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Gujarat High Court · body

2020 DIGILAW 428 (GUJ)

State of Gujarat v. Jadejaa Balvirsinh Ransinh

2020-03-09

A.C.RAO, A.J.DESAI

body2020
JUDGMENT : A.J. DESAI, J. 1. The present appeal under Section 378 of the Code of Criminal Procedure 1973, has been filed by the appellant-State of Gujarat challenging the judgment and order dated 19.01.1994 passed by the Additional Sessions Judge, Jamnagar in the Sessions Case No. 66 of 1992, by which the respondents-accused came to be acquitted for the offences punishable under Sections 302, 333, 201 read with Sections 34 and 114 of the Indian Penal Code (for short “the IPC”) as well as Section 135(1) of the Bombay Police Act. 1.1 Pursuant to the notice issued by this Court, the appeal came to be admitted on 17.09.1994 and bailable warrant came to be issued against the respondents and in response to the same, different advocates filed their appearance for two respondents-accused. 1.2 It has come on record that the respondent No. 1 namely Jadeja Balvirsinh Ramsinh has expired during the pendency of the appeal and therefore, the appeal stood abated against him, so far as the respondent No. 2 is concerned, in response to the bailable warrant recently issued by the Court, learned advocate Mr. R.M. Parmar has filed his appearance and has opposed the appeal on behalf of the respondent no. 2. 2. The case put forward by the prosecution is as under. 2.1 That one Bhikhubha Tapubha Jadeja, an unarmed Police Constable of Aliabada outpost of Panchkoshi “A” Division Police Station, Jamnagar, Buckle No. 1183, lodged an FIR on 09.04.1992 alleging that he alongwith one Jashwantsinh @ Jashubha Udaysinh, who was working as Head Constable and another Police Constable namely, Daamji Aambabhai and Pravinsinh Natubha were carrying out duties as Police Constable at Aliabada outpost in Pachkoshi “A” division Police Station, Jamnagar. On the same day, at around 6 o’clock in the evening, one Senior Police Sub-Inspector of Panchkoshi “A” Division Police Station at Jamanagar, with whom FIR came to be registered, visited Aliabada Police Station and inquired about another accused namely, Girdhar Ala against whom an FIR being I-C.R. No. 54 of 1992 was registered with Panch “A” Division Police Station for the offences punishable under Section 363 and 366 of the IPC and called upon one Harijan Babu Bachu (respondent No. 2 herein). When the PSI inquired with him about the accused Girdhar Ala, he assured that he would supply details about the said accused and thereafter, he left the place. When the PSI inquired with him about the accused Girdhar Ala, he assured that he would supply details about the said accused and thereafter, he left the place. Again the Head Constable Jashwantsinh @ Jashubha Udaysinh (now deceased in the incident) called Babu Bachu to supply information and at that time he informed that he is not aware about whereabouts of Girdhar Ala, however, one Balvir (deceased respondent No. 1 herein) is aware about the same and thereafter, he was permitted to go. 2.2 They waited up to 9.30 and thereafter, Jashubha left the outpost and proceeded towards Habibnagar and the complainant Bhikhubha Tapubha Jadeja was closing the outpost. Meanwhile, he heard some hues and cry and therefore, he reached the place of incident. He found that both the accused had attacked Head Constable Jashubha with pipe, pursuant to which he fell down. At that time, when he raised alarm, number of persons including Vithhalbhai Darji, Bahadursinh Pandya, etc. reached the place and therefore, both the accused ran away from the place of incident. The injured was taken to Government Hospital namely Irvin Hospital, where he was given primary treatment, however, he succumbed to the injuries and immediately, FIR came to be lodged against the accused. 2.3 Investigation was carried out by one Gulabchand Kesar Chaudhary, Circle Police Inspector, Jamnagar, PW-26, Exh.82, who arrested the accused and o completion of investigation had submitted the charge-sheet before the concerned court of Magistrate. The concerned court of Magistrate, having no jurisdiction to try the case, committed the same under Section 209 of the Cr.P.C. to the Court of Sessions Judge, Jamnagar. 2.4 The charge Exh.4 came to be framed against both the accused for the aforesaid offences, which was denied by them and accordingly, the trial proceeded. 2.5 The prosecution examined in all 25 witnesses including Medical Officer, complainant and panch witnesses as well as several witnesses to prove their case. There was no witness examined by the defence side. 2.6 The Sessions Judge, after examining the evidence on record and scrutinizing the depositions of the witnesses, found that the prosecution has failed to establish that present respondents-accused were the attackers and are involved in the offence and therefore, acquitted the accused from the aforesaid charges. Hence, this appeal. There was no witness examined by the defence side. 2.6 The Sessions Judge, after examining the evidence on record and scrutinizing the depositions of the witnesses, found that the prosecution has failed to establish that present respondents-accused were the attackers and are involved in the offence and therefore, acquitted the accused from the aforesaid charges. Hence, this appeal. 