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2016 DIGILAW 603 (GUJ)

State of Gujarat v. Jorubha Pithubhai

2016-03-16

G.B.SHAH, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. This appeal is directed against the judgment and order of acquittal dated 03.06.1998 passed by learned Additional Sessions Judge, Rajkot in Sessions Case No. 109 of 1991. By the impugned judgment, the accused were acquitted of the charge of offences punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, IPC) and Sections 135 and 37 (1) of the Bombay Police Act. Since original accused No. 1-Jorubhai Jilubha had expired during the pendency of trial, the case was abated qua him. 2. The facts in brief giving rise to the filing of present appeal are as under:- "2.1 On 21.3.1990 at about 9.30 p.m. all the accused assembled at Village-Bhadla, Taluka-Jasdan, District-Rajkot, with a common intention to kill Gordhanbhai. It is alleged that the accused were armed with weapons like axe, pipe and stick. At the same date, time and place, the accused attacked the deceased and he was killed. Therefore, a complaint was lodged against the accused persons. 2.2 Thereafter, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, 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. 2.3 In order to bring home the charges against the accused persons, prosecution has examined following witnesses:- S. No. Name Exhibit 1. Gandalal Ghelabhai Chhayani, Revenue Circle Officer 17 2. Abdul Mamad 22 3. Lakhman Dahabhai Koli 23 4. Mohanbhai Nathabhai, Head Constable 24 5. Vikramsinh Bachubha Gohel 27 6. Himmatlal Laxmichand Khara, Executive Magistrate 29 7. Rasibhai Dahyalal 37 8. Vinodbhai Valjibhai 39 9. Dr. Chandravadan Vanmalidas Ajmera, MO 40 10. Arvindbhai Gangdas Dobariya 43 11. Laljibhai Naranbhai 44 12. Dr. Maheshbhai Himmatlal Pansura, MO 45 13. Laljibhai Gokalbhai 47 14. Ukabhai Kalabhai 48 15. Vallabhbhai Raghavbhai Savaliya 53 16. Babubhai Jerambhai 55 17. Dhirubhai Gokalbhai, complainant 58 2.4 The prosecution has also produced following documents in support of its case:- S. No. Description Exhibit 1. Yadi sent for preparation of map of the place of offence 18 2. Map of the place of offence 19 3. Yadi by Revenue Circle Inspector for sending the map to police 20 4. Babubhai Jerambhai 55 17. Dhirubhai Gokalbhai, complainant 58 2.4 The prosecution has also produced following documents in support of its case:- S. No. Description Exhibit 1. Yadi sent for preparation of map of the place of offence 18 2. Map of the place of offence 19 3. Yadi by Revenue Circle Inspector for sending the map to police 20 4. Forwarding letter by Executive Magistrate for sending map to the police 21 5. Extract of entry nos. 4/90 and 1/90 25, 26 6. Panchnama of the articles recovered from the dead body 28 7. Yadi to Executive Magistrate for conducting TI Parade of accused-Velabhai Sagrambhai 30, 32, 33 8. Yadi by Executive Magistrate to keep accused and the witnesses present for TI Parade 31 9. Panchnama of TI Parade 34 10. Receipt of the accused being sent to IO after TI Parade 35 11. Yadi for carrying out postmortem of the deceased along with PM Form and inquest panchnama 12. Certificate of injury of the deceased 46 13. Arrest panchnama of the accused 49 14. Extract of station diary entry no. 21/90 of Bhadla Police Station 51 15. Extract of station diary entry no. 6/90 52 16. Panchnama of the place of offence 54 17. Complaint of the complainant, Dhirubhai Gokalbhai 59 18. Yadi for addition of Section 302 sent to the Court by PSI, Bhadla 70 19. Panchnama of seizure of clothes of deceased produced by his son, Lalji Gokalbhai 60 20. Yadi informing about the death of Gokalbhai and yadi for postmortem. Forwarding letter for sending PM Form and copy of inquest panchnama 61 21. Inquest panchnama of the deceased 62 22. Postmortem form of the deceased 63 23. Forwarding letter with analysis report of FSL 64 24. Analysis report by FSL 65 25. Serological analysis report 66 26. Dispatch note for sending muddamal to FSL, Junagdah 67 27. Receipt of muddamal being received by FSL, Junagdah 68, 69 28. Yadi by Medical Officer, Bhadla informing PSI, Bhadla that injured is sent to Rajkot Government Hospital for further treatment 71 29. Yadi written by IO to inform him as and when the injured gains consciousness 72 30. Yadi written to Executive Magistrate for recording dying declaration of the deceased 73 2.5 Thereafter, after filing of closing purshis by the prosecution, further statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded. Yadi written by IO to inform him as and when the injured gains consciousness 72 30. Yadi written to Executive Magistrate for recording dying declaration of the deceased 73 2.5 Thereafter, after filing of closing purshis by the prosecution, further statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused denied the case of the prosecution and submitted that a false case is filed against them." 3. