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2015 DIGILAW 1004 (GUJ)

State of Gujarat v. Javaji Pujaji Tabiyad

2015-10-08

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT : K.S. Jhaveri, J. 1. Heard learned Additional Public Prosecutor Mr. L.R. Pujari for the appellant - State and learned Advocate Mr. Mrudul M. Barot for the respondents No. 1 and 2. 2. By way of this Appeal, the Appellant - State has felt aggrieved by the judgment and order of acquittal dated 15.03.2007 of the learned Additional Sessions Judge, 2nd Fast Track Court, Sabarkantha-Himmatnagar, Camp Idar in Sessions Case No. 31/2006 whereby the respondents herein were acquitted of the offences punishable under Section 302 read with Section 34 of the Indian Penal Code and under Section 135 of the Bombay Police Act. 3. The case in brief and the incident which occurred on 05.07.2005 are as under :- 3.1. The case of the prosecution is that the complainant is originally a resident of Malasa, Taluka Bhiloda, District Sabarkantha and at the relevant point of time, he was residing at Himmatnagar Railway Quarters. On the said day, the complainant received a telephonic message from Rupjibhai Kavjibhai Tabiyad, son of the uncle of the complainant who told him to come urgently at home. The complainant rushed to the house and found that a mob had gathered in front of the house and the dead body of the mother (Dituben) of the complainant was kept in the cot before the house. It is further the case of the prosecution that the mother of the complainant was seriously injured, was having a stab wound on the throat and there was a profuse bleeding. Thereafter, the complainant was informed by his wife Vinaben that at about 12.30 hours in the night while she was sleeping before her house, the brother of the complainant - Javaji and his brother-in-law Govind Kavji Kharadi were going towards the house of Dituben. At the relevant point of time, it is stated that Govindbhai was armed with an axe and both were quarrelling with Dituben. Vinaben further stated that early in the morning at about 6.00 am while she was going to feed grass to the cattle, she gave a call to her mother-in-law but she did not get up, she went to the place of the incident and saw that Dituben had expired and there were also some stab injuries. Information was passed to the members of the family and at the relevant point of time, brother of the complainant - Jivaji was not available at home. Information was passed to the members of the family and at the relevant point of time, brother of the complainant - Jivaji was not available at home. It is further the case of the prosecution that Ajaykumar, who is the son of the complainant's brother Jivaji was sick since the last three years and therefore, Jivaji had suspected his mother - Dituben to be a witch. On this suspicion of his, Jivaji had quarrelled with his mother time and again and also had said that this witch needs to be taken care of. Therefore, it is the case of the prosecution that Jivaji in collusion with his brother-in-law had assaulted the mother of the complainant and thereby caused her death. 3.2. A complaint in this regard was filed before the Police Sub-Inspector, Bhiloda. The police recorded the statement of witnesses and after thorough investigation, the chargesheet was filed in the Court of the learned Judicial Magistrate First Class, Bhiloda as and as the offences were exclusively triable by the learned Sessions Court, the same was committed to the Court of the learned Additional Sessions Judge, Fast Track Court No. 2, Himmatnagar, Camp at Idar for trial and it was numbered as Sessions Case No. 31/2006, where the respondents accused pleaded not guilty to the charges levelled against them and claimed to be tried. At the end of the trial, the learned Judge after appreciating the evidence acquitted the respondents vide his judgment and order dated 15.03.2007. 3.3. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exhibit Complainant Chandubhai Pujabhai Tabiyad 15 Vinaben Chandubhai Tabiyad 16 Panch Witness bhurjibhai Singhaji Tabiyad 17 Roopjibhai Kavjibhai Tabiyad 21 Panch Witness Somabhai Punjabhai Tabiyad 24 Dr. 3.3. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exhibit Complainant Chandubhai Pujabhai Tabiyad 15 Vinaben Chandubhai Tabiyad 16 Panch Witness bhurjibhai Singhaji Tabiyad 17 Roopjibhai Kavjibhai Tabiyad 21 Panch Witness Somabhai Punjabhai Tabiyad 24 Dr. Hariman Khimjibhai Kharadi 32 Panch Witness Jivaji Medaji Ninama 35 Panch Witness Maganbhai Medabhai Ninama 38 Investigating Officer Ishwarbhai Dhanjibhai Rathod 40 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exhibit Inquest Panchnama of the body of the deceased 18 Panchnama of the scene of offence 19 Panchnama of the seizure of clothes of the deceased 25 Panchnama of the position of the body of the deceased 26 Past Mortem Note of the deceased 33 Yadi regarding the post mortem of the deceased 34 Panchnama of the body of the accused and the seizure of the clothes worn by the accused 36 Map of the scene of offence 39 Original complaint 41 Yadi regarding preparation of the map of the scene of offence 43 Report prepared by the Scientific Officer 44 Serological Report alongwith the muddamal 48 Message sent by the Assistant Police Commissioner 49 4. Learned Additional Public Prosecutor Mr. L.R. Pujari has submitted that the learned Judge without