2.7 As stated hereinabove, the appeal stood abated qua respondent accused No. 1 and therefore, the Court has dealt with the submissions made by the learned advocates appearing for the respective parties. 3. Mr. L.B. Dabhi, learned Additional Public Prosecutor appearing for the appellant-State of Gujarat, has vehemently submitted that the deceased Jashubha, who was working as a Head Constable, has been brutally killed by the respondents-accused by using iron pipe. He would submit that in the night hours when the deceased was returning to his home from the police station, the respondents-accused, who were waiting on his way having deadly weapons like pipe in their hands, had attacked and gave intensive blows to the deceased, pursuant to which he succumbed to the injuries. By taking us through the Post-mortem note and the relevant medical certificate, he would submit that there were in all 11 external injuries and 3 internal injuries and severe blow on the head, which resulted into death of the Head Constable Jashubha. By taking us through the deposition of Dr. Harimohan Mangal, PW-1, Exh.8, he would submit that the doctor had categorically stated that the injuries found on the head of the deceased are possible by hard and blunt substance like pipe, which was discovered during investigation. He, therefore, would submit that the trial court has committed error in holding that the circle injuries may not be possible by pipe and would create doubt about use of pipe. 3.1 He would submit that the trail court has committed grave error in discarding and in not believing the say of the eye-witness namely, Bhikhubha Tapubha Jadeja, who has been examined as PW-3 at Exh.31. He would submit that it is an admitted position that he alongwith the deceased Jashubha were the last police personnel, who were present in the Aliabada Police Station and in whose presence respondent No. 2 was called for inquiry with regard to another offence who was called twice by Jashubha. He would submit that it is an admitted position that he alongwith the deceased Jashubha were the last police personnel, who were present in the Aliabada Police Station and in whose presence respondent No. 2 was called for inquiry with regard to another offence who was called twice by Jashubha. He was called second time by Jashubha for inquiry about another accused namely, Girdhar Ala and having not received any information, though he was permitted to leave the police station, he alongwith the deceased respondent No. 1 were waiting in the street from which the deceased used to travel to reach his home. He would submit that when the said witness Bhikhubha Tapubha Jadeja heard some noise, he immediately reached the place where he found these two persons in the light of electric pole and when he raised the alarm, both of them have left the place and he had seen them running away from the place. He would submit that the trial court ought to have believed his presence at the place of incident. He would submit that the trial court has committed error in holding that his presence is doubtful since he was not involved and no blood stains were found on the clothes of the said witness. He would submit that the trial court has also committed error in giving too much importance to the history recorded by Dr. Arvind Ranchhodbhai Namsa, PW-19, Exh.66, who has recorded that someone has attacked the injured. He would submit that when a person is in serious condition, he is not expected that a detailed history is required to be given including referring the names of the attackers. He, therefore, would submit that by not examining those witnesses who alleged to have immediately came at the place of incident itself would not fetter the case of prosecution. He, therefore, would submit that the appeal be allowed and the judgment and order of acquittal be quashed and set aside. 4. On the other hand, Mr. R.M. Parmar, learned advocate appearing for the respondent No. 2, would submit that the trial court has committed no error in acquitting the respondents-accused. He would submit that it has come on record that neither the deceased Jashubha nor the so-called eye-witness Bhikhubha Tapubha Jadeja, PW-3, Exh.31, who were Head Constables, were found in uniform. On the other hand, Mr. R.M. Parmar, learned advocate appearing for the respondent No. 2, would submit that the trial court has committed no error in acquitting the respondents-accused. He would submit that it has come on record that neither the deceased Jashubha nor the so-called eye-witness Bhikhubha Tapubha Jadeja, PW-3, Exh.31, who were Head Constables, were found in uniform. By taking us through the cross-examination of Bhikhubha Tapubha Jadeja, he would submit that he admitted that neither the deceased Jashubha nor he himself were in police uniform. He would submit that he has admitted that he had seen this accused running away from the place in the light of electric pole, however, has also admitted that unless any person travels to a particular distance since there was a corner, the incident could not be seen where