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2015 DIGILAW 807 (GUJ)

State of Gujarat v. Koli Raghaji Malaji

2015-08-17

G.B.SHAH, K.S.JHAVERI

body2015
Judgment K.S. Jhaveri, J. 1. By way of present appeal, the appellant - State has challenged the judgment and order dated 22.12.1992 passed by the learned Additional Sessions Judge, Palanpur, in Sessions Case No. 92 of 1991, whereby the learned Additional Sessions Judge has acquitted the respondent - accused of the charges levelled against him under Sections 302 and504 of the Indian Penal Code and Section 135 of the Bombay Police Act. 2. The case of the prosecution is that on 4.5.1991, at about 11:30 p.m., the incident took place at village: Iqbalgadh, Dist. Banaskantha, at the chawk of the house of the complainant Champaben, widow of Kacharaji Babarji. The accused, who is husband of the deceased Geetaben, came there and he gave knife blows on the chest, stomach as well as on left hand of the deceased Geetaben. Thereby, the accused committed offences under Sections 302 and 504 of the Indian Penal Code as well as Section 135 of the Bombay Police Act. 3. The investigation was taken up and after usual investigation, charge-sheet came to be filed against the accused. The offences committed by the accused were exclusively triable by the Court of Sessions. Therefore, the learned Magistrate committed the case to the Sessions Court at Palanpur under Section 209 of the Criminal Procedure Code, where it was registered as Sessions Case No. 92 of 1991. Charge vide Exhibit 3 came to be framed against the accused person. He pleaded not guilty and claimed to be tried. 4. To prove the case against the accused, the prosecution examined following witnesses: P.W. No. Witnesses Exhibit 1 Dr. Pursottam Roopchandji Ludhani, PHC, Iqbalgadh 8 2 Dr. Jayendrabhai Ratilal Modi, Civil Hospital, Ahmedabad 11 3 Dr. Mahendrakumar Sarabhai Maniyar, M.O., P.H.C., Amirgadh 17 4 Ramchandbhai Joitabhai, Panch 19 5 Amrutbhai Kasaji, Panch 22 6 Khanabhai Lakhjibhai Makwana, Executive Magistrate, Palanpur 27 7 Mahenderabhai Gokalbhai Parmar, Clerk of the Collector Office, Palanpur 30 8 Ramjibhai Bhagwanbhai Patel, Panch 32 9 Melabhai Kanabhai, Panch 34 10 Champaben Virbhanji, Complainant 35 11 Kisanlal Ramabhai Solanki, Medical Officer, Civil Hospital, Palanpur 36 12 Paruben Kachraji, sister of the deceased 48 13 Gangaben Vanaji, Grandmother of the deceased 49 14 Bharat Kachraji, Brother of the deceased 50 15 Pratapsinh Kahansinh, Head Constable, Iqbalgadh Outpost Police Station 51 16 Abji Ramji, Head Constable, Amirgadh Police Station 63 17 Rajendra Bhanuprasad Yagnik, PSI, Amirgadh Police Station 65 5. The prosecution also produced following documentary evidence. Sr. No. Document Exhibit 1 Medical Certificate issued by Iqbalgadh Dispensary 9 2 Police Yadi 10 3 Transfer Form of Civil Hospital, Palanpur 12 4 O.P.D. From issued by Civil Hospital, Ahmedabad 13 5 X-ray Plate 14 & 39 6 Medical case papers of Civil Hospital, Ahmedabad 15 7 Medical case papers of Civil Hospital, Ahmedabad 16 8 P.M. Note 18 9 Panchnama – scene of offence 20 10 Map for scene of offence 26 11 Police Yadi for Dying Declaration 28 12 Dying Declaration 29 13 Notification for prohibiting of holding arms. 31 14 Panchnama – Recovery of weapons from the accused 33 15 Transfer yadi issued by Iqbalgadh Dispensary 37 16 Case paper of Iqbalgadh Dispensary 38 17 Case paper of Palanpur Civil Hospital 40 18 Medical Certificate of Palanpur Civil Hospital 41 19 Panchnama – Physical condition of injured 42 20 Inquest Panchnama 43 21 Panchnama – Recovery of cloth from the dead body 44 22 Suchipatra 52 23 Reply of injured 53 24 Police yadi 54 25 True copy of Dying declaration 55 26 Yadi to Executive Magistrate, Palanpur of PSO Iqbalgadh 57 27 Complaint 58 28 FIR No. 57 of 1991 Amirgadh Police Station 64 6. After conclusion of the trial, further statement under section 313 of the Code of the accused came to be recorded. The defence in the further statement is of total denial. The learned trial Judge heard the arguments of learned APP and learned advocate for the accused and after appreciating the evidence recorded, passed the judgment and order of acquittal against the accused, as aforesaid. Therefore, the present appeal. 