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2015 DIGILAW 1099 (GUJ)

State of Gujarat v. Lalabhai Motibhai Patel

2015-10-26

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. R.J. Goswami for the respondents No. 1 - 3. 2. By way of this Appeal, the Appellant - State has felt aggrieved by the judgment and order of acquittal dated 26.09.2005 of the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 2, Deesa in Sessions Case No. 70/2004 whereby the respondents herein were acquitted of the offences punishable under Section 302, 201and 34 of the Indian Penal Code. 3. The case in brief and the incident which is alleged to have occurred on 23.04.2004 is as under:-- 3.1. The complainant - Meghaben aged 40 years alongwith her family was residing at Village Kochasan, Taluka Deesa. Her husband - Vahtabhai Chehrabhai Patel was engaged in agricultural work. They had about 15 bighas of agricultural land at the sim of village Kochasan. A bore was done on the said land but the water was lost. Hence, a new bore was required to be done and therefore there was a need for money. Hence, on the day of the incident at about 8.30 am, the complainant and her husband were going to her parental house at Modh village for getting money. 3.2. At about 9.00 am when they were passing near the bus stand of Village Bacharva, all the accused were standing nearby the bus stand and they asked the complainant's husband to stop the vehicle. She alighted from the motor cycle and stood on the side of the road. The respondent accused No. 1 asked the complainant's husband as to why he was supporting one Dana Bhagwan, who had taken another lady and intended to give a divorce to his wife, i.e. the sister of the respondent accused. It is alleged thereafter that all the three accused dragged the complainant's husband with the motor cycle and started to inflict fist and leg blows on Vahtabhai. The complainant's husband started shouting, hence, the complainant rushed to his aid but it is stated that the accused came to beat her also. So the complainant ran away and arrived at Village Kochasan and narrated the entire incident to her brother-in-law Ishwarbhai and Ajmalbhai. All of them later rushed to Village Bacharva and the complainant found that her husband was lying at the side of the road and was dead. So the complainant ran away and arrived at Village Kochasan and narrated the entire incident to her brother-in-law Ishwarbhai and Ajmalbhai. All of them later rushed to Village Bacharva and the complainant found that her husband was lying at the side of the road and was dead. Village people had gathered, the police was called and the complainant narrated her complainant wherein she stated that because of the grievances held by the accused against Vahtabhai as stated hereinabove, her husband was killed. 3.3. The Police Inspector of Deesa Rural Police Station recorded the above stated complaint of the complainant, registered the offence and started investigation. He prepared inquest panchnama, sent the dead body for post mortem examination, drew the panchnama of the scene of offence, recorded the statement of various witnesses, arrested the accused, recorded/seized the muddamal under various panchnamas and sent the muddamal to FSL for examination and at the end of the investigation, he submitted the chargesheet against the accused persons. The accused were produced before the learned Judicial Magistrate First Class, Deesa and copies of police papers were supplied to them. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court, Banaskantha at Palanpur u/s. 209 of the Code of Criminal Procedure. The case was then transferred to the Court of the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 2, Deesa for regular trial and at the end of the trial, the learned Sessions Judge acquitted the respondents accused of all the offences. 3.4. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exhibit Dr. 3.4. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exhibit Dr. Athar Hussain Vahidkhan (who conducted the post mortem examination on the dead body of the deceased) 8 Panch Ravtbhai Kalubhai 18 Panch Bhemabhai Rupabhai 22 Complainant Meghaben W/o Vahtabhai Chehrabhai 28 Eye Witness Meghabhai Dharmabhai 29 Danabhai Bhagwanbhai Patel 30 Ishwarbhai Chehrabhai Patel 31 Vijaykumar Chaturbhai Barot 32 Bhanjibhai Chhogaram Joshi 35 ASI Somabhai Maganbhai 55 PSI Virendrasinh Sujaji Dabhi 62 PSI Jagdishbhai Gagubhai Chavda 63 Constable Rajendrakumar Babulal 64 Photographer/Video Shooter Chiragbhai Dineshbhai 69 Investigating Officer – Rajendra Bhanuprasad Yagnik 79 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exhibit PI Report to PSO who lodged the complaint 61 Complaint by Meghben W/o Wahtaben 80 Inquest Panchnama 23 Panchnama of the place of offence 24 Panchnama of the clothes recorded from the dead body of the deceased Vahtabhai 20 Panchnama of recording of Videography 19 Arrest panchnama of the accused 21 P.I. Report to MO for examination of the