the same had taken place. He, therefore, would submit that his immediate presence is doubtful. He would submit that PW-3 has admitted that the deceased was taken to Government hospital in a serious condition and there was pool of blood, however, no blood stains have been found on the clothes of the said witness or any other witness since all of them had travelled in a vehicle by which the injured was taken to the hospital. This would create doubt about the presence of the said witness. He would submit that apart from this witness, the prosecution has failed to establish the case by examining the other so-called eyewitness. He would submit that the trial court has rightly held that there was no animosity between the accused and the deceased Jashubha and therefore, the prosecution has failed to establish even the motive behind this incident. 5. We have heard the learned advocates appearing for the respective parties and perused the documentary evidence as well as scrutinized the oral evidence of several witnesses and the reasonings on the judgment and order under challenge. We have also seen the map, Exh.22, prepared by the Circle Officer of Revenue Department. It is an admitted position that the complainant namely, Bhikhubha Tapubha Jadeja is a Police Constable and is working with the police department since last 15 years from the date of incident. We have also seen the map, Exh.22, prepared by the Circle Officer of Revenue Department. It is an admitted position that the complainant namely, Bhikhubha Tapubha Jadeja is a Police Constable and is working with the police department since last 15 years from the date of incident. If the FIR is perused, he has not stated that there were electric poles and has seen the incident in the light of the electric pole which he had improved in his chief examination and the same had been accepted in his cross. 5.1 It is also an admitted position that he has not recorded anything about the visit of CPI in connection with another offence in which one Girdhar Ala was involved. He has stated that the deceased Jashubha left the outpost and thereafter, he was in process of closing the outpost and part of the outpost was closed and at that time, when he heard some noise, he immediately reached the place from where he had seen the respondents-accused giving pipe blow and when he raised alarm, they left the place. He has also categorically stated that one Vithalbhai Darji, Bahadursinh another Pandyaji and one Rajesh Natvarlala had also reached the place and had seen the incident, however, the prosecution has not examined Vithalbhai Darji, Bahadursinh and Pandyaji, however, has examined one Rajesh Natvarlal, however, he has not supported the case of the prosecution. Only the prosecution can explain why they had dropped those witnesses who claimed that they had seen the alleged incident. The cross-examination of the said witnesses reveals that the injured was taken in a vehicle including number of persons, however, no blood stains of the deceased have been found on any of those witnesses. It is also surprising that the police officer who is working in the department since last 15 years, has not disclosed the name of the accused who allegedly assaulted the injured when they met Dr. Arvind Ranchhodbhai Namsha. If Exh.67 i.e. medical case papers showing history is seen, the name of the complainant is recorded with his buckle number, however, he has disclosed that someone has attacked the deceased. Even an ordinary person, if he is aware about the names of the attackers, would ordinarily give the names such attackers. Arvind Ranchhodbhai Namsha. If Exh.67 i.e. medical case papers showing history is seen, the name of the complainant is recorded with his buckle number, however, he has disclosed that someone has attacked the deceased. Even an ordinary person, if he is aware about the names of the attackers, would ordinarily give the names such attackers. This witness Bhikhubha Tapubha, who had not disclosed any information about the attackers, and that first time the names of the present respondents were disclosed when the FIR was recorded. Apart from this aspect, whether the lights in the area were on or not is also doubtful, and more particularly, in view of the deposition of photographer namely, Nikhil Chichia, who has been examined as PW-22, Exh.73, has stated that one has to travel in two directions to witness the incident since there is a corner between the police station and the place of incident. The reference of electric pole has surfaced when panchnama was prepared and therefore, there is improvement in the deposition of so-called eye-witness. 5.2 All these aspects have been considered by the trial court in detail, which we find correct one and therefore, no interference is called for by this Court and that too in an acquittal appeal when two views are possible. 5.3 At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani vs. State of Kerala and Another, (2006) 6 SCC 39 , the Hon’ble Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In Para-54 of the decision, the Hon’ble Apex Court has observed as under: “54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. In Para-54 of the decision, the Hon’ble Apex Court has observed as under: “54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.” 