Gujarat High Court
State Of Gujarat vs Paresh Ranglal Chauhan & on 22 August, 2013
Bench: Ks Jhaveri, K.J.Thaker
STATE OF GUJARAT....Appellant(s)V/SPARESH RANGLAL CHAUHAN
R/CR.A/1030/1992
JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO.
1030 of 1992
FOR
APPROVAL AND SIGNATURE:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE K.J.THAKER
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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STATE OF
GUJARAT....Appellant(s)
Versus
PARESH RANGLAL CHAUHAN &
2....Opponent(s)/Respondent(s)
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Appearance:
MS.
C.M. SHAH, APP, for the Appellant
HCLS
COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MR
PH BUCH, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 3
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CORAM:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE K.J.THAKER
Date : 22/08/2013
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of the present appeal under Section 378 of the Code of Criminal Procedure, the appellant has challenged the jugement and order of acquittal dated 19.8.1992 passed by learned Sessions Judge, Vadodara, in Sessions Case No. 175 of 1991 and Sessions Case No. 32 of 1992 whereby the respondents-original accused were acquitted of the charges under Sections 302, 307, 120B of the Indian Penal Code and under Section 25(c) of the Arms Act as well as Section 135 of the Bombay Police Act.
2. The facts of the prosecution case, in brief, are that the accused entered into a criminal conspiracy to kill Ashok Bhogilal Patel. On 29.8.1991 Ashok Bhogilal Patel was to leave for Bombay by Delux Express Train and when he came along with Kumarswami to Baroda Railway Station between 8.00 a.m. and 8.30 a.m., accused No. 1 fired shots from the revolver which was in his possession at Ashok Bhogilal Patel and thereby injured vital organs of his body. Because of the injury sustained by Ashok Bhogilal Patel, he succumbed to the injuries. Kumarswami also suffered injury at the hands of accused No. 1. After committing the offence, the accused fled from the place. Accused No. 1 was chased and caught by the police. Thereafter, the other accused were arrested. Investigation was carried out. After completion of investigation, chargesheet was filed before learned Chief Judicial Magistrate. As the cases were triable by the Court of Sessions, they were committed to the Court of Sessions, Vadodara.
2.1 Charges were framed by the trial Court. The charges were explained to the accused. The accused pleaded not guilty to the charges and claimed to be tried. Hence prosecution produced evidence against the accused. Thereafter, statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. The trial Court after considering the evidence on record, acquitted the accused of the charges levelled against them.
3. Learned counsel for the appellant State has submitted that to prove the case against the accused, the prosecution has examined the following witnesses:
PW-1 PC Prabhakar Chandrakant Jagdane, B.No. 590 at Exh. 10 PW-2 Dr. Uday Ramchandra Purandare at Exh. 26 PW-3 PC Vakhatsinh Dipsinh Solanki, B.No. 445 at Exh. 28 PW-4 PC Sardarsing Gedalsing Maliwad, B.No. 1055 at Exh. 29 PW-5 Lady PC Sarojben Pubhabhai Rana, B.No. 1204 at Exh. 30 PW-6 Chandreshbhai Chimanlal Patel at Exh. 32 PW-7 Dadu Krishnaswami Muddaliya at Exh. 33 PW-8 Dr. Jyotikumar Dayashanker Vyas at Exh. 44 PW-9 SRP Commandant K. Kumaraswami K.P.K. Mudaliyar at Exh. 46 PW-10 Mojesh John D Soza at Exh. 47 of Welcome Hotel PW-11 Kishanji Magan Thaker at Exh. 49 PW-12 Fatesing Jebhai Brahmbhatt at Exh. 50 Panch PW-13 Binit Prahlad Gupta at Exh. 52 Panch PW-14 Jayshankar Mulshankar Pandya at Exh. 53 Panch PW-15 Shyam Doluram Mahal at Exh. 55 Panch PW-16 Chandrakant Govind Yadav at Exh. 56 Panch PW-17 Rajendra Hathilal Agrawala at Exh. 58 Panch PW-18 Ismail Allarakha Shaikh at Exh. 62 Panch PW-19 Mohanbhai Nathabhai Rathod at Exh. 64 Panch PW-20 Devishankar Bakebihari Mishra at Exh. 66 Panch PW-21 Narsinh Mafatlal Parmar at Exh. 68, Circle PI, W/Rly.