complainant 11 Cause of Death Certificate 10 Post Mortem Note 12 Receipt for the dead body handed over to the brother of the deceased 82 P.M. Form 81 Receipt for the motor cycle handed over to Vahtabhai Harjibhai 83 Copy of the Deesa Rural Police Station, Telephone Inward Register 59 Forwarded letter to FSL, Ahmedabad 84 FSL Receipt 85 FSL Report 86 Intimation to Ex-Magistrate for Inquest 87 Copy of Station Diary 60 Bill of the Photo Studio 73 Negative of the photographs 74-76 C.D. of the Videography 77 Yadi for muddamal clothes recorded from the dead body 65 Injury Certificate of Meghaben 15 Negative of the photographs 48 – 54 Bill of the photographs 47 Photograph of the scene of offence and the motor cycle 33 – 46 Photograph of the dead body of the deceased 70-72 Map of the place of the incident 56 Yadi sent to the Doctor by the Investigating Officer 12 4. Learned Additional Public Prosecutor Ms. C.M. Shah has submitted that the learned Judge ought to have appreciated the deposition of PW-1 Dr. Athar Hussain Vahidkhan who had deposed in his testimony that on 23.04.2004 he was performing his duty at Deesa General Hospital as a Medical Officer. One Police Constable - Rajendrakumar Babulal brought one dead body with police yaadi before him. The post mortem was performed in presence of Dr. Athar Hussain Vahidkhan who had deposed in his testimony that on 23.04.2004 he was performing his duty at Deesa General Hospital as a Medical Officer. One Police Constable - Rajendrakumar Babulal brought one dead body with police yaadi before him. The post mortem was performed in presence of Dr. J.H. Hariyani and this witness has stated that the death of the deceased was a homicidal death and the cause of death was because of throttling the neck. The learned Judge also ought to have appreciated the eye witness account of the complainant - Meghaben, the wife of the deceased. Further, the motive of the incident is fully established by the evidence of the complainant and also by the evidence of PW6 - Dana Bhagwan at Exhibit 30. It is further submitted that though there are some variations, contradictions and discrepancies in the evidences, they are very minor and hence are not fatal to the case of the prosecution. 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. 1-3 Mr. R.J. Goswami has relied on the various judgments of the Hon'ble Supreme Court which are detailed hereinbelow and has further submitted that there are omissions and contradictions in the evidences. 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 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. The presence of the complainant at the scene of incident is doubt and nowhere in the complaint, the complainant has stated the name of PW5 - Maghabhai Dharmabhai Patel. Further, while going through the well reasoned judgment and order of the learned Sessions Judge, it is relevant to reproduce Paragraphs 32 - 34 which are as under:-- "32) It is vehemently argued by learned advocate Mr. Modi on the count of time of death that the prosecution has miserably failed on this aspect also. For the issue under consideration this court has evaluated the deposition of the doctor at Ex. 8. During the cross examination the doctor has stated that the death of the person may have occurred within 12 hours before conducting P.M. It means the dead body was taken to doctor on 23.4.2004 at 3.15 p.m. On count P.M. lividity and rigor notice. 8. During the cross examination the doctor has stated that the death of the person may have occurred within 12 hours before conducting P.M. It means the dead body was taken to doctor on 23.4.2004 at 3.15 p.m. On count P.M. lividity and rigor notice. In the first session doctor Attar Hussain disagreed on some counts but upon referring Dr. Modi and Dr. Reddy jurisprudence and the same has admitted that column No. 12 of is P.M. suggest that the deceased was not subject to change the side of his body and the opinion regarding P.M. lividity and according to the condition of stomach the opinion of doctor is that the deceased would passed after taking his meals before four hours. If we consider the depositions of the complainant as well as the other witnesses the case of the prosecution is that the incident was alleged to have been occurred at round about 9-00 A.M. in the morning and therefore, it can be concluded that the time of death, it is not in consistency with the version of the eye witness and therefore, benefit of doubt accordingly be exercised to the accused persons. 