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2023 DIGILAW 487 (GUJ)

STATE OF GUJARAT v. BALRAM BABUSING CHAUHAN

2023-03-21

A.Y.KOGJE, M.R.MENGDEY

body2023
JUDGMENT : A.Y. KOGJE, J. 1. The Appeal is preferred under Section 378 of Criminal Procedure Code 1973 (for short “CRPC”) against the acquittal recorded under the judgment and order dated 31.07.1998 in Sessions Case No. 192 of 1992 by Additional Sessions Judge, Surat. 2. The two accused respondents (for short “accused”) were Charged and tried for offences under Section 302 read with Section 114 of the Indian Penal Code. The offence arose out of an incident for which an FIR came to be registered vide C.R. No. I-14 of 1992 with Sachin Police Station, Surat. 3. The main contention raised by the learned Additional Public Prosecutor against the acquittal is that the case of the prosecution was based on the strong evidence of three eyewitnesses and these witnesses are reliable and the presence of such witnesses at the place and the time of offense was very natural. It is also submitted that the eyewitnesses have identified the accused persons during the course of trial and therefore, considering the role attributed to the accused, the prosecution was able to establish the case beyond reasonable doubt. 4. It is submitted that the Sessions Court has committed an error in giving importance to the minor contradictions to doubt the veracity of these witnesses. 5. It is submitted that an error is also committed by holding that the prosecution has failed to attribute any motive behind commission of such offense as it was not a case of circumstantial evidence, but case of eyewitnesses and hence, there was no requirement for the prosecution to establish the motive. Therefore, the Sessions Court has committed an error in referring to a civil suit proceedings in which the deceased was a witness in a panchanama because of which he was targeted. In this regard, the Sessions Court has given a finding that the details regarding the civil proceedings mentioned are not connected with the accused persons and therefore, they had no motive in committing the offence. It is submitted that such a finding was unwarranted when the case of the prosecution was not based on any motive. 6. In this regard, learned Additional Public Prosecutor has relied upon the decision of the Supreme Court in case of Bipin Kumar Mondal vs. State of West Bengal, (2010) 12 SCC 91 . 7. It is submitted that such a finding was unwarranted when the case of the prosecution was not based on any motive. 6. In this regard, learned Additional Public Prosecutor has relied upon the decision of the Supreme Court in case of Bipin Kumar Mondal vs. State of West Bengal, (2010) 12 SCC 91 . 7. Learned Additional Public Prosecutor has thereafter taken this Court extensively through the evidence of PW-1, who is the doctor who performed the postmortem and submitted that the prosecution was able to establish the homicidal death of the deceased Anish Desai. Thereafter, learned Additional Public Prosecutor took this Court through the evidences of three eyewitnesses namely PW-4 Chhaganbhai Vikrabhai Prajapati Exh.24, PW-7 Narsibhai Harjibhai Exh.31 and PW-8 Rohitbhai Govindbhai Patel Exh.33. 8. As against this, learned advocates appearing on behalf of the respondent Nos. 1 and 2 have jointly submitted that the burden on the prosecution is heavy once an acquittal is recorded by proper appreciation of evidence and cogent reasonings. It is submitted that on the same set of evidence, the prosecution is unable to sustain the challenge and submitted that the view taken by the Sessions Court is not perverse or so unreasonable so as to warrant any interference. 9. It is submitted that motive is a strong circumstance which the prosecution needs to establish especially when the prosecution itself since beginning that is from the filing of the FIR has made out a case of attributing motive to murder deceased Anish Desai as he was a witness in the civil proceedings connected with the accused. Once having adopted this line, it is not open for the prosecution to take a U turn and claim that motive has no role to play. 10. It is submitted that none of three eyewitnesses can be treated to be genuine and truthful eyewitnesses. The advocates have drawn attention of this Court to the cross examination of these three witnesses and submitted that in the cross examination certain answers given by these witnesses will clearly create doubt on the credibility of their evidence and this aspect has been correctly appreciated by the Sessions Court while recording the acquittal. 11. Learned advocates have drawn attention to the material contradictions of these witnesses to submit that such contradictions go to the root of the case to any question the credibility of these witnesses themselves. 11. Learned advocates have drawn attention to the material contradictions of these witnesses to submit that such contradictions go to the root of the case to any question the credibility of these witnesses themselves. Learned advocates have also submitted that the investigation itself is in great doubt by drawing attention of this Court to a particular panch witness who is examined PW-3. In his deposition, he has deposed that in the panchnama for test identification, another panch was one Narsinhbhai and the other panch of the same Panchnama namely Kalpana Yadav is not known to him, thereby creating doubt on the test identification for itself. 12. It is further submitted that PW-8 Rohitbhai Govindbhai Patel is actually nephew of informant with whom the deceased was employed and therefore, was a interested witness. 