appreciating oral as well as documentary evidence on record of the case has straightway arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubt that the respondents have committed offences under Section 302 read with Section 34 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act. It is further submitted that the learned Judge has not properly appreciated the evidence of Vinaben Chandubhai, wife of the complainant at Exhibit 16 whereby this prosecution witness has clearly deposed in her deposition that the deceased Dituben is her mother-in-law and has narrated the incident in detail. Further, the evidence of complainant Chandubhai Pujabhai Tabiyad at Exhibit 15 and Panch-witness Bhurjibhai Singabhai Tabiyad at Exhibit 17 ought to have been appreciated. It is further submitted that the learned Judge has not properly appreciated the evidence of Maganbhai Medaji at Exhibit 38 wherein this prosecution witness has also stated the fact that he was called to the police station alongwith his brother on 11.07.2005. This prosecution witness has also identified accused Govind as well as the signature in panchnama at Exhibits 36 and 37. This prosecution witness has also identified accused Govind as well as the signature in panchnama at Exhibits 36 and 37. It is also submitted that the learned Judge has committed an error in holding that the incident had occurred at about 12.30 hours at night and therefore, it was not possible to identify the accused persons in the absence of light. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge be upturned. 5. Learned Advocate for the respondents No. 1-2 Mr. Mrudul M. Barot has relied on the various judgments of the Hon'ble Supreme Court which are detailed hereinbelow and has further submitted that the entire case rests on circumstantial evidence and the prosecution has miserably failed to prove the theory of the accused and the deceased being 'last seen together'. Hence, it is submitted that the judgment and order of the learned Sessions Judge requires no interference by this Court. 6. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006) 6 S.C.C. 39 , the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:-- "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." 7. Further, in the case of Chandrappa Vs. State of Karnataka reported in (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles: 42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: [1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: [1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." 8. Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the Trial Court. 9. Even in the case of State of Goa V. Sanjay Thakran & Anr. reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under: "16. 9. Even in the case of State of Goa V. Sanjay Thakran & Anr. reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under: "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 10. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors. reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 11. In the case of Luna Ram Vs. Bhupat Singh and Ors, reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under:-- "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so-called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The High Court has noted that the prosecution version was not clearly believable. Some of the so-called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the post-mortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." 12. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SCC 321 , the Apex Court in para 4 has held as under:-- "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellant very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 ]." 13. 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 Vs. Hemareddy, reported in AIR 1981, SC 1417, wherein it is held as under:-- "This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary ( (1967) 1 SCR 93 : AIR 1967 SC 1124 ) that it is not the duty of the Appellate 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." 14. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors. Vs. State of Karnataka, reported in JT 2013 (7) SC 66. 15. We have heard learned Advocates for the parties and perused the records of the case. While going through the well reasoned judgment and order of the learned Sessions Judge, it is clearly held that the prosecution has miserably failed to establish its case. It does not also come on record as to how the accused is alleged to have committed the same. Paragraphs 21, 22 and 23 of the said judgment and order clearly establish this fact. Further the evidence brought on record also does not strengthen the case of the prosecution. Hence, this Court is in full agreement with the reasons given and findings recorded by the Trial Court while acquitting the accused and adopting the said reasons as well as the reasons aforesaid, in our view, the impugned Judgment is just, legal and proper and requires no interference by this Court. 16. The Appeal is devoid of merits and stands dismissed. 16. The Appeal is devoid of merits and stands dismissed. The judgment and order of acquittal dated 15.03.2007 of the learned Additional Sessions Judge, 2nd Fast Track Court, Sabarkantha-Himmatnagar, Camp Idar in Sessions Case No. 31/2006 stands confirmed. Bail and bail bond, stands cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.