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Gujarat High Court · body

2025 DIGILAW 790 (GUJ)

State of Gujarat v. Natubhai Mohanbhai Vasava

2025-07-19

GITA GOPI, MOOL CHAND TYAGI

body2025
JUDGMENT : MOOL CHAND TYAGI, J. 1. The present Appeal is filed by the Appellant – State of Gujarat under the provisions of sub-sections (1) & (3) of Section 378 of the Code of Criminal Procedure, 1973 ( hereinafter be referred to as Cr.P.C. ) challenging the Judgment dated 31.05.2003 passed by the learned Joint District Judge, 3 rd Fast Track Court, Kheda at Nadiad ( hereinafter be referred to as the Ld. Trial Court / Ld.JDJ ) in Sessions Case No.29 of 2003, whereby the Respondents herein were ordered to have been acquitted of the charges for the offences punishable under Sections 302 and 436 r/w Section 114 of the INDIAN PENAL CODE ,1860 ( hereinafter be referred to as IPC ) . 2. The facts and circumstances giving rise to the filing of the present appeal are as follows: The complainant Punambhai Kantilal Patel is the son-in-law of the deceased-Budhabhai Manibhai Damor. On 26.10.2002, at about 12:30 p.m., near the temple of Paliyadev, Kheda, all the accused went to the house of Budhabhai and confronted him regarding the alleged immoral business of trafficking in women being carried out by him. Accused No.1 struck Budhabhai on the head with a stick, while Accused Nos.2 and 3 assaulted him with fists and kicks. As a result of the serious injuries sustained, Budhabhai died on the spot. Furthermore, Accused No.1, with the assistance of Accused Nos.2 and 3, set fire to the roof of the deceased’s house. 3. Accordingly, FIR being I.C.R.No.52 of 2002 was lodged at Kheda Town Police Station, District – Kheda, and investigation was carried out and ultimately, charge-sheet came to be filed against the accused for the offences punishable under Sections 302 and 436 r/w 114 of the IPC before the Judicial Magistrate. As the case was exclusively triable by the Court of Sessions, learned Magistrate under Section 209 of the Cr.P.C. committed the said case to the Court of Sessions Court, Kheda, which came to be numbered as Sessions Case No.29/2003. 4. On 25.02.2003, the learned Trial Court framed the charges at Exh. 4 under Sections 302 and 436 r/w 114 of the IPC. Since, the accused did not plead guilty and claimed to be tried, they were tried for the said offences. 5. 4. On 25.02.2003, the learned Trial Court framed the charges at Exh. 4 under Sections 302 and 436 r/w 114 of the IPC. Since, the accused did not plead guilty and claimed to be tried, they were tried for the said offences. 5. In order to bring the home the guilty of the accused, the prosecution has led following oral and documentary evidences:- ORAL EVIDENCE Sr.No. P.W.NO. WITNESS Exh. 1 1 Dr. Ashish Manibhai Patel – Medical Officer 18 2 2 Complainant – Punambhai Kantibhai Patel 22 3 3 Eye-witness – Taraben Budhabhai 24 4 4 Mankaliben Wd/o deceased-Budhabhai Damor 25 5 5 Natwarsinh Devisinh Vaghela – Panch witness 26 6 6 Chimanbhai Shanabhai – Police Officer 28 7 7 Kalyansinh Waghubhai Sagar – Investigating Officer 30 DOCUMENTARY EVIDENCE Sr. No. EXH Description 1. 23 Complaint of Punambhai Kantibhai Patel 2. 27 Scene of offence panchnama 3. 15 Inquest Panchnama 4. 16 Panchnama of body of the accused 5. 17 Panchanama of clothes of the deceased 6. 31 Death Registration Application Form 7. 21 Cause of death certificate 8. 20 P.M.Note of deceased-Budhabhai 9. 31 Receipt of handing over the body 10. 33 Letter of P.S.I, Kheda Town to F.S.L. 11. 34 Forwarding note for sending muddamal to FSL 12. 35 Forwarding note for sending muddamal to FSL 13. 36 Letter of F.S.L 14. 37 F.S.L. Report 15. 38 Serological report 6. After recording all the evidences, statements of the accused under Section 313 of Cr.P.C., were recorded and all the incriminatory evidences were put to them. They denied all the incriminatory evidences and took the plea that they have been false implicated in the crime. Thereafter, the case was fixed for the evidence of Accused persons but they had not led any oral and/ or documentary evidences. Thereafter, hearing the arguments on behalf of the prosecution and the defence and having considered the arguments and evaluating the oral as well as documentary evidences, the Ld. JDJ acquitted all the accused of all the charges levelled against them by the Judgment dated 31.05.2003. 7. Being aggrieved by and dissatisfied with the judgment dated 31.05.2003 passed by the learned Joint District Judge, 3 rd Fast Track Court, Kheda at Nadiad, the appellant-State has preferred the present Criminal Appeal. 8. We have heard Mr.Manan Maheta, learned APP for the appellant-State. 7. Being aggrieved by and dissatisfied with the judgment dated 31.05.2003 passed by the learned Joint District Judge, 3 rd Fast Track Court, Kheda at Nadiad, the appellant-State has preferred the present Criminal Appeal. 8. We have heard Mr.Manan Maheta, learned APP for the appellant-State. Learned APP appearing on behalf of the appellant-State vehemently submitted that the learned Trial Court failed to appreciate the testimony of P.W.3 - Taraben Budhabhai, who was eye-witness to the incident and her version is also supported by medical evidence on record. Therefore, the impugned judgment is not sustainable and liable to be reversed. 9. Having considered the rival submissions of the learned Additional Public Prosecutor and having perused the record, it is evident that the prosecution has examined as many as 7 witnesses and also placed 15 documentary evidence on record in order to prove the guilt of the accused. The prosecution has examined Dr.Ashish Manibhai Patel as P.W.1 at Exh.18. He conducted the post-mortem and he proved that the injuries on the body of the deceased – Budhabhai Manibhai Damor were ante-mortem. He proved the P.M.Note at Exh.20. As per the P.M.Note, the cause of death is due to the injury on the head (injury to brain). Thus, from the deposition of P.W.1, it is evident that the death of deceased-Budhabhai was unnnatural. 