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2024 DIGILAW 1903 (GUJ)

STATE OF GUJARAT v. BAJARANG @ BABU GAURISHANKAR

2024-10-14

BIREN VAISHNAV, MAULIK J.SHELAT

body2024
JUDGMENT BIREN VAISHNAV, J. 1. This acquittal appeal has been filed under Sec.378 of the Code of Criminal Procedure, challenging the judgment and order dated 25.02.1997 passed by the Additional Sessions Judge, Porbandar, in Sessions Case No. 10 of 1995. 2. The State is in appeal by way of the impugned judgment before us. The accused has been acquitted of the charges leveled against him under Sec.450, 452 and 302 of the Indian Penal Code. 3. That on 12.12.1994, at 4:00 a.m. in the morning, the respondent entered the house of his father, Gaurishankar Rajyaguru with an intention to kill. He, with sickle in his hand, inflicted blows on his father’s head, back and eyes which resulted in the death of the father. Several witnesses were examined by the prosecution. The Session Court, essentially having perused the depositions of the respondents, wife-Varsha, the depositions of the assailant, respondent-brother Somnath and Ramshankar at Exhs. 18 and 12 read in conjunction with the deposition of Police Sub Inspector Shri Chavda at Exh.34 and also the Dying Declaration recorded by the Executive Magistrate in conjunction with the medical evidence of Dr. Vyas who carried out the primary treatment on admission of the deceased and Dr. Nathwani, who carried out the post-mortem found that the testimonies of the relative i.e. the wife and the sons when read in context of the dying declaration did not inspire confidence, inasmuch as, neither the identity of the respondent assailant was confirmed nor were the injuries that the deceased sustained caused death. Hence, the judgment and order acquitting the respondents. 4. We have independently been taken through the evidence of the witnesses in question. 5. At Exh.12, Ramshankar Gaurishankar, the brother of the respondent has been examined. In his Examination-in-Chief, he states that he identifies Babubhai alias Bajrang, the accused sitting in the Court. That they were five brothers. Narbheshankar and Somnath were two brothers staying at Chhayagam in their own separate houses. Brother Bhawanishankar was staying at Bileshwar. The father was staying separately alone. The house had four rooms of which two rooms were rented to one Tulsidas and Lakhabapu. Bajrang, the respondent herein was staying separately. That there was no electricity in the room occupied by the father. That he was informed of his father’s injuries at 7:15 in the morning when he was at Birla factory. The father was staying separately alone. The house had four rooms of which two rooms were rented to one Tulsidas and Lakhabapu. Bajrang, the respondent herein was staying separately. That there was no electricity in the room occupied by the father. That he was informed of his father’s injuries at 7:15 in the morning when he was at Birla factory. He immediately rushed to the hospital where he found his brother Somnath and Narbheshankar. He did not ask his father as to what and who had inflicted the blows and that who had caused such injuries. The father was fully conscious. He neither discussed nor questioned his father who was present or tried to find out the reasons for his father’s injuries. The father was fully conscious and recognized all the three brothers who were present in the room. Five days after the incident i.e. on 16.12.1994, his father asked for a cup of tea and when requested that he may take rest, he tried to get up, but he failed as a result of which he sustained injuries on his head. 5.1 In the cross-examination, the witness submits that his father had a weak eyesight and was hard of hearing. That whenever he went to meet his father, he would give his name out and greet him with the phrase “Jay Bajrang.” He would confuse the names of the sons with their brothers as a result of failing memory. Where the father was staying, there was an idol of Hanuman as father was believing in black magic. He would continue to utter words like “Jay Bajrang.” There was no toilet or electricity in the room where his father was staying. That the father was continuously in a state of mind which would exhibit lack of alertness. On the date prior to the date of the incident, the father had a fall. 5.2 The tenant, Nimuben was examined at Exh.13. Nimuben in her deposition would submit that there was no electricity in the room which the complainant Gaurishankar occupied. There was no facility of toilet or a bathroom in his room. On the date prior to the date of the incident, the father had a fall. 5.2 The tenant, Nimuben was examined at Exh.13. Nimuben in her deposition would submit that there was no electricity in the room which the complainant Gaurishankar occupied. There was no facility of toilet or a bathroom in his room. 5.3 In her cross-examination, she would depose that on 12.12.1994, i.e. on the date of the incident, when she came out at 5:00 in the morning, she heard the respondent’s wife Varsha shouting that on insisting, the father-Gaurishankar, opened the door from inside, that the father Gaurishankar would for the whole day continue to chant the name Bajrang. 