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2015 DIGILAW 846 (GUJ)

Lakhubhai Jadavbhai Vaghela v. State of Gujarat

2015-09-01

G.B.SHAH, K.S.JHAVERI

body2015
Judgment K.S. Jhaveri, J. 1. Criminal Appeal No. 1000 of 2011 and Criminal Appeal No. 1143 of 2011 are preferred against judgment and order dated 20.7.2011 passed by learned Additional Sessions Judge, Gondal in Sessions Case No. 111 of 2007. By the said judgment, the accused was convicted for the offence punishable under Section 326 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of three years and ordered to pay fine of Rs. 1,000/- and, in default of payment of fine, simple imprisonment of one month was awarded. Criminal Appeal No. 1000 of 2011 is preferred by the accused against conviction, while Criminal Appeal No. 1143 of 2011 is preferred by the State for enhancement of sentence. 2. So far as Criminal Appeal Nos. 1172 and 1176 of 2011 are concerned, they are preferred by the State against judgment and order dated 20.7.2011 passed by learned Additional Sessions Judge, in Sessions Case No. 61 of 2007. By the said judgment, accused No. 1 of the said case was convicted for offence punishable under Section 304, part-II and sentenced to undergo rigorous imprisonment for five years and fine of Rs. 3,000/- was imposed and, in default of payment of fine, he is ordered to undergo simple imprisonment of two months, while accused Nos. 2 to 4 have been acquitted of the charges levelled against them. Therefore, Criminal Appeal No. 1172 of 2011 is preferred for enhancement of sentence imposed upon accused No. 1 and Criminal Appeal No. 1176 of 2011 is preferred by the State against acquittal of accused Nos. 2 to 4. Though served, original accused No. 1, respondent of Criminal Appeal No. 1172 of 2011 has not appeared and it seems that he has accepted the order of conviction recorded against him as no appeal is filed by him against conviction. 3. As all these appeals are arising out of the judgments in cross-cases which were filed for the same incident, and since the evidence is common in all these appeals, the same are taken up for hearing together. 4. 3. As all these appeals are arising out of the judgments in cross-cases which were filed for the same incident, and since the evidence is common in all these appeals, the same are taken up for hearing together. 4. The case of the prosecution so far as Sessions Case No. 111 of 2007 is concerned is that on 24.12.2006, complainant-Champaben Gabhubhai Vaghela lodged a complaint alleging inter alia that when she was going with her husband nearby their house at that time her cousin brother-Lakhu Jadav came with scythe (Dharia), gave filthy abuses and tried to inflict a blow to her husband and as she came between them, she received injury by Dharia on her left leg and thereafter Lakhu Jadav threw a stone on her and thereby injured her head; at that time Devayat Bachu and her father came and saved them and at that time Jadav Bhana also received injury. 4.1 So far as Sessions Case No. 61 of 2007 is concerned, the case of the prosecution is that complainant Sakarben Jadavbhai Vaghela, residing at Ramod, registered her complaint at Kotadasangani Police Station, Gondal, stating that complainant is having four daughters and three sons. The complainant, her husband and her daughter, Champu, were living jointly and other children were residing separately. That on 24.12.2006, in the evening, when complainant and her husband were present in their house, they heard some shouts of their son Lakhu, therefore, husband of complainant went towards scene of offence and after some time the complainant also went there and seen that the accused Devayat Bachubhai Vaghela inflicted pipe blows on the head of her husband and other accused Arvind Bachu and Ramesh Bachu also inflicted stick blows on her husband and her son Lakhu. During the said incident, accused Naru Kana also came there and beaten Dilipbhai, who tried to rescue them. At that time, Devayat Bachubhai Vaghela inflicted iron pipe on the head of the deceased and caused grievous injuries because of which blood was oozing out of the head of husband of complainant and he was taken to Gondal Government Hospital, where he was declared dead. Therefore, the complaint was lodged against the accused persons under Sections 302, 143, 147, 148, 149 and 323 of the Indian Penal Code. Therefore, the complaint was lodged against the accused persons under Sections 302, 143, 147, 148, 149 and 323 of the Indian Penal Code. 4.2 In connection with both the aforesaid complaints, the accused persons were arrested and charge-sheets were submitted in the Court of Chief Judicial Magistrate, Gondal. However, as the case was exclusively triable by the Court of Sessions, the same committed to Sessions Court, Gondal. Thereafter, charges were framed against the accused persons. The learned Sessions Judge, Gondal, after recording the evidence of the prosecution witnesses and after recording the plea of the accused persons by two different judgments dated 20.7.2011 in Sessions Case No. 111 of 2007 and Sessions Case No. 61 of 2007 awarded the punishment as aforesaid and also acquitted some of the accused persons. Being aggrieved and dissatisfied with the said judgment and order, all these appeals are preferred before this Court. 