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2017 DIGILAW 511 (GUJ)

State of Gujarat v. Lalbhai Rakyabhai Charan

2017-03-06

A.J.SHASTRI, S.R.BRAHMBHATT

body2017
JUDGMENT : A.J. Shastri, J. 1. The State has filed the present appeal under section 378 of Cr.P.C. against the judgment and order dated 13.4.2006 passed in Sessions Case No. 399 of 2003 by the learned Additional Sessions Judge, Fast Track Court No. 8, Panchmahals at Godhra, by virtue of which, the learned Judge was pleased to pass an order of acquittal in favour of the respondents accused. 2. The brief facts of the case of the prosecution are as under: "2.1 A complaint was lodged by one Naniben Vihalbhai Naranbhai Charan, daughter of Vihalbhai before Godhra Taluka Police Station on 15.6.2003 at about 6 a.m. inter alia alleging that the respondents accused picked up a quarrel with father of the deceased Raniben, who is cousin of the complainant. It was further alleged that a panch was called for settlement with regard to dispute of land between Laxmanbhai (uncle of the complainant) and the respondents and the dispute did not resolve in the said panch. Thereafter at about 11 p.m., the accused called father of the complainant and tried to set him on fire but deceased Raniben intervened in the quarrel. Later on at about 1.00 a.m., Lalabhai and Pilabhai (the respondents accused Nos. 2 and 3) caught hold of Raniben and poured kerosene and set her ablaze. The complaint was thereafter lodged at about 4 a.m. initially under section 307 of IPC. 2.2 The said complaint came to be investigated by the Investigating Officer, who recorded statements of witnesses, drew necessary panchnamas namely, panchnama of scene of offence, arrest panchnama as well as recovery panchnamas and after finding a prima facie case against the accused and as Raniben died during the pendency of investigation, a charge sheet was filed against the accused for the offence punishable under sections 302 and 114 of IPC and it was registered as C.R. No. 114 of 2003 before Godhra Police Station before the Judicial Magistrate First Class, Godhra. 2.3 Since the case was triable by Court of Sessions, in exercise of power under section 209 of Cr.P.C. the learned Magistrate has been pleased to commit the case to Court of Sessions where it was numbered as Sessions Case No. 399 of 2003. 2.3 Since the case was triable by Court of Sessions, in exercise of power under section 209 of Cr.P.C. the learned Magistrate has been pleased to commit the case to Court of Sessions where it was numbered as Sessions Case No. 399 of 2003. 2.4 The learned Sessions Judge after receipt of the case has framed charge against the accused at Exh.2 which is on page 33 of paper book compilation and plea was recorded of the respondents accused. The said charge was read over and explained to the original accused to which, they pleaded not guilty and claimed to be tried. Resultantly, the prosecution was given an opportunity to prove and establish the case against the respondents accused. In furtherance of this attempt to prove the case, the prosecution has led the oral as well as documentary evidences in the following manner: ORAL EVIDENCE P.W. No. Name of witness Exhibit No. 1 Naniben Vihalbhai Naranbhai Charan 25 2 Jayantilal Jethalal Shrimali 29 3 Kanubhai Danabhai Charan 30 4 Dipakkumar Prafulchandra Bhatt 31 5 Devkaranbhai Jivabhai Charan 34 6 Hiraben Vashrambhai Charan 35 7 Sonalben Laxmanbhai 36 8 Vihalbhai Naranbhai 37 9 Laxmanbhai Naranbhai Charan 38 10 Jayeshbhai Vinodbhai Patel 39 11 Rajuben Nathubhai Vilaji Charan 42 12 Narvatsinh Budhesinh Chavda 43 13 Valabhai Shamalbhai Charan 44 14 Jashvantsinh Shabhsinh Makwana 47 15 Minaben Kanubhai Dhanabhai Charan 49 16 Raghuvirsinh Jaskaran Gadhvi 50 DOCUMENTARY EVIDENCE Description Exhibit No. Inquest panchnama 45 Complaint 26 Panchanama of scene of offence 8 Panchnama of seizure of clothes wore by the victim 51 Panchnama of muddamal kerosene chimney used in the commission of offence 46 Panchnama of arrest of accused Jagadish 9 Panchnama of accused Pravin 10 Panchnama of kerosene can 48 Xerox of D.D. Mark 7/9 P.M. Note of Raniben 28 Yadi for adding section 302 11 Receipt for entrusting dead body Mark 7/12 Letter written for preliminary opinion 52 Muddamal forwarding note 12 Receipt for obtaining muddamal 52 Preliminary report of muddamal 54 2.5 After leading the evidence, a closing pursis has been given by the prosecution and then accused persons have been given an opportunity to tender further statements under Sec. 313 of Code of Criminal Procedure. However, since the respondents accused claimed to be innocent and have been wrongly arraigned in the case, the case was put up for further adjudication whereby the learned Judge framed the issues. However, since the respondents accused claimed to be innocent and have been wrongly arraigned in the case, the case was put up for further adjudication whereby the learned Judge framed the issues. After considering the entire material on record and after examination of evidence led by the prosecution, learned Additional Sessions Judge, 8th Fast Track Court, Panchmahals at Godhra, in exercise of power under section 235(1) of Cr.P.C. has granted benefit of doubt and acquitted the respondents accused vide judgment and order dated 13/4/2006 below Exh. 60. It is this judgment and order which is made the subject matter of present appeal." 