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2023 DIGILAW 322 (GUJ)

STATE OF GUJARAT v. AYAR KALUBHAI KANABHAI

2023-02-16

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 21.8.1996 rendered by the learned Additional Sessions Judge, Bhavnagar (Camp at Mahuva) in Sessions Case No. 17 of 1996, wherein trial court has acquitted the respondents accused from the charges levelled against them for the offences punishable under Sections 447, 302 read with Section 34 etc. of Indian Penal Code and Section 135 of the G.P. Act. 2. The brief case of the prosecution is as under. 3. The incident took place on 17.8.1995 for which FIR came to be registered on 18.8.1995 by one Gatubha Ukubha Garasiya, resident of Bordi Taluka before the Talaja Police Station, wherein he has stated that on 17.8.1995 when he was at the house of Lakha Jivan Koli for attending ‘Bhajan’ at 11.30 p.m. at that time Ghanshyamsinh PW-6 came near him and informed him that at his Wadi, someone came and beaten up his brother Bhojubha Ukubha (deceased) and have went away. Therefore, the complainant along with Dhanhubha Banubha, Jarubha Dhirubha, Mithubha Samatsang, Hatubha Jorsang and others ran towards the Wadi of the Gatubha. 4. Upon reaching at Wadi, they show complainant’s elder brother i.e. Bharatbha Ukubha, who is handicapped sitting on the bed and on other bed Bhojubha (deceased) and with the help of light of battery they show injury on the forehead and on the top of eye of Bhojubha caused by sharp weapon and face was with full of blood. Upon asking elder brother Bharatbha Ukabha about the incident, at that time, he said both brothers were sleeping on separate beds and at that time, all of a sudden noise of frightening of bullocks was heard and therefore, Bharatbha Ukabha woke up and saw 3 persons and therefore, he switched on battery and in the light of the battery he saw spear in the hand of Kalu Kana, iron pipe in the hand of Kana Bhola and stick in the hand of another unknown person running away outside the Wadi. Therefore, they all took Bhojubha (deceased) in Talaja Hospital. 5. Mr. Bharatbhai Gohil, P.S.I. recorded a complaint of brother of the deceased and sent yadi to the hospital. Therefore, they all took Bhojubha (deceased) in Talaja Hospital. 5. Mr. Bharatbhai Gohil, P.S.I. recorded a complaint of brother of the deceased and sent yadi to the hospital. The P.S.I. Gohil reached to the hospital where he has made inquest panchnama of the body of the deceased. 6. After registration of the FIR, the Investigating Agency carried out the investigation and recorded the statements of the witnesses and prepared various panchnamas. After investigation was over, the Investigating Officer filed charge-sheet against the respondents 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, Bhavnagar where the case was registered as Sessions Case No. 17 of 1996. 7. During the course of the trial, the prosecution had examined fifteen 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 statements of respondents accused were 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 respondents accused. 8. Heard learned APP Mr. Chintan Dave for the appellant-State and learned advocate Mr.Saurin Shah, for the respondents-accused. 9. Learned APP Mr. Dave, has referred the deposition given PW-1 Gatubhai Ukabhai Exh.15, who is complainant and the brother of the deceased. Learned APP has also placed reliance upon the deposition given by Bharatsinh Ukabha PW-4, Exh.22. The said witness is also brother of the deceased as well as the eye-witness of the incident in question. Thereafter, learned APP has referred the deposition given by PW-3 Ghanshyamsinh Banubha Exh.25, who is neighbour of the deceased and who reached to the place of incident immediately after the incident took place. Learned APP further placed reliance upon a deposition given by PW-2 Dr. Natvarbhai Rathod Exh.16, who had performed the postmortem of the deceased. After referring to the aforesaid depositions of the prosecution witnesses, it is submitted that the eyewitness Bharatsinh Ukabha PW-4 has specifically stated about the role played by the respondents accused. He had seen the incident with light of battery. Learned APP also submitted that the original accused no. Natvarbhai Rathod Exh.16, who had performed the postmortem of the deceased. After referring to the aforesaid depositions of the prosecution witnesses, it is submitted that the eyewitness Bharatsinh Ukabha PW-4 has specifically stated about the role played by the respondents accused. He had seen the incident with light of battery. Learned APP also submitted that the original accused no. 3 was though not named in the FIR, he has been identified by eye-witness Bharatsinh Ukabha as well as Ghanshyamsinh Chanubha. Learned APP further submitted that the eye-witnesses have also identified accused No. 3 in the Test Identification Parade. At this stage, learned APP has referred deposition given by PW-11 Himmatlal Laxmichand, Executive Magistrate, who has conducted the Test Identification Parade. Learned APP also referred the deposition given by PW-15 Somabhai Naranbhai, Investigating Officer Exh.56. Learned APP submitted that the prosecution has proved the case against the respondents accused beyond the reasonable doubt, inspite of that the trial court has acquitted the respondents accused and thereby committed an error. There is sufficient evidence produced by the prosecution in the form of depositions of eye-witnesses and Test Identification Parade, even then the impugned order of acquittal has been passed by the trial court. Learned APP, therefore, urged that the impugned order of acquittal be quashed and set aside. 