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Gujarat High Court · body

2017 DIGILAW 925 (GUJ)

State of Gujarat v. Ajij

2017-05-01

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 Code of Criminal Procedure against the judgment and order dated 05.04.2006 passed in Sessions Case No. 62 of 2005, by the learned Additional Sessions Judge, Fast Track Court No. 7, Jamnagar, whereby the learned Judge has acquitted the respondent accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code. 2. The case of the prosecution is that the complainant - Aiyud Hasam Jeda, residing at Bedi, Nizami Chowk, Rashanpara Road, Jamnagar, has given a complaint to the Jamnagar City B-Division Police Station on 17.03.2005 that his nephew namely Anvar Haroon Jeda after finishing his dinner had left for his pan-galla shop for doing business and when he did not return, the complainant came to know that the respondent - accused had come to call Anvar Haroon Jeda (victim-deceased) at his pan-galla shop and Anvar Haroon Jeda had gone with the respondent-accused on the Luna Moped of Anvar Haroon bearing Registration No. GJ-10-E-6434. At that time, Junas Adam was present at the said shop. Even Musa Haroon who had come there to eat pan had also seen Anvar Haroon going with the respondent-accused on the Luna. The complainant himself had also tried to find out Anvar Haroon but all in vain. Therefore, on 17.03.2005 in the morning at 10-45 a.m., Husena, wife of Anvar Haroon had informed the police about the same, wherein she had stated about the fact that Anvar was missing since 09-00 p.m. of 15.03.2005. Thereafter, on 17.03.2005 at about 07-30 to 08-00 p.m., the complainant had come to know that the dead body of his nephew Anvar was found tied on his Luna, which was found in that condition by the L.C.B. Police and Fire Brigade near Valsura Road from the salt producing plant of Halar Salt. 3. The said incident was lodged before the Jamnagar City B-Division Police Station on 17.03.2005, which came to be registered as C.R. No. I-116/2005 for the offences punishable under Sections 302 and 201 of the Indian Penal Code. The said complaint came to be investigated by the Investigating Officer, Mr. 3. The said incident was lodged before the Jamnagar City B-Division Police Station on 17.03.2005, which came to be registered as C.R. No. I-116/2005 for the offences punishable under Sections 302 and 201 of the Indian Penal Code. The said complaint came to be investigated by the Investigating Officer, Mr. V.D. Gohil, who drew the panchnama of the scene of offence, has also collected the Muddamal from the accused and also drawn the arrest panchnama of respondent accused collected material and also drawn the discovery panchnama in which the knife was discovered by the respondent accused and in addition thereto the blood stain clothes have also been recovered and having collected the material in response to the said investigation, he has filed the charge sheet before the learned Judicial Magistrate, 1st Class on 09.06.2005, which was registered as Criminal Case No. 3171 of 2005. 4. Since the learned Magistrate found the case was triable by the Court of Sessions in exercise of jurisdiction under Section 209 of Code of Criminal Procedure vide order dated 24th June, 2005 has passed an order of committing the case to the Sessions, which was then registered as Sessions Case No. 62 of 2005. Pursuant to the said case being transferred to the Court of Sessions, the same had come up for consideration before the learned Presiding Officer and the Additional Sessions Judge, Fast Track Court No. 7, Jamnagar, who framed the charge for the offences punishable under Sections 302 and 201 of the Indian Penal Code vide Exhibit-4 in respect to framing of the charge since readable and made the accused understand about the said charge, the plea was recorded at Exhibit-5 in which the accused has denied the offence being committed and claimed to be tried, the case was put up for further adjudication, whereby the prosecution was given an opportunity to lead the evidences. In respect of this, the prosecution has laid the oral as well as documentary evidences in the following form: 5. After leading the said evidences on record, the closure purshis has been given and also given dropping of witnesses purshis vide Exhibit-80. In respect of this, the prosecution has laid the oral as well as documentary evidences in the following form: 5. After leading the said evidences on record, the closure purshis has been given and also given dropping of witnesses purshis vide Exhibit-80. After the said stage having over, the learned Additional Sessions Judge, Fast Track Court, has given an opportunity to record further statements of respondent accused under Section 313 of Code of Criminal Procedure by virtue of which the respondent accused has denied the offence being committed, therefore, the case was put up for final adjudication whereby the issues came to be framed by the learned Additional Sessions Judge for consideration and after considering the oral as well as the documentary evidences, the learned Additional Sessions Judge, Fast Track Court No. 7, Jamnagar, in exercise of jurisdiction under Section 235 of Code of Criminal Procedure was pleased to grant benefit of doubt to the respondent accused and resultantly the accused was acquitted for the offences for which he has been tried. It is this judgment and order dated 05.04.2006, made the subject matter of present Criminal Appeal filed by the State. 