3. Ms. Hansa Punani, learned Additional Public Prosecutor for the respondent State has vehemently contended that there is a serious error committed by the learned trial Judge in passing the order of acquittal. She has further contended that while passing the order of acquittal, no cogent reasons are assigned reflecting a clear non-application of mind by the learned trial Judge. Ms. Punani has further contended that in evaluating the evidence on record led by the prosecution, the learned trial Judge has not examined from its proper perspective and therefore, in such a situation, when a serious error is committed in exercising jurisdiction, the same deserves to be corrected by quashing and setting aside the impugned judgment. Ms. Punani has further contended that though by examining as many as 16 witnesses and by producing several documentary evidences, the case has been proved by the prosecution beyond reasonable doubt but the learned trial Judge has not undertaken a detailed examination of each of the evidence. Having not done so, a serious error of jurisdiction is reflecting clearly from a bare reading of the judgment and order and such kind of laconic order deserves to be quashed and set aside. Ms. Punani has further contended that several witnesses have been examined by the prosecution and if the depositions of these witnesses are examined and analysed in the context of averments contained in the FIR, it can easily be culled out that the prosecution has proved the case beyond reasonable doubt and such error committed by the learned trial Judge cannot be allowed to be precipitated further. Ms. Punani has drawn the attention to some of the stinking material available on record. According to her, the evidences of Naniben-P.W. No. 1 examined at Exh. 25, Dr. Jayantilal-P.W. No. 2 examined at Exh. Ms. Punani has drawn the attention to some of the stinking material available on record. According to her, the evidences of Naniben-P.W. No. 1 examined at Exh. 25, Dr. Jayantilal-P.W. No. 2 examined at Exh. 29, who is the medical officer who performed post mortem at Civil Hospital and also of Executive Magistrate, Dipakkumar Prafulchandra Bhatt-P.W. No. 4 examined at Exh. 31 are supporting the case of the prosecution. Ms. Punani has further contended that conjoint effect of evidences of these witnesses is clearly establishing the guilt of the respondents accused and therefore, when such a situation is prevailing on record which can substantiate the conclusion arrived at by the learned trial Judge, such conclusion being perverse to the record, it is a fit case to interfere with the order of acquittal. 4. Drawing our attention to evidence of Devkaranbhai Jivabhai Charan, P.W. No. 5 examined at Exh. 34 in addition to the evidences of Hiraben Vasrambhai Charan, P.W. No. 6 at Exh. 35 and Vihalbhai Naranbhai, P.W. No. 8 at Exh. 37, Ms. Punani has contended that these witnesses have definitely proved the case of the prosecution beyond reasonable doubt by corroborating the evidence and therefore, when such an effort is made by the prosecution, there was hardly anything left by the prosecution which can be permitted by the learned trial Judge to grant an order of acquittal and therefore, this being a serious error of exercise of jurisdiction, the same deserves to be corrected by setting aside the same. Ms. Punani has contended specifically that dying declaration is very much reflecting the guilt of the respondents accused and therefore, when such material is available on record, it is not understanding as to why the order of acquittal is granted to the respondents accused and therefore, Ms. Punani has submitted that such error deserves to be corrected and ultimately, by referring to the versions of these witnesses, Ms. Punani has submitted that order of acquittal being unsustainable in the eye of law requires to be corrected. Ms. Punani has submitted that such error deserves to be corrected and ultimately, by referring to the versions of these witnesses, Ms. Punani has submitted that order of acquittal being unsustainable in the eye of law requires to be corrected. Ms. Punani has further contended that it is a settled position of law that if any conclusion or finding results in miscarriage of justice and reflects manifest error, it is always open for the appellate court to interfere with the order of acquittal and therefore, this is a fit case in which order in question deserves to be corrected by quashing and setting aside the same. No other submissions have been made. 5. Mr. J.M. Buddhbhatti, learned advocate appearing for the respondents Nos. 1, 2 and 3 accused, has vehemently contended that there appears to be no error of jurisdiction or any perversity or illegality reflecting in the impugned judgment and order. Learned Judge has assigned good reasons to support the conclusion and therefore, such a well reasoned judgment does not call for any interference. Mr. Buddhbhatti has drawn our attention to the entire paper book compilation and has contended that it was a legal duty on the part of the prosecution to establish the case against the respondents accused beyond reasonable doubt and there is a dereliction of said duty on the part of the prosecution and therefore, order is not required to be interfered with. Mr. Buddhbhatti has further