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2017 DIGILAW 421 (GUJ)

State of Gujarat v. Narshibhai Mavjibhai Vora

2017-02-18

A.J.SHASTRI, S.R.BRAHMBHATT

body2017
JUDGMENT : A.J. Shastri, J. 1. The present appeal is directed against the judgment and order dated 3.7.2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 8, Bhavnagar, in Sessions Case No. 49 of 2003 whereby present respondents-original accused were acquitted of the charges levelled against them. 2. The case of the prosecution in brief is that a complaint was filed by the complainant-Premilaben, widow of Govindbhai Amrabhai, that when she was at home on 19.6.2002 at about 5.00 p.m., her son and daughter-in-law namely, Jethabhai and Madhuben went to fetch water from water tanker parked behind their house near the bus-stand. At that time, respondent No. 1-Narshibhai and respondent No. 4-Prabhaben, neighbours of the complainant by breaking the order were fetching water and as Jethabhai did not allow them to fetch water, respondents Nos. 1 and 4 abused her son and daughter-in-law. After some time, all the accused namely, respondent No. 1 armed with scythe (dhariya), respondent Nos. 2 and 3 armed with sticks and respondent No. 4 unarmed came and abused her son and daughter-in-law. When the complainant asked them as to why they were abusing them and she told that on the one hand they want to fetch water by breaking the order and on the other hand are abusing them also, all the accused got excited and respondent No. 1 inflicted three blows with dharia on the head of the complainant and as a result of which, the complainant fell down and blood was oozing out. At that time, respondent Nos. 2 and 3 also inflicted stick blows on the chest of the complainant and respondent No. 4 inflicted fist and kick blows. The complainant received serious injuries due to the blows received by her and when Jethabhai and Madhuben intervened, they were also given fist and kick blows and due to shouts, people of the neighbouring houses gathered and accused ran away. While leaving, they stated that if the complainant's family went to fetch water, they would be done to death. The complainant was taken to hospital at Bhavnagar by her son and daughter-in-law. The said complaint was registered as Vartej Police Station C.R. No. I-91 of 2002. The investigating officer thereafter carried out investigation and upon completion of investigation, as there appeared a prima facie case against the accused, a charge sheet came to be filed against them. The complainant was taken to hospital at Bhavnagar by her son and daughter-in-law. The said complaint was registered as Vartej Police Station C.R. No. I-91 of 2002. The investigating officer thereafter carried out investigation and upon completion of investigation, as there appeared a prima facie case against the accused, a charge sheet came to be filed against them. 2.1 As the case was triable by the Court of Sessions, in exercise of power under section 209 of Cr.P.C., the case was committed to Court of Sessions where it was numbered as Sessions Case No. 49 of 2003. The learned Additional Sessions Judge, Bhavnagar, framed charge on 25.3.2004 against the accused for the offences punishable under sections 307, 323, 504 read with sections 506(2) and 114 of IPC. The charge was read over and explained to the original accused to which, they pleaded not guilty and claimed to be tried. 2.2 During the course of trial, to prove the case against the accused, prosecution has led the evidence in the form of oral as well as documentary evidence in the following manner:- Sr. No. Particulars Exhibit No. 1 Deposition of Dr. Kashyap Chandravadan Dave 16 2 Premilaben Desabhai 18 3 Jethabhai Govindbhai 20 4 Madhuben, W/o. Jethabhai Govindbhai 21 5 Kankuben Jivabhai 23 6 Jayubha Nirubha Gohil 7 Pravinsinh Balubha Gohil 25 8 Vikrambhai Hadabhai 27 9 Kathadbhai Motibhai 29 10 Amrubhai Dosalbhai Manjariya 30 11 Dhirubha Narubha Gohil 33 12 Habibbhai Adambhai 35 13 Injury certificate of the complainant 17 14 Complaint 19 15 Fax Message 22 16 Panchnama of place of offence 26 17 Panchnama of surname of accused 28 18 Yadi by PSO 31 19 Application by APP under section 311 of Cr.P.C. 32 20 Xerox of case dairy 34 21 Copy of MLC Register 36 22 Closing pursis 37 2.3 After leading the evidence, the trial commenced further and the learned trial Judge has framed the issues for which the case was put up for adjudication. On submission of closing pursis by the prosecution, learned Sessions Judge recorded further statements of the accused under Sec. 313 of Code of Criminal Procedure where they denied to have committed any offence. On submission of closing pursis by the prosecution, learned Sessions Judge recorded further statements of the accused under Sec. 313 of Code of Criminal Procedure where they denied to have committed any offence. