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2024 DIGILAW 1935 (GUJ)

State Of Gujarat v. Madhav Govind Sagathiya

2024-10-17

BIREN VAISHNAV, MAULIK J.SHELAT

body2024
JUDGMENT : BIREN VAISHNAV, J. 1. This appeal has been filed by the appellant State under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the judgement and order of acquittal passed by the learned Additional Sessions Judge (Fast Track Court), Jamnagar in Sessions Case No. 138 of 2001 on 30.07.2003, whereby, the Trial Court has acquitted the respondents-accused for the offences punishable under Sections 302, 324, 325, 326 read with 114 of the Indian Penal Code (“IPC” for short) and also under Section 135(1) of the Bombay Police Act. 2. The brief case of the first informant as alleged in the First Information Report which had ultimately given rise to the present appeal are as follows: 2.1 It is the case of the prosecution that the complainant Narubhai Jethabhai Varagiya, a resident of village Dadiya, Dist: Jamnagar has three brothers. On 15-7-2001, at about 7:00 a.m. in the morning, the complainant was sleeping. At that time his wife, Muriben shouted so as to wake up the complainant as his brother was being beaten up in the market by the accused persons. The complainant thereupon got up and immediately went to the market where he found the accused no.2 Aala Bechar armed with axe and the accused nos. 1 and 4 armed with iron pipes inflicting blows on the head of the deceased Punjabhai. That Punjabhai therefore, fell down on the road. The complainant went to him. However, the accused no.4 inflicted a pipe blow on the right side of the head of the complainant and the accused no.1 inflicted a pipe blow on the left hand of the complainant and thereby caused fracture on left hand of the complainant. That the accused no.3 Bechar Paba pelted stones one of which hit the waist of Karsan - the elder son of the complainant. That the accused no.1 inflicted a pipe blow on the head of the son-in-law of the complainant. That the accused no.1 also inflicted pipe blows on Sadurbhai and his wife Devi Sadur. Thereafter the accused fled away from the scene of offence. 2.2 It is further the case of the prosecution that all the injured were taken to Irvin Hospital, Jamnagar for treatment. The police after investigation charge sheeted the accused for the aforesaid offences. Investigating Agency during the course of investigation recorded statements of the witnesses, drew various panchnamas etc. Thereafter the accused fled away from the scene of offence. 2.2 It is further the case of the prosecution that all the injured were taken to Irvin Hospital, Jamnagar for treatment. The police after investigation charge sheeted the accused for the aforesaid offences. Investigating Agency during the course of investigation recorded statements of the witnesses, drew various panchnamas etc. After having found sufficient material against the respondents - accused, charge sheet came to be filed which was numbered as Chargesheet No.107 of 2001. 2.3 Upon committal of the case to the Sessions Court, Jamnagar, the Ld. Sessions Judge, framed charges vide Exh.5 against the respondents - accused for the aforesaid offences. The respondents - accused pleaded not guilty and claimed to be tried. They were tried for the said offences and in order to bring home charge, the prosecution examined 10 prosecution witnesses and also produced various documentary evidence before the Trial Court. The details of the evidence led by the prosecution are reproduced in the tabular form hereunder: Oral Evidences Sr.No. Exh. No. Name of Witness Nature of Witness Remarks 1. 14 Narubhai Jethabhai Brother of the deceased Hostile 2. 15 Deviben Sadurbhai Sister-in-law of the deceased Hostile 3. 16 Karshanbhai Narubhai Son of Witness no.1 Hostile 4. 17 Rama aka Ramji Devsur Son-in-law of the deceased Hostile 5. 18 Dr. Rakhachandra Datta Post Mortem Officer 6. 21 Dr. Suraj Chatvani Medical Officer 7. 34 Ranjitsingh Chavda PSO, Jamnagar 8. 37 Mahendrasingh Chudasama Constable, Jamnagar 9. 38 Sadurbhai Jethabhai Brother of the decease 10. 39 Rajendra Barot PSI, Jamnagar Documentary Evidence Sr. No. Exh.No. Name of Witness 1. 20 Post Mortem Report 2. 27-33 Injury Certificate 3. 35 Station Dairy 4. 40 FIR 5. 45 D.D. Form 6. 55 Mudamal List For F.S.L 7. 61 F.S.L Report 8. 76-83 Medical Papers 9. 84 Photographs 2.4 Thus, prosecution had examined the complainant and other witnesses, medical officers and the police witnesses, which according to the prosecution have brought home the charge in support of their case. The prosecution has also relied upon documentary evidences in support of the oral evidence led by them before the Trial Court. 2.5 At the end of the evidence, necessary pursis was presented before the Trial Court and the Trial Court has thereafter proceeded to record the further statement of the accused under Section 313 of the Code of Criminal Procedure. The prosecution has also relied upon documentary evidences in support of the oral evidence led by them before the Trial Court. 2.5 At the end of the evidence, necessary pursis was presented before the Trial Court and the Trial Court has thereafter proceeded to record the further statement of the accused under Section 313 of the Code of Criminal Procedure. With such evidence being noted, the Trial Court after evaluating the same, arrived at a conclusion that the prosecution has failed to prove the charge against the respondents - accused and has thereby recorded acquittal. In view of the aforesaid facts and circumstances, this appeal has been preferred by the State. 3. Mr. Hardik Soni, learned APP appearing for the appellant State has submitted that despite there being clear evidence by the prosecution that the offence under Section 302 IPC was committed on him by the respondent accused, the trial court has acquitted the respondents. He submitted that there are injuries on the body parts of the deceased and those injuries have been supported by the medical examination and hence to discard such evidence, no cogent reasons have been assigned by the trial court and the respondent accused persons ought to have been convicted for the offences punishable under section 302 IPC and others. 