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2023 DIGILAW 303 (GUJ)

STATE OF GUJARAT v. DALPATBHAI CHIMANBHAI PATEL

2023-02-14

HEMANT M.PRACHCHHAK, VIPUL M.PANCHOLI

body2023
JUDGMENT : VIPUL M. PANCHOLI, J. 1. The appellant-State has preferred present appeal under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’ for short) challenging the judgment and order of acquittal dated 12.9.1996 rendered by the learned Additional City Sessions Judge, Court No. 13, Ahmedabad in Sessions Case No. 129 of 1992, whereby trial court has acquitted the respondent accused from the charges levelled against him for the offences punishable under Section 302 of Indian Penal Code. 2. The brief case of the prosecution is as under: 2.1 On 24.8.1991 at around 8.00 a.m. in the morning, the respondent accused was doing fencing work near the house of Vijaymal (deceased) and therefore, deceased informed accused to stop the fencing work. This refusal converted into exchange of words between the respondent accused and the deceased and thereafter, the respondent accused attacked on Vijaymal (deceased) with a spade and had inflicted the blow on the head of Vijaymal (deceased). The said attack resulted into the death of Vijaymal. 3. One Ganesh Yadav filed a complaint before the Sardar Nagar Police Station, wherein he has stated that one Ramnath informed him at about 10.00 a.m. that Vijaymal had been attacked by one Dalpat and he was lying near his house in bleeding condition. Therefore, the said Ganesh Yadav reached to the spot where Vijaymal was lying in bleeding condition. He, therefore, took injured Vijaymal to Police Station, whereas, P.S.I. Mr. Oza recorded a complaint of Ganesh Yadav and the injured was sent to the hospital with the yadi. It is the case of the prosecution that as injured was in unconscious condition, his dying declaration could not be recorded and about 20 hours, the injured has succumbed to the injuries. 4. After registration of the FIR, the Investigating Agency carried out the investigation and recorded the statement of the witnesses and prepared various panchnamas. After investigation was over the Investigating Officer filed charge-sheet against the respondent accused before the concerned Magistrate Court. However, the case was exclusively triable by the Court of Sessions, the concerned Magistrate committed the case to the Sessions Court, Ahmedabad where the case was registered as Sessions Case No. 129 of 1992. 5. During the course of the trial, the prosecution had examined seven witnesses and produced documentary evidence, as observed in paragraph No. 6 of the impugned judgment and order. 5. During the course of the trial, the prosecution had examined seven witnesses and produced documentary evidence, as observed in paragraph No. 6 of the impugned judgment and order. After the prosecution's evidence was over, further statement of accused was recorded under Section 313 of the Code. Thereafter, the trial court, after considering the oral as well documentary evidence led by the prosecution, passed impugned judgment and order of acquittal and therefore, the State of Gujarat has preferred present appeal against acquittal of the respondent accused. 6. Heard learned APP Mr. Chintan Dave for the appellant-State and learned advocate Mr. Jitendra M. Buddhbhatti, for the respondent-accused. 7. Learned APP Mr. Dave, has mainly relied upon the deposition given by two eye-witnesses i.e. PW-2 Jay Prakash Yadav Exh.9 and PW-6 Mamtaben Ramnath Siligram Exh.24. 7.1. Learned APP submitted that both the aforesaid eyewitnesses have fully supported the case of the prosecution. He further submitted that both the eye-witnesses have specifically narrated in their depositions given before the Court, the manner in which the incident took place and the weapon used by the respondent accused, while committing the crime. It is further submitted that the weapon ‘spade’ was discovered at the instance of the respondent accused and the panch witness of discovery panchnama has also supported the case of the prosecution, inspite of that the trial court has wrongly discarded the deposition given by the said two eye witnesses as well as the panch witness. 7.2 At this stage, learned APP has also referred the deposition given by PW-1 Dr. Pratik Patel Exh.7, who has conducted the postmortem of the deceased. It is submitted that the prosecution has proved beyond reasonable doubt that the death of the deceased Vijaymal was an unnatural death and the injury sustained by the deceased could be possible by weapon ‘spade’ which was discovered at the instance of the respondent accused. Learned APP has thereafter referred the deposition given by the Investigating Officer PW-7 Exh.25 i.e. Damodarprasad Pande. Learned APP urged that though the prosecution has proved the case against the respondent accused beyond reasonable doubt, the trial court has committed grave error while passing the impugned judgment and order of acquittal, mainly on the ground of certain minor discrepancy in the deposition of the prosecution witnesses and looking to the conduct of the two eye-witnesses. Learned APP urged that though the prosecution has proved the case against the respondent accused beyond reasonable doubt, the trial court has committed grave error while passing the impugned judgment and order of acquittal, mainly on the ground of certain minor discrepancy in the deposition of the prosecution witnesses and looking to the conduct of the two eye-witnesses. Learned APP therefore, requested that the impugned judgment and order of acquittal be quashed and set aside and thereby, the appeal filed by the State of Gujarat be allowed. 