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Gujarat High Court · body

2016 DIGILAW 823 (GUJ)

Chamanji Samaji Thakor v. State of Gujarat

2016-04-13

BIREN VAISHNAV, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. Criminal Appeal No. 1154 of 2011 is preferred by the appellant-original accused No. 1 against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Deesa in Sessions Case No. 101 of 2008 on 01/07/2011, whereby original-accused No. 1 was convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with a fine of Rs. 10,000/- in default, to undergo sixty days simple imprisonment, with a benefit of set off. 1.1 Criminal Appeal No. 1381 of 2011 is preferred by the appellant-State of Gujarat against the acquittal of respondent-original accused No. 2 for the offence punishable under Sections 302, 120-B and 34 of the Indian Penal Code arising out of the said impugned judgment and order. 2. The prosecution case in nutshell is that, on 30/04/2008 at about 03:00 O'clock at the sim of Village Tervada, org. accused No. 2-wife of deceased, having love affair with org. accused No. 1, by way of hatching a conspiracy with original accused No. 1 to kill her husband and as a part thereof, both the accused persons committed murder of deceased by strangulating the deceased with motorcycle wire. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court, Banaskantha. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.3 In order to bring home the charge against the accused, the prosecution has examined as many as 06 witnesses and also produced several documentary evidence, as under:- ORAL EVIDENCE S. No. Name of Witness Exhibit 1. Witness – Joraji Savsiji Thakor 12 2. Witness – Mobataji Rajaji Thakor 14 3. Witness – Panchaji Savsiji Thakor 15 4. Witness – Hadaji Vanaji Thakor 16 5. Witness – Bharatji Lalaji Thakor 17 6. Witness – Hardasji Gokaji Thakor 18 7. Witness – Vinodji Ishwarji Thakor 19 8. Panch Witness – Mahobatji Dhudaji Thakor 20 9. Panch Witness – Jenaji Sadanji Thakor 22 10. Panch Witness – Pareshsinh Prahladsinh Vaghela 24 11. Panch Witness – Kirtilal Shivlal Shah 26 12. Panch Witness – Judhralsinh Prithvisinh Darbar 28 13. Witness – Hardasji Gokaji Thakor 18 7. Witness – Vinodji Ishwarji Thakor 19 8. Panch Witness – Mahobatji Dhudaji Thakor 20 9. Panch Witness – Jenaji Sadanji Thakor 22 10. Panch Witness – Pareshsinh Prahladsinh Vaghela 24 11. Panch Witness – Kirtilal Shivlal Shah 26 12. Panch Witness – Judhralsinh Prithvisinh Darbar 28 13. PSO, Mohmmed Sarif Ibrahimbhai Sindhi 29 14. I.O. Chaganbhai Amthabhai Parmar 31 15. I.O. Bharatsinh Gambhirsinh Vaghela 34 16. Panch Witness – Javanji Kanaji Thakor 39 17. Panch Witness – Shankerji Hardasji Thakor 40 18. Medical Officer, Mahesh Virsangbhai Chaudhary 44 DOCUMENTARY EVIDENCE S. No. Document Exhibit 1. Complaint 13 2. Panchnama of place of incident 21 3. Panchnama of recovery of clothes of deceased 23 4. Panchnama of body of accused no. 1 25 5. Panchnama of recovery of muddamal clutch wire 27 6. Schedule 30 7. Inquest Panchnama 32 8. Special Report for offence 33 9. Letter of receipt of muddamal by FSL 35 10. Forwarding Note 36 11. FSL Report 37 12. Serological Analysis Report 38 13. Map of place of incident 42 14. PM Note 45 15. Certificate of cause of death 46 16. Medical certificate 47 2.4 At the end of the trial, Further Statement of the accused under Section 313 of Code were recorded in which they denied the evidence forthcoming on the record and stated that because of business rivalry, a false case has been filed. Thus, after recording above-referred Further Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge passed the aforesaid impugned judgment and order. 2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the org. accused No. 1 has preferred C.R.A. No. 1154 of 2011 against his conviction and sentence; whereas against the acquittal of org. accused No. 2 the State has preferred C.R.A. No. 1381 of 2011. 3. Learned Counsel Mr. N.P. Chaudhary, appearing for the appellant-original accused No. 1 has contended that there is nothing on record to show that the appellant has committed murder of the deceased. He has contended that insofar as the evidence of the complainant and other witnesses are concerned, nowhere it has been found that the appellant had committed murder of the deceased. He has contended that the appellant has wrongly been roped into the offence. He has contended that insofar as the evidence of the complainant and other witnesses are concerned, nowhere it has been found that the appellant had committed murder of the deceased. He has contended that the appellant has wrongly been roped into the offence. 3.1 He has further contended that the trial Court has mainly relied upon the extra judicial confession made by org. accused No. 1 before the Sarpanch of village who has been examined as PW 6 at Exh. 18. However, the said witness was declared hostile and therefore, evidence of the said witness cannot be believed insofar as the extra judicial confession made by the accused is concerned. He has further contended that the learned trial Court has committed serious error of law by placing reliance upon the evidence of child witness examined as PW 5, Bharat Lalji Thakor, who is son of the deceased and original-accused No. 2. He has further contended that there is no eye-witness to the incident. If the evidence of the Panch Witness, Medical Officer and Investigating Officer is examined, no evidence of accused having committed murder of deceased has come on record. 