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Gujarat High Court · body

2020 DIGILAW 304 (GUJ)

Harijan Virjibhai Arjanbhai v. State of Gujarat

2020-02-18

A.P.THAKER

body2020
JUDGMENT : A.P. THAKER, J. 1. The appellant has filed the present appeal under Section 374 of Criminal Procedure Code, 1973 against the judgment and order of conviction and sentence dated 20.12.2003 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Veraval (hereinafter be referred to as “the Trial Court”) in Sessions Case No. 159 of 1999, whereby the learned Additional Sessions Judge has held the appellant-accused guilty for the offence punishable under Section 335 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment of two years and to pay fine of Rs. 1,000/- and in default to undergo further rigorous imprisonment of two months. 2. Brief facts of the prosecution case is that on 29.11.1992 at about 17.30 hours, the Police Inspector of Una City Police Station received information from one unarmed Police Constable namely Nathabhai Khimabhai that two persons were beating one person on the road near Sugar Factory and the Police Inspector with police staff were reached at the place of occurrence at about 17.40 hours and the Police Inspector found that one person was fallen on the earth and two persons were beating him. It is alleged that the Police Inspector arrested both the persons and sent the injured person to the hospital for medical treatment. It is also alleged that the Police Inspector prepared arrest panchnama as well as the panchnama of the scene of offence in presence of the panchas and the Police Inspector immediately sent the complaint to the concerned Police Station where it was registered. 2.1 It is alleged that when the injured was brought to the hospital, the doctor has treated him and the doctor has also sent telephonic message to the concerned Police Station regarding injured being brought before him for medical treatment. 2.2 After completion of investigation, the police has filed charge-sheet before the concerned Judicial Magistrate First Class for the alleged offences. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions wherein it was registered as Sessions Case No. 159 of 1999 (Old Sessions Case No. 104 of 1994). 2.3 The charge against the accused came to be framed by the Trial Court, vide Exhibit 5 for the aforesaid offence. 2.3 The charge against the accused came to be framed by the Trial Court, vide Exhibit 5 for the aforesaid offence. The accused pleaded not guilty to the charge and pleaded for trial. 2.4 It appears from the record that to prove the case, the prosecution has examined the following witnesses:- PW-1 Noorali Sultan Panch Witness Exh.11 PW-2 Dhanjibhai Lakhabhai Panch Witness Exh.13 PW-3 Dansing Ramsinh Panch Witness Exh.15 PW-4 Amirkha Faridkha Panch Witness Exh.16 PW-5 Jilubhai Kalabhai Panch Witness Exh.18 PW-6 Mahendrasinh Deepsinh Rathod Eye Witness Exh.21 PW-7 Manubhai Virabhai Dodiya Eye Witness Exh.22 PW-8 Mansing Dadubhai Police Constable Exh.23 PW-9 Aadambhai Sidibhai Police Constable Exh.24 PW-10 Ramesh Ranabhai Napera Circle Officer Exh.26 PW-11 V.S. Baria P.S.O. Exh.28 PW-12 Yasin Ajhijhbhai Witness Exh.34 PW-13 H.S. Bodat Police Inspector Exh.35 PW-14 K.V. Jhala Doctor Exh.44 2.5 The prosecution has also produced the following documentary evidence:- S. No. Particulars Exhibit 1 Arrest Panchnama of accused 12 2 Panchnama of scene of offence 14 3 Panchnama of body of injured 17 4 Map (prepared by Circle Officer) 27 5 Copy of FIR 29 6 Note of Station Diary 30 7 Yadi for recording the complaint 31 8 Note of Station Diary 32 9 Yadi from PSO to PI Shri Bodat 36 10 Outward with muddamal 37 11 Entry of forwarding muddamal 38 12 Receipt regarding receiving muddamal 39 13 Outward with Serological report 40 14 Serologist report 41 15 Outward with report 42 16 Analysis report 43 17 Police Yadi 45 18 Outdoor Case Paper 46 19 Indoor Case Paper 47 20 Injury Certificate 48 21 Police Yadi (along with Madhuben Meghji) 49 22 Outdoor Case Paper 50 23 Injury Certificate 51 24 Outdoor Case Paper 52 25 Injury Certificate 53 26 Complaint Mark 35/1 (After Exhibit 58) 58 27 Letter of Judicial Magistrate First Class regarding receiving FIR 59 3. After recording the evidence of the prosecution, the Trial Court has recorded further statement of the accused under Section 313 of the Criminal Procedure Code, wherein also, the accused have denied of having committed any such offence and has stated that they are innocent and also contended that many cases were filed against the complainant on the date of event. After recording the evidence of the prosecution, the Trial Court has recorded further statement