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2024 DIGILAW 2137 (GUJ)

State Of Gujarat v. Kaluram Khimji Modiya

2024-12-04

BIREN VAISHNAV, MAULIK J.SHELAT

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JUDGMENT : (PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1. This appeal has been filed by the appellant-State under Section 378 of the Code of Criminal Procedure, 1973, against the judgement and order of acquittal passed by the learned Additional Sessions Judge, Fast Track Court, Himmatnagar, in Sessions Case No.165 of 2000 on 31.05.2003. By the aforesaid judgement, the Trial Court has acquitted the respondent-accused of the offenses punishable under Sections 302, 201, 506(2) read with Section 34 of the Indian Penal Code. 2. The brief case of the prosecution is that on 18.04.1997 at around 16:30, on Vijaynagar-Rani road, the deceased son of the complainant i.e. Maganbhai Ravjibhai and her other son named Babubhai Ravjibhai came home in a jeep. They stepped down from the jeep. At that time, the above named accused along with Dinesh Ratnaji Modia, Prabhu Khimji Modia and Shantilal Punaji Modia, all residents of Rani, Khervada, having doubt on the deceased that he had illicit relationship with one Kantaben, had beaten up the deceased, more particularly on his private part with a wooden log and strangulated him and committed the offence punishable as mentioned herein above. It is also alleged that thereafter, the dead body was removed from the road and hanged with the branch of a tree to create an impression of suicide. The accused had also threatened to kill the eyewitness i.e. brother of the deceased Babubhai Ravji. Therefore, with a common intention and to destroy the evidence, the above-mentioned offence has been committed. 3. In pursuance of the above allegation, the Investigating Agency during the course of investigation recorded statements of the witnesses, drew various panchnamas including panchnama of scene of offence, panchnama of clothes, dead body and the PM was carried out etc. for the purpose of proving of the offence. Appropriate medical and expert evidence is also recorded as required. 4. Upon committal of the case, the Trial Court framed charges vide Exh.13 against the Respondents-Accused for the aforesaid offences. The Respondent-Accused pleaded not guilty and was tried. The prosecution has 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 a tabular form hereunder: PW No. Exh No. Pg. The Respondent-Accused pleaded not guilty and was tried. The prosecution has 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 a tabular form hereunder: PW No. Exh No. Pg. No Name and particulars Judgment Para/Pg.No. 1 29 36 Narendrakumar Pander-Dr.P.M. describes injury, strangulation, however, initially does not confirm till expert report is not available. Para-4, pg.105, Para-10, pg.115-116 2 33 53 Ramjibhai Klaswa-Panch of deadbody and scene.(Inquest) (Scene) 3. 35 56 Maniben Parmar-Complainant- Mother- contradictions, unnatural behaviour as not registered any offence about prior incidents. Para-9, pg.112-113, Para-10,114 4 37 62 Babubhai Parmar-Brother-saw them beating and ran away, did not went to any nearby police station, contradictions with mother, was in Std-3 at the time of incident. Para5,6,7,8,9 pg.105-111, Para-10, 114 5 38 65 Naniben Nonama-She first reported the dead body in forest. Para-5, pg.106 6 39 66 Arjanbhai Ninama-cousin of deceased, informed complainant about deadbody, works in forest department. 7. 40 67 Shantilal Kalal-Kirana Shop ownerdoes not support prosecution case-Hostile 8. 41 68 Nandlal Kodarbhai-PSO, Vijaynagar Police Station. 9 43 71 Khimjibhai Barda-CPI, Idar- accepts did not examine or investigate prior injuries and treatment, no independent witness cited in charge-sheet. Para 9, Pg.112 10 51 96 Lakhabhai Vankar-H.C., Vijaynagar Police Station Documentary Evidences Exh-No. Pg.No. Particulars 25 29 Inquest Panchnama 26 32 Dead body clothes panchnama 31 44 P.M. Report and Yadi. 32 52 Certificate of P.M. 34 54 Scene of Offence Panchnama. 36 59 Complaint 42 69 Station Diary 48 82 FSL report 5. Thus, prosecution had examined the complainant, witnesses, medical officer and the police witness, 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. At the end of the evidence, necessary pursis was presented before the Trial Court declaring closure of evidence. 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 noticed, the Trial Court after evaluating the same arrived at a conclusion that prosecution has failed to prove the charge against the Respondents - Accused and has thereby recorded acquittal. 6. 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 noticed, the Trial Court after evaluating the same arrived at a conclusion that prosecution has failed to prove the charge against the Respondents - Accused and has thereby recorded acquittal. 6. Mr.Utkarsh Sharma learned Additional Public Prosecutor appearing for the State would submit that the order acquitting the accused was contrary to law and evidence on record and the same is based on the irrelevant material. 