Champakbhai Bhadrasinh Chaudhary vs State Of Gujarat & ... on 1 July, 2014

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Gujarat High Court

Champakbhai Bhadrasinh Chaudhary vs State Of Gujarat & ... on 1 July, 2014

1. Both these appeals arise out of a common judgement and award dated 15.01.2008 passed by the Additional Sessions Judge, Vyara at Surat in Sessions Case No. 13 of 2007 whereby original accused no. 1 was convicted for the offence punishable under section 302 of Indian Penal Code and 135 of B.P. Act and sentenced to life imprisonment and fine of Rs. 1000/-, in default, to undergo additional imprisonment for three months under section 302 of Indian Penal Code and ordered to pay fine of RS. 100/- in default to undergo additional imprisonment for seven days under section 135 of B.P. Act. Original accused no. 1 was, however, acquitted of the offence under sections 323, 504, 506(2), 337 r/w section 114 of Indian Penal Code.

1.1 On the other hand original accused nos. 2 & 3 were acquitted of the charges leveled against them under sections 302, 323, 504, 506(2), 337 r/w section 114 of Indian Penal Code as well as 135 of B.P. Act. Being aggrieved by the said conviction under section 302 of Indian Penal Code, original accused no. 1 has preferred Criminal Appeal No. 1029 of 2008 and challenging the acquittal of original accused nos. 2 & 3, the State has preferred Criminal Appeal No. 1246 of 2008.

2. The short facts of the prosecution case as narrated in the First Information Report being C.R. I. No. 163 of 2006 Page 2 of 19 R/CR.A/1029/2008 JUDGMENT lodged with Vyara Police station is that on 28.10.2006 at around 06.15 pm, the accused persons went to the farm of the deceased and raised a dispute with regard to land in question and accused no. 1 gave axe blow on the back of the deceased thereby causing fatal injuries to which the deceased succumbed. The accused no. 2 caused injuries to witness Pinakin and Ankita by pelting stones by way of a catapult and the accused no. 3 went to the house of the complainant and threatened his mother of dire consequences.

2.1 Pursuant to the complaint, investigation was carried out. After investigation, on the basis of material collected against the accused, since the Investigating Officer found a prima facie case against the accused, chargesheet was filed and as the case was triable by the Court of Sessions, it was committed to the Court of Sessions. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried.

2.2 Trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses whose evidences were read before us by learned advocates for both the sides :

  (i) P.W. 1 - Dr. Bineshbhai Gamit                      Ex. 09
  (ii)P.W. 2 - Rashminben Chaudhary                      Ex. 08
  (iii)P.W. 3 - Ankitaben Chaudhary                      Ex. 21
  (iv)P.W. 4 - Pinakin Chaudhary                         Ex. 22
  (v)P.W. 5 - Hiraben Chaudhary                          Ex. 23
  (vi)P.W. 6 - Sumanben Chaudhary                        Ex. 24
  (vii)P.W. 7 - Amrutbhai Chaudhary                      Ex. 25


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        R/CR.A/1029/2008                                    JUDGMENT



  (viii)P.W. 8 - Rajeshbhai Patel                  Ex. 27
  (ix)P.W. 9 - Sudhirbhai Chaudhary                Ex. 29
  (x)P.W. 10 - Lilaben Goswami                     Ex. 31
  (xi)P.W. 11 - V.M. Jadeja                        Ex. 32




2.3   The     prosecution   also     relied     upon   the      following

documents which have been perused by us:

(i) Complaint Ex. 19

(ii)Panchnama of scene of offence Ex. 26

(iii)Inquest panchnama Ex. 16

(iv)Discovery panchnama Ex. 30

(v)Panchnama of body condition Ex. 28

(vi)Panchnama of clothes on dead body Ex. 17

(vii)Treatment certificate Ex. 13, 14

(viii)Cause of death certificate of deceased Ex. 15

(ix)P.M. Note Ex. 11

(x)FSL Report Ex. 34

(xi)Serological report Ex. 35

(xii)Notification issued by D.M. Ex. 36 2.4 At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted original accused no. 1 as mentioned aforesaid. The court below acquitted original accused nos. 2 & 3. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court, the present appeals have been preferred by original accused no. 1 as well as State.

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R/CR.A/1029/2008 JUDGMENT

3. Ms. Sadhana Sagar, learned advocate appearing for the appellant has mainly contended that the trial court has committed a grave error by not properly appreciating the material available on record of the case. She submitted that the presence of complainant is doubtful and the story put forward by the other witnesses namely P.W. 3 & P.W. 4 is also improbable because the alleged incident took place at about 06.30 pm in the month of October which means that it was not natural daylight. She submitted that it was dark during that time and that presence of grass was not there and even the presence of bullock cart is not proved by the prosecution. She submitted that the original complainant was not present at the scene of offence.

