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2015 DIGILAW 1078 (GUJ)

State of Gujarat v. Liyakathusein

2015-10-20

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. Jhaveri, J. 1. In Criminal Appeal No. 308/2006, learned Advocate Mr. Ashish M. Dagli appears for the respondents accused. In Criminal Appeal No. 309/2006, no objection has been taken and the respondent accused No. 2 - Mumtaj @ Mamri Kamrudin Ansari has expired on 08.05.2015. Hence, the Appeal qua him abates. Both the above appeals arise out of Sessions Cases No. 265/2002 and 270/2002 and hence, both the above Appeals are heard together. 2. Heard learned Special Public Prosecutor Mr. J.M. Panchal for the appellant - State and learned Advocate Mr. Ashish M. Dagli for the respondents No. 1 - 3. 3. By way of these Appeals, the Appellant - State has felt aggrieved by the judgment and order of acquittal dated 13.06.2005 of the learned Presiding Officer, Fast Track Court No. 9, Nadiad in Sessions Case No. 265/2002 and 270/2002 whereby the respondents herein were acquitted of the offences punishable under Sections 147, 148, 149, 302, 307 and324 of the Indian Penal Code and under Section 135 of the Bombay Police Act. 4. The case in brief and the incident which occurred on 01.03.2002 are as under:-- "3.1. It is the case of the prosecution that the incident detailed hereinbelow is the aftermath of the Godhra carnage. On the said day, at Mill Road, Majurgam area of Nadiad, the respondents are alleged to come with deadly weapons, formed an unlawful assembly and caused injuries on the victim - Vishnubhai Chelaji Thakore. The respondent No. 1 is alleged to have given a dhariya blow and the respondent No. 3 is alleged to have given a sword blow on the victim. The others are accused to have wielded hockey, pipe and caused death of Vishnubhai. The respondents are also alleged to have assaulted other persons with the intention to cause murder. An offence was registered. The respondents were tried for the offences punishable under the above Sections. The opponents were arraigned in Sessions Case No. 265/2002. Another Sessions Case No. 270/2002 was tried against the accused. Both the cases were consolidated since they arose out of the same incident. The respondents case was that of total denial. And at the end of trial, the learned Presiding Office acquitted the respondents of all the charges. 3.2. The opponents were arraigned in Sessions Case No. 265/2002. Another Sessions Case No. 270/2002 was tried against the accused. Both the cases were consolidated since they arose out of the same incident. The respondents case was that of total denial. And at the end of trial, the learned Presiding Office acquitted the respondents of all the charges. 3.2. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exhibit Panch Witness Manubhai Bavjibhai Parmar 12 Panch Witness Ashokbhai Dahyabhai Parmar 14 Panch Witness Vadhjibhai Shamijibhai Thakore 15 Panch Witness Kakasaheb Tukaram 17 Panch Witness Suryakant Chhaganbhai Tadvi 26 Panch Witness Hasmukhbhai Kalidas 28 Complainant Jayantibhai Chelabhai Thakore 31 Kantaben Gandaji 33 Kanubhai Motibhai Rana 36 Dineshlal Ambalal Thakore 37 Rakeshbhai Anantbhai Darbar 38 Dineshbhai Budhabhai Talpada 61 Dr. Minakshikumari Amravat 18 Mamlatdar Dahyabhai Keshavbhai Parmar 44 Police Witness Pravinbhai Muljibhai Meghani 39 Police Witness Kanubhai Fulabhai Talpada 41 Police Witness Pravinkumar Bhavanishankar Joshi 43 Investigating Officer PI Bharatkumar Dayaram Vaishnav 47 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exhibit Complaint of Jayantibhai Chelaji Thakore 48 Panchnama of the scene of offence 13 Inquest panchnama 20 Panchnama of the weapons used in the offence 16, 27 Original Post Mortem Note 21 Certificate of the cause of death 22 Medical Certificate of Civil Hospital, Nadiad of Rakeshbhai 23 Medical Certificate of Civil Hospital, Nadiad of Kanubhai 24 Medical Certificate of Civil Hospital, Nadiad of Dineshbhai 25 Yadi for preparation of map 45 Map of the scene of offence 46 “Marnottar Form” 49 Letter of FSL in respect of muddamal 51 Serological Report 53 5. Learned Special Public Prosecutor Mr. J.M. Panchal has submitted that the learned Presiding Officer ought to have appreciated that the said Vishnubhai was assaulted with deadly weapons by the respondents and he succumbed to the injuries so received. It is further submitted that the prosecution witness Rakesh at Exh. 39, Kanubhai Motibhai Rana at Exh. 36 and Dineshlal Ambalal Thakore at Exh. 38 had all seen the incident and they have implicated the accused. Further, the learned Presiding Officer had observed in his judgment that since the medical evidence is not supported by evidence, the eyewitness account cannot be believed, hence, the accused deserves to be given the benefit of doubt and this observation is erroneous. 