8. On the other hand, learned advocate Mr. Jitendra Buddhbhatti for the respondent accused has referred the reasoning recorded by the trial court and thereafter, also referred the depositions of two eye-witnesses as well as deposition given by the doctor. After referring the same, it is mainly contended that as per the deposition given by the doctor three injuries were found on the dead body of the deceased, whereas, as per the case of the two eye-witnesses, only one blow was given by the respondent accused to the deceased. Thus, the prosecution has failed to explain two other injuries sustained by the deceased and therefore, the trial court has rightly discarded the deposition of the so-called two eye-witnesses. Learned advocate for the petitioner further submitted that the prosecution has also failed to prove the motive on the part of the respondent accused for commission of the crime in question. He further submitted that the discovery of the weapon is also not duly proved by the prosecution and in fact the panch witness Bahadur Yadav PW-4 Exh.19 was brought to the police station by the complainant himself and the said witness is near relative of the complainant. Learned advocate for the petitioner has referred the deposition of the said panch witness well as the discovery panchnama of the weapon. 8.1 At this stage, learned advocate for the petitioner also referred to the deposition given by Investigating Officer PW-7, Exh.25. Learned advocate for the respondent therefore, urged that when the prosecution has failed to prove the case against the respondent accused beyond reasonable doubt, no error is committed by the trial court while passing the impugned judgment and order of acquittal in favour of the respondent accused. Learned advocate for the respondent accused, therefore, urged that present appeal may not be entertained. Learned advocate for the respondent accused, therefore, urged that present appeal may not be entertained. 8.2 Learned advocate for the respondent accused has placed reliance upon the decision rendered by the Hon'ble Apex Court in case of Chandrappa and Others vs. State of Karnataka, (2007) 4 SCC 415 , more particularly paragraph No. 42 of the said decision. After referring to the same, it is contended that even if two views are possible on the basis of the evidence led by the prosecution, the appellate court should not disturb the findings of acquittal recorded by the trial court. 9. We have considered the submissions canvassed by learned advocates appearing for the parties. We have also perused the documentary as well as oral evidence led by the prosecution before the concerned trial Court and the decision upon which reliance is placed by learned advocate for the respondent accused. 10. From the evidence produced before the trial court, it would emerge that it is the case of the prosecution that on 24.8.1991 at around 8.00 a.m. in the morning, the respondent accused was doing fencing work near the house of Vijaymal (deceased). At that time, altercation took place between the respondent accused and Vijaymal (deceased) and thereafter, the respondent accused gave one blow with ‘spade’ on the head of the deceased, as a result of which, the deceased immediately became unconscious. The prosecution has mainly placed reliance upon the deposition of two eye-witnesses i.e. PW-2 Jay Prakash Yadav Exh.9 as well as PW-6 Mamtaben Ramnath Siligram Exh.24. Thus, when the prosecution has placed reliance upon the deposition of two eye-witnesses, who were present at the place of incident, as per the case of the prosecution, this Court would like to examine deposition given by said two eye-witnesses. 11. Firstly, PW-2-Jay Prakash Yadav has stated in his examination-in-chief that in August 1991 he was staying with his maternal uncle Vijaymal who had resided in hut in Indiranagar situated near Khira Company. His uncle was serving in Vijay Mill. The incident took place on 24.8.1991. At that time, the said witness was at home and one Chhabilal was also present at his residence, who was also staying with him. As per the deposition given by the said witness, the incident took place between 8.30 to 9 a.m. when Dalpatbhai (accused) was putting wire fencing near his hut. The incident took place on 24.8.1991. At that time, the said witness was at home and one Chhabilal was also present at his residence, who was also staying with him. As per the deposition given by the said witness, the incident took place between 8.30 to 9 a.m. when Dalpatbhai (accused) was putting wire fencing near his hut. His maternal uncle Vijaymal (deceased) told Dalpatbhai to stop the said fencing work on his side. At that time, there was exchanged of words between them and suddenly Dalpatbhai i.e. respondent accused gave blow with ‘spade’ on the head of Vijaymal. As a result of the said blow, Vijaymal fell down. The said witness was sitting on the cot and Chhabilal was inside the house. Thereafter, both the said persons have lifted Vijaymal and blood was coming from his head therefore, he put up one piece of cloth and at that time, the respondent accused ran away from the spot. He further stated that his maternal uncle Ganesh Yadav and Shrikant came from the factory and took Vijaymal in rickshaw at Civil Hospital. 