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2016 DIGILAW 885 (GUJ)

Ghambhirji Ishwarji Thakor v. State of Gujarat

2016-04-25

BIREN VAISHNAV, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Both these appeals arise out of the same judgment and order and hence, they are disposed off by this common judgment. 2. Challenge in these appeals is to the judgment and order passed by the learned 3rd Addl. Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 14 of 2010 dated 07.01.2011 whereby, original accused No. 1 has been convicted for the offence punishable u/s. 302 and 376 IPC; whereas, original accused No. 2 to 7 have been acquitted of all the charges framed against them. For conviction u/s. 376 IPC, original accused No. 1 has been sentenced to undergo RI for ten years and fine of Rs. 5000/- and in default, imprisonment for six months and for conviction u/s. 302 IPC, original accused No. 1 has been sentenced for life and fine of Rs. 5000/- and in default, imprisonment for six months. Both the sentences were ordered to run concurrently and the sentence already undergone by original accused No. 1 was given set-off. 2.1 Criminal Appeal No. 492/2011 has been filed by original accused No. 1 against the impugned judgment and order of conviction; whereas, Criminal Appeal No. 1013/2011 has been preferred by the State against the acquittal of original accused No. 2 to 7. 3. The facts in brief are as under; The original complainant, Amratji Motiji Thakor, was a resident of Village Khaivad, Taluka Danta, District Banaskantha, where he was earning his livelihood by doing agricultural work, at the time when the alleged offence was committed. His family consisted of his wife-Leelaben and four children, viz. two sons and two daughters. The younger daughter of the complainant was aged around 07 years at the time when the alleged offence was committed. 3.1 On 10.03.2009 at around 1100 hrs., the complainant left for Danta market for purchasing grocery items. His wife-Leelaben also left home for agricultural work. During that period, all the four children and Ravaji Godadji Makwana, father-in-law of the complainant, who had come to the house on the occasion of Holi festival, stayed back at home. When the complainant returned home at around 1700 hrs., except his daughter aged around 07 years, (who shall hereinafter be referred to as "the survivor"), all the three children were at home. When the complainant returned home at around 1700 hrs., except his daughter aged around 07 years, (who shall hereinafter be referred to as "the survivor"), all the three children were at home. On inquiry, his father-in-law informed him that original accused No. 1, who happens to be the son of his maternal Uncle, had come during noon hours and had taken the survivor and two children with him for purchasing some snacks for them. At around 1730 hrs., Ravaji Godadji Makwana left for his home. His elder daughter, Cheharben, informed him that initially, original accused No. 1 took both of them to a nearby shop and purchased snacks for her and thereafter, asked her to return home under the pretext that he would purchase some cold-drink for the survivor. Accordingly, Cheharben returned home leaving the survivor in company of original accused No. 1. At around 1900 hrs., Ravaji Makwana came back to the house of the complainant and informed him that dead body of the survivor has been found lying on the field situated on the Kanbiyawas - Khaivad road in an unclothed condition. 3.2 A complaint in connection with the aforesaid incident was lodged with Danta Police Station vide I-C.R. No. 14 of 2009. Necessary investigation was done and the accused persons came to be arrested. At the end of investigation, charge-sheet was filed against the accused persons before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately, trial was initiated. 4. During the trial, the prosecution had examined the following witnesses; Wt. No. Name of Witness Exhibit No. 1 Dr. Tarifkhan Yusufkhan Jamad 24 2 Dalpuji Danaji 30 3 Reshamban Shankarji Thakore 32 4 Banaji Bhalaji 33 5 Kantiji Gobarji 40 6 Rameshji Talaji Thakore 42 7 Manaji Malaji Thakore 50 8 Kesharji Motiji Thakore 53 9 Vihaji Bhemabhai Raval 54 10 Sardarji Kadvaji Parmar 56 11 Devabhai Pethabhai Parmar 57 12 Amratji Motiji Thakore 59 13 Dayaram Somaji Thakore 62 14 Ravaji Godadji Makwana 63 15 Hiralal Mohanlal Joshi 64 16 Bhavanji Motiji Thakore 69 17 Cheharben Amratji Thakore 70 18 Mankaji Bhikaji Thakore 71 19 Leelaben Amratji Thakore 72 20 Dr. Rajendrapuri Manekpuri 73 21 Keshabhai Punjabhai Rathod 81 5. The prosecution had produced and relied upon several documentary evidence, particularly, the Post mortem report at Exh. 26, Death Certificate at Exh. Rajendrapuri Manekpuri 73 21 Keshabhai Punjabhai Rathod 81 5. The prosecution had produced and relied upon several documentary evidence, particularly, the Post mortem report at Exh. 26, Death Certificate at Exh. 27, inquest panchnama at Exh. 31, panchnama of scene of offence at Exh. 34, discovery panchnama at Exhs. 41 & 58, recovery panchnama at Exh. 57, complaint at Exh. 60, Report of FSL Mobile Van at Exh. 85, FSL Report at Exh. 95 and Serological Report at Exh. 96. 6. At the end of trial, the Court below recorded further statement of accused persons u/s.313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeals. 7. Mr. Adil Mehta, learned counsel appearing for appellant-original accused No. 1, submitted that the Court below has failed to appreciate the evidence on record in its proper perspective. He submitted that the prosecution case is based upon circumstantial evidence and that there is nothing on record to prove involvement of original accused No. 1 in the crime, particularly when, the medical evidence proves that death was caused on account of shock resulting from injury on the head. He, therefore, submitted that prosecution has failed to establish that offence of rape was committed on the survivor. 