of the accused under Section 313 of the Criminal Procedure Code, wherein also, the accused have denied of having committed any such offence and has stated that they are innocent and also contended that many cases were filed against the complainant on the date of event. That the complainant has assaulted the sister-in-law of accused No. 1 and at that time, they were going for medical treatment and in the meanwhile, the injured intercepted and inflicted the iron rod blow on the leg of accused No. 1 and due to that, accused No. 1 took the iron rod from him and inflicted blow to the victim and he was moving the rod in air. It is also contended that he has filed cross-complaint as he has got injury in such scuffle. It is also contended that a false case is filed against them. 4. It is pertinent to note that during the trial accused No. 2 has expired and the victim has also expired. 5. After perusing the evidence on record and considering the submissions made on behalf of both the sides, ultimately, the Trial Court has observed that the offence under Sections, 307, 504 read with Section 114 of the Indian Penal Code are not established. It is further observed that the offence under Section 335 of the Indian Penal Code is proved against the accused and accordingly, he has been convicted for the offence under Section 335 of the Indian Penal Code and sentence came to be imposed as referred to hereinabove. 6. Being aggrieved and dissatisfied with the said judgment and order of conviction, the appellant-accused No. 1 has preferred the present appeal inter-alia contending various points as narrated in the memo of appeal. 7. Heard Mr. Amit Joshi, learned advocate for the appellant and Ms. Shruti Pathak, learned Additional Public Prosecutor for the respondent-State at length. Perused the materials placed on record as well as decisions cited at the Bar. 8. Mr. Amit Joshi, learned advocate for the appellant has vehemently submitted that there is no sufficient evidence to connect the present accused with the alleged crime. He has submitted that the Trial Court has not considered the evidence in its proper perspective and has committed serious error of facts and law in convicting the accused and imposing the sentence upon him. Amit Joshi, learned advocate for the appellant has vehemently submitted that there is no sufficient evidence to connect the present accused with the alleged crime. He has submitted that the Trial Court has not considered the evidence in its proper perspective and has committed serious error of facts and law in convicting the accused and imposing the sentence upon him. While inviting the attention of the Court to the evidence, he has submitted that there was provocation by the injured and he has, initially, inflicted the iron rod on the accused and, therefore, to save his life, the accused has snatched away the iron rod from the deceased. He has submitted that considering the facts that the original victim has died and the entire evidence of the prosecution is based on the version of the two eye witnesses and two police officers, on reading of the entire evidence, it suggests that there is contradiction in the evidence of the police personnel. He has submitted that the so-called eye witnesses have turned hostile and their evidence is not helpful to the prosecution. 8.1 Mr. Amit Joshi, learned advocate for the appellant has submitted that the FIR filed by the Police Inspector cannot be treated as an FIR as prior to that doctor has telephonically sent message to the concerned Police Station regarding scuffle and injury caused to Bhupatbhai Bhurabhai and, therefore, according to the accused, the telephonic message could be treated as an FIR and the alleged purporting FIR filed by the Police Inspector could be considered as statement under Section 161 of the Criminal Procedure Code. While assailing the impugned judgment and order of the Trial Court, he has submitted that in the present case, the police officer, who is complainant, has carried out the investigation and this fact goes to the root of the prosecution case and, therefore, in view of the decision in the case of Megha Singh vs. State of Haryana, (2006) 11 SCC 709 , the conviction rendered by the Trial Court deserves to be interfered with and the same deserves to be set aside and the accused may be acquitted from the charges leveled against him. He has prayed to allow the present appeal. 9. Per contra, Ms. He has prayed to allow the present appeal. 