12. Similarly another eye-witness PW-6 Mamtaben Ramnath Siligram Exh.24 has stated in her deposition that she was cleaning utensils near her hut, at that time, the accused Dalpatbhai was digging the pit in the land. According to her, Dalpatbhai respondent had a quarrel in that respect with Vijaymal (deceased) and there was exchanged of words between both of them. At that time, the accused gave ‘spade’ blow to Vijaymal on his head and blood had started coming out due to the said incident. Thereafter, she went to the house and after some time she went to inform her husband with a view to see that her husband may inform the relatives of Vijaymal (deceased). 13. From the aforesaid deposition given by the eyewitnesses, in examination-in-chief, it revels that both the eyewitnesses have specifically deposed that the respondent accused had given only one blow on the head with ‘spade’ to the deceased. Further, as per the case of Jayprakash Yadav, the accused was putting wire on the fence, whereas according to another eye-witness Mamtaben Ramnath Siligram, accused was digging the pit in the land. So this Court is of the view that there are material contradiction in the deposition given by the aforesaid two witnesses. 14. Further, as per the case of Jayprakash Yadav, the accused was putting wire on the fence, whereas according to another eye-witness Mamtaben Ramnath Siligram, accused was digging the pit in the land. So this Court is of the view that there are material contradiction in the deposition given by the aforesaid two witnesses. 14. At this stage, this Court would like to refer the deposition given by PW-1, Dr. Pratik Patel Exh.7. The said witness conducted the postmortem of the deceased. The said witness, who is expert, has specifically stated in his examination-inchief that he found three external injuries on the dead body of the deceased. He also found three separate internal injuries. He has described the same in postmortem report given by him at Exh.8. As per the deposition of the said witness, the deceased had sustained three external injuries, one on head on right side, another on head comprising of five read colour abrasions touching each other and third is one abrasion of read colour on right shoulder. During cross examination of the said witnesses, he has clearly stated that external injury no. 1 and abrasions shown while external injury No. 2 can be possible by different blows and similarly for injury on right shoulder, another separate blow is necessary. Thus, from the deposition given by the expert, it is clear that the deceased sustained three injuries whereas as per the case of the two so-called eye-witnesses, the respondent accused gave only one blow on the head of the deceased. Therefore, the evidence of eye-witnesses is not supported by the medical evidence. 15. At this stage, the deposition given by complainant PW-3, Exh.10 Ganesh Yadav is also required to be examined. The said complainant in his deposition stated that when he received information from one Ramnath that the respondent accused had quarreled with Vijaymal and therefore, he along with one Shrikant reached to the house of Vijaymal. Vijaymal was lying in bleeding condition, when he inquired, the person gathered there informed him that the respondent accused gave blow to Vijaymal. At that time, Vjaymal informed the said witness that the respondent caused injury to him. Thus, as per the case of prosecution, the oral dying declaration was given by the deceased before the said witness. Vijaymal was lying in bleeding condition, when he inquired, the person gathered there informed him that the respondent accused gave blow to Vijaymal. At that time, Vjaymal informed the said witness that the respondent caused injury to him. Thus, as per the case of prosecution, the oral dying declaration was given by the deceased before the said witness. From the evidence produced by the prosecution before the Trial Court, it is clear that the so-called eye-witness Mamtaben Ramnath Siligram Exh.24 has specifically stated in her deposition that when respondent accused gave one blow with spade on the head of the Vijaymal, he immediately fell down and became unconscious. The said incident, as per the case of the eyewitness, took place around 8.00 a.m. to 8.30 a.m. whereas the complainant reached to the spot at about 9.30 to 10.00 a.m. Thus, as per the case of eye-witness, when the deceased was unconscious, immediately after sustaining head injury, it was not possible for him to give oral dying declaration before the complainant, as projected by the prosecution and therefore, the trial court has rightly disbelieved so-called oral dying declaration given by the deceased before complainant Ganesh Yadav. 