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2017 DIGILAW 700 (GUJ)

State of Gujarat v. Mahendra

2017-03-29

A.J.SHASTRI, S.R.BRAHMBHATT

body2017
JUDGMENT : A.J. Shastri, J. 1. The State has filed the present appeal against the judgment and order passed by the learned Additional Sessions Judge and 9th Fast Track Judge, Rajpipla dated 04.12.2004 in Sessions Case No. 156 of 2000. 2. The facts of the case is that the complainant PSI of Vliya Police Station lodged the complaint at Valiya Camp while he was serving at outpost at Netral, he received information from PSO Valiya that two persons died as a result of blast at Village Chorambla and therefore complainant rushed out to the spot and found one jeep bearing Registration No. GJ-16-C-3306 lying in broken condition and two persons were lying dead near above vehicle. It was further the case of the prosecution that he also found some live cartages near the dead body and he also found the loaded revolver. Resultantly, initially he filed the complaint against two deceased persons who were carrying on explosive substances with them and died in the blast. The offence was registered and after recording the crime in the crime register, the investigation was entrusted to police officer. The said Investigating Officer has drawn necessary panchnamas, has recorded the statements of some of the witnesses and having found that sufficient material is available, charge sheet came to be submitted before the learned Judicial Magistrate First Class, Valiya. 2.1 Pursuant to the charge-sheet, two respondents accused presented themselves and the case was registered as Criminal Case. However, since the said incident involving an offence which is triable by the Court of Sessions, in exercise of jurisdiction under Section 209 of Cr.P.C. the learned Magistrate committed the case to the Sessions and after the same case was registered as Sessions Case No. 156 of 2000. After committal of the case to the Court of Sessions, the learned Additional Sessions Judge, Fast Track Court, was pleased to frame charge at Exh-3 and the plea of the respondents accused came to be recorded vide Exhs.4 and 5 but since respondents have denied offences being committed the case was then put up for trial. After committal of the case to the Court of Sessions, the learned Additional Sessions Judge, Fast Track Court, was pleased to frame charge at Exh-3 and the plea of the respondents accused came to be recorded vide Exhs.4 and 5 but since respondents have denied offences being committed the case was then put up for trial. 2.2 The prosecution with a view to establish its case against the respondents accused have produced oral as well as documentary evidences and as many as 43 witnesses have been examined and there appears to be a production of documentary evidence to the extent of 85 in numbers and after closing pursis which have been given by the prosecution, further statement of respondents accused came to be recorded under Section 313 of the Cr.P.C. in the said 313 statements the respondents accused have denied the offence being committed. Resultantly, further examination of the case has commenced in which after appreciating entire material on record and after analysing the same, learned Trial Judge has come to the conclusion that no offence is made out and accordingly by giving benefit of doubt the learned Additional Sessions Judge, 9th Fast Track Court, vide judgment and order dated 04.12.2004 was pleased to acquit the respondents accused in exercise of powers under Section 235 of the Cr.P.C. it is this judgment and order which is impugned subject matter of scrutiny before this Court by way of present appeal filed by the State. 3. Learned Additional Public Prosecutor Ms. Punani has vehemently contended that a serious error of exercise of jurisdiction is committed by learned Trial Judge in granting the benefit of doubt to the respondents accused. Ms. Punani has submitted that facts and circumstances which are established by the prosecution do not warrant any such benefit to be granted in favour of the applicant. In fact, while granting benefit of doubt, there must be some subjective satisfaction and the cogent reasons must appear. Here while granting such benefit, no reasons are assigned. On the contrary, the evidence which has led by the prosecution is completely misconstrued which is nothing but a glaring error on the part of the learned judge to pass judgment and order. Ms. Punani has further contended that several witnesses have been examined who have supported the case of the prosecution. On the contrary, the evidence which has led by the prosecution is completely misconstrued which is nothing but a glaring error on the part of the learned judge to pass judgment and order. Ms. Punani has further contended that several witnesses have been examined who have supported the case of the prosecution. The respondent accused No. 1 is the person who drew the jeep car and respondent No. 2 has identified the accused and deceased Natubhai and therefore there appears to be clinching evidence to connect the case of the prosecution with the respondent No. 2. Ms. Punani has further submitted that the present case practically based upon circumstantial evidence which necessarily requires the chain to be completed. Ms. Punani by drawing attention to evidence on record has clearly contended that looking to the version and the testimony of witnesses, it is quite clear that entire chain of circumstance is completely emerging which is connecting the respondent accused