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2016 DIGILAW 670 (GUJ)

State of Gujarat v. Ratanshibhai Batukbhai Rathod

2016-03-28

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. By way of this Appeal, the Appellant - State has felt aggrieved by the judgment and order of acquittal dated 25.07.1996 passed by the learned Sessions Judge, Bhavnagar in Sessions Case No. 74/1996 whereby the respondent was acquitted for the offence punishable under Section 302 of the Indian Penal Code. 2. The case of the prosecution is as under:-- "2.1. The incident in question is alleged to have occurred on 03.03.1996 at about 4.00 pm in the slaughter house of Adodiyavas, Bhavnagar. The deceased - Ramzaanbhai Haiyatbhai was a resident of Mochivadi Khadki, Alka Talkies Road, Madiyafadi Area, Bhavnagar. He was married to Zeenatben and they had a son named Firoz. The deceased was a labourer and used to ferry a larri. The accused herein was a resident of Adodiyavas, Bhavnagar and according to the prosecution, the eye witnesses to the incident Jashuben Harjibhai, Kaliben Natvarbhai and Padmaben Amrutbhai live in the same area. It is the case of the prosecution that on the ill-fated day, the deceased went to the house of Jashuben Harjibhai in the morning at 7.00 am and asked for money, to which Jashuben gave an amount of Rs. 40/- to the deceased. At around 4.00 pm on the same day, Padmaben and Kaliben both went to watch television at a neighbour's house. There were some noises coming from the main road. Some boys had informed that the Ramzaanbhai was being beaten up with stones. Hearing this, Jashuben got out of her house as also Padmaben and Kaliben. On reaching the scene, they found that near the slaughter house in Adodiyavas, the accused herein was inflicting stone blows on the deceased, due to which Ramzaanbhai fell down. The three women intervened and tried to free Ramzaanbhai from the clutches of the accused and thereafter, the accused walked away from the scene of offence. It was noticed by the three women that Ramzaanbhai had suffered injuries on his chest, mouth and forehead. Blood was oozing from the forehead. Ramzaanbhai was in pain and asked to be taken to his home. The three women informed Ramzaanbhai that it was the accused who had caused the above injuries to him and Ramzaanbhai was taken by all the three to his house in a rickshaw. In the home of the deceased, his wife and son were present at the time. Ramzaanbhai was in pain and asked to be taken to his home. The three women informed Ramzaanbhai that it was the accused who had caused the above injuries to him and Ramzaanbhai was taken by all the three to his house in a rickshaw. In the home of the deceased, his wife and son were present at the time. While Ramzaanbhai was being taken to his home in the rickshaw, he had narrated to all the three women that the accused herein had asked money for the festival of Holi - Dhuleti, but since he had no money and had refused to give the accused any amount, he was inflicted with the above blows. Further, the deceased had also complained to his wife that he had pain in his chest on account of the injuries inflicted and therefore, wanted to go to the hospital. A rickshaw was again hired and the deceased, alongwith his wife and son and one - Aslambhai Ramzaanbhai was taken to Sir T. Hospital, Bhavnagar where the deceased was admitted at around 7.30 pm. The medical officer on duty - Dr. Sampat examined Ramzaanbhai, administered treatment, admitted him as an indoor patient and procedure was also followed to intimate the police authorities. According to Dr. Sampat, the deceased was in his senses and was able to speak in broken words. Thereafter, when Ramzaanbhai was examined once again it was found that his ribs had fractured and because of this, the lungs bore some holes and he was put on oxygen support. X-ray was taken which indicated the above fracture. 2.2. The police authorities were informed and a Janva Jog Entry No. 106/1996 was filed with 'B' Division Police Station, Bhavnagar. The police authorities arrived at the hospital and the deceased expired during the course of treatment. The PSO wrote a yadi to the learned Executive Magistrate for recording the dying declaration but before this could be done, the deceased expired and hence, the above information was relayed by Head Constable Dhirubhai to 'B' Division Police Station, Bhavnagar and on the basis of the complaint filed by the wife of the deceased, the investigation commenced. Charges were led against the accused under Section 302 of the Indian Penal Code in the Court of the learned Judicial Magistrate First Class. Charges were led against the accused under Section 302 of the Indian Penal Code in the Court of the learned Judicial Magistrate First Class. Since it was a Sessions triable case, the learned Judicial Magistrate First Class committed the case to the Court of Sessions. 2.3. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exh. Dr. Khodabhai Lakhabhai Dabhi 7 Zeenatben Ramzaanbhai, Widow of Ramzaanbhai 11 Jashuben Harjibhai 12 Kaliben Natvarbhai 13 Padmaben Amrutbhai Rathod 14 Ferozebhai Ramzaanbhai 26 Dharampal Rochiram Sindhi 27 Panch Ashoksinh Dhirubhai Jadeja 28 Dr. Vijaybhai Vallabhbhai Sampat 30 Police Head Constable Pravinchandra Himmatlal Bhatt 34 Police Head Constable Hardevsinh Bhikhuba Gohil 44 PSI Jaswantsinh Ravubhai Vaghela 45 The prosecution also relied upon various documentary evidence, some of them are:-- Patriculars Exh. Post Mortem Note 8 Yadi written for conducting the post mortem 10 Inquest panchnama 17 Panchnama of the scene of offence 18 Panchnama of the clothes recovered from the body of the deceased 19 Forwarding letter of FSL 20 Yadi of the PSO 22, 23 Yadi witten for preparing the map of the scene of offence 24 Case Papers and other papers 31. 