7. Learned APP has stated that in view of the dying declaration recorded by the Executive Magistrate and contention of the witness - P.W.10 complainant, mother of the deceased, it is clear cut case where the trial Court has committed error in acquitting the accused. She has taken us through the evidence of P.W. 1 - Dr. Pursottam Roopchandji Lughani at Exhibit 8, where it has come on record that three injuries were caused to the deceased and same were wound injury because of knife used by the accused. She has also taken us through the evidence of P.W. 2 - Dr. Jayendra Ratilal Modi Exhibit 11, who described five injuries i.e. (1) stitched wound admeasuring 3 cm. She has also taken us through the evidence of P.W. 2 - Dr. Jayendra Ratilal Modi Exhibit 11, who described five injuries i.e. (1) stitched wound admeasuring 3 cm. in length at the part of breast. (2) stitched wound admeasuring 3 cm. in length in the third upper part on the back-side of left arm. (3)stitched wound admeasuring 2 cm. in length on the left side in the back-part of breast. (4) I.C.D. Tube was there on the right side in the back-part of armpit. (5) The x-ray of the said patient had been taken wherein hydronumoforex was found on the right side, and the lung was contracted. I.C.D. Tube was there inside. Medial sternum had turned on the left side. The left lung was clear. There was Surgical M.C.P. in pleura in the lower right side, which means that air had come out from that lung, and it had accumulated below the skin. It would give bubble-like feeling on touching the same, and it was visible in the x-ray. The X-Ray No. is 8686-8-R. It is produced vide Exh. 14. The mental condition of the patient was not normal, she was even referred to a psychiatrist, and a physician was also consulted. She had remained as an indoor-patient for five days, and her temperature and pulse-rates were normal with regard to the treatment. If it had taken a long time in recovery, there would be the requirement of performing an operation upon her. Conservative treatment of the patient was continued during the five days, so that surgical operation would not be required. In case of deterioration of the patient's health, an operation has to be performed on urgent basis at that stage. Such wounds normally heal in a natural way, but an operation has to be performed in case they do not heal under extra-ordinary circumstances. I have brought the original case-papers of the patient. They are spread over page Nos. 1 to 42. All the laboratory-tests of the patient had been performed in five days, and all the necessary treatment had been provided. I have issued a certificate in respect of having examined the patient. She has also taken us through the evidence of P.W.3 -Dr. Mahendrakumar Sarabhai Maniyar, Medical Officer at Amirgadh, Exhibit 17, who has carried out Post Mortem of the dead body of deceased Geetaben. 8. I have issued a certificate in respect of having examined the patient. She has also taken us through the evidence of P.W.3 -Dr. Mahendrakumar Sarabhai Maniyar, Medical Officer at Amirgadh, Exhibit 17, who has carried out Post Mortem of the dead body of deceased Geetaben. 8. Learned APP has taken us to the P.M. Note at Exhibit 18, where cause of death is stated to be "shock due to hemorrhage from rupture of emphysema of lung due to the injuries over the chest" and submitted that the P.M. was carried out after 18 days from the date of incident. To prove the case against the respondent - accused, the prosecution examined P.W. 6 - Khanabhai L. Makwana, Executive Magistrate, at Exhibit 27, who recorded dying declaration on 7.5.1991, but the said witness has not made clarification about the endorsement from the Doctor for consciousness of the deceased at the time when she was admitted in the hospital. She has also taken us through the evidence of one Ramchandbhai Joitabhai, P.W.4, panch witness at Exhibit 4, P.W.-5 Amrutbhai Kasaji, Exhibit 22, P.W.7 - Mahendrabhai Gokalbhai Parmar at Exhibit 30 and P.W.-8 Ramjibhai Bhagwanbhai Patel at Exhibit 32, who are the panch witnesses and who have turned hostile. She has drawn our attention to the evidence of P.W.10, complainant at Exhibit 35, mother of the deceased, who has narrated the entire incident and stated that the accused gave knife blows to the deceased and when the deceased Geetaben started shouting, this witness, her mother Gangaben as also other family members came there and she had seen the accused. However, in cross-examination of this witness, it is stated that her mother Gangaben was living separately from her and her house is situated at the distance of 34 ft. from her house and it was dark night. This witness also stated in her cross-examination that after Geetaben had sustained a knife-blow, she shouted and lost consciousness. Thereafter, she was taken to Iqbalgadh. Stitches were taken there, and believing that she would be well, we brought her to home. Thereafter, she said that she is feeling more pain, and she lost consciousness. The doctor advised to take her to Palanpur Hospital at that time. Thereafter, we took her to Palanpur. Thereafter, she was taken to Iqbalgadh. Stitches were taken there, and believing that she would be well, we brought her to home. Thereafter, she said that she is feeling more pain, and she lost consciousness. The doctor advised to take her to Palanpur Hospital at that time. Thereafter, we took her to Palanpur. It is true that Geetaben did not regain consciousness for three to four days, and hence, it was advised thereafter to take her to the Civil Hospital of Ahmedabad. 