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, the learned Additional Sessions Judge, Fast Track Court No. 8, Bhavnagar, vide impugned judgment and order dated 3.7.2004 passed in Sessions Case No. 49 of 2003 came to the conclusion that no case is made out by the prosecution beyond reasonable doubt and in exercise of power under section 235(1) of Cr.P.C., the respondents accused came to be acquitted. It is this judgment and order of acquittal which is giving rise to prefer the present appeal by the State. The appeal after condonation of delay came to be admitted and it has come up for final hearing before this Court. 3. Learned APP, Mr. J.K. Shah, appearing on behalf of the State has vehemently contended that while passing the judgment and order, a serious error is committed by learned Additional Sessions Judge. Mr. Shah has further contended that there is a specific charge put up against the respondents accused in specific form which is substantiated by the evidence of several witnesses and simply because some of the witnesses have turned hostile, the same would not be a ground to pass an order of acquittal. By referring to the deposition of P.W. No. 2-Pramilaben Desabhai, who has been examined at Exh. 18, Mr. Shah has further contended that this witness has specifically maintained the case of the prosecution and looking to her examination-in-chief and cross-examination, specific role of the respondents accused has been emerged which is corroborated by other cogent evidence and therefore, the learned trial Judge has grossly erred in not appreciating this witness. It has been contended that a specific case is made out with a specific role against the respondents accused and if this be compared with medical evidence, the case is getting corroborated and for that purpose, Mr. Shah has drawn our attention to P.W. No. 1, Dr. Kashyap Chandravadan Dave, who was examined at Exh. 16 and contended that there is a specific opinion of the doctor that the injuries which have been caused are possible on account of blows with dharia as well as stick. While referring to this, Mr. Shah has drawn our attention to P.W. No. 1, Dr. Kashyap Chandravadan Dave, who was examined at Exh. 16 and contended that there is a specific opinion of the doctor that the injuries which have been caused are possible on account of blows with dharia as well as stick. While referring to this, Mr. Shah has contended that though it has been opined by this Medical Officer that had proper treatment been given, then the injuries could be healed. Mr. Shah has further contended that though this Medical Officer has not specifically opined that these injuries can result into the death of the victim, nonetheless, has opined that the injuries were of serious in nature requiring the injured to be treated as an indoor patient and therefore, by referring to this version of Medical Officer, the case is substantiated, still, however, erroneously the learned trial Judge has passed an order of acquittal. Mr. Shah has further contended that the reasons which are assigned by the learned trial Judge are also not sufficient enough to justify the conclusion. Even there appears to be no explanation in their statements recorded under section 313 of Cr.P.C. which was their obligation to explain incriminating circumstances and having not done so, the order is not sustainable in the eye of law. Mr. Shah has further contended that though the panchas have become hostile, still, Investigating Officer has maintained the case of the prosecution and from that version, at least some penalty ought to have been inflicted as the incident in question is established to have occurred beyond reasonable doubt. Mr. Shah has contended that though Madhuben, P.W. No. 4, has not supported the case by declaring her to be hostile, her version to some extent is definitely supporting the case of the prosecution. Mr. Shah has further contended that there was a reason behind her declaring hostile in view of the fact that this Madhuben had a dispute and maintenance case is pending against her husband and therefore, Mr. Shah has contended that simply because one witness has not supported the case of the prosecution, order of acquittal is not possible to be sustained and therefore, requested the Court to reverse the order and inflict appropriate, suitable and adequate punishment in the interest of justice. 