7.1 Learned counsel Mr. Mehta took us through the police statements and depositions of both complainant (PW-12) and his father-in-law (PW-14) and attempted to bring out omissions and/or improvements in their evidence. It was submitted that original accused No. 1 has been wrongly arraigned as accused on account of dispute between their families. Hence, learned counsel prayed that the impugned judgment and order of conviction may be quashed and set aside. 8. Ms. C.M. Shah, learned APP, supported the impugned judgment and order and submitted that column No. 15 of the Post mortem report proves that offence of rape was committed on the survivor. She took us through the evidence of Dr. Rajendrapuri Manekpuri (PW-20) before whom the accused made confession about the crime while narrating history of the incident. It was, therefore, submitted that the Court below has rightly convicted original accused No. 1 for the offence in question. 8.1 Insofar as Criminal Appeal No. 1013/2011 is concerned, learned APP submitted that the Court below committed serious error in acquitting original accused No. 2 to 7 of all the charges. It was, therefore, submitted that the Court below has rightly convicted original accused No. 1 for the offence in question. 8.1 Insofar as Criminal Appeal No. 1013/2011 is concerned, learned APP submitted that the Court below committed serious error in acquitting original accused No. 2 to 7 of all the charges. She submitted that original accused No. 2 to 7 abated commission of the crime by assisting original accused No. 1 in shifting the survivor from one place to another. The fact that survivor died of head injuries proves the involvement of original accused No. 2 to 7 in the crime. It was, therefore, submitted that acquittal recorded by the Court below deserves to be quashed and set aside. 9. As against this, learned counsel appearing on behalf of respondents-original accused No. 2 to 7 in Criminal Appeal No. 1013/2011 submitted that there is nothing on record to prove the involvement of original accused No. 2 to 7 in the crime in question. It was submitted that prosecution has not led any cogent evidence to prove that the accused were connected with the crime in any manner. Hence, the Court below was completely justified in acquitting them of all the charges. 10. We have heard learned counsel for both the sides and perused the documents on record. A specific contention was raised on behalf of original accused No. 1 that no offence of rape was committed on the survivor since the medical evidence shows that death was caused on account of severe head injury. However, we disagree with the aforesaid submission in view of the finding recorded by the Medical Officer (PW-1) in Column No. 15 of the Post-mortem report (Exh. 26) wherein, the Doctor found that hymen of the survivor had been severely destroyed and that the edges were bruised. Apart from the aforesaid injury, the Medical Officer also found five other injuries on the private part of the survivor, which is evident from Column No. 15 of the report. Over and above, the survivor had also sustained fourteen other external injuries in different parts of her body, which have been mentioned in Column No. 17 of the report. 11. The evidence on record in the form of testimony of Dr. Over and above, the survivor had also sustained fourteen other external injuries in different parts of her body, which have been mentioned in Column No. 17 of the report. 11. The evidence on record in the form of testimony of Dr. Tarifkhan Yusufkhan Jamad (PW-1) proves that all injuries sustained by the survivor were ante mortem and that injuries on her private part were caused on account of being raped. Considering the medical evidence, we have no hesitation in concluding that the survivor was raped before being brutally murdered to death. 12. It is true that the survivor died on account of serious injury on the head. It is to be borne in mind that the survivor was a minor child aged around 07 years at the relevant time. The nature of injuries sustained by the deceased establish the brutality of the crime. The child was first raped and thereafter, done to death. Not only was she raped and killed but her dead body was abandoned in an unclothed condition in an open field in order to destroy the evidence. The manner in which the survivor-child lost her life shakes the conscience of any prudent man. 13. Insofar as the oral evidence on record is concerned, there is no dispute about the fact that prosecution case is based upon circumstantial evidence. Heavy reliance has been placed on the testimony of two witnesses, viz. Ravaji Godadji Makwana (PW-14) and Cheharben Amratji Thakore (PW-17) and particularly, on the evidence of Cheharben (PW-17), to prove the aspect of "last seen together". Ravaji Godadji Makwana (PW-14) is the father-in-law of complainant and on the date of incident, he had gone to the house of complainant for celebrating the festival of Holi. He has deposed that during noon hours, only this witness and three children of the complainant were present in the house. At that time, original accused No. 1 came there. Since original accused No. 1 happened to be the cousin of the children of complainant, this witness allowed original accused No. 1 to take all the three children to a shop for purchasing snacks for them. After some time, except the survivor, the two other children, including Cheharben (PW-17), returned home. At that time, original accused No. 1 came there. Since original accused No. 1 happened to be the cousin of the children of complainant, this witness allowed original accused