10. On the other hand, Mr. Saurin Shah, learned advocate for the respondents accused has opposed this appeal and referred the reasoning recorded by the trial court while passing the impugned order. It is also submitted that the trial court has discussed in detail why the deposition given by the so called eyewitness Bharatsinh Ukabha cannot be believed. It is submitted that the medical evidence does not support the case of eye-witness Bharatsinh Ukabha. Learned advocate for the respondents accused also submitted that the discovery of weapons is also not proved beyond reasonable doubt, as the panch witnesses have not supported the case of the prosecution. It is submitted that the so-called eyewitness Bharatsinh Ukabha, has for the first time deposed before the Court during his examination-in-chief, the story which was not stated by him to the complainant. Learned advocate for the respondents accused further submitted that there are major contradictions in the deposition given by the prosecution witnesses. It is submitted that the so-called eyewitness Bharatsinh Ukabha, has for the first time deposed before the Court during his examination-in-chief, the story which was not stated by him to the complainant. Learned advocate for the respondents accused further submitted that there are major contradictions in the deposition given by the prosecution witnesses. Learned advocate for the respondents accused contended that when the prosecution has failed to prove the case against the respondents accused beyond reasonable doubt, no error is committed by the trial court while passing the impugned judgment and order. He, therefore, urged that the present appeal be dismissed. 11. We have considered the submissions advanced by learned advocates appearing for the respective parties. We have also perused the documents as well as oral evidence produced before the trial court. 12. It would emerge from the record that the complainant is not an eye-witness to the incident. He reached to the place of incident on receipt of the information from one Dhanubha Banubha. The said Dhanubha Banubha informed the complainant that three persons made an assault on his brother Bhojubha. It is also stated by the said person to the complainant that his another brother Bharatbhai is present in Wadi and Bharatbhai asked the said Dhanubha Banjubha that the complainant be called. Thus, complainant Gatubhai Ukabha is not an eyewitness to the incident in question. The main witness upon which the reliance is placed by the prosecution is PW-4 Bharatsinh Ukabha PW-22. The said Bharatsinh Ukabha is the elder brother of the deceased and who is handicapped and was sleeping on the bed and on the other bed Bhojubha (deceased) was sleeping. At that time, all of a sudden noise of frightening of Bullocks was heard and therefore, the said witness woke up and show three persons. Therefore, he switched on battery and in light of battery he has seen spear in the hand of Kalu Kana accused No. 1, iron pipe in the hand of Kana Bhola accused No. 2 and stick in the hand of another unknown person running away outside Wadi and on shouting Ghanshyamsinh @ Dhanubha Banubhai PW-6 came at the place of incident. It is relevant to note that Bharatsinh Ukabha so-called eyewitness has, for the first time stated in his examination-in-chief before the Court that he had seen accused no. 1 and accused no. It is relevant to note that Bharatsinh Ukabha so-called eyewitness has, for the first time stated in his examination-in-chief before the Court that he had seen accused no. 1 and accused no. 2 beating the decease with the weapons, which they were carrying. However, during cross examination of the investigating officer, said witness has specifically stated that while giving the statement before the police, the so-called eyewitness has only stated that in torch light he had seen accused no. 1 with spear, accused No. 2 with iron pipe and one unknown person with stick running away from Wadi. Thus, there is major contradictions in the deposition given by the so-called eyewitness and the said witness has exaggerated the version. Another witness Ghanshyamsinh Chhnubha, who is neighbour stated that when he heard the noise he immediately went to the place of incident however, he did not find any injury on the body of Bhojubha (deceased). PW-6 Dhanubha Banubha also reached to the place of incident, after he heard the noise, however, both the aforesaid witnesses have not actually seen the incident in question. On the contrary PW-6 Dhanubha Banubha stated that when he reached to the place of incident and inquired from Bharatbhai Bhojubha, he informed him that three persons have beaten Bhojubha, Therefore, the said witness inquired about the name of the said assailants, at that time, Bharatbhai informed him that first he should call Gatubha Ukabha and thereafter, he will tell about the details. Thus, the so-called witness Bharatsinh Ukabha did not inform the first person, who reached at the place of incident about the name of the assailants. Thus, the trial court has rightly observed that the conduct of the so-called eye-witness and the other two witnesses, who reached to the spot was unnatural. 