32 X-Ray plate of the deceased 33 Copy of the Janva Jog Entry 35 Copy of the Station Diary Entry 36 Copy of the Register of Janva Jog entry 37 Copy of the Register of Station Diary 38 Seizure panchnama 46 Panchnama of the samples of blood 47 Remand Report 48 Analysis Report of the muddamal 48 to 50 Report of the Serological Department 51 Yadi regarding the samples of blood 52 2.4. At the end of the trial, further statement of the accused under Section 313of the Code of Criminal Procedure was recorded in which the respondent pleaded not guilty and stated that he has been falsely implicated in the offence. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present Appeal has been filed by the State, as aforesaid." 3. Learned Additional Public Prosecutor Ms. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present Appeal has been filed by the State, as aforesaid." 3. Learned Additional Public Prosecutor Ms. C.M. Shah for the appellant - State has taken this Court to the medical evidence and has submitted that the learned Judge ought to have believed the version of the deceased wherein he had stated that the accused had inflicted stone blows and therefore, he was having chest pains. It is further submitted that learned Judge ought to have appreciated that the offence was a serious one and because of such an act of the accused, the deceased expired. It is further submitted that the prosecution has successfully proved its case beyond reasonable doubt considering the post mortem report and the injuries received by the deceased. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge qua the acquittal of the respondent should be upturned by this Court. 4. On the other hand, learned Advocate appearing for the respondent accused Mr. Mrudul M. Barot has stated that there are several discrepancies in the evidence led by the complainant. It is further submitted that all the three eye witnesses namely Jashuben, Kaliben and Padmaben have not supported the version of the complainant. It is further submitted that the learned Sessions Judge has granted benefit of doubt to the respondent and therefore, this Court should not interfere in the well reasoned judgment and order of the learned Sessions Judge in view of the decisions of the Hon'ble Apex Court which are referred hereinbelow:-- "In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr, reported in (2006) 6 S.C.C. 39 , the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:-- "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. 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." Further, in the case of Chandrappa v. State of Karnataka, reported in (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles : "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge : [1] An appellate Court has full power to review, 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." 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. Even in the case of State of Goa V. Sanjay Thakran & Anr., reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under : "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. 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." Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors. reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs v. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. In the case of Luna Ram v. Bhupat Singh and Ors, reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under:-- "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so-called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the post-mortem 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. 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." Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. v. State, rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SCC 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 appellant very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. Since counsel for the appellant very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be 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 v. Sohan Lal and Others, (2004) 5 SCC 573 ]." It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka v. Hemareddy, reported in AIR 1981, SC 1417, wherein it is held as under:-- "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." Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors v. State of Karnataka, reported in JT 2013(7) SC 66." 5. We have heard learned Advocates for the parties and perused the records of the case. We have heard learned Advocates for the parties and perused the records of the case. While going through the well reasoned judgment and order of the learned Sessions Judge, it is clearly held that none of the eye witnesses have supported the case of the version f the complainant. Considering the above, the learned Sessions Judge has granted benefit of doubt to the respondent accused. Apart from that, the learned Additional Public Prosecutor Ms. C.M. Shah for the appellant - State is not in a position to show any evidence to take a contrary view in the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record. In that view of the matter, we are in complete agreement with the reasons recorded by the learned trial court and in our view, the impugned Judgment is just, legal and proper and requires no interference by this Court. 6. The Appeal is devoid of merits and stands dismissed. The judgment and order of dated 25.07.1996 passed by the learned Sessions Judge, Bhavnagar in Sessions Case No. 74/1996 is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings be sent to the concerned Trial court forthwith.