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2025 DIGILAW 266 (GUJ)

State of Gujarat v. Ghanan Shekhran Dureraj Seman

2025-03-12

A.Y.KOGJE, SAMIR J.DAVE

body2025
JUDGMENT : A.Y. KOGJE, J. 1. The present appeal is preferred by the State under section-378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 26.04.1996 passed by Additional Sessions Judge, Kachchh at Bhuj in Session Case No.68 of 1989. By the impugned judgment and order, the Sessions Court acquitted the respondent-accused for offence under sections 302, 504 read with section 34 of the Indian Penal Code and under section 135(1) of the Bombay Police Act. 2. The bare facts of the case are that on 20.04.1989, at around 9:15 PM, in Dharamshala Faliya, Naliya, Abdasa Taluka, Kutch, the accused attempted to assault Bhupsingh Raghubirsingh Chaudhary, a wireless operator at Naliya Customs House, with a stick, but Bhupsingh’s wife, the complainant, snatched it away. The accused’s sister, a juvenile offender, then brought a knife and handed it to the accused, who inflicted a fatal stab wound on Bhupsingh’s abdomen, thereby committing offence under section 302 read with Section 34 of the IPC. Additionally, the accused intimidated and abused the deceased and the complainant, constituting an offence under section 504 read with section 34 of the IPC. Furthermore, by carrying a knife in a public place in violation of the District Magistrate’s prohibitory order, the accused committed an offense punishable under Section 135(1) of the Bombay Police Act, 1951. 3. Learned Additional Public Prosecutor has submitted that the present appeal challenges the judgment and order of acquittal passed by the learned Additional Sessions Judge, Kachchh, Bhuj, in Sessions Case No. 68 of 1989. The accused was acquitted of offences punishable under Sections 302, 504 read with 34 of IPC and Sections 135(1) of the Bombay Police Act, 1951. The impugned judgment is contrary to law and the evidence on record, and therefore, requires interference by this Hon’ble Court. 3.1 It is submitted that the prosecution examined key eyewitnesses, including the wife of the deceased namely Shakuntala, his daughter Ranikumari, and witness Jagdish, who had directly witnessed the incident. Their statements were consistent and supported the prosecution case in its entirety. However, the learned Trial Judge failed to appreciate their testimonies properly. 3.2 It is submitted that apart from the family members, two independent eyewitnesses also supported the prosecution’s case. The Trial Court erroneously disregarded their testimonies, which were crucial in proving the guilt of the accused beyond reasonable doubt. However, the learned Trial Judge failed to appreciate their testimonies properly. 3.2 It is submitted that apart from the family members, two independent eyewitnesses also supported the prosecution’s case. The Trial Court erroneously disregarded their testimonies, which were crucial in proving the guilt of the accused beyond reasonable doubt. 3.3 It is submitted that the Trial Court wrongly assumed that the deceased might have fallen on an iron bar, which caused the fatal injury. This assumption is mere conjecture, without any supporting evidence, and is against the established principles of criminal law. 3.4 It is submitted that the order of acquittal is against the settled principles of criminal jurisprudence. The prosecution successfully proved its case beyond reasonable doubt, yet the Learned Trial Judge wrongfully discarded the prosecution’s evidence, leading to an erroneous acquittal. 4. As against this, learned Advocate for the respondent-accused has supported the judgment of acquittal and submitted that the judgment and order of acquittal passed by the Learned Additional Sessions Judge, Kachchh, Bhuj, in Sessions Case No. 68 of 1989, is just, legal, and based on proper appreciation of evidence. The prosecution has failed to prove its case beyond reasonable doubt. 4.1 It is submitted that the entire prosecution case is based on interested witnesses, namely the wife and daughter of the deceased, who had personal reasons to implicate the accused. The so-scalled independent witnesses are either unreliable or did not witness the actual incident, making their testimonies doubtful. 4.2 It is submitted that the prosecution witnesses have made material contradictions and improvements in their statements during the course of the investigation and trial. The inconsistencies in their depositions raised serious doubts about the credibility of the prosecution case. 4.3 It is submitted that there is no direct and conclusive evidence to establish that the accused inflicted the alleged fatal injury. The prosecution has relied upon circumstantial evidence, which does not form a complete chain pointing solely to the guilt of the accused. 