contended that the story put up by the prosecution is not only not supported by independent witnesses but has also been found to be highly improbable and therefore, when such a situation is prevailing on record, it cannot be said that any error is committed by the learned trial Judge. Mr. Buddhbhatti has further contended that incriminating circumstances normally ought to have been put to the notice of the respondents accused with a view to allow them to make effective defense during the course of trial whereas in the instant case, such incriminating material does not appear to have been put to the notice of the respondents accused and therefore, such a serious error in exercise of jurisdiction proved rightly to be fatal and therefore, the conclusion arrived at by the learned trial Judge is not in a position to be dislodged. Mr. Mr. Buddhbhatti has further contended that the deceased has died after almost a period of 8 days and further, no independent witnesses are supporting the case of the prosecution and therefore, the versions of the witnesses appear to be self-contradictory in nature which raises a serious doubt about the case of the prosecution. Mr. Buddhbhatti has stated that overall reading of the evidence on record is not generating any confidence in the case of the prosecution and therefore, it cannot be said that any manifest error is committed by the learned trial Judge which requires interference of this Court. Mr. Buddhbhatti has further contended that even dying declaration which is said to have been recorded has not been properly recorded and therefore, it is not safe to rely upon such kind of dying declaration and therefore, on the basis of such weak piece of evidence, no order of conviction is possible to be sustained in the eye of law and therefore, Mr. Buddhbhatti has submitted that the learned trial Judge has rightly exercised jurisdiction. Mr. Buddhbhatti has further submitted that while arriving at a particular finding in favour of the respondents accused, a well reasoned judgment is delivered and such judgment in appellate jurisdiction is not required to be interfered with in the absence of any convincing justifiable material. As no such distinguishable material is available on record, the judgment and order requires no interference and ultimately requested the Court not to allow such an order to be disturbed in the interest of justice. He ultimately urged to dismiss the appeal filed by the State as having no merit. 6. Having heard the learned advocates representing the respective parties and having gone through the finding arrived by the learned trial Judge and having given anxious consideration to the analysis of evidence on record, we are of the considered opinion that following circumstances are not leaning in favour of the prosecution: "6.1 The record of the case indicates a specific story which has been put up by the prosecution about the incident which took place on 15/6/2003 and if the same is to be co-related with the evidence of P.W. No. 1-Naniben at Exh. 25, it has been deposed that the incident in question has occurred at about 11 p.m. in which Naniben has been done away with by sprinkling kerosene on her by Lalabhai and Pallabhai. 25, it has been deposed that the incident in question has occurred at about 11 p.m. in which Naniben has been done away with by sprinkling kerosene on her by Lalabhai and Pallabhai. In fact, the incident has not occurred at 11 O clock at night but later point of time. This version is reflecting that she is an interested witness as being relative of the deceased and has made an attempt to co-relate the dispute about the land in question by referring to the panch which has assembled to resolve the dispute inter se with respect to the grievance. An attempt is made by this witness to indicate that since the deceased Raniben had taken a serious objection in the meeting of the panch, keeping the said vengeance, she was done away with by the respondents accused by sprinkling kerosene on her. Evidence of this witness is revealing further that when the deceased was taken to the hospital and when her last version was being recorded, this witness sat beside the deceased and while a question was paused to Raniben, she has specifically conveyed that when her dying declaration was being recorded, she was with the deceased and therefore, her version is required to be viewed in the context of version related to veracity of dying declaration. 6.2 Medical Officer, Dr. Jayantilal Jethalal Shrimali, P.W. No. 2 examined at Exh. 29, who performed post mortem has opined that if any person is pouring kerosene upon another, the same would spread from head to legs whereas the injuries which are reflecting on the body of the deceased, neither the head nor the legs have been burnt nor are there any injury marks of burns on the legs as well as on the head of the deceased. In the cross-examination, this medical officer has further opined that under normal circumstances, when kerosene is sprinkled on a person who is committing suicide, then head as well as legs can be saved. This exactly has happened in the case on hand. This medical officer has further deposed that cause of death has not been mentioned in column No. 23 of post mortem note and therefore, the version of this medical officer is not clearly suggesting the guilt of the respondents accused. On the contrary, the cross-examination reveals that it can be a case of suicide. This medical officer has further deposed that cause of death has not been mentioned in column No. 23 of post mortem note and therefore, the version of this medical officer is not clearly suggesting the guilt of the respondents accused. On the contrary, the cross-examination reveals that it can be a case of suicide. When the evidence of this medical officer is compared with the post mortem examination and inquest panchnama, a serious doubt is raising about the case of the prosecution. 