3.2 He has further contended that if the postmortem note is examined, insufficient details regarding causation of injuries are found and therefore, the prosecution has miserably failed to prove its case beyond reasonable doubt. He has therefore submitted that when the case of prosecution is not proved beyond reasonable doubt, the accused may be given benefit of doubt and may be acquitted of the charges levelled against him. 4. On the other hand, Ms. C.M. Shah, learned APP appearing for the State of Gujarat has contended that the prosecution has proved its case beyond reasonable doubt. All the material witnesses have supported the case of prosecution. She has contended that medical evidence clearly proves that deceased was died on account of strangulation and it was a specific case of prosecution that accused persons had caused murder of deceased by strangulating the deceased with wire. She has further contended that there was an extra marital affair of wife of deceased with original-accused No. 1 and therefore, with an intention to remove the deceased from their way, the accused persons had committed murder of deceased. Thus, the motive to kill the deceased was found to have been proved. She has further contended that there was an extra marital affair of wife of deceased with original-accused No. 1 and therefore, with an intention to remove the deceased from their way, the accused persons had committed murder of deceased. Thus, the motive to kill the deceased was found to have been proved. 4.1 She has further contended that the original-accused No. 1 had made extra judicial confession before the Sarpanch of the village which has been proved by the prosecution and therefore the learned trial Court has rightly convicted the accused on the basis thereof. She has further contended that so far as the Panch Witnesses are concerned, the panchnamas can be proved from the evidence of the I.O. and therefore, no lacuna on part of the prosecution to prove its case could be found. She has further submitted that no error in the findings of the trial Court to convict the original-accused No. 1 is found and therefore, the appeal preferred by the original-accused No. 1 may be dismissed. 5. So far as Criminal Appeal No. 1381 of 2011 preferred by the State of Gujarat against the acquittal of org. accused No. 2 is concerned, learned APP has submitted that though there are sufficient evidence showing the involvement of accused No. 2 in commission of crime, the learned trial Court has committed serious error in acquitting her. She has also contended that the learned trial Judge has committed serious error by not believing the said piece of evidence so far as org. accused No. 2 and therefore, the appeal preferred by the State may be allowed. 6. We have heard learned Counsel appearing for the respective accused and learned APP for the respondent-State. We have also gone through the records and proceeding in context of the submissions made before this Court. 7. Having gone through the evidence on record, it appears that the deceased was died a homicidal death as is proved from the evidence of PW 17-Dr. Mahesh Chaudhary, who has been examined at Exh. 44, who had conducted the postmortem on the body of the deceased. The cause of death of the deceased as stated in postmortem note was strangulation by wire. The cause of death of the deceased was not natural, but on account of injury caused on the neck. Mahesh Chaudhary, who has been examined at Exh. 44, who had conducted the postmortem on the body of the deceased. The cause of death of the deceased as stated in postmortem note was strangulation by wire. The cause of death of the deceased was not natural, but on account of injury caused on the neck. Thus, the medical evidence clearly supports the case of prosecution and it is a specific case of prosecution that accused No. 1 had caused murder of deceased by strangulating him with the wire. 8. Now, so far as the material witnesses are concerned, evidence of child witness examined as PW 5, Bharat Lalji Thakor, son of deceased and org. accused No. 2 is required to be examined. Witness has deposed that his mother had told him that Chamanji had killed his father and at that time, he was present. His father was killed by his mother and Chamanji by strangulating him with the wire. Witness has deposed that murder of his father was caused on account of land dispute. During the cross-examination also, the witness was stick to his version that his mother told him that Chamanji had killed his father. 9. The evidence of complainant examined as PW 1, Joraji Savsiji Thakor, at Exh. 12 is also important. As per evidence of this witness, accused No. 1 had made confession before him and Sarpanch that he had killed deceased and anyhow to save him, he thereafter ran away. Accused No. 1 had also stated that he was having illicit relationship with wife of deceased and therefore, he killed deceased. Thus, the extra judicial confession made by accused No. 1 of killing deceased by him before the complainant was proved. Further, the conduct of accused No. 1 of running away after killing the deceased proves the factum of making extra judicial confession, as also treated to be the corroborative piece of evidence. 