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2024 DIGILAW 2066 (GUJ)

STATE OF GUJARAT v. VISHNUBHAI MANIBHAI BHOI

2024-11-25

A.Y.KOGJE, SAMIR J.DAVE

body2024
JUDGMENT : A.Y. KOGJE, J. 1. This appeal is filed by the State under Section 378(1) of the Criminal Procedure Code against judgment and order of acquittal dated 14.02.2024 passed by the Principal District and Sessions Judge, Kheda at Nadiad in Sessions Case No. 65 of 2022. 2. It is a case where on account of minor dispute of the accused with the father (since deceased), the son, loosing temper, assaulted the father with “dhoka” (wooden bat) resulting in serious injuries. 3. Learned APP submitted that the case is of an eyewitness, where the prosecution had examined PW-1 Kokilaben, Exh.12, who is mother of the accused and wife of the deceased and according to this witness, the incident had taken place in their house and therefore, she was a natural eyewitness. However, an error is committed by the Sessions Court in not treating her as an eyewitness. 3.1 It is argued that for not treating PW-1 as eyewitness, the Sessions Court has not given any convincing reasons, but has based its finding on the panchnama of scene of offence to conclude that the place where PW-1 was washing cloths, was outside the house whereas the incident has taken place inside the house and therefore, she was not treated as eyewitness. It is submitted that the Court has erred in not taking into consideration the other circumstances. 3.2 Learned APP has thereafter submitted that the prosecution was able to establish homicidal death by examining Medical Officer being PW-3 Dr. Metha Shah, Exh.15, who examined injured Manibhai Bhoi (since deceased) and before this witness, another neighbour-Manubhai Raval gave history of accused having assaulted the injured. 3.3 It is submitted that in this regard even, PW-8 Dr. Nirmala Matai, Exh.30 also gave similar history having examined injured Manibhai Bhoi, where also history of assault by the accused was given by a neighbour. 3.4 It is submitted that the prosecution has examined PW-14 Dr. Nisarg Humal, Exh.48, who performed postmortem and has described the injuries in his deposition as well as postmortem note, which was exhibited through him. In that fashion, the prosecution has established the homicidal death. 3.4 It is submitted that the prosecution has examined PW-14 Dr. Nisarg Humal, Exh.48, who performed postmortem and has described the injuries in his deposition as well as postmortem note, which was exhibited through him. In that fashion, the prosecution has established the homicidal death. 3.5 It is argued that the Sessions Court has failed to take into consideration evidence of PW-2 Sachin Shelke, Exh.14 and submitted that this witness was neighbour and when the incident took place, upon hearing shouts of help by Kokilaben as well as respondent-accused, he reached the place of incident and found respondent-accused standing with “dhoka” which other people from neighbourhood snatched away from him. 3.6 It is therefore submitted that despite the aforesaid evidence, the Sessions Court has proceeded to give benefit of doubt and acquitted the respondent-accused. 4. By order dated 24.10.2024, this Court had ordered for Records and Proceedings, which is available for the Court’s perusal. 5. Having heard learned APP for the appellant-State, it appears to be a case where the complainant is the mother, accused is son and deceased is her husband and father of accused. Out of the two sons, one son has already expired on account of his murder whereas according to this very witness, the respondent-accused was of unstable mind and had no control over himself. As the complainant (PW-1) in her deposition had indicated about unstable mind of the respondent-accused, apparently, exercise was undertaken to ascertain mental health of the respondent-accused so as to decide wither he is fit to stand trial and in this connection, Superintendent, Hospital for Mental Health, Vadodara issued certificate, Exh.7 dated 15.03.2023 opining that the Committee, after examination, held that the respondent-accused is fit to stand trial. 6. In connection with the incident, FIR being CR No. 11204041220572 of 2022 came to be registered with Mahemdabad Police Station, Dist. Kheda for offence under Section 302 of IPC. After due investigation, charge sheet No. 130 of 2022 came to be filed on 06.08.2022 and the case being Sessions triable, after due compliance of requirement of Section 207, sessions was committed on 03.09.2022. 7. Accordingly, trial had proceeded and vide Exh.8, charge came to be framed as under: “You the accused, at around 07:00 Hrs. on 02/07/2022, for the purpose of purchasing bidi, demanded money from your deceased father in the kitchen of the house No. 180, Gujarat Housing Board in Mouje Mahemdabad. 