 1. It is very material to note that it is not proved beyond doubt that the incriminating bones, cluster of hair and pieces of plastic bangles, which are recovered in this case, belonged to the deceased – Vimalaben Champalal and there is no evidence on record to prove beyond doubt what was the cause of death of Vimalaben, is the finding of the learned trial Judge and we find ourselves in agreement with the same. 7. It is well settled that in acquittal appeal, where there is a possibility of two views, the one favourable to the accused should be adopted. It is also well settled principles of law that the Appellate Court would be slow to interfere in an order of acquittal until and unless the judgment of the trial court is perverse or demonstrably unsustainable. In the present Appeal, we find that the reasons given by the learned trial Court are plausible, cogent and convincing. Thus, in light of the evidence on record, it cannot be said that the learned trial Court has committed any error in acquitting the accused. 7.1 It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. 7.1 It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka v. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under: “… This court has observed in Girija Nandini Devi v. Bigendra Nandini Chaudhary ( AIR 1967 SC 1124 ) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.” 7.2 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the detailed discussion of evidence is not necessary. 8. In view of the aforesaid discussion, this Court finds no substance in the appeal. The appeal fails and is dismissed. The impugned judgment and order dated 29th March 1990 passed by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No. 72 of 1987 is confirmed. Bail Bonds stand cancelled. 8.1 The office shall send back the Record & Proceeding to the trial Court forthwith, after following the due procedure. Appeal dismissed.