Gujarat High Court
The State Of Gujarat vs Gautamkumar Devjibhai ... on 15 December, 2017
Bench: S.R.Brahmbhatt, A.J. Shastri
R/CR.A/1326/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1326 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
=========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================= THE STATE OF GUJARAT....Appellant(s) Versus GAUTAMKUMAR DEVJIBHAI RATHOD....Opponent(s)/Respondent(s) ========================================================= Appearance:
MR HARDIK SONI APP for the Appellant(s) No. 1
MR JM PANCHAL, SENIOR ADVOCATE with MR JAYESH A DAVE, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 ========================================================= CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE MR.JUSTICE A.J. SHASTRI Date : 15/12/2017 Page 1 of 59 HC-NIC Page 1 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. The state has filed an appeal under Section 378(1)(3) of the Code of Criminal Procedure feeling aggrieved by the order of acquittal dated 31.01.2006 passed by the learned Additional Sessions Judge, Fast Track Court No. 5, Bharuch in Sessions Case No.99 of 2002 whereby the respondent accused came to be acquitted for the offences punishable under Sections 364(a),365, 368, 341, 342, 343, 346, 397, 120B of the Indian Penal Code read with Sections Section 25(1) (b), 25(2) (1A), 25(2) (1AA) and under Section 29 of the Arms Act.
2. The background on which the present appeal is filed is that on 15.07.1997 as per the case of the prosecution, original accused nos, 1, 2, 3, 4 and 5 in conspiracy to each other has illegally abducted the son of the complainant named Manish with a view to get some undue advantage and for ransom and to give ultimate outcome, committed the offence by abducting the son of the complainant. A complaint came to be lodged by one Page 2 of 59 HC-NIC Page 2 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT Bhupendra Prabhulal Shah before the Ankleshwar Police Station on the premise and by alleging that the complainant a resident of Kusumharwadi, opposite to Navi Nagri, Ankleshwar is having business of 'Shroff and Computer Shop' (as a financier). The complainant is having one son named Manish aged about 28 years and one daughter named Krina, who has already got married in the year 1988 and residing at Mumbai, whereas his son Manish got married in the year 1995 at Nadiad with a daughter of Bipinchandra Pranlal Shah named as Binta and out of the wedlock there is one daughter named Hetvi aged about one year. With all these family members, the complainant is residing at Ankleshwar and running a business of financier in the name of M.P. Shroff at Chauta Bazar and in the name of Shroff Information and Technology Private Limited. Business of selling computer and programming is also being undertaken, which practically is run by son Manish along with one Jigar Shah, Minesh Jani, Ilyaisbhai, Shhabirbhai Rangwala of Bharuch. The routine of his son Manish was that in the morning he is going and attending his shop, at around 2:30 after Page 3 of 59 HC-NIC Page 3 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT taking lunch, he is again going back to the shop and after 7:00 pm returning home after closing the shop. Lastly, on 16.07.1999. when son Manish of the complainant went to drop one Bhavin Dave after 7:00 pm after closing of his shop in a Maruti Car bearing registration no. GJ116C9992, Manish did not returned to home and about 8:20 pm at night, a phone call came, which was attended by wife of the complainant, in which Manish has stated that he has to take the dinner at hotel.
Again around 10:10 pm in the night, a phone call was made by Manish which was attended by the complainant. in which, Manish has conveyed that he has been abducted and someone took the phone from the hands of the Manish and conveyed that they have taken Manish and will talk again after about one hour. Later on after about half an hour, around 10:30 pm, some phone call came to be received, in which there was a demand of Rs. 1 'Khoka" ie. Rs.1 Crores. It was deliberated, that there is no capacity to pay. Therefore, they reduced the amount to Rs.50 lakhs. Even that was also not there and, therefore, it was conveyed that no less amount will be tolerated and they will Page 4 of 59 HC-NIC Page 4 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT again call in the next day morning. It is further the case of the complainant in his complaint that on the next day i.e. 16.07.1997 at about 9:00 am in the morning a phone call was received, inquiring about the money. Resultantly, it was conveyed by the complainant that Rs.5 7 lakhs can be managed and there is 'Gujarat Bandh' on account of which the banks are also closed and therefore, conveyed that beyond Rs.10/ lakhs (10 petis), nothing is possible to be managed and, therefore, by abusive language a threat was administered that less than Rs.50 lakhs will not be acceptable and in that case, Manish i.e. the son of the complainant will be done away. Again at around 10:00 o'clock, a further phone call came to be received, in which the said threat was reiterated and demanded Rs.50/ lakhs. Again a phone call was repeated and then conveyed that on the next day, at around 12:00 o'clock, they will talk again and thereafter, when the phone was given to Manish, Manish has conveyed that anything troublesome can taken place with him and then after some deliberations, the phone was putup Thereafter on 17.01.1997 at around 1:00 Page 5 of 59 HC-NIC Page 5 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT o'clock in the noon, it was conveyed that whether the amount is ready or not and the same was conveyed to the complainant in gujarati language wherein it was informed that the amount is ready and then the Manish had a talk with his mother as well. Again at 2:00 pm the phone call to be received in which it was conveyed that come to Narol chowkdi and go to the right side of the Himmatnagar and after going to Indira Bridge, near Koba Patia, a person will raise his hand and handover the bag consisting of money. Thereafter, an assertion has taken place further in which, when they reached at Koba circle at around quarter to ten pm, no person was standing and despite the fact that upto 12:30 pm in the night, the complainant and other person waited, but nobody turned and then came back. On 18.07.1997 at around 9:00 o'clock in the morning again a phone call came and again deliberation took place and called at a place and at that time, three persons came out from one Blue colour Cielo Car or Thousand and one person who was driving the car dragged out the driver of the Maruti car and then two other persons entered and gouge the person's mouth, who was driving Page 6 of 59 HC-NIC Page 6 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT Maruti Car and thereafter both the cars in a speed went ahead over the bridge. It is further asserted that one person driving a moped belonging to Bharwad community has seen this incident and these circumstance are brought to the notice of son and daughter of one Aayubbhai. When the daughter of Aayubbhai was shown the photographs of some of the persons who were arraigned in such previous offence, out of which one Kamlesh Barot, Gautam Ramanuj were identified, Since this was the circumstance happened with the complainant and the accused persons have taken away and abducted son for ransom and huge amount of Rs.50/ lakhs and detained illegally, took him to various places, and thereby have committed serious offence, as a result of which a complaint came to be lodged before the Ankleshwar Police Station.
