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2016 DIGILAW 1596 (GUJ)

State of Gujarat v. Ramanbhai Anopbhai Raolji

2016-08-02

ANANT S.DAVE, B.N.KARIA

body2016
JUDGMENT : B.N. Karia, J. 1. By way of this appeal, the State of Gujarat has challenged the judgment and order passed by the learned 7th Fast Track Court and Additional Sessions Judge, Panchmahal, Godhra, in Sessions Case No. 262 of 2005 acquitting the accused dated 07.01.2006, under Sections 378(1)(3) of the Code of Criminal Procedure, 1973. Respondent No. 3 has expired therefore, qua him, the present appeal is abated. 2. The facts of the prosecution case, in brief, are as under: "2.1 That on 05.07.2005, in the evening at about 5:00 O'clock, when the complainant Rajubhai Anopbhai was at home, his brother's Ramanbhai Anopbhai, Kalubhai Anopbhai, Jashwantbhai Anopbhai and Pravinbhai Anopbhai, all the four accused had come to the complainant's house and started using abusive words and had ordered the complainant to vacate the house claiming that they were not supposed to stay in the house. To which, the complainant replied that he too had a share in the property-house, as he had given his share in the house. This reply by the complainant enraged these four accused persons named above. Meanwhile, other brother, namely, Rangeetsinh also intervened to settle the dispute. Being angry at this, Ramanbhai Anopbhai hit Rangeetsinh on his both thighs with an iron rod which he was holding in his hand. Blood started coming out due to the blow inflicted by Ramanbhai Anopbhai. Thus, the complainant, his nephew Rameshbhai Parvatbhai rushed towards them to save the injured Rangeetsinh. In this course of action, nephew of the complainant Rameshbhai also received an injury near to his left eye by an iron rod possessed by Ramanbhai Anopbhai. Not only that, the above named accused persons also gave life threat to the victims. 2.2 A complaint in respect of the aforesaid incident was lodged with Godhra Taluka Police Station as II-CR No. 80/2005 for the offences punishable u/S. 323, 504, 506(2) r/w. Section 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act, by Rajubhai Anopbhai. Further, the injured victim Rangeetsinh died at Godhra Civil Hospital on 27.08.2005, during his treatment. Thus, the complainant Rajubhai Anopbhai vide Exh. 28 informed Police Station Officer. Hence, a report was made to insert Section 302 of IPC. Necessary investigation was done and the accused came to be arrested. Further, the injured victim Rangeetsinh died at Godhra Civil Hospital on 27.08.2005, during his treatment. Thus, the complainant Rajubhai Anopbhai vide Exh. 28 informed Police Station Officer. Hence, a report was made to insert Section 302 of IPC. Necessary investigation was done and the accused came to be arrested. At the end of the investigation, charge sheet was filed against all the accused before the Chief Judicial Magistrate Court, Godhra. However, since it was a Sessions triable offence, the case was committed to Sessions Court and ultimately trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried." 3. To prove the case against the accused, the following witnesses were examined:- Wt No. Name of the witness Exhibit no. 1 Sankadbhai Shaabhai Raolji 8 2 Juvansinh Kadubhai Pateliya 10 3 Suleman Isubbhai 11 4 Mohammadbhai Ismail Mamada 13 5 Chand Abdul Salam Dhobi 15 6 Rameshbhai Parvatbhai 16 7 Krishnalal Ramanlal Shah 17 8 Bhanuben Rajubhai Raolji 20 9 Complainant Rajubhai Anopbhai 21 10 Sangeetaben Jaswantsinh 22 11 Head Constable Sardarsinh Jokhnabhai 23 12 ASI Jashwantsinh Aabhsinh 27 13 Vanrajsinh Swaroopsinh, Police Constable 30 14 PSI, Nizamuddin Gulamrasul Saiyeed 32 15 ASI, Mansukhbhai Rumalbhai Palas 33 16 Medical officer, Shashikant Basantilal Nagori 35 4. The prosecution has also produced and relied upon the following documentary evidences:- S. No. Particulars of the document Exh. No. 1 Panchnama of the place of offence 9 2 Inquest panchnama 12 3 Panchnama of seizure of iron rod from the accused 14 4 Yadi to prepare map of the place of offence 18 5 Map of the place of offence 19 6 Original complaint 24 7 Entry of Station Diary 25 8 Order for investigation 26 9 Advertisement of death of the deceased Rangeetsinh 28 10 Report to insert Section 302 in the FIR 29 11 Yadi to conduct Post Mortem 31 12 Deposition of Rangeetsinh 34 13 Police Report From on death of the deceased 36 14 PM Note 37 15 Injury certificate of the deceased Rangeetsinh 38 5. Heard Mr. Rutvij Oza, learned Additional Public Prosecutor for the appellant State and Ms. Tanuja Kachchhi, learned counsel for the respondent-accused. 6. It is submitted by Mr. Heard Mr. Rutvij Oza, learned Additional Public Prosecutor for the appellant State and Ms. Tanuja Kachchhi, learned counsel for the respondent-accused. 