Gujarat High Court
The State Of Gujarat vs Babubhai Goyabhai Parmar & ... on 27 July, 2017
Author: Anant S.Dave
Bench: Anant S. Dave, R.P.Dholaria
R/CR.A/1324/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1324 of 2006
With
CRIMINAL REVISION APPLICATION NO. 328 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
==========================================================
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
BABUBHAI GOYABHAI PARMAR & 5....Opponent(s)/Respondent(s)
==========================================================
Appearance:
CRIMINAL APPEAL NO.1324 OF 2006 :
MR KP RAVAL, APP for the Appellant(s)
MR DHARMESH NANAVATY, ADVOCATE FOR MR NITIN M AMIN,
ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 4
None present for Respondent Nos.5 - 6
Page 1 of 23
HC-NIC Page 1 of 23 Created On Fri Jul 28 00:59:57 IST 2017
R/CR.A/1324/2006 CAV JUDGMENT
CRIMINAL REVISION APPLICATION NO.328 OF 2006 :
MR HB SHETHNA, ADVOCATE for the Applicant
MR KP RAVAL, APP for Respondent No.1
MR DHARMESH NANAVATI, ADVOCATE for Respondent Nos.2 - 5
None present for Respondent Nos.6 - 7
==========================================================
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 27/07/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA)
1. The appellant State of Gujarat has preferred Criminal Appeal No.1324 of 2006 under section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 18.3.2006 rendered by learned Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad in Sessions Case No.8 of 1999, whereas Criminal Revision Application No.328 of 2006 is preferred by the complainant.
2. The short facts giving rise to the present appeal are that the accused formed unlawful assembly on 8.9.1996 during nocturnal hours at about 10.30 and in furtherance thereof, accused Nos.2, 3 and 4 inflicted blows by knife to the deceased and accused No.1 caught hold the deceased and that accused No.6 inflicted blow by Page 2 of 23 HC-NIC Page 2 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT knife over the person of the deceased who sustained serious injuries and he succumbed to the injuries and thereby the accused committed the offence under sections 143, 147, 148, 302 of Indian Penal Code as well as accused No.5 concealed the weapon and thereby committed the offence under section 201 of IPC.
3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the respondents accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.
3.1 In order to bring home the guilt, the prosecution has examined several witnesses and also produced documentary evidences.
3.2 At the end of trial, after recording the statements of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.
4. Being aggrieved by the same, the appellant State has preferred the Criminal Appeal and the complainant has preferred the Criminal Revision Application, as stated above, before this Court.
Page 3 of 23HC-NIC Page 3 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT
5. By way of preferring the appeal as well as revision application, it is mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed, as such.
5.1 Mr.K.P.Raval, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper-book and evidence on record and argued that the finding recorded by learned trial Court is based upon the presumptions and surmises. He further submitted that learned trial Court has not rightly appreciated the evidence on record. He submitted that though ample evidences were available on record, learned trial Judge, due to confusion crept in in the papers of investigation, did not believe the evidence of the eye witnesses and wrongly acquitted the accused as such though the prosecution has successfully proved as to how accused Nos.2 to 4 as well as accused No.6 inflicted the blow by using deadly weapons upon the vital part of the body of the deceased and thereby the deceased Page 4 of 23 HC-NIC Page 4 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT succumbed to the injuries. He submitted that the prosecution has also proved that blood on the cloths of one of the accused is also tallying with the blood group of the deceased, but that aspect has been ignored. In his submission, learned trial Court has failed to appreciate the evidence on record and wrongly recorded the judgment of acquittal which is required to be reversed and the respondents are required to be convicted, as such.