5.4 The Police Inspector, Shri Bhupat Chavda, who was examined at Exh.34 in his deposition would submit that while he was patroling at Zundada close to the house of the deceased, he found Gaurishankar in an injured condition. He took the injured to the hospital named Bhavsinhji. While his treatment was on, his dying declaration was recorded. It was thereafter, that he recorded the First Information Report and a complaint was thereafter lodged at the Kamlabagh Police Station. The complaint of the father Gaurishankar was recorded at 7:00 a.m. in the morning. That no other complaint was recorded though the deceased Gaurishankar was fully conscious. He summoned the Executive Magistrate to record the complaint. 5.5 Dr. Vyas, who treated the deceased, is examined at Exh.31. He would submit that while he was on duty at Bhavsinhji Hospital on 12.12.1994, Gaurishankar was brought in at 5:20 a.m. There were wounds on various parts of the body. He would identify the sickle and would submit that the wounds that the injured sustained were possible to have been inflicted by the instrument in question. He has gone through the Dying Declaration at Exh.17 and he was present when such a Dying Declaration was recorded by the Executive Magistrate and that the Dying Declaration given by the deceased was given in his full consciousness. 5.6 In the cross-examination examination, it has come out that the injuries that the deceased sustained were not sufficient enough to cause death. That he had given a certificate that the deceased was in complete conscious state of mind when the Dying Declaration was recorded. He would submit that on reading the case papers, it was clear that the condition of the deceased was not stable. That he had given a certificate that the deceased was in complete conscious state of mind when the Dying Declaration was recorded. He would submit that on reading the case papers, it was clear that the condition of the deceased was not stable. On 16.12.1994, as a result of a constant rise in the blood pressure at 6:20 a.m. in the morning, the patient suffered paralysis. As a result of the high blood pressure or as a result of his head hitting the bed, there was a rupture causing subdural haematoma. He would admit that on admission when asked as to who had caused the injuries, the deceased had not named anybody and the Dying Declaration was recorded in the presence of the relatives. 5.7 Dr. Nathwani, who carried out the post-mortem, has been examined at Exh.8. Reading the cross-examination of the doctor would indicate that looking to the age of the deceased, the injuries that he had sustained would also be possible as a result of the hitting of the head with any object. That the injuries that were recorded in column No. 17 of the post-mortem report were external injuries, were not of such a nature that could have caused death. The Post-Mortem Report, is at Exh.10, which indicates that the cause of death was due to cardio respiratory failure. The Dying Declaration is at Exh.17, which is in the form of questions and answers. On the question put to the deceased as to what happened, he would answer it by saying that he was hit by his son Bajrang Gaurishankar, that he was hit by a ‘Dantarda’. On a question as to whether Bajrang was alone, the declarant would submit that his wife intervened to stop his son from inflicting wounds on the father. Question No. 11, elicited an answer to the fact that Bajrang would tell his father that he wanted to use the toilet in the room. 5.8 Assessment of these evidences would indicate that the knowledge of the incident that happened at 4:00 a.m. was first noticed by the Police Inspector, Shri Chavda, whose testimony has been recorded at Exh.34. What comes to fore is that though the incident occurred at 4:00 a.m. in the morning and as per his version he took the patient to the Bhavsinhji Hospital at 5:20 a.m. as even recorded by the doctor who was treating him, i.e. Dr. What comes to fore is that though the incident occurred at 4:00 a.m. in the morning and as per his version he took the patient to the Bhavsinhji Hospital at 5:20 a.m. as even recorded by the doctor who was treating him, i.e. Dr. Vyas, who is examined at Exh.31, it has come on record that the First Information Report was only recorded two hours after the incident at 7:15 a.m. What has come from the evidence of the son Ramshankar on record is that the father was aged 83. That he had incoherent state of mind, was hard of hearing and seeing, that he would fail to recognize the sons and identify by their names. That he confused one son for the other. That a Hanuman idol was installed and the father would keep on muttering “Jay Bajrang” which was an alias for the respondent’s identity. 