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2015 DIGILAW 1205 (GUJ)

State of Gujarat v. Prahaladsing Diwansingh

2015-11-24

K.S.JHAVERI, R.P.DHOLARIA

body2015
JUDGMENT : K.S. Jhaveri, J. This appeal is directed against the judgment and order of acquittal dated 31.01.1994 passed by the learned Addl. Sessions Judge, Ahmedabad in Sessions Case No.17 of 1991 whereby, the respondents, original accused, were acquitted of all the charges framed against them. 2. The facts in brief giving rise to the filing of present appeal are as under; On 01.09.1989 when complainant as well as his father were going towards their field for agricultural purpose, all the accused persons formed an unlawful assembly with a view to kill rushed there. Accused No.1 gave scythe blow in the head as well as neck of complainant's father. Accused No.2 and 3 also gave such deadly blows to the complainant's father. At that time, complainant and his friends Aniruddhsinh and Vanrajsinh came to complainant's help, but, accused No.5 gave scythe blow to complainant's friend Aniruddhsinh in his right hand and accused No.4 gave scissor blow on the knee of the left leg of Vanrajsinh and they all fell down. By causing deadly injuries, all the accused ran away. 2.1 A complaint in respect of the aforesaid incident was registered with Detroj Police Station. Necessary investigation was done and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and trial was initiated. 3. During the trial, the prosecution examined the following witnesses; Wt. No. Name of Witness Exhibit Exh. No. 1 Lalsinh Pratapsinh 23 2 Pratapsinh Dilubha 24 3 Aniruddhsinh Jalamsinh 25 4 Dr.Kiritbhai Jayantilal 27 5 Vanrajsinh Jalamsinh 32 6 Rameshbhai Harjibhai 33 7 Ramjibhai Sandhabhai 34 8 P.I. Juvansinh Gulabsinh Rathod 36 9 Medical Officer Dr. Alka Shantilal 37 10 Panch Nathusinh Ratansinh Zala 38 11 Prahladbhai Babubhai Raval 40 12 Panch Madhaji Aapaji 41 13 Panch Kanjibhai Jayrambhai 42 14 Dr. Shrichand Vadhuram Radhani 43 15 I.O.PSI Indrasinh Mansinh Kumpavat 4. The prosecution had also produced and relied upon several documentary evidence, particularly, the complaint, Panchnamas, Medical Certificates, F.S.L. Report and such other documentary evidences. 5. At the end of trial, the Court below recorded further statement of accused under section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order of acquittal, which has led to the filing of present appeal. 6. Mr. 5. At the end of trial, the Court below recorded further statement of accused under section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order of acquittal, which has led to the filing of present appeal. 6. Mr. L.R. Poojari, learned APP, submitted that the Court below committed serious error in law and on facts in passing the impugned judgment. He has referred the evidence of Ramjibhai Sandhabhai who is a Panch witness and witness of Rameshbhai Harjibhai, Exh.33 and submitted that the Court below has not appreciated the evidence on record in its proper perspective and was not justified in passing the impugned judgment and order of acquittal. 7. He has relied upon the judgment in the case of State of U.P. v. Naresh & Ors., reported in 2011 CRI. L.J., particularly on paragraphs No.23, 24 and 25, which read as under: "23. The High Court has disbelieved Balak Ram (PW.5), who had suffered the gun shot injuries. His evidence could not have been brushed aside by the High Court without assigning cogent reasons. Mere contradictions on trivial matters could not render his deposition untrustworthy. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. [Vide: Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 ; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673 ; and Abdul Sayed v. State of Madhya Pradesh, (2010) 10 SCC 259 ]. 24. [Vide: Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 ; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673 ; and Abdul Sayed v. State of Madhya Pradesh, (2010) 10 SCC 259 ]. 24. The High Court disbelieved both the witnesses Subedar (PW.1) and Balak Ram (PW.5) as being closely related to the deceased and for not examining any independent witnesses. In a case like this, it may be difficult for the prosecution to procure an independent witness, wherein the accused had killed one person at the spot and seriously injured the other. The independent witness may not muster the courage to come forward and depose against such accused. A mere relationship cannot be a factor to affect credibility of a witness. Evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. [Vide Jarnail Singh (supra), Vishnu & Ors. v. State of Rajasthan, (2009) 10 SCC 477 ; and Balraje @ Trimbak (supra)]. 25. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152 ; Arumugam v. State, AIR 2009 SC 331 ; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334 ; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287." 8. He has further relied upon the judgment in the case of Kuria and Anr. v. State of Rajasthan, reported in AIR 2013 (SC) 1085 , particularly on paragraph No.16, which reads as under: "16. In light of the above principles, we may revert to the evidence in the present case. A large number of persons had attacked one person. These witnesses cannot be expected to explain the role in the inflicting of injuries by each one of them individually and the weapons used. Such conduct would be opposed to the normal conduct of a human being. The fear for his own life and anxiety to save the victim would be so high and bothersome to the witness that it will not only be unfair but also unfortunate to expect such a witness to speak with precision with regard to injuries inflicted on the body of the deceased and the role attributable to each of the accused individually. In the present case, the result of the blunt injuries is evident from the report of the post mortem (Exhibit P/11), the ribs of the deceased were broken and they had punctured the lungs. The pleural cavities were full of blood and his body was dragged causing injuries on his back. In the present case, the result of the blunt injuries is evident from the report of the post mortem (Exhibit P/11), the ribs of the deceased were broken and they had punctured the lungs. The pleural cavities were full of blood and his body was dragged causing injuries on his back. In these circumstances, some blood would but naturally ooze out of the body of the deceased and his clothes would be blood stained. The post mortem report (Exhibit P/11), the inquest report, the statements of PW2, PW3, PW4, PW7 and PW15 are in line with each other and there is no noticeable conflict between them. The injuries on the body of the deceased were so severe that they alone could be the cause of death and the statement of PW6 in relation to cause of death is definite and certain. Thus, we see no merit in this contention raised on behalf of the accused." 