6. Mr.H.B.Shethna, learned advocate for the revisionist has strenuously urged that the investigating agency has not at all carried out fair and impartial investigation and wrongfully implicated accused Nos.6 to 8 and out of them, two accused were discharged pretrial. He submitted that in order to create confusion in the mind of the learned Presiding Officer, it is the case of the prosecution that accused No.6, in the alternative, inflicted blow over the person of the accused, due to which, the deceased succumbed to the injuries and therefore, learned trial Judge did not believe the evidence of eye witnesses who had given clear account as to how accused No.1 caught hold and accused Nos.2 to 4 inflicted blows by their respective knife successively upon the person of the deceased and the said fact has also not been taken into consideration in its proper perspective. He submitted that due to confusion created in the Page 5 of 23 HC-NIC Page 5 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT investigation, learned trial Judge has extended the benefit of doubt which is not based upon the sound principles of appreciation of evidence as laid down in the series of the decisions of the Apex Court. He further submitted that evidence of eye witnesses PW 1 and 2 as well as complaint could have been relied upon for convicting accused Nos.1 to 4 and according to his submission, second set of evidence involving accused No.6 was required to be discarded as the same was not at all revealing from the complaint as well as in the evidence of eye witnesses, but the learned trial Judge has relied upon other evidence wrongfully and wrongfully extended the benefit of doubt which has resulted into miscarriage of justice. In support of his submissions, Mr.Shethna has placed reliance upon the following decisions.
(i) Arumugam Vs State represented by Inspector of Police, (2012) 12 SCC 434.
(ii) Kuriya and another Vs State of Rajasthan, (2012) 10 SCC 433.
(iii) Bhaikon alias Bakul Borah Vs State of Assam, (2013) 9 SCC 769.
(iv) Bakhshish Singh Vs State of Punjab and another, (2013) 12 SCC 187.Page 6 of 23
HC-NIC Page 6 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT
(v) Umesh Singh Vs State of Bihar, (2013) 4 SCC 360.
(vi) Raju alias Balachandran and others Vs State of Tamil Nadu, (2012) 12 SCC 701.
(vii) Patel Maheshbhai Ranchodbhai and others Vs State of Gujarat, (2014) 14 SCC 657.
7. On the other-hand, Mr.Dharmesh Nanavati, learned advocate for Mr.Nitin Amin, learned advocate for accused Nos.1 to 4 has taken this Court through the entire R & P and supported the judgment of acquittal recorded by learned trial Judge. He submitted that learned trial Judge, while appreciating the evidence on record, has recorded the finding based upon the evidence available on record and has rightly not believed the evidence of the eye witnesses as the prosecution itself has placed alternative story involving accused No.6 alone who had inflicted injuries upon the deceased by using deadly weapon i.e. muddamal article No.20 and while doing so, other two lady accused caught hold the deceased. He submitted that since the case of the prosecution is divided in two theories / stories wherein as per the prosecution version, accused No.1 caught hold and accused Nos.2 to 4 inflicted injuries over the person of the deceased and in Page 7 of 23 HC-NIC Page 7 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT the alternative story, accused No.6 inflicted knife blow over the person of the deceased and that accused No.5 caught hold and therefore great confusion had been created in by the prosecution itself as to whether the deceased was done to death by accused Nos.1 to 4 or by the accused No.6 and therefore, learned trial Judge has rightly given the benefit of doubt. According to his submission, there cannot be alternative theory in such sort of case wherein the Presiding Officer has to decide either convicting one set of the accused or another set of the accused. He, therefore, submitted that impugned judgment and order of acquittal recorded by learned trial Judge is in accordance with sound appreciation of the evidence on record and hence, this Court should not interfere with the same. He further submitted that learned trial Judge has recorded ample reasons and recorded the finding based upon the evidence on record and that there appears no perversity or no manifest error has been pointed out by the prosecution so that this Court may interfere with the judgment of acquittal.
8. This Court has heard Mr.K.P.Raval, learned APP for the appellant State and Mr.H.B.Shethna, learned advocate for the original complainant and Mr.Dharmesh Nanavati, learned advocate for accused Nos.1 to 4.
9. This Court has minutely gone through the Page 8 of 23 HC-NIC Page 8 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT impugned judgment and order rendered by learned trial Court as well as the evidence on record in the nature of paper book.