No. 1 to take all the three children to a shop for purchasing snacks for them. After some time, except the survivor, the two other children, including Cheharben (PW-17), returned home. When this witness inquired the whereabouts of survivor, Cheharben (PW-17) informed him that original accused No. 1 had asked her to return home and that he would bring the survivor back home after purchasing cold-drink for her. 14. The evidence of Ravaji Makwana (PW-14) gets corroboration from the evidence of Cheharben (PW-17). The evidence of Cheharben (PW-17) proves that the survivor was last seen in the company of original accused No. 1. The evidence of both these witnesses prove that original accused No. 1 had taken the survivor along with him under the pretext of purchasing cold-drink for her. 15. Both these witnesses have been cross-examined at length, however, nothing incriminating has come out as would render their evidence unreliable or non-trustworthy. Thus, from the evidence of these two witnesses, it is established that survivor was last seen in the company of original accused No. 1. 16. It is pertinent to note that original accused No. 1 happened to be the real cousin of the survivor. Naturally, since the survivor was aged only 07 years at the relevant time, original accused No. 1 would have an emotive control over her. Therefore, the survivor had no reason to doubt the integrity of original accused No. 1 and she readily agreed to accompany him. Even otherwise, it is not expected from a child aged 07 years that she would anticipate the danger lying ahead when original accused No. 1 sent back her elder sister and younger brother back home. In other words, original accused No. 1 took undue advantage of the innocence of the survivor and also his position in the family. 17. It is a matter of record that blood group of deceased-survivor was 'B' and that human blood belonging to the same group was found from the scene of offence, on the muddamal stone and also from the clothes of original accused No. 1, which is established from the FSL Report (Exh. 95) and Serological Report (Exh. 96). 17. It is a matter of record that blood group of deceased-survivor was 'B' and that human blood belonging to the same group was found from the scene of offence, on the muddamal stone and also from the clothes of original accused No. 1, which is established from the FSL Report (Exh. 95) and Serological Report (Exh. 96). Thus, the scientific evidence on record also proves the guilt of original accused No. 1. 18. Insofar as the role played by original accused No. 2 to 7 is concerned, nothing is coming on record, even remotely, to suggest that any of accused played any role in the entire incident. In fact, it has come on record that complainant (PW-12) attempted to lead false evidence in order to implicate original accused No. 2 to 7 in the crime in question. There is nothing on record to suggest that original accused No. 2 to 7 carried the dead body of survivor to some other place or attempted to cremate the dead body on their own. In fact, the evidence of Investigating Officer, Keshabhai Punjabhai Rathod (PW-21), proves that the dead body of survivor was exhumed from the place, which was identified by the complainant. Thus, the evidence of the complainant and other witnesses stands fructified insofar as it relates to the alleged role of original accused No. 2 to 7. 19. As regards the principle which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court is concerned, the same have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani v. 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. 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." 19.1 Further, in the case of Chandrappa v. 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. [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." 19.2 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. 19.3 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. 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." 19.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors, 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. 19.5 In the case of Luna Ram v. 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." 19.6 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, 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. v. 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 v. Sohan Lal and Others, (2004) 5 SCC 573 ]." 20. Considering the evidence on record in light of the principle rendered in the above decisions, we are of the opinion that the Court below was justified in acquitting original accused No. 2 to 7 of all the charges. 21. 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 original accused No. 2 to 7. 22. 22. In view of the above discussion, we are of the considered opinion that the Court below has rightly convicted original accused No. 1 for the offence in crime and acquitted original accused No. 2 to 7 of all the charges. We are in complete agreement with the reasonings given by and the findings arrived at in the impugned judgment and hence, find no reasons to entertain these appeals. 23. For the foregoing reasons, both the appeals are dismissed. The impugned judgment and order dated 07.01.2011 passed in Sessions Case No. 14 of 2010 stands confirmed. Original accused No. 1 is in jail. It is made clear that punishment of imprisonment for life awarded to original accused No. 1 shall mean imprisonment for the entire term and that the State shall not grant benefit of remission to original accused No. 1. 23.1 In Criminal Appeal No. 1013/2011, Bailable warrants were issued against original accused No. 2 to 7. In view of the dismissal of appeal, their bail bonds stand cancelled. 23.2 R & P, if lying here, be sent to the trial Court forthwith.