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2015 DIGILAW 1081 (GUJ)

State of Gujarat v. Anilsing Amarnathsingh Sengar

2015-10-20

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT : K.S. Jhaveri, J. 1. Heard learned Additional Public Prosecutor Ms. C.M. Shah for the appellant - State and learned Advocate Mr. Hardik K. Raval for the respondent No. 1. 2. By way of this Appeal, the Appellant - State has felt aggrieved by the judgment and order of acquittal dated 29.06.2005 of the learned Presiding Officer, Fast Track Court No. 13, Gondal in Sessions Case No. 79/2004 whereby the respondent herein was acquitted of the offences punishable under Section 302 of the Indian Penal Code and under Section 37(1) and 135 of the Bombay Police Act. 3. The case in brief and the incident which occurred on 16.10.2005 are as under:-- 3.1. The case of the prosecution is that the complainant Badripal Dalipal was working as a Security Guard in Gujarat Instru., Limited at Shapar Veraval Industrial Zone since last year. The respondent accused was also staying with the complainant in the room, outside the factory since past five days from the date of incident. On the said day, between 8.00 am to 8.00 pm, the complainant and another Shivnath Yadav were on duty but the respondent accused was not coming to duty since last two days. At about 8.00 pm, both the complainant and Shivnath Yadav after completing their duty hours returned to to their room. It was then the night duty hours of the respondent accused. However, it is stated in the complaint that the accused said that he was suffering from headache and hence, stayed in the room. The next day in the early morning at about 5.30 am, one Ramkailash had gone for search in the factory and immediately after coming from the factory, he informed the complainant that the light of the room of Shivnath Yadav was on, the gate was also opened and Shivnath was found lying on the cot in a bleeding condition. The accused who was staying with Shivnath was not found at the place of incident and his luggage was also not there. It is further stated in the complaint that the accused had some enmity with the deceased Shivnath on the exchange of money and therefore, with an intention to take revenge, he did not go for his duty hours and stayed in the room with the deceased. 3.2. It is further stated in the complaint that the accused had some enmity with the deceased Shivnath on the exchange of money and therefore, with an intention to take revenge, he did not go for his duty hours and stayed in the room with the deceased. 3.2. On the above facts, the police after investigation charge-sheeted the accused in the Court of the learned Judicial Magistrate First Class, Gondal who committed the same to the Court of Sessions, as the offences alleged were exclusively triable by the Court of Sessions. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution led evidence and at the conclusion of the trial, the learned Presiding Officer, Fast Track Court No. 13, Gondal in Sessions Case No. 79/2004 acquitted the accused of all the charges. 3.3. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exhibit Complainant Badripal Dahipal 6 Panch witness Rajnikant Amrutlal Takwani 8 Vijayshankarsinh Ramuchsinh 12 Dhirajlal Dharamsinhbhai Pamar 13 Ramkailash Ramlochan kurva 14 Ramsharan Ramfal Ravat 15 Achelal Shripunjdas Paswan 16 Ghanshyam Vibhuti Mishra 17 Rupesh Pratapbhai Trivedi 18 Hitesh Natvarlal Maru 19 Amrish Rameshbhai Upadhayay 20 PSI Prabhudas Bharadbhai Patel 21 Doctor Pravinchandra Dahyalal Vala 22 Police Head Constable Ranjit mansinh Charola 25 Investigating Officer Bhupatsinh Mansinh Solanki 31 ASI Mohanbhai Valjibhai Gamethi 40 Investigating Officer 41 Shivrajkumar Merambhai Dadal The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exhibit Original complaint 7 Inquest Panchnama 9 Panchnama of the scene of offence 10 Panchnama of the arrest of the accused 11 Yadi regarding collection of blood sample of the accused 23 Post Mortem Report 24 Extract of the Station Diary (No.6) 26 Report regarding registering of the offence 27 Order regarding the investigation of the offence by the PSO 28 Extract of the Station Diary (No.8) 30 Yadi regarding the preparation of map 32 Yadi regarding the sending of map 33 Map of the scene of offence 34 Yadi regarding the analysis of the muddamal 35 Receipt of the muddamal by the FSL 36 Serological Report 38 Declaration regarding the weapon 39 Marnottar Form 42 Yadi regarding the conducting of the Post Mortem 43 4. Learned Additional Public Prosecutor Ms. Learned Additional Public Prosecutor Ms. C.M. Shah has submitted that the learned Judge ought to have appreciated that the cause of death is due to shock on account of intra cerebral hemorrhage and major injury to the vital organ brain. The learned Judge ought to have believed the evidence of the Doctor at Exhibit 22, from which inference can be gathered that the death was a homicidal death and it is also clearly stated therein that injury caused to the deceased was possible by the muddamal iron pipe. Further, it is stated that the blood group of the accused, the blood group of the muddamal articles, which were sent to the FSL for analysis and the blood group of the deceased are one the same. It is also submitted that the evidence of the complainant at Exhibit 5 ought to be appreciated. 