9. Per contra, Ms. Shruti Pathak, learned Additional Public Prosecutor for respondent-State, while reading the entire evidence, has submitted that though two eye witnesses have not supported the case of the prosecution, but the police officers have constantly stated that they have seen the incident which took place and immediately arrested both the accused at the relevant point of time and there is no inconsistency in the evidence of the police witnesses. She has submitted that on reading of the evidence of the police witnesses, it is clearly found that at the time of incident, both the accused and the injured were found at the place of incident and the iron rod was in blood stain condition and blood group of victim is found on it, which has been supported by the report of the FSL. She has submitted that the so-called telephonic message is cryptic in nature and it cannot be treated as an FIR, which fact has been properly appreciated by the Trial Court. It is her version that the Trial Court has properly considered the evidence on record and has committed no serious error of facts and law in exhibiting the FIR tendered by Police Inspector. While referring to the FIR filed by the present accused, who is victim, she has submitted that the injury found on the body of the present accused was simple in nature, whereas, the injury on the body of the Bhupatbhai was serious in nature and the doctor has clearly deposed that the injury on the body of the victim was serious in the nature and there was one fracture also. According to her version, the accused are aggressor and, therefore, the Trial Court has not committed any serious error of facts and law in convicting and imposing the sentence upon the accused. She has submitted that while dealing with the evidence on record, the Trial Court has considered every aspect threadbare and committed no serious error of facts and law in convicting the present accused. She has submitted that the impugned judgment and order of the Trial Court is sustainable in the eyes of law and it does not warrant any interference by this Court. She has prayed to dismiss the present appeal and confirmed the order passed by the Trial Court. 9.1 Ms. She has submitted that the impugned judgment and order of the Trial Court is sustainable in the eyes of law and it does not warrant any interference by this Court. She has prayed to dismiss the present appeal and confirmed the order passed by the Trial Court. 9.1 Ms. Pathak, learned Additional Public Prosecutor has submitted that there is no case of the defence that the police witnesses have any grudge against the present accused, that the police witnesses are the independent witnesses and their evidence is properly believed by the Trial Court. 10. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 11. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. 12. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 13. In the case of Megha Singh (supra), the Apex Court was dealing with the case under the Terrorist and Disruptive Activities (Prevention) Act, 1985 and during the course of the hearing, it was found that the complainant himself has carried out the entire investigation, the Apex Court has observed that such practice should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. On this ground as well as other grounds, the appeal of the accused was allowed by the Apex Court. 14. Now, on perusal of the evidence on record, it clearly transpires that the panchas namely Dhanjibhai Lakhabhai and Dansing Ramsinh have turned hostile and they have not supported the basic version of the prosecution that respective panchnamas were carried out in their presence. 15. It also reveals from the evidence that there are two eye witnesses of the incident namely Mahendrasinh Deepsinh Rathod, PW-6 at Exhibit 21 and Manubhai Virabhai Dodiya, PW- 7 at Exhibit 22. They have clearly denied the factum of having present at the scene of occurrence and have not supported the case of the prosecution and, therefore, they both have been declared hostile by the prosecution and they have been thoroughly cross-examined regarding their statements before the police. However, in such cross- examination also, they have not supported the case of the prosecution. 16. From the evidence of Mahendrasinh Deepsinh Rathod, PW-6 at Exhibit 21, it appears that during the cross-examination on behalf of the accused, he has admitted that the number of cases were filed against complainant-Bhupatbhai and he was headstrong person. He has deposed that the said Bhupatbhai was murdered in 1998. He has deposed that the place, where the offence was occurred, has vehicular traffic constantly. He has deposed that the said Bhupatbhai was murdered in 1998. He has deposed that the place, where the offence was occurred, has vehicular traffic constantly. According to him, the police have come at 6.00 hours and the police have investigated the case, but he did not know about the incident. 