5. Mr. Tushar Sheth, learned advocate for the appellant in Criminal Appeal No. 1000 of 2011, accused in Sessions Case No. 111 of 2007, has taken us through the evidence and submitted that the case put forward by the complainant is not probable because in her evidence she has stated that she was unconscious for two days and, there are corrections in the complaint. He also submitted that the prosecution has miserably failed to prove its case against the appellant. He also submitted that considering the evidence on record, it cannot be said that injury in question can be caused by scythe (Dharia). He has taken us through the medical evidence in this regard. He further submitted that the complainant has no house in the village and therefore the complaint is lodged by somebody else in the name of the complainant. He has also taken us through the evidence of Atulkumar Bhikhalal Valand, PSI and tried to show the panchnama and other writings which were prepared and submitted that it is found that injury was caused by Devayat Bachubhai Vaghela and the present appellant-accused was not the aggressor. He, therefore, submitted that the appellant herein is wrongly convicted by the learned trial Judge and he is required to be acquitted by reversing the impugned judgment. 6. On the other hand, Ms. He, therefore, submitted that the appellant herein is wrongly convicted by the learned trial Judge and he is required to be acquitted by reversing the impugned judgment. 6. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellant is just and proper and she has supported the conviction recorded by impugned judgment. So far as Criminal Appeal No. 1143 of 2011 is concerned, which is preferred for enhancement of sentence imposed on Lakhubhai Jadavbhai Vaghela, she has taken us through the evidence and contended that the trial Court has committed an error in imposing lesser sentence upon the accused inspite of voluminous evidence against him and contended that the trial Court ought not to have imposed such a lesser punishment. She also submitted that without appreciating the documentary as well as oral evidence available on the record of the case in its proper perspective, learned Judge has erred in imposing lesser punishment. She further submitted that the learned Judge has also erred in not properly appreciating the gravity of the offence committed by the accused while imposing the sentence and thereby committed grave error by imposing lesser punishment she has taken us through the medical evidence and submitted that it is a grievous hurt, therefore, sentence imposed upon the accused is required to be enhanced. She has taken us through paragraphs 8 and 9 of the judgment and contended that at least fracture can be attributed to the appellant and since it is proved beyond reasonable doubt that the appellant had caused injury with scythe (Dharia), the sentence imposed upon the accused-appellant is not adequate and it is required to be enhanced. She also submitted that the appellant herein is recognized by PSI in the Court. She also submitted that the trial Court has committed an error in not believing the version of the complainant and other witnesses and considering the medical evidence, it can be said that the appellant is guilty of offence under Section304 part II and therefore, he should have been convicted for the same and accordingly, sentence imposed upon him is required to be enhanced. She also submitted that the learned trial Judge has committed an error in taking lenient view while imposing sentence on the appellant-accused and therefore, the sentence imposed is required to be enhanced. She also submitted that the learned trial Judge has committed an error in taking lenient view while imposing sentence on the appellant-accused and therefore, the sentence imposed is required to be enhanced. She also submitted that looking to the facts of the present case, when the prosecution has proved the case beyond reasonable doubt and when the learned Judge has also convicted the respondent-accused, the learned Judge ought to have imposed appropriate sentence provided under the provision of IPC. Therefore, she submitted that Criminal Appeal No. 1143 of 2011 may be allowed and the sentence imposed by the trial Court may be enhanced. 