9. Learned APP has taken us to the evidence of P.W.-11 -Kisanlal Ramabhai Solanki, Medical Officer of Civil Hospital, Palanpur, Exhibit 36, who narrated the injuries caused to the deceased and stated that the condition of the patient i.e. the deceased was not well and therefore, on 12.5.1991, he referred the deceased to the Civil Hospital, Ahmedabad. Similarly, the prosecution examined P.W. 12 - Paruben Kachraji at Exhibit 48, who is sister of the deceased, P.W.13 -Gangaben Vanaji at Exhibit 49, who is grandmother of the deceased, P.W.14 - Bharatbhai Kachraji at Exhibit 50, who is brother of the deceased, P.W.-15 - Pratapsinh Kahansinh, Head Constable of Outpost Police Station, Iqbalgadh and P.W.-16 -Abjhi Ramaji examined at Exhibit 63, who is Head Constable of Amirgadh Police Station. Learned APP submitted that in view of the dying declaration and injuries caused to the deceased as well as evidence of the eye-witness i.e. complainant and other witnesses, it is a clear cut case where the trial Court has committed error and therefore, the accused is required to be convicted for the alleged offence. 10. Learned advocate Mr. Barot appearing on behalf of the respondent - accused supported the impugned judgment and order passed by the trial Court and submitted that after considering the evidence on record, the trial Court has acquitted the accused by giving benefit of doubt. He submitted that the dying declaration is also doubtful. He submitted that the incident is alleged to have occurred at 11:30 in the night, but looking to the scene of offence panchnama, there is no reference to any light available at the spot. Therefore, the version of eye-witnesses of witnessing the incident from a distance to 34 ft. and 6 inches. was not believable. He also submitted that there is no clarity as regards the place, where the deceased was sleeping at the time of incident. Therefore, the version of eye-witnesses of witnessing the incident from a distance to 34 ft. and 6 inches. was not believable. He also submitted that there is no clarity as regards the place, where the deceased was sleeping at the time of incident. Therefore, if the panchnama - scene of offence at Exhibit 26 is looked into, it is situated nearby the house of the grandmother of the deceased i.e. Gangaben, but since the story projected by the complainant Champaben that the deceased was sleeping nearby a neem tree, there is no neem tree found in the panchnama - scene of offence and same is at a distance of 25 ft. from the spot of incident. He also submitted that the eyewitnesses were disbelieved on the ground that since the distance between them and the spot of incident is 34 ft. and 6 mtrs. and the fact that all of them woke up by the screams made by the deceased, they had only occasion to see the back side of the accused and therefore, since the incident is of 11:30 at night, identification of the accused was in doubt. He also submitted that the panchnama of weapon at Exhibit 33 does not refer to any blood marks on the knife. Further, the said panchnama gets supports from the panch witness and therefore, such aspect was disbelieved by the trial Court and it was also a ground for recording acquittal of the accused. He also submitted that the learned trial Judge comes to the conclusion that despite the police was aware and the incident was brought to their knowledge in time on the next date of incident, the complaint was recorded. Therefore, the delay in FIR was also doubtful and there is no explanation accorded by the prosecution. He also submitted that three eye-witnesses to the case in form of Champaben, Paruben and Bharatbhai were disbelieved on the count that the place at which the deceased was sleeping at the relevant time of incident i.e. the house of her grandmother Gangaben who was the closest eye-witness to the case has not supported the case of the prosecution and turned hostile. He also submitted that it is hard to believe that three eye-witnesses who projected themselves having seen the incident could have witnessed it from a distance of 34 ft. He also submitted that it is hard to believe that three eye-witnesses who projected themselves