9. He has further relied upon the judgment in the case of Darbara Singh v. State of Punjab, reported in AIR 2013 (SC) 840 , particularly on paragraphs No.5 to 7, which reads as under: "5. We have considered the rival submissions made by the learned counsel for the parties and perused the record. So far as the question of inconsistency between medical evidence and ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-a-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved. (Vide: State of U.P. v. Hari, (2009) 13 SCC 542 ; and Bhajan Singh @ Harbhajan Singh & Ors. v. State of Haryana, (2011) 7 SCC 421 . 6. (Vide: State of U.P. v. Hari, (2009) 13 SCC 542 ; and Bhajan Singh @ Harbhajan Singh & Ors. v. State of Haryana, (2011) 7 SCC 421 . 6. In the postmortem report, the following injuries were found on the person of the deceased: (i) An incised wound 3 cm x 1.5 cm on the left parietal region of the head obliquely placed 12 cm above the left ear pinna and 1.5 cm from mid line & 6 cm behind the anterior hair line. (ii) An incised penetrating elliptical shaped wound 6 cm x 1.5 cm on front aspect of left side of chest 4 cm below the nipple & 5 cm from midline. Clotted blood is present. Dr. Charanjit Singh (PW.11), who conducted the postmortem further opined that the cause of death was haemorrhage and shock as a result of injury to vital organs i.e. lung & heart, which was sufficient to cause death in the ordinary course of nature. Dr. Charanjit Singh (PW.11), in his cross-examination explained that injury No.1 would have been impossible to inflict, if the deceased was running and the assailant was chasing him. Injury No.1 was caused by a sharp edged instrument like a Kirpan from the upper to the lower part of the back of the deceased. The ocular evidence so far as the injuries are concerned, has been by Amrik Singh (PW.1), who deposed that after 1520 minutes of the first part of the incident the assailants turned up. Darbara Singh inflicted a blow, using a Kirpan, to the head of Mukhtiar Singh and, thus, he attempted to run towards Fatehgarh. Kashmir Singh then thrust-ed a Kirpan, which hit the left flank of Mukhtiar Singh. After receiving these injuries Mukhtiar Singh fell down. 7. In fact, Mukhtiar Singh, deceased attempted to run upon the apprehension that, he would be attacked, and it was exactly at this time that the appellant, Darbara Singh caused injury to his head using a Kirpan. This explains the reason for the direction of injury No.1 extending from the upper to the lower part of the back of the deceased. Had it been the case that the deceased Mukhtiar Singh was not running at the said time, the direction of the injury would have in all likelihood been straight. This explains the reason for the direction of injury No.1 extending from the upper to the lower part of the back of the deceased. Had it been the case that the deceased Mukhtiar Singh was not running at the said time, the direction of the injury would have in all likelihood been straight. If the entire evidence with respect to the method and manner of causing injuries 1 and 2, is conjointly read, it becomes crystal clear that the ocular evidence is in conformity and in consonance with the available medical evidence. In view of the above, we do not find any force in this submission." 10. He thus contended that present appeal be allowed and the order of acquittal passed by the learned Trial Court be quashed and set aside. 11. Mr. Mrudul M. Barot, learned counsel for the accused, supported the impugned judgment and order and submitted that the Court below found the evidence on record to be unreliable and non-trustworthy. The investigation into the alleged offence was not conducted in the proper manner. There were serious contradictions and omissions in the testimony of witnesses. Therefore, the Court below was completely justified in acquitting the accused and hence, this Court may not entertain this appeal. 12. At the outset, it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr., (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of 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. 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." 12.1 Further, in the case of Chandrappa v. State of Karnataka, (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. 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." 12.2 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. 12.3 Even in the case of State of Goa v. Sanjay Thakran & Another, (2007) 3 S.C.C. 755 , 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 characterised 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. 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." 12.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors, 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. 12.5 In the case of Luna Ram v. Bhupat Singh and Ors., (2009) SCC 749, the Apex Court in paras 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 postmortem 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. 11. 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. 12.6 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, AIR 2013 SC 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 levelled against them. v. State, rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SC 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 levelled 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 appellants very much emphasised that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyse 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 rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. [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 rewrite 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, AIR 1981, SC 1417, wherein it is held as under: "...This Court has observed in Girija Nandini Devi v. Bigendra Nandini Choudhary, 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." 13.1 Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and others v. State of Karnataka, JT 2013 (7) SC 66. Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence is not necessary. 14. We have gone through the oral as well as documentary evidence on record. After appreciating the evidence on record, the Court below came to the conclusion that the prosecution has failed to prove the guilt of accused beyond reasonable doubt. The Court below recorded the finding that investigation in the case was not conducted in a proper and legal manner. 15. Learned APP is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored material evidence while acquitting the accused. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting the respondent of the charge levelled against him. Even the FSL report and the discovery panchnama are also not supporting the case of the prosecution. Hence, we are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and therefore, find no reasons to entertain this appeal. 16. Even the FSL report and the discovery panchnama are also not supporting the case of the prosecution. Hence, we are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and therefore, find no reasons to entertain this appeal. 16. For the foregoing reasons, the appeal stands dismissed and the impugned judgment and order is confirmed. Bail bonds stand discharged. Record and proceedings, if lying here, be sent to the Court below forthwith. Appeal Dismissed.