6.1 Mr.Sharma would submit that the Trial Court has considered the evidence, more particularly the evidence of Babubhai at Exh-37 and the Complainant Maniben at Exh-35 and has acquitted the accused in view of contradictions and also the fact that the behaviour was little unnatural as no FIR was lodged with regards to past allegations of beating and also till the recovery of dead body, no complaint was given. 6.2 Mr.Sharma would further submit that the Trial Court has also considered other evidence including the expert evidence, however, upon overall consideration of the evidence and the contradictions in the version, the Trial Court has found the evidence insufficient to convict the present accused with regards to the alleged offence. 7. Mr.J.V.Japee learned advocate for the respondent-accused would support the reasoning given by the Trial Court. He would submit that the evidence of the witnesses particularly PW-3 is not reliable. The complaint was not filed on the same day. There are contradictions and improvements in the testimonies of the witnesses. The medical evidence is not corroborated by the oral evidence. He therefore would submit that the appeal be dismissed. 8. We have perused the judgement of the Trial Court. We have also gone through the oral evidence of the witnesses as well as the documentary evidences. 8.1 PW-3 Babubhai Savjibhai was examined at Exh.37. He claims to be the eyewitness in the present case. As per his testimony, on 18.04.1997, the deceased as well as Babubhai had gone to hospital for treatment and while they were returning home at around 5:00 p.m., the accused made the jeep in which they were traveling stopped and assaulted them. It is further stated that all the four accused in the complaint assaulted the deceased and took him towards forest. It is further stated that all the four accused in the complaint assaulted the deceased and took him towards forest. It is further transpired that on the next day the witness Naniben found the dead-body of the accused hanging from a tree in the forest. The cross-examination of PW-3 does not inspire confidence inasmuch as, he admits that he did not inform anyone about the deceased being assaulted. He further admits that while going to his village from the scene of offense, there are police chowkis of Rajasthan and Gujarat and though police personnels are present in those chowkis, he did not think it fit to inform them of the incident. Though he admits that he informed the said incident to complainant Maniben, the complaint was lodged only on the next date i.e. on 19.04.1997. The Trial Court has in detail considered the oral as well as documentary evidence with regard to this witness and found his testimony to be doubtful. 8.2 There are material contradictions in the evidence of PW-3 and the complainant. The case of the complainant becomes doubtful as she admits in the cross-examination that for the first time before the Court she stated that she had not given the statement to the police that she was aware about the assault incident a day prior to the death of the accused. She is unable to identify the clothes of the accused. 8.3 Considering the oral testimonies and oral evidence brought on record, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Moreover, so far as circumstantial evidence is concerned, the prosecution as recorded by the Trial Court, has failed to complete the chain in all respects so as to indicate the guilt of the accused. So far as the case of the remaining three co accused is concerned, a Division Bench of this Court has already acquitted the co-accused on 15.03.2016 by way of a judgment rendered in Criminal Appeal No.705 of 1998. The Division Bench has considered the judgment rendered by the Trial Court in case of remaining three co-accused, the oral as well as documentary evidence led therein and found that the Trial Court was completely justified in acquitting the accused of the charges leveled against them. 9. The Division Bench has considered the judgment rendered by the Trial Court in case of remaining three co-accused, the oral as well as documentary evidence led therein and found that the Trial Court was completely justified in acquitting the accused of the charges leveled against them. 9. 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. 10. 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. 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.” 11. 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. (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. (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. 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. 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.” 12. We find no reason to interfere with the judgement and order of acquittal passed by the learned Additional Sessions Judge, Fast Track Court, Himmatnagar, in Sessions Case No.165 of 2000 on 31.05.2003. 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.