with actual commission of crime and therefore simply because some of the witnesses are not supporting the case of the prosecution it cannot be said in any way that prosecution has not proved case beyond reasonable doubt. On the contrary while arriving at a conclusion, Ms. Punani has contended that no sufficient explanation in the form of reasons are assigned to justify the order of acquittal and therefore this is not a fit case in which any 'benefit of doubt' theory may be allowed to be pressed into service and therefore the very exercise of jurisdiction is from the beginning not germane and therefore order requires to be corrected by quashing and setting aside the same. Ms. Punani has further submitted that there are independent witnesses who have been pressed into service to prove the case against the accused whose testimony has not been appreciated in its true perspective. Ms. Punani has further drawn attention to the testimony of Prosecution Witness No. 1 viz. Manharbhai Jesingbhai Vasava and contended that this witness has strongly supported the case of prosecution. On the contrary, the recovery which has been made from the spot has clearly suggested that contraband material was being transported. Ms. Punani has further drawn attention to the testimony of Prosecution Witness No. 1 viz. Manharbhai Jesingbhai Vasava and contended that this witness has strongly supported the case of prosecution. On the contrary, the recovery which has been made from the spot has clearly suggested that contraband material was being transported. It has been pointed out that accused No. 2 - respondent No. 2 has identified the dead body of Natubhai and accused No. 1 has run away from the spot who was said to have driven the jeep car and therefore these respondents are somewhere definitely connected with the main offence and therefore Ms. Punani submitted that simply because of some of witnesses are not supporting the case of the prosecution, it cannot be said that no offence worth the name is committed. On the contrary, the parameters for granting benefit of doubt are not reflected from the reasons which are assigned by the learned judge and therefore, it is desirable in the interest of justice to set aside the order and allow the appeal. Ms. Punani has further submitted that though an opportunity was given to the respondent accused while recording their further statement under Section 313 of Cr.P.C. they having no availed the opportunity of explaining their case is presumed to have been established by the prosecution. Looking to the inquest panchnama, looking to the panchnama of scene of offence and looking to the discovery panchnama, there are some visible connecting link establishing the case of prosecution and therefore role of present respondents accused could not have been overlooked especially when cogent material is adduced. Ms. Punani has submitted that on the contrary while granting benefit of doubt proper reasons ought to have been assigned which are missing and therefore it is desirable in the interest of justice not to allow such benefit of doubt in favour of the respondent. By contending this ultimately she has requested the Court to allow the appeal and inflict appropriate punishment upon the respondents accused. 4. To oppose the stand taken by learned Additional Public Prosecutor, Mr. By contending this ultimately she has requested the Court to allow the appeal and inflict appropriate punishment upon the respondents accused. 4. To oppose the stand taken by learned Additional Public Prosecutor, Mr. Apurva Kapadia, learned advocate appearing for the respondents accused has contended specifically that the main accused against whom the offence could have been established have died on the spot and looking to the position prevailing on the scene of offence and the description of the jeep car on account of such blast, the theory of prosecution that accused No. 1 was present is completely ruled out. Mr. Kapadia has further contended that in such a huge blast when other accused persons have died on the spot looking to the condition of jeep car it cannot be reasonably inferred in any way that accused No. 1 was even in nearby vicinity. Had there been so, he might have sustained serious injuries and have ultimately not died and therefore entire theory is raising serious doubt and not inspiring any confidence in the case of the prosecution. No other independent witnesses have even suggested that accused No. 1 was even remotely connected with the incident in question and therefore in the absence of any cogent material it is not safe to reverse the order of acquittal and on the basis of such weak piece of evidence, no order of conviction can be passed and therefore Mr. Kapadia has contended that no error committed by the learned Trial Judge. 