Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 2119 (GUJ)

State Of Gujarat v. Ishwarbhai Keshabhai Bhoi

2024-12-03

A.Y.KOGJE, SAMIR J.DAVE

body2024
JUDGMENT : (PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE) 1. This Appeal is filed under Section 378(1)(3) of the Code of Criminal Procedure against the judgment and order dated 29.11.2003 passed by the learned Additional Sessions Judge, Sabarkantha in Sessions Case No.97 of 2000. By the impugned judgment and order, the respondents-original accused were acquitted of the offence under Section 302, 504, 114 of Indian Penal Code. 2. The facts of the prosecution case in brief are as under: 2.1 The complainant, who is the brother of the deceased, filed complaint against the present opponents declaring that the brother of the complainant deceased Sudhirbhai married at Ubhran village, and the name of his wife was Rekhaben and after marriage they both were residing separately as per insistence of wife of deceased brother of the complainant and thereafter, for some reasons, wife of his deceased brother had gone to her parental home and later on, his deceased brother had gone to take back her wife at Modasa and took his wife at Medhasan to the house of brother in law of his deceased brother namely Ishvarbhai but this Ishvarbhai had sent back wife of his deceased brother to Ubharan means her parental home and because of that, there was a grievance between deceased brother of the complainant namely Sudhirbhai and Ishvarbhai. On the fateful incident dated 5.2.2000, the deceased Sudhirbhai and Subhashbhai were talking, at that time, the opponent No. 1 Ishwarbhai & opponent no.2 Chandubhai were abusing and saying that the deceased was making false allegations. The deceased Sudhirbhai came out from house and requested not to abuse. The accused No. 1 came with dhariya, the accused No. 2 & 3 came with sticks and assaulted the deceased Sudhirbhai. The accused No.1 gave dhariya blow on the head of the deceased. The accused No. 2 & 3 gave stick blows and deceased fell down. The deceased was taken to CHC Medhasan Hospital and from there, he was shifted to Civil Hospital Ahmedabad where he succumbed to injury on 6.2.2000. 2.2 Thereafter, the complainant registered a complaint against the present accused persons with Modasa Rural Police Station. The accused No. 2 & 3 gave stick blows and deceased fell down. The deceased was taken to CHC Medhasan Hospital and from there, he was shifted to Civil Hospital Ahmedabad where he succumbed to injury on 6.2.2000. 2.2 Thereafter, the complainant registered a complaint against the present accused persons with Modasa Rural Police Station. The complaint was registered and investigation was conducted, Panchnama was drawn, statements of the witnesses were recorded and upon completion of the investigation as sufficient evidence to link the accused with crime was revealed, the accused persons were charged-sheeted for the offence punishable under Sections 302, 504 and 114 of the Indian Penal Code. 2.3 Thereafter, as the case was exclusively triable by the Sessions Court the same was committed to the learned Sessions Court, Modasa under Section 209 of Cr.P.C. The case was numbered as Sessions Case No.97 of 2000. The trial was initiated against the accused persons-respondents herein. 2.4 To prove the guilt against the accused persons, the prosecution has examined 9 witnesses mentioned in the impugned order. Similarly, in order to support the case of the prosecution, the prosecution has produced 15 documents mentioned in the aforesaid judgment. 2.5 At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge Sabarkantha camp at Modasa acquitted the accused-respondents of all the charges leveled against him by judgment and order dated 29.11.2003. 2.6 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant-State has preferred the present appeal. 3. Ms. Krina Calla, learned APP submitted that the judgment and order of the Sessions Judge is against the provisions of law. That, leaned Sessions Judge ought to have appreciated the evidence of eye witness Rakeshbhai Shivabhai Bhoi(Ex.16), who has corroborated the prosecution version in examination in chief as well as in his cross examination. 3. Ms. Krina Calla, learned APP submitted that the judgment and order of the Sessions Judge is against the provisions of law. That, leaned Sessions Judge ought to have appreciated the evidence of eye witness Rakeshbhai Shivabhai Bhoi(Ex.16), who has corroborated the prosecution version in examination in chief as well as in his cross examination. That, leaned Sessions Judge ought to have appreciated that incident was taken place on 5.2.2000 and on that day, Sureshbhai Magabhai and Subhashbhai Nanchandbhai were present at the scene of offence and they took the deceased to the Government hospital and from there, the deceased was transferred to Civil Hospital where the deceased was succumbed to injury on 6.2.2000 and thereafter the complaint was filed on 7.2.2000, however, leaned Sessions Judge has erred in observing that no explanation for delay in lodging the complaint is given. That, Subhashbhai Nanchandbhai Bhoi (Exh.18) as well as Sureshbhai Magabhai Bhoi(Exh. 19) are the eye witnesses and they taken the deceased to the hospital and thereby, they are not only the eye witnesses but also related to the deceased and they are natural witnesses, they would not falsely implicate the accused though learned Sessions Judge has erred in not placing reliance on these two eye witnesses and has also erred in holding that the evidence of these two eye witnesses are contradictory and are not reliable. 