PW-22 Dr. Vaishakhiben Niranjanbhai at Exh. 74 PW-23 Natvarbhai Bhaijibhai Parmar at Exh. 76 Jr. Clerk, SSG Hosp.
PW-24 Dr. Bhagat Kapilrai at Exh. 77 PW-25 Mahendrabhai Mathurbhai Patel at Exh. 80 PW-26 PSI Somabhai Kalubhai Patel at Exh. 83 PW-27 Narsinh Mansinh Barad at Exh. 84 PW-28 Dr Vrajsundar Bharat Patra at Exh. 85 PW-29 Dr. Atulkumar Jafannath Saxena at Exh. 86 PW-30 P.I. Ishwardatta Suryaprasad Upadhyay, I.O., at Exh. 89 3.1 The prosecution has relied on the following documents:
1. Hospital Vardhis at Exhs. 11 to 14
2. Postmortem note at Exh. 17
3. Inquest Panchnama at Exh. 15
4. Medical Certificate of injuries to Kumar Swami at Exh. 45
5. Discovery Panchnama
6. Driving Licence at Exh. 24
7. Vehicle Registration Certificate at Exh. 25
8. Map of scene of offence at Exh. 81
9. Report of FSL at Exh. 79 and 80
10. Register of Hotel Vinay at Exh. 37
11. Opinion of handwriting expert at Exh. 42
12. Medical Case Papers at Exhs. 87 & 88 3.2 Learned counsel for the appellant submitted that the trial Court has committed error in not believing the evidence of the complainant and the injured eye witness, namely, PW-9 Kumarswami who was present on 29.8.1991 along with deceased and Chandreshbhai Patel. He has gone to see the wife of Chandreshbhai Patel. His children and children of Chandreshbhai Patel are studying together and he himself was injured and he was an eye witness to the incident. He narrated the incident. The trial Court, however, did not believe the evidence of the injured eye witness. Learned counsel for the appellant further submitted that the trial Court has committed error in discarding the evidence of the complainant who was also present at the place of offence since he was there to receive the Superintendent of Police. He has narrated the complete facts and he has caught hold of accused No. 1 on the spot. In that view of the matter, she submitted that the trial Court has committed error in acquitting the accused of the charges levelled against them. She further submitted that in view of the evidences of PW-21 to 30, the trial Court ought to have convicted the accused. In that view of the matter, the order of the trial Court is required to be set aside.
4. Learned counsel for the respondents Mr. Buch has supported the order of the trial Court and submitted that the trial Court after taking into account the evidence placed on record, acquitted the accused of the charges levelled against them. He has further submitted that there are no independent witnesses examined by the prosecution. All the witnesses are of police Department. Moreover, PW-12 to PW-20 have turned hostile. In that view of the matter, the impugned judgement and order of the trial Court is not required to be interfered with.
5. We have heard learned counsel for the parties. At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006) 6 S.C.C. 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below.
5.1.
Further, in the case of Chandrappa Vs. State of Karnataka reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:
[1]An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.[2]
The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.[3]
Various expressions, such as, substantial and compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclusions , glaring mistakes , etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.[4]
An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.[5]
If two reasonable conclusions are possible on thebasis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
5.2.
Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
5.3.
Even in the case of State of Goa V. Sanjay Thakran & Anr. reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under:
16.
From the aforesaid decisions, it is apparent that 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. A duty is cast upon the appellate Court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.
5.4.
Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
5.5.
