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2023 DIGILAW 731 (GUJ)

State of Gujarat v. Rameshbhai Punjabhai Rathod

2023-05-04

A.Y.KOGJE, M.R.MENGDEY

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JUDGMENT : A.Y. KOGJE, J. 1. Present Appeal is preferred by the State under Section 378 of the Code of Criminal Procedure, 1973, against the acquittal recorded by the judgment and order dated 04.11.1996 passed in Sessions Case No.55 of 1993 by the Additional Sessions Judge, Amreli. By which three respondents-accused have been acquitted for the offences under Sections-302, 504, 114 and under Section-326 read with 114 of the Indian Penal Code. 2. The appeal came to be admitted by order dated 17-07-1997. 3. This is the case, which arose out of an incident, which took place on 08-03-1993, where allegedly three respondents-accused aged between 18 years to 21 years, had carried out assault on one Rajeshgiri, Dipakgiri and Hashmukhbhai and the deceased; Girishbhai. 4. It is the case where one of the injured witness doubting that the accused No.3; Pravin @ Punjabhai Rathod had taken the wristwatch, while they were together at the festival of ‘Holi’ and while removing coconut from the ‘Holi’ fire, wrist-watch of the witness had slipped out of his hand and perhaps taken by the accused No.3; Pravin, but did not return it to the witness. As a result, witness complained to his elder brothers, who are injured witnesses and therefore, all the injured witnesses proceeded to the residence of accused No.3; Pravin, where the co-accused (brothers) were also present and the scuffle ensued. During this, it is alleged that accused No.3; Pravin took out knife and inflicted injuries on the deceased, resulting into his death. 5. Learned Additional Public Prosecutor has submitted that an error is committed by the Sessions Court in acquitting the respondents-accused, as the Court has erroneously not believed the evidence of witnesses, who are not only the eye-witnesses, but are injured eyewitnesses. It is submitted that each of this witnesses have clearly deposed the manner in which, the assault was carried out and have also given role to each of the accused in the assault. There was no reason to disbelieve the evidence of this eye-witnesses. 6. It is submitted that each of this witnesses have clearly deposed the manner in which, the assault was carried out and have also given role to each of the accused in the assault. There was no reason to disbelieve the evidence of this eye-witnesses. 6. It is submitted that version of this eye-witnesses was corroborated by the Medical evidence in as much as the treating Doctor / Postmortem performing Doctor have clearly indicated that the injuries suffered by the deceased as well as witnesses and have deposed that such injury could be caused by the weapons attributed to the accused and especially, injuries caused to the deceased was possible by the knife and therefore, the State was able to establish beyond doubt that the cause of death was homicidal. 7. Learned Additional Public Prosecutor has further submitted that even from the defense taken by the respondents-accused that the accused had acted in self defense will itself go against the respondents-accused, as their presence in the scene of offence and participation was in itself established. 8. As against this, learned Advocate appearing for the respondents-accused has submitted that the respondents-accused have been acquitted way back in the year 1993 and therefore, after belated period, such acquittal may not be converted into conviction. More particularly when the Sessions Court has attributed sufficient reasons and the prosecution has failed to make out any perversity in the judgment and order of the Sessions Court. Till such time, acquittal may not be disturbed. 9. It is submitted that though the incident has taken place resulting into death of a person that in itself is not sufficient for conviction under Section-302, particularly, when even as per the case of the prosecution, the complainant side were aggressor, who had come to the residence of the respondents-accused. Therefore, there was no element of premeditation or mensria. Therefore, the benefit, which is given to the respondents-accused, judgment of acquittal, may not be disturbed. Therefore, there was no element of premeditation or mensria. Therefore, the benefit, which is given to the respondents-accused, judgment of acquittal, may not be disturbed. 10.Having considered the submissions made and having perused the documents on record, it appears that the respondent-accused No.1; Rameshbhai Punjabhai Rathod aged 21 years, respondent-accused No.2; Jayantibhai Punjabhai Rathod aged 19 years and respondent-accused No.3; Pravin @ Punjabhai Rathod aged 18 years, at the relevant time, were charged for the offences under Sections-302, 307, 326, 323 read with Section-114 of the Indian Penal Code in connection with an incident, which took place on 08-03-1993 in the night at 10.00 hours. From the charge framed against the respondents-accused vide Exh-1 would indicate that the accused No.3 had inflicted the blow with knife in the chest of Girishgiri Ganpatgiri resulting into his death and other accused Nos.1 and 2 had abated such offence. The accused were also charged with Section-307 as the accused No.3 had inflicted injury on the stomach of injured witness; Gordhan Natha Kumbhar and there also, the accused Nos.1 and 2 had abated the offence, whereas it was also charged with the accused No.3 with the use of stick had inflicted injury on witness; Rajugiri Ganpatgiri, whereby committed offence under Section-326, where the accused Nos.1 and 2 had abated the offence and the accused No.1 was charged for inflicting stick injury on witness; Hashmukhgiri Ganpatgiri; thereby charged for offence under Section-323. The accused No.2 was charged for inflicting stick injury on the witness; Dipakgiri and thereby charged for offence under Section-323. 11. In each of the offences, co-accused are charged for having abated such offences. Perusal of the evidence on record would indicate that during the course of investigation, panchnama for the scene of offence, panchnama for discovery of weapons, etc. were carried out. However, none of the panch-witnesses have supported the case of the prosecution. 