6. It is submitted by Mr. Oza for the appellant-State that the order passed by the learned 7th Fast Track Court and Additional Sessions Judge, Panchmahal, Godhra, in Sessions Case No. 262 of 2005 acquitting the accused dated 07.01.2006, is contrary to law, perverse and illegal. Therefore, the impugned judgment is required to be quashed and set aside. It is further urged by him that the evidence of the prosecution witnesses and the documentary evidences produced on record was not properly appreciated by the learned trial judge. That, it was clearly proved by the prosecution that it was an intention of the accused No. 1 to commit murder of the victim Rangeetsingh and sufficient medical evidence was also produced by examining a doctor to establish injury caused to the deceased into his internal part of the body. That, the accused No. 1 had used iron rod, while causing injury to the deceased which was recovered from him and death of the injured had taken place due to the injuries caused to him. However, learned trial judge has committed grave error in not believing evidence of the prosecution. Learned advocate Mr. Oza, has drawn our attention to the Medical Certificate produced at Exh. 38, wherein, in history it is mentioned that assault is by 'laakdi' and 'sariya'. He has further invited our attention to the statement of the deceased recorded by the Police Officers supporting the prosecution case, as well as PW-15, Mansukhbhai A.S.I, an Investigating Officer after recording the complaint. He has further submitted that during pendency of this appeal, accused No. 3 has expired. That, prosecution has proved its case beyond reasonable doubt against the accused. Hence, it was requested to quash and set aside the impugned judgment and order passed by the learned trial judge in Sessions Case No. 262 of 2005, dated 07.01.2006 by allowing this appeal and convicting the accused for the offences. 7. Ms. Tanuja Kachchhi, learned counsel for the respondent-accused, vehemently submitted that there is no evidence submitted by the prosecution to connect the accused with the crime as alleged by the prosecution. That, no sufficient medical evidence was submitted by the prosecution that the injuries caused to the deceased was sufficient to cause death. 7. Ms. Tanuja Kachchhi, learned counsel for the respondent-accused, vehemently submitted that there is no evidence submitted by the prosecution to connect the accused with the crime as alleged by the prosecution. That, no sufficient medical evidence was submitted by the prosecution that the injuries caused to the deceased was sufficient to cause death. That, only injuries on legs were inflicted on the deceased by an iron rod, which cannot be termed as a deadly weapon. On no vital part of the body of the deceased, any injury was caused. That, the injured expired after a period of one month and 22 days of the incident. That, as per the medical opinion, due to shock and due to septicemea following perforatuland gangrenous small and large intestine and faecal peritonitis, the victim had expired and not due to injuries caused on legs. That, the statement before the Police Officer cannot be treated and weighted as a Dying Declaration under Section 32 of the Evidence Act. It can be treated as a statement under Section 162 of the Cr.P.C. No intention to commit murder was proved by the prosecution against the accused. No injury was caused to the internal part of the body as per the medical evidence. In the complaint, prosecution has shown four accused as eye witnesses, but they have not supported the prosecution case. If we consider the evidence of the PW Rajubhai, Exh. 21, there was hot discussion carried out in respect of the house. At that time, the deceased came out from a shop and he fell down on an iron rod, thereafter, one Mr. Rameshbhai tried to assist the deceased Rangeetsinh, at that time, the iron rod dashed to his left eye. That, no evidence was produced by the prosecution supporting the complaint-Exh. 24. The complainant himself has not supported the prosecution case involving the accused in the offence. Other prosecution witnesses, namely, Bhanumatiben-wife of the applicant (Exh. 20) as per the prosecution case, she was present at the time of the offence as well as injured person Rameshbhai Parvatbhai, (Exh. 16) are not supporting the prosecution case. No medical certificate of an injury caused to the PW-Rameshbhai was produced on record. Another eye witness, namely Sangeetaben Jashwantsinh Exh. Other prosecution witnesses, namely, Bhanumatiben-wife of the applicant (Exh. 20) as per the prosecution case, she was present at the time of the offence as well as injured person Rameshbhai Parvatbhai, (Exh. 16) are not supporting the prosecution case. No medical certificate of an injury caused to the PW-Rameshbhai was produced on record. Another eye witness, namely Sangeetaben Jashwantsinh Exh. 22, wife of accused No. 3 was at her matrimonial home at the time of incident and the accused No. 4 was not present at the place of offence. No evidence in respect of abusing by the accused, or giving fist blows by the accused No. 4 