7. Accordingly, trial had proceeded and vide Exh.8, charge came to be framed as under: “You the accused, at around 07:00 Hrs. on 02/07/2022, for the purpose of purchasing bidi, demanded money from your deceased father in the kitchen of the house No. 180, Gujarat Housing Board in Mouje Mahemdabad. As he denied the same, suddenly you got instigated and pushed him and made him fall down. Thereafter, you inflicted the blow of wooden club to him, caused him grievous injuries and thereby committed his murder. Thus, you have committed offence punishable under Section 302 of the Indian Penal Code, in the jurisdiction of this Court.” 8. During trial, the prosecution examined following witnesses: S. No. Name of the witness Exhibit No. 1 Kokilaben Manibhai Bhoi 12 2 Sachinbai Madhukarbhai Shelke 14 3 Dr. Megha Kirtikumar Shah 15 4 Naynakumari Mohansinhji Rajput 17 5 Sherji Balwantji Rajput 19 6 Samirkhan Mustufakhan Pathan 23 7 Anilbhai Ashokbhai Jadeja 29 8 Dr. Nirmala Ram Matai 30 9 Mahipatbhai Karshanbhai Thakore 35 10 Sakirmiya Kasammiya Shaikh 38 11 Dineshbhai Chhotabhai Barot 42 12 Jayantibhai Ravjibhai Vaghela 43 13 Salimmiya Kalumiya Malek 47 14 Nisarg Karshanbhai Humal 48 15 Dharmendrasinh Bhagwatsinh Raol 52 16 Narendrabhai Dhanjibhai Nakum 54 8.1 The prosecution also brought on record the following documentary evidence: S. No. Name of the witness Exhibit No. 1 Complaint 13 2 Medical certificate of deceased of Mahemadabad Civil Hospital Medical 16 3 FSL Investigation Van report 18 4 Yadi to prepare map of scene of offence 20 5 Forwarding letter of sending map of scene of offence 21 6 Map of scene of offence 22 7 Panchnama of scene of offence 24 8 Panch slips taken out from muddamal article Nos. 1 to 4 25 to 28 9 Transfer chit of Mahemdabad Civil Hospital 31 10 Case papers of the deceased of Nadiad Civil Hospital 32 11 CT scan report of the deceased 33 12 Treatment certificate of the deceased of Nadiad Civil Hospital 34 13 Inquest panchnama of dead body of the deceased 36 14 Panch slip taken out from muddamal article No. 5, 6 39, 40 15 Panchnama of recovery of cloths of the deceased 41 16 Panch slip taken out from muddamal article No. 7, 8 44, 45 17 Panchnama body situation and recovery of cloths wore by the accused at the time offence 46 18 Yadi sent for conducting PM of the deceased 49 19 Original PM note 50 20 Cause of death certificate 51 21 Death form 53 22 Telephone verthy sent by Ahmedabad Civil Hospital to Ahmedabad Police Panchnama of investigation of rape-box of the accused 55 23 Slip of handing over of dead body 56 24 Outward entry of muddamal 57 25 FLS slip 58 26 FSL letter 59 27 FSL, biology and serilogical report 60 9. The Court may thereafter refer to the evidence of PW-3 Dr. Megha Shah, who was working as Medical Officer at CHC, Mahemadabad and examined the injured and had noted three injuries and thereafter referred the injured to higher center. At that time, history is recorded at the behest of neighbour Manubhai Raval. 10. PW-8 Dr. Nirmala Matai, Exh.30 was working with Nadiad Civil Hospital as Medical Officer when under reference made by CHC, Mahemadabad, she had examined injured Manibhai and at that time, he was found in unconscious state and history was given by neighbour Manubhai Raval. 11. The prosecution had examined PW-14 Dr. Nisarg Humal, Exh.48. He was the Medical Officer who performed the postmortem, which came to be exhibited vide Exh.50 and had noted 5 injuries and the cause of death as cardio respiratory arrest due to head injury. This witness has opined that the injury sustained by the deceased was sufficient to cause death in due course and has also opined that muddamal article No. 4, “dhoka” (wooden bat for washing cloths) and the injuries sustained can be caused by this article. This witness was cross-examined with regard to cause of death as he has opined cardio respiratory arrest, but this witness has attributed such cardio respiratory arrest to the head injuries. This witness was cross-examined with regard to cause of death as he has opined cardio respiratory arrest, but this witness has attributed such cardio respiratory arrest to the head injuries. Through witness, the prosecution has established homicidal death beyond reasonable doubt. 12. However, it would be relevant to consider the role of the accused and the evidence to support the role attributed by the prosecution of assaulting the deceased. For this purpose, the prosecution has examined PW-1 Kokilaben Manibhai Bhoi, Exh.12, who is the informant, wife of the deceased and mother of the respondent-accused. In her chief examination, she has indicated that in the morning hours at 07;00 am, when her husband, having taken bath, was relaxing, at that time, her son- Vishnu asked for some money to purchase “bidi” and the deceased handed over him Rs.50/- and also asked him to bring tobacco for himself. At that time, the respondent-accused assaulted his father. In the cross-examination, she has deposed that the respondent-accused is of unstable mind and is unpredictable in his behaviour. Perusal of evidence of this witness does not attribute any cause for such an assault like any previous altercation or dispute between the father and son because of which such assault can be carried out. Moreover, her stand in the cross-examination of