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2022 DIGILAW 499 (GUJ)

State Of Gujarat v. Patel Nanjibhai Devrajbhai

2022-04-11

S.H.VORA, SANDEEP N.BHATT

body2022
JUDGMENT : SANDEEP N. BHATT, J. 1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 30.11.1994 passed by the learned Additional Sessions Judge, Amreli in Sessions Case No.27 of 1990 for the offences under sections 307, 147, 148 & 149 of Indian Penal Code, 1860 and Section 135 of Bombay Police Act, the applicant – State of Gujarat has preferred this appeal as provided under section 378 of the Code of Criminal Procedure, 1973 (“the Code” for short) inter alia challenging the judgment and order of acquittal in favour of the respondents accused. 2. The case of the prosecution is that, on 30.11.1989, injured Bhimjibhai was going to give Rs.3,000/- to Himmatbhai Naranbhai and the complainant – Ashokbhai Bhimjibhai was also going for factory. When the complainant - Ashok Bhimji reached to the factory, he came to know from the workers that the accused were beating Bhimjibhai. Therefore, the complainant rushed towards there. He has seen that the accused were armed with stick, pipe and spade and beating Bhimjibhai. Due to that, Bhimjibhai received injuries. Thereafter, the accused had run away from the scene of offence. As the injured was unconscious, he was shifted to the hospital. The dispute is for the land. Thereafter, the complainant lodged the complaint with regard to the incident before the Amreli Rural Police Station, which was registered as M. Case No.21 of 1989 for the offences under sections 307, 147, 148 & 149 of Indian Penal Code, 1860 and Section 135 of Bombay Police Act 3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence in form of medical evidence and drawn various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the respondent accused, charge-sheet came to be filed in the Court of learned Chief Judicial Magistrate, Amreli. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Judge, Amreli as provided under section 209 of the Code. 4. Upon committal of the case to the Sessions Court, Amreli, learned Sessions Judge framed charge at Exh.1 against the respondents- accused for the aforesaid offence. The respondents - accused pleaded not guilty and claimed to be tried. 5. 4. Upon committal of the case to the Sessions Court, Amreli, learned Sessions Judge framed charge at Exh.1 against the respondents- accused for the aforesaid offence. The respondents - accused pleaded not guilty and claimed to be tried. 5. In order to bring home charge, the prosecution has examined 11 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 3 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 his explanation/answer as provided u/s 313 of the Code. In the further statement, the respondents - 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. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondent accused of the offences, for which he was tried, as the prosecution failed to prove the case beyond reasonable doubt. 7. We have heard learned APP Ms. Shah appearing for the applicant State and have minutely examined the documentary evidence provided to us by learned APP during the course of hearing. Ms. Shah, learned APP has argued that the trial Court has committed error in acquitting the accused and also relied on the judgment in the case of State of Uttar Pradesh versus Naresh reported in 2011(4) SCC 324 in support her contention that the injured witness should be believed. 8. We have gone through the proceedings of the present appeal and record of the trial Court, where it is found that respondent No.2 – Kalabhai Devrajbhai Patel has expired on 26.11.2004 and respondent No.3 – Nagjibhai Devrajbhai Thumar has expired on 29.01.2015 and therefore, the present appeal is abated qua respondent Nos.2 and 3. It is also reveals from the report submitted by the police to the learned APP that respondent No.1 – Nanjibhai Devrajbhai Patel is presently aged about 95 years old and is bedridden. 8.1 The basis of the offence seems to be the land dispute. 8.2 The dispute is between the cousin brothers. 8.3 The injured is Bhimjibhai. The complaint is lodged by son of Bhimjibhai i.e. Ashokbhai. 8.1 The basis of the offence seems to be the land dispute. 8.2 The dispute is between the cousin brothers. 8.3 The injured is Bhimjibhai. The complaint is lodged by son of Bhimjibhai i.e. Ashokbhai. 8.4 Complainant – Ashokbhai has borrowed Rs.3,000/- from one Himmatbhai Naranbhai before about two months. 8.5 Looking to the deposition of PW-5 – Bhimjibhai Devrajbhai (injured) at Exh.18, it smacks over-implication of the accused. This Court is failed to understand the statement of the injured that when he fell down and shouted, his son – complainant has immediately came there. Has the incident occurred near the house of the injured or how can the accused know that Bhimjibhai will come from there, is the question, which is silent in the deposition of injured – Bhimjibhai. There is material contradiction in the deposition of the said witness also. The witness has stated in his deposition that he was conscious after the incident. 8.6 Further, considering the deposition of PW-6 – Dr. Amir Ul Hak, Medical Officer at Exh.25, it reveals that there were no marks on the forehead or back of the injured. The doctor has, in his cross-examination, admitted that he has taken the history from the injured. He has also stated during his cross-examination that there were no major injuries caused to the injured on the head, which resulted to the death. 8.7 Looking to the deposition of the complainant, there were material contradictions. The trial Court has rightly considered the same and observed in the impugned judgment. Further, looking to the deposition of the injured, it does not support the case of the prosecution. 