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2017 DIGILAW 827 (GUJ)

State of Gujarat v. Nathabhai Jasabhai Koli

2017-04-18

A.J.SHASTRI, S.R.BRAHMBHATT

body2017
JUDGMENT : A.J. Shastri, J. 1. The state has preferred present appeal under Section 378 of Code of Criminal Procedure feeling aggrieved by the order of acquittal passed by learned Additional Sessions Judge, Fast Track Court No. 7, Rajkot, in Sessions Case No. 100 of 2005 on 21.06.2006. 2. The case in brief of the prosecution is that the complainant Jivrajbhai Jasabhai is having five brothers and he being the eldest one in the family. It is the case of the complainant that before about 20 years from the date of incident 30 Bighas of agricultural land was partitioned amongst the respondents - accused Nos. 1, 3 and 4, who are brothers of the complainant. But the said partition was not mutated in the revenue record and standing in the name of the mother. On account of this rift, on 16.11.2004, when the complainant and his son and the sister were sitting in their residence armed with deadly weapons, accused Nos. 1, 2 and 3 along with accused Nos. 4, 5 and 6 came to the spot and picked up quarrel with the complainant in respect of ownership of the land. 2.1 It is the case of the complainant that accused No. 1 was armed with axe, accused Nos. 2 and 3 were armed with Dhariya and accused Nos. 4, 5 and 6 were armed with sticks have attacked, wherein accused Nos. 2 and 3 gave Dhariya blow on the head of the complainant. Whereas, accused No. 1 has inflicted axe blow on the head of the complainant on account of which serious injuries were sustained. The son as well as the wife namely P.W. 15 and P.W. 16, Dayabhai and Punaben respectively were intervened to salvage the situation, wherein the accused have also caused injuries to them. On account of which the complainant with the injured persons of the family were immediately taken to Jasdan Hospital for primary treatment, whereupon they were shifted to Civil Hospital, Rajkot. On account of which the complainant with the injured persons of the family were immediately taken to Jasdan Hospital for primary treatment, whereupon they were shifted to Civil Hospital, Rajkot. The complaint came to be recorded at Civil Hospital, Rajkot by the Police Officer, in-charge of police station, and thereby the First Information Report was lodged being C.R. No. I-174/04 for the offences punishable under Sections 307, 324, 323, 452, 143, 147, 148, 149, 504, 506(2) of Indian Penal Code read with Section 135 of Bombay Police Act and the same was registered before Jasdan Police Station recorded by the prosecution witness No. 17 Vaghjibhai Narsinhbhai P.S.O. of Jasdan Police Station. 2.2 This very incident was also a subject matter of cross case which has been lodged as C.R. No. I-173/04 for the offences punishable under Section 323 of Indian Penal Code. The Investigating Officer pursuant to registration of this complaint has carried out the investigation by recording statement of relevant witnesses, have also drawn panchnama of scene of offence, collected the control sand for further analysis and also recorded the statement of Shardaben, Dhayabhai and has executed panchanama of physical condition of the injured witnesses, collected blood stain, cloths as a part of investigation process and after collecting all the necessary material during the course of investigation, a charge-sheet came to be filed before the learned Judicial Magistrate, First Class, Jasdan on 12.01.2005, wherein upon receiving of the charge-sheet the Criminal Case was registered as Criminal Case No. 69/05. 2.3 The said criminal case since was triable by the Court of Sessions in exercise of jurisdiction under Section 209 of the Code of Criminal Procedure, the learned Magistrate was pleased to commit the case to the Court of Sessions which has been thereafter registered as Sessions Case No. 100 of 2005. A cross case was then registered as 101/04. The present appeal is related to the Sessions Case No. 100 of 2005. Resultantly, we dealt with the relevant material in respect of present Sessions Case. It has appeared from the record that Sessions Case No. 100/05 has come up for consideration finally before learned Additional Sessions Judge, Fast Tract Court No. 11 at Rajkot, who upon committal framed the charge against respondents accused vide Exhibit-9 on 21.10.2005. The plea was recorded wherein the respondents accused denied the offence being committed. The case was put up for further process. The plea was recorded wherein the respondents accused denied the offence being committed. The case was put up for further process. Resultantly, the prosecution has led evidences in form of ocular as well as documentary evidence. As many as 20 witnesses have been examined by the prosecution as well as 28 relevant material by way of documentary evidences have been adduced before the Court so as to prove the case against the respondents accused and after submitting such material on record of the case, a closure pursis was given by the prosecution. Resultantly, further statements have been recorded of the respondents accused under Section 313 of the Code of Criminal Procedure. Since, in the further statement also the respondents accused denied the offence being committed, the case was put up for final disposal. Resultantly, the learned Additional Sessions Judge has framed the issues for consideration, after perusal of the evidence on record and after analyzing the material and considering the testimony of witnesses and by way of judgment and order dated 21.06.2006, the learned Additional Judge was pleased to grant benefit of doubt to the respondents accused for the offences for which they have been tried and in respect of Section 323 read with Section 114 of the Indian Penal Code. The benefit of Section 360 of Code of Criminal Procedure came to be granted for probation and the case came to be disposed of. It is this judgment and order passed by the learned Additional Sessions Judge, the State being aggrieved has preferred the present Criminal Appeal. 