the accused being of unstable mind also cannot be accepted in view of the medical opinion that the respondent is fit to withstand trial. The trial Court has not believed this witness as an eyewitness by taking into consideration other evidence brought on record, particularly place where incident taken place and the place where the eyewitness was in the house, which made it impossible for her to be an eyewitness. In this connection, the Court has examined evidence of the connected witness as well as documentary evidence being Exh.24 and Exh.19. Exh.19 being deposition of PW-5 Sherji Balwantji Rajput, who was working as Circle Officer, who prepared the map of the scene of offence and Exh.24 being panchnama of scene of offence. The location of the eyewitness was wash area located outside the house and completely covered by walls, making it impossible for an individual being there to witness happening in another part of the house.. The location of the eyewitness was wash area located outside the house and completely covered by walls, making it impossible for an individual being there to witness happening in another part of the house.. The Court has also perused Exh.22-map, which shows place of offence which is on the eastern side of kitchen whereas the witness was in the wash area, which is outside the constructed house in an open place on the western side. Apparently, there is no visibility from the wash area to the kitchen. Over and above this aspect, combined perusal of deposition of PW-1, panchnama of place of offence-Exh.24 and map-Exh.22 does not inspire confidence to base conviction of her version. 13. Another witness, PW-2 Sachin Shelke, Exh.14 who is the neighbour has deposed that when he reached scene of offence, he show the deceased in kitchen and was breathing his last and was lying in pool of blood whereas his son-accused was standing there with wooden bat in his hand. He had taken the injured to nearby hospital in auto-rickshaw. In his cross-examination, he was shown muddamal article No. 4 and has answered that he was not able to see any bloodstains on such article and has admitted that he has not seen how Manibhai received injuries. He has also deposed that since last many years, the respondent-accused has been of unstable mind. 14. PW-7 Anilbhai Jadeja, Exh.29 is the panch witness of scene of offence, but has not supported case of prosecution. Similarly, PW-6 Samirkhan Pathan, Exh.23, who is also a panch witness of place of offence and recovery of muddamal article, was also declared hostile. In his cross-examination, he has answered the question that he had been a panch witness in many investigations. 15. Thereafter, PW-9 Mahipatbhai Thakore, Exh.35 is a panch witness of inquest panchnama and has supported the case of prosecution, but his evidence is not relevant for the purpose of role of the accused. 16. With regard to cloths of the accused, the prosecution has examined PW-10 Sakirmiya Shaikh, Exh.38, but this witness has not supported the case of prosecution. Similarly, PW-11 Dineshbhai Barot, Exh.42, who is also a panch witness for cloths, has not supported the case of prosecution. 17. 16. With regard to cloths of the accused, the prosecution has examined PW-10 Sakirmiya Shaikh, Exh.38, but this witness has not supported the case of prosecution. Similarly, PW-11 Dineshbhai Barot, Exh.42, who is also a panch witness for cloths, has not supported the case of prosecution. 17. Though it was an attempt made by learned APP by referring to FSL report to connect the weapon of offence with the respondent by presence of bloodstain on muddamal article No. 4 and the cloths, however, perusal of Exh.60, FSL report indicates that on the cloths of the accused, no bloodstain has been found whereas on shirt, bloodstain found could not be ascertained as it had disintegrated. Similarly, wooden bat also did not disclose presence of ascertained blood group. 18. Not only the above, even recovery of cloths has not been established beyond doubt by an independent witness and therefore, there is no connect between the circumstances of cloths, muddamal article weapon and the version of the eyewitness. 19. The Court has perused the impugned judgment and order and has found that the Sessions Court has threadbare examined the evidence on record and has assigned reasons for not treating the eyewitness to be the reliable witness on whose version, conviction could be based. Therefore, except for establishing homicidal death, there is no other evidence to connect the respondent-accused with the offence. 20. The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad Vs. State of Bihar & Anr. (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, (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. 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. 21. In view of the aforesaid discussion, the Court does not find any reason to interfere with the impugned judgment and order. The appeal therefore deserves to be and is hereby dismissed. Records and Proceedings be sent back to the concerned trial Court.