In the case of Luna Ram Vs. Bhupat Singh and Ors, reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under:
10.
The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his anke was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.
11. Considering the parameters of appeal against the judgement of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence.
5.6.
Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SC 321, the Apex Court in para 4 has held as under:
4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573] 5.7.
It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgement or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981, SC 1417, wherein it is held as under:
...
This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.
5.8 In the recent decision, the Hon ble Apex Court in SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA reported in JT 2013(7) SC 66 has held as under:
That appellate Court is empowered to re-appreciate the entire evidence, though certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence.
5.9 Thus, in case the appellate court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence at length is not necessary.
6.
We have examined the matter carefully and gone through the evidence on record. We have appreciated, reappreciated and re-evaluated the evidence on the touchstone of latest decision of the Hon ble Apex Court. The trial Court has, while acquitting the accused of the charges, given its findings in paragraph Nos. 11, 18 and 22 of the judgement which are in verbatim reproduced hereinbelow:
para 11 at page No. 132 (internal page No. 23) - Then it has been brought out on record by defence advocate that here is CPI Shri Parmar who either does not want to tell the truth before the Court or he tried to speak incorrect things, so as to help the prosecution case, or to show that he tried his level best to do his duty. Now the question as to why he did not record the police statement of Kumarswami at the earliest, he came out with the story in his deposition that Kumarswami was unconscious, when he went at 9.45 a.m. at the SSG hospital. He states in para 22 at page 5 of his deposition that Kumarswami was housed in D-2 ward and he went to Kumarswami and Doctor told him that he is given anesthesia and he is unconscious and therefore he should come afterwards. Kumarswami was not able to give statement on 29.8.91 and he saw the condition of Kumarswami and decided that he would not be able to give statement on 29.8.91 and therefore, he has not recorded his statement on 29.8.91 and, therefore, he has not recorded his statement on the same day. He went to SSG hospital at 10.10 to 10.15 a.m. and he met Kumarswami and he was bed ridden and was unconscious and for carrying operation, he was given anesthesia as bullet was to be removed from his leg and therefore, he informed the police at the SSG hospital, that as soon as Kumarswami gains consciousness, he should be informed. He was in the SSG hospital at 5.40 p.m. on the same day and contacted Shri N.B. Parmar, Junior Clerk and he did not see Kumarswami and did not inquire whether he regained consciousness or not. He did not inquire about consciousness of Kumarswami till 12.00 night on 29.8.91. Now this fact has been falsified by medical records of the SSG Hospital and by the Doctors who are examined in the present case. Therefore, from this behaviour of CPI Shri Parmar, it clearly reveals that there is the police officer who tries to either hide truth from the Court or he tries to say something, which is incorrect and tries to impress upon the Court, whereby the Court can believe his story which is palpably incorrect and it is falsified on record by independent record maintained by SSG hospital. Why he did like that, either to conceal the truth from the Court or to hide his inefficiency or to hide the fact that the Investigating Agency was not at that point of time clear as to whether the presence of Kumarswami be shown at the place of incident or not and therefore, all the witnesses whose statements were recorded by CPI Shri Parmar, does not say a word about Kumarswami as to whether he was hit by bullet or not.18
at page No. 147 (internal page No. 38) Now then the second part of the prosecution story which is narrated by Sardarsing Gedalsing Maliwad PW 4 at Ex. 29 and PW 5 Lady Police Constable Sarojben Rana at Ex. 30. Now Sardarsing at Ex. 29 states that 29.8.91 he was working as police driver on Jeep No. GA 8345 and at 8.15 a.m. he was at the railway police station and 8.30 a.m. he cleaning the jeep and his jeep was in between open space of the police people and railway staff people are coming and going through the said way. At that time he heard the shouts from overbridge, of the people, to the effect that arrest, arrest and they were running towards police station and from Garnala side he heard such shouts. Because of these shouts, he went towards railway