7. We have heard Mr. Tushar Sheth, learned advocate for the appellant-accused of Sessions Case No. 111 of 2007 and Ms. C.M. Shah, learned APP for the State. We have also gone through the evidence on record. Considering the evidence on record and particularly the medical evidence, it is rightly found by the learned trial Judge that the accused had attacked the victim with scythe (Dharia) and thereby caused grievous hurt. This fact is also supported by medical officer Dalpatbhai Nathabhai Sapra in his evidence at Exh.28. Even the PSI who had registered the complaint, has also supported the version of the complainant, therefore, there is no reason to disbelieve the version of the complainant. We are in agreement with the view taken by the learned Sessions Judge while convicting the accused. Considering the evidence on record, it can be said that the accused is guilty of causing injury and enhancement appeal deserves to be allowed, however, looking to the family background of the accused, we deem it fit to take a sympathetic view in the matter, therefore, we are not enhancing the sentence and it is maintained as it is and, therefore, the appeal filed by the accused against his conviction as well as appeal filed by the State for enhancement of sentence both are required to be dismissed. 8. So far as Criminal Appeal No. 1172 of 2011 is concerned, which is preferred for enhancement of sentence imposed upon Devayat Bachubhai Vaghela, accused No. 1 in Sessions Case No. 61 of 2007, Ms. 8. So far as Criminal Appeal No. 1172 of 2011 is concerned, which is preferred for enhancement of sentence imposed upon Devayat Bachubhai Vaghela, accused No. 1 in Sessions Case No. 61 of 2007, Ms. C.M. Shah, learned APP appearing for the appellant-State has taken us through the evidence and contended that the trial Court has committed an error in imposing the sentence upon the accused inspite of voluminous evidence against him and contended that the trial Court ought not to have imposed such a lesser punishment. She submitted that death of Jadavbhai Vaghela was caused by the accused by inflicting blows of iron pipe, for which the accused is held guilty of offence punishable under Section 304, Part-II and maximum sentence for such offence is imprisonment of life with fine, however, learned trial Judge has imposed sentence for only five years with fine of Rs. 3,000/-. She also submitted that the eye witnesses as well as medical evidence support the case of the prosecution, therefore, there was no need to impose lesser punishment upon the accused. She also submitted that without appreciating the documentary as well as oral evidence available on the record of the case in its proper perspective, learned Judge has erred in imposing lesser punishment. She further submitted that the learned Judge has also erred in not properly appreciating the gravity of the offence committed by the accused while imposing the sentence and thereby committed grave error by imposing lesser punishment. She also submitted that the learned Judge ought to have imposed maximum sentence on the present accused as provided under the Code. Hence, impugned judgment and order passed by learned Judge, imposing the minimum sentence, deserves to be quashed and set aside by this Hon'ble Court and the sentence imposed to the accused deserves to be enhanced to maximum sentence as provided under the aforesaid sections. 9. We have heard learned APP for the State so far as Criminal Appeal No. 1172 of 2011 is concerned. No one appears for the respondent-accused. We have also gone through the evidence on record and the impugned judgment. 9. We have heard learned APP for the State so far as Criminal Appeal No. 1172 of 2011 is concerned. No one appears for the respondent-accused. We have also gone through the evidence on record and the impugned judgment. It is found by the learned trial Judge that accused No. 1, Devayat Bachu has caused injury with iron pipe on the head of Jadav Bhana due to which he died but such injury was caused during a scuffle and medical officer has stated in his evidence that such injury may not have caused death, therefore, it cannot be said that there was any intention on the part of the accused to commit murder of the deceased, however, the accused was knowing well that such injury can cause death, therefore, he was rightly found guilty for offence punishable under Section304, Part-II. We also find that considering the circumstances of the case and the family condition of the accused, learned trial Judge has rightly imposed sentence upon the accused, which is not required to be enhanced. In our view, it cannot be said that the learned trial Judge has committed any error while imposing sentence upon the accused and has imposed lesser punishment upon the accused, and hence, this appeal preferred for enhancement of sentence is required to be dismissed. 