6. The record indicates that the appeal has been admitted in the month of May, 2008 and after the paper book has been received the same has put up for final adjudication before us, wherein the State has been represented by the learned Additional Public Prosecutor, Mr. L.R. Poojari and Mr. Poojari, the learned APP for the State has vehemently contended that the order passed by the learned Judge is not only unjust and perverse, but also clearly reflected the non application of mind. This error, material in nature, is requested to be corrected by quashing and setting aside the impugned judgment and order. 7. Mr. Poojari, learned APP, has further contended that may be that the case is based upon the circumstantial evidence, but the main stinking material is very much laid by the prosecution for establishing the theory of last seen together and that having found the respondent accused was required to be held guilty of the offence, which is committed. It has also been contended by Mr. Poojari that important witnesses have not been property appreciated by the learned Judge, as their testimony have proved the case beyond reasonable doubt and those witnesses are the prosecution witness Nos. 10, 11 and 12. It has also been contended by Mr. Poojari that important witnesses have not been property appreciated by the learned Judge, as their testimony have proved the case beyond reasonable doubt and those witnesses are the prosecution witness Nos. 10, 11 and 12. By referring to the testimony of Mushabhai Haroonbhai, P.W. 10, examined by the prosecution, he has categorically stated that the respondent was seen at the relevant point of time with the victim who had taken the deceased along with him on his Luna Moped and thereafter the deceased did not seen and therefore, this last seen together theory is very much substantiated by the three important witnesses and this testimony of Mushabhai has also been supported by the prosecution witness No. 11 - Junas, who has also reiterated the very same version and such evidence is cogent enough to connect the respondent - accused with commission of crime. There was hardly any reason justifiable to grant benefit of doubt. 8. Mr. Poojari, learned APP, has further contended that there is no adequate reason assigned by the learned Additional Session Judge to grant benefit of doubt. On the contrary, there was no delay in registering the offence because 'Janvajog' entry was very much given by the wife of the deceased and therefore, no delay could be attributed to the case of the prosecution. On the contrary, the reasons, which are reflecting on paragraph No. 20 onwards, are not germane to substantiate the conclusion of granting benefit of doubt and therefore, when the specific oral evidence is emerging of the respondent accused in taking away the deceased along with him and this story of the prosecution has been established beyond reasonable doubt by three important witnesses, there was hardly any material left to the learned Judge to grant benefit of doubt. Simply because the panchnamas have not supported the case of the prosecution, these important witnesses' testimonies could not have been ignored by the learned Judge. 9. It has also been contended by Mr. Simply because the panchnamas have not supported the case of the prosecution, these important witnesses' testimonies could not have been ignored by the learned Judge. 9. It has also been contended by Mr. Poojari that there was an extra judicial confession, which was very much available to support the case of prosecution and therefore, the overall circumstances prevailing on record has connected the link with the respondent accused in commission of crime and therefore, simply because the case is based on circumstantial evidence when the last seen together theory is very much reflecting the role of the respondent accused, the order of acquittal is not germane to substantiate the conclusion of granting benefit of doubt and therefore, as requested, not to allow such order which does not stands in eye of law. No other submissions have been made, but the ultimate prayer is made by the learned APP to reverse the order of acquittal and impose appropriate punishment. 