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2017 DIGILAW 770 (GUJ)

State of Gujarat v. Gulshanben

2017-04-10

A.J.SHASTRI, S.R.BRAHMBHATT

body2017
JUDGMENT : A.J. Shastri, J. 1. The appellant - State has filed the present criminal appeal under Section 378 of the Cr.P.C. against the judgment and order, dated 16.5.2006, passed in Sessions Case No. 3 of 2006, by the learned Additional Sessions Judge, Fast Track Court No. 2, Amreli whereby, the trial court has been pleased to acquit the respondents accused from the charges for which they have been tried. 2. The facts leading to the rise of the case of prosecution is that deceased Salim was the son of accused No. 1 and brother of accused No. 2 and he was mentally unfit and was staying with accused Nos. 1 and 2. It is the case of prosecution that on 14.8.2005 at about 9.00 hours, deceased Salim was behaving in an abnormal manner and was therefore, beaten up by accused No. 1. That accused No. 1 got enraged and caused murder of deceased Salim by throttling and for that, accused No. 2 has helped and subsequently, the dead body of Salim was buried in one corner of the street and thereby, further committed an offence of destroying an evidence. It is further the case of prosecution that both the accused persons in connivance with each other have caused murder and therefore, a complaint came to be lodged at Babara Police Station for the offence punishable under Sections 302, 201 r/w Section 114 of the IPC and the same was registered as I-C.R. No. 69 of 2005. 2.1 Pursuant to the registration of complaint, the investigating officer has recorded statements of witnesses and undertaken requires exercise of process of investigation and having found that sufficient material is collected against the respondents accused, the Investigating Officer filed the charge-sheet before the learned Chief Judicial Magistrate, Amreli for the offence punishable under Sections 302, 201 and 114 of the IPC. 2.3 The learned Magistrate upon receipt of the charge-sheet registered the criminal case but, then, since the same was triable by the court of sessions, in exercise of powers under Section 209 of the Cr.P.C., the case was committed to the sessions which had come up for consideration before the learned Additional Sessions Judge, Fast Track Court No. 2, Amreli and same was registered as Sessions Case No. 3 of 2006. 2.4 Pursuant to the committal order passed by the trial court, the trial court, as stated above, was pleased to frame the charge at Exh. 7 against the respondents accused and their plea has also been recorded. But since the respondents accused have denied the offence being committed, the case was put up for further adjudication. 2.5 The record indicates that with a view to prove the case against the respondents accused, the prosecution has led the evidence in the form of oral as well as documentary evidence in the following manner: table 2.6 After leading the evidence, a closure pursis came to be given by the prosecution and after recording the statement of the accused persons under Section 313 of the Cr.P.C., the case was put up for trial. The trial court had framed the issues for which adjudication is to take place in sessions case and after considering in detail the evidence led by the prosecution and after considering the further statement, the trial court was pleased to pass an order of acquittal and the respondents accused came to be acquitted from the charges for which they have been tried. It is this judgment and order is made the subject matter of present criminal appeal by the appellant - State. 2.7 It appears from the record that leave was granted way back in July, 2008 and the appeal was admitted which has now come up for final hearing after record and proceedings being reached to this Court and hence, it is taken up for final disposal. 3. Ms. Hansa Punani, learned APP for the appellant - State has vehemently contended that the judgment and order passed by the trial court suffers from the legal infirmity and the finding arrived at is perverse to the record. Learned APP has submitted that the prosecution has examined as many as 10 witnesses and produced 14 in numbers the documentary evidence to prove the case beyond reasonable doubt and majority of the witnesses have consistently supported the case of prosecution and therefore, to disbelieve the case is nothing but reflection of clear non-application of mind on the part of trial court. Learned APP has further contended that even if there may not be an eye witness to the incident in question but if the circumstantial evidence is completing the connectivity with the respondents accused about commission of crime then, even if no eye witness, the Court can pass an order of conviction. Learned APP has further contended that the statement of PW-8 - Yunusbhai Kasambhai, who is examined at Exh. 27, ought to have been examined in true perspective and such extra judicial confession could not have been overlooked by the trial court. In fact, that should have been utilized to cull out the truth about the incident in question. Having not undertaken such exercise, the jurisdiction appears to have not been exercised in a just and legal manner. It has also been contended by learned APP that in such a serious incident by way of brief order, an order of acquittal came to be passed and so much so that the judgments which have been cited by learned counsel for the respondents whether applies to the background of present facts, has also not taken care of to deal with and therefore, overall exercise of jurisdiction is establishing that the cursory observation is made just with a view to give a benefit of doubt. In fact, the injuries which have been caused as reflected in postmortem examination, are corresponding with the theory of prosecution which has been substantiated by medical evidence and therefore, there appears to be no germane reason for the trial court to grant a benefit of doubt to the respondents accused and therefore, this exercise of jurisdiction is uncalled for in the background of present facts. Ultimate analysis of the evidence as a whole, learned APP has submitted