17. From the evidence of Mansing Dadubhai, PW-8 at Exhibit 23, it appears that he was Police Constable and at the relevant time, he along with Police Inspector were present at Tower Choki and at that time, at about 17.30 hours, Police Constable Nathabhai Khimabhai came there on his motorcycle and informed them that one person, who came on motorcycle, has informed him that on Gir Gadhada road, two persons were beating a person. According to his version, thereafter, he went to that place and having found two persons beating a person, they rushed to that place and caught hold both and a person was lying on the earth and he was in injured condition and, therefore, he was taken to the hospital in rickshaw. He has deposed that they inquired the name of accused and, thereafter, the muddamal articles were seized from them. He has further deposed that Police Constable Nathabhai Khimabhai has expired during the pendency of the appeal. 17.1 During the cross-examination, he has deposed that the distance between the Sugar Factory and the place of occurrence is just 2.5 to 3 kilo meters and for reaching there 5 to 7 minutes is required. He has admitted that Bhupatbhai was arrested in many cases. He has denied the suggestion that whatever he has stated in chief-examination is not correct. He has denied the suggestion that as the complaint has been filed by the Police Inspector, he is telling lie. 18. On perusal of the evidence of Aamadbhai Sidibhai Sumara, PW-9 at Exhibit 24, it appears that he has narrated the same facts which has been narrated by the Police Constable as referred to hereinabove and has deposed that the statement was recorded by the Investigating Officer. 18.1 During his cross-examination on behalf of the accused, he has deposed that Bhupatbhai was a bootlegger and there were many cases filed against him. He has deposed that no panchnama was prepared at the time, when accused were interrogated to know their names. 18.1 During his cross-examination on behalf of the accused, he has deposed that Bhupatbhai was a bootlegger and there were many cases filed against him. He has deposed that no panchnama was prepared at the time, when accused were interrogated to know their names. He has deposed that the panchnama was prepared by Police Inspector Bodat after the injured was sent to the hospital. He has deposed that he and Mansing went to the hospital and not came to the Police Station in the jeep. He has denied the suggestion that there was complaint filed against Bhupatbhai for the same incident by the victim i.e. present accused and in that case, Bhupatbhai was arrested. 19. From the evidence of Rameshbhai Ranabhai Napera, PW-10 at Exhibit 26, it appears that he has deposed that on 10.03.2003, he was working as Circle Officer in the Office of the Mamlatdar at Una and as per his say, he went to the place of occurrence with the copy of the panchnama. According to him, he has prepared map on the basis of the panchnama which was given to him. He has admitted that the map was prepared by him on 15.10.2003. 20. From the evidence of Vasantbhai Shahbhai Bariya, PW-11 at Exhibit 11, it appears that at the relevant time, he was PSO in concerned Police Station and he has received the complaint of P.I. Shri H. S. Bodat at about 19.45 hours and got it registered and, thereafter, sent the same to the Police Inspector Shri Bodat for further investigation. He has deposed that he has sent the copy thereof to the concerned Court. He has deposed that counter FIR came to be given by the present accused. He has deposed that the FIR given by Police Inspector Shri Bodat is regarding Part-I, C.R. No. I-349/1992 and it has been registered at about 19.30 hours and at that time, Shri B.V. Rathod was PSO. 20.1 During the cross-examination on behalf of the accused, he has deposed that from the station diary dated 29.11.1992, he has stated that there was an entry that the message has been received from the government hospital at 19.00 hours to the effect that one Bhupatbhai aged 25 years resident of Una has come for medical treatment of injury sustained by him in the scuffle and his condition was stable. He has deposed that he did not know as to how the complaint was received by the Police Station. He has admitted that the counter complaint given by accused No. 1 against Bhupatbhai. He has admitted that in that complaint, the time of incident is shown as 17.30 hours. He has admitted that this FIR has been recorded prior to FIR of the Police Inspector Shri Bodat. He has admitted that the Police Inspector has investigated the FIR which he has given. 