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2024 DIGILAW 1916 (GUJ)

State Of Gujarat v. Bharta Keshva Rathod

2024-10-15

BIREN VAISHNAV, MAULIK J.SHELAT

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JUDGMENT : Biren Vaishnav, J. 1. This appeal under Section 378 of the Code of Criminal Procedure, 1973 has been filed against the judgement and order of acquittal dated 26.03.1997 passed by the learned Additional Sessions Judge, Dahod in Sessions Case No. 67 of 1996. By the judgment under challenge, the trial court has acquitted the respondents – accused for the offences punishable under Sections 302, 294 and 114 of Indian Penal Code. 2. The case of the prosecution in the First Information Report is that on 11.09.1995 at around 1700 hours deceased namely Nanabhai Dalsingbhai Rathod was sitting outside his residence. At that point of time, all four accused persons with an intention to commit murder arrived at the house of the deceased and started abusing him about the construction of the wall near the house of the deceased. It is alleged that accused no. 1 and accused no.2 gave kick and fist blows to the deceased with an intention and knowledge that such an act would cause death of deceased. It is also alleged that accused no. 3 & 4 arrived and started beating the deceased. 2.1 Pursuant to the said incident, a First Information Report was lodged with Garbada Police Station, Panchmahals for the offences punishable under Sections 302, 294 and 114 IPC vide I-C.R. No. 80 of 1995. Statements of the witnesses were recorded. Panchnamas were drawn including the panchnama of the scene of offence. Post Mortem report was prepared and the accused were chargesheeted. 2.2 On committal of the case to the Sessions Court, the learned Judge framed charge at Ex. 2. The accused pleaded not guilty. Seven prosecution witnesses were examined and documentary evidence, 10 in number were placed for consideration. They are as under: Oral Evidences Sr. No. Ex. No. Name of Witness Nature of Witness Remarks 1. 8 Bachubhai Dalsingbhai Eye Witness Hostile 2. 9 Nathiben Manabhai Eye Witness 3. 10 Vashliben Kaliyabhai Eye Witness 4. 11 Ditabhai Javabhai Eye Witness Hostile 5. 16 Bhaliya Kachara Eye Witness Hostile 6. 17 Dr. Babulal Badriprasad Medical Officer 7. 23 Hasmukhlal Arjanbhai Vadiya Investigating Officer Documentary Evidences Sr.No. Ex. No. Name of Witness Remarks 1. 12 Inquest Panchnama 2. 13 Panchnama of place of incident 3. 14 Panchnama of house of the Accused 4. 15 Panchnama of recovery of the cloths of the deceased 5. 19 Postmortem note 6. 20 Postmortem certificate 7. Babulal Badriprasad Medical Officer 7. 23 Hasmukhlal Arjanbhai Vadiya Investigating Officer Documentary Evidences Sr.No. Ex. No. Name of Witness Remarks 1. 12 Inquest Panchnama 2. 13 Panchnama of place of incident 3. 14 Panchnama of house of the Accused 4. 15 Panchnama of recovery of the cloths of the deceased 5. 19 Postmortem note 6. 20 Postmortem certificate 7. 21 Medical Certificate of PW 2 - Nathiben Manabhai 8. 22 Medical Certificate of PW 1 Bachubhai Dalsingbhai 9. 24 Complaint of Bachubhai Dalsingbhai 10. 25 Police Yadi for postmortem examination 2.3 On examination of the complainant, eye witnesses, medical officer, police witnesses and after recording the 313 statement of the accused, the trial court after evaluating the evidence, arrived at a conclusion that the prosecution has failed to prove the charges against the accused. It thereby recorded acquittal. 3. We have independently examined the deposition of the prosecution witnesses and assessed the evidence. What we note is that P.W. 1 Bachubhai Dalsingbhai – the brother of the deceased turned hostile. The other two eye witnesses namely Ditabhai Javabhai and Bhaliya Kachra who were neighbours and eye witnesses to the incident also turned hostile. 4. Mr. Hardik Dave, learned Public Prosecutor would submit that the learned trial court committed an error in not appreciating the veracity and genuineness of the deposition of the two eye witnesses Nathiben Manabhai and Vashliben Kaliyabhai. The evidence of Nathiben who was examined as P.W. 2 at Ex. 9, in Mr. Dave’s submission, supported the case of the prosecution. The actual incident was deposed in a manner which clearly established the role each accused played namely accused no. 1 Bharat Keshav who had given kick blows on the whole body of the deceased. It was clear from her deposition that accused no. 2 came there and also gave kick blows. The complicity of accused no. 3 & 4 was also established as she confirmed their presence and their role in giving kick blows on the chest and back of the deceased. 4.1 Mr. Dave would take us through the evidence of Vashliben P.W. 3 at Ex. 10 who too corroborated the testimony of P.W. 2 inasmuch as the role played by each of the accused. He would submit that merely because different sequences of arrival of the accused was made, that would not be contradictory. The learned trial court discarded their evidence without any cogent reason. 