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge passed the impugned Judgment. Being aggrieved by and dissatisfied with the said judgment and order dated 03.06.1998 passed by learned Additional Sessions Judge, Rajkot in Sessions Case No. 109 of 1991 acquitting the respondents, the appellant-State has preferred present appeal before this Court. 4. Ms. C.M. Shah, learned APP has taken us through the evidence and contended that the trial Court has committed an error in acquitting the accused inspite of voluminous evidence against them and contended that the trial Court ought not to have acquitted the accused. She submitted that though the prosecution has examined 17 witnesses and also produced 30 documents in support of its case, the learned trial Judge has not properly appreciated them and acquitted the accused of the charges levelled against them. She submitted that the prosecution has successfully proved its case against the accused persons. She submitted that even the medical evidence supports the case of the prosecution. She also submitted that in TI parade one of the accused, who was not named in the FIR, was also identified. She submitted that in his evidence before the Court, the complainant has supported the case of the prosecution. She submitted that since the complainant is an eye witness, there is no reason to disbelieve his deposition. She submitted that from the deposition of the medical officer and the postmortem note, it is clear that injuries shown in the certificate are sufficient to cause death of the deceased. She submitted that in view of minor omissions and contradictions in the evidence of the complainant, it cannot be brushed aside. She also submitted that the learned trial Judge has failed to appreciate the evidence on record in its proper perspective, therefore, the impugned judgment is required to be quashed and set aside by allowing present appeal. 5. Mr. She submitted that in view of minor omissions and contradictions in the evidence of the complainant, it cannot be brushed aside. She also submitted that the learned trial Judge has failed to appreciate the evidence on record in its proper perspective, therefore, the impugned judgment is required to be quashed and set aside by allowing present appeal. 5. Mr. Mrugen Purohit, learned advocate appearing for the respondents-accused submitted that there is no infirmity in the impugned order. He submitted that the lower court has rightly appreciated the evidence on record and acquitted the respondents of the charges levelled against them. He submitted that the prosecution could not prove its case beyond reasonable doubt. He further submitted that FIR was registered at 3 a.m. however, according to the complainant, he lodged the complaint at 8.30 p.m. therefore, the complaint is a got up one. Not only that as per the say of the complainant, the complaint was taken on a blank paper by the police, however, before the Court, prosecution has produced an FIR, which is in proforma and it bears the signature of the complainant. He also submitted that even the complainant denied that the complaint was read over and explained to him. He further submitted that if the complainant was present at throughout at the hospital, there was no reason for the police to take the complaint at 3.00 a.m. and it could have been taken earlier at 12 a.m. when PSI, Baloch, went to Rajkot Civil Hospital. According to the IO, the injured was unconscious when he reached Rajkot at 12 a.m. and he had informed the doctor to intimate him as and when the patient becomes conscious, therefore, it appears that the entry which was made at 12.10 a.m. in the night is got up. He further submitted that the deceased had not given the name or description of any of the accused and if the complainant was an eye witness, there was no reason for anyone to ask the injured about the incident. According to Investigating Officer, name of the accused have been revealed at 3 O' clock in the morning when FIR was lodged, then how the entry is made by Rajkot Police at 12.10 a.m. in night. According to Investigating Officer, name of the accused have been revealed at 3 O' clock in the morning when FIR was lodged, then how the entry is made by Rajkot Police at 12.10 a.m. in night. He further submitted that since no food is found in the stomach of the deceased, prosecution story of the complainant and deceased taking dinner together is also false. He further submitted that according to some witnesses, deceased had given names of two boys of Kathi community, however, in the entry of Hospital Chowky, names of two accused and one unknown person are mentioned. He, therefore, submitted that a false case is filed against the accused and they are wrongly roped in the present offence. He further submitted that so far as acquittal appeals are concerned, the law is well settled and by taking us through the impugned judgment, he submitted that this Court may not interfere with the impugned judgment and the appeal may be dismissed. 