bridge to see as to what is there. At that time, one person passed by, with revolver and a pocket in his hand. At distance, lady P.C. Sarojben was also shouting and therefore, he was running dashed with Sarojben and therefore, his speed to run was reduced and he fell down, hereupon Sarojben caught hold of him and PI Parmar and police constable Vakhatsing and Dalpatsing came there and PI Parmar snatched away the revolver which was in the hand of accused No. 1. This is the short version which is given out by this witness in examination-in-chief. It has been brought in cross-examination that the police jeep is always there for 24 hours and normally he used to come at 8.00 a.m. Alkapuri garnala is at a distance of 250 feet from electric lighting office. He has admitted that certain persons were coming from railway overbridge by shouting arrest, arrest. They were 50 in number. They came opposite to police station. They were standing on the platform, platform is on the eastern side of the police station and on the western side there is a road. At a distance of 10 feet there is a electric lighting office. He heard noise from Garnala side also. Certain persons were crossing railway line. At a distance of 10 to 15 feet Sarojben was standing. Now this witness has improved upon his previous version. Before the police, he has not stated that accused No. 1 after dash with Sarojben fell down. Now the whole story does not appeal to the rational mind in the sense that if a person was passing by his side with a revolver in his hand, and pocket, and he has heard the shouts of arrest, arrest, then naturally he would have caught hold of him there and then. Therefore, his version that some person passed by him is not credible and believable. After all he is a police driver and he does not pass through the credibility test and his evidence does not inspire confidence because in the police case diary also his B.No. does not appear on 29.8.1991. If we assume for the sake of argument that as he was driver, he was not supposed to present himself before P.S.C. to mark his presence, that also his evidence does not inspire confidence becomes he does not caught hold of a person who was passing by him and at once he came out to see a to how Sarojben was shouting and after Sarojben caught hold him, he went neary that person and both of these waited as if real he man (sic) Mr. Parmar can come there and he can arrest the accused No. 1 and therefore, they waited for Mr. Parmar to come there, P.I. Parmar has given different version. Shri Parmar states that there was scuffle between accused No. 1 and Sarojben and at that time PI Parmar come there running and overpowered him. He comes out with an explanation that accused No. 1 was trying to run away from there from the hands of Sarojben and therefore, Shri Parmar had to use force. Therefore, from this version, it appears that accused No. 1 must be running and he must have dashed with Sarojben and in that, he fell down and people saying, arrest, arrest, he was arrested and thereafter everything happened as far as revolver and hand wash and seizure panchnama which was prepared was put up before the Court as if Shri Parmar caught hold of accused No. 1 who was running away. As Parmar s story does not get support from independent panch witnesses who are examined in this case. Fatesing Jebhai Brahmbhatt PW 12 at ex 50 deposed that on 29.8.91 he was called as a panch and Bipin Prahlad was another panch. There was no other person who was under arrest of police. No panchnama regarding the person of any person was prepared before them. Nobody asked the name of any person. He does not remember as to any weapon was taken possession from any person in their presence. They only know that they have signed only on the prepared panchnama. This witness has been declared hostile, and in cross-examination, it has been brought out before police, his story was that before him there was one arrested person and on asking his name, he has stated that his name was Paresh Badlal Chauhan and article No. 1 revolver was attached from the person of that person accused No. 1. Out of the chamber of the said revolver, six cartridges were found. This is also not known to him. He had not seen any coin of money in the pocket. It is not true that before them Muddamal revolver article No. 1 was snatched from the hand of the accused No. 1. Now the version of Sarojben and Sardarsing is that Sarojben had caught hold of the accused No. 1 and Sardarsing came there and he caught hold of accused No. 1 and that person was trying to run away and PI Shri Parmar came there with two police constables and PI Shri Parmar overpowered him and snatched away the revolver from the hand of accused No. 1. This is the story and then how there could be panch witnesses, who can say that from the hand of accused No. 1, the revolver was taken possession off. How there can be such panchnama what was wrong, if