10. To oppose the stand taken by the learned APP, Mr. J.M. Buddhbhatti, learned advocate for Mr. Mahendra Trivedi, learned advocate appearing for the respondent - accused has specifically contended that while passing the order adequate reasons have been assigned by the learned Additional Session Judge and has contended that this is a fit case to grant benefit of doubt. Mr. Buddhbhatti has contended that the case is purely based upon circumstantial evidence and the chain is not getting completed which can cogently connect the respondent accused with crime. Except last seen together theory, there is no other material sufficient enough to prove the guilt against the respondent - accused and therefore, the chain having not been completed, no error is committed by the learned Additional Session Judge in granting benefit of doubt. 11. It has also been contended by Mr. Buddhbhatti that the motive has not been established by the prosecution and there seem to be no adequate explanation available or material sufficient enough to establish the recovery claim of Rs. 5,000/-. On the contrary, when the circumstance revealing that there was no such material except last seen together theory, there was nothing available with prosecution to connect the respondent - accused with the crime. 12. Mr. 5,000/-. On the contrary, when the circumstance revealing that there was no such material except last seen together theory, there was nothing available with prosecution to connect the respondent - accused with the crime. 12. Mr. Buddhbhatti, has further contended that panchnamas, which have been tried to be pressed into service, the said panchnamas and the contents thereof have not been supported by the panch witnesses, who have turned hostile and it has been contended that extra judicial confession is also not possible to rope upon by the prosecution, as the same is very much weak. Mr. Buddhbhatti, has further submitted that the extra judicial confession has got some bearing too at the same time, the same requires some support with other independent witnesses, which is clearly missing in the case on hand. Therefore, in this view of the matter, the benefit of doubt has rightly been given by the learned Additional Session Judge. 13. Mr. Buddhbhatti, learned counsel, has further contended that there was more than sufficient time gap between the date of incident and the date of taken of crime more than 45 hours time has been lapsed and the panchas have not supported even the presence of the respondent accused, has not been believed from the evidence on record, which simply indicates that prosecution has miserably failed in proving the case against the respondent - accused. Mr. Buddhbhatti has further contended that the other aspects of the matter have also not been proved by the prosecution. There is no medical evidence, which is satisfying the theory of prosecution. The F.S.L. analysis report is also not supporting and there is a clear contrast between the ocular evidence and medical evidence, which clearly oust the prosecution for establishing the case even on the basis of solitary circumstance or last seen together theory and, therefore, there appears to be no error committed by the learned Judge in passing the order of acquittal. 14. Mr. Buddhbhatti, has further submitted that discovery panchnama, which has been prepared is not only supported by the panch witnesses, who have turned hostile, but even investigating officer has not established the panchnama, principles enunciated on interpretation of Section 27 of the Evidence Act and, therefore, by no stretch of imagination, it can be said that the prosecution has proved the case beyond reasonable doubt. On the contrary, the entire version, if to be looked into, the same is based on the hear say evidence and, therefore, in absence of any cogent material available on record, the benefit of doubt is rightly been given. 15. Mr. Buddhbhatti, has further substantiated his contention by drawing our attention to the decision delivered by Apex Court in case of State of Goa v. Sanjay Thakran And Another, reported in (2007) 3 Supreme Court Cases 755, and has contended that looking to the scope of appellate jurisdiction while dealing with an appeal against an order of acquittal, this is a fit case in which no exercise of appellate jurisdiction is warranted. There is no distinguishable circumstance to permit the Court to take a different view than what has been taken by the learned Additional Sessions Judge and, therefore, by referring to the said decision, Mr. Buddhbhatti has contended that this is not a fit case in which any interference is warranted and, therefore, ultimately requested the Court that the order passed by the learned Judge is required to be confirmed. 