21. From the evidence of Yasin Ajhijhbhai, PW-12 at Exhibit 34, it appears that at the relevant time, he was plying a rickshaw and in his rickshaw, the injured and two policemen reached to the hospital. 22. On perusal of the evidence of Harjibhai Sukhaji Bodat, PW-13 at Exhibit 35, who was Police Inspector at the relevant time in Una Police Station, it appears that he has narrated the same facts which are narrated by earlier police personnel and has deposed that they have caught hold both the accused and injured was sent to the hospital for medical treatment in rickshaw and, thereafter, he has arrested both the accused and prepared the panchnama thereof. He has deposed that thereafter, he brought both the accused to the Police Station. He has deposed that at the relevant time, he has got his complaint written down at the place of occurrence and sent to the Police Station for registration of the offence. While referring to various panchnamas, which he has prepared during the course of investigation, he has deposed that all these panchnamas were prepared in presence of panchas and as per the dictation of the panchas. He has also deposed that on the same day, he went to the hospital where the injured was taking treatment and at that time as the injured was unconscious, his statement was not recorded and he has recorded the statement of the injured at 8.30 a.m. in the next morning and prepared panchnama of the body of the victim and blood stain clothes were recovered, which the injured had worn at the time of incident. He has deposed that Bhupat Bhura has sustained injury on the head and on various part of his body. While referring to the contradiction occurred in the evidence of the eye witnesses, during the examination of this witness, the contents of police have been brought on record. He has deposed that Bhupat Bhura has sustained injury on the head and on various part of his body. While referring to the contradiction occurred in the evidence of the eye witnesses, during the examination of this witness, the contents of police have been brought on record. 22.1 During his cross-examination, he has deposed that the Nathabhai came at Tower Chowk at 17.30 hours. He has deposed that the place where the incident has occurred was 1 kilometer away from the Tower Chowk and the Sugar Factory and the Petrol Pump were situated at the place of incident. He has denied that it was so happened that when they reached, at the place of occurrence, the accused were caught hold in running position. He has deposed that he has no knowledge as to whether many criminal complaints were lodged against Bhupatbhai for the prohibition offence etc. He has admitted that he cannot exactly say as to who has beaten to whom and he cannot exactly say as to by which weapon the injury was caused. He has deposed that Virji Arjan has sustained injury and injured Virji and Madhuben both were sent to the Civil Hospital for medical treatment. He has admitted that the charge-sheet was led against Bhupat on the basis of the complaint filed by Virji. He has deposed that he has prepared arrest panchnama of Virji, who has sustained injury in his leg. 23. Now, considering the submissions made on behalf of both the sides, it transpires that there is constant stand taken by the accused that by using the iron rod, Bhupat has inflicted injury on him and in his self defence, he caught hold the iron rod and inflicted one blow on the body of Bhupat. It also reveals from the evidence that there is stand taken by the present accused that Bhupatbhai was aggressor and he has started beating. It also reveals from the record that the present appellant was referred to the hospital and the complainant Bhupat was also referred and both have substantial injuries. 24. On perusal of the evidence, it appears that the independent witnesses have not supported the case of the prosecution as well as the factum of panchnama prepared by the Police Inspector in the presence of the panchas are also not supported to the case of the prosecution. 24. On perusal of the evidence, it appears that the independent witnesses have not supported the case of the prosecution as well as the factum of panchnama prepared by the Police Inspector in the presence of the panchas are also not supported to the case of the prosecution. Even on reading the entire evidence of the Police Inspector, it transpires that he has simply stated that he has prepared panchnama at the time of place of occurrence in the presence of the panchas and as per the dictation of the panchas. The Police Inspector has not stated anything else regarding contents of panchnama. As such, when the panchas are not supported the case of the prosecution regarding the preparation of the panchnama, the contents of the panchnama cannot be said to be proved by the prosecution. 