3. The learned Additional Public Prosecutor, Mr. L.R. Poojari appearing for the State has vehemently contended that the learned Judge has committed a serious error in passing the judgment and order and granting benefit of doubt. Mr. Poojari has contended specifically that with a view to prove the case against the respondents accused, the prosecution has made a serious attempt of giving cogent evidence and in that regard more than 20 witnesses have been examined and several documentary evidences have been led and according to Mr. Poojari the conjoint effect of such, has laid to the situation that prosecution has proved the case beyond reasonable doubt and the learned Judge has failed to appreciate the said evidence, as a result of which such error committed by the learned Judge is required to be corrected. Mr. Poojari the conjoint effect of such, has laid to the situation that prosecution has proved the case beyond reasonable doubt and the learned Judge has failed to appreciate the said evidence, as a result of which such error committed by the learned Judge is required to be corrected. Mr. Poojari has contended that the testimony of witnesses have proved the presence of the respondents accused and the very fact that cross case is lodged with respect to the same incidence and the presence of the accused and the role played by them is unequivocally established on the record of the case which ought not to have been ignored. 4. Mr. Poojari, learned APP, has further contended that the material witnesses' testimony who have been examined closely may be looked into, more particularly, the testimony of complainant as well as injured eye witnesses to the incident in question namely Prosecution Witness Nos. 15 and 16 and this could not have been ignored by the learned Judge and injured witnesses have specifically established the role played by each of the respondents accused. It was not justifiable on the part of the learned Judge to grant benefit of doubt. Mr. Poojari has further contended that the very fact, that the respondents accused armed with deadly weapons jointly came to the spot of the complainant, itself make it clear that the unlawful assembly issue is established on account of the fact that the presence is established beyond reasonable doubt and therefore, the intention of the respondents accused was to commit an offence, as alleged, therefore, the learned Judge has not properly assigned the reason while evaluating the evidence on record and therefore, this being a material error committed by the learned Additional Sessions Judge in analyzing the evidence. It appears from the record that the decisions, which have been relied upon were though relevant, have not been given any cursory look and therefore, the exercise of jurisdiction is vitiated on account of such non application of mind. In addition thereto, Mr. It appears from the record that the decisions, which have been relied upon were though relevant, have not been given any cursory look and therefore, the exercise of jurisdiction is vitiated on account of such non application of mind. In addition thereto, Mr. Poojari, has further contended that the reasons, which are assigned by the learned Judge are not such cogent which may justify the grant of benefit of doubt, even in the peculiar set of circumstance, Section 360 of Cr.P.C. could not have been resorted to and therefore, this being a material evidence exercised in jurisdiction, the order impugned is required to be quashed and set aside. 5. Mr. Poojari has further contended that credence of the injured eye witnesses is established unequivocally by the prosecution and therefore, there was no justifiable reason to ignore such testimony and therefore, when prima facie the material has established the role of each of the respondents accused, the benefit of doubt could not have been given and therefore, considering this overall set of circumstance, Mr. Poojari has requested the Court that it is a fit case in which the appellate jurisdiction deserves to be exercised to set at naught the error committed by the learned Judge. By referring to some of the witnesses' testimony, Mr. Poojari has ultimately requested that the appeal filed by the State be allowed and the order of acquittal be reversed by inflicting appropriate punishment to the respondents accused. 6. To oppose the stand taken by the learned APP, Mr. Manraj A. Barot, learned advocate appearing for the respondents accused, has submitted that the learned Judge has not committed any error in exercising jurisdiction. Learned Judge has dealt with each and every evidence which have been placed for consideration by the prosecution and after considering such evidence of each of the witnesses the ultimate conclusion came to be arrived and therefore, there appears to be no error committed in arriving at the finding. Mr. Learned Judge has dealt with each and every evidence which have been placed for consideration by the prosecution and after considering such evidence of each of the witnesses the ultimate conclusion came to be arrived and therefore, there appears to be no error committed in arriving at the finding. Mr. Barot has further contended that reasons which are assigned, more particularly in paragraph No. 33 of the order, wherein it has been observed that no eye witnesses independent to the incident in question and the prosecution has made an attempt to prove the case with aid and assistance of injured witnesses, who happen to be the near relatives and, therefore, in absence of any independent evidence the conclusion arrived at by the learned Judge cannot be said to be suffer from any infirmity. Mr. Barot has further contended that the only independent witness who has examined by the prosecution is prosecution witness No. 18 whose testimony has rightly not been believed by the learned Judge in view of the fact that he has been declared as turned hostile and there is no other corroborative material to even consider his evidence as a hostile witness and therefore, the conclusion arrived at, as reflected in paragraph No. 33, is just and proper. It cannot be said that any perversity is reflected in the order passed by the learned Additional Sessions Judge. 