5. Mr. Kapadia has further contended that apart from the accused No. 1 not being on the sight even respondent No. 2 accused whose role is also not established beyond reasonable doubt. On the contrary, without any material simply because respondent No. 2 has identified the dead body of one Natubhai he arraigned in the prosecution. Mr. Kapadia therefore contended that from the entire material on record nothing comes out so far accused No. 2 is concerned except the fact that he has identified the dead body. Now this solitary circumstance cannot be utilized to convict the person and therefore when the overall material on record is not establishing and completing the chain when the case is based on circumstantial evidence, it is not safe to reverse the order of acquittal and therefore Mr. Kapadia has requested the Court not to allow such order to be interfered with. Mr. Kapadia has requested the Court not to allow such order to be interfered with. Mr. Kapadia has further contended that each and every material which has been brought to the notice of learned trial Judge has been dealt with, considered, analyzed and then conclusion came to be arrived at and therefore in such a detailed exercise of jurisdiction simply because accused No. 2 has identified, that circumstance cannot be said to be significant to reverse the order of acquittal in absence of any legal infirmity and in absence of any perversity or manifest error, no order of acquittal deserves to be reversed and therefore in the background of these circumstances Mr. Kapadia has prayed this Court to dismiss the appeal filed by the State. 6. Having heard learned counsel appearing for the respective parties and having gone through the reasons assigned by the learned Judge and having independently assessed the evidence on record as well, following circumstances are not in a position to be ignored. "(a) From the material on record, it is found that charge has been framed at Exh.3 and for framing such a lengthy charge if the date is to be considered, the incident in question alleged to have occurred on 21.04.1997 whereas framing of the charge has once taken place on 17.06.2003 and further charge altered on 11.10.2004. This fact ought to have been taken note of by learned trial Judge on the contrary; (b) From the deposition of Prosecution Witness No. 1-Manhar Vasava, a Gram Sevak, who was at the relevant point of time at Jambugam, has heard a loud noise at about 03:00 p.m. at night and curiously he came out of the house and then again went inside. He has not seen the actual occurrence and on the contrary on the next day morning he show the jeep car in a dismantling condition and found two persons lying dead on the road side. This testimony further reveals that on 23.04.1997 police has never called him but then after coming from the service, his signature was taken on the blank paper and this witness has not even bothered to inquire as to for which purpose his signature being taken. This testimony further reveals that on 23.04.1997 police has never called him but then after coming from the service, his signature was taken on the blank paper and this witness has not even bothered to inquire as to for which purpose his signature being taken. From the entire deposition of this witness, ultimately he was declared hostile as has not supported the case of prosecution and nothing contrary comes out from his cross examination as well and therefore testimony of this witness is not proved to be useful for the prosecution; (c) Yet another witness has been examined in the name of Chitubhai Mangabhai Vasava, Prosecution Witness No. 2, who has also been declared hostile has chosen not to support the case of prosecution. On the contrary from his cross examination, it is revealed that he has not even seen the place of occurrence and just might have put the signature. On the contrary, he has also denied that immediately recovery has also not taken place in his presence and therefore during his cross examination, he has categorically stated that he is not knowing anything about incident in question. This witness has also not suggesting anything in favour of prosecution; (d) Similar is the case with respect to another witness Rameshbhai Kuvarjibhai Vasava, Prosecution Witness No. 3, who is examined at Exh.42. He has also, in the same manner, not supported the case of prosecution; (e) Yet another witness Ishwarbhai Karshanbhai, Prosecution Witness No. 4 at Exh.44, is not supporting the case of prosecution and therefore substantially witnesses are not in favour of the prosecution. The panch witnesses have chosen not to support panchnamas which have been drawn by the Investigating Officer and the theory of prosecution is not corroborated by any witness. (f) From the evidence on record further, some remote support can be availed from Prosecution Witness No. 27 at Exh.78 viz. Nanjibhai Jatariyabhai Vasava, who is the brother-in-law of Mahendra, but except the fact that Mahendra was having some injury on left leg, from that solitary circumstance it cannot be said that substantially the case of the prosecution has got support. In fact, this injury is also not explained, nor it is coming out that he sustained such injury on account of action which is subject matter of complaint and therefore nothing much turns out which can suggest or warrant any interference. In fact, this injury is also not explained, nor it is coming out that he sustained such injury on account of action which is subject matter of complaint and therefore nothing much turns out which can suggest or warrant any interference. (g) Yet another interested witness, who is the brother of Kanaksinh who died came to be examined on Prosecution Witness No. 29 Vijaysinh Naharsinh Vasava, who claimed to have seen that two unknown persons were trying to jump from the running vehicle i.e. jeep but jeep car has not been stopped by this witness. This witness, with a view to support the case of prosecution, appears to have suggested that jeep car was being driven by him and out of blast jeep car was totally dismantled, at the spot two persons died and he also sustained injuries on head, left hand and on chest and got the treatment at Mahavir Hospital, Surat. But again this witness is also declared hostile as he has not supported