or threatening the complainant side was produced by the prosecution. Panchnama of the place of offence (Exh. 9) is not proved by the panchas namely Sankadbhai (Exh. 8) and Juvansinh Kadubhai Pateliya (Exh. 10) as they have turned hostile. So far recovery of an iron rod from accused No. 1 is concerned, a panchnama Exh. 14 was produced by the prosecution. But, both of the panchas have not stated that it was recovered from the possession of accused No. 1. Therefore, version of police officials in absence of any corroborating evidence cannot be relied by the Court. Hence, it was requested by her to dismiss the appeal in absence of any cogent evidence and confirm the judgment and order passed by the learned trial judge acquitting the accused. 8. In case of Sadhu Saran Singh v. State of Uttar Pradesh & Ors., reported in (2016) 4 SCC 357 , the Apex Court while discussing scope of interference in appeal against acquittal order, held and observed as under:- "20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal in Sambasivan v. State of Kerala, (1998) 5 SCC 412 has held: 7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal." 9. Having considered the facts of the case, arguments advances by the learned APP for the State and learned advocate for the respondents/accused, record and documentary evidences, first of all, if we consider the complaint (Exh. 24), it is alleged that the accused No. 1, inflicted two injuries with an iron rod on both the legs of the deceased Rangeetsinh. From the complaint, it transpires that no injury was caused to the deceased on his vital part. If we consider the certificate (Exh. 38), issued by the Medical Officer, General Hospital, Godhra, in the history it is stated that assault was made by 'lakdi' and 'sariya' on 05.07.2005 at 05:00 p.m. As per the certificate two injuries were found such as (I) CLW on (Rb) T/F oblique low 3rd region leg, (II) Br wound chest franto (6x2 cms) and laterally abdominal back (5x2 cms). No other injuries on vital parts of the deceased was shown at preliminary stage. There is no injury on left leg, as per the medical certificate. No other injuries on vital parts of the deceased was shown at preliminary stage. There is no injury on left leg, as per the medical certificate. It appears that on 05.07.2005, injured Rangeetsinh was admitted in the Civil Hospital, Godhra, and after passing of one month and 22 days, during the treatment, he was expired. Thereafter, Section 302 IPC was added by the Police in the FIR. During the investigation, statement of injured Rangeetsinh was recorded by the police, as it was produced by the prosecution to treat it as a dying declaration. That, the injured was expired, and therefore, without any corroborative evidence, it is not possible to treat this statement as dying declaration. As per the post mortem note produced on record vide Exh. 37, the injuries caused to the deceased on his legs was not sufficient to cause death. The cause of death as shown in this document is 'shock due to septicemea following perforatuland gangrenous small and large intestine and faecal peritoritis'. Therefore, medical evidence is not supporting the prosecution case to prove that it was a homicidal death, due to the injuries caused to the deceased by iron rod. From the evidence it is not proved by the prosecution that accused were actuated by intention to attack the deceased. Another circumstances which deserves notice is that only two blows with an iron rod were not serious and no other injury was inflicted on the deceased by the accused. As per the prosecution case, in complaint four witnesses, namely, Rameshbhai-nephew of the complainant and wife of the complainant-Bhavnaben were present at the time of offence. As per the statement of the deceased (Exh. 34), the accused inflicted two injuries on his both legs by an iron rod. P.W. 9 Rajubhai Anopbhai in his testimony at Exh. 21 says that in connection with house, there was a hot discussion. Meanwhile, his brother Rangeetsinh came out from a shop and fell down on an iron rod in the compound. Thereafter, Rameshbhai tried to assist him and he also received an injury on his left eye from the said iron rod. No other incident had taken place. As per his testimony, due to a fall on the iron rod, the deceased had received the injuries. This witness had also received an injury on his left eye, while assisting the deceased. Thereafter, Rameshbhai tried to assist him and he also received an injury on his left eye from the said iron rod. No other incident had taken place. As per his testimony, due to a fall on the iron rod, the deceased had received the injuries. This witness had also received an injury on his left eye, while assisting the deceased. The complainant himself is not supporting the prosecution case and has turned hostile. In cross examination, no facts or evidence was made available helping the prosecution. On the same line, wife of the deceased Bhanuben, (Exh. 20), has