7. Mr. Barot has further contended that so far as the evidence with respect to complainant and Prosecution Witness Nos. 15 and 16 are concerned, their versions have been minutely considered by the learned Judge and it has been found that it was a simple case of scuffle. On the contrary, the history, which has been given in the Government Hospital, Jasdan that injuries has been caused in view of the scuffle which took place and therefore, learned Judge has not believed the case of Section 307 which has been charged. It has also been found by the learned Judge, as pointed out by Mr. Barot from the evidence that in the preliminary history which has been given in which also though the respondent accused are near relatives no specific names have been given, nor their role have been assigned, nor it has been referred that they were armed with serious weapons like axe, Dhariya, etc. Barot from the evidence that in the preliminary history which has been given in which also though the respondent accused are near relatives no specific names have been given, nor their role have been assigned, nor it has been referred that they were armed with serious weapons like axe, Dhariya, etc. and, therefore, the history which has been given is disclosing no specific role or attribution of the respondents accused and therefore, there is no error committed by the learned Judge in evaluating the evidence. It has also been contended by Mr. Barot that as per the Medical Officer who was examined as Prosecution Witness No. 16, the injuries which have been caused are stated to have been possible by blunt substance and not sharp cutting instrument and therefore, by referring to the testimony of those witnesses in co-relation with the testimony of Medical Officer it has been specifically found by the learned Judge that the story put up by complainant is nothing but an improvement and the reason has also been assigned as to why such improvement has taken place. Learned Judge has consider that such improvement might have been possible on account of the fact that one of the witness is facing a criminal case with respect to an offence of section 376 of Indian Penal Code and therefore, on the basis of overall consideration of the material on record the learned Judge has come to the conclusion that this case is nothing but an improvement and making an attempt to convert a simple case of scuffle in a serious offence of Section 307 and therefore, this being a position the learned Judge has rightly granted benefit of doubt to the respondents accused. 8. Mr. Barot has further contended that the learned Judge upon overall consideration of evidence also found that the question of unlawful assembly has not at all been proved by the prosecution beyond any reasonable doubt and therefore, the learned Judge on the contrary has assigned the probability of scuffle in which stones might have been pelted on each other as stones were found with blood stain and therefore, this case not being the case of Section 307. The learned Judge has passed an order by not believing the story of the prosecution beyond any further and therefore, Mr. Barot has contended that no error of jurisdiction has committed which warrants interference of this Court. The learned Judge has passed an order by not believing the story of the prosecution beyond any further and therefore, Mr. Barot has contended that no error of jurisdiction has committed which warrants interference of this Court. 9. Mr. Barot, has further contended that appellate jurisdiction is no doubt wide power to re-examine the evidence on record to find out the truth, but at the same time even if another view is possible, the same cannot be substantiated in exercise of appellate jurisdiction more particularly while dealing with an order against acquittal when the learned Additional 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 in series of decisions in which such exercise is uncalled for 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. 10. Having heard learned counsel appearing for the respective parties and having gone through the material on record in co-relation with the findings which are arrived at, we are of the opinion that some of the findings which have been arrived at on the basis of analysis are plausible finding on reading of the evidence. The evidence is reflecting that no independent eye witnesses examined to support the case of prosecution and only one independent witness who has been pressed into service by Prosecution i.e. witness No. 18, who has turned hostile and was not supported the case of prosecution. The evidence is also further emerging that looking to the Medical Evidence and ocular evidence there is no consistency, on the contrary weapons which were recovered during the course of investigation have found no blood stain. If this could have been the situation the blood stain might have been found which were immediately referred as a part of Mudamal. The evidence is also further