13. The Court has heard learned advocates for the rival parties and perused the documents placed on record. Vide Exh.11 charge was framed on 06.12.1991, the fist of which is that when panchnama of the disputed place was carried out through Court Commissioner in Civil Suit, the deceased Anish Laxmanbhai made signature as a panch witness therein. On account of the said animosity and resentment, the accused persons in furtherance of common intention to commit murder of Anish, came to Plot No. 32, Avirbhav Society, Pandesara on 18.01.1992 at about 9-30 hours and the accused No. 1 gave blow with iron rod on head of the deceased Anish Laxmanbhai in furtherance of common intention to cause fatal injuries and committed his murder in front of the shop of the accused No. 2 and the accused No. 2 also gave blows of fist and kick to Anish. By doing this, the accused persons abetted each other, caused fatal injuries to Amish and committed murder of the deceased and thereby committed offense punishable under Section-302 read with Section-114 of IPC. 14. PW-1 Dr. Muhammad Iqbalhussain Qureshi Exh.15 was the Medical Officer, who performed postmortem. In his deposition, he has given the description of the injury and has opined that the injuries caused on the head and corresponding internal injuries were sufficient to cause the death and that such injuries could be caused by use of an iron rod (patti). In any case, no further discussion would be required on this issue as the death caused was established as an homicidal death. 15. In any case, no further discussion would be required on this issue as the death caused was established as an homicidal death. 15. PW-2 Bhagvandas Govindji Patel, Exh.18 is an informant with whom deceased Anish Desai was employed and he has registered the FIR on the basis of information received by him when he reached the hospital where Anish was taken after the assault. The FIR was exhibited vide Exh.19. 16. For the purpose of bringing home the charge of Section 302 of the Indian Penal Code, it is the case of the prosecution that keeping grudge of the deceased Anish being a panch witness in a civil proceedings, the assault was carried out and therefore, it was the prosecution’s theory of attributing strong motive. Mens-rea indeed a very relevant aspect which needs to be established in such a grievous offence. It is more so when the prosecution itself has proposed a theory of motive behind the incident. 17. From the evidence on record, especially considering the defense taken by the accused that the Civil case with which the accused persons are concerned, there was no role of the deceased and that the deceased was never witness or a panch witness or one of the panchas in such proceedings. Reference was made to Regular Civil Suit No. 523 of 1991. where in the deceased was not a panch witness and had no connection with the accused directly or indirectly. Over and above, the entire investigation has failed to bring on record the civil proceedings referred to in the charge in which the deceased was a panch witness and such civil proceedings were directly or indirectly connected to the accused. 18. Thus, strong reliance placed on the decision of Bipin Kumar Mondal (supra) to argue that motive is of no consequence and pales into insignificance when direct evidence is available to establish the crime. However, this judgment will not benefit the prosecution when it was the case from the beginning of the prosecution that there was a thick motive behind the offense and for which reference of the same is also made in the charge framed. Therefore, when the charge in this regard framed refers to a fact related to a motive, it becomes the responsibility of the prosecution to establish the same. Therefore, when the charge in this regard framed refers to a fact related to a motive, it becomes the responsibility of the prosecution to establish the same. This issue is more significant when the Investigating Officer in his deposition has stated that he has not at all inquired into the issue of pending civil proceedings and the cause of dispute involving the deceased. 19. This Court is of the view that the aforesaid decision will also not help the prosecution as in the further discussion, the Court would refer to the evidences of the eyewitnesses with regard to their credibility and truthfulness. 20. PW-4 is the eyewitness on whose evidence the entire prosecution is relied. PW 4-Chhaganbhai Vikrambhai Prajapati, Exh.24, in his evidence-in-chief has referred to the assault being carried out but has not named the accused No. 1-Balram Babusing Chauhan as a person assaulting but has referred to a person of Asaram traders who was assaulting. It is in the later part of the chief at the time of identification this witness has named the person identified by him in the Court as Balram Babu Singh of Asaram traders. At the same time, it is pertinent to observe that he has completely failed to identify the accused No. 2 through witness test identification panchnama, which was carried out at Exh.27. The perusal of this identification panchnama indicates that this witness was able to identify accused No. 1-Balram Babusing Chauhan and accused No. 2-Shyam Kapuji Gehlot. At this stage, it would be appropriate to discuss that the investigation has carried out test identification parade only through one of the three eyewitnesses and insofar as accused No. 1 is concerned, this witness was already knowing the accused from beginning and therefore, no Test Identification Parade was required insofar as the second accused is concerned, as he was not named by the witness, no Test Identification Parade was required and there he was identified successfully, but at the same time this witness has failed to identify the second accused whom he had identified in the test identification parade. To that extent, the evidence of this witness, insofar as identification of the two accused, is doubtful. 