4. To oppose the stand taken by learned APP, Mr. Hardik K. Raval, appearing for respondent Nos. 4. To oppose the stand taken by learned APP, Mr. Hardik K. Raval, appearing for respondent Nos. 1 to 4, has submitted that in the present case, no witness has supported so cogently the case of the prosecution, so much so that panchas have become hostile and from a bare reading of the evidence of P.W. No. 2, no order of acquittal warrants any interference. Mr. Raval has submitted that the medical evidence is not supporting the case of the prosecution in as much as though the injuries are stated to be serious in nature but are not that much serious which can cause death and therefore, when medical evidence is also not supporting the case of the prosecution, order of acquittal is thoroughly justified. Mr. Raval has further contended that there is a serious contradiction amongst the witnesses who have been examined and apart from that, the main material part is that the incident in question might have generated a blood flow. Surprisingly, the blood was not sent to FSL for analysis and within a short span, the victim has been discharged from the hospital and therefore, the case though placed on high pitch by the prosecution is falling under section 307 of IPC in reality, even if assuming then also, section 307 of IPC is not made out. To contend this, Mr. Raval has contended that there was no intention or knowledge reflecting from the evidence as a whole which can cause death and therefore, the very element which is the condition precedent to infer the offence of section 307 of IPC is missing and therefore, the case of the prosecution is not proved beyond reasonable doubt and therefore, the reasons which are assigned are sufficient enough to justify the conclusion arrived at. While further substantiating the contention, Mr. Raval has contended that even the prosecution has not established the place of occurrence so cogently and that has been evaluated by the learned trial Judge. Even the weapons, which have been recovered, rather discovered, have not been sent for further examination of forensic laboratory. In addition thereto, by referring to the panchnama of place of offence, no incriminating marks are found to substantiate the version of the complainant. Mr. Even the weapons, which have been recovered, rather discovered, have not been sent for further examination of forensic laboratory. In addition thereto, by referring to the panchnama of place of offence, no incriminating marks are found to substantiate the version of the complainant. Mr. Raval has further contended that there is no evidence worth the name put up by the prosecution that discovery of weapons was with a bloodstain and therefore, when such factual infirmity is emerging from the record, the learned trial Judge was justified in passing order of acquittal. Mr. Raval has further contended that even the complainant has not specifically asserted as to whether dharia blow was given by Kanabhai or Dalpatbhai or Narshibhai and who has inflicted which blow and though several witnesses independent in nature were available, the prosecution has chosen not to examine them and therefore, in the absence of any independent and cogent version, it is hardly possible for the Court to pass an order of conviction which has rightly been appreciated by the learned trial Judge and acquitted the accused. There appears to be no perversity, illegality or irregularity and the entire conclusion is based upon appreciation of evidence on record and therefore, by contending this, Mr. Raval has requested the Court that even if plausible view is reflecting, the same cannot be substituted in view of the fact that there are self imposed restrictions upon appellate Court that it has not to review the order. If any plausible view is available on the basis of some material on record, then the view cannot be substituted by what has been concluded by the learned trial Judge and therefore, by referring to the scope of appellate jurisdiction, Mr. Raval has requested the Court that appeal filed by the State being meritless be dismissed in the interest of justice. 5. Having heard the learned advocates appearing for the parties and having gone through the evidence on record and having also considered the reasons assigned by the learned trial Judge while passing the impugned judgment, following facts are emerging which cannot be unnoticed: 5.1 Though there is a specific charge that accused No. 1-Narshibhai has given a dharia blow and accused Nos. 2 and 3 have given stick blows but if the same be considered in the light of evidence of the prosecution namely, P.W. No. 2-Premilaben, there is no specific attribution against accused No. 1 whether he has given a dharia blow or not. On the contrary, the assertion was that all the accused persons were beating. 5.2 From the evidence on record, it has also been found that looking to the panchnama of scene of offence, there were marks of bloodstains but if we refer to this panchnama which is at Exh. 26 on page 147 of paper book compilation, these bloodstains have not been collected and sent for analysis. 5.3 In addition thereto, if we refer to the arrest panchnama which is at Exh. 28, the same would reflect that alleged dharia said to have been used in the commission of crime is recovered at the instance of Narshi Mavjibhai-accused No. 1 but then again, upon an inquiry, it has been found that not only no bloodstains are referring on this weapon but no further step for analysis has been initiated in any form by the prosecution. The very discovery is seriously doubted and is in question. 