10. PW 1 - Baldevbhai Dahyabhai has been examined at Exh.70. The witness has deposed that he has four brothers and three sisters and his brother Vinod is serving in the police department and he was posted at Sanand at the relevant time. The witness has deposed that on 9.8.1996, the incident occurred in between 10.30 and 10.45 hours in the night in Parmarvas nearby the house of Govabhai Savabhai. The witness has deposed that as sweet preparation was going on, all the persons were gathered at the house of Naranbhai on the day of incident as on the following day, post death ceremony of his aunt was to be performed. The witness has deposed that he as well as his father and Jasubhai Revabhai Makwana were present and at that time, his father went to his home to bring strainer for preparation of sweet and he took some more time in coming back and therefore, he as well as Jasubhai Revabhai Makwana went to his house, at that time, one Manilal Parshottambhai Parmar who was coming from Parmarvas has told his father that Jasu is being beaten in Parmarvas and also told to go immediately and rescue him. The witness has deposed that therefore, he, his father and Jasubhai Revabhai rushed towards Parmarvas where in front of the house of Goyabhai Savabhai, he Page 9 of 23 HC-NIC Page 9 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT found presence of Natubhai Goyabhai, Khanabhai Goyabhai, Dinesh Lavjibhai and Babubhai Goyabhai. The witness has deposed that out of these four persons, Natubhai Goyabhai, Dinesh Lavjibhai and Khanabhai Goyabhai were inflicting blows with muddamal article Nos.17, 18 and 19, whereas Babubhai Goyabhai had caught hold his brother Jasu and he was instigating them. The witness has deposed that at that time, several persons were also gathered and therefore all the four assailants ran away from the place of incident and that his brother was profusely bleeding and it was raining. The witness has deposed that thereafter they shifted the injured to his house and then taken to the hospital. The witness has also identified the accused as well as muddamal articles before learned trial Court but he refused to identify muddamal article No.20. In the cross examination, the witness has admitted that 25 to 30 persons were gathered in the house of Naranbhai but the witness has not stated as to what has happened to strainer. The witness has admitted that there were two localities in Harijanvas, one is known as "Parmarvas" and other is "Makwanavas" and that the house of Khanabhai is situated in Parmarvas. The witness has admitted that in front of house of Merubhai Mafatbhai Parmar (A-6), street is situated where street light was there but it was not working since 1990 as the Gram Panchayat failed to pay electricity bill. The witness has admitted that Page 10 of 23 HC-NIC Page 10 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT clothes of Jasubhai were stained with blood but the same were not recovered by the police. The witness has denied the suggestion put to him that deceased Jasu was having relation with Babi - sister of accused No.6 and he was found in indecent position in the house of accused No.6 and noticing the same, accused No.6 inflicted injuries over the person of the deceased and in doing so, accused No.5 and Babi caught hold the deceased. The witness has admitted that they have drawn water pipeline for his agricultural purpose for about last 25 years, due to which, there was dispute, but they have not raised any dispute before any authority. The witness has also admitted in the cross examination carried out on behalf of accused No.6 that before the police, he stated that in order to empty rainy season water, they have drawn pipeline from the land of accused Khanabhai Goyabhai and therefore they were objecting the same and they threatened to kill, due to which, accused Nos.1 to 4 had done to death his brother Jasu by knife.
11. PW 2 - Jasubhai Revabhai Makwana has been examined at Exh.72. The witness who was eye witness has also almost deposed in parallel line in which PW 1 has deposed. The witness has deposed that when he was at the house of Naranbhai, at that time, discharged accused Manilal Parshottambhai came and told that Jasu is being beaten and therefore, Dahyabhai, Baldevbhai Page 11 of 23 HC-NIC Page 11 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT and he ran towards the place of incident. The witness has deposed that at that time, accused Nos.1 to 4 were present and accused No.1 caught hold the deceased from his neck and accused Nos.2 to 4 have assaulted by their respective muddamal article Nos.17 to 19 and thereafter they shouted for help and therefore other persons gathered there and they taken the injured to his house. The witness has deposed that at that time, it was raining and the injured succumbed to the injuries around at 11.00 O'clock. The witness has deposed that he did not know as to why the incident had happened, but he identified muddamal article Nos.17 to 19 as well as the accused, but refused to identify muddamal article No.20. In the cross examination, the witness has admitted that his statement was recorded around at 2.30 am, but prior to that, statements of Baldevbhai and Dayabhai were already recorded. In the cross examination, certain contradictions have been brought on record. The witness has admitted that Vinod and Baldev are elders to the deceased. The witness denied the suggestion that at the behest of Vinod, accused Nos.1 to 4 were wrongfully implicated though the incident occurred between the deceased and accused No.6 - Merubhai as the deceased was having illicit relation with the sister of accused No.6 and the deceased was caught red handed at the house of accused No.6.