38 had all seen the incident and they have implicated the accused. Further, the learned Presiding Officer had observed in his judgment that since the medical evidence is not supported by evidence, the eyewitness account cannot be believed, hence, the accused deserves to be given the benefit of doubt and this observation is erroneous. It is submitted that this evidence has not been properly appreciated by the learned Judge. It is also submitted that the eyewitnesses were injured, they have described in detail and hence, there was no reasons to disbelieve their version. Besides, some of the witnesses have turned hostile. One of the injured witnesses - Dinesh Ambalal Thakor at Exhibit 37 has not supported the case of the prosecution and it is submitted that the learned Trial Judge has committed error in giving the benefit of doubt to the accused. The panch witness - Kanubhai Motibhai at Exh. 36 has clearly implicated that the accused had inflicted blows upon the said Vishnubhai with hockey stick, pipes, sword and gupti. 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. 6. Learned Advocate for the respondents No. 1-3 Mr. Ashish M. Dagli has relied on the various judgments of the Hon'ble Supreme Court which are detailed hereinbelow and has further submitted that no interference is required in view of the various contradictions that have crept in the versions of various witnesses. Hence, it is submitted that the judgment and order of the learned Presiding Officer requires no interference by this Court. 7. In the case of M.S. Narayana Menon @ Mani v. 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." 8. 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." 8. Further, in the case of Chandrappa v. 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. [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." 9. 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. 10. 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. 10. 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." 11. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs v. 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. 12. In the case of Luna Ram v. 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. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 12. In the case of Luna Ram v. 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 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." 13. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. v. 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. 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 v. Sohan Lal and Others, (2004) 5 SCC 573 ]." 14. 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 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." 15. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors v. State of Karnataka, reported in JT 2013(7) SC 66. 16. We have heard learned Advocates for the parties and perused the records of the case. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors v. State of Karnataka, reported in JT 2013(7) SC 66. 16. 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 Presiding Officer, it is necessary to re-produce hereinbelow the translated version of Paragraph 14 of the said judgment and order which reads as under:-- "(14) Charge has been framed against the accused persons that they caused death of Vishnubhai Chelabhai Thakor by assaulting him with deadly weapons. Jayantibhai-the brother of the deceased in this case lodged police complaint. The complainant Jayantibhai has been examined as Prosecution Witness No. 8 at Exhibit-31. He was at his home on the day and at the time of the incident. Kantaben came and told him at about 7-00 hours in the evening that Vishnubhai was taken to hospital in profusely bleeding condition with other one or three persons in police van. Thereafter, the complainant has lodged a complaint on the second day i.e. 2/3/02. The said witness is not an eyewitness, but Kantaben came and informed him regarding the incident. Kantaben has been examined as Prosecution Witness No. 9 in this case at Exhibit-21. As per her deposition, at 2-30 to 3-00 hours in the afternoon on the day of the incident, she was at home. As she heard shouting, she went on the place of the offence and found that Vishnu was lying dead on the place. This witness states the timing of the occurrence of the said incident is between 2-30 to 3-00 hours. Witness Kanubhai who corroborates the case of Prosecution has been examined as Prosecution Witness No. 10 at Exhibit-36. He has stated such in his deposition that when I was going towards my home, I heard shouting from opposite direction while going from Mill road to Majurgam. Therefore, he started running. When he was running back on the mill road, Vishnu was given hockey-blows, pipe-blows and sword-blow on his head. Scythe and gupti were inflicted on his neck. He has stated such in his deposition that when I was going towards my home, I heard shouting from opposite direction while going from Mill road to Majurgam. Therefore, he started running. When he was running back on the mill road, Vishnu was given hockey-blows, pipe-blows and sword-blow on his head. Scythe and gupti were inflicted on his neck. He has stated in his deposition that Siraj gave gupti-blow to Vishnu, Raja gave scythe-blow to Vishnu on his neck, Bunty gave sword-blow to Vishnu on the back part of his head, Tajmohamad gave hockey-blows to Vishnu on the part of his chest and Mamri gave pipe-blows to him on the part of his back. If cross examination is viewed, as stated earlier, he knew the names of two assailants and police gave the names of remaining persons. He did not dictate the detail regarding the weapons and the names of the persons who died. He has accepted such in his cross examination that it is true that I did not know the names