5.4 From the material on record, it has been opined further that Madhuben, P.W. No. 4, who is the person of family of the injured has not supported the case of the prosecution and if her version to some extent is taken in aid to support the case of the prosecution, then also, the main incident is not getting corroborated and in addition thereto, the panchas have become hostile and not supported the case of the prosecution. 5.5 It is also emerging from the record that Dr. Kashyap Dave, who has been examined as P.W. No. 1 has though pointed out the injuries and opined that with deadly weapons, these injuries can cause but at the same time has not opined specifically that these injuries can cause death of a person. From a bare reading of evidence of this witness, it is emerging that no complication can take place as the injuries can be healed within a period of 10-15 days and therefore, according to this version of Medical Officer also, the injuries have not been found to be sufficient in nature which may result into death. From a bare reading of evidence of this witness, it is emerging that no complication can take place as the injuries can be healed within a period of 10-15 days and therefore, according to this version of Medical Officer also, the injuries have not been found to be sufficient in nature which may result into death. 5.6 Apart from that, the reasons which are assigned by the learned trial Judge in paragraph No. 12 are also sufficient enough to justify the conclusion of acquittal of the respondents accused and the same are not insufficient which may permit us to disturb the order of acquittal which was passed in the year 2004. 6. The overall view of the evidence is suggesting several infirmities in the case of the prosecution and which may reflect that the case is not proved beyond reasonable doubt by the prosecution as concluded by the learned trial Judge. 7. From the aforesaid analysis of the record of the case and looking to the contentions advanced by both the sides, we are of the considered opinion that the reasons assigned by the learned trial Judge and the order based upon it are not so fallible which may permit us to take a different view. There appears to be no extra ordinary justifiable circumstance available on record which may permit us to substitute the finding arrived by the learned trial Judge and in addition thereto, while coming to this conclusion, we are mindful of the fact that sitting in an appellate jurisdiction, no review is permissible or re-examination is permissible and therefore even if plausible view is emerging, then also, when the learned trial Judge has come to the conclusion upon the evidence on record and upon seeing the demeanor of the witnesses, such exercise undertaken by the learned trial Judge does not warrant any interference. 8. To our assistance, we hereby refer to one of the decisions of the Hon'ble Apex Court on the issue of appellate jurisdiction. Of course, by catena of decisions, such proposition is time and again clarified but to avoid undue repetition, we hereby quote one of the propositions laid down by the Hon'ble Apex Court in the case of Shyamal Saha and another v. State of W.B. reported in (2014) 12 SCC 321 and the relevant extracts of the said decision made in paragraphs 17 to 20 are reproduced hereinafter. "17. "17. The crucial issue for consideration, therefore, relates to interference by the High Court in an acquittal given by the Trial Court. Recently, in Joginder Singh v. State of Haryana it was held, after referring to Sheo Swarup v. King Emperor that: (Joginder Singh case, SCC P. 344, paras 21-22) "21. Before we proceed to consider the rivalised contentions raised at the bar and independently scrutinize the relevant evidence brought on record, it is fruitful to recapitulate the law enunciated by this Court pertaining to an appeal against acquittal. 22. In Sheo Swarup (supra), it has been stated that the High Court can exercise the power or jurisdiction to reverse an order of acquittal in cases where it finds that '..... the lower court has "obstinately blundered" or has "through incompetence, stupidity or perversity" reached such "distorted conclusions as to produce a positive miscarriage of justice" or has in some other way so conducted or misconducted himself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result.'" Unfortunately, the paraphrasing of the concerned passage from Sheo Swarup gave us an impression that the High Court can reverse an acquittal by a lower court only in limited circumstances. Therefore, we referred to the passage in Sheo Swarup and find that what was stated was as follows:- "There is in their opinion no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has "obstinately blundered," or has "through incompetence, stupidity or perversity" reached