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2017 DIGILAW 795 (GUJ)

State of Gujarat v. Rathva Mangabhai Jadubhai

2017-04-12

A.J.SHASTRI, S.R.BRAHMBHATT

body2017
JUDGMENT : A.J. Shastri, J. 1. The present appeal is filed by the State under Section 378 of the Criminal Procedure Code against the judgment and order passed by the learned Additional Sessions Judge, Dhrangadhra, in Sessions Case No. 34 of 2001 on 21st April 2006 whereby the learned Additional Sessions Judge has acquitted the respondents - accused for the offence punishable under Sections 302, 201 and 114 of Indian Penal Code. 2. The case of the prosecution in brief is that on 6th August 2001, the deceased Balabhai Gordhanbhai Koli was assaulted by the accused - persons on account of evading wife of the accused No. 1 i.e. Champaben by the lethal weapons like Paliya and Sanotha and on account of such injuries caused on vital part of the body, the deceased Balabhai Gordhanbhai succumbed to the injuries and after committing such crime, the dead body of victim was thrown at the isolated place near Dhrangadhra-Maliya National Highway. In the night hours in patrolling one Shri Kishorekumar Bhagwanji Jani, A.S.I. of Halvad Town Police Station, found one chhakda rickshaw bearing registration No. GJ-13-T-8065 and upon checking of the same with igniting battery a dead body of unknown person found in an injured position and on account of that the said un-armed A.S.I. Shri Jani, has lodged the complaint for the offence punishable under Sections 302, 201 of I.P.C. 3. The said complaint came to be registered before Halvad Police Station bearing Crime Registration No. I-100/2001 for the offence punishable under Sections-302 and 201. During the course of investigation of the said complaint, it was emerged that prima facie nephew of the respondent-accused was found. Resultantly, the investigation came to be carried-out and upon prima facie finding material against respondent-accused, charge-sheet came to be filed by the learned Magistrate. 4. Since, the incident in question and the offence is triable by the Court of Sessions, in exercise of jurisdiction of Section 209 of the Code of Criminal Procedure, the learned Magistrate was pleased to commit the case to the Court of Sessions and after committal of the said case, the same was registered as Sessions Case No. 34 of 2001 and came for consideration before the learned Additional District and Sessions Judge, Dhrangadhra. Pursuant to the order of committal, the charge came to be framed by the learned Sessions Judge at Exh. Pursuant to the order of committal, the charge came to be framed by the learned Sessions Judge at Exh. 39 on 5th January 2004 against the respondents - four accused persons. The plea came to be recorded of the respondents - accused persons, who denied the offence being committed. Resultantly, the prosecution was given an opportunity to lead the evidence to prove the case. The prosecution with a view to prove the case against the respondents - accused have led the evidence in the form of oral as well as documentary evidence and after closing purshis having been given, the further opportunity was given to respondents-accused and their statement came to be recorded under Section - 313 of the Cr.P.C. In the said further statement, the respondents-accused persons have denied the offence being committed. The case was then put for final adjudication by framing issue as mentioned in paragraph No. 6 of the judgment. 5. On overall analysis of the evidence on record and upon examination of documentary material, the learned Addl. Sessions Judge, Dhrangadhra in exercise of power under Section-235 of the Code of Criminal Procedure was pleased to pass an order of acquittal on 21st April 2006 for the offences for which the respondents-accused persons were tried and it is this judgment and order, which is made subject matter of present criminal appeal 6. The criminal appeal appears to have been admitted by order dated 11th August 2008. 7. Ms. Hansa B. Punani, learned APP for the appellant - State has vehemently contended that the order passed by the learned Addl. Sessions Judge is not in consonance with the material on record and it has been contended that the prosecution has led ample evidence whereby it has been culled-out that the offence is proved by prosecution beyond reasonable doubt. Ms. Punani, further submitted that while passing the order of acquittal, the learned Sessions Judge has not assigned any cogent reasons, which can substantiate the ultimate conclusion. Ms. Punani, further submitted that looking to the ocular evidence as compared to medical evidence, there seems to be no inconsistency and therefore, since the injuries are explained by the prosecution and the medical evidence is supporting the case of the prosecution, there is hardly any justifiable reason available to the learned Addl. Sessions Judge to pass acquittal order and therefore, this bearing a serious error committed by learned Addl. Sessions Judge to pass acquittal order and therefore, this bearing a serious error committed by learned Addl. Sessions Judge, the same is required to be corrected by quashing and setting aside the impugned judgment. 8. Ms. Punani, learned APP further contended that the learned Addl. Sessions Judge ought to have appreciated the two perspectives, the testimony of prosecution witness No. 2 i.e. Kishorekumar Jani, who was examined at Exh. 50 and this witness has specifically deposed that while he was discharging the duty as A.S.I. at Halvad Police station on the way one chhagda rickshaw bearing No. GJ-13-T-8065. was found in which a dead body was found in a pool of blood. The learned Addl. Sessions Judge ought to have appreciated yet another PW-3 Bajubhai Gangaram, who was examined at Exh. 52 wherein from his testimony, it has been found-out that the dead body was identified by these witnesses. It has been contended by Ms. Punani, that the PW-4 Rameshbhai Gordhanbhai has also in his testimony, which recorded at Exh. 53 has supported the case of prosecution and this witness has given an indication about the deceased lastly seen with one of the accused person. The prosecution has also examined yet another PW-5 Hasmukhbhai Valabhai, who was examined at Exh. 54 and according to his testimony, the case of the prosecution is substantiated and therefore, ultimately by referring to these versions of prosecution witnesses, Ms. Punani contended strongly that the prosecution has clearly made-out a case against the respondents-accused and therefore, the learned Addl. Sessions Judge ought to have appreciated these evidence in its true perspective. She further submitted that elaborate discussion is also coming-out from the evidence of Investigating officer which also has clearly pointed-out the injuries given to the deceased and there is a clear error committed by the learned Addl. Sessions Judge in evaluating the evidence on record and therefore, this being a material error committed by the learned Addl. Sessions Judge in analyzing the evidence, the judgment and order passed upon it is required to be quashed and set aside. 