a revolver was taken possession of and why that revolver was again put into the hand of accused No. 1, and as to prepare the panchnama and panchas do not support them, panch Patesinh at ex 53 and Bipin Prahlad at ex 52, they do not support No. 1, so as to prepare the panchnama and panchas do not support them, panch Patesinh at ex 53 and Bipin Prahlad at ex 52, they do not support the plot ceversion that from the hand of accused No. 1 revolver was taken possession of and pocket was also taken possession of and various things were found from the said pocket. It is also interesting to narrate as to what was found from the pocket of the accused No. 1, for which the panchnama is produced in the present case at ex 51. Actually this panchnama is not proved before the Court of law, panchas have not supported the prosecution and therefore, the said panchnama cannot be referred to. But in order to judge the prosecution story that there was criminal conspiracy to do away with Ashok Bhogilal Patel, as they had a quarter about money dealings, except bare word of P.I. Parmar and his complaint Mark A, there is not a iota of evidence to support the said say. There is substantial train of truth when defence counsel submits that, look at the panchnama ex 51 and see as to what is there in the rasine beg which is alleged to have been arried by accused No. 1 on the day on which he was to kill Ashok Bhogilal. It was a black colout rasine small bag. There is one hand and it contained railway reservation form. By relying upon this railway reservation form it was submitted by the defence advocate that there is a person going to the railway station for reservation of his ticket and as he dashed with Sarojben and thereafter this incident has concocted by putting revolver in his hand. This is the submission of learned advocate for the defence. It was also suggested to certain witness but has retained as suggestion level. The accused No. 1 has stated in his statement under Sec. 313 that he was going for the purpose of making reservation. If they had entered into the criminal conspiracy, the accused would not carry such reservation form with him. He did carry his licence with identity photo. He did carry 15.7.90 and 17.7.90 in which his photo were appearing in connection with robbery case. Had he entered into a criminal conspiracy to kill Ashok Bhogilal Patel, for that purpose, he did not carry these things, so that his identity could be discleased. Rational mind would say that he would not in ordinary circumstances, carrying these things. No doubt this panchnama is not proved before this Court and therefore, it does not go a long way in judging the prosecution case, On the similar line Sarojben s evidence PW 5 ex 13 is there, Now she herself has admitted that had office guard been there in the police station, he would not have been there in the police station he would not have been there. She would have been on the platform no. 2 and 3 where she was posted for duty. She herself admitted so in her evidence. When she reached the lpolice station, at that time Karsanbhai was alone in the police station and office guard was not there. Had there would have been office guard, she would have been on platform No. 2 and 3 on the day of incident. So to show her presence at the railway police station she has come out with the story that office guard was not present and therefore, she had to remain in the office and therefore, her presence at the particular place was accidental presence. No doubt for time for making her presence she may have come to police station. But in judging the evidence of police constable, one has to remain very careful. After all she is supposed to be on platform no. 2 and 3 on duty. Only the statement of police persons were recorded by Shri Parmar and therefore, when a bias investigation is there, one has to be on guard in judging the version of Sarojben. The say of Sarojben is that when she was passing by the office of electric lighting office for going to platform nos. 2 and 3, she did heard the noise of people saying arrest, arrest and at that time accused No. 1 dashed with her and he fell down and she caught hold of him. Immediately P.O. Sardarsing had come there. She and Sardarsing caught hold of accused No. 1 and thereupon Parmarsaheb snatched away the revolver from the hand of the accused No. 1. If the accused was holding revolver and if Parmarsaheb was there with all the police constables and when accused No. 1 was not firing at them, though he was caught hold by Sarojben and Sardarsing, why PI Shri Parmar did not prepare arrest panchnama immediately. When he snatched away the revolver and rasing bagat. The story of Sarojben and Sardarsing is like that as if they were waiting for Shri Parmarsaheb to come. Why Sarojben and Sardarsing has not snatched away the revolver from the accused No. 1. Had they been afraid of accused No. 1 they would not have caught hold of