12.Undoubtedly, the prosecution have examined the Medical Officer vide Exh-8; Dr. Shobhnaben Mehta, who has examined injured witnesses as well as Gordhanbhai Natha and performed the Postmortem of deceased; Girishgiri Ganpatgiri Goswami. The injuries caused on the eye-witnesses and the cause of death of the deceased, it was established that the deceased had suffered homicidal death. 12.Undoubtedly, the prosecution have examined the Medical Officer vide Exh-8; Dr. Shobhnaben Mehta, who has examined injured witnesses as well as Gordhanbhai Natha and performed the Postmortem of deceased; Girishgiri Ganpatgiri Goswami. The injuries caused on the eye-witnesses and the cause of death of the deceased, it was established that the deceased had suffered homicidal death. However, at this stage, it would be pertinent to refer to the deposition of the injured eye-witness; Gordhan Natha, who has examined vide PW-11 at Exh-42 to indicate that this witnesses though injured eye-witness, has not supported the case of the prosecution at all. It is relevant to so observed, as other eyewitnesses so called injured namely PW-3; Dipakgiri Ganpatbhai and PW-4; Rajeshgiri Ganpatgiri were brothers of the deceased and were aggressor, who went to the residence of the respondentsaccused to confront them, when the incident took place. Therefore, they could not be considered as independent eye-witnesses. 13.The Court has taken into consideration the evidence of Dipakgiri Ganpatbhai vide PW-3, who has deposed that the root why the incident took place, when he had gone to attend the celebration of ‘Holy’ and had offered coconut into ‘Holi’ fire, his wrist-watch has slipped out of his hand and he suspected that the same was taken by the accused No.3, who did not return to him. Therefore, after this accused informed the same to his other brothers, all of them proceeded towards the house of the respondents-accused, where the incident took place. Evidence of these two witnesses i.e. PW-3; Dipakgiri Ganpatbhai and PW-4; Rajeshgiri Ganpatgiri does indicate that witness; PW-11; Gordhanbhai was also in their company, this witness, as per the case of prosecution was injured when they came arrived at the scene of offence. However, Gordhanbhai has not supported the case of the prosecution. 14.One more aspect, which is required to be seen, is that though the nature of injuries sustained by the deceased, is only stab wound, as expressed in Column No.17 of the Postmortem Note vide Exh- 10. This witnesses have proceeded to implicate the accused Nos.1 and 2 also by attributing them with assault by using stick. 14.One more aspect, which is required to be seen, is that though the nature of injuries sustained by the deceased, is only stab wound, as expressed in Column No.17 of the Postmortem Note vide Exh- 10. This witnesses have proceeded to implicate the accused Nos.1 and 2 also by attributing them with assault by using stick. This assault by the stick was not proved, as the injured witness by such assault with stick namely Gordhanbhai has not supported the case of the prosecution and in his deposition, evidence in chief, he has not even given the name of any of the accused, but he has deposed that when he went to the place of ‘Holy’, there was already commotion taking place and the witness received blow on the head, thereby losing his consciousness and he fell down. 15.Therefore, on one hand, there is evidence of independent eyewitness and on the other hand being the evidence of interested eye-witness, in the opinion of the Court, the Sessions Court has not committed an error in disregarding the evidence of so called eye-witnesses, who appears to be interested. 16.The Court has also taken into consideration the fact that though the scientific evidence in the form of F.S.L. report on blood-stains being found on the knife. The same would be the matter of doubt particularly, as no panch-witness has supported the case of the prosecution, while drawing the panchnama to take samples of blood or discovery of weapon on which the blood-stains were found. 17.Attempt on the part of the prosecution that since it is the case of self defense, the involvement of the accused in the incident cannot be ruled out. The Sessions Court has rightly examined the issue and relying upon the decision of the Apex Court, has concluded that even if the accused have taken up stand of self defense, still the prosecution is not absolved of its responsibility to prove the offence beyond reasonable doubt. 18.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. 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. 19. This Court has found from the record that though at the time of admission, bailable warrants have been issued, the respondents-accused were not being represented and therefore, separate notices were issued to enable the respondents-accused to engage the Advocate to represent them. The Report is submitted by Chalala Police Station in response to the order of this Court that accused No.3 has been convicted in separate offence arising out of C.R. No.I-56 of 2001 registered with Chalala Police Station and the Appeal against conviction being Criminal Appeal No.437 of 2005 has also been dismissed and therefore, in-so-far as accused No.3 is concerned, he is undergoing life imprisonment in another offence. 20.Therefore, in view of the aforesaid reasoning and so also, reasoning given by the Sessions Court in recording the acquittal, the Court does not find any reason to interfere with the acquittal recorded. 21. In the result, the appeal fails and is dismissed. The judgment and order dated 04.11.1996 passed in Sessions Case No.55 of 1993 by the Additional Sessions Judge, Amreli stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. 21. In the result, the appeal fails and is dismissed. The judgment and order dated 04.11.1996 passed in Sessions Case No.55 of 1993 by the Additional Sessions Judge, Amreli stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned Trial Court, forthwith.”