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2022 DIGILAW 433 (GUJ)

State of Gujarat v. Somabhai Rupabhai Nayak

2022-03-31

S.H.VORA, SANDEEP N.BHAT

body2022
JUDGMENT : S.H.Vora, J. 1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 07.10.1998 passed by the learned Sessions Judge, Panchmahals at Godhra in Sessions Case No.76 of 1998, whereby the respondent accused came to be acquitted for the offences under section 302 of Indian Penal Code and under section 135 of Bombay Police Act, the appellant - State has preferred present appeal under section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short). 2. Brief facts of the complaint as per complainant is such that accused Somabhai Rupabhai committed murder of his wife Maliben in his residential house at Village Biliya by causing injuries with the help of handle of Axe and also by smothering and throttling her. It is also alleged in the complaint that respondent accused committed breach of the Notification issued under the provisions of Bombay Police Act. Thus, FIR being C.R.No.I-133 of 1997 came to be registered against the respondent accused for the offence under section 302 of IPC and also under section 135 of Bombay Police Act. 2.1. Facts leading to prosecution case is that deceased Maliben was wife of the accused and daughter of one Mahasukhbhai Rupabhai, who is Uncle of the complainant - Madhubhai Nayak. The complainant resides at Ibrahim Patel's Muvada, behind SRPF Group V's premises at Godhra. As per prosecution case on 13.10.1997, the complainant - Madhubhai had holiday in his Saw Mill and therefore, he was present at his house. At about 11.30 am, he returned from Market and at that time, his Uncle Mahasukhbhai had told him that his daughter Bhuriben and her husband had come to him and had told that Maliben was lying dead in her house and nobody is present in her house. On hearing this, complainant Madhubhai and his Uncle Mahasukhbhai along with Ramjibhai Rupabhai and Jagabhai went to Village Biliya at about 6.00 pm. and saw Maliben lying in her house and she was dead. It is also say of the complainant in the complaint that accused used to quarrel with the deceased often and therefore, the accused must have committed murder of Maliben. 3. and saw Maliben lying in her house and she was dead. It is also say of the complainant in the complaint that accused used to quarrel with the deceased often and therefore, the accused must have committed murder of Maliben. 3. In pursuance of the complaint being C.R.No.I-133 of 1997 lodged by the complainant with the Shehra Police Station for the offence under sections 302 of Indian Penal Code and also under section 135 of Bombay Police Act, the investigating agency recorded statements of the witnesses, drawn panchnama of scene of offence, discovery and recovery of weapons and obtained FSL report for the purpose of proving the offence. After having found sufficient material against the respondent accused, charge-sheet came to be filed in the Court of learned JMFC, Lunawada. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Panchmahals at Godhra as provided under section 209 of the Code. 4. Upon committal of the case to the Sessions Court, Panchmahals at Godhra, learned Sessions Judge framed charge at Exh.3 against the respondent accused for the aforesaid offences. The respondent accused pleaded not guilty and claimed to be tried. 5. In order to bring home charge, the prosecution has examined 8 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 7 of the impugned judgment and order. 6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent accused so as to obtain explanation/answer as provided u/s 313 of the Code. In the further statement, the respondent accused denied all incriminating circumstances appearing against him as false and further stated that he is innocent and false case has been filed against him. 7. We have heard learned APP Ms. Shah for the appellant - State and minutely examined oral and documentary evidence adduced before the learned Trial Court. It appears that death of the deceased was homicidal and having regard to the evidence adduced in this regard, we also found that death of the deceased was homicidal and it was neither accidental nor suicidal. It is submitted by learned APP that there were quarrels between the accused and his wife since 18 years and she used to go to her parents house because of such disputes. It is submitted by learned APP that there were quarrels between the accused and his wife since 18 years and she used to go to her parents house because of such disputes. Such fact is brought on record through evidence of brother of the accused viz. Fatabhai Rupabhai examined as PW - 3 at Exh.11. It is submitted by her that since accused and deceased were residing together, it is the duty of the accused to explain cause of death as per section 106 of The Indian Evidence Act because it is within special knowledge of respondent accused as to how deceased sustained injuries. The learned APP has relied upon discovery of Axe having blood on it, but as per Serological report, no any definite opinion was offered and thus, Serological report remains inconclusive/indecisive. At the end, she urged to reverse the order of acquittal. 