4. Learned APP for the appellant has also submitted that the leaned Sessions Judge also erred in holding that now a days it is difficult to get the independent witnesses inasmuch as they do not desire to create animosity against the accused. That, the learned Sessions Judge has erred in not believing the recovery panchnama under Section 27 of Indian Evidence Act even if the weapons were recovered from the house of the accused. That, deposition of Dr. Dhanesh Baroliya in at Exch. 10 which supports the prosecution version and the history given to the Doctor. All the three accused inflicted blows with dhariya and stick on the deceased which is corroborated by the evidence of Dr. Dhanesh Baroliya. The Doctor is an independent witness and placing reliance upon the deposition of the Doctor, the order of conviction ought to have been passed. That, evidence of Dr. Yogesh Jadhav, Exh. 30, who performed the postmortem and the Post-mortem report is at Exh. Dhanesh Baroliya. The Doctor is an independent witness and placing reliance upon the deposition of the Doctor, the order of conviction ought to have been passed. That, evidence of Dr. Yogesh Jadhav, Exh. 30, who performed the postmortem and the Post-mortem report is at Exh. 31 shows that there was injury on the heard of the deceased which was sufficient in the ordinary course of nature as is likely to cause death. Though, the learned Sessions Judge has erred in not considering such medical evidence. That, learned Sessions judge has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondent. Lastly, learned APP submitted that there was no reason for the learned Sessions Judge to disbelieve the prosecution case and to acquit the respondents. 5. At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006) 6 SCC, 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: “54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.” 5.1 Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007) 4 SCC 415 the Apex Court laid down the following principles: “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. 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 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 curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis 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. [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.” 5.2 Thus, it is a settled principle that while exercising appellate power, even 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. 5.3 Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007) 3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under: “16. 5.3 Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007) 3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under: “16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.” 5.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled. 5.5 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under: “.... Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under: “.... & This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93 : ( AIR 1967 SC 1124 ) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice. 5.6 Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary. 6. We have gone through the judgment and order passed by the trial court. We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned APP for the appellant. 6.1 It appears from the observation made by learned Sessions Judge in the impugned judgment and order that the incident was taken place on 05.02.2000 whereas the complaint was filed late by 2 days ie., on 07.02.2000 and thereby, learned Sessions Judge observed about delay caused in lodging complaint. 6.2 It further appears from the impugned judgment that the panch witness of the inquest panchnama Rameshbhai (Ex. 21) has stated in his deposition that he was called for to the Ahmedabad Civil Hospital for preparing inquest panchnama of the dead body whereas in his cross examination the said panch has stated that the brother of the deceased did not see the civil hospital thus he came before him and thereafter, he had taken him to the civil hospital but in the complaint or the deposition of the complainant or in the deposition of eye witness it does not disclose that they did not see the civil hospital Ahmedabad and thereby, found the deposition of such panch witness as suspicious. 6.3 The learned Sessions judge has observed that Investigating officer (Ex. 6.3 The learned Sessions judge has observed that Investigating officer (Ex. 36) has stated in his deposition that the treatment of deceased was made at Modasa Hospital and later on at Civil Hospital, Ahmedabad though he did not collect the certificate and he did not make any investigation whether any complaint was registered at Ahmedabad or not. 6.4 It appears from the impugned judgment, the complainant has stated in his examination in chief that the accused assaulted on his brother but not stated that how many blows were given whereas in his cross examination he mentioned about three to four blows. Thus, the contradictions are found in the deposition of the complainant with regards to the blow of injury, his presence at the place of incident etc and learned Sessions Judge considered such contradictions. 6.5 As per observations made in the impugned judgment, as per say of the complainant, when the deceased was fallen down due to injuries and shouted that I am dying then definitely people might have gathered there and not only that, relatives of the deceased were present over there though there was a delay in lodging complaint and learned Sessions Judge has considered such delay aspect also. 6.6. There are contradictions in testimony of Subhashbhai (Ex. 13) and Medical Officer Dhaneshkumar (Ex.10) and the evidence of injury is found to be separate from the medical evidence. Not only that, independent witnesses were not examined by the prosecution. 6.2 In this fact of situation, the learned Sessions Judge has found that there are serious lacunas in the prosecution case and the prosecution has failed to establish the case against the respondents. There are contradictory statements in the complaint and the witnesses. Therefore, the trial court has given the benefit of doubt to the accused and we do not find any reason to interfere with the said finding. 6.3 Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. The learned APP for the appellant-State is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record. 7. The learned APP for the appellant-State is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record. 7. In the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. We find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. 8. We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed. 9. Record and Proceedings to be sent to the trial Court.