Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 261 (GUJ)

Devendra Manubhai Patel v. State of Gujarat

2016-02-04

K.S.JHAVERI, R.P.DHOLARIA

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Criminal Appeal No. 1047 of 2007 is preferred by the original accused No. 3 against judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge & Presiding Officer, 3rd Fast Track Court, Vyara at Dist: Surat on 07/05/2007 in Sessions Case No. 60 of 2006, whereby he was convicted for offences punishable under Section 302 of the Indian Penal Code and ordered to undergo rigorous imprisonment for life and ordered to pay fine of Rs. 1,000/- and in default, rigorous imprisonment for six months was imposed. 1.1 Criminal Appeal No. 720 of 2008 is preferred by the State of Gujarat against the acquittal of org. accused Nos. 1, 2 and 4 by the said judgment and order. 2. As these appeals are arising out of the same judgment rendered in connection with the same incident and the evidence is also common in all these appeals, the same are taken up for hearing together. 3. The case of the prosecution is that the dispute were going on between the complainant and the accused persons regarding the land in question and litigations to that effect were also filed before the Bardoli Court. That on 17/06/2006, when the complainant, her husband-Naresh, her brother-in-law-Ganesh and sister-in-law-Ramilaben were cultivating the land, the respondent-org. accused No. 2 came with scythe and started quarreling with them and also threatened to give up the possession of the land in question, otherwise, they will be killed and then left the place. Thereafter, on the date of incident, after cultivating the filed, when they were taking lunch, the accused persons armed with deadly weapon like dhariya, sticks, etc., came and thereafter altercation took place between them. At that time also, the accused persons threatened to give up the possession of the land in question. Thereafter, the accused persons started beating Ramilaben and org. accused No. 3 gave Dhariya blow on the head of Ramilaben. As a result of that, she fell down and was bleeding. Thereafter, accused persons caught hold of Babubhai and gave Dhariya blow to him. As a result of that, he also fell down. All the accused fled away from the place of incident. And the deceased succumbed to the injuries. 3.2 FIR was lodged with Mahuva Police Station, on basis of which offence was registered and case was investigated. Thereafter, accused persons caught hold of Babubhai and gave Dhariya blow to him. As a result of that, he also fell down. All the accused fled away from the place of incident. And the deceased succumbed to the injuries. 3.2 FIR was lodged with Mahuva Police Station, on basis of which offence was registered and case was investigated. At the end of investigation, the Police found that there was sufficient material against the accused and, therefore, the charge-sheet was filed in the Court of learned JMFC, Bardoli, who in turn, committed the case to the Court of Sessions and Sessions Case No. 60 of 2006 came to be registered. 3.3 Charge was framed against accused at Exh. 3 for offence punishable under Sections 302 and 34 of the Indian Penal Code, to which they pleaded not guilty and claimed to be tried. 3.4 During the trial, the prosecution had examined following witnesses as oral evidence:- Sr. No. Name Exhibit 1 Complainant-Gitaben w/o Nareshbhai Gulabbhai Dho. Patel 17 2 Dr. Manoj Fatehsinh Chaudhary 9 3 Ganeshbhai Gulabbhai Patel 21 4 Nareshbhai Gulabbhai Patel 22 5 Hiteshbhai Babubhai Patel 23 6 Ketanbhai Mohanbhai Patel 24 7 Rameshbhai Nichhabhai Nayka, Panch of place of incident. 25 8 Rameshbhai Bhikhabhai Patel, Panch of recovery of weapon 27 9 Arvindbhai Ratilal Parekh, Panch of physical condition of accused. 30 10 Pravinbhai Gandabhai Patel, Panch of physical condition of accused. 35 11 Amratbhai Mohanbhai Mistry, Panch of recovery of weapon. 39 12 Umaji Revjibhai Vasava 40 13 Investigating Officer, Police Sub-Inspector, H.M. Suthar. 41 3.5 The prosecution had also produced and relied upon following documentary evidence:- Sr. No. Name Exhibit 1 P.M. Note of Ramilaben 11 2 P.M. Note of Babubhai 12 3 Certificate of cause of death 13 4 Complaint of the complainant 18 5 Panchnama of place of incident 26 6 Panchnama of recovery of weapon used in commission of crime 28 7 Panchnama of weapon hidden at the place 29 8 Panchnama of physical condition of accused – Devendra 31, 32 and 33 9 Recovery of blood stains clothes from the accused 34 10 Inquest Panchnama 36 11 Panchnama of clothes on the dead body 37 12 Map of place of incident 42 13 Forwarding report of muddamal sent to FSL 43 14 Syrological Report 44 4. At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court. 