4.4 It is submitted that the recovery of the blood-stained knife is highly suspicious, as there is no independent corroboration regarding its seizure from the accused. The possibility of the weapon being planted cannot be ruled out, which renders the prosecution case weak. 4.5 It is submitted that the prosecution has failed to establish any strong motive for the accused to commit such a grave offence. The possibility of the weapon being planted cannot be ruled out, which renders the prosecution case weak. 4.5 It is submitted that the prosecution has failed to establish any strong motive for the accused to commit such a grave offence. In the absence of a clear motive, the prosecution case becomes weak and unconvincing. 5. Having heard learned APP and having perused the record and proceedings, Upon perusal of the same, it appears that, to prove the case against the respondents-accused, the prosecution relied upon the following oral evidence: S. No. Name of Witnesses Exh. No. 1 Deposition of PW No.1 Shakuntala Bhupsingh 6 2 Deposition of PW No.2 Ranikumari Bhupsingh 8 3 Deposition of PW No.3 ,Dipak Gangaram 14 4 Deposition of PW No.4 Vasantgiri Kunvargiri Gosai 16 5 Deposition of PW No.5 Jagdish Vishanji 17 6 Deposition of PW No.6 Dr. Dayalbhai Mavjibhai Bhadra 31 7 Deposition of PW No.7 Dilip Kanji Chavda 33 8 Deposition of PW No.8 Karshan Shamji 34 9 Deposition of PW No.9 Hirabhai Shankarbhai Patel 35 10 Deposition of PW No.10 Gishulal Navalram Jalvaniya 42 5.1 The prosecution also relied upon following documentary evidence: S. No Particular Exh. No. 1 Original complaint 7 2 Inquest panchanama 9 3 Panchanama of arrest 10 4 Panchanama of place of incident 11 5 Panchanama of clothes of the deceased 12 6 Discovery Panchanama 15 7 PM Note 32 6. Exh-2 is statement of respondent-accused under section 313 of Code of Criminal Procedure, where respondent-accused has taken a stand that he is falsely charged with the offence and has denied the evidence collected. 7. From perusal of record, it appears that PW-1, Shakuntala Bhupsingh, Exh-6, the complainant, an eyewitness and wife of the deceased, deposed that she was present when the accused attempted to attack her husband with a stick, which she snatched away, and later saw the accused stab her husband after receiving a knife from his sister. However, her deposition contains contradictions that cast doubt on its reliability. She admitted that she went alone to the police station to lodge the complaint, while PW-7 stated that he accompanied her. She also failed to mention in her complaint that the accused tried to attack the deceased with a stick or that his bicycle was knocked over, which are crucial details. She admitted that she went alone to the police station to lodge the complaint, while PW-7 stated that he accompanied her. She also failed to mention in her complaint that the accused tried to attack the deceased with a stick or that his bicycle was knocked over, which are crucial details. Additionally, she admitted she could not recognize her husband’s handwriting or signature, raising doubts about the authenticity of the complaint. She claimed she does not understand Gujarati and gave her complaint in Hindi, yet it was recorded in Gujarati, creating uncertainty about whether it accurately reflects her statement. Further, she mentioned that when she heard the bell, her family was watching television, raising concerns about how clearly she could have perceived the events. These inconsistencies and contradictions undermine the credibility of her testimony, making it unsafe to rely upon for a conviction. 8. PW-2, Ranikumari Bhupsingh, Exh.8, an eyewitness and the daughter of the deceased, stated in her deposition that when she and her brother reached the place of the incident, the complainant was already present, and then the stick attack occurred. However, the complainant deposed that as soon as she reached the place, the stick attack took place, creating a discrepancy in the sequence of events. Furthermore, PW-2 claimed that she was with the complainant when the complaint was lodged, but the complainant did not mention this in her deposition. These inconsistencies regarding her presence at the time of the incident and during the lodging of the complaint create doubts about the prosecution’s version of events, weakening its case against the accused. 