3.1 Ms. Sagar submitted that the case of the prosecution is mainly based on the evidence of P.W. 3 & P.W. 4 who are child witnesses. She submitted that the evidence of a child witness cannot be completely relied upon as the same can always be tutored and that the child may be swayed by what other tell him/her. She submitted that the prosecution has failed to prove its case beyond reasonable doubt and therefore benefit of doubt ought to be given to the accused no. 1.

4. On the other hand, Ms. Nisha Thakore, learned APP appearing for the State has submitted that the trial court committed an error in acquitting original accused no . 2 & 3. It was contended by Ms. Thakore that so far as the acquittal of original accused no. 2 & 3 is concerned, the judgement and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence Page 5 of 19 R/CR.A/1029/2008 JUDGMENT led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the accused.

4.1 Ms. Thakore submitted that admittedly, the fatal blows were on the vital organ with great force resulting in serious injury and that the injury is sufficient in the ordinary course of nature to cause death and, thus, both intention and knowledge are decipherable from the conduct of the accused and, hence, the conviction under Section 302 is to be upheld.

4.2 Ms. Thakore further submitted that the conviction and sentence imposed upon original accused no. 1 is just and proper and does not deserve to be interfered with. She has also taken this court through the oral as well as the entire documentary evidence.

5. Learned advocates appearing for both the sides have taken us through the evidence of the witnesses who have supported the prosecution case. Let us go through the evidence of material witnesses relied upon by the prosecution.

6. P.W. 2 - Rashminben Chaudhary is the complainant and has been examined on behalf of the prosecution vide Ex. 28. She is an eye witness to the present incident. This witness has deposed that the incident took place on 28.10.2006 at about 06.00 pm. She has stated that their agricultural field was registered under the name of her grandfather and thereafter under the name of her grandmother. This witness has stated that after the death of these two people, her father was cultivating the land and on the day of incident her Page 6 of 19 R/CR.A/1029/2008 JUDGMENT mother had asked to bring the bundle of grass from the field and accordingly she along with her niece went to the field. This witness has stated that while they were loading the grass the accused persons started pelting stones with the help of catapult and came closer abusing the complainant, deceased and her niece. This witness has further stated that accused no. 1 took out an axe which was hidden behind and inflicted three blows on the rear portion of the head of deceased. She has further stated that her father fell down from the cart and when she tried to snatch the axe, accused no. 1 pushed her and threatened to kill her. This witness has deposed that as she started shouting for help, Ankita and Pinakin got frightened and ran away and after some time she also reached home and informed the family members. She has further deposed that thereafter they lighted a petromax and reached the scene of offence where they saw the deceased lying on the ground in a bleeding condition.

6.1 According to the investigation officer, V.M. Jadeja who has been examined by the prosecution at Ex. 32, who prepared the panchnama of scene of offence a grass pile was lying in the filed and juvar cultivation was done in the field which corroborates the say of the complainant that she had gone to collect the pile of grass from the field. The panch witnesses to the panchnama of scene of offence have also supported the pachnama. Her presence at the scene of offence seems to be natural.

6.2 P.W. 3 - Ankitaben Chaudhary and P.W. 4 - Pinakin Chaudhary, who also are eye witnesses, have been examined by the prosecution vide Ex. 21 and 22 respectively. In Page 7 of 19 R/CR.A/1029/2008 JUDGMENT accordance with their evidence, at about 06.00 pm they went to collect grass from the field ankita went walking with the complainant whereas Pinakin went on the cart along with his grandfather. According to these witnesses, the accused persons were pelting stones by catapult which hit Pinakin and the bullock. It is borne out from the evidence of these witnesses that the deceased tried to pacify the accused persons but they did not heed and in fact accused no. 1 inflicted three to four blows on back portion of the deceased's head. Ankita has stated that her aunt (complainant) tried to intervene but she was pushed away. Ankita has stated that she and her brother were frightened and therefore they ran away from there.

6.3 Learned advocate for the appellant could not controvert their presence at the scene of offence. The evidence of these witnesses corroborate the evidence of complainant. It is true that these witnesses are minor witnesses. Learned advocate for the appellant has tried to contend that the evidence of P.W. 3 & P.W. 4 being minors cannot be admissible and trust worthy. The law on the subject is well settled. It is true that child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness, more particularly, when they have clearly stated the facts which corroborate with the version of other witnesses.