having seen the incident could have witnessed it from a distance of 34 ft. and 6 inches, which is distance between their house and the spot of incident. He also submitted that it is observed by the trial Court while acquitting the accused that though it comes into evidence that there were houses situated nearby the spot of incident. There are no independent witnesses coming forth to depose or to substantiate the story projected by the prosecution. It seems that the evidence of near relatives in form of eye-witnesses to the case, their evidence becomes suspicious and anyhow it seems that they are interested in implicating the accused. He further submitted that learned trial Judge took a note of an admitted past enmity between the parties, wherein the cases were also registered against the complainant of the case. The fact that the deceased before the incident had come back to her parental home and there was an FIR registered by her against the accused, so on the ground of enmity between the parties, it appeared to the trial Court that there are chances of false implications of the accused -respondent. He further submitted that the trial Court disbelieved the dying declaration on a sole count that despite yadi was received by the Magistrate on 8.5.1991, a day prior thereto, dying declaration was recorded, which aspects creates doubt about the authenticity and reality of dying declaration as a piece of evidence. He also submitted that the prosecution has failed to establish as to the original accused was the author of such injuries on the deceased by any independent evidence. Therefore, no interference is required to be called for by this Court. 11. We have heard learned APP for the appellant State and learned advocate for the respondent original accused. Learned advocates on either side have taken us through the documentary and oral evidence on record. We have independently and dispassionately applied our mind to this evidence. 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. 12. We have independently and dispassionately applied our mind to this evidence. 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. 12. 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." 13. 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, reappreciate 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. 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." 14. 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. 15. 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. 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 reappreciate 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." 15.1. 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. 15.2. 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 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." 15.3. 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 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 leveled against them. by the Inspector of Police, Tamil Nadu, reported in 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 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 Section34 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 reappreciate 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 ]" 15.4. 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, reported in AIR 1981, SC 1417, wherein it is held as under: ".... 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." 15.5. 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. 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. 17. We have perused the impugned judgment of the learned Trial Court. We have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned advocates for both the parties and found that the prosecution has not been able to prove the case against the present respondent original accused and therefore, we are of the considered opinion that the trial Court has rightly acquitted the original accused respondent herein for the offences as alleged considering evidence produced on record. Apart from that, learned APP for the appellant 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. Therefore, the present appeal lacks of merit. 18. In that view of the matter, we are in complete agreement with the reasons recorded by the learned Trial Court in respect of acquitting the original accused respondent herein for the offence as alleged. Hence, this appeal lacks of merits. 19. For the foregoing reasons, the present appeal is dismissed. The impugned judgment and order under challenge is hereby confirmed. Bail bond, if any, stands discharged. Records and Proceedings be transmitted to the Court below concerned forthwith. Appeal Dismissed.