9. PW-4, Vasantgiri Kunvargiri Gosai, Exh.16, an eyewitness and neighbor of the deceased, deposed that he reached the place of the incident upon hearing noise, as his house was only two minutes away. He deposed that he saw the accused’s sister handing over the knife to the accused, who then stabbed the deceased in the left side of his abdomen. However, he admitted that he could not identify the weapon used in the attack. He also stated that PW-5, PW-7, the complainant, and the deceased’s children were all present at the time of the incident. Additionally, he admitted that the police recorded his statement but did not take his signature on it, and before testifying, he had read his statement for preparation. These admissions raise questions about the spontaneity and reliability of his testimony. 10. Additionally, he admitted that the police recorded his statement but did not take his signature on it, and before testifying, he had read his statement for preparation. These admissions raise questions about the spontaneity and reliability of his testimony. 10. PW-5, Jagdish Vishanji, Exh.17 an eyewitness, stated that after the deceased received the knife blow, he fell into his wife’s lap. Moreover he admitted that he did not sign his statement and denied being able to identify the knife used in the attack. He also mentioned that he did not see a bicycle near the deceased, which contradicts PW-7’s testimony. Furthermore, he deposed that the deceased’s wife did not participate in the incident and also stated that he used to play volleyball with the police, which raises concerns about potential bias in his testimony. 11. PW-7, Dilip Kanji Chavda, Exh.33, an eyewitness, deposed that when the accused attacked the deceased with a stick, the deceased caught hold of it. He also stated that he and the complainant went to the police station together to file the complaint, contradicting the complainant’s statement that she went alone. Additionally, he mentioned that he saw a bicycle near the deceased, whereas PW-5 stated that he did not see any bicycle. These inconsistencies regarding the complaint process and the scene of the incident further raise doubts about the reliability of the prosecution’s case. 12. The testimonies of all the eyewitnesses suffer from significant contradictions and inconsistencies, making them unreliable for proving the prosecution’s case beyond a reasonable doubt. PW-1, the complainant, provided conflicting statements regarding her presence at the scene and the sequence of events. Her claim of going alone to the police station contradicts PW-7’s deposition, and she omitted crucial details in her complaint, such as the stick attack and the deceased’s bicycle being knocked over. PW-2’s testimony also raises doubts, as she stated that she and her brother arrived at the scene after their mother, whereas PW-1 deposed that the stick attack happened as soon as she reached the place of the incident. PW-4, a neighbor and eyewitness, admitted that he could not identify the weapon and had prepared his testimony by reading his statement beforehand, raising concerns about its spontaneity. PW-5 denied recognizing the knife and contradicted other witnesses regarding the presence of the bicycle. PW-4, a neighbor and eyewitness, admitted that he could not identify the weapon and had prepared his testimony by reading his statement beforehand, raising concerns about its spontaneity. PW-5 denied recognizing the knife and contradicted other witnesses regarding the presence of the bicycle. Furthermore, PW-7’s account of filing the complaint with the complainant is inconsistent with her statement that she went alone. These contradictions, coupled with inconsistencies in the sequence of events and crucial details, create serious doubts about the credibility of the prosecution’s witnesses. In the absence of clear, cogent, and corroborative evidence, it would be unsafe to rely on these testimonies for conviction, and the benefit of doubt must be extended to the accused. 13. PW-6, Dr.Dayalbhai Mavjibhai Bhadra, Exh.31, Medical Officer, confirms that the deceased suffered a stab wound on the left iliac region, leading to mesenteric artery damage and multiple perforations in the small intestine, which caused hypovolemic shock and death, thereby establishing the homicidal nature of death. However, in cross- examination, PW-6 admitted that the injuries could have been caused by a weapon other than the Muddamal knife and that hypovolemic shock could also result from other sharp objects, creating doubt regarding the exclusive use of the alleged weapon. While the medical evidence confirms the cause of death, it does not independently establish the identity of the assailant or the sequence of events. The absence of conclusive evidence directly linking the accused to the fatal injury introduces reasonable doubt, making it unsafe to convict solely on medical findings. 