emerging that looking to the Medical Evidence and ocular evidence there is no consistency, on the contrary weapons which were recovered during the course of investigation have found no blood stain. If this could have been the situation the blood stain might have been found which were immediately referred as a part of Mudamal. Yet another circumstance, which cannot be ignored that the Medical Evidence which is led by the prosecution, is revealing the fact that the injuries which have been caused might be possible not account of sharp cutting instruments and the use of sharp cutting instrument, which has been stated, is not getting substantiated by this medical evidence and therefore, when medical evidence and the ocular evidence is not inconsistency, as found from the record, the view which has been taken by the learned Judge is a plausible view. The further evidence on record is revealing the fact that at the scene of offence, the panchnama, which has been carried out, where some stones have been found with blood stain and therefore, the probable belief of the learned Judge is getting substantiated by the fact that it was merely a scuffle and stone pelting incidence between the complainant and the respondents accused. The further circumstance is also required to be taken note of that one of the person from the family Dhayabhai, who is arraigned in the case of Section 376 and therefore, possibly on account of this the exaggeration might have been taking place and the entire version of the complainant as well as the injured eye witnesses have been specifically found as an improvement and that is possible to be believed on account of fact that the medical evidence is not supporting the case of prosecution and therefore, in the fact and circumstance when the view which is taken by the learned Judge to grant benefit of doubt is a plausible view and therefore, sitting in an appellate jurisdiction while dealing with an order against acquittal, we are of the considered opinion that such plausible view is not required to be disturbed. More particularly, when from the entire comprehensive analysis of evidence is not leading towards only one plausible view and therefore we are unable to exercise appellate jurisdiction while dealing with present appeal. More particularly, when from the entire comprehensive analysis of evidence is not leading towards only one plausible view and therefore we are unable to exercise appellate jurisdiction while dealing with present appeal. In so far as, the jurisdiction which has been exercised by the learned Judge in respect of Section 366, there appears to be a proper application of mind for grant of probation. The material which is required to be examined appears to have been examined and therefore, there seems to be no error committed by the learned Judge and the plausible view which has been taken is getting supported by the comprehensive analysis of the entire evidence on record. From the overall reading of the entire evidence, the learned Judge appears to have rightly examined the issue and come to the conclusion and in addition thereto the basic elements of the offences, which have been charged for which trial had been conduced, are not possible to be established and therefore, also it seems that there appears to be no perversity in passing the order of acquittal by the learned Judge. 11. We are mindful of the fact that there are series of decisions delivered by the Apex Court in which it has been propounded that the appellate jurisdiction can be exercised only if there appears to be perversity or any legal infirmity, which results into miscarriage of justice and our comprehensive analysis of evidence is not finding such circumstance exists on record and therefore, we are of the view that in view of following proposition of law taken in for evaluating this appeal, the interference of this Court is not warranting. 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: 11.1 In the decision delivered by the Supreme Court in case of Sureshkumar 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 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 re-appreciate 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. "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. "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). 11.2 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. 30 and 31. 11.3 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. 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 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." 11.4 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. 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 . 12. In view of the aforesaid law laid down by the Apex Court and in view of the conclusion arrived at by the learned Additional Sessions Judge and our independent comprehensive analysis of evidence reflects that in order passed by the trial Court no perversity, no legal infirmity, which has caused any miscarriage of justice, in that view of the matter, we are unable to exercise our discretion. Accordingly, we found no merit in the Appeal filed by the State and the same deserves to be dismissed. 13. The present appeal is dismissed. The judgment and order, dated 21.06.2006, passed in Sessions Case No. 100 of 2005 by the Additional Sessions Judge, Fast Track Court, Rajkot, is hereby confirmed. Bail bonds, if any, shall stand discharged. Record and Proceedings be sent back to the trial Court concerned, forthwith. While parting with this judgment, we may clarify that the observations made by this Court are in the context of Sessions Case No. 100 of 2005 and the same will not have any bearing while examining any other cross case or the case pending before appropriate forum.