5. Mr. Pratik Barot, learned advocate for original accused No. 3, appellant of Criminal Appeal No. 1047 of 2007 has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellant. It is also submitted that the prosecution has not proved the case beyond reasonable doubt since the involvement of the accused is not proved, the trial Court has committed an error in convicting the accused for offence punishable under Section 302 and 34 of IPC. 5.1 It is submitted that even the majority of the panchas have not supported the case of the prosecution. He also submitted that the evidence on record is not sufficient to convict org. accused No. 3 for offence punishable under Section 302 of IPC, therefore, benefit of doubt should have been given to him. He also submitted that when the trial Court has acquitted org. accused No. 1, 2 and 4 by granting benefit of doubt to them, org. accused No. 3 also should have been acquitted. He also submitted that witnesses present at the time of commission of offence do not inspire confidence, therefore also the learned trial Judge committed an error in convicting the org. accused No. 3. He also contended that there is no cogent or reliable evidence to convict org. accused No. 3. Lastly, he submitted that appeal may be allowed by acquitting org. accused No. 3. 6. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against org. accused No. 3 is just and proper and he has supported the conviction recorded by impugned judgment. accused No. 3. Lastly, he submitted that appeal may be allowed by acquitting org. accused No. 3. 6. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against org. accused No. 3 is just and proper and he has supported the conviction recorded by impugned judgment. So far as Criminal Appeal No. 720 of 2008 is concerned, which is preferred against acquittal of accused No. 1, 2 and 4 from charges of offence under Sections 302 and 34 of IPC, she has taken us through the evidence and contended that the trial Court has committed an error in acquitting accused No. 1, 2 and 4 in spite of voluminous evidence against them and contended that the trial Court ought not to have acquitted from the charges levelled against her. 6.1 She submitted that the prosecution has examined number of witnesses and also produced number of documents in support of its case, however, the learned trial Judge has not properly appreciated the same and acquitted accused No. 1, 2 and 4. She submitted that P.W. 1, 2, 3 and 4 all have supported the case of the prosecution. She also submitted that the trial Court has committed an error in not believing the statements of the witnesses and considering the evidence on record, it can be said that accused No. 1, 2 and 4 is also guilty of offence under Section 302 of IPC, and therefore, they should have been convicted for the same. She submitted that this is a fit case for reversing the acquittal of accused No. 1, 2 and 4 under Sections 302 of IPC. 6.2 She also submitted that all the material piece of evidence proves the involvement of the accused in commission of crime, they should be held guilty for offence punishable under Section 302 of IPC. Therefore, She submitted that Criminal Appeal No. 720 of 2008 may be allowed and accused No. 1, 2 and 4 should be convicted for the offences, as alleged. 7. We have heard learned advocate Mr. Pratik Barot, for the org. accused No. 3 and learned APP, Ms. C.M. Shah for the State. We have also gone through the impugned judgment as well as evidence on record. 8. PW 1, Dr. Manoj Fatehsinh Chaudhary, is examined at Exh. 7. We have heard learned advocate Mr. Pratik Barot, for the org. accused No. 3 and learned APP, Ms. C.M. Shah for the State. We have also gone through the impugned judgment as well as evidence on record. 8. PW 1, Dr. Manoj Fatehsinh Chaudhary, is examined at Exh. 9 and he has stated in his evidence that he conducted the postmortem on the body of deceased-Ramilaben Rameshbhai Patel and stated the injuries caused to the deceased were prior to her death and can be caused with hard and blunt substance and are sufficient to cause death in natural course and the same is reflected in the PM Note which is produced at Exh. 11. Witness has further deposed that looking to the muddamal article Nos. 30 and 29-wooden logs and muddamal article No. 28, the injuries stated by him in the PM Note can be caused. Witness has further deposed that he alongwith Dr. Pramod Chaudhary conducted the postmortem on the body of deceased-Babubhai Hakabhai Patel and deposed that injuries caused to him were prior to his death and can be caused with hard and blunt substance and cause of death is shock due to the injuries caused on the head and injuries are sufficient to cause death in natural course and the same is reflected in the PM Note which is produced at Exh. 12. Witness has further deposed that looking to the muddamal article Nos. 30 and 29-wooden logs and muddamal article No. 28, the injuries stated by him in the PM Note can be caused. Therefore, we find that it was due to culpable homicide amounting to murder. 