3. The Investigating Officer on receipt of the complaint has registered a complaint under Sections 364(a), 365, 341, 342, 343, 346, 397, 120B, 34, 114 of the Indian Penal Code and Sections 25(1), 25(1A) and 25 (1AA) along with Sections 25(2), Page 7 of 59 HC-NIC Page 7 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT 25(3), 29 and 35 of the Arms Act. On finding prima facie material upon conducting the investigation at length, the Investigating Officer has submitted a charge sheet before the learned Judicial Magistrate, First Class, at Ankleshwar as against as many as 11 accused persons. For the aforesaid main accused, later on additional charge sheet has also been submitted. Some of the accused persons were arrested and some were about to be arrested, but then since there was no jurisdiction to try the case with the learned Judicial Magistrate, First Class, Ankleshwar, upon verifying the papers in exercise of jurisdiction under Section 209 of the Code of Criminal Procedure, a case was committed to the Sessions Court for onwards trial and then the same was registered as Sessions Case No. 99 of 2002.
4. After committal of case, the case came up for consideration before the learned Additional Sessions Judge, Fast Track Court No. 5, Bharuch who vide Exhibit3 has framed the charge in December, 2002 and the same was read over to the respondent accused and plea was recorded at Exhibit4 wherein, it was Page 8 of 59 HC-NIC Page 8 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT conveyed that no offence is committed by him. After denial of offence, a case was put up for adjudication further in which an opportunity was given to the prosecution to lead the evidence whereby the prosecution has examined as many as 14 witnesses and adduced 22 documentary evidences and thereby oral as well as documentary evidence was lead by the prosecution after which the closure purshis was given. With a view to give an opportunity further, the statement was recorded under Section 313 of the Code of Criminal Procedure in which again the respondent accused has denied the offence being committed and claimed to be tried, as a result of which, the prosecution has made an attempt to prove the case against the accused. It appears that after considering oral as well as documentary evidence and after hearing at length both the sides, the learned Additional Sessions Judge, Fast Track Court No.5, Bharuch was pleased to pass an order of acquittal in favour of the respondent accused herein and has relieved the respondent from the charges for the offences which were tried and it is this judgment and order of acquittal made the subject matter of present Page 9 of 59 HC-NIC Page 9 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT criminal appeal before this Court.
5. It appears from the record that this appeal has been admitted on 13.03.2008 and thereafter, the appeal was taken up for hearing in which along with the other sets of appeal, a decision was delivered by the Division Bench of this Court on 21.01.2009 by virtue of which, in respect of present respondent accused, an order of acquittal is set at naught and convicted the respondent in connection with the offence alleged and sentence him to undergo imprisonment for life, as a result of which, the present respondent approach the Apex Court wherein, after disposing of the appeal of the respondent which was numbered as Criminal Appeal No. 1125 of 2009, the matter was remanded to the High Court for fresh hearing and disposal, in accordance with law, keeping in view the observations made by the Apex Court with regard to the present respondent. This order was passed by the Apex Court in respect of the present respondent as a result of which the present criminal appeal was again put up for final hearing in which, the record indicates that on Page 10 of 59 HC-NIC Page 10 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT 16.12.2014, the Division Bench of this Court was pleased to issue notice for final hearing on the respondent accused pursuant to the remand order passed by the Apex Court. In view of the aforesaid background, fresh hearing was ordered and the present criminal appeal is put up for final disposal before this Court.
6. Mr. Hardik Soni, learned APP has represented the State whereas, learned Senior Advocate Mr. J.M. Panchal is appearing with learned advocate Mr. Jayesh Dave representing the respondentaccused.
7. Mr. Hardik Soni, learned APP has vehemently contended that the order of acquittal is not justified at all in such kind of serious offence, more particularly, when the role of the respondent is unequivocally established on record. Mr. Soni, learned APP has further contended that even the Apex Court having found that there is some material against the respondent accused, the case deserves to be adjudicated, as a result of Page 11 of 59 HC-NIC Page 11 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT which, instead of granting benefit at that stage, the matter has been remanded to the High Court for fresh consideration and, therefore, also even the Apex Court has found adequate material by virtue of which the order of remand is passed and, therefore, in view of this peculiar set of circumstance, the order of acquittal is not justified in the eye of law. It has also been contended by Mr. Soni, learned APP that during the course of investigation, there is a serious offence of ransom so far as the present respondent accused is concerned, and overwhelmingly the evidence has come up on record which establishes beyond reasonable doubt the role played by him and, therefore, considering the language and the object of Section 364(A) and Section 120B of the Indian Penal Code, the order of acquittal deserves to be reversed in the present proceedings. It has also been contended that sequence of evidence has been established by the prosecution against the respondent accused and therefore, it cannot be said in any way that the order of acquittal is justified. It has been pointed out by Mr. Soni, learned APP that on 15.07.1999, the victim namely Manish, son of the Page 12 of 59 HC-NIC Page 12 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT complainant was kidnapped and detained upto 19.07.1997 and in pursuance of the First Information Report dated 18.07.1997, the investigation was handed over to the Police Inspector Mr. Jayendrasinh Jhala whose testimony is clearly indicating the role of the present respondent accused. It has been pointed out and contended that there was a recording of the pager message/communication which took place inter se between the accused persons and the service provider company has also issued a certificate in that regard which is reflecting from the deposition of various officers of the Company, as well as Exhibit 93 is justifying that the case has been made out against the respondent. It is further contended that the testimony of the Police Officer namely Mr. Jayendrasinh Jhala, is indicating that the statement of the Manager was not only recorded, but one Chetanbhai Lakhabhai, serving as a Manager in R.P.G. Paging Company has also deposed before the Court and, therefore, the evidence collected can be relied upon under Section 33 of the Evidence Act.