12. PW 3 - Manilal Premdas Shrimali, panch Page 12 of 23 HC-NIC Page 12 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT witness, has been examined at Exh.73. The witness has deposed that on 11.9.1996, he was called as panch. Accused Khanabhai discovered muddamal article Nos.17, 18 and 19. In the cross examination, the witness has admitted that there was no blood stain over the muddamal article Nos.17, 18 and 19.
13. PW 4 - Manubhai Becharbhai, panch witness, has been examined at Exh.82. The witness has deposed that accused No.6 - Merubhai and other persons were present and he merely signed the panchnama. The accused has deposed that accused Pushpa was present and the panchnama was carried out. Ultimately, the witness was declared hostile.
14. PW 5 - Maganbhai Keshavbhai Parmar has been examined at Exh.85 in order to prove discovery of muddamal article No.20 as well as clothes which came to be recovered at the behest of accused Usha, but he did not support the case of the prosecution.
15. PW 6 - Kanubhai Shivabhai Makwana has been examined at Exh.90. The witness has deposed that panchnama came to be drawn for the scene of offence. The witness has supported the case of the prosecution. The witness has shown the place upon the road in front of the house of accused No.6 which is the place which was shown by the Page 13 of 23 HC-NIC Page 13 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT complainant. The witness has deposed that from the scene of occurrence, controlled clay was also recovered. In the cross examination, the witness has admitted that blood was found from about 5 feet away from the house of Narsinh Bechar which is adjacent to the house of Mafatbhai Rudabhai (A-6).
16. PW 7 - Naranbhai Motibhai has been examined at Exh.95. The witness has deposed that when he was present at the house of Daniben, at that time, Dahyabhai Bhanabhai, Savabhai Bhanabhai, Ganeshbhai Bhanabhai and others were present and Dahyabhai Bhanabhai went for bringing strainer and thereafter he heard shouting and hence reached to the house of Dahyabhai Bhanabhai where the victim was found injured.
17. PW 8 - Dr.Chhatrasinh Vajesinh Barad has been examined at Exh.109. The witness has deposed that he was serving as Medical Officer in the Community Health Center, Dhola and that he carried out autopsy over the body of Jasubhai Dahyabhai. The witness has deposed that he found about 8 injuries over the person of the deceased and all the injuries were antemortem, injuries were sufficient to cause death and he opined that injuries found over the dead body could be possible through muddamal article Nos.17 to 20 and cause of death is due to shock caused by injuries to heart and liver as a result by sharp Page 14 of 23 HC-NIC Page 14 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT pointed cutting instrument.
18. PW 9 - Rameshbhai Mafatbhai Parmar has been examined at Exh.110. The witness has deposed that Babiben @ Laxmiben is his wife and she has been discharged from the offence and her maternal house is at Pisavada. The witness has deposed that accused No.6 - Merubhai Mafatbhai is his brother-in-law and that on 9.9.1996 at early morning, his wife came to his house along with his brother-in-law Merubhai and his wife Usha, but they did not tell anything regarding the incident. The witness has been declared hostile. However, as per the prosecution case, the said accused and his wife Babiben @ Laxmiben confessed the guilt before this witness, inter alia, stating that when his brother Meru was on job, at that time, deceased Jasubhai and Manilal were in the house, but Manilal successfully escaped from the house, but deceased Jasubhai was caught hold by her husband Meru and she as well as Ushaben tried to save the deceased, but Merubhai inflicted knife blows over the body of Jasubhai and hence he sustained injuries and upon shouting, neighbouring persons i.e. accused Nos.1 to 4 arrived there and at the time of incident, his patty coat as well as jacket of his brother were also stained with blood which she concealed in the agricultural field.