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R/CR.A/1029/2008 JUDGMENT 6.4 P.W. 5 - Hiraben Chaudhary has been examined vide Ex. 23 by the prosecution. She has supported the case of the prosecution and deposed that on the date of incident, in the afternoon, when she had went to cut grass, accused no. 1 had come there and threatened to kill her husband. She has stated that thereafter he went away and she returned home after making a pile of grass so cut by her. She then sent her daughter and husband to bring the pile of grass. This witness has deposed that her husband - deceased went on a cart along with P.W. 4 whereas the complainant along with P.W. 3 went to the field by walk. She has stated that after some time while she was doing household chores, the complainant came running and told that her father had been killed and that the accused had killed him. This witness has stated that the complainant informed her that accused nos. 2 & 3 pelted stones by catapult and that accused no. 1 inflicted axe blows on the head of the deceased. She has stated that the grievance on the part of the accused was as to why the deceased was not giving away the land in question to them.

7. We have also perused the post mortem report which mentions the cause of death to be due to shock due to severe head injury. Columns No. 17 & 18 of this very report mentions the nature of injuries sustained by the victim and the same are enumerated as under:

"(1) A wide clop wound present at back of head on right side measuring 18 cm x5cmx6 cm in size.

Deep to brain extending from back of right ear upto external occipital protuberance placed horizontally head of wound at back of right ear.

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R/CR.A/1029/2008 JUDGMENT Margins are sharp edges show abrasion and bruise which are dark red in colour.

Skull bone particles and brain tissue come out from the wound.

(2) Two other chop wounds are present at back of head on left side.

First one placed oblique measuring 9cm x 5cm x 8cm extends from left ear lobule directed downward backward head of wound at back of left ear lobule.

Second one just one cm part first one measuring 8cm x 5 cm x 9 cm obliques placed directed downward backward.

Both wounds are deep to brain Margins of both wounds are sharp Edges show abrasion and bruises which are dark red in colour (3) "T" shaped contused wound (CLW) present on top of measuring 6cm x 4cm x 2cm in size."

18. (1) Gutter fracture of occipital bone and temporal bone on right side measuring 18cm x 5cm x 6cm in size placed horizontally extending from right mastoid process up to external occipital protuberance.

(2) Two Gutter fractures of occipital and temporal bone on left side.

First one is 9cmx5cmx8cm in size Second one is 8cmx5cmx9cm in size Both place obliquely directed downward and backward (2) Depresses fracture of parietal bone on top of the skull."

7.1 P.W. 1 - Dr. Bineshbhai Gamit is the medical officer who had treated injured witnesses P.W. 3 and P.W. 4 and conducted the post mortem of deceased. This witness has Page 10 of 19 R/CR.A/1029/2008 JUDGMENT stated that on 29.10.2006 while he was on duty P.W. 3 and P.W. 4 came for treatment. He has stated P.W. 3 had sustained the following wounds :

"

- Three abrasion marks of 2x1 were seen on between elbow and wrist.

- Two abrasion marks of 2.5x1 and 1.5x1x1 cm were seen on left knee."

P.W. 1 has stated that P.W. 4 had sustained the following wounds :

"One incised and contused wound on left part of face was seen on the lower part which was of 2x1x0.5cm from which oozing of blood was not seen"

7.2 P.W. 1 has further stated that both these witnesses gave history that on 28.10.2006 at around 06.10 pm they were injured by stones. He has stated that he gave primary treatment to them and discharged them. He has stated that the injuries sustained by these witnesses were possible by way of blunt object and that the said injuries would have been possible by way of stones.

7.3 P.W. 1 has stated that he conducted the post mortem of the deceased on 29.10.2006 and that the injuries were ante mortem. This witness has stated that the cause of death was shock due to grievous injury sustained on head. He has further stated that the injuries mentioned in column no. 17 of the post mortem report were on the material part of the body and sufficient to cause death in ordinary course of nature and that the said injuries are possible by way of muddamal axe.

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R/CR.A/1029/2008 JUDGMENT

8. Having considered minutely the evidence on record, oral as well as documentary, which we have appreciated, re- appreciated and reconsidered in light of the latest decision of the Apex Court we find that the finding of facts as far as the conviction of the original accused no. 1 under section 302 of Indian Penal Code cannot be found any fault with. We are afraid that we are not persuaded to hold that the offence under section 304 IPC shall be attracted in the present case as submitted by learned advocate for accused. The injuries and the evidence of witnesses will not permit us to hold that the alleged incident was not motivated. The injuries were such that the part of brain had come out from the bone of skull which shows that the vital part of the body was attacked and the death occurred. From the evidence of P.W. 5 - Hiraben it is borne out that accused no. 1 had come to the place of offence in the afternoon and threatened to kill the deceased. Hence we are not in any way persuaded to hold that the attack was not motivated.

