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2023 DIGILAW 494 (GUJ)

State Of Gujarat v. Virabhai Jagabhai Gohil

2023-03-23

A.Y.KOGJE, M.R.MENGDEY

body2023
JUDGMENT : A.Y. KOGJE, J. 1. The present appeal is preferred by the State against the judgment and order dated 16.10.1997 passed in Sessions Case No.24 of 1994 by the Additional Sessions Judge, Ahmedabad (City). 2. While the appeal is taken up for hearing, it is reported that the accused no.3-Amrutbhai @ Ago Becharbhai and accused no.4-Ranjitbhai @ Titi Ukabhai Chauhan have expired, the therefore, the appeal qua them abated. The same has been recorded in order dated 25.08.2022. The present appeal is taken up for hearing qua accused nos.1 & 2. 3. The charge was framed vide Exh.2 for an incident which occurred allegedly on 30.01.1993, at about 10.00 hours, in the Ahmedabad (City), wherein the deceased – Mujib Ahmed Abdul Rehman was assaulted, manhandled and with the use of iron pipe and stone caused injury on his vital part of the body i.e. skull resulting into the death of Mujib Ahmed. 4. It appears that in connection with this incident, Minnatbibi-wife of the deceased Mujib Ahmed registered an F.I.R with Gomtipur Police Station for offences under Sections 302 and 114 of the Indian Penal Code and Section 135(1) of the Gujarat Police Act. The informant-wife of the deceased had stated in her FIR that her husband had left their home for purchasing samosa, but did not return and in late night, at around 1:00 a.m. to 2:00 a.m., the police came in the mobile-van and informed the informant that her husband is in Civil Hospital and was taken to the Civil Hospital where she found her husband who had a bandage on his head, but on other parts of body, there was no bandages. It is with this detail the informant has given the FIR and was examined as P.W.1 at Exh.9. 5. Upon the FIR being registered, the police embroiled upon the investigation, filed a chart-sheet and charge vide Exh.2 was framed for offences under Sections 302 and 114 of Indian Penal Code and Section 135(1) of Bombay Police Act. 6. Learned APP submitted that it is a case of 2 eye-witnesses, who had witnessed the incident and have narrated not only in the statement during course of Investigation, but have also deposed in support of the prosecution the manner in which the incident took place and the role attributed to each of the accused person. 6. Learned APP submitted that it is a case of 2 eye-witnesses, who had witnessed the incident and have narrated not only in the statement during course of Investigation, but have also deposed in support of the prosecution the manner in which the incident took place and the role attributed to each of the accused person. It is submitted that when it was a clear case of eyewitness and their evidence being credible, there was no reason for recording the acquittal. 6.1 It is submitted that the Sessions Court has taken into consideration minor contradictions here and there to disbelieve the version of eye witnesses. It is submitted that even if the eyewitnesses are not to be believed yet there were sufficient circumstances to establish the case against the respondents-accused. The evidence of the doctor, who performed the postmortem was examined as P.W.8 at Exh.39. He has clearly established the nature of injuries received on vital part of the body, which has resulted in homicidal death. 6.2 It is further submitted that the Sessions Court has committed an error in accepting a theory of the defence that the deceased being under the influence of alcohol to reject the case of prosecution. Merely being in a drunk condition, would not explain the injuries received, and therefore, conviction is required to be set aside 7 As against this, for the accused, It is submitted that out of the 4 (Four) accused against whom the charge has been framed, a accused no.3-Amrutbhai @ Ago Becharbhai and accused no.4- Ranjitbhai @ Titi Ukabhai Chauhan have expired and hence, the appeal qua these accused is abated. 7.1 It is submitted that even from the evidence of this witnesses, the role attributed to accuse no.1 is that of having pushed the deceased where accused no.2 is alleged to have given a pipe blow. However, the two witnesses have not given a version, which is credible and the cross examination clearly puts in doubt whether these witnesses are the real eye-witnesses particularly the unnatural conduct of these witnesses after the offence. However, the two witnesses have not given a version, which is credible and the cross examination clearly puts in doubt whether these witnesses are the real eye-witnesses particularly the unnatural conduct of these witnesses after the offence. 7.2 It is submitted that the probably, the deceased – Mujib Ahmed, who was in a drunken condition had received head injury due to fall, cannot be ruled out particularly, when it is coming on record through the evidence of the Doctor that the deceased was under the influence of alcohol and that in this connection an FIR was also registered for Prohibition offence against the deceased, and therefore, though the deceased had died on account of injury received on his forehead having falling down under the influence of alcohol, the informant and witnesses have posted of false case only on the ground of communal divide and deliberately target the accused persons being of different community. Therefore the defense has provided for sufficient material to create a doubt in the version of the prosecution. 