Page 13 of 59 HC-NIC Page 13 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT 7.1. Mr. Soni, learned APP has further contended that on 30.07.1997 at the instance of the respondent accused, a foreign made pistol came to be discovered and the said pistol was sent to FSL and it was found that it was found to be in working condition. The discovery panchanama which was drawn during the course of the investigation has been supported by the panch witness namely Kiranbhai Rameshchandra Choksi which is reflecting at page 1279 of the paper book compilation and by referring to this Exhibit61, Mr. Soni, learned APP has contended that more than adequate material to establish the guilt of the respondent accused is emerging from the record and, therefore, the order of acquittal is passed by the perverse findings and therefore, the order deserves to be corrected. 7.2. Mr. Soni, learned APP has further pointed out that the respondent accused came to be arrested on 18.07.1997 and at the time of arrest, the respondent was occupying unnumbered 'Cielo Car' and the description of the said car is already mentioned in the First Information Report by the complainant. It Page 14 of 59 HC-NIC Page 14 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT was noticed and pointed out during the course of trial not only by police officers, but by the victim himself, who is the eye witness to the incident about the use of this unnumbered car for the purpose of kidnapping and, therefore, the use of the car, discovery of pistol has been sufficiently been believed by the prosecution. It has also been contended that at the time when the respondent accused was arrested not only foreign made pistol was recovered but there was also a pager and the automatic carbine gun in his possession. So far as pager is concerned, the brother of the accused P.W. 4 i.e. Girdharbhai Devjibhai Rathod has deposed before the Court which is reflecting at page 109 of the compilation that he had purchased the said pager and, therefore, there is a direct nexus in commission of crime by the respondent accused. 7.3. Mr. Soni, learned APP has further pointed out from the panchnama that the 'Cielo Car' was not claimed by anybody during the course of the trial, never demanded by any other person, which would go against the respondent accused as it is a direct circumstance connecting the accused with the commission Page 15 of 59 HC-NIC Page 15 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT of crime. Mr. Soni has further pointed out that this respondent accused is not only responsible for the commission of present crime, but is having the history behind him. In the year 1987, he was arrested in connection with the murder of the person while absconding from the judicial custody in connection with other offence, and the present crime for ransom is committed. For the purpose of murder, offence under Section 302 of Indian Penal Code in Sessions Case No.127 of 1989 is very much pending and, therefore, once again has jumped the bail and was arrested on 02.09.2000 and, therefore, the conduct of the respondent accused is also not to be unnoticed by this Court while dealing with the evidence of the present case. The accused being criminal minded person to be viewed seriously. 7.4. It has also been contended by Mr. Soni, learned APP that the panchnamas drawn during the course of the investigation have been relied upon during the course of trial and, therefore, even if the panchas have turned hostile, they have not disputed their signature and this panchnama in question have been proved through the testimony of the police witness and for that Page 16 of 59 HC-NIC Page 16 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT purpose reference is given by the decision delivered by this Court in the case of Jagdishsinh @ Munno Ranjitsinh @ Ranubha Jadeja v. State of Gujarat reported in 2016 (4) GLR 3122, 2012 (3) GLR 350 and 2012(4) GLR 722. Mr. Soni, learned APP has further contended that it is a settled position of law that the statement of witnesses who has been examined in earlier round of proceedings, can be considered by virtue of fact of Section 33 of the Evidence Act and that is validly been laid down by the Apex Court in the case of Nirmal Singh v. State of Haryana reported in (2000) 4 SCC 41.
7.5. Mr. Soni, learned APP has further pointed out that so far as offence pertaining to Arms Act is concerned, power of Section 39 of the Arms Act is applicable only to offences punishable under Section 3 of the Arms Act, whereas, in the present case, the weapons are automated machine carbine gun and hence, the same is punishable under Section 7 of the Arms Act. Thus, power under Section 39 of the Arms Act is not applicable to the case of the respondent accused and, therefore, considering this Page 17 of 59 HC-NIC Page 17 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT set of circumstance, Mr. Soni, learned APP has contended that erroneous approach is made by the learned Judge in evaluating and analyzing the evidence on record. Mr. Soni, learned APP has further contended that there is no allegation of any nature with regard to biasness of any Police Officer. There is no animosity alleged nor mala fide is even asserted at any point of time and, therefore, when, automatic machine carbine gun, 'Cielo car' has been found on 16.07.1997, there is no reason or any force to implicate the present respondent accused in present crime and, therefore, Mr. Soni, learned APP has submitted that there is adequate material to hold the respondent accused guilty of offence as alleged.
7.6. Mr. Soni, learned APP has further pointed out that with respect to identification of accused, the victim has specifically identified the respondent. The victim is examined as prosecution witness - PW2 whose testimony is reflecting at page 101 of the paper book compilation which clearly indicates that he has identified specifically the present respondent. Considering the fact that there is a serious charge of conspiracy in it, original Page 18 of 59 HC-NIC Page 18 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT accused no. 2 called present respondent accused who is accused no. 6 who came in a 'Cielo car' with carbine gun and has specifically reveal the live link between the accused persons interse. However by virtue of order dated 25.04.2014, even the conviction of other accused is upheld by the Apex Court and, therefore, there is no reason justifiable of any nature to allow such order of acquittal when on the face of it live link is established of the respondent accused with crime. Mr. Soni, learned APP has further pointed out that on conjoint reading of the entire evidence as a whole, is clearly indicating that the respondent accused is not an innocent person and it may not be possible to infer safely the innocence of the respondent accused and by referring to this contention, Mr. Soni, learned APP has requested the Court not to allow such order to be sustained in the eye of law.
7.7. Mr. Soni, learned APP has further stated that some of the documents in which tentative exhibition number is given that would not deprive the prosecution to consider and rely upon Page 19 of 59 HC-NIC Page 19 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT such documents, more particularly, Exhibit93. Mr. Soni, learned APP has pointed out that a serious offence of conspiracy is alleged and it is not simplicitor case of possession of arms in violation of the provisions of the Arms Act, on the contrary, one of the witnesses have identified the car and simply because the colour of the car is not descriptive, it is not possible to divulge the attention of respondent accused from the offence. It has also been pointed out that the discovery is specifically at the instance of the respondent and a clear identification has taken place of pager, carbine gun and the Car were stated to be with the respondent accused and there is a sufficient material to connect the respondent accused with commission of crime. It was hardly any justifiable reason to grant the benefit of acquittal to the respondent accused. It has been pointed out that when such kind of material was produced before the Court and when the incriminating circumstance were produced before him for further explanation, it was the duty on the part of the respondent accused to explain even in further statement recorded under Section 313 of the Code of Criminal Procedure. The very object of Page 20 of 59 HC-NIC Page 20 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT Section 313 of the Code of Criminal Procedure is to grant a fair opportunity to the respondent accused and, therefore, it is not simply the duty of the prosecution to establish the case beyond reasonable doubt, but it is also the corresponding duty of the respondent accused to explain conjointly the circumstance put before him under Section 313 of the Code of Criminal Procedure and having failed to discharge his duty by not tendering the cogent explanation in consonance, which has been presumed by the learned Judge, is not justifiable in the eye of law and for that purpose, Mr. Soni learned APP has relied upon the decision of the Apex Court in the case of Munish Mubar v. State of Haryana reported in (2012) 10 SCC 464.