8. Learned APP has also referred to deposition of complainant - Madhubhai, who happens to be cousin brother of deceased Maliben. It appears that complainant lodged complaint on assumption based on frequent disputes between the deceased and respondent accused. On the fateful day, PW-3 Fatabhai who happens to be brother of the accused had gone for labour work and had returned at about 4.00 pm and thereafter, he had gone to the house of accused. Respondent accused instructed deceased to give food and at that time, deceased began to shout and told that she had not prepared meals and it was not possible to serve food. Therefore, respondent accused became angry and began to quarrel with the deceased and inflicted blow with the handle of the Axe, which was in his hands and thereafter, said witness Fatabhai left house. In the evening time, the respondent accused came to the place of residence of PW-3 and told him that he had beaten deceased and therefore, she had died. Thereupon, PW-3 went to the house of the respondent accused and saw deceased Maliben dead. Thus, the prosecution has come forward with the case of direct evidence and evidence based on extra judicial confession. We have found that star witness - PW-3 has turned hostile and did not support the prosecution case. Not only that no any fruitful material is brought on record by cross examination at the hands of learned APP after declaring said witness hostile. We have found that star witness - PW-3 has turned hostile and did not support the prosecution case. Not only that no any fruitful material is brought on record by cross examination at the hands of learned APP after declaring said witness hostile. So PW-3 - Fatabhai who is material witness, who had seen the incident partly and before whom, according to the prosecution case, the respondent accused made extra judicial confession, has not supported the prosecution case at all. 9. It is submission of learned APP that it was accused and accused only who committed crime because deceased and respondent accused were residing together under one roof. Such submission made at bar is also not correct because it is clearly established that parents of the accused were also staying along with them and there is also no evidence that prior to incident deceased was at home and subsequent to occurrence of incident, he left house. On both this count, it cannot be said that accused is sole perpetrator of the crime, merely because death was caused in his house. 10. From the evidence of PW- 1 - Madhubhai, nothing important fact has come on record except that dispute between accused and deceased who was his sister were going on since 18 years. Mere existence of such dispute and in absence of any other direct or indirect evidence brought on record, no inference as to involvement of the respondent accused can be drawn and convicted as canvassed at bar. On the contrary, in the cross examination, PW- 1 has admitted that deceased Maliben had never informed about dispute with accused to them. In absence of direct or indirect evidence, the Court cannot presume or assume that respondent is accused of the offence, merely, because he is her husband and he failed to explain as to how injuries were caused to the deceased. For the sake of repetition, it is to be noted that it is not established that respondent accused was at home prior to incident in question and subsequently, he left the house. It is also not proved by the prosecution that respondent accused and deceased were only residing together. On the contrary, it has come on record that parents of the accused were residing with them. It is also not proved by the prosecution that respondent accused and deceased were only residing together. On the contrary, it has come on record that parents of the accused were residing with them. Therefore, reliance placed by learned APP on the provision of section 106 of The Indian Evidence Act cannot be made applicable to the facts of the present case. The submission made on it is misplaced. Under the circumstances, the learned trial Judge has rightly acquitted the respondent - accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal. 11. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225 ). In the instant case, the learned APP for the applicant has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 12. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280 , Supreme Court has held as under: "The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal." 13. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others v. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another v. State of Madhya Pradesh reported in (2011) 6 SCC 394 , while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view. 14. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal. 15. In view of the above and for the reasons stated above, present Criminal Appeal deserves to be dismissed and is accordingly dismissed.