10 who too corroborated the testimony of P.W. 2 inasmuch as the role played by each of the accused. He would submit that merely because different sequences of arrival of the accused was made, that would not be contradictory. The learned trial court discarded their evidence without any cogent reason. The presence of these two witnesses at the place of the incident was very natural and therefore there was no reason for not believing the said witnesses. The medical evidence of Dr. Babulal Mittal, P.W. 6 has successfully brought on record that the death was homicidal and because of the injuries suffered by the deceased during the course of the incident. 4.2 Mr. Dave would further submit that the acquittal is contrary to law and evidence on record and the trial court committed and error in acquitting the respondents. The trial court has given weightage to minor omissions and contradictions in the evidence of the witnesses though there was no major omissions and contradictions in the evidence. The reasons assigned by the trial court are unjust, improper, perverse and unwarranted. 5. We have independently assessed the evidence of the two eye witnesses Nathiben Manabhai and Vashliben Kaliyabhai. Though the witnesses have supported the case of the prosecution, the incident is reported in the following manner: (I) Accused No.1 Bharat Keshav came to her residence and dragged the deceased by his hairs and bring deceased out of the house whereat Bharat Keshav had given kick blows on the whole body of the deceased. (II) It is deposed that thereafter, Accused No.2 - Keshav Makan came there and he had also given kick blows on the body of the deceased. (III) She deposes that thereafter, Accused No.3 Vestabhai Keshavbhai came there and gave kick blows on the chest and back of the deceased. (IV) Thereafter, Keshav Valchand came there and he had also given kicks to the deceased which kicks to the deceased which landed on the deceased. (V) She further deposes that Accused No.1 - Bharat Keshav had dragged her away and thereafter, she saved her husband and brought her inside the house and make him to lie on the bed. (VI) Thereafter, she deposes that she has started preparing the dinner as and when, she asked the deceased to wake up for dinner, he did not wake up and he was dead. (VI) Thereafter, she deposes that she has started preparing the dinner as and when, she asked the deceased to wake up for dinner, he did not wake up and he was dead. (VII) She deposes that as she shouted, brother-in-law Bachubhai (PW 1) and other village people came there and in night hours, her brother-in-law had given a complaint. 5.1 Vashliben who is the wife of P.W. 1 and sister-in-law of the deceased, has though deposed with regard to the incident, the sequence of arrival of the accused in their depositions is different. Perusal of Nathiben’s evidence indicates that the sequence was that Bharat Keshav – accused no. 1 came first, then Keshav Makan, then Vesta Keshav and then Keshav Valchand in that order. However, in Vashliben’s testimony, the sequence indicates that Vesta Keshav came first, thereafter came Bharat Keshav, Makan Keshav and Keshav Valchand as well as wife of Vesta Keshav and gave kick and fist blows to the deceased. 5.2 It is under these circumstances that the examination of evidence it is also proved that the testimony of Nathiben could not be believed by the trial court as she herself was injured and the injury certificate was at Ex. 21. She had not deposed anything about the injuries suffered by her before the court. This made the prosecution story through this witness doubtful. 6. Medical evidence in terms of the deposition of Dr. Babulal Mittal as P.W. 6 has come on record. Except deposing that the deceased was having abrasion on the left ear of 5x5 inch and this injury being ante mortem, this witness had not deposed anything about any external injury on the body of the deceased. As far as internal injuries are concerned, this witness had deposed that the spleen of the deceased was 5x5 inch and was larger than the normal size. That the abdomen was filled with blood. Except these two injuries the witness has not deposed about any other internal injury. 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. Except these two injuries the witness has not deposed about any other internal injury. 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. In Kali Ram V. 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. 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. 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 versus State reported in (2009) 10 Supreme Court Cases 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. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (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 reported in (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, reappreciate 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 case [ 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, reappreciate 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 reappreciate 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; and 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. 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. Perusal of the judgement of the trial court would therefore indicate that the learned judge has opined that there does not seem to be a consensus on the evidence of the witnesses viz-a-viz medical evidence and accordingly such evidence also needs to be discarded. 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, Dahod 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.