7.8. So far as the issue related to sanction is concerned, Mr. Soni, learned APP has stated that the sanction is required only with respect to the offence under Section 3 of the Arms Act, whereas, here no such requirement is visible and alternatively Mr. Soni, learned APP has stated that such change or the lapse even if more may be treated as fatal to the prosecution and, Page 21 of 59 HC-NIC Page 21 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT therefore, since the learned Judge has misdirected himself in evaluating the evidence on record and has erroneously come to the conclusion of innocence of the respondent accused such perverse order deserves to be set at naught. Mr. Soni, learned APP has submitted that it is a settled position of law by a series of decisions that no doubt the revisionary jurisdiction of this Court while dealing with the acquittal appeal is circumscribe but that does not mean that in no case the order of acquittal is not to be reversed. Here in the present case where there reflects perversity in the conclusion arrived at by the learned Judge and the conclusion has resulted into miscarriage of justice, in such eventuality, the Apex Court may kindly interfere and reverse the findings of the order of acquittal and impose appropriate sentence upon the respondent by passing the order of conviction and therefore, by submitting the aforesaid contention, ultimately the request is made to set aside the order of acquittal and allow the appeal filed by the State by imposing appropriate reasonable punishment. No other submissions have been made. Page 22 of 59 HC-NIC Page 22 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT
8. To contradict the stand taken by learned APP Mr. Soni, learned Senior Advocate Mr. J.M. Panchal appearing with Mr. Jayesh Dave, learned advocate representing the respondent accused has vehemently contended that in due discharging the statutory functions, the jurisdiction is exercised by the learned Judge in passing the order of acquittal which is well within the scope of jurisdiction and to justify the order of acquittal appropriate reasons are assigned which are valid reasons and cannot be set at naught while dealing with the order of acquittal. It is settled position of law that even if another view is possible, in absence of any perversity or material illegality, substitution of view is not permissible and is well defined by now in a series of decisions by Apex Court and, therefore, keeping this peripheral limit of exercising jurisdiction while dealing with the order of acquittal, Mr. Panchal, learned Senior Advocate has vehemently submitted that even apart from the this, the evidence as a whole if to be read, it would be quite clear that prosecution has miserably failed in proving the case against the respondent accused beyond reasonable doubt. A duty is cast upon the Page 23 of 59 HC-NIC Page 23 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT prosecution to establish the case beyond reasonable doubt, and that duty appears to have not been performed at all in the present case. For the purpose of establishing this point, Mr. Panchal, learned Senior Advocate has taken the Court to various testimonies of the prosecution witnesses and out of the same, some of the very relevant testimonies have been pressed into service and analyzed and contended that no case is made out.
8.1. Mr. Panchal, learned Senior Advocate has submitted that the prosecution has examined as many as 14 witnesses to establish the guilt of the respondent accused, but the main material witnesses which are examined by the prosecution if to be analyzed, no case is made out. On such submission, Mr. Panchal, learned Senior Advocate has submitted that so far as prosecution witness - PW - 1 i.e. Bhupendrabhai Prabhulal Shah who is mentioned at Exhibit43 page 20 who is the complainant has though asserted against the respondent, his testimony is not establishing in any manner, the case against Page 24 of 59 HC-NIC Page 24 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT the respondent. First of all, he is not an eye witness to the incident in question, He has also not having the personal knowledge about the incident and according to his testimony, it clearly appears that he has obtained information from the other persons and, therefore, his evidence is directly in nature a hearsay evidence on the basis of which, no order of conviction can be passed. In any case, a close reading of his testimony i.e. PW1 at Exhibit43 is not involving the present respondent accused though alleged offence, as is visible. Mr. Panchal, learned Senior Advocate has further drawn attention of this Court to the testimony of the prosecution witness - PW 2 who is not only the prosecution witness, but the victim as well, whose deposition is recorded at Exhibit46 reflecting at page 101 of the paper book compilation. So far as his evidence is concerned, this material witness has stated that he was kidnapped in a 'Cielo Car', but this witness has not given any description of that 'Cielo Car'. The said witness has not even given colour of car though the 'Cielo Car' was in custody of police i.e. the investigating agency. There is no panchnama of identification of Page 25 of 59 HC-NIC Page 25 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT the 'Cielo Car' and, therefore, even during the course of examination before the Court of this witness, no attempt was made by the prosecution of getting the 'Cielo Car' to be identified through this witness. Therefore, the basic identification of 'Cielo Car' is not established by the prosecution through his material witness who is not only the eye witness, but the victim of the incident in question. So far as other part of his testimony, there appears to be no explanation either by the prosecution as to why 'Ceilo Car' was not identified through this witness. Even the involvement of the present accused is not alleged by this witness so far the offence of kidnapping is concerned, no specific role is attributed upon the respondent accused even after kidnapping by other accused persons. This is so, despite the fact that the victim was detained right from 15.07.1997 to 19.07.1997 and, therefore, so far as the present respondent accused is concerned, there is no adequate material of any nature which would connect the respondent accused with the commission of crime. Even the evidence suggest that after his release, his custody was given to his relative on 19.07.1997 and not to the complainant. It is the Page 26 of 59 HC-NIC Page 26 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT case of this witness in deposition that he was brought to the 'Divya Apartment' on 20.07.1997 and at that point of time, he has seen the present accused for the first time in 'Divya Apartment' along with other accused persons and, therefore it is not undisputable as to why this witness is brought at 'Divya Apartment'' and there appears to be no explanation in the said connection.
8.2. Mr. Panchal, learned Senior Advocate has further submitted that yet another circumstance which is taken note of is that the test identification parade of the accused person was held by the investigating agency, through the present witness and the present accused was not identified in the test identification at all by this material witness. Therefore, a suitable attempt is made to suppress the important and material evidence by the prosecution in connection of establishing the offence with the respondent accused and therefore, the prosecution is not cordial and fair prosecuting agency before the Court and, therefore not only unfair investigation has been Page 27 of 59 HC-NIC Page 27 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT conducted, but even during the course of trial, no fairness is shown by the prosecution. From the overall reading of the deposition of this material witness, as indicated that, for the first time, the respondent accused was seen with the present witness on 20.07.1997 at 'Divya Apartment' and had he there been so he would not have misled to identify the present accused when the test identification parade was conducted and, therefore, deliberate intention and attempt is made to suppress the material circumstance from this Court.