21. To that extent, the evidence of this witness, insofar as identification of the two accused, is doubtful. 21. The other reason to doubt the credibility of this witness is when this witness has answered in the cross examination that the first time he saw deceased Anish, he was lying in bloodpool condition on the road and public had gathered there and from the public he came to know, perhaps about the incident. The Court has also taken into consideration various question put to him in cross examination to indicate his proximity with the informant with whom the deceased was employed and it was also admitted that this witness was working for the informant Bhagwanbhai Govindbhai Patel. The Court finds that this witness cannot be treated to be a witness with Sterling quality. 22. Another eye-witness PW-7 Narsibhai Harjibhai has in his chief deposed that he is unable to identify accused No. 1. This witness has also deposed in cross examination that when he saw Anis for the first time, he was lying in blood pool condition and thereafter, the crowd had gathered around. It would be pertinent to observe that in his cross examination, he has stated that he had identified Balram Babusing Chauhan in the police station and accused No. 1 was arrested by the police and taken to the police station on the day of incident. This witness has also deposed that when he went to the police station, he had seen muddamal Article No. 7, an iron Patti which was used in the office and the same was in the hands of the accused No. 1, but the record of the investigation would indicate that the incident took place on 18.01.1992, wherein this accused was arrested only on 27.02.1992. This clearly creates doubt about the truthfulness of this witness. Moreover, the prosecution has not carried the test identification parade through this witness with accused No. 2. 23. The third eyewitness PW-8 Rohitbhai Govindbhai Patel Exh.33, through him also there is no test identification parade insofar as accused No. 2 is concerned. In the evidence-in-chief has deposed that he will not be able to identify the accused. It would be pertinent to observe that even in the chief examination, he refers to a quarrel being taking place near Asaram traders shop and lot of crowd had gathered. In the evidence-in-chief has deposed that he will not be able to identify the accused. It would be pertinent to observe that even in the chief examination, he refers to a quarrel being taking place near Asaram traders shop and lot of crowd had gathered. It is only in the letter part of the chief, he refers to assault by accused No. 1 on the head of the deceased. This witness was contradicted with the previous statement to the extent that he did not mention name of Anish who was assaulted by Balram Babusing Chauhan and this contradiction was proved by examining the Investigating Officer, who had recorded his statement who has stated that this witness has not given name of Anish as being assaulted in the incident. In the opinion of the Court, this is a material contradiction which goes to the root of the matter and considering the oral deposition of this witness which does not come out as a credible witness, more particularly, when he happens to be nephew of the informant, who was interested in the deceased. 24. Over and above, the Court has also taken into consideration the evidence on record which indicates that the muddamal Article 7 Patti was recovered from the scrap near around the scene of offence but there were no stains of blood matching with the blood of the deceased to connect the weapon with the assault. 25. The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad vs. State of Bihar and Another, (2022) 3 SCC 471 , wherein the Apex Court has examined the case law with regard to the power of the High Court to overturned the decision of the Sessions Court where an another view is possible. Examining the case including that of Chandrappa and Others vs. State of Karnataka, (2007) 4 SCC 415 , the Apex Court has culled out the general principles regarding the powers of the Appellate Court while dealing with the appeal against the order of acquittal. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an acquittal, there is a double presumption in favour of the accused. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence, and thereafter, upon securing of acquittal, the presumption is further reinforced, reaffirmed and strengthened, and therefore, whenever there are two reasonable conclusions are possible on the basis of the evidence on record, ordinarily, the Apex Court would not disturb the findings of acquittal recorded by the Trial court. 26. Considering the overall evidence of prosecution and the reasons assigned by the Sessions Court in rejecting such evidence, the Court does not find any reason to interfere with the impugned judgment and order. 27. In the result, the appeal fails and is dismissed. The judgment and order dated 31.07.1998 passed in Sessions Case No. 192 of 1992 by the Additional Sessions Judge, Surat stands confirmed stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R&P be sent back to the concerned Trial Court, forthwith.