such "distorted conclusions as to produce a positive miscarriage of justice," or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result". The legal position was reiterated in Nur Mohammad v. Emperor after citing Sheo Swarup and it was held: (Nur Mohammed case, LW P. 481) "Their Lordships do not think it necessary to read it all again, but would like to observe that there really is only one principle, in the strict use of the word, laid down there; that is, that the High Court has full power to review at large all the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed". We are mentioning this only to dispel the possibility of anyone else getting an impression similar to the one that we got, though nothing much turns on this as far as this case is concerned. 18. The entire case law on the subject was discussed in Chandrappa v. State of Karnataka beginning with perhaps the first case decided by this Court on the subject being Prandas v. State. It was held in Chandrappa as follows: (SCC P. 432, para 42) "(1) An appellate court has full power to review, reappreciate 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 curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise 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. The principles laid down in Chandrappa were generally reiterated but mainly reformulated in Ganpat v. State of Haryana though without reference to Chandrappa and by referring to decisions not considered therein. The reformulation of the principles in Ganpat is as follows: (SCC P. 62, para 15) "(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion. (ii) The appellate court can also review the trial court's conclusion with respect to both facts and law. (iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal. (iv) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. (v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed. (Vide Madan Lal v. State of J and K, Ghurey Lal v. State of U.P., Chandra Mohan Tiwari v. State of M.P. Hand Jaswant Singh v. State of Haryana. 20. Undoubtedly, we are suffering from an overdose of precedents but be that as it may, from the principles laid down, it appears at first blush that the High Court is entitled to virtually step into the shoes of the Trial Court hearing submissions of learned counsel and then decide the case as a court of first instance. 20. Undoubtedly, we are suffering from an overdose of precedents but be that as it may, from the principles laid down, it appears at first blush that the High Court is entitled to virtually step into the shoes of the Trial Court hearing submissions of learned counsel and then decide the case as a court of first instance. Perhaps this is not what is intended, notwithstanding the broad language used in Chandrappa and Ganpat. Otherwise, the decision of the Trial Court would be a meaningless exercise and this Court would become a first appellate court from a decision of the High Court in a case of acquittal by the Trial Court. Realistically speaking, although the principles stated are broad, it is the obligation of the High Court to consider and identify the error in the decision of the Trial Court and then decide whether the error is gross enough to warrant interference. The High Court is not expected to merely substitute its opinion for that of the Trial Court only because the first two principles in Chandrappa and Ganpat permit it to do so and because it has the power to do so - it has to correct an error of law or fact significant enough to necessitate overturning the verdict of the Trial Court. This is where the High Court has to exercise its discretion very cautiously, keeping in mind the acquittal of the accused and the rights of the victim (who may or may not be before it). This is also where the fifth principle laid down in Chandrappa and Ganpat comes into operation." 9. From the aforesaid discussion and analysis of the evidence and in furtherance of the law laid down by the Hon'ble Apex Court in exercise of appellate jurisdiction, we see no extraordinary reason to take a different than what has been taken by the learned trial Judge. We are broadly in agreement with the reasons assigned by the learned trial Judge and accordingly found that interference in order of acquittal passed by the learned trial Judge in 2004 is not required to be made. We are of the considered opinion that the appeal filed by the State being meritless is required to be dismissed. 10. The appeal being found meritless is hereby dismissed. We are of the considered opinion that the appeal filed by the State being meritless is required to be dismissed. 10. The appeal being found meritless is hereby dismissed. The judgment and order of acquittal dated 3.7.2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 8, Bhavnagar, in Sessions Case No. 49 of 2003 is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings shall be sent back forthwith to the trial court.