9. Ms. Sessions Judge in evaluating the evidence on record and therefore, this being a material error committed by the learned Addl. Sessions Judge in analyzing the evidence, the judgment and order passed upon it is required to be quashed and set aside. 9. Ms. Punani, learned APP further submitted that the burden is already discharged by the prosecution by examining relevant witnesses to prove the case beyond reasonable doubt and therefore, when the case of prosecution has inspired confidence in establishing the case against the respondents-accused persons, the order passed upon inference ought not to have been passed by the learned Addl. Sessions Judge and therefore, this being an error committed by learned Addl. Sessions Judge in granting acquittal to respondents-accused deserves to be corrected. Ms. Punani, further submitted that even if the panchas have not been supported the case of prosecution, but enough material is adduced by investigating officer whereby the recovery panchnama, the other relevant panchnamas have been established and the said material could not have been overlooked by the learned Addl. Sessions Judge and therefore, by summarizing the contention she submitted that this error of exercising jurisdiction deserves to be corrected by setting aside the impugned judgment and order. No other submissions have been made. 10. To oppose the stand taken by the learned APP, Mr. B.H. Solanki, learned advocate with Mr. Bhumit Shah, learned advocate appearing for the respondents - accused has vehemently contended that no error is committed by learned Judge in evaluating the evidence on record. On the contrary, the panchas have not supported throughout the case of prosecution and on the basis of material available on record, it cannot be said that the prosecution has proved the case beyond reasonable doubt. Mr. Solanki, learned advocate has contended that while passing the order of acquittal, the learned Addl. Sessions Judge, has assigned cogent reasons and therefore, such reasons, which are based upon analysis of evidence cannot be said to be irrelevant and therefore, in absence of any legal infirmity in passing the order, no interference is warranted. He further contended that the entire case is based upon the circumstantial evidence and there appears to be no eye witness to the incident in question and therefore, it is obligatory duty on the part of the prosecution to complete and establish the chain of entire circumstance against the respondents - accused. He further contended that the entire case is based upon the circumstantial evidence and there appears to be no eye witness to the incident in question and therefore, it is obligatory duty on the part of the prosecution to complete and establish the chain of entire circumstance against the respondents - accused. When the prosecution has failed to discharge such burden and chain is not getting completed against the respondents-accused, it cannot be said that any error is committed by the learned Addl. Sessions Judge and accordingly he requested the Court not to entertain the appeal filed by the State. 11. Shri Solanki, learned advocate further contended that the panchnama drawn by the Investigating officer have not been established as no panchas have supported the case of prosecution and in addition thereto the evidence and testimony is also not establishing even the discovery of panchnama as is required to be proved in the manner in which as stipulated under Section 57 of the Evidence Act and therefore, in absence of such burden have not been discharged, it cannot be said that any error is committed by the learned Addl. Sessions Judge. He further contended that there is no link connecting the respondents-accused persons with the offence and not established beyond all probability and therefore, the order requires no interference. He further contended that the learned Addl. Sessions Judge has exercised jurisdiction and after application of mind evaluated the evidence on record and upon such comprehensive analysis a subjective satisfaction is arrived at in the form of cogent reason and even if there is any plausible view is available, the same cannot be substantiated in exercise of appellate jurisdiction more particularly when the learned Addl. Sessions Judge has an opportunity to see the demeanor of witness and therefore, looking to the scope of appellate jurisdiction sitting in an appeal against the order of acquittal, some limitations, which are prescribed by catena of decisions must be taken into consideration and ultimately requested that since there is no perversity, no legal infirmity which can result in miscarriage of justice is visible from the order, the order in question is not required to be interfered with and therefore, ultimately a request is made by the learned advocate for the respondents not to interfere and State's appeal may kindly be dismissed. 12. 