the case of prosecution. The testimony of this witness is further examined in form of cross- examination but no circumstances reflect by virtue of which the conclusion can be dislodged and therefore, the ultimate option which is available is to examine the police witness who is Prosecution Witness No. 41 viz. Jayendrasinh Dilavarsinh Zala at Exh.121, who appears to be an Investigating Officer who has arrested accused No. 1 on 09.07.1997, has collected the information and has taken the statements of some of the witnesses. But from cross-examination it is revealing that he has got note in writing for entrustment of investigation. He has not personally taken statements of witnesses. From this testimony a reference is coming out that for the purpose of igniting fire at the house of Ranchhodbhai Kachhiyavadi, involvement of Chhotubhai Vasava - political person of the area, was emerging during the investigation. But then ultimately statement of this police witness has to be evaluated keeping in mind the other evidence on record because this witness has to be corroborated by other cogent material to ascertain the credentiality. Upon examination of this witness, we do not find such corroboration from any of the independent witness and therefore the case appears to have not been substantially proved by the prosecution in any form. It cannot be said that prosecution has proved its case beyond reasonable doubt." 7. Upon examination of this witness, we do not find such corroboration from any of the independent witness and therefore the case appears to have not been substantially proved by the prosecution in any form. It cannot be said that prosecution has proved its case beyond reasonable doubt." 7. The learned Trial Judge has positively come to the conclusion that on the contrary presence of accused No. 1 Mahendra Madhu Ramanbhai itself is in clout and prosecution has not brought any material which can justify or prove even their presence. The another conclusion on the basis of analysis of evidence is that except accused No. 2 has identified one of the deceased no clinching evidence nor any material justifiable in nature as brought by the prosecution and therefore this appears to be a lack of evidence in its complete form and therefore the learned Trial Judge appears to have been constraint to grant the benefit of doubt in favour of the respondents accused. 8. From the analysis of entire evidence on record even the learned Trial Judge has not found favour with the prosecution and it is cardinal principle of criminal jurisprudence that the prosecution has to establish its case beyond reasonable doubt. From the reading of the order passed by the learned Judge, we are of the considered opinion that apparently no error is committed by the learned Trial Judge in giving the benefit of doubt. The perusal of the evidence as a whole does not inspire any confidence in the of prosecution and therefore since the case is put up based upon weak piece of evidence the conclusion arrived at by the learned Trial Judge does not call for any interference. From the record nothing incriminating is found which warrant interference of this Court in exercise of appellate jurisdiction. The First Information Report also indicates that substantial report and analysis has remained undecided, which is reflecting on page-284 of the compilation of the paper-book. The control sand on the sample, T-shirt and on the pent and Madaliya is not having a specific indication of blood stains and therefore so far as present respondents accused are concerned, it appears that no case is made out. The control sand on the sample, T-shirt and on the pent and Madaliya is not having a specific indication of blood stains and therefore so far as present respondents accused are concerned, it appears that no case is made out. We have gone through the evidence of scene of panchnama, the manner in which jeep car has been dismantled on account of blast, there appears to be a very remote possibility of believing presence of accused No. 1 at the spot. In such blast had there been the presence of accused No. 1, he could not have been survived as has rightly been concluded by learned Trial Judge and so far accused No. 2 is concerned, simply because he identified one of the dead body can not automatically connect to the crime and therefore the entire case of prosecution appears to have based on mere probabilities, based upon inferences which have rightly been believed by the learned Trial Judge. In this view of the matter, it is not possible for this Court to discard the evidences and not possible to dislodge the conclusions which have been arrived at. 9. From reading of evidence even we are not in a position to safely come to the conclusion that order under challenge is suffering from vice of non-application of mind or suffering from any legal infirmity or perversity which can result into miscarriage of justice and therefore in the absence of all these factors keeping view the peripheral appellate jurisdiction based upon propositions of law, we are of the considered opinion that no extra ordinary distinguishable features is available which can permit us to reverse the order of acquittal. Therefore keeping in view the following propositions of law laid down on exercise of appellate jurisdiction particularly while dealing with an order of acquittal, we are unable to exercise discretion in favour of the prosecution and therefore we found the State Appeal merit-less. Following are the excerpts which are kept in mind while delivering