8.3. Mr. Panchal, learned Senior Advocate has further pointed out that the prosecution have not realized this difficulty of suppressing the material circumstance from this Court and if to be looked into, the testimony of Jayendrasinh Jhala recorded at Exhibit87 who was examined as PW14 at page 167 relying upon page 173 12th line of his deposition and has shown audacity to state on oath that no test identification was held qua the present accused and therefore, the prosecuting agency has rightly inferred partially and, therefore, grave suspicion is Page 28 of 59 HC-NIC Page 28 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT emerging from the testimony of this witness and, therefore, in that circumstance, it cannot be said in any way that the case is established beyond reasonable doubt in so far as present accused is concerned. It has further been pointed out that on one hand this material witness is indicating that he had seen the respondent accused along with other accused at 'Divya Apartment' on 20.07.1997 whereas on the other hand, there is no clinching evidence adduced to indicate that the present accused came with 'Cielo Car' along with, carbine gun, cartridges and a pager at 'Divya Apartment'. Therefore, if the evidence of this witness is to be viewed along with PW14 at Exhibit87 it would not indicate in any manner that the victim had any occasion either to meet or to see the present respondent accused and that would make it clear that the evidence of seeing this witness at 'Divya Apartment' is absolutely false, incorrect and gotup. This testimony is making it crystal clear that the present accused was not present at the time of commission of crime, was not seen at the time when the alleged kidnapping took place and at the time or at the place during the detention at various places. Page 29 of 59 HC-NIC Page 29 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT Mr. Panchal, learned Senior Advocate has pointed out that even if all this infirmities or probabilities are ignored, it is not the prosecution case that right from the moment of kidnapping to his release, at any point of time, he has seen the present accused. Thus, the evidence of this material witness would not held the prosecution in any manner to establish the guilt of the respondent accused beyond reasonable doubt and therefore, the testimony of this material witness is of no help to the case of the prosecution.
8.4. Mr. Panchal, learned Senior Advocate further pressed into service the testimony of one prosecution witness named as Mobinbhai Ayubbhai Motala who was examined at Exhibit47 as prosecution witness, whose testimony is reflecting at page 107. The analysis which has been undertaken and brought before the Court by Mr. Panchal, learned Senior Advocate that this witness happens to be the eye witness to the incident in question of kidnapping of son of the complainant namely Manish. So far as the evidence of this witness is concerned, when this prosecution Page 30 of 59 HC-NIC Page 30 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT witness (PW) 3 was called upon at test identification parade when it was conducted, he could not identified the present accused at all and this witness has not assist the case of the prosecution in any manner about the involvement and the role of the present accused person. The present witness ie. PW3 is simply referring to the 'Cielo Car' but has not given any description either of the car or colour of the car, in such manner that it can be safely inferred with. It was the present 'Cielo Car' which was utilized for commission of crime and neither the panchnama nor the deposition of this witness is assisting the case of the prosecution beyond reasonable doubt. 8.5. Yet another witness which has been brought before the Court by Mr. Panchal learned Senior Advocate is PW4 Girdhar Devjibhai Rathod who is examined at Exhibit48 reflecting at page 109 of the paper book compilation. This prosecution witness is brother of the present accused and so far as this witness is concerned, it cannot be said that he is supporting the case of the prosecution. He is not only declared hostile and Page 31 of 59 HC-NIC Page 31 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT therefore, his evidence is not any assistance to the prosecution. Admittedly, he was the owner of the so called pager which clearly establish that the present respondent was neither having the possession or ownership of the pager. At the relevant point of time, the custody of the pager was not proved by the prosecution through this witness. In so far as the communication referred to pager right from the purchasing, the details of the communication are not produced by the prosecution to establish that right from the purchase it was accused and accused only who was using the pager and in absence of any details with regard to the communication through this pager, which is a muddamal used in for commission of crime. It cannot be presumed that such pager was used during the course of the commission of crime and that too by the present accused only. The prosecution can examine other persons who entered into communication especially the live link between the commission of crime and the respondent and therefore, Mr. Panchal, learned Senior Advocate has submitted that there is no reliable evidence of this witness which can be banked upon by the prosecution. Page 32 of 59 HC-NIC Page 32 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT 8.6. Yet another witness which has been brought to the notice before the Court is PW5 - Prahladbhai Maganbhai Khatri, who is examined as PW5 at Exhibit51 whose testimony is at page 112 of the paper book compilation. A careful reading of this witness is justified as per the say of Mr. Panchal, learned Senior Advocate that he is not supporting the case of the prosecution and is declared as hostile. The prosecution has not examined even the second panch witness to establish the panchnama i.e. Kalpesh Sureshchandra Shah and nonexamination of this second panch, in the absence of any cogent explanation would not lead to a conclusion that the panchnama is established more particularly, when this PW5 has turned hostile. Even for the sake of submission, the panchnama at Exhibit52 if to be read, it is quite clear that on 20.07.1997 the highest responsible Police Officers from the crime branch Bharuch District, ATS, DCB Vadodara were present and at that point of time, one PSI Ajaybhai Ghakkhar who is DCB in Vadodara City had disclosed that personally he had intercepted accused Raju Page 33 of 59 HC-NIC Page 33 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT Rathod and he had disclosed that previously he had interrogated accused - Raju Rohida and he had disclosed about the possession of the carbine gun and had come to know that accused no. 1 - Kamlesh Barot and accused no. 2 Gautam Ramanuj were having possession of carbine gun and had given the same to the present accused and also black colour 'Cielo Car' is used in commission of offence of kidnapping and, therefore, accused no.2 Gautam Rathod was asked to contact the present accused on mobile and called him with carbine gun in 'Cielo Car', as a result of which, accused no. 2 contacted accused no. 6 i.e. the present accused and called him and the present accused went in 'Cielo Car' and during the search, carbine gun with 58 live cartridges were found and in view of this circumstance being taken in deposition, the following circumstance cannot be unnoticed as per the say of Mr. Panchal, learned Senior Advocate. It is to be considered that Raju Rohida is not examined by the prosecution, for which there is no explanation. It is further not explained as to why PSI Ajay Ghakkhar is also not examined and, therefore, the important person who gave the Page 34 of 59 HC-NIC Page 34 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT information and the person who received the information have not at all been examined and for that nonexamination, no explanation is offered by the prosecution. In addition to this, Mr. Panchal, learned Senior Advocate has submitted that Raju Rohida disclosed such information with regard to the offence, but papers are not produced which are very relevant. The information was regarding very serious offence and would not have taken lightly by PSI Ghakkhar and, therefore, immediate steps would have been taken but to the surprise, nothing is brought before the Court to establish any such serious act so as to see that such infirmity may not be surfaced. The prosecution appears to have not examined Raju Rohida as well as PSI Ajay Ghakkhar and, therefore, it cannot be said that the prosecution has established the case beyond reasonable doubt. 8.7. Mr. Panchal, learned Senior Advocate has further pointed out to the Court that while reading this evidence that it is quite clear that PSI Ajay Ghakkhar was involved right from the beginning i.e., from the inception of the investigation of the Page 35 of 59 HC-NIC Page 35 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT offence and there is a reference of the same reflecting in all panchnama produced on record. PSI Ajay Ghakkhar, a highest rank officer wold not have remained silent and would have taken immediate steps if such serious offence of any nature appears which would clearly indicate that the case has not been proved beyond reasonable doubt. In addition thereto, it has been pointed out that the call records (CDR) and so called talks between the original accused no. 2 and the present accused i.e. accused No. 6, are not brought on record by the prosecution. When highest rank officers are very much managing the investigation, it was expected that immediate action to stop accused no. 6 and accused no. 2 and would immediately rush to raid the premises. There appears to be a clear in action which indicates that there is no credibility of evidence emerging. Mr. Panchal, learned Senior Advocate has submitted that even in ordinary case, a head constable or police constable would not miss to seal the weapons and articles on the spot seized from the accused. By referring to panchnama at Exhibit52 page 114, it has been pointed out that it is not only clear but rather admitted Page 36 of 59 HC-NIC Page 36 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT that 'Cielo car' is alleged to have been recovered along with other articles is not shown at all and despite the fact that highest rank officers were present and involved in the investigation, still the seizure procedure is not done at all on the spot which is very much the duty.