12. Having heard learned advocates representing for the respective sides and having gone through the entire material on record, more particularly the reasons assigned by the learned Addl. Sessions Judge and our independent comprehensive analysis of evidence reflects that the case is purely based upon the circumstantial evidence. In addition thereto, there is no eye witness available with the prosecution and the majority witnesses have chosen not to support the case of the prosecution. The panchnama of scene of offence, the panchnama of recovery of weapons and clothes have not been established by any of the panch witness and all the panchas have turned hostile and chose not to support the case of the prosecution. We have even perused the relevant material and testimony of prosecution witnesses and from their cross-examination also no distinguishable feature is seen, which can permit us to take any other view, which can be said to be only view available from the record and therefore, looking to the circumstances, which are prevailing on record since the majority prosecution witnesses have not supported the case of the prosecution, it appears that there seems to be no legal infirmity is visible from the order. 13. The record of the case indicates that initially complaint came to be filed against the unknown persons and at a later point of time, during the course of investigation after recording the statement of several witnesses, the arrest of the present respondents-accused came to be made and to substantiate the case against these accused persons, the prosecution has examined several witnesses. But, then except the interested, related witnesses, there seems to be no independent version coming-out to indicate the guilt of the respondents - accused. But, then except the interested, related witnesses, there seems to be no independent version coming-out to indicate the guilt of the respondents - accused. On the contrary, the record indicates that the testimony of PW-10, which is reflecting on page No. 291 of paper-book compilation, out of which a further process was carried-out in which the case was made-out against the present respondents-accused, but this very witness, which heavily tried to be relied upon by the prosecution has chosen not to support the case of the prosecution and therefore, his evidence in the form of testimony is not reflecting any error or contrary material by virtue of which it can be said that the different view is possible and therefore, in the background of aforesaid comprehensive analysis available on record, if we may examine the reasons, which are assigned by the learned Addl. Sessions Judge, we found that the said reasons are based upon the analysis of the evidence available on record and while arriving at a conclusion, we find that the learned Addl. Sessions Judge has taken a sweep to examine each witness's testimony, which is reflecting from a detailed order passed by the learned Addl. Sessions Judge. So much so that even irrespective of fact that the panchas have not supported the case of prosecution, the learned Addl. Sessions Judge has made an attempt to inquired into the aspect of connectivity with the crime of respondents-accused, but then also having found nothing there involving the respondents-accused, the learned Addl. Sessions Judge taken a view not to pass an order of conviction. On the contrary, the recovery has also not proved under Section-27 of the Evidence Act and in view of overall set of circumstance, it is visible and there seems to be no perversity in the reasons assigned by the learned Addl. Sessions Judge. We have gone through the same and the same having been found to be in consonance with the evidence on record in the absence of any perversity or any circumstance, which can said to have committed miscarriage of justice, we are unable to dislodge the finding, which are arrived at by the learned Addl. Sessions Judge more particularly in view of the fact that we are dealing with the order of acquittal. 14. Sessions Judge more particularly in view of the fact that we are dealing with the order of acquittal. 14. We are mindful of the limitations, which are prescribed by catena of decisions in exercise of appellate jurisdiction and some of the decisions delivered by the apex Court are if considered in relation to the reasons, which are assigned by the learned Addl. Sessions Judge, we are unable to interfere with the order passed by the learned Addl. Sessions Judge. We may refer to some of the well defined proposition enunciated by the Supreme Court in respect of exercise of appellate jurisdiction and we deem it proper to incorporate the same in the present judgment which substantiates the conclusion which has been arrived at by us and therefore, same are reproduced hereinafter: 14.1 In another decision delivered by the Supreme Court in case of Suresh kumar v. State of Haryana, reported 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. 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. "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. (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 and Govindaraju v. State, (2012) 4 SCC 722 : AIR 2012 SC 1292 : 2012 AIR SCW 1994)." 14.2 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. 14.3 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. 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. 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. 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." 14.4 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 Nos. 21 and 22 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. 21 and 22 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 ." 15. In view of the aforesaid circumstance and in view of our comprehensive analysis with the entire evidence on record, we consider that the reasons, which are assigned by the learned Addl. Sessions Judge and the conclusion, which has been arrived at is a plausible view and there seem to be no other contrary view possible to dislodge the finding and therefore, keeping in view the peripheral limit of appellate jurisdiction, while dealing with the order of acquittal, we are of the view that there is no legal infirmity or perversity, which can be said to have caused any miscarriage of justice and therefore, in this background of the situation, we are of the view that appeal filed by the State deserve to be dismissed. 16. In the result, the present appeal is dismissed. The judgment and order, dated 21st April 2006 passed in Sessions Case No. 34 of 2001 by the learned Additional District and Sessions Judge, Dhrangadhra is hereby confirmed. Bail bonds, if any shall stand discharged. Record and Proceedings be sent back to the trial Court concerned, forthwith.