10. It also requires to be appreciated that org. accused No. 1 had also made extra judicial confession before the Sarpanch of village, PW 6, Hardasji Gokaji Thakor, examined at Exh. 18. However, this witness was declared hostile by the prosecution, but during the cross-examination it was proved that accused No. 1 had confessed before him of killing the deceased, as also the factum of org. accused No. 1 ran away after killing the deceased. 18. However, this witness was declared hostile by the prosecution, but during the cross-examination it was proved that accused No. 1 had confessed before him of killing the deceased, as also the factum of org. accused No. 1 ran away after killing the deceased. Thus, the extra judicial confession as well as conduct of accused No. 1 running away after committing murder was proved. 11. In the light of the above referred discussion, this Court is in complete agreement with the findings arrived at by the learned trial Court that the extra judicial confession made by org. accused No. 1 was proved, as also the factum of accused No. 1 running away which can be said to be the corroborative piece of evidence, whereby it was proved that deceased was murdered by org. accused No. 1. The medical evidence also supports the very case of prosecution of killing the deceased by strangulating him with the wire. 12. The important material witnesses viz., complainant and child witness have supported the case of prosecution, as also the extra judicial confession made by original-accused No. 1 was also proved. Thus, the findings arrived at by the learned trial Court in respect of org. accused No. 1 is just and proper and this Court is in complete agreement with the said findings. 13. Now, so far as Criminal Appeal No. 1381 of 2011 preferred by the State of Gujarat against the acquittal of org. accused No. 2 is concerned, no such direct evidence showing her involvement in the commission of crime has come on record. The factum of killing the deceased was proved from the extra judicial confession made by accused No. 1, but that does not prove involvement of the accused No. 2 in commission of the crime. Further, the evidence examined before the Court below also did not prove the involvement of the accused No. 2 in the commission of crime. Therefore, it is clear that the prosecution has miserably failed in proving the case against the accused No. 2. In our view, the learned Judge has not committed any error while acquitting the accused No. 2 of the charges levelled against her. It cannot be said that the learned Judge has committed any error while acquitting the accused No. 2 as the prosecution has not proved its case beyond reasonable doubt against org. accused No. 1. 14. In our view, the learned Judge has not committed any error while acquitting the accused No. 2 of the charges levelled against her. It cannot be said that the learned Judge has committed any error while acquitting the accused No. 2 as the prosecution has not proved its case beyond reasonable doubt against org. accused No. 1. 14. 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. 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." 14.1 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. (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." 14.2 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. 14.3 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. 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." 14.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh vs. Ram Veer Singh & Others, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs. vs. State of M.P. 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal are well settled. 14.5 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." 14.6 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. 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 )." 14.7 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 )." 14.7 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." 15. 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 both these appeals. 16. In the result, Criminal Appeal No. 1154 of 2011 preferred by the appellant-original accused No. 1 is dismissed. The judgment and order of conviction and sentence passed in respect of original accused No. 1 passed by the learned Additional Sessions Judge, Deesa in Sessions Case No. 101 of 2008 on 01/07/2011 is hereby confirmed. It is clarified that imprisonment for life shall not mean the imprisonment till the last breath and that the State Government may consider the case of the accused persons for the grant of remission and/or other benefit at appropriate stage in accordance with law. 17. Criminal Appeal No. 1381 of 2011 preferred by the appellant-State of Gujarat against the acquittal of respondent-original accused No. 2 is dismissed. The judgment and order of the acquittal in respect of original accused No. 2 passed by the learned Additional Sessions Judge, Deesa in Sessions Case No. 101 of 2008 on 01.07.2011 is hereby confirmed. The bailable warrant, if any, executed by the respondent-original accused No. 2 shall stand cancelled.