that the appeal deserves to be allowed and appropriate punishment requires to be inflicted upon the respondents accused. Learned APP has, by referring to deposition of PW-7 - Dr. Chandramaulisingh Raol, who is examined at Exh. Ultimate analysis of the evidence as a whole, learned APP has submitted that the appeal deserves to be allowed and appropriate punishment requires to be inflicted upon the respondents accused. Learned APP has, by referring to deposition of PW-7 - Dr. Chandramaulisingh Raol, who is examined at Exh. 25, submitted that said witness has categorically opined that the death has occurred on account of the injuries which took place on account of strangulation and the other injuries have been explained which are reflecting in postmortem note and therefore, when medical evidence is consistent with the ocular evidence, there was hardly any justifiable reason for the trial court to discard the same to arrive at a conclusion of acquittal and therefore, this being a glaring example of non-application of mind, the order requires interference by this Court even in appellate jurisdiction. Learned APP has further contended that appellate jurisdiction is sufficient wide enough to reanalyze the evidence if exigency arises and this is a fit case in which independent analysis demands to interfere with an order of acquittal. By referring to the evidence, learned APP has ultimately requested the Court to allow the appeal filed by the State. 4. To oppose the stand taken by learned APP, Mr. Ekant Ahuja, learned counsel representing the respondents accused has contended that practically this is a case of no evidence. It has been contended that none of the witnesses have supported the case of prosecution. Learned counsel has further submitted that evidence on record is such laconic in nature which may result in a brief order and therefore, it cannot be said in any way that there reflects non-application of mind on the part of the trial court. Mr. Ahuja, after referring to the charge specifically which has been framed on 20.3.2006, has taken us through the panchnama of scene of offence which has been executed and to establish that panchnama has not been proved by the prosecution, a reference is made to the deposition of PW-2, who has clearly deposed before the trial court that it has not happened that while preparing the panchnama he has accompanied the police and except the signature of him on that panchnama at Exh. 11, no other material has come out from that witness. Similar is the case with respect to discovery panchnama. 11, no other material has come out from that witness. Similar is the case with respect to discovery panchnama. In that also, for strangulating the deceased a rope which has been found and discovered, the said panchnama at Exh. 14 is also not being supported by PW-3-Kiritbhai Mangulbhai, who is examined at Exh. 13 and therefore, it appears from the record as contended by Mr. Ahuja that none of the panch witnesses have supported the case of prosecution and therefore, there is hardly any material available before the trial court to pass an order of conviction and therefore, there appears to be no error committed by the trial court in acquitting the respondents accused. 4.1 In addition thereto, Mr. Ahuja, learned counsel for the respondents accused has further drawn our attention to other PW-6, PW-5 and other panch witnesses, whose evidence is not emerging anything beyond the point which may clearly connect the respondents accused with commission of crime and therefore, as per Mr. Ahuja, no error is committed by the trial court. Learned counsel has further contended that an attempt is made by learned APP to rely upon the extra judicial confession of PW-8. But it has been contended that extra judicial confession is a weak piece of evidence and unless there is strong corroboration to the same, it cannot be utilized solely as a leaver to convict the person and therefore, by contending this, he has drawn our attention to a deposition of PW-8. A brief testimony of this witness is not inspiring any confidence as has been rightly not relied by the trial court. In fact, his testimony is nothing beyond a testimony of hostile witness and therefore, no much reliance is possible as per the say of learned counsel for the respondents accused. Mr. Ahuja has further drawn our attention to deposition of PW-10 - Smitesh Solanki, who is examined at Exh. 33, whose testimony is tried to be relied upon by the prosecution in the trial. Said witness was the In-charge of Babra Police Station at the relevant point of time. Said witness has narrated that PW-8 has stated before him that on account of unsound mind Salim was done away by the respondents accused. 33, whose testimony is tried to be relied upon by the prosecution in the trial. Said witness was the In-charge of Babra Police Station at the relevant point of time. Said witness has narrated that PW-8 has stated before him that on account of unsound mind Salim was done away by the respondents accused. But, to substantiate this, an act of admission before the Investigating Officer, there is no other corroborative evidence which satisfies the Court to believe that chain of circumstance is getting completed in the present case and therefore, Mr. Ahuja has submitted that in the absence of any cogent evidence on record sufficient enough to dislodge the entire conclusion of the trial court, while exercising appellate jurisdiction even if plausible view is possible which view only can prevail, no interference is warranted in the background of present fact and ultimately by contending this, Mr. Ahuja has requested the Court not to allow such acquittal order to be disturbed in exercise of appellate jurisdiction. 