19. PW 10 - Jayantilal Manilal Suthar, who Page 15 of 23 HC-NIC Page 15 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT was Investigating Officer, has been examined at Exh.121. The witness has deposed that on the day of incident, he was serving as Police Inspector, Dholka and as the PSO informed him that incident had happened in Harijanvas, he reached at the place of incident around at 2.00 O'clock, he recorded the complaint, statements, drawn panchnama, recovered muddamal weapons, collected other evidence and arrested the accused. The witness has identified the muddamal as well as the accused before the learned trial Court and also proved contradictions in the deposition of PW 9. In the cross examination, the witness has admitted that accused Nos.6 to 8 were not traceable and on 9.9.1996, he recorded the statements of witness Baldevbhai and Jasubhai after the post death ceremony of the deceased. The witness has admitted that as per the chargesheet, the incident occurred due to illicit relation of deceased Jasubhai with Babiben wife of Merubhai Mafatbhai - accused No.6 as he was found in the house of Merubhai Mafatbhai in his absence and he was caught red handed by accused No.6 and accused No.6 inflicted knife blows over the person of the deceased.
20. We have given our thoughtful consideration to the rival submissions made by learned counsel for the parties in light of the chargesheet filed by the Investigating Officer after conclusion of the investigation and in Page 16 of 23 HC-NIC Page 16 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT pursuance thereof, charge was framed against the accused persons.
21. On examination of the Record and Proceedings, two different conflicting theories are emerging out. The first theory of the prosecution case is that deceased Jasubhai alleged to have been caught hold by accused No.1 and accused Nos.2 to 4 have inflicted successive blows over the person of the deceased and the deceased was done to death by using muddamal article Nos.17 to 19 wherein indisputably, as per the prosecution case, no involvement of other accused is revealing from the evidence on record. The second theory of the prosecution case is that as the deceased had illicit relation with discharged accused Babiben, due to which, on the fateful night, he as well as discharged accused Manilal were found present in the house of accused Merubhai Mafatbhai in his absence and on his arrival and noticing them, accused Manilal successfully fled away from the place of incident and deceased Jasubhai came to be caught by accused No.6 and accused No.6 gave successive blows by knife over the person of the deceased and his wife and sister caught hold the deceased, due to which, the deceased received fatal injuries and succumbed to the injuries. Under the circumstances, two contradictory theories of commission of crime in question are placed before us. If the first theory, as stated above, is Page 17 of 23 HC-NIC Page 17 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT believed to be true, then the accused involved resorting to second theory are getting absolved from all the offences alleged against them. Similarly, if the second theory is to be believed, then the accused who are charged for the offence in the first theory are getting absolved from the offence alleged against them.
22. Indisputably, though the complainant was eye witness, he could not be examined as he expired before the trial took place. However, PW 1 and PW 2 are the eye witnesses to the incident and they are not involving the accused who are charged with the second theory of the prosecution and they have deposed against accused Nos.1 to 4 only. The eye witnesses are denying the second theory in toto in their depositions. Similarly, as per the prosecution case, star witness PW 9 before whom discharged accused Babiben has made extra judicial confession, inter alia, stating that on the day of incident deceased Jasubhai as well as Manilal Parshottam came to meet her as well as her sister-in-law Usha in absence of his brother Merubhai and his brother suddenly arrived at home, due to which, Manilal Parshottam escaped and Jasubhai came to be caught hold by his brother and his brother inflicted injuries over the person of Jasubhai and hence Jasubhai succumbed to the injuries and that accused Nos.1 to 4 came to rescue Jasubhai. However, the witness has turned hostile so far as extra Page 18 of 23 HC-NIC Page 18 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT judicial confession came to be made by his wife before him and the same came to be proved by the prosecution in the deposition of Investigating Officer - PW 10.
