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2024 DIGILAW 2121 (GUJ)

State Of Gujarat v. Mohan Shamji Punsariya

2024-12-03

A.Y.KOGJE, SAMIR J.DAVE

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JUDGMENT : (PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE) 1. Challenge in this appeal filed u/s. 378(1) of the Code of Criminal Procedure, 1973 is to the judgment and order passed in Sessions Case No.128 of 1991 dated 30.09.2003 by the learned 2nd Fast Track Judge, Junagadh whereby, the respondents herein, original accused, have been acquitted of the charge u/s. 302, 504 and 114 of IPC. 2. The facts in brief as emerging from the record are that on 03.04.1991, at around 0900 hrs., the original complainant, Gobar Mepa Bharwad, had taken his cattle to the open land of his village for grazing. It is alleged that without his knowledge, the cattle grazed into the field of accused No.1 and as a result, accused No.1 reprimanded Gobar Bharwad and also hurled abuses at him. Thereafter, a quarrel ensued between the parties and during this period, the accused No.1 hurled a stone at Gobar Bharwad, which hit him on his shoulder. Thereafter, both accused Nos.2 and 3 reached the spot armed with sticks. The accused No.1 took the sticks from accused No.3 and thereafter, both accused Nos.1 and 2 inflicted stick blows on Gobar Bharwad and subsequently, they were joined by accused No.3. After some time, all the three accused fled the scene of offence. 2.1 Initially, injured Gobar Bharwad was taken to Bilkha Government Hospital and thereafter, he was shifted to Junagadh Civil Hospital. A complaint in connection with the above incident was registered with Visavadar Police Station vide C.R. No. 39 of 1991. However, on the same day, i.e. on 03.04.1991, Gobar Bharwad succumbed to the injuries and therefore, offence u/s. 302 IPC came to be added. 3. During the course of trial, accused No.3 passed away and therefore, the Sessions Case stood abated qua accused No.3. At the end of trial, the learned Sessions Judge acquitted both respondent Nos.1 and 2 of all the charges vide the impugned judgment and order. Being aggrieved by the same, the appellant-State has preferred the present appeal. 4. Learned APP appearing for the appellant-State submitted that the learned Sessions Judge has not appreciated the evidence on record in its proper perspective. Prior to his death, the deceased had given his dying declaration before Dayashankar Rajabhai, PW-12 Exhibit-35, who was the Police Head Constable on duty at Junagadh Civil Hospital. 4. Learned APP appearing for the appellant-State submitted that the learned Sessions Judge has not appreciated the evidence on record in its proper perspective. Prior to his death, the deceased had given his dying declaration before Dayashankar Rajabhai, PW-12 Exhibit-35, who was the Police Head Constable on duty at Junagadh Civil Hospital. In his dying declaration, the deceased has categorically named the respondents herein as the assailants. However, the learned Sessions Judge ignored this vital evidence on mere technicalities. 4.1 Learned APP further submitted that the learned Sessions Judge has seriously erred in not believing the evidence of both Valabhai Merambhai, PW-10 Exhibit-33 and Devsibhai Mepabhai, PW-11 Exhibit-34, before whom the deceased had given the names of the respondents as the assailants when they had visited the Hospital. However, the learned Sessions Judge brushed aside their evidence on the ground that they came to know about the names of the assailants from somebody else and not from the deceased directly when they had visited him at the Hospital. However, such conclusion is based on mere assumptions and presumptions and not on any cogent evidence. It was, therefore, prayed that the impugned judgment and order of acquittal deserves to be quashed and set aside. 4. Learned advocate Mr. Buch appearing for the respondents submitted that there is nothing on record to suggest the involvement of the respondents in the alleged offence. The depositions of two witnesses, i.e. PW-10 and PW-11, was not found to be reliable and trustworthy as the medical evidence on record clearly suggests that the condition of the deceased was critical while he was brought to Bilkha Civil Hospital and was, thereafter, shifted to Junagadh Civil Hospital and therefore, he was not in a condition to say anything, as has been deposed by PW-10 and PW-11 in their evidence. 4.1 It is further submitted that the evidence of Police Head Constable, Dayashankar Rajabhai, PW-12 Exhibit-35, was also found to be unreliable in view of the fact that in the so-called dying declaration of the deceased (Exhibit-36) recorded by him, there is no mention about the time as to when it was recorded and also no opinion of the Medical Officer was taken as to whether the injured (deceased) was in a condition to give such declaration. Thus, the evidence of PW-12 was covered in a cloud of suspicion, which rendered it non-trustworthy. Thus, the evidence of PW-12 was covered in a cloud of suspicion, which rendered it non-trustworthy. Hence, the learned Sessions Judge was completely justified in acquitting the respondents of all the charges. 5. Heard learned advocates on both the sides and perused the material on record as also the record and proceedings of the case. 6. At the outset, it is required to be noted that the principles which would govern and regulate the hearing of an 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., (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In Paragraph-54 of the said 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 judgment 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.” 7. In the case of Chandrappa Vs. State of Karnataka, (2007) 4 S.C.C. 415 , the Apex Court has laid down the following principle ; “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 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. [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.” 7.1 Thus, it is a well settled principle of law 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. 