16. Having heard learned advocates representing for the respective sides and having gone through the material on record in the context of the findings which have been arrived at by the learned Additional Session Judge, we are of the opinion that looking to the evidence on record and its comprehensive analysis is not yielding any one solitary conclusion which can substitute the finding arrived at by the learned Session Judge. We are mindful of the fact that while dealing with an appeal against the order of acquittal, even another view if possible, the same cannot be substituted in place of the view taken by the learned trial Judge for the same reason while evaluating the evidence. While evaluating the evidence, the learned trial Judge had an opportunity to see the demeanor of witnesses and therefore, simply because another view is possible the same cannot be a ground to dislodge the finding which have been arrived at. 17. Apart from this, we have gone through the reasons, which are assigned by the learned Judge while appreciating the evidence on record and we found that the motive in the present case is not rightly held to be established. 17. Apart from this, we have gone through the reasons, which are assigned by the learned Judge while appreciating the evidence on record and we found that the motive in the present case is not rightly held to be established. Apart from that the circumstances are also not possible to be established which can connect and complete the chain and, therefore, it appears that the conclusion which has been arrived at is a plausible view. We have also seen the view that even the recovery panchnama appears to have been not proved which circumstance can be, at the best relied upon by the same, is also not established and therefore, the reasons which have assigned by the learned Judge are possible to be arrived at based upon appreciation of evidence. We also found that except last seen together theory which is also not so cogently established, there appears to be a complete contrast in the ocular evidence and the medical evidence and therefore, the view which has been taken by the learned trial Judge is a plausible view, which would not permit us to dislodge the finding arrived at. 18. While coming to this conclusion, we are mindful of the fact about the principles propounded on exercise of appellate jurisdiction, but more so the same which has been brought to our notice in case of State of Goa v. Sanjay Thakran And Another (supra), in which in no uncertain terms which has been propounded by the Hon'ble Apex Court that mere possibility of two views would not be a ground for appellate court to take the view which would upset the decision of the court below and while considering the same the Hon'ble Apex Court has conveyed that if no other only view is possible, then the finding arrived at by the learned trial Judge is normally not to take which would upset the decision. 19. Considering the aforesaid proposition of law, we are of the opinion that this is not a fit case in which the order of acquittal is to be disturbed. More particularly, when the comprehensive analysis is not permitting us to take the only view which can substitute the finding and therefore, we are of the opinion that the appeal requires no interference. More particularly, when the comprehensive analysis is not permitting us to take the only view which can substitute the finding and therefore, we are of the opinion that the appeal requires no interference. We are further mindful of some of the relevant decisions of the Apex Court in respect of exercise of appellate jurisdiction, which has been arrived at by us and therefore, same are reproduced hereinafter: 19.1 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 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. 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. 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). 19.2 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. 19.3 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." 19.4 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 . 20. The same view was reiterated in T. Subramanian v. State of T.N. (2006) 1 SCC 401 . 20. In view of the aforesaid circumstances, which are considered by us and our independent analysis of evidence on record in the context of examining the reasons whether just and proper, we are of the view that no error appears to have been committed rather the view which has been taken by the learned Judge is also a plausible view, which is not required to be substituted and therefore, in view of aforesaid proposition of law as well as the comprehensive analysis of evidence is not permitting us to take a different view or substitute our view qua that of the view taken by the trial Judge and we accordingly found no merit in the appeal and the same deserves to be dismissed. 21. The present appeal is dismissed. The judgment and order, dated 5.4.2006, passed in Session Case No. 62 of 2005, by the learned Additional Sessions Judge, Fast Track Court No. 7, Jamnagar, is hereby confirmed. Bail bonds, if any, shall stand discharged. Record and Proceedings be sent back to the trial Court concerned, forthwith.