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 respondent No. 1 Mr. Hardik K. Raval has relied on the various judgments of the Hon'ble Supreme Court which are detailed here-in-below and has further submitted that the learned Judge has given cogent and convincing reasons for arriving at the acquittal of the respondent accused. Hence, it is submitted that the judgment and order of the learned Judge requires no interference by this Court. 6. 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." 7. 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. 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." 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 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. 11. 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 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. 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. 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 ]." 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 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." 14. 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. 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 Judge, it is clearly held that the death was a homicidal death. The case is based on circumstantial evidence and the prosecution has failed to prove its case beyond reasonable doubt. In this regard, it is necessary to reproduce relevant translated part of the judgment and order of the learned Presiding Officer which reads as under:-- "14. The prosecution has made such an allegation that there was financial transaction between the accused of this case and the deceased Shivanath Yadav and due to that reason, Anilsingh has committed murder by giving blows of iron pipe to Shivnath Yadav. In this case, Badripal - the complainant of this case has stated in his complaint of Exh.-7 that as Anilsingh had been quarreling with Shivnath Yadav regarding financial transaction for the last 2-3 days, we had persuaded him many times. In this case, Badripal - the complainant of this case has stated in his complaint of Exh.-7 that as Anilsingh had been quarreling with Shivnath Yadav regarding financial transaction for the last 2-3 days, we had persuaded him many times. Due to that reason of displeasure, he made an excuse yesterday that he is having headache and did not come for his job, and after giving blow of weapon on the head of the Shivnath Yadav at the time of night, and causing his death, he has run away." Badripal has stated regarding this fact in his deposition on oath that he did not know as to for what reason this incident had occurred or whether it occurred due to money or he also does not know as to whether this incident had occurred for any other reason. After stating such a fact in his deposition on oath, as the Prosecution refreshed his memory regarding the fact of complaint as to what was the reason of the occurrence of the incident, he stated that, "he has dictated such fact that there was financial transaction between the accused Anilsingh and Shivnath Yadav and due to that reason, the incident has occurred." Apart from this, he has stated that, he has not dictated in his complaint or has not given further statement before the Police that Anilsingh made excuse that he was having headache and did not come on job for two days and he came at the time of night, gave blows of pipe to Shivanth Yadav and has caused his death. Such a fact has arisen during his cross-examination also that, he has not seen any financial transaction between Shivanath Yadav and Anilsingh, but as somebody told him, he came to know that the incident has occurred in relation to financial transaction and therefore, he stated such reason and dictated it in the complaint as received on record. Thus, from the complaint or from the evidence of any other witnesses, such fact has not come on record that there may have been financial transaction between the deceased Shivnath Yadav and Anilsingh and due to that reason, quarrels had also taken place previously as well and therefore, this incident has occurred. Thus, from the complaint or from the evidence of any other witnesses, such fact has not come on record that there may have been financial transaction between the deceased Shivnath Yadav and Anilsingh and due to that reason, quarrels had also taken place previously as well and therefore, this incident has occurred. In addition to this, considering the entire record, the accused Anilsingh has come to factory at Shapar Veraval on 8-10-2003 for his job as a watchman and after working for 4-5 days, he has not gone for his job for three days and the Prosecution has submitted that this incident has occurred during the night on 16-10-2013, it means that it has been stated that the deceased Shivnath Yadav and Anilsingh stayed together in one room for about seven days. Whereas, the witness states that, after staying for 2-4 days, Anilsingh went to his native. In this way, it cannot be believed also that such financial transaction may have taken place between them during short-term introduction and stay of short period, and that this incident may have occurred for that reason. In this way, the Prosecution has not been able to prove from the deposition on oath of the complainant or the other witnesses that this quarrel took place due to financial transaction. 