10. So far as Criminal Appeal No. 1176 of 2011 is concerned, which is preferred against acquittal of accused Nos. 2 to 4 in Sessions Case No. 61 of 2007, it is submitted by learned APP that acquittal is against law and evidence on record. She submitted that the learned Judge has erred in appreciating the evidence of the prosecution witnesses wherein the prosecution has established that the respondents-accused were guilty of the offence. She, therefore, submitted that by allowing Criminal Appeal No. 1176 of 2011, impugned judgment acquitting the respondents-accused of the charges leveled alleged against them may be set aside. 11. 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 Vs. 11. 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 Vs. 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. 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." 11.1 Further, in the case of Chandrappa Vs. 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. [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. 11.2 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. 11.3 Even in the case of State of Goa V. Sanjay Thakran & Another, (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 re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 11.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. 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. 11.5 In the case of Luna Ram Vs. 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." 11.6 Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. Vs. 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 leveled against them. Vs. 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 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 appellants 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 vs. Sohan Lal and Others, (2004) 5 SCC 573 ]" 11.7 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 Vs. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, 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. 11.8 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. 12. We have gone through the oral as well as documentary evidence on record. While passing the impugned judgment, the learned trial Judge has rightly observed that it is not proved that accused Nos. 2 to 4 have formed an unlawful assembly with a common intention to commit the offence. It is also not proved that the accused persons have caused the injuries in question. It is also rightly found from the evidence on record that accused Nos. 2 to 4 cannot be said to be guilty of abetment in causing death of the deceased. Therefore, they are rightly acquitted by the learned trial Judge. From the above, it is clear that the learned Judge has not committed any error while acquitting the accused persons of the charges levelled against them. Moreover, 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 persons. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting the respondents-accused Nos. 2 to 4 of the charge levelled against them. 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 and this appeal is also required to be dismissed. 13. 2 to 4 of the charge levelled against them. 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 and this appeal is also required to be dismissed. 13. For the foregoing reasons, the following final order is passed. 13.1 Criminal Appeal No. 1000 of 2011 preferred by the accused, who was convicted under Section 326 of the Indian Penal Code vide judgment and order dated 20.7.2011 passed by learned Additional Sessions Judge, Rajkot at Gondal in Sessions Case No. 111 of 2007 and Criminal Appeal No. 1143 of 2011 preferred by the State against the same judgment for enhancement of sentence are dismissed and the impugned judgment and order is confirmed. Bail bonds stand discharged. If the accused has not undergone the period of sentence imposed by the impugned judgment, he shall surrender before the jail authorities within a period of eight weeks from today to serve out the remaining period of sentence and if he has already undergone the period of sentence, he need not surrender. Record and proceedings, if lying here, be sent to the Court below forthwith. 13.2 So far as Criminal Appeal No. 1172 of 2011 preferred by the State for enhancement of sentence imposed vide judgment and order dated 20.7.2011 passed by learned Additional Sessions Judge, Rajkot at Gondal in Sessions Case No. 61 of 2007 and Criminal Appeal No. 1176 of 2011 preferred by the State against acquittal of other accused persons recorded in the aforesaid Sessions Case No. 61 of 2007 by the same judgment are dismissed and the impugned judgment and order is confirmed. Bail bonds stand discharged. If the accused has not undergone the period of sentence imposed by the impugned judgment, he shall surrender before the jail authorities within a period of eight weeks from today to serve out the remaining period of sentence and if he has already undergone the period of sentence, he need not surrender. Record and proceedings, if lying here, be sent to the Court below forthwith.