the present order. "In the decision delivered by the Supreme Court in case of Sureshkumar vs. State of Haryana, (2013) 16 SCC 353 , it was observed that if two views are possible, the High Court should hold in favour of the accused and should not interfere with an order of acquittal. The relevant observations of the decision are reflected in Para. "In the decision delivered by the Supreme Court in case of Sureshkumar vs. State of Haryana, (2013) 16 SCC 353 , it was observed that if two views are possible, the High Court should hold in favour of the accused and should not interfere with an order of acquittal. The relevant observations of the decision are reflected in Para. 55, 56 and 57 which read as under: 55. The second contention is that the High Court ought not to have interfered in the acquittal by the Trial Court. It was submitted that if two views are possible, the High Court should lean in favour of the accused and should not interfere with an acquittal. 56. A few years ago, the law on the subject was culled out from a large number of decisions and summed up in Ghurey Lal vs. State of U.P. (2008) 10 SCC 450 : AIR 2009 SC (Supp) 1318 : 2008 AIR SCW 6598, as follows: "1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law. 2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in grave miscarriage of justice; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive." 57. Learned counsel for Suresh Kumar referred to S. Anil Kumar vs. State of Karnataka, (2013) 7 SCC 219 : 2013 AIR SCW 6180, particularly paragraph 14 of the Report wherein reliance was placed on Rohtash vs. State of Haryana, (2012) 6 SCC 589 : AIR 2012 SC 2297 : 2012 AIR SCW 3318 to conclude that it is "only in exceptional cases where there are compelling circumstances and where the judgment in appeal is found to be perverse, can the High Court interfere with the order of acquittal." In Rohtash it was further observed: "The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan vs. Talevar, (2011) 11 SCC 666 : AIR 2011 SC 2271 : 2011 AIR SCW 3889 and Govindaraju vs. State, (2012) 4 SCC 722 : AIR 2012 SC 1292 : 2012 AIR SCW 1994). In yet another decision in the case of Ramaiah @ Rama vs. State of Karnataka, 2014 (9) SCC 365 , it has been held by Hon'ble Apex Court that if two views are possible on the evidence adduced and the one favourable to the accused has been taken by the trial court, it should not be disturbed as observed in paragraph Nos. 30 and 31. In the case of Upendra Pradhan vs. State of Orissa, 2015 (5) Scale 634 , it has been held by Hon'ble Apex Court that when there are two views culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. Paragraph No. 10 of the said decision reads thus: 10. Taking the First question for consideration, we are of the view that in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. It has been recognized as a human right by this Court. In Narendra Singh and Another vs. State of M.P. (2004) 10 SCC 699 : AIR 2004 SC 3249 , this Court has recognized presumption of innocence as a human right and has gone on to say that: "30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between may be and must be. 31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (See Dhanna vs. State of M.P. and Mahabir Singh vs. State of Haryana and Shailendra Pratap vs. State of U.P.) which had not been adhered to by the High Court. xxx xxx xxx xxx xxx 33. We, thus, having regard to the postmortem report, are of the opinion that the cause of death of Bimla Bai although is shrouded in mystery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld. The decision taken by the Apex Court in the case of V. Sejappa vs. State, 2016 AIR (SC) 2045, wherein the apex Court in paragraph No. 21 observed thus: 21. The decision taken by the Apex Court in the case of V. Sejappa vs. State, 2016 AIR (SC) 2045, wherein the apex Court in paragraph No. 21 observed thus: 21. If the evaluation of the evidence and the findings recorded by the trial court does not suffer from any illegality or perversity and the grounds on which the trial court has based its conclusion are reasonable and plausible, the High Court should not disturb the order of acquittal if another view is possible. Merely because the appellate court on re- appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. In State through Inspector of Police, A.P. vs. K. Narasimhachary, (2005) 8 SCC 364 , this Court reiterated the well settled principle that if two views are possible, the appellate court should not interfere with the acquittal by the lower court and that only where the material on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court. The same view was reiterated in T. Subramanian vs. State of T.N. (2006) 1 SCC 401 ." 10. In the aforesaid circumstances and upon independent look at the evidence on record in co-relation with order passed by the learned Trial Judge, we are of the considered opinion that appeal being required no interference deserves to be dismissed and accordingly the same is dismissed by confirming the judgment and order passed by learned Additional Sessions Judge and 9th Fast Track Judge, Rajpipla dated 04.12.2004 in Sessions Case No. 156 of 2000. 11. The present appeal is dismissed. The judgment and order, dated 04.12.2004, passed in Sessions Case No. 156 of 2000, by the learned Additional Sessions Judge and 9th Fast Track Judge, Rajpipla, is hereby confirmed. Bail bonds, if any, shall stand discharged. Record and Proceedings be sent back to the trial Court concerned, forthwith. Appeal Dismissed.