15. The Prosecution has also made such an allegation against the accused that the accused of this case has committed the murder of Shivnath Yadav by inflicting blow of pipe lying in his room in his head, and the muddamal iron pipe has also been seized by the Investigating Officer, and the blood of the deceased has also been found on it. Considering the evidence produced in this case, the complainant Badripal has mentioned that there is a possibility of causing injury by an iron pipe. As per the Panchanama of the place of the incident, the muddamal iron pipe has been seized from the room, but the prosecution has not been able to produce an evidence on the record that the accused has caused injury to Shivnath Yadav with this iron pipe only. The complainant has stated clearly in his deposition on oath that he has not dictated such fact in his complaint that Anilsingh stayed in his room by making excuse that he is having headache and committed murder of Shivnath Yadav by inflicting iron pipe in his head. The complainant has stated clearly in his deposition on oath that he has not dictated such fact in his complaint that Anilsingh stayed in his room by making excuse that he is having headache and committed murder of Shivnath Yadav by inflicting iron pipe in his head. In this way, the complainant Badripal is also not stating that the accused had inflicted blow of pipe in the head of Shivnath Yadav and committed his murder and the watchman with him is also not stating that Anilsingh caused the death of Shivnath Yadav by inflicting blow of iron pipe. Moreover, the hand impression of the accused has also not been taken on the seized muddamal-pipe that on the basis of which, it can be believed that the accused may have used the said pipe. In addition to this, any other evidence on that pipe connecting the accused has not come on the record suggesting that the said accused may have used the muddamal pipe, on the basis of which, it can be believed that the accused of this case may have used this pipe for made criminal purpose. 16. The Prosecution has also made such an allegation against the accused of this case that the accused had left the room with his luggage after the incident, locked it and ran away after throwing away the key, on the basis of such behaviour also, it can be believed that the accused has committed the criminal act. Looking to the facts on the record regarding this dispute, the complainant and other witnesses have come to the room on knowing about the incident. The complainant has stated that except him, other watchman has broken the lock. Whereas, the other watchman Ramsharan has stated that Badripal broke the lock and entered the room. Thus, the prosecution has not been able to make it clear as to whether there was lock on the room or not after the incident was known, or that the muddamal lock has also not been seized for the purpose of investigation. 17. In this case, Anilsingh has not gone for his job before 2-3 days since the occurrence of the incident. Such an evidence has also not been produced on the record that the accused Anilsingh was in his room only during this period. 17. In this case, Anilsingh has not gone for his job before 2-3 days since the occurrence of the incident. Such an evidence has also not been produced on the record that the accused Anilsingh was in his room only during this period. Thus, as the accused was not present on the place after the occurrence of the incident, it cannot be believed that only the accused has committed the criminal act, but any evidence connecting it should be produced on record, which has not been done by the Prosecution. Therefore, the Defence has stated that looking to this with reference to the fact that Anilsingh went to his native after doing job for 2-3 days, if the accused may have left with his luggage from there and if he may have been arrested from the road in wandering condition, then, looking to the Arrest Panchanama of Exh.-11 in this reference, it has not been mentioned that the accused might have been arrested with his luggage. Only such a fact is there in the Panchnama that he was wearing t-shirt and Jeans Pant only on his body, and no evidence regarding the allegation that he had run away with the luggage has been mentioned in the Arrest Panchanama. In addition to this, the incident has occurred on 16-10-2003, whereas, the accused has been arrested on the Ribda-Ardoi road outside the Ribda Railway Station on 23-8-2004, it means that the accused has been arrested after a long time of the occurrence of the incident. The Investigating Officer has not been able to obtain the clothes worn by the accused at the time of incident or any other evidence connected with this offence from the possession of the accused and on the basis of which, it can be believed that the accused may have been connected with the incident. Moreover, looking to the entire record of this case, the Prosecution has produced the map of local place vide Exh.