3.1 He would submit that the findings of acquittal are contrary to law and the evidence on record in the findings recorded are erroneous and based on irrelevant material. It is further contended that Trial Court has committed an error in acquitting the respondents and in fact has not properly appreciated the evidence produced on record though the prosecution had proved case against the accused. It is further contended that Trial Court has given weightage to the minor omissions and contradictions in the witnesses though there was no material omission and contradiction in the evidence of the witnesses. 4. Mr. Pratik Barot, learned advocate has been requested to assist the court as Amicus Curie on behalf of the respondents – accused. He has drawn the attention of this court to the testimonies of the complainant and the prosecution witnesses who have turned hostile and that there is no material evidence to prove the guilt of the accused. He has submitted that the trial court has rightly acquitted the accused and that no interference be caused in the present appeal. 5. Having heard Mr. He has submitted that the trial court has rightly acquitted the accused and that no interference be caused in the present appeal. 5. Having heard Mr. Hardik Soni, learned APP and Mr. Pratik Barot, learned Amicus Curie and reading the evidence on record, particularly the charge sheet at Ex. 5 (page 33 of the paper book), it is evident that as per the incident, it was the case of the prosecution that on 15.07.2001 at about 7 am in the morning, while the complainant – Narubhai Varagiya was sleeping, his wife Muriben shouted that his brother Punjabhai Jethabhai was being beaten up. It was the case of the prosecution that the accused nos. 1 & 4 armed with pipes were inflicting blows on the deceased Punjabhai Jethabhai whereas accused no. 2 Mala Bechar was armed with an axe. 5.1 When we peruse the judgement of the trial court, we find that the trial court, on the examination of evidence on record i.e. the evidence of the complainant at Ex. 14, has found that the complainant does not support the complaint. It has come on record that he denied that he had taken the deceased to the hospital and in fact he denied the occurring of the incident at all. 5.2 The trial court also on examination of the evidence of Deviben Sadurbhai – the wife of Sadurbhai at Ex. 15 and the evidence of injured witness P.W. 3 Karshanbhai Narubhai at Ex. 16 found that it was his testimony that he had not seen the incident. Ramji Devsar who was the son-in-law of the complainant was examined at Ex. 17. Dr. Suraj Chhatwani who was examined at Ex. 21 and who had treated the deceased Punjabhai and the injured witnesses Ramji Devsar and Narubhai Jethabhai found that the Ramji, Sadur, Deviben Sadur and Punja Jetha had sustained injuries. However, the important evidence which is at Ex. 38 of Sadur Jetha had suggested that he could not witness the incident as he was asleep and therefore a lot of dust that had resulted in his not being able to exactly see the incident. 6. We therefore need to examine the evidence of these witnesses. Narubhai Jethabhai, the injured witness was examined at Ex. 14 as P.W. 1. He has turned hostile. Similarly, P.W. 2 Deviben – wife of Sadurbhai who was also injured in the incident turned hostile. 6. We therefore need to examine the evidence of these witnesses. Narubhai Jethabhai, the injured witness was examined at Ex. 14 as P.W. 1. He has turned hostile. Similarly, P.W. 2 Deviben – wife of Sadurbhai who was also injured in the incident turned hostile. Karshan Narubhai – the son of Naru Jethabhai was declared hostile in the incident in question. 6.1 Before us therefore is the medical evidence in the form of medical testimony in the form of examination of Dr. Suraj Chhatwani. In his examination, it has come on record that the three witnesses as well as Punjabhai Jethabhai the recipient of the injuries whose injuries caused death were at his hospital and had come for the treatment on the date of incident at 8.15 am. It was their case that the incident had occurred at 7.30 in the morning. The evidence of this witness indicates that Sadur Jetha had informed them that somebody had inflicted the injuries at 7.30 am. From the cross examination of this witness, it is admitted by him that in the case history recorded by him they had only suggested that they had been assaulted by somebody. No names implicating the accused were mentioned in the case history recorded by this medical officer. Except one certificate which indicates that the injuries had been sustained was by Pala Bechar – the accused no. 4, the medical certificates produced on record at Exs. 24 & 25 only indicate that ‘alleged assault by somebody’. 6.2 When the above is examined in context of the important witness Ex. 38 Sadur Jethabhai i.e. his cross examination, it is borne out that his wife started shouting at early morning hours informing him that somebody was beating his brother. When he came out, he was in a drowsy condition and he could not witness the incident clearly as there was a lot of dust in the atmosphere. Before he could witness anything, he was inflicted a blow as a result of which he collapsed. 6.3 On a conjoint reading of all these evidences therefore, the trial court recorded that neither of the injured witnesses supported the case of the prosecution. Apart from they turning hostile, the certificates of recording case history indicated that they were assaulted by somebody. 6.3 On a conjoint reading of all these evidences therefore, the trial court recorded that neither of the injured witnesses supported the case of the prosecution. Apart from they turning hostile, the certificates of recording case history indicated that they were assaulted by somebody. The witness Sadurbhai who was present at the incident pleaded ignorance of having not been able to recognise the presence of any of the assailants as a result of he being sleepy and also as a result of unsettled dust which was in the air and before he could so realise, he fainted as a result of the injuries sustained by him. 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 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. 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 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. 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.