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2022 DIGILAW 439 (GUJ)

State Of Gujarat v. Naranbhai Jitram Patel

2022-03-31

S.H.VORA, SANDEEP N.BHATT

body2022
JUDGMENT : SANDEEP N. BHATT, J. 1. Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 19.12.1998 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No.21 of 1994 for the offences punishable under Sections 302 and 120B of the Indian Penal Code and Section 135(1) of the B.P. Act, the appellant – State of Gujarat has preferred this appeal as provided under Section 378 of the Code of Criminal Procedure, 1973 (for short, “the Code”) inter alia challenging the judgment and order of acquittal in favour of the respondents – accused. The present appeal is abated qua respondent No.1 – Mr. Naranbhai Jitram Patel vide order dated 10.01.2017 passed by this Court. 2. Brief facts of the case are as under: 2.1 On 30.12.1992 at about 06:00 p.m., the deceased and the complainant returned to their home from shopping. While deceased was parking his scooter in his compound, one boy aged about 20 years suddenly came towards the deceased and there was scuffle between them. When the deceased shouted, he ran away. The deceased chased him and again there was scuffle between them. The said boy had given blow to the deceased at left side of underarm and at left abdomen and had run away from the place of incident. The deceased sat near his house. There was lot of bleeding. When the deceased was shouting, Kaushik Tribhovandas Patel, Hiteshbhai, Munno and Arjan Bharwad rushed there and shifted the deceased to the hospital. Ultimately, the deceased succumbed to the injuries. Therefore, the wife of the deceased viz., Pravinaben Mohanbhai has filed a complaint by indicating above facts. 2.2 In pursuance of the complaint lodged by the complainant, the investigating agency recorded the statements of the witnesses, collected the relevant documentary evidence and other relevant evidences for the purpose of proving the offence. After having material evidence against the respondents-accused, charge-sheet came to be filed before the learned Chief Judicial Magistrate, Ahmedabad (Rural). As the said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Ahmedabad (Rural) as provided under Section 209 of the Code. Thereafter, in Sessions Case No.21 of 1994 is tried by the learned Session Court, Ahmedabad (Rural). 2.3 Upon committal of the case to the Session Court, the learned Session Judge framed the charge at Exh.5 against the respondents-accused for the aforesaid offence. Thereafter, in Sessions Case No.21 of 1994 is tried by the learned Session Court, Ahmedabad (Rural). 2.3 Upon committal of the case to the Session Court, the learned Session Judge framed the charge at Exh.5 against the respondents-accused for the aforesaid offence. The respondents-accused pleaded not guilty and claimed to be tried. 2.4 In order to bring home charge, the prosecution has examined 13 witnesses and also produced various documentary evidence before the trial Court, more particularly described in para 5 and 6 of the impugned judgment. 2.5 On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondents-accused so as to obtain their explanation/answer as provided under Section 313 of the Code. In the further statement, the respondents accused denied all the incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them. 2.6 After hearing both the parties and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the accused for the offences punishable under Sections 302 and 120B of the Indian Penal Code, 1860 and Section 135(1) of the B.P. Act, by holding that the prosecution has failed to prove the case beyond reasonable doubt. 3.1 We have heard learned advocate Ms. C.M. Shah, Additional Public Prosecutor for the appellant – State and learned advocate Mr. Nitin Amin for the respondent No.2. Further, respondent No.1 – Mr. Naranbhai Jitram Patel was expired, therefore, criminal appeal qua respondent No.1 stood abated as per the order passed on 10.01.2017. None appears for respondent No.3. We have minutely examined the oral as well as documentary evidence. 3.2 Learned advocate for the appellant has submitted that the trial Court has not properly appreciated the evidence available on record and has committed error in acquitting the accused persons. She has relied on the factum of lie detective test report, where office has opined that the accused are telling lie. Therefore, looking to this circumstantial evidence, the learned judge ought to have convicted the accused persons under Sections 302 and 120B of the Indian Penal Code, 1860 and Section 135(1) of the B.P. Act. Further, she has submitted that the trial Court has not properly considered the circumstantial evidence where the motive was also prima facie found from the past history. Further, she has submitted that the trial Court has not properly considered the circumstantial evidence where the motive was also prima facie found from the past history. Further, she has drawn our attention towards the deposition of PW-5 - Dr.Nirmala Vilkhu, Scientific Officer at Exh.39, where she has stated that the accused are not speaking the truth in the lie detective test. Therefore, she has prayed to allow this appeal by reversing the impugned judgment and order passed by the trial Court. 4. Per contra, learned advocate Mr. Nitin Amin for respondent No.2 would support the impugned judgment passed by the trial Court and has submitted that the trial Court has not committed any error in acquitting the accused. The trial Court has taken possible view as the prosecution has failed to prove their case beyond reasonable doubt. Therefore, he prays to dismiss the present appeal by confirming the impugned judgment and order passed by the trial Court. 5.1 We have independently re-assessed and re-analyzed oral and documentary evidence of the trial Court. We have also heard the submissions made by respective parties. We have gone through the documentary evidence; like P.M. report, F.S.L. report along with the depositions of various witnesses, more particularly the deposition of PW-1 – Pravinaben (widow of the deceased) - the complainant at Exh.26 as well as the deposition of PW-5 – Dr. Nirmala Vilkhu, Scientific Officer at Exh.39. 