-34 and the Panchanama of the local place vide Exh.-10. On the basis of the above documentary evidences, there were two rooms situated on the north side of the factory of Gujarat Instrument Ltd., wherein, Shivnath and Anilsingh were living in it and the complainant Badripal and Ramsharan Ramfal Rawal were living in the room beside it. Both the rooms are situated adjoining to each other. On the basis of the above documentary evidences, there were two rooms situated on the north side of the factory of Gujarat Instrument Ltd., wherein, Shivnath and Anilsingh were living in it and the complainant Badripal and Ramsharan Ramfal Rawal were living in the room beside it. Both the rooms are situated adjoining to each other. The duty of Shivnath was from 8.00 A.M. to 8.00 P.M. on 16-10-2003, in the same way, duty of Ramsharan Ramfal was also from 8.00 A.M. to 8.00 P.M. on 16-10-2003. The Prosecution has stated that Shivnath Yadav had come to his room at around 4.30 P.M. but no evidence has been produced in that regard. It has been stated that when Ramsharan Ramfal came to the room after his duty, the opposite room was locked. If the incident had occurred at any time during the night as stated by the Prosecution and blow of hard object like iron pipe had been given in the head of the deceased, then Ramsharan Ramfal who was present in the adjoining room might have known about the incident but no such fact has been stated by Ramsharan Ramfal. The rooms are situated beside each other and Badripal and Ramsharan were doing work of watchman during the night and the room of Shivnath Yadav was opening inside the factory only, he has seen the incident from there and light was also on. It means if the incident had occurred during the night time, they would have also come to know in reference to that fact during their night duty, but such a fact has been stated by Ramkailas to Badripal as he inquired in the morning, and thereafter, as they went to the place of the incident, they found that the dead body of Shivnath Yadav was lying on cot, and Anilsingh was not there. Hence, it has been stated that after inflicting blow of iron pipe, Anilsingh has gone away but he does not know anything as to prior to him, who came into the room of Shivnath Yadav and how and at what time, hence, considering the principle stated in the judgment delivered in the case of Mahendra Shamaldas Soni v. The State of Gujarat reported in 1993 (1) G.L.R. Page No. 661, such a fact cannot be admitted that simply because Anilsingh was living in his room, only he has committed the criminal act. 18. 18. Thus, no witness has stated that the deceased and the accused were seen together for the last time in the room regarding which the allegation has been made against the accused. It is also not proved as to for what reason the incident occurred. It is not proved that only the accused of this case committed the criminal act with the muddamal weapon or nothing has been received from the possession of the accused which can connect the accused with any offence. The Prosecution has failed to prove such direct evidence as can connect one link of the chain to another link of the allegation against the accused and no direct evidence is produced and when the reliance was placed upon the circumstantial evidence and the circumstantial evidence which connects each other is not produced on the record and such cogent evidence is not produced on the record that only the accused of this case has committed the criminal offence and it is also not proved that the accused person of this case was armed with iron pipe at the time of the incident and committed criminal act by breaching notification. Hence, I give the answer of Issue No. 2 and 3 in negative and I believe that benefit of doubt should be given to the accused" and accordingly the accused was acquitted." 16. 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. Apart from that, the learned Additional Public Prosecutor Ms. C.M. Shah 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. 17. The Appeal is devoid of merits and stands dismissed. The judgment and order of acquittal dated 29.06.2005 of the learned Presiding Officer, Fast Track Court No. 13, Gondal in Sessions Case No. 79/2004 stands confirmed. Bail and bail bond, stands cancelled. 17. The Appeal is devoid of merits and stands dismissed. The judgment and order of acquittal dated 29.06.2005 of the learned Presiding Officer, Fast Track Court No. 13, Gondal in Sessions Case No. 79/2004 stands confirmed. Bail and bail bond, stands cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.