23. Learned APP as well as Mr.Shethna, learned advocate for the complainant have vehemently argued for believing the first theory put up by the prosecution and urged to convert the judgment of acquittal into conviction so far as accused Nos.1 to 4 are concerned. On that point, we have gone through the finding recorded based upon the evidence available on record by learned trial Judge and it can be seen that due to the aforesaid two different stories, learned trial Judge has rightly not believed the evidence of PW 1 and PW 2 who are eye witnesses for convicting accused Nos.1 to 4. Under the circumstances, we are of the considered view that when the investigating agency itself is not clear as regards as to who is the real culprit who had done to death deceased Jasubhai and put up two different theories involving two sets of accused which are in the nature as to mutually excluding and absolving the accused respectively if one theory is accepted to the other theory. Not only that, even as argued by learned APP and Mr.Shethna, learned advocate for the complainant if we may adopt and rely upon the first theory, in that case also, in our considered view, the evidence of PW 1 and PW 2 is not satisfactory as Page 19 of 23 HC-NIC Page 19 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT the scene of occurrence described by them is not tallying with the panchnama came to be drawn on the day of incident by the Investigating Officer. The panchnama as well as map produced by the prosecution at Exhs.91 and 188 clearly disclose the place of incident in front of the house of Merubhai Mafatbhai who is the accused of the second prosecution theory and not in the house of Khanabhai Goyabhai as deposed by them. So far as the motive of the crime put up by the prosecution is concerned, the same is also different in both the theories. In the first theory, accused Nos.1 to 4 assaulted deceased Jasubhai due to animosity arising out of drawing monsoon water through their field by the deceased, whereas in the second theory, motive disclosed by the prosecution is that the deceased had illicit intimacy with Babiben who is sister of accused Merubhai Mafatbhai and he caught red handed in the house of accused Merubhai Mafatbhai where the deceased came to be assaulted and done to death.
24. So, in view of aforesaid undisputed fact emerging out from the prosecution itself, there appears no uniformity in the motive as regards to the crime in question, place of incident as well as involving the accused and therefore, while appreciating the evidence on record, learned trial Court has recorded ample reasons and given thoughtful consideration and ultimately acquitted the accused which calls for no interference and Page 20 of 23 HC-NIC Page 20 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT the view taken by learned trial Judge is plausible view. Therefore, in view of the settled principles of law, while exercising the appellate powers, plausible view taken by learned trial Judge on proper appreciation of the evidence on record cannot be set aside except it is found to be perverse and totally erroneous on the face of it.
25. So far as argument advanced by Mr.Shethna, learned advocate for the complainant that the Investigating Officer by putting up two different theories put the complainant side at the grave prejudice which has resulted into serious miscarriage of justice and therefore, this Court while exercising the wide powers and in view of the guidelines laid down by the Apex Court in the above referred decisions should take up the case for reinvestigation for doing substantial justice. On that count also, we have given our thoughtful consideration, but the fact remains that the incident in question took place on 8.9.1996 and we are hearing the appeal in the year 2017 and almost about 21 years have already passed. In this view of the matter, we are of the considered opinion that after a gap of around 21 years from the date of incident in question, there appears no possibility to collect any physical evidence to link the accused with the crime in question. However, we are left with no option but to criticize the course adopted by the concerned Investigating Officer by way of putting Page 21 of 23 HC-NIC Page 21 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT up two different alternative theories of the commission of the crime and leaving upon the Court to decide and accept either of the theory which course is not at all permissible for the Investigating Officer. The Investigating Officer has to be fair and to book the real culprit with the cogent and clinching evidence. Under the circumstances, we also deem it necessary to forward the copy of this judgment to the Director General of Police, Gujarat State, Gandhinagar for taking necessary action and to see that henceforth, no final report of any crime detection should be filed demonstrating two different alternative theories.
26. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper.
27. That decisions relied on by Mr.Shethna, learned counsel for the complainant to which reference is made in paragraph 6 of this judgment and law laid therein, we are in agreement with, but considering two theories of the case of the prosecution in absence of motive, have no application to the facts of the present case.
28. In above view of the matter, this Court is of the considered opinion that learned trial Page 22 of 23 HC-NIC Page 22 of 23 Created On Fri Jul 28 00:59:57 IST 2017 R/CR.A/1324/2006 CAV JUDGMENT court was completely justified in acquitting the respondents accused of the charges leveled against them. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same.
29. In the result, Criminal Appeal as well as Criminal Revision Application fail and accordingly, the same are dismissed. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith.
(ANANT S.DAVE, J.) (R.P.DHOLARIA,J.) pathan Page 23 of 23 HC-NIC Page 23 of 23 Created On Fri Jul 28 00:59:57 IST 2017