14. PW-3, Dipak Gangaram, Exh.14, Panch of discovery panchanama, cannot be relied upon due to multiple material contradictions with the Panchnama, Exh.15, raising serious doubts about its credibility. In his examination-in-chief, the witness stated that the accused retrieved a knife from his gallery and a stick from the gallery of the terrace, whereas the Panchnama records that the knife was found near the wooden gate and the stick was found on the terrace. Further, while the witness deposed that the house of the accused was open, the Panchnama contradictorily states that it was locked. In cross-examination, the witness admitted that he never entered the house, making his statement regarding the accused’s retrieval of weapons even more doubtful. Additionally, he mentioned fingerprints in his testimony, but the Panchnama contains no such reference, indicating an afterthought rather than an actual observation at the time of seizure. In cross-examination, the witness admitted that he never entered the house, making his statement regarding the accused’s retrieval of weapons even more doubtful. Additionally, he mentioned fingerprints in his testimony, but the Panchnama contains no such reference, indicating an afterthought rather than an actual observation at the time of seizure. Such material discrepancies weaken the evidentiary value of witness’s deposition and the Panchnama, making it unsafe to place reliance on his testimony. Hence, his statement does not inspire confidence and cannot be believed as true. 15. PW-9, Hirabhai Shankarbhai Patel, Exh.35, Investigation Officer, details the preparation of various Panchnamas, the recording of witness statements, and the discovery of the weapon. However, only the Panch witness of the discovery Panchnama, PW-3, was examined, and his testimony contains serious contradictions that raise doubts about the credibility of the investigation. PW-3’s testimony materially differs from the Panchnama regarding the location of the recovered knife and stick, the status of the accused’s house and the mention of fingerprints, which are absent in the official record. Further, PW-3 admitted that he never entered the house, which casts doubt on the genuineness of the alleged discovery. These inconsistencies suggest procedural lapses, weakening the evidentiary value of the Panchnama and raising concerns about the fairness of the investigation. Consequently, as the prosecution has failed to establish the discovery of the weapon beyond reasonable doubt, reliance on the investigating officer’s findings for conviction becomes doubtful. 16. The Court may refer to and rely upon the decision of the Apex Court in case of Naresh @ Nehru and Others vs. State of Haryana and Others, (2023) 10 SCC 134 , wherein the Apex Court held in Para 16 as under, “16 As noticed hereinabove, the evidence of the eye-witness should be of very sterling quality and calibre and it should not only instil confidence in the court to accept the same but it should also be a version of such nature that can be accepted at its face value. This Court in the case of Rai Sandeep @ Deepu alias Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21 has held: “22. In our considered opinion, the “sterling witness” should be of very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. State (NCT of Delhi), (2012) 8 SCC 21 has held: “22. In our considered opinion, the “sterling witness” should be of very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co- relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 17. The court perusing the judgment of acquittal, find that the trial court’s decision was consistent with established legal principles. The Court may refer to and rely upon the decision of the Apex Court in Babu Sahebagouda Rudragoudar vs. State of Karnataka, (2024) 8 SCC 149 , wherein the Apex Court held in para 41 and 42 as under: "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." 18. 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. 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. 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. 19. The Court has also perused judgment and order of the Sessions Court and finds that cogent and convincing reasons are assigned by the Sessions Court while acquitting the respondent-accused. 20. The Court also observes that the co-accused in this case being a juvenile has been separately tried and the said case of the co-accused has also resulted in clear acquittal of the juvenile. 21. In the result, the appeal fails and is dismissed. The judgment and order of acquittal dated 26.04.1996 passed by Additional Sessions Judge, Kachchh at Bhuj in Session Case No. 68 of 1989 stands confirmed. Bail and bail-bonds of the accused, if any, stand discharged. Records and proceedings be sent back to the concerned trial Court.