6. We have heard Ms. C.M. Shah, learned APP for the appellant-State and Mr. Mrugen Purohit, learned advocate for the respondents-accused. We have gone through the evidence on record. Looking to the fact that the charge against the respondents-accused is for the offence under Sections 302 of IPC, the prosecution has to prove its case beyond reasonable doubt. While passing the impugned judgment, learned Sessions Judge has given categorical finding that the complaint of the complainant was taken at 3 O' clock in the morning and at that time, names of the accused were revealed, however, in the entry made by Rajkot Police at 12.10 a.m. in night names of the accused were written and the prosecution has failed to prove, how the police came to know about the names of the accused at that time. It is also found that according to the IO, the injured was unconscious when he reached Rajkot at 12 a.m. and he had informed the doctor to intimate him as and when the patient becomes conscious. Not only that the Dr. Chandravadan Vanmali has also stated that if any person receives such injuries, he would be shocked and may not be able to speak. However, Dr. Mahesh Pansura, PW-12, Exh. 45, has stated in his deposition that the patient was fully conscious when he was brought to him for treatment after the incident. Not only that the Dr. Chandravadan Vanmali has also stated that if any person receives such injuries, he would be shocked and may not be able to speak. However, Dr. Mahesh Pansura, PW-12, Exh. 45, has stated in his deposition that the patient was fully conscious when he was brought to him for treatment after the incident. Even there are discrepancies in the evidence of the prosecution witnesses with regard to the weapons used by the accused. Laljibhai Naranbhai has stated that when the injured was taken to hospital, he narrated the incident to him. So far as the question regarding which accused was holding which weapon, this witness has stated exactly opposite to what is stated by the complainant. Not only that Laljibhai Naranbhai has also stated that the deceased informed him that he was attacked by Kathi Darbars of Dahisara and names of the accused were not given. Therefore, it is clear that the prosecution has miserably failed in proving the case against the accused. It is also clear that the learned Judge has not committed any error while acquitting the accused of the charges levelled against them. It cannot be said that the learned Judge has committed any error while acquitting the accused as the prosecution could not prove its case beyond reasonable doubt. 7. 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 & Another, (2006) 6 SCC 39 , the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. In para 54 of the decision, the Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." 7.1 Further, in the case of Chandrappa vs. State of Karnataka, (2007) 4 SCC 415 , the Apex Court laid down the following principles: "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." 7.2 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. 7.3 Even in the case of State of Goa vs. Sanjay Thakran & Another, (2007) 3 SCC 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." 7.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh vs. Ram Veer Singh & Others, 2007 AIR (SCW) 5553 and in Girja Prasad (Dead) by LRs vs. State of Madhya Pradesh, 2007 AIR (SCW) 5589. Thus, the powers, which this Court may exercise against an order of acquittal are well settled. 7.5 In the case of Luna Ram vs. Bhupat Singh and Others, (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." 7.6 Even in a recent decision of the Apex Court in the case of Mookkiah and Another 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. 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 )." 7.7 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. (Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 )." 7.7 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. Hemareddy, AIR 1981 SC 1417 , wherein it is held as under: "This Court has observed in Girija Nandini Devi vs. 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." 7.8 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. 8. We have gone through the oral as well as documentary evidence on record and we are in agreement with the view taken by the lower Court. 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 the respondents-accused 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. 9. For the foregoing reasons, this Criminal Appeal is dismissed. The impugned judgment and order dated 03.06.1998 passed by learned Additional Sessions Judge, Rajkot in Sessions Case No. 109 of 1991 is hereby confirmed. Bail bond, if any, stands cancelled. Registry to return the R&P to the concerned trial Court forthwith.