8.8. Mr. Panchal, learned Senior Advocate has further submitted that according to the case of the prosecution, the process and procedure of sealing weapons were done on 18.07.1997 which is reflecting on page 150 vide panchnama at Exhibit74. It is the established procedure that if all of a sudden some articles are to be seized, in commission of crime, immediately the sealing material and seal would be called for from the nearest Police Station while in the present case, even after about a month, the sealing of weapon of such serious nature has not taken place and flimsy explanation is offered by the Investigating Officer. Surprisingly, the explanation is coming out that they were not having the sealing material at all. No explanation is emerging. Mr. Panchal, learned Senior Advocate Page 37 of 59 HC-NIC Page 37 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT has submitted that if carbine gun in fact and really would have to be seized there would be communication to the concerned Police Station immediately, and there would be represented in writing, there would be immediate steps to call and there appears to be no communication from the record with this regard. Even no FSL expert has been examined for the reasons best known to the prosecution and there is also no evidence that the alleged arms apart from its discovery were prohibited within the meaning of the Arms Act.
8.9. Mr. Panchal, learned Senior Advocate has further submitted that no previous sanction for the prosecution under Section 39 of the Arms Act is obtained and the law on the subject is quite clear that no one can be prosecuted under the Arms Act without valid, legal authority and proper previous sanction under Section 39 of the Arms Act. Mr. Panchal, learned Senior Advocate has submitted that it is the case of the prosecution that carbine gun was given to the present accused by original accused nos. 1 and 2 and even they have not been Page 38 of 59 HC-NIC Page 38 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT convicted under the provisions of the Arms Act by the trial Court. With regard to original accused nos. 1 and 2, there was a appeal against the order of acquittal against the decision of this Court and the State did not prefer an appeal so far as the offence under the Arms Act are concerned. Thus, the judgment of the trial Court in so far as the acquittal of the respondent accused under the Arms Act is concerned, the same has attained finality. Thus, the prosecution case relating to other accused persons are concerned, those are also not convicted under the provisions of the offence related to the Arms Act.
9. From the aforesaid material testimonies of the present case, as per the say of Mr. Panchal, learned Senior Advocates it is evident that there is no legal, reliable, credible trustworthy evidence connecting the accused with the offence and as a result of which, the order of acquittal delivered by the trial Court is not required to be interfered with. In addition thereto, Mr. Panchal learned Senior Advocate has submitted that the trial Court has recorded the evidence, has scrutinized the evidence minutely Page 39 of 59 HC-NIC Page 39 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT and has also given legal, valid and cogent reasons to justify the ultimate conclusion of acquittal in respect of the present accused and therefore, Mr. Panchal learned Senior Advocate has submitted that looking to the scope of appeal against the order of acquittal, even if two view are possible, then also the view which has been in favour of the accused deserves to be accepted and therefore, by submitting this, Mr. Panchal learned Senior Advocate has submitted and requested that even the State has also preferred the acquittal appeal against original accused no. 7 i.e. Rameshbhai Natwarlal Patel, against accused no. 8 Bhavnaben alias Tina Barot, accused no. 9 - Minaben Pravin Patel and accused no. 10 - Tilu alias Mohmad Rafik Mohamad Siddiq Sheikh. vide Criminal Appeal No. 227 of 2007. This court was pleased to confirm their order of acquittal though the evidence of their involvement was found to connect with the victim Manish and, therefore, when there was a direct evidence even in that case also, this Court has not reverse the order of acquittal in so far as the aforesaid accused persons are concerned, and therefore, the accused of the present case stand Page 40 of 59 HC-NIC Page 40 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT on different footing altogether rather on much higher pedestal and, therefore, the order of acquittal may not be interfered with and the appeal filed by the State deserves to be dismissed. No other submissions are being made.
10. Having heard the learned advocates for the respective parties and having gone through the evidence on record which has been noticed by this Court, first of all the trial Court has examined the evidence in detail and only thereafter, arrived at a conclusion of acquitting the present accused. It has also been found that so far as other accused persons are concerned, namely accused nos. 7, 8, 9 and 10 their acquittal is also not reversed by this Court while dealing with Criminal Appeal No. 227 of 2007 and, therefore, it seems that on the basis of same evidence, substantially when the present accused i.e. accused no. 6 has also been acquitted by this Court, there is no other circumstance by which it can be held that the trial Court has erroneously exercised the jurisdiction. In addition to this, it has also been found from the record that the prosecution witnesses Page 41 of 59 HC-NIC Page 41 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT which have been examined and relied upon by the prosecution agency on account of infirmities prevailing in their testimonies are not possible to be treated as reliable which would permit this Court to hold any perverse approach adopted by the learned trial Judge. On the contrary, as said earlier, so far as PW1 namely Bhupendrabhai Shah is concerned, this fact is noted that he is not the witness to the incident i.e. actual occurrence. His evidence is practically hearsay evidence and this witness has not at all involved the present accused in commission of crime. 10.1. So far as another prosecution witness i.e. PW2 Manish is concerned, who is examined at Exhibit46, the Court has seen that this witness has stated that he was kidnapped in a 'Cielo Car' but this witness neither gave any description in detail about the ' Cielo Car'. Assuming that the colour of the car is not given by this witness who is the victim himself, from the testimony of this witness, the conduct of not only identifying the colour but the identification of Car has also not been established by this Court during the course of trial. Even no attempt was made by Page 42 of 59 HC-NIC Page 42 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT the prosecution, even during the course of trial to get the Cielo Car identified from this very witness. This witness has also not specifically attributed any role so far as kidnapping of the victim is concerned right from 15.07.1997 to 19.07.1997, no role is attributed to have been played by this accused during the course of trial, while committing the alleged offence and, therefore, this prosecution witness (PW) 2 has also not thrown any light which can heavily be relied upon to reverse the acquittal, which has been ordered by the trial Court.