8. The prosecution has placed reliance upon the evidence of PW-6 Dr. Sudhaben Kantilal Shah, Exhibit-24 and the P.M. Note, Exhibit-25, to prove that the deceased died a homicidal death. Having gone through the aforesaid evidence, it appears that the deceased died on account of excessive bleeding and rupture of the kidneys caused due to hemorrhage. Thus, the fact that the deceased died a homicidal death is established beyond reasonable doubt. 9. However, insofar as the oral evidence on record is concerned, the prosecution has examined Jamanbhai Raghavbhai, PW-7 Exhibit-28 and Kanchanbhai Jamanbhai, PW-8 Exhibit-29, as eye-witnesses to the alleged incident of assault. However, both these witnesses have not supported the prosecution case and therefore, they have been declared hostile by the learned Sessions Court. 10. The prosecution has examined Valabhai Merambhai, PW- 10 Exhibit-33, before whom the deceased is said to have given the names of the respondents as the assailants. However, both these witnesses have not supported the prosecution case and therefore, they have been declared hostile by the learned Sessions Court. 10. The prosecution has examined Valabhai Merambhai, PW- 10 Exhibit-33, before whom the deceased is said to have given the names of the respondents as the assailants. However, it has come out from his evidence that he was unaware as to who had taken the deceased and to which Hospital. Therefore, the very fact as to how this witness had reached Bilkha Government Hospital, from where the deceased had named the respondents-accused as the assailants, casts serious doubts about the veracity of the evidence of this witness and renders it suspicious. 11. The prosecution has examined the brother of the deceased, Devshi Mepa vide PW-11 Exhibit-34. He has stated that on the date of incident, when he came to know about the alleged assault on his brother, he went to the field of accused No.1, where he noticed his brother lying on the ground in an injured condition. He has deposed that he took his injured brother to Bilkha Government Hospital and on being asked about the injuries, his injured brother informed him that a quarrel had taken place with the respondents-accused and that they had assaulted him. However, from his cross-examination, it is established that on the date of incident this witness had gone to Bilkha for the purpose of selling milk and there is no definite time as to when he had returned to the village after selling milk. Under the circumstances, the entire story put-forth by this witness (PW-11) about him going to the field of accused No.1 where the deceased was lying, of him taking the deceased to Bilkha Government Hospital and of the deceased disclosing the names of the respondents as assailants, is highly unbelievable. 12. The depositions of both the aforesaid witnesses, i.e. Valabhai Merambhai, PW-10 Exhibit-33 and Devshi Mepa, PW- 11 Exhibit-34, on which the prosecution has placed heavy reliance, fall flat for the simple reason that the Medical Officer, Dr. Amrutlal Bhovanbhai Julasana, PW-5 Exhibit-19, who was discharging duties at Bilkha Government Hospital at the relevant time and had examined the deceased first in point of time, has categorically deposed that when the deceased was brought to the Hospital, his condition was critical and therefore, it was decided to send him to Junagadh Civil Hospital immediately for further treatment. Amrutlal Bhovanbhai Julasana, PW-5 Exhibit-19, who was discharging duties at Bilkha Government Hospital at the relevant time and had examined the deceased first in point of time, has categorically deposed that when the deceased was brought to the Hospital, his condition was critical and therefore, it was decided to send him to Junagadh Civil Hospital immediately for further treatment. In fact, there is nothing on record in the form of medical evidence to suggest that the deceased was conscious and was in a proper mental condition to speak when he was brought to Bilkha Government Hospital first in point of time. Under the circumstances, the evidence of both Valabhai Merambhai, PW-10 Exhibit-33 and Devshi Mepa, PW-11 Exhibit-34, has rightly not been relied upon by the learned Sessions Judge. 13. The prosecution has placed heavy reliance upon the testimony of Dayashankar Rajabhai, PW-12 Exhibit-35, who was the Police Head Constable on duty at Junagadh Civil Hospital when the deceased was brought for further treatment from Bilkha Government Hospital. As per the prosecution case, this witness has recorded the dying declaration of the deceased (Exhibit-36). However, we find that the learned Sessions Judge has disbelieved this piece of evidence for two reasons. Firstly, in the said dying declaration (Exhibit-36), no time has been mentioned as to when such statement of the deceased was recorded; and secondly, on the so-called dying declaration, there is no opinion of the Medical Officer concerned as to whether or not the patient (deceased) was in a proper mental condition to give such declaration. 13.1 The defence taken by this witness in his cross-examination for not recording the opinion of the Medical Officer concerned is that no Doctor was available when he had gone to the Ward. Such defence of the prosecution (PW-12) for not obtaining the opinion of the Medical Officer before recording the statement of the deceased is highly unbelievable and does not have any legs to stand. Hence, the learned Sessions Judge has rightly disregarded the testimony of Dayashankar Rajabhai, PW-12 Exhibit-35. 14. Having carefully scrutinized the material on record, this Court finds no infirmity or illegality with the reasoning assigned by and the findings arrived at by the learned Sessions Judge while acquitting the respondents-accused of all the charges. We are in complete agreement with the impugned judgment and order of acquittal and hence, find no reasons to entertain this appeal. 15. Having carefully scrutinized the material on record, this Court finds no infirmity or illegality with the reasoning assigned by and the findings arrived at by the learned Sessions Judge while acquitting the respondents-accused of all the charges. We are in complete agreement with the impugned judgment and order of acquittal and hence, find no reasons to entertain this appeal. 15. In the result, the appeal is dismissed. Bail bonds, if any, stand cancelled.