8.1 In a recent decision of the Apex Court in the case of Bhaikon @ Bakul Borah vs. State of Assam reported in JT 2013 (10) SC 373 has held as under:

"15. This Court, in a series of decisions has held that life imprisonment means imprisonment for whole of life subject to the remission power granted under Articles 72 and 161 of the Constitution of India. [Vide Life Convict @ Khoka Prasanta Sen vs. B.K. Srivastava & Ors. (2013) 3 SCC 425, Mohinder Singh vs. State of Punjab, (2013) 3 SCC 294, Sangeet and Anr. vs. State of Haryana (2013) 2 SCC 452, Rameshbhai Chandubhai Rathod (2) vs. State of Gujarat (2011) 2 SCC 764, Chhote Lal vs. State of Madhya Page 12 of 19 R/CR.A/1029/2008 JUDGMENT Pradesh (2011) 8 SCR 239, Mulla and Another vs. State of Uttar Pradesh (2010) 3 SCC 508, Maru Ram vs. Union of India & Ors. (1981) 1 SCC 107, State of Madhya Pradesh vs. Ratan Singh & Others (1976) 3 SCC 470 and Gopal Vinayak Godse vs. State of Maharashtra AIR 1961 SC 600].

16. In view of the clear decisions over decades, the argument of learned senior counsel for the appellant-accused is unsustainable, at the same time, we are not restricting the power of executive as provided in the Constitution of India. For adequate reasons, it is for the said authorities to exercise their power in an appropriate case."

9. As far as the acquittal of original accused nos. 2 & 3 is concerned, 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 SCC, 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:

"54. 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."

9.1 Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court Page 13 of 19 R/CR.A/1029/2008 JUDGMENT 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 the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

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R/CR.A/1029/2008 JUDGMENT 9.2 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.

9.3 Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the 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 judgement 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 re- appreciate 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."

9.4 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 AIR SCW 5553 and in Girja Page 15 of 19 R/CR.A/1029/2008 JUDGMENT Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.

9.5 In the case of Luna Ram Vs. Bhupat Singh and Ors. reported in (2009) SCC 749, the Apex Court in paras 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 ankle 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 post-mortem 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 a 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."

9.6 Even in a recent decision of the Apex Court in the case of Mookiah 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 anddefence, acquitted the accused in respect of th e 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 Page 16 of 19 R/CR.A/1029/2008 JUDGMENT 302 read with Section 34of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Co urt has exceeded its jurisdiction in upsetting the order ofacquittal into conviction, let us analyze the scope and power of theHigh Court in an appeal file d against the order of acquittal.ThisCourt in a serie s of decisions has repeatedly laid down that as the first appellate court the High Court even while dealing with an appeal against acquittal,wasalso entitled,andobliged as well, to sc an through and if need be reappreciatethe entire evidence, though while choosing to interfere onlyth e court should find an absolute assurance of the gui lt on the basis of the evidence on record and not merely becausethe High Court could take one mo re possible or a differentview only. Except the abo ve, where the matter of the extentand depth of con sideration 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]"

9.7 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgement or to give fresh reasonigns, 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 Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial 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 Page 17 of 19 R/CR.A/1029/2008 JUDGMENT which is under appeal, will ordinarily suffice."

9.8 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.

10. We have examined the matter carefully and gone through the evidence on record. We have appreciated, re-appreciated and re-evaluated the evidence on the touchstone of latest decision of the Hon'ble Apex Court. We find that the reasonings adopted and findings arrived at by the trial court with regard to the role of original accused nos. 2 & 3 are not required to be interfered with. The appeal filed by respondent - State does not have any merits and is required to be dismissed. Accordingly, the following order is passed.

11. In the premises aforesaid, appeals are hereby dismissed. The judgement and order dated 15.01.2008 passed by the Additional Sessions Judge, Vyara, Surat in Sessions Case No. 13 of 2007 is confirmed. However, life imprisonment as awarded by the trial court would not be till last breath and the case of accused no. 1 may be reviewed by the appropriate authority after 14 years of his serving sentence considering the decision of Apex Court in the case of Bhaikon @ Bakul Borah (supra). Bail bond, if any, shall stand cancelled qua accused nos. 2 & 3. R & P, if lying with this court, to be sent back forthwith.





                                                          (K.S.JHAVERI, J.)



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         R/CR.A/1029/2008                    JUDGMENT




                                           (A.G.URAIZEE,J)
divya




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