10.2. One of the main important issues qua test identification parade which was held by the investigating agency through this witness and it is important to note that the present accused was not identified at all in test identification parade and, therefore, when the victim himself has not identified the present accused, there is hardly any credence attached to the evidence of the prosecution, insofar as the present accused is concerned. In addition thereto, the evidence against this accused is found to be totally inadequate which would not permit this Court to dislodge Page 43 of 59 HC-NIC Page 43 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT the finding which has been arrived at by the learned trial Court. 10.3. From the overall discussion of this witness, it is emerging that the accused was not present at the time of commission of crime and was not there at the place during his detention at various places and, therefore, there is a chance of wrongful involvement of the accused also, which cannot be ruled out. 10.4. The record of the case further indicate that the prosecution witness (PW) 3 who is stated to be an eye witness to the incident, but no crossexamination is done. It is revealed that in test identification parade, this prosecution witness could not identify the present accused. Further, this witness has no doubt named the car i.e. 'Cielo' but has not given any description of the car nor colour of 'Cielo Car' in any manner and he has not identified at any point of time, even before this Court and for that there is no explanation at all. Now, same is the case with other witness also, not only that the prosecution witness (PW) 4 i.e. Girdhar Devjibhai Rathod at Exhibit48 is not establishing, but this Page 44 of 59 HC-NIC Page 44 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT witness has chosen to remain hostile and has not supported the case of the prosecution.
10.5. Even prosecution witness (PW) 5 Prahlad Maganbhai Khatri at Exhibit51 is concerned, he has also not supported the case of the prosecution in any manner in which the prosecution has to rely and, therefore, the overall appreciation of the evidence on record is to be looked into in the context of concerting and proving the case beyond reasonable doubt. The evidence which has been brought on record by the prosecution cannot be said to be so cogent, or so concrete on which it can be stated that the case has been proved against this accused beyond reasonable doubt and therefore, considering this overall material on record, and considering the fact that the valid reasons are assigned by the Court below, the Court is of the considered opinion that this is not a fit case in which any other conclusion is possible, which may allow the Court to substitute the ultimate conclusion arrived at by the learned trial Judge. Page 45 of 59 HC-NIC Page 45 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT 10.6. The Court has also considered at length the documentary evidence as well and on the basis of the same also, there is hardly any material which can connect the respondent accused with the commission of crime. Surprisingly, no witness from FSL is examine to justify the case by prosecution. As stated earlier, in addition to nonexamination of FSL officer, prohibited arms have not been certified as apprehended during the course of trial. Not only that even identity of the weapon is also very doubtful and the sealing has also not appeared to be in the manner in which it may inspire any confidence and therefore, there seems to be no clinching or legal evidence now impeachable in nature which would adopt even remotely that the prosecution has proved the case beyond reasonable doubt. From the overall reading of the evidence in the context of the reasons which are assigned by the learned trial Judge there appears to be no perversity or no irregularity of such nature which may be said to have resulted into miscarriage of justice and, therefore, in absence of such illegality and looking to the scope of appeal against the order of acquittal, well defined by Page 46 of 59 HC-NIC Page 46 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT now in a series of decision, this Court is of the opinion that no interference is called for. This Court has even independently examined the evidence as a whole and found that there is no other distinguishable feature by which any deviation is possible and, therefore, in such a situation, when the material is not much cogent in nature, the Court cannot give different thought to the conclusion arrived at by the learned trial Judge.
11. In the context of submissions made by learned APP Mr. Hardik Soni who cited two decisions of the Apex Court reported in the case of Nirmal Singh v. State of Haryana (supra) and in the case of Munish Mubar v. State of Haryana (supra), now if we examine these two decisions, first one is based on altogether on different fact situation and it is settled position of law that slight change in the fact would make a world of difference in applying the principles laid down in any decision and, therefore, if the facts are so examined in the present case, the Court cannot ignore such proposition which has been laid down by the Apex Court in the the case of Gian Chand & Ors., v. State of Page 47 of 59 HC-NIC Page 47 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT Haryana reported in (2013) 14 SCC 420, more particularly para
24. Since the Court has banked upon the said proposition, the Court deems it proper to place and reproduce the same observation of the Apex Court which deserves to be considered.
"24. So far as the judgment in Avtar Singh is concerned, it has been considered by this Court in Megh Singh v. State of Punjab. The Court held that the circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact based."
12. So far as the decision of the Apex Court in the case of Nirmal Singh v. State of Haryana reported in (2000) 4 SCC 41 is concerned, it is in the context of reading of Section 299(1) of the Code of Criminal Procedure and in that case, there was no grievance was raised about the non compliance with the requirement and conditions stipulated under Section 299 of the Code of Criminal Procedure and, therefore in that context the observations which were made are not possible to be applied here by straightjacket formula and, therefore, the said decision Page 48 of 59 HC-NIC Page 48 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT is of no avail to the learned APP to assail the order. Another decision which has been pressed into service of the Apex Court is in the case of Munish Mubar v. State of Haryana reported in (2012) 10 SCC 464 in which a reference is made with respect to further statement to be recorded of the accused under Section 313 of the Code of Criminal Procedure. It has been curled out by the Apex Court that it is obligatory on the part of the accused while being examined under Section 313 of the Code of Criminal Procedure to furnish some explanation with regard to the incriminating circumstance associated with him, rather it was the duty to explain, but at the same time it has also been propounded that circumstance should not be given any undue weightage for convicting the accused persons and therefore, these observations no doubt are made by the Apex Court in the context of the duty of the accused but at the same time, those observations mechanically are not possible to be believed herein and thereby concluded that it is not the duty of the prosecution to establish the case beyond reasonable doubt in any case. By citing this portion of the decision, the prosecution cannot Page 49 of 59 HC-NIC Page 49 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT absolve from its obligation to establish the case beyond reasonable doubt and, therefore, the circumstance and the head note in isolation cannot be read or allowed to be pressed into service for substantiating any contention. The overall circumstance which reflects in the earlier two decisions which are pressed into service by learned APP Mr. Hardik Soni are not permitting the Court to apply the straightjacket formula, particularly when the reasons are assigned by the learned trial Judge in detail and on the basis of detailed analysis, an order of acquittal is passed and, therefore, the decisions which are relied upon are not of any avail to learned APP Mr. Soni.
13. So far as the decisions which have been relied upon by learned senior advocate Mr. Panchal are related to some of the circumstance stated in the present case.