of the assailants at that time. Further, it is true that he did not know the names of assailants till the deceased was taken to Civil hospital. Such has not been dictated in material contradiction of police statement that, "Vishnu was given hockey-blows, pipe-blows and sword-blow was given on his head. Scythe and gupti were inflicted on the part of his neck. Siraj gave gupti-blow to Vishnu, Raja gave scythe-blow to Vishnu on the part of his neck, Bunty gave sword-blow to Vishnu on the back part of his head, Tajmohamad gave hockey-blows to Vishnu on the part of his chest and Mamri gave pipe-blows to him on the part of his back." If deposition and cross examination of the aforesaid witness is viewed, it appears that the incident occurred at 5-30 hours in the evening on 1/3/02 whereas Prosecution Witness No. 9 has shown timing of 2-30 to 3-00 hours in the afternoon in her deposition at Exhibit-33. Prosecution Witness No. 5 Dr. Minaxykumar has stated in her deposition at Exhibit-18 that rigor mortis was present on the dead body of the deceased, his death may have caused between 1-00 to 2-00 hours in the afternoon. Thus, if evidence of other witnesses and medical evidence are viewed, It does not appear clearly that the incident occurred at 5-30 hours in the evening. Minaxykumar has stated in her deposition at Exhibit-18 that rigor mortis was present on the dead body of the deceased, his death may have caused between 1-00 to 2-00 hours in the afternoon. Thus, if evidence of other witnesses and medical evidence are viewed, It does not appear clearly that the incident occurred at 5-30 hours in the evening. The evidence of Kanubhai appears contradictory and no reliability has been found therein. Further, police witness Pravinbhai Muljibhai Meghani has been examined as Prosecution Witness No. 13 at Exhibit-39. He has accepted the fact in his cross examination that he has given such information to journalist of Naya Padkar on 1-3-02 regarding arrest of Liyakat Husen Raja, Pyar Mohmad Shaikh, Jakir Husen and Siraj Mohmad Umar. Any information has not been brought on record as to for which offence they have been brought or arrested. Doctor informed the police on phone regarding the person sustaining injury and expiry of Vishnubhai in the incident and the said telephone vardhi is produced at Exhibit-20. Viewing the said telephone vardhi, it appears that the said vardhi was noted at 18-45 hours on dated 1-3-02. Looking to the vardhi, dead body of any unknown person of 25 years of age has been brought in dead condition whereas injury certificates of the person sustaining injury have been produced at Exhibit-24 and 25 respectively and the timing of treatment is shown at 6-00 hours. Looking to this detail, inquest panchanama of the deceased has been drawn from 19-10 hours to 19-45 hours on 1-03-02. Looking to the time and date, police could have investigated regarding the occurrence of the incident. But, it appears that the complaint of the incident was lodged at 12-15 hours on 2-03-02. It appears that police has given the names of the assailants in cross examination of Kanubhai Rana and it does not appear that the accused persons have been involved in the offence of this case. When police investigation carried out in this case and evidences of witnesses are not found circumstantial and evidence and investigation raise suspicion, it can not be clearly believed that the accused persons have been involved in the said offence. Thus, viewing the aforesaid discussion, it proves from the medical evidence that the death of the deceased Vishnubhai was unnatural and caused due to act of culpable homicide. Thus, viewing the aforesaid discussion, it proves from the medical evidence that the death of the deceased Vishnubhai was unnatural and caused due to act of culpable homicide. But, it has not been proved that only the accused persons have caused the death of the deceased and Prosecution has not proved any such fact. Thus, Prosecution could not succeed in proving the fact that the accused persons constituted unlawful assembly in order to serve their common object, assaulted with deadly weapons and death of the deceased Vishnubhai has been caused as a consequence of the same. Therefore, alleged offence of the accused persons has not been proved." 17. In our view, the case is based on circumstantial evidence. Even the so-called eye witness has not supported the case of the prosecution. Hence, the benefit of doubt granted to the respondents by the learned Presiding Office vide his judgment and order requires to be confirmed. Apart from that, the learned Special Public Prosecutor Mr. J.M. Panchal for the appellant - State is not in a position to show any evidence to take a contrary view in the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record. In that view of the matter, we are in complete agreement with the reasons recorded by the learned trial court and in our view, the impugned Judgment is just, legal and proper and requires no interference by this Court. 18. The Appeal is devoid of merits and stands dismissed. The judgment and order of acquittal dated 13.06.2005 of the learned Presiding Officer, Fast Track Court No. 9, Nadiad in Sessions Case No. 265/2002 and 270/2002 stands confirmed. Bail and bail bond, stands cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.