5.4 Further, in the case of Chandrappa vs. State of Karnataka, (2007) 4 SCC 415 the Hon’ble Apex Court laid down the following principles: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, 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. 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. (5) 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.” 5.5 Thus, it is a settled principle that while exercising appellate power, even 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. 5.6 Even in a recent decision of the Hon’ble Apex Court in the case of State of Goa vs. Sanjay Thakran and Another, (2007) 3 SCC 75, the Hon’ble Apex Court has reiterated the powers of the High Court in such cases. In Para-16 of the said decision the Hon’ble Apex Court has observed as under: “16. From the aforesaid decisions, it is apparent that 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. 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 any of the accused is connected with the commission of the crime he is charged with.” 5.7 Similar principle has been laid down by the Hon’ble Apex Court in the cases of State of Uttar Pradesh vs. Ram Veer Singh and Others, 2007 AIR SCW 5553 and Girja Prasad (Dead) by LRs. vs. State of M.P. 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled. 5.8 It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Hon’ble Apex Court in the case of State of Karnataka vs. Hemareddy, AIR 1981 SC 1417 , wherein it is held as under: “......This court has observed in Girija Nandini Devi vs. Bigendra Nandini Chaudhary, (1967) 1 SCR 93 : AIR 1967 SC 1124 that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.” 5.9 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence at length is not necessary. 5.10 Considering the decision of the Hon’ble Apex Court in the case of Muralidhar alias Gidda and Another vs. State of Karnataka, AIR 2014 SC 2200 conjointly with the facts of the case on hand, in our opinion the said decision would be applicable to the facts of the case on hand. The Hon’ble Apex Court in paragraph no. 5.10 Considering the decision of the Hon’ble Apex Court in the case of Muralidhar alias Gidda and Another vs. State of Karnataka, AIR 2014 SC 2200 conjointly with the facts of the case on hand, in our opinion the said decision would be applicable to the facts of the case on hand. The Hon’ble Apex Court in paragraph no. 12 of the said decision has observed as follows: “12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu, Madan Mohan Singh, Atley, Aher Raja Khima, Balbir Singh, M.G. Agarwal, Noor Khan, Khedu Mohton, Shivaji Sahabrao Bobade, Lekha Yadav, Khem Karan, Bishan Singh, Umedbhai Jadavbhai, K. Gopal Reddy, Tota Singh, Ram Kumar, Madan Lal, Sambasivan, Bhagwan Singh, Harijana Thirupala, C. Antony, K. Gopalakrishna, Sanjay Thakran and Chandrappa. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court. (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal. (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified. (iv) Merely because the appellate court on re-appreciation and reevaluation 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. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.” 5.11 We are, therefore, of the considered opinion that the findings recorded by the trial Court in acquitting the accused of the charge levelled against them are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are in complete agreement with the reasonings given and the findings arrived at by the trial Court. No interference is warranted with the judgment and order of the trial Court. Even otherwise, It is well settled principle of law that the appellate Court shall be reluctant to interfere with such judgment of acquittal unless the Court finds it contrary to evidence or palpably erroneous or the view which has been taken by the Trial Court, could not have been taken by the Court of competent jurisdiction while dealing with the appeal against acquittal, the Court keeps in view the position that the presumption of innocence in favour of the accused, has been fortified for its acquittal. The golden rule is that the Court is obliged and may not abjure its duty to prevent miscarriage of justice where interference is imperative and the ends of justice was required and it is essential to appease the judicial conscience. Hence, the trial Court having committed no error in acquitting the respondents accused for the offences punishable under Sections 302, 333, 201 read with Sections 34 and 114 of the IPC as well as Section 135(1) of the Bombay Police Act, it does not warrant any interference of this Court in exercise of appellate jurisdiction. 6. In view of the aforesaid discussion, present appeal fails and is dismissed accordingly. 6. In view of the aforesaid discussion, present appeal fails and is dismissed accordingly. The impugned judgment and order of acquittal dated 19.01.1994 passed by the Additional Sessions Judge, Jamnagar in the Sessions Case No. 66 of 1992, is hereby confirmed. Bail bond, if any, shall stand cancelled. Registry to return the R&P, if any, to the trial court forthwith.