6.3 Yet another witness examined by the prosecution is P.W. No. 3, Kanubhai Danabhai Charan at Exh. 30, who is cousin of the deceased. Chief examination of this witness reveals that the deceased Raniben had indicated that she on her own has sustained burns injuries. cross-examination of this witness is surprisingly revealing that the incident in question i.e. burning of Raniben is seen by this witness from 40 feet away from the scene of offence and has categorically stated that when he tried to extinguish fire on Raniben by placing bed-sheet, she was not in a position to speak at all. This witness in cross-examination has further admitted that Raniben was not in a position to speak all throughout. This witness has further admitted that Raniben had conveyed when they have gone to lodge the complaint that complaint be filed against sons of Rakhiana. This witness has further conveyed that at the time when dying declaration of the deceased was being recorded by the Mamlatdar, this witness, Vihalbhai as well as Naniben were very much with the deceased and dying declaration has been recorded as per the say of Naniben and all throughout, thumb impression of the deceased was taken and therefore, version of this witness is clearly suggesting the manner the respondents accused have been attempted to be roped into by the prosecution. In fact, this witness has also categorically admitted that when dying declaration was recorded by Mamlatdar, they were very much present with the deceased and the version has been recorded as per the say of Naniben. 6.4 In the context of aforesaid version of star witness of the prosecution, if the evidence of Executive Magistrate-Dipakkumar Prafulchandra Bhatt, P.W. No. 4 at Exh. 31 is considered, the same would clearly suggest as to in which manner dying declaration has been recorded. 6.4 In the context of aforesaid version of star witness of the prosecution, if the evidence of Executive Magistrate-Dipakkumar Prafulchandra Bhatt, P.W. No. 4 at Exh. 31 is considered, the same would clearly suggest as to in which manner dying declaration has been recorded. This witness in cross-examination has admitted that police came with yadi for recording the dying declaration at 4.55 p.m. with an endorsement of doctor that the deceased was serious and this yadi came to be received by him at 5.55 p.m. This witness has indicated that when he went to the victim for recording her dying declaration, no relatives were present which is quite contrast to the evidence of other witnesses which we have narrated hereinabove. In addition thereto, this witness has clearly stated that dying declaration has not been recorded in the presence of doctor but at the time when such dying declaration was getting recorded, no endorsement of doctor was taken by him and therefore, a serious doubt is being raised about such piece of dying declaration and therefore, even if dying declaration is to be treated as an independent piece of evidence, the same ought to have been substantially supported by the independent witness. In the present case, the manner in which dying declaration is recorded and the manner in which the witnesses are supporting would clearly go to show that in the case on hand, it is sufficient enough to rely upon such solitary piece of evidence. From all these relevant materials available on record, if the Court further examines other evidence namely, deposition of Laxmanbhai Naranbhai, father of the deceased who is examined as P.W. No. 9 as well as Vihalbhai Naranbhai Charan, P.W. No. 8, it would clearly indicate that they are not supporting the case of the prosecution by virtue of which it can be said that case has been proved beyond reasonable doubt. 6.5 Further independent analysis of the evidence on record would also indicate that panchas are not supporting the case of the prosecution so cogently by virtue of which it can be safely concluded that the respondents accused are guilty of offence which is said to have been committed and therefore, in the absence of any such stinking material, the conclusion arrived at by the learned trial Judge is impossible to be dislodged. 6.6 A further circumstance which is required to be taken note of is that even if case is to be viewed from the fact of guilt of the respondents accused, then also, incriminating circumstances do not appear to have been put to the respondents accused while going through further statements which have been recorded of the respondents accused. Further statements which have been recorded under section 313 of Cr.P.C. are also indicating that while proving the case, the Court has not put the incriminating material before the accused persons and that also is found to be fatal to the case of the prosecution." 