him. Once the accused No. 1 was caught hold by Sarojben and Sardarsing, it was very easy for them to snatch away the revolver from him, why they waited for Shri Parmar as if only Shri Parmar knows how to overpower accused No. 1 and was they so interucted to as say so. This witness has also fallen in the line of any other witness, when she says, after dashing with her accused no. 1 fell down. Actually she has not stated no that accused no. 1 had fallknow, in her police statement. All the witnesses have fallen in the line to say so. Therefore, the Court is on guard in putting implicit reliance upon the evidence of police witnesses, when other witnesses are available and when actually nearly 50 persons were there near the platform when the accused no. 1 is arrested. Why their statements were not recorded. Why no independent person put forward to corroborate their say and is not put forward by the police. Why only police constables are examined to give truthful version of the incident and that has put the Court on caution. Sarojben being lady constable and Sardarsing being police driver, they being subordinates. She says that she does not know accused no. 1 had come for railway reservation and she also admits that when panchnamas was prepared, PI Shri Parmar was having revolver with him. Therefore, when the panchwitnesses do not support, suspicion is more, it is not the fault of panchas, it is the fault of Investigation Officer who wants the Court to believe that revolver was with the accused No. 1 when the panchnama was prepared. When the version given out by the other witness that the revolver was snatched away from accused No. 1 and at the time of panchnama, the same was put in the hand of accused No. 1. Therefore, from the facts, two things could be inferred, firstly, that there is an investigating officer who always tried to shut out independent witness and the independent witness, panchas have not supported the police say before the Court and they go to this length that they have not seen anything except signing the panchnama and when police witnesses improves upon their story, it is hazardous to place reliance on such witnesses. Therefore, her evidence does not inspire confidence to the mind of the Court and hence not believed.
Para 22 at page No. 166 (internal page No. 57) It is highly regretted that a crime of murder occurring at a public place in a day light, goes unpunished. But the Court of law has to be objective and less emotional, while judging the evidence and in this case, the Court has tried to be as objective as possible and has examined each and every piece of evidence objectively. But from the beginning, the Investigating Officer has tried to avoid independent witnesses, though available at the site and therefore, when their evidence is examined, their evidence is not believable for the reasons recorded in this judgement and therefore, the Court has no other go but to acquit the present accused. If the Investigation is bias and if the evidence led by the prosecution is not upto the Court, and available evidence is kept back, particularly of so called eye witness Shrivastava and the person who took hand wash, Shri H.K. Patel and the police constable who was standing on the traffic point, whose evidence is not brought on record and no reason is given by the prosecution, the Court has no other go but to acquit the present accused. No doubt, a man on the street would be shocked to hear the order of acquittal, but when the evidence produced before the Court is of type which is not upto the mark and the evidence does not prove the guilt against the accused beyond reasonable doubt within the system of present law, the Court has no other go but to acquit the accused.
7. Keeping in mind the discussions of the trial Court in the aforesaid paragraphs, the presence of the complainant or authority of the complainant to investigate the case is doubtful. Even the ballistic report is also no helpful to the prosecution. In that view of the matter, we are of the opinion that it would be difficult for us to take a different view than the view taken by the trial Court. We find that the view taken by the trial Court to acquit the accused is just and proper and no interference is called for with the same.
8. Further, learned APP is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In above view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgement and order.
9. We are, therefore, of the considered opinion that the findings recorded by the trial Court in acquitting the accused of the charge levelled against them are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are in complete agreement with the reasonings given and the findings arrived at by the trial Court. No interference is warranted with the judgement and order of the trial Court. Hence, the appeal is dismissed. Bail bonds stand cancelled.
(K.S.JHAVERI, J.) (K.J.THAKER, J) (pkn) Page 23 of 23