25. The entire prosecution case is based on the evidence of police witnesses and the victim Bhupatbhai, who died during the pendency of the case. It also reveals that the Police Inspector Bodat, who has filed the complaint against the accused, has carried out the entire investigation and filed the charge-sheet against the accused. This very fact goes to the root of the prosecution case. However, it is observed that there is no principle of law that the evidence given by the police personnel is to be discarded as a matter of rule. Further, the evidence given by the police personnel cannot be discarded as a matter of rule, but, the rule of prudence requires that the prosecution case should stand corroborated by an independent witness when such evidence can easily be available so as to lend credence to the prosecution case. Now, in this case, this is an admitted fact that the material eye witnesses have not supported the case of the prosecution and as the evidence of the police personnel are not inspire confidence, it is unsafe to rely upon such evidence of the police personnel. It also appears that the condition of the victim was good and he was able to speak and give complaint. However, instead of taking his complaint, the police office have filed the complaint on his behalf. From the evidence in the form of deposition of Dr. K.V. Jhala, it is clearly found that the victim was in good and stable condition. However, instead of taking his complaint, the police office have filed the complaint on his behalf. From the evidence in the form of deposition of Dr. K.V. Jhala, it is clearly found that the victim was in good and stable condition. Had his complaint recorded by the prosecution, the real facts could have been brought on record as his complaint would have direct facts of incident i.e. how the incident has taken place. However, in the present case, the FIR filed by the police personnel is in the nature of hear say evidence. 26. It also reveals from the evidence that prior to filing of the complaint by Shri Bodat, there was already information sent to the Police Station by Dr. Jhala wherein it is specifically stated that the injured Bhupat came to the hospital who has sustained injury during scuffle. Of course, no name of the appellant has been narrated by injured i.e. Bhupat. Thus, the information, which was given by the doctor to the police through telephonic message, is the information regarding cognizable offence. Therefore, the entry of the station diary ought to have been treated as an FIR instead of FIR tendered by Shri Bodat. It is revealed from the material placed on record that the present accused has filed the complaint against the victim for which the charge-sheet was led before the concerned Court. At this juncture, it is pertinent to note that the Police Inspector has admitted that there was injury on the body of the accused and this fact has not been narrated in the FIR filed by Shri Bodat. 27. On close reading and re-appreciating the evidence on record, it clearly transpires that the Investigating Officer himself is not sure as to who was aggressor, whereas, the present accused has clearly stated in the counter FIR that the victim was aggressor and he has started beating him. It clearly transpires that the present accused has given blow to Bhupat as an exercise of his right of self defence. It appears that all these aspects have not been properly considered by the Trial Court and the Trial Court has misread the evidence on record. 28. It clearly transpires that the present accused has given blow to Bhupat as an exercise of his right of self defence. It appears that all these aspects have not been properly considered by the Trial Court and the Trial Court has misread the evidence on record. 28. On re-appreciation of the evidence on record and having gone through the impugned judgment and order, it clearly transpires that the Trial Court has committed serious error of facts and law in convicting the accused and the same deserves interference. 29. In view of the above, the present appeal is allowed. The impugned judgment and order dated 20.12.2003 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Veraval in Sessions Case No. 159 of 1999 is hereby quashed and set aside. The appellant-original accused No. 1 is acquitted, by giving benefit of doubt, from the charges levelled against him for the offence under Section 335 of the Indian Penal Code. Fine, if any, paid by the appellant-accused to be refunded to him. Bail bond, if any, stands cancelled. Record and Proceedings to be sent back to the Trial Court forthwith.