33) One more important aspect in this case would be scene of offence. According to the case of prosecution the episode of causing injury to deceased has taken place near Bhacharva patiya from where deceased and her wife were passing on bike, stopped by the accused persons and the incident so called had taken place. But this Court has come through the records i.e. deposition of all the witnesses suggest that it is a highway path where vehicles to and fro passes regularly as there was bus stand situated near patiya people would also passes from there casually. P.W.5 Meghaben and P.W.8 Maghabhai has deposed some how contradictory to each other on so many occasions. It is the say of Maghabhai that the deceased along with bike was rushed but the doctor has not said that deceased has any abrasions or swelling at any side of his body mainly backside. Where the beating episode has taken place, bike is found atleast 300 ft. away but nobody comes before this court to depose that how the bike was kept that much away? Where the beating episode has taken place, bike is found atleast 300 ft. away but nobody comes before this court to depose that how the bike was kept that much away? It is the versions of the prime witnesses that may have it been so, that after the beating episode was over, accused persons would have placed bike that much away. So as to cut off the orig. prose story. But in fact this duty is casted upon prosecution to show by way of adducing evidence and the evidence which has come on record probablise the version of defence as to the accidental injuries by way of falling of bike may occur. Because the law in India is that prosecution has to prove its case beyond reasonable doubt and not the defense. The stage of defense would come at No. 2 i.e. If prosecution succeeds, then only the stage of defense would be entered into otherwise not. Therefore, "circumstances will never speak wrong, A man can" principle is very much applicable to the case on hand. The witnesses have tried to fill up the lacuna but the "truth showers from the roof will never be heard, it is seen through" has made the prosecution story clearly ambiguous and therefore, as we are at the par to deal with a criminal trial it is duty of the court to chess the brutality of story in its true spirit which convince a prudent man. After all, the courts are created to administer justice at the authenticity of versions. But versions should be such which is a probable one. Here, in this case, the story of defense all mostly can be concluded as probable one suggestively renders doubt on original prosecution story which should result in granting benefit to the accused persons and therefore, as there is doubt appears in the evidence in all to show that the bike was kept away by accused persons, question of causing disappearance of evidence would not arise. 34) Mr. Modi has also drawn the attention of this Court on the issue of improper and dishonest investigation by the Police agency. But at the time of deciding this issue, let it be first made clear that by so many pronouncements of Hon'ble Apex Court as well as the Mother High Court that the Courts should be slow in benefiting defense on this Count. But at the time of deciding this issue, let it be first made clear that by so many pronouncements of Hon'ble Apex Court as well as the Mother High Court that the Courts should be slow in benefiting defense on this Count. But this Court is of an opinion that when exceptional circumstances are made out to clinch the case run under Sec. 302 I.P.C., prosecution witnesses have deposed quite inconsistently on some aspects just as the complainant says that she has filed her complaint at the scene of incident but the Ld. I.O. says something different at his deposition. Complainant doesn't name Maghabhai in its complaint but asks Maghabhai that he is named as eye witness of the incident. Most interesting timing is, it is the case of prosecution that complainant felt giddiness of which she took treatment from Deesa dispensary as deposed by Maghabhai and the doctor. According to the say of I.O. at said time at village Kochasan, Meghaben was present at the time of inquest Panchnama. How a person can remain present at two different places which are situated at a distance of about 30 Kms.? But there doesn't come on record the reasonable explanation by way of evidence at all regarding this lacunas. And therefore, in such circumstances, when incident has taken place in day time on highway at the place from where vehicles and people pass and reside in surrounding areas. Statements of individuals be tried to be recorded to chess the original happening so that guilty mind be accorded with their tasks punished. But no such things has happened here, contrary to that Panchas in this case are closure relative of complainant side upon which how should a Court of law place reliance to administer the Justice." 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. The judgment and order of acquittal dated 26.09.2005 of the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 2, Deesa in Sessions Case No. 70/2004 stands confirmed. Bail and bail bond, stands cancelled. 16. The Appeal is devoid of merits and stands dismissed. The judgment and order of acquittal dated 26.09.2005 of the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 2, Deesa in Sessions Case No. 70/2004 stands confirmed. Bail and bail bond, stands cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.