13.1. The first decision which has been relied upon is in the case of Sahib Singh v. State of Punjab reported in AIR 1997 SC 2417, wherein para 7 is relied upon. In the said case offence Page 50 of 59 HC-NIC Page 50 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT under the Terrorist and Disruptive Activities (Prevention) Act, (TADA) was to be tried and during the course of the trial, a contention with regard to seizure of revolver from the accused which was not packed and not sealed and therefore, no evidence with regard to circumstance as to with whom the revolver was after the seizure till it was sent to Arms Expert for testing and in the lacuna of such evidence, the Apex Court has extended the benefit of doubt. The relevant observation contained with regard to this issue are contained in para 7 which deserves to be reproduced herein after Hence, quoted: "7. Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to all upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility, We next find from the record that the arms and ammunitions allegedly recovered Page 51 of 59 HC-NIC Page 51 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT from the appellant and seized were not packeted and sealed. In Amarjit Singh v. State of Punjab, 1995 Supp. (3) SCC 217 this Court has observed that nonsealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. From the record, we further find that there is no evidence to indicate with whom the revolver was after its seizure by P.W. 3 till it was sent to the Arms Expert for testing through constable Baita Singh. This missing link also weakens the prosecution case. For all these infirmities, we are of the view, that the appellant is entitled to the benefit of reasonable doubt."
13.3. So far as another decision which has been relied upon is in the case of Mohinder Singh & Anr. v. State of Haryana reported in (1996) 11 SCC 369 wherein also by referring to para 6, it has been contended that the prosecution has not been able to prove the sanction when there was a case of unlawful possession of the revolver where sanction is required under Section 39 of the Arms Act and, therefore, by referring to this Mr. Panchal, learned senior advocate has substantiated his contention that there was no previous sanction for the prosecution and, therefore, conviction under the Arms Act is held to be illegal. Now under the Arms Act, there appears to be no controversy as there is no cogent material and therefore, rightly not been convicted. But this takes us to yet another Page 52 of 59 HC-NIC Page 52 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT decision which has been relied upon by learned Senior Advocate Mr. Panchal with respect to best evidence raised and after applying the said principle, it was noticed by the Court that if the prosecution only establishes that the victim was kidnapped in a Maruti Car who failed to establish that the accused were responsible for the death or kidnapping the person then the benefit must base on to accused. The Apex Court has also propounded that the findings of guilt cannot be based upon the result of investigation by the police which could be slightly on the basis of the evidence produced during the course of the trial and therefore, here is a case where the evidence on record is not indicating any cogent material which would permit the Court to held the accused guilty and convict him by reversing the order of acquittal.
13.4. Yet another decision which has been pressed into service which deserves consideration is in the case of Rajkumar Singh alias Raju alias Batya v. State of Rajasthan reported in (2013) 5 SCC 722 wherein it has been propounded that on the Page 53 of 59 HC-NIC Page 53 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT basis of well recognized principles that during the course of trial, if there is suspicion, no matter how strong such suspicion, cannot and must not be permitted to take place of proof. The prosecution need to prove the case beyond reasonable doubt. Para 21 of the said decision since relevant to the issue, the same is reproduced hereinafter as considered by this Court. In this very judgment, the other propositions are also reflecting but the very relevant para since para 21 is reproduced herein after : "21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that"may be proved and "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be " is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be "
true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be"
true and "must be" true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the Page 54 of 59 HC-NIC Page 54 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense ."
13.5. Mr. Panchal learned Senior Advocate has further relied upon the decision of this Court in the case of Mahendra Shamaldas Soni v. State of Gujarat reported in 1993 (2) GLH 793 wherein the Court has propounded the issue as to how appreciation of evidence is to be undertaken. It has propounded some of the guidelines on the basis on which appreciation of evidence has taken place.
14. In the aforesaid premises, when such weak piece of evidence is tried to be relied upon by the prosecution, to hold the respondent original accused no.6 as guilty of offence, there seem to be no justifiable reason, distinguishable in nature to permit this court to reverse the order of acquittal more particularly, in a State Appeal where the acquittals are not to be disturbed so lightly. The Apex Court in a number of decisions are holding that unless there is perversity amongst any nature is Page 55 of 59 HC-NIC Page 55 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT reflecting in those acquittals, the Court may take a different view, but not in a routine manner. Therefore, some of the observations of the Apex Court in the case of Vinod Kumar v. State of Haryana reported in (2015) 3 SCC 138, with regard to that issue of exercising jurisdiction while dealing with acquittal appeal deserves to be reproduced herein after :
"17. Before we dwell upon the factual score whether the prosecution has prove the case to warrant a conviction, we think it apt to recapitulate the principles relating to the jurisdiction of the High Court while deciding the appeal against acquittal. In this context, reproducing a passage from Jadunath Singh v. State of U.P.1would be profitable:
22. "This Court has consistently taken the view that in an appeal against acquittal the High Court has full power to review at large all the evidence and to reach the conclusion that upon that evidence the order of acquittal should be reversed. This power of the appellate court in an appeal against acquittal was formulated by the Judicial Committee of the Privy Council in Sheo Swarup v. King Emperor2 and Nur Mohammad v. Emperor3. These two decisions have been consistently referred to in the judgments of this Court as laying down the true scope of the power of an appellate court in hearing criminal appeals (see Surajpal Singh v. State4and Sanwat Singh v. State of Rajasthan5)."
Similar view has been expressed in Damodarprasad Chandrikaprasad v. State of Maharashtra6, Shivaji Sahabrao Bobade v. State of Maharashtra7, State of Page 56 of 59 HC-NIC Page 56 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT Karnataka v. K. Gopalakrishna8, Anil Kumar v. State of U.P.9, Girja Prasad v. State of M.P.10and S. Ganesan v. Rama Raghuraman11.
18. In this regard, we may fruitfully remind ourselves the principles culled out in Chandrappa v. State of Karnataka:
"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 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 Page 57 of 59 HC-NIC Page 57 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT 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."
15. In the premise aforesaid, and in view of the facts stated hereinabove, upon consideration of the entire material, even independently from the evidence, the Court found that the stand taken by the learned senior advocate for the accused and the contentions raised have sufficiently satisfied the court that the order of acquittal is not possible to be reversed. Resultantly, in the considered opinion of this Court, since the order in question is not suffering from any infirmity or perversity, the Court would not like to dislodge the findings arrived at by the Court below. Accordingly, the appeal filed by the state is dismissed.
R & P to be sent forthwith to the court concerned. Page 58 of 59 HC-NIC Page 58 of 59 Created On Sat Dec 16 00:03:41 IST 2017 R/CR.A/1326/2006 CAV JUDGMENT (S.R.BRAHMBHATT, J.) (A.J. SHASTRI, J.) /phalguni/ Page 59 of 59 HC-NIC Page 59 of 59 Created On Sat Dec 16 00:03:41 IST 2017