8.8 The trial Court has rightly considered the deposition of the injured vis-a-vis deposition of the Medical Officer and the complaint. The trial Court has observed that the statements made by the injured and the complainant do not corroborate with the medical evidence. 8.9 It is relevant to note that the incident has happened with Bhimjibhai. The complaint is lodged by his son i.e. Ashokbhai. The complainant has stated in the complaint that after the incident, Bhimjibhai was unconscious. The doctor, in his deposition has stated that he has taken the history from the injured at the time of admission. This Court has paused a question that why the complainant has not given proper and true information in the complaint. The complainant has stated in the complaint that after the incident, Bhimjibhai was unconscious. The doctor, in his deposition has stated that he has taken the history from the injured at the time of admission. This Court has paused a question that why the complainant has not given proper and true information in the complaint. Further, if the injured was conscious (as per deposition of the doctor), then why he has not given the complaint at all. 8.10 Further, the trial Court has rightly observed that there are glaring contradictions in the medical evidence as well as depositions of the witnesses. The Hon’ble Apex Court as well as this Court have, in the catena of decisions, held that if there are glaring/material contradictions in the deposition of witnesses and the medical evidence, the benefit of doubt would be given to the accused, which, in the present case, the trial Court has rightly given to the accused keeping in view the judgments in the case of Amar Singh versus State of Punjab reported in AIR 1987 SC 826 and in the case of Bhaval Shiva versus State of Gujarat reported in 1991(2) GLR 1272 . 8.11 Under the circumstances, the learned trial Judge has rightly acquitted the respondents - 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. 9. It is pertinent to note that the prosecution is required to prove the intention or knowledge of the accused persons, however, it is necessary that the prosecution is required to prove the intention or knowledge of the accused persons and it is not necessary that injury capable of causing death should have been inflicted by the accused persons. What is material to attract offense under section 307 of the IPC is the intention or knowledge with which all the acts are done irrespective of its results. In order to attract the offence under section 307 of IPC, we have minutely examined oral evidence and all the prosecution witnesses, we found that nothing is disclosed with regard to intention or knowledge so as to constitute that there is anything on the part of the respondents – accused persons to commit act or attempt to commit murder. In order to attract the offence under section 307 of IPC, we have minutely examined oral evidence and all the prosecution witnesses, we found that nothing is disclosed with regard to intention or knowledge so as to constitute that there is anything on the part of the respondents – accused persons to commit act or attempt to commit murder. In the present case the prosecution has failed to discharge its duty to prove its case beyond reasonable doubt and the Trial Court has rightly acquitted the accused persons by giving benefit of doubt as the case is not proved beyond reasonable doubt. 10. We have minutely scrutinised the entire evidence available on record. Except relying upon aforesaid evidence, no any other direct evidence either oral or documentary is pressed into service to interfere with the findings of the learned trial Court leading to acquittal of the respondents accused. When substantial evidence is lacking to connect the accused with the crime or not brought on record sufficient evidence to establish the guild, other corroborative evidence loses its significance or needs any consideration to upset the findings and therefore, there is no need to overburden the judgment anymore or needs any discussion of such evidence. 11. In view of above and on our own analysis and reappreciation of the evidence, we do not find any infirmity or compelling reasons to interfere with the order of acquittal recorded by the trial Court. We have also perused the judgment and findings given by the trial Court and find that the same are in accordance with law. 12. 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. 13. 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. 13. 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." 14. 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 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. 15. 15. In the very recent judgment reported in 2021 (15) SCALE 184 in the case of Mohan @ Srinivas @ Seena @ Tailor Seena V/s. State of Karnataka, the hon’ble Apex Court has observed the scope of section 378 of the Code in Para : 20 to 22 as under :- “20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial Court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal. 21. Every case has its own journey towards the truth and it is the Court’s role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial Court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial Court decides a case on its own merits despite its sensitivity. 22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. Rather it should be appreciated if a trial Court decides a case on its own merits despite its sensitivity. 22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.” 16. 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. 17. In view of the above and for the reasons stated above, the present Criminal Appeal deserves to be dismissed and is accordingly dismissed.