7. In consideration of aforesaid situation prevailing on record, learned advocate, Mr. Buddhbhatti representing the respondents accused has made an attempt to rely upon some of the decisions delivered by the Hon'ble Apex Court for contending that case has not been proved by the prosecution beyond reasonable doubt. 7.1 Mr. Buddhbhatti has heavily relied upon the case of Sharad Biridhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 (1) and contended that the Hon'ble Apex Court has specifically held that if the circumstances are not put to the accused, the said material cannot be used against them. Taking this Court through paragraphs 148, 144 and 198 of the said decision, he has submitted that in the case on hand also, the prosecution has not put incriminating circumstances to the accused and therefore, in the absence of such an opportunity having given to the accused, no conclusion is possible to be disturbed. 7.2 Mr. Buddhbhatti has also relied upon another decision of the Hon'ble Apex Court reported in (2014) 10 SCC 270 in the case of Sukhjit Singh v. State of Punjab in which also, the Hon'ble Apex Court has insisted upon the significance of faithful and fair compliance of section 313 of Cr.P.C. by holding that the same is not merely an empty formality. Incriminating circumstance has to be brought to the notice of accused at the stage of recording of further statement under section 313 Cr.P.C. and having not done so, no evidence can be said to have been established. We respectfully agree with the said proposition of law laid down by the Hon'ble Apex Court in the above cited case. Incriminating circumstance has to be brought to the notice of accused at the stage of recording of further statement under section 313 Cr.P.C. and having not done so, no evidence can be said to have been established. We respectfully agree with the said proposition of law laid down by the Hon'ble Apex Court in the above cited case. While going through the further statement recorded by the Court in the present case on hand, we find no justification in disturbing the order passed by the learned Additional Sessions Judge. 7.3 A further insistence is made by learned advocate representing the respondents accused by citing a case decided by the Coordinate Bench of this Court in the case of Vinodgar alias Rameshgar Jivangar Goswami Bavaji and Anr. v. State of Gujarat reported in 2015 Cri. L.J. 2642 and by referring to paragraph No. 31 of the said decision, Mr. Buddhbhatti has submitted that here is also a case whereby the respondents accused are deprived of an opportunity as no incriminating circumstance is put forth before the respondents accused by the Court and that flow cannot improve the case of the prosecution beyond a point and therefore, this being the position, since the issue on this aspect is succinctly clear from the aforesaid proposition of law laid down by catena of decisions, impugned judgment and order of acquittal passed by the learned trial Judge in the background of this peculiar set of circumstances does not call for any interference. 7.4 Mr. Buddhbhatti has further relied upon another decision of the Hon'ble Apex Court reported in (2007) 4 SCC 415 in the case of Chandrappa and Others v. State of Karnataka and submitted that if two views are possible on the basis of evidence of record, one view which has been taken by the trial court in favour of the accused should not be disturbed by the appellate court. In paragraph No. 44 of the said decision, it has been reiterated by series of decisions even later by the Hon'ble Apex Court and therefore, we find that same has a force in the present case and accordingly, while considering the present case on hand, we rely upon the said observations made by the Hon'ble Apex Court which are reproduced hereinafter: "44. In our view, if in the light of above circumstances, the trial Court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, re-appreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court. The decision of the appellate Court (High Court), therefore, is liable to be set aside." 8. Considering the aforesaid situation prevailing on record and upon going through the judgment and order passed by learned Additional Sessions Judge and on an independent analysis of evidence on record in the context of finding recorded by the learned trial Judge, we feel it necessary to observe that there appears to be no error committed by the learned trial Judge which may result into miscarriage of justice and therefore, in the absence of any perversity, illegality or irregularity in passing the impugned judgment and order, it is difficult for the Court to dislodge the finding and disturb the order of acquittal passed by the learned trial Judge and accordingly, we are of the considered opinion that the case on hand is such where we deem it proper to confirm the judgment and order passed by the learned trial Judge and accordingly, the appeal having no merit deserves to be dismissed. 9. The present appeal is dismissed. 9. The present appeal is dismissed. The judgment and order dated 13.4.2006 passed in Sessions Case No. 399 of 2003 by the learned Additional Sessions Judge, Fast Track Court No. 8, Panchmahals at Godhra, is hereby confirmed. Bail bonds, if any, shall stand discharged. Record and proceedings be sent back to the trial court concerned forthwith. Appeal Dismissed.