13. At this stage, this Court would also like to refer the deposition given by PW-2 Exh.16 namely Dr. Natvarbhai Rathod, who performed the postmortem of the deceased. During cross-examination, the said witness has specifically stated that injury Nos. 3 and 4 sustained by the deceased could be possible with the weapon like spear, whereas injury Nos. 5 and 6 sustained by the deceased could be possible by the weapon other than spear and all the four injuries i.e. injury Nos. 3, 4, 5 and 6 could not be possible with spear but said injuries can be caused by sword or knife. 5 and 6 sustained by the deceased could be possible by the weapon other than spear and all the four injuries i.e. injury Nos. 3, 4, 5 and 6 could not be possible with spear but said injuries can be caused by sword or knife. It is relevant to note that as per the case of prosecution, only original accused no. 1 was armed with spear, whereas the accused no. 2 was armed with iron pip and accused no. 3 was armed with stick. Thus, the medical evidence does not support the case of the eyewitness and therefore, reasonable doubt is created. 14. So far as motive part is concerned, it is also relevant to note that the prosecution has failed to prove the motive on the part of the respondents accused to commit the crime in question. 15. So far as the discovery of the weapons is concerned, it is relevant to note that the panch witnesses have not supported the case of the prosecution and therefore, discovery panchnama is not proved by leading cogent evidence. So far as Test Identification Parade is concerned, the said parade was carried out with a view to identify the original accuse no. 3. The eye-witness had not given the name of the accused no. 3 and he has stated that the third assailant was unknown person armed with stick. Another prosecution witness Ghanshyamsinh also had seen the said person running away from Wadi and during Test Identification Parade, it is stated that the prosecution witnesses have identified the accused no. 3 however, from the deposition given by P.E.11 - Himmatlal Laxmichand, Executive Magistrate and the panch witnesses of the Test Identification Parade panchnama, it reveals that the Test Identification Parade was not conducted as per the prescribed procedure and the concerned witnesses were sitting on a staircase between 12.00 p.m. to 4.00 p.m. and accused was brought by the police at 3.30 p.m. at that time the said witnesses have seen the accused no. 3. 16. Thus, from the aforesaid evidence led by the prosecution, we are of the view that the prosecution has failed to prove the case against the respondents accused beyond reasonable doubt and therefore, the trial court has rightly passed impugned order of acquittal in favour of the respondents accused. 17. 3. 16. Thus, from the aforesaid evidence led by the prosecution, we are of the view that the prosecution has failed to prove the case against the respondents accused beyond reasonable doubt and therefore, the trial court has rightly passed impugned order of acquittal in favour of the respondents accused. 17. At this stage, it is relevant to take into account the observations made by the Hon'ble Supreme Court in the case of Chandrappa and Others vs. State of Karnataka, (2007) 4 SCC 415 . The relevant observation made by the Hon’ble Supreme Court in paragraph No. 42 reads 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. (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.” 18. 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.” 18. 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. 19. 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 trial court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 20. 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 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. 21. 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. 21. We have independently re-appreciated the evidence produced by the prosecution before the trial court and also examined the reasoning recorded by the 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 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 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 trial court, it ought not to be disturbed by the Appellate Court. 22. 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 judgment and order of acquittal dated 21.8.1996 rendered by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No. 17 of 1996. 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.