5. Having heard the learned counsel appearing for the respective parties and having gone through the material on record and having independently assessed the evidence and compared the same with the conclusion arrived at by the trial court, following circumstances are not possible to be unnoticed. "(1) It appears from the entire record that the case is purely based upon circumstantial evidence and there appears to be not a single eye witness. (2) It is also emerging from the record that none of the panch witnesses either of panchnama of scene of offence or discovery panchnama or seizure panchnama of clothes, no independent material is coming out which would generate the confidence in the case of prosecution. (3) A disturbing surprising feature is also emerging from the record that though the Investigating Officer has sent the material for analysis, on the record of the case FSL report is not produced by the prosecution to even remotely justify the case of prosecution. (4) One solitary circumstance upon which a serious attempt appears to have been made to prove the case beyond the reasonable doubt is the testimony of PW-8. The Investigating Officer in his deposition has made an attempt, who is PW-10, by stating before the court that PW-8 has stated before him that he and another accused have done away with Salim, who was of unsound mine and has been buried in the street. The Investigating Officer in his deposition has made an attempt, who is PW-10, by stating before the court that PW-8 has stated before him that he and another accused have done away with Salim, who was of unsound mine and has been buried in the street. But this appears to be not supported by any other independent version. All the witnesses appear to have turned hostile and have chosen not to support the case of prosecution." 6. In the context of aforesaid circumstance, the reasons which are assigned by the trial court appears to be based upon such evidence which is reflected in the record of the case. It appears that the trial court has in categorical terms observed that witnesses have not supported the case of prosecution and there is nothing incriminating emerging from the record which would hold and connect the respondents accused with actual commission of crime and therefore, when such is the ultimate analysis of the trial court, it appears to this Court also that finding arrived at is a plausible view taken by the trial court. Over and above that, the trial court had an opportunity to see even the demeanor of witnesses and therefore, the ultimately conclusion which has been arrived at is not that much suffers from any infirmity which may completely rule out the view. 7. Even to ensure ourselves further, a comprehensive analysis is undertaken by us and from such analysis also, we have not been posted with any other distinguishable circumstance by virtue of which it can be concluded that only one view is possible to hold the respondents accused guilty. We are mindful of the fact that appellate jurisdiction has its own self-imposed limitations as held by catena of decisions. No doubt, the appellate jurisdiction is wide enough to reassess the entire evidence and come to a different conclusion but, then again a rider is observed by series of decisions that even if another plausible view is emerging the view cannot be substantiated qua that of the view taken by the trial court, more particularly when the trial court had an opportunity to see the demeanor of witness. Simply because another view is possible, it is not open for the appellate court to substitute the view and therefore, with this limitation of exercise of jurisdiction keeping in mind, we are of the considered opinion that there is no such legal infirmity visible from the order which results in miscarriage of justice and therefore, we are of the considered opinion that the order does not require any interference with. The following propositions laid down by the decisions delivered by the Apex Court which we worth to take note of and reproduce hereinafter. 7.1 In the decision delivered by the Supreme Court in case of Sureshkumar v. State of Haryana, s in (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 v. 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. 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. "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 v. State of Karnataka, (2013) 7 SCC 219 : (2013 AIR SCW 6180) particularly paragraph 14 of the Report wherein reliance was placed on Rohtash v. 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 v. Talevar, (2011) 11 SCC 666 : AIR 2011 SC 2271 : 2011 AIR SCW 3889; Govindaraju v. State, (2012) 4 SCC 722 : AIR 2012 SC 1292 : 2012 AIR SCW 1994." 7.2 In yet another decision in the case of Ramaiah @ Rama v. 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. 7.3 In the case of Upendra Pradhan v. 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 v. 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. 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 v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. 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 post-mortem 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. 7.4 The decision taken by the Apex Court in the case of V. Sejappa v. State, reported in 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. v. 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 v. State of T.N., (2006) 1 SCC 401 ." 8. The same view was reiterated in T. Subramanian v. State of T.N., (2006) 1 SCC 401 ." 8. Considering the aforesaid position prevailing on record and based upon comprehensive analysis of entire evidence on record in co-relation with the conclusion arrived at by the trial court, we are of the considered opinion that the judgment and order passed by the trial court is not required to be interfered with keeping in mind the proposition of law on exercise of appellate jurisdiction stated herein before and therefore, in view of this prevailing set of circumstances on record, we are of the considered opinion that no is error committed by the trial court in passing the order of acquittal and therefore, the appeal filed by the State being meritless deserves to be dismissed. 9. The present appeal is dismissed. The judgment and order, dated 16.5.2006, passed in Sessions Case No. 3 of 2006, by the learned Additional Sessions Judge, Fast Track Court No. 2, Amreli, is hereby confirmed. Bail bonds, if any, shall stand discharged. Record and Proceedings be sent back to the trial Court concerned, forthwith. Appeal Dismissed.