16. So far as the discovery of weapon is concerned, it is pertinent to note that PW-4 Exh.19, Bahadur Yadav is a panch witness of the discovery panchnama. The said witness has specifically stated in his cross-examination that the complainant Ganesh Yadav is his uncle and his uncle brought him to the police station and his uncle was present through out when the panchmana was prepared. At this stage, deposition of the Investigating Officer PW-7 Exh.25 is also required to be kept in view. The Investigating Officer has stated in his cross examination that when he inquired about the weapon i.e. spade with the accused, from the reply given by the accused, he came to know about the exact place at which the weapon was lying and therefore, trial court has rightly observed that the same cannot be treated as discovery panchnama, as Investigating Officer was knowing the exact place, at which the weapon was kept by the accused. Thus, the trial court has rightly disbelieved the theory of discovery of weapon at the instance of the respondent accused. It is relevant to note that from the muddamal weapon ‘spade’ the blood was not found and therefore, the FSL report is nil. 17. Thus, the trial court has rightly disbelieved the theory of discovery of weapon at the instance of the respondent accused. It is relevant to note that from the muddamal weapon ‘spade’ the blood was not found and therefore, the FSL report is nil. 17. We have also gone through the reasoning recorded by the trial Court and we are of the view that the trial court has not committed any error while recording the order of acquittal in favour of the respondent accused, as the prosecution has failed to prove the case against the respondent accused beyond reasonable doubt. 18. At this stage, it is relevant to take into account the observations made by the Hon'ble Supreme Court in the case of Chandrappa (supra), wherein the Hon'ble Supreme Court has observed in paragraph No. 42 as under: “42. From the above decisions, in our considered view, the following general principles regarding powers of 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 curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasize 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 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 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.” 19. From the aforesaid decision rendered by the Hon'ble Supreme Court, it can be said that while exercising powers under Section 378 read with Section 384 of the Code, the 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 and secondly the accused having secured an acquittal, the presumption of his innocence is further reinforced, reaffirmed by the trial Court. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of acquittal recorded by the Trial Court. 20. 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 vs. 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. 21. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh and Others vs. State of Uttar Pradesh, (2011) 11 SCC 444 and Bhaiyamiyan alias Jardar Khan vs. State of Madhya Pradesh, (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. 22. We have independently re-appreciated the evidence produced by the prosecution before the learned Trial Court and also examined the reasoning recorded by the learned Trial Court while passing the impugned judgment and order of acquittal and we are of the view that if in light of the above circumstances, the learned Trial Court felt that the accused could get the benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the Trial Court and it can review, re-appreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the facts and circumstances of the present case as discussed hereinabove, the view taken by the learned Trial Court for acquitting the accused was possible and plausible. Therefore, on the basis of evidence, even if it is to be assumed that the other view is equally possible, even then it is well settled and well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the learned Trial Court, it ought not to be disturbed by the Appellate Court. 23. Considering the aforesaid facts and circumstances of the present case and the law laid down by the Hon’ble Supreme Court in the aforesaid decisions upon which reliance is placed by learned advocates appearing for the parties and while considering the scope of appeal under Section 378 of the Code, no case is made out for interference in the impugned judgment and order of acquittal dated 12.9.1996 rendered by the learned Additional City Sessions Judge, Court No. 13, Ahmedabad in Sessions Case No. 129 of 1992. Accordingly, present appeal deserves to be dismissed and is, therefore, dismissed the record and proceeding, if lying here, the same be transmitted to the concerned trial court.