10. The prosecution has examined Complainant – Punambhai Kantibhai Patel as P.W.2 at Exh.22, who made the complaint to the police. He stated that he made the complaint only on the basis of the information provided by his sister-in-law viz. Taraben Budhabhai. He stated that he reached at the spot after the incident and at that time, dead-body of decesaed- Budhabhai was lying on the spot. From the over all evaluation of his deposition, it is apparent that he is not the eye-witness and he is hear-say witness of the incident and the facts narrated in the complaint at Exh.23 was also hear-say. Similarly, P.W.4 Mankaliben Wd/o. deceased Budhabhai Damor was also present at the place of incident at the time of alleged ofence and she also admitted in her cross-examination that she was not present at the time of occurrence of offence. Therefore, she was also hear-say witness. P.W.6-Chimanbhai Shanabhai, Police officer, in his deposition at Exh.28, admitted that at the time of incident, he was not present at the place of incident. Therefore, she was also hear-say witness. P.W.6-Chimanbhai Shanabhai, Police officer, in his deposition at Exh.28, admitted that at the time of incident, he was not present at the place of incident. He was declared turned hostile to the case of prosecution. 11. Learned APP has placed reliance upon the deposition of P.W.3 Eye witness – Taraben Budhabhai. She was minor at the time of incident. Therefore, the learned Trial Court had put preliminary questions to ascertain as to whether she can understand the questions put to her and as to whether she can reply the question. Having been satisfied, her deposition was recorded, but in his deposition, the learned Judge has observed that though her age was stated as 12 years, in the statement recorded by the Investigating Officer, she appears to be 8 to 9 years old. As to why her age was recorded on higher side, no explanation was furnished by the prosecution during the course of trial. In her deposition, she stated that her father was caught hold by Kapi and Tini and he was killed by Natlo, but in her cross-examination, she admitted that she has not narrated the fact to the police and she told this fact for the first time in the Court. In her cross-examination, she also admitted that she was inside the home and she came out after hearing the cries of Budhaji, and thereafter, she saw that Budhaji was lying there on the bed and blood was oozing from her body. From this fact, it is admitted that it is evident that there is bonafide doubt about the fact she was eye-witness and she saw as to how the offence took place. Therefore, her deposition is not beyond the shadow of doubt. 12. So far P.W.5 – Natwarsinh Devisinh Vaghela, is concerned, he is the panch-witness of the place of incident. The prosecution has also examined P.W.7-Kalyansinh Waghubhai Sagar at Exh.30. He is the Investigating Officer of the case. He proved the investigation and what steps were taken by him in conducting the investigation. However, in the cross-examination, the very interesting fact came in the Court. He admitted that he has recorded the statements of Watchman of Bharat Factory and other witnesses, but they were not shown in the charge-sheet. He is the Investigating Officer of the case. He proved the investigation and what steps were taken by him in conducting the investigation. However, in the cross-examination, the very interesting fact came in the Court. He admitted that he has recorded the statements of Watchman of Bharat Factory and other witnesses, but they were not shown in the charge-sheet. This fact itself speaks of volume that the prosecution has not brought the correct version before the Court and he could not explain as to why the statements of these witnesses were not placed on record. Thus, over all appreciation of the evidence produced by the prosecution, does not inspire faith of the Court. Therefore, the learned Trial Court has committed no error in recording the acquittal. 13. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court 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. 14. Further, 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. Further, 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 judgment 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. 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 the accused are connected with the commission of the crime with which he is charged. 15. In the instance case, learned APP failed to point out any cogent and incriminating evidence against the accused persons, which may connect the accused persons with the commission of the offence beyond reasonable doubt. At this stage, it would be profitable to refer to the judgment of Apex Court in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415 . The relevant observations made in the said judgment are as under:- “….. (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order Code of Criminal Procedure of acquittal is founded; (2) The , 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. (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. 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.” 16. Applying the aforesaid principle as laid down by the Apex Court in the case of Chandrappa (supra), it is apparent on record that no credible evidence had been produced by the prosecution, which may connect the accused persons in the alleged crime. The prosecution has miserably failed to prove the guilt of the accused persons beyond reasonable doubt. Thus, the Trial Court has not committed any error in appreciating the evidence on record and in acquitting the accused persons from the challenges levelled against them. 17. In these facts and circumstances, we are of the considered opinion that the learned Trial Judge committed no error in passing the impugned judgment and order. Hence, the present appeal deserves to be dismissed. 18. In the result, the appeal fails and is dismissed . The judgment and order of the Trial Court dated 31.05.2003 stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned Trial Court, forthwith. No order as to costs.