5.9 The tenants, especially the deposition of Nimuben would indicate that the room which was occupied by the deceased had no toilet facilities, nor did it have electricity. It is an admitted position from the deposition of the Executive Magistrate who had recorded the Dying Declaration that the deceased at the time of recording of the Dying Declaration was fully alert. It was not thought fit by the Police Officer Shri Chavda who brought him to the hospital to record his complaint first and then invite the Executive Magistrate for recording the Dying Declaration. Though the panchnamas have turned hostile, it has come on record through the cross-examination that the room which was occupied by the assailant had no electricity. The Post-Mortem Report when read with the other medical evidences i.e. of the doctors who treated him and the one who carried out the post-mortem would indicate that the injuries that the deceased had sustained were not serious enough to warrant death. In fact, it has come on record through the evidence of doctor who carried out the post-mortem when read in conjunction with the evidence of son Ramshankar that it is possible that the injuries that the deceased sustained were as a result of a fall and hitting of the head with the bed. That the deceased succumbed to high blood pressure on 16.12.1994, four days after the incident. 6. That the deceased succumbed to high blood pressure on 16.12.1994, four days after the incident. 6. Taking a consolidated view of this set of witnesses, when it was found that the father-deceased, had a weak mind, eyesight and was hard of hearing and would continue to mutter “Jay Bajrang” and confused the identities of his sons, compounded by the fact that the police recorded the F.I.R only two and a half hours after the incident, the learned Judge found that solely relying on the Dying Declaration in absence of any supporting evidence would not inspire confidence on the Dying Declaration. The Trial Court, therefore, acquitted the accused. 7. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under: “6. This Court has held in Kalyan v. State of U.P. (2001) 9 SCC 632 : “8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram vs. State of Himachal Pradesh, (1973) 2 SCC 808 , this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed: “27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of “The Proof of Guilt” by Glanville Williams, second edition: “I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos.” 28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793 , as is clear from the following observations: “Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure considerations.” “9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court.” 8. In Arulvelu and another vs. State, (2009) 10 SCC 206 , the Supreme Court after discussing the earlier judgments, observed in Para No. 36 as under: “36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court’s view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.” 8.1 As observed by the Hon’ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh, (2011) 11 SCC 444 and Bhaiyamiyan Alias Jardar Khan and Another 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. 9. Scope of appeal against acquittal is well laid down in case of Chandrappa and Ors. vs. State of Karnataka, (2007) 4 SCC 415 , it was observed: “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.” 10. Even recently, the Apex Court in the case of Babu Sahebagouda Rudragoudar and Others vs. State of Karnataka, (2024) 8 SCC 149 has held as under: “39. (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.” 10. Even recently, the Apex Court in the case of Babu Sahebagouda Rudragoudar and Others vs. State of Karnataka, (2024) 8 SCC 149 has held as under: “39. This Court in the case of Rajesh Prasad v. State of Bihar and Another, (2022) 3 SCC 471 encapsulated the legal position covering the field after considering various earlier judgments and held as below: “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] “42. From the above decisions, in our considered view, the following general principles regarding powers of the 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 Criminal Procedure Code, 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 emphasise 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 is 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 is 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.” 40. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: “8.1.The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence. 8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record. 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible. 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles: 41.1 That the judgment of acquittal suffers from patent perversity. 41.2 That the same is based on a misreading/omission to consider material evidence on record. 41.3 That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. 42. 41.2 That the same is based on a misreading/omission to consider material evidence on record. 41.3 That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. 42. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.” 11. Considering these set of evidences on record and in light of the latest decision of the Apex Court as reproduced hereinabove, which deals with the law on acquittal, we are of the opinion that no error has been committed by the learned Additional Sessions Judge, Porbandar, in Sessions Case No. 10 of 1995 in acquitting the respondents. 12. The appeal is accordingly dismissed. Resultantly, the impugned judgment and order of the trial court is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings, if called for, be sent back to the concerned Trial Court forthwith.