stated that at the time of offence none of them were possessing any weapon in their hands. The deceased fell down on an iron rod and hence received injuries. She has also turned hostile. Rameshbhai Parvatbhai is another prosecution witness who was examined at Exh. 16. He has of course said that the accused No. 1 had inflicted injury on left eye by an iron rod to him, but, so far Rangeetsinh-the deceased is concerned, he fell down on an iron rod and while getting up, the deceased received injuries. No medical papers of receiving any injuries by this witness is produced on record by the prosecution, nor any doctor is examined. This witness is not supporting the complaint at (Exh. 24) at all, or produced any evidence against the accused. He was also turned hostile. 10. Sangeetaben Jashwantsinh, the alleged eye witness and wife of the accused No. 3 is examined vide Exh. 22. As per her testimony, she was at her parental home and her husband accused No. 3 was accompanying her as he was not present at the place of the offence. It is further stated that one leg of accused No. 4 was cut off and he was unable to walk without help of a walker. Nothing was stated by this witness in her testimony before the Court against the accused and hence, she has also turned hostile by the prosecution. All the material eye witnesses have never supported the prosecution case before the trial Court involving the accused in the crime. No other evidence in respect of abusing, giving threats to the complainant side or inflicting any injuries to the deceased, receiving any injuries by the Rameshbhai Parvatbhai Exh. 16, by an iron rod was produced by the prosecution. All the material eye witnesses have never supported the prosecution case before the trial Court involving the accused in the crime. No other evidence in respect of abusing, giving threats to the complainant side or inflicting any injuries to the deceased, receiving any injuries by the Rameshbhai Parvatbhai Exh. 16, by an iron rod was produced by the prosecution. Further, it transpires that the deceased and the witnesses were close relatives, however, they have not submitted any evidence against the accused. Panchas of the place of offence, (Exh. 9) have also turned hostile. No blood stains were found at the place of offence, nor any article was recovered from the same place. A map of the place of offence was prepared by the Circle Officer, produced at Exh. 18, namely Krishnalal Ramanlal Shah, Inspector (Revenue). From this map, it appears that nearby to the residence of the complainant, house of the accused are there. The place of offence appears to be quiet near to the compound of complainant's house. The recovery panchnama at Exh. 14, recovering weapon of iron rod from the accused No. 1 is not supported by 2 panchas examined vide Exh. 13 and 14. Rest of the prosecution witness Sardarsinh Jokhnabhai, Exh. 23, has recorded the complaint at Exh. 24. But none of the prosecution witnesses have supported the contents of the complaint. The Investigating Officer Mr. Mansukhbhai, Exh. 33, has supported the prosecution case in his testimony. But, without any corroborating evidence, the accused cannot be involved in the offence. From the evidence of Doctor A K Sharma, who has performed post mortem of the deceased, there were three blows on different parts of the body. There was 75% gangrene on the internal part of abdomen. The cause of death is shock due to septicemea following perforatal and gangrenous small and large intestine and faecal peritonitis. Medical Officer has also clearly stated that due to the injury caused to the deceased, he could not succumbed to such injuries. 11. Having regard to the background in which the incident triggered off and in view of the very findings recorded by the learned trial judge, the respondents/accused cannot be imputed with the intention to cause death of the deceased or involved in the crime. No error is committed by the learned trial judge. 11. Having regard to the background in which the incident triggered off and in view of the very findings recorded by the learned trial judge, the respondents/accused cannot be imputed with the intention to cause death of the deceased or involved in the crime. No error is committed by the learned trial judge. The findings and conclusion arrived at by the learned trial judge of acquitting the respondents/accused of the offence appears to be quite legal and cogent, and therefore, this Court is of the view that no interference in the impugned judgment and order of the trial court is required. The present Appeal filed by the State, lacks merit and deserves to be dismissed, and is dismissed accordingly. 12. For the foregoing reasons, the impugned judgment and order dated 07.01.2006, passed by the learned 7th Fast Track Court and Additional Sessions Judge, Panchmahal, Godhra, in Sessions Case No. 262 of 2005 acquitting the accused, stands confirmed. R & P be sent to the Court below, forthwith.