5.2 Looking to the evidence of the PW- 1 – Pravinaben Mohanbhai – the complainant at Exh.26, she has deposed in her deposition that, the incident has happened at about 7:00 p.m., whereas in the complaint, she has stated that the incident has happened at about 6:00 p.m. Therefore, there is contradiction in the timing of the incident. It is relevant to note that, the incident has happened on 30.12.1992. It was the month of December - Winter. Therefore, at the time of incident, there might be a darkness in the evening. Therefore, it may said that no one can identify the unknown person in the said darkness at 7:00 p.m. 5.3 Further, looking to the deposition of PW-5 – Dr. Nirmala Vilkhu, Scientific Officer at Exh.39, it does not support the case of the prosecution. She has stated that she has not followed the procedure for lie detective test. Therefore, it may said that no one can identify the unknown person in the said darkness at 7:00 p.m. 5.3 Further, looking to the deposition of PW-5 – Dr. Nirmala Vilkhu, Scientific Officer at Exh.39, it does not support the case of the prosecution. She has stated that she has not followed the procedure for lie detective test. Further, she has clearly stated that she has not prepared any questionnaire for the accused in advance. She has also not noted the answers given by the accused. She has categorically stated in her deposition that everyone can feel nervousness at the time of such test and it can be affected psychological in such cases. She has further stated that in such circumstances, there may be a variation in the reading. Under such circumstances and looking to her deposition vis-a-vis considering the entire exercise done by her, the evidence of PW5 does not support the case of the prosecution and it sings differently. 5.4 Further, there was no T.I. parade made by the investigating agency. In the present case, the complainant has stated that one unknown person aged about 20 years has come and told that he has some work with the deceased and he went towards deceased where the deceased was parking his scooter in his compound. When she has heard the shouting of the deceased and the scooter, she rushed towards there and at that time, the said person returned from the incident and the deceased was coming towards her by pressing his hand on the left side chest. Therefore, it can be said that except the complainant, no one has seen that person. The investigating agency has not made any T.I. parade. 5.5 Further, the trial Court has clarified the aspect of motive of the accused. The investigating agency has failed to prove the motive behind the incident of the accused. There was no chain of proving the motive of all the accused. 5.6 Further, except the complainant, no one was present at the time of incident. There was a scuffle between the deceased and one unknown person in the compound of the deceased. Thereafter, again there was scuffle between them outside the house of the deceased. The person who had given blow was trying to run away from the incident after the scuffle in the compound. There was a scuffle between the deceased and one unknown person in the compound of the deceased. Thereafter, again there was scuffle between them outside the house of the deceased. The person who had given blow was trying to run away from the incident after the scuffle in the compound. However, when the deceased had chased him, there was again scuffle between them near the house of the deceased. 5.7 Considering the impugned judgment, the trial Court has recorded that the case of the prosecution is based on the circumstantial evidence, there was no direct evidence connecting the accused with the incident and there was no eye-witness of the incident. Therefore, chain of circumstances is not established by leading convincing evidence. Further, in absence of the direct evidence, it cannot be proved that the accused are involved in the offence. Consequently, the motive of the accused behind the incident does not established. 5.8 Further, if we read the evidence of the complainant vis-a-vis the complaint filed by the complainant, there was no direct evidence against the accused persons. Therefore, in absence of direct evidence and as the present case is based on circumstantial evidence, the trial Court has rightly considered all the evidence on record and passed the impugned judgment. 5.9 Further, the deceased was a principal in the school for many years run by the accused Nos.1 and 2 and other Trustees. The deceased was also one of the Trustees in the said school. There is no dispute about the fact that there were differences between the Trustees about the affairs of the school/trust. However, it cannot be said that the accused persons are involved in the commission of offence. The trial Court has rightly evaluated the facts and the evidence on record. 5.10 In view of above facts and circumstances of the case, in the case of circumstantial evidence, motive behind the commission of offence is required to be proved as important aspect and therefore, in the present case also, motive is not established or proved by the prosecution. The trial Court has rightly evaluated the facts and the evidence on record. 5.10 In view of above facts and circumstances of the case, in the case of circumstantial evidence, motive behind the commission of offence is required to be proved as important aspect and therefore, in the present case also, motive is not established or proved by the prosecution. Therefore, on our careful re-appreciation of the entire evidence, we found that there is no infirmity or irregularity in the findings of fact recorded by learned trial Judge and 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. 6. 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 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. 7. 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." 8. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394 , while dealing with the judgment of acquittal, unless reasoning by the 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 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. 9. 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, 1973 no case is made out to interfere with the impugned judgment and order of acquittal. 10. In view of the above and for the reasons stated above, the present Criminal Appeal No.243 of 1999 fails to prove its case and the same deserves to be dismissed and is dismissed, accordingly.