9. In view of the evidence of PW 2, Gitaben Nareshbhai Dhodiya Patel, sister-in-law of deceased-Ramilaben, it is clear that original accused No. 3 had given a blow on wooden log to deceased-Ramilaben and thereafter Babubhai was also given blow with wooden log by org. accused No. 3. Witness has further deposed that both were lying in bleeding condition and she therefore scared and thereafter on shouting the nearby village people had come, the accused had fled away from the scene of offence. However, after some time, she found that both the deceased were struggling for life and died after some time. She identified the complaint given by her which was produced at Exh. 18. Similar is the version of PW 4 wherein the involvement of the org. However, after some time, she found that both the deceased were struggling for life and died after some time. She identified the complaint given by her which was produced at Exh. 18. Similar is the version of PW 4 wherein the involvement of the org. accused No. 3 is found. Therefore, the prosecution has successfully proved its case against accused No. 3 and the trial Court has not committed any error in convicting accused No. 3 for the offences as alleged. 10. So far as Criminal Appeal No. 720 of 2008 filed by the State against acquittal of accused No. 1, 2 and 4 for offences under Sections 302 and 34 of IPC is concerned, 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. 10.1 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. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 10.2 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. 10.3 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. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with. 10.4 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 M.P. 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. 10.5 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. 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. 11. 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. 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 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 ] 12. 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. Hemareddy, 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 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. 13. Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the detailed discussion of evidence is not necessary. Therefore, we find that org. accused No. 3 is rightly acquitted by the learned trial Judge for the charge of offence punishable under Sections 302 and 34 of IPC. 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. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting org. accused No. 3 from the charge of offences under Sections 302 and 34 of IPC. 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 appeal of the State and this appeal is also required to be dismissed. 14. In the result, both the appeals are dismissed. Insofar as the appellant of Criminal Appeal No. 1047 of 2007-original accused No. 3 is concerned, the judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge & Presiding Officer, 3rd Fast Track Court, Vyara at Dist: Surat on 07/05/2007 in Sessions Case No. 60 of 2006 is hereby confirmed. Insofar as the appellant of Criminal Appeal No. 1047 of 2007-original accused No. 3 is concerned, the judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge & Presiding Officer, 3rd Fast Track Court, Vyara at Dist: Surat on 07/05/2007 in Sessions Case No. 60 of 2006 is hereby confirmed. If the appellant of Criminal Appeal No. 1047 of 2007-original accused No. 3 is on bail, the bail bond and surety shall stand cancelled and is directed to surrender before the Jail Authorities concerned, within a period of twelve weeks from today to serve the sentence as imposed by the learned Court below. R & P to be sent back to the trial Court forthwith. 15. Insofar as Criminal Appeal No. 720 of 2008 preferred by the appellant-State against the acquittal of original accused Nos. 1, 2 and 4, the same is hereby dismissed. Yadi of this Farad shall be forwarded to the Jail Authorities immediately.