8. Heard learned advocates for the parties and perused the documents on record. The investigation was initiated by the informant-Jinnatbibi, wife of deceased – Mujib Ahmed (P.W. 1 Exh.9). Her deposition is to the extent that the deceased – Mujib Ahmed had left the house for purchase of Samosa and did not return, however, in late night, the police came to inform her about her husband being in Civil Hospital, where she found her husband in unconscious condition and was having bandage on the head. She opined that her husband was killed out of communal violence. She has denied any knowledge with regard to deceased – Mujib Ahmed being under influence of alcohol and that the police had arrested him for such offence. 9. P.W.2 Eye Witness-Mohammed Ismail Mehboob Syed was examined at Exh.10 on behalf of prosecution. In his deposition, he has stated that when he was walking behind the deceased, at that time, accused Titi and Vera came out from behind the Tea Stall, Veera pushed the deceased – Mujib Ahmed and they both dragged deceased – Mujib Ahmed into the Hawada and during that period, accused no.2-Nagin Premji came there by holding iron pipe and he inflicted iron pipe blows on deceased – Mujib Ahmed and accused no.1-Virabhai inflicted stone blow on deceased-Mujib Ahmed. In the cross examination, this witness has also deposed that before inflicting injuries, people pulled and dragged the deceased-Mujib Ahmed inside Veera Natthu chawl. He has also deposed that he was friend to Mujib since last 30 years, but he did not go and inform the family members of deceased-Mujib or to the police station. He has denied the suggestion that the deceased-Mujib was under alcohol influence. 9.1 In the opinion of the Court, this witness cannot be considered to be a truthful witness. Firstly, he has not witnessed the actual assault being carried out as even as per his version the deceased-Mujib was dragged by people inside the Chawl, and therefore, the scene of offence panchanama would indicate that it would not be possible for a person standing outside the chawl to witness any incident inside. Moreover, the conduct of this witness immediately after the incident was unnatural, as he was knowing the deceased-Mujib since last more than 30 years, still does not go to rescue or reports the incident to the police or family of deceased. 10. P.W.3 Mohammed Hussain Mohammadkamar Shaikh was examined at Exh.11 is another witness, who claims to be an eyewitness. He has narrated the incident in an identical manner as P.W.2, however, in the cross examination again an unnatural conduct of this witness after the alleged incident has surfaced. This witness, for a long time, did not rush to rescue the deceased-Mujib and also, he did not proceed to inform the police SRP Chowki nearby, but went home and did not inform the family member of Mujib. 11. From the overall evidence of aforesaid 2(Two) Eyewitnesses, this Court is unable to place reliance completely on the version of these two witnesses and would not treat them to be the real eye-witnesses to the incident. 12. It would be relevant to refer to the evidence of P.W.8 Dr Surendra Mahendra Sharma examined at Exh.39. In his evidence in chief, he has clearly stated that the patient was brought in unconscious condition and was under the influence of alcohol to such an extent that he would not be able to control his senses and in the cross examination also, he has deposed that the injuries on the deceased would be possible on account of successive falls under the influence of alcohol. This witness cannot conclusively opine that the extent of injury is being caused by use of pipe or stone only. 13. At this stage, it would be appropriate to refer to Exh.31 which is an FIR being I-C.R.No.14/93 registered with Gomtipur police station under the provisions of Prohibition Act against deceased-Mujib. If the timings of this F.I.R and the timing coming out in the present case are compared, the same are overlapping in the present FIR. It is recorded that the deceased was conscious and was questioned in front of the panchas and stated that he was under heavy influence of alcohol and was having injuries on his head and back. 14. With the aforesaid nature of evidence recorded, it is unable to accept the case of the prosecution to hold that the ingredients of offence of murder are made out beyond reasonable doubt against the respondents accused. 15. The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad Vs. State of Bihar & Anr. reported in (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 &Ors. vs. State of Karnataka reported in (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. 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. 16. 16. 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. 17. In the result, the appeal fails and is dismissed. The judgment and order dated 16.10.1997 passed in Sessions Case No.24 of 1994 by the Additional Sessions Judge, Court No.10, Ahmedabad stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned Trial Court, forthwith.