Gujarat High Court
State Of Gujarat vs Bharatbhai N ... on 17 March, 2015
Author: Vipul M. Pancholi
Bench: Akil Kureshi, Vipul M. Pancholi
R/CR.A/266/1991 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 266 of 1991
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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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 or any order
made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
BHARATBHAI N DANTANIA....Opponent(s)/Respondent(s)
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Appearance:
MS MAITHILY MEHTA, APP for the Appellant(s) No. 1
MR KB ANANDJIWALA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 17/03/2015
Page 1 of 10
R/CR.A/266/1991 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI) The State has preferred this appeal against the judgment of acquittal dated 17th January 1991 rendered by the learned Additional City Sessions Judge, Court No.19, Ahmedabad in Sessions Case No.233 of 1990. The prosecution story, in brief, is as under:
That on the night of 2.9.88 and in the early morning of 3.9.88, the accused and the deceased were in their house. At that time, between 1.00 a.m. and 6.30 a.m., the accused has throttled his wife by pressing her neck and thereby committed murder and thereafter the accused has absconded from his house. Son of the accused, therefore, filed FIR before Shahpur Police Station. The Investigating Officer carried out the investigation and filed chargesheet before the learned Magistrate Court. The learned Magistrate thereafter committed the case to the learned Sessions Court which was numbered as Sessions Case No.233 of 1990.
During the course of trial before the learned Sessions Court, the prosecution examined several witnesses with a view to prove the case against the accused. The prosecution had examined complainant Gopal Bharatbhai, PW-1, Ex.10. However, the said witness has not supported the case of the prosecution and therefore, he was declared hostile. The prosecution had also examined one Sunil Shankarlal, brother-in-law of the accused at Ex.11. The said witness has also not supported the case of the prosecution and Page 2 of 10 R/CR.A/266/1991 JUDGMENT therefore, he was also declared hostile. The prosecution has relied upon the deposition given by PW-3, Balwantbhai Chaturbhai, Ex.12. The said witness is the brother of deceased Hansaben. The said witness has stated during the course of his deposition that deceased Hansaben used to come at the residence of the said witness and at that time she was complaining about the behaviour of the accused. The accused was quarreling with Hansaben. He was having the habit of drinking liquor. He was also giving threat to Hansaben that he would kill Hansaben by pouring kerosene on her. The said witness has also stated that Hansaben filed an application under section 125 of the Code of Criminal Procedure for getting maintenance against the accused. However, the said matter was thereafter settled. Thereafter in July 1987, Hansaben was sent to the house of the accused. Thus the said witness has deposed against the accused with regard to his conduct of giving harassment to Hansaben. However, the said witness has not seen the incident which has occurred on 2.9.88. He came to know about the incident when one Mukeshbhai informed him that his sister has died and therefore he rushed to the place of incident. When he reached the house of the accused, he came to know that the accused had pressed the neck of deceased Hansaben and thereafter he had run away from the spot. The prosecution had also examined PW-4, Ex.19, Manekben Motilal who was working as a Woman First-grade Constable in Karanj Police Station. The said witness has produced the copy of the NC register at Ex.20. The Investigating Officer, Gyansagar Ahuja was examined as PW-5, Ex.21 by the prosecution. The said witness has carried out the investigation and Page 3 of 10 R/CR.A/266/1991 JUDGMENT filed the chargesheet against the accused. The PSI who had recorded the first information report on the basis of the information given by witness Gopal Bharabhai had expired and witness Gopal Bharatbhai had turned hostile and therefore, the learned advocate of the accused has taken objection against exhibiting the FIR. However, the FIR was exhibited at Ex.27. The prosecution has examined Dr.Nayankumar Natwarlal Parikh, PW-8, Ex.33, who had carried out the post-mortem of deceased Hansaben. The said expert has stated during the course of his deposition about the injuries received by the deceased. He has stated that the deceased had received seven external injuries and therefore he has narrated about such injuries in column No.17 of the post-mortem note. All such injuries were ante-mortem in nature. The said witness further stated that these injuries could be caused by any hard and blunt substance by pressing the neck. All the external and internal injuries were sufficient, according to the opinion of the said witness, to cause death of the deceased in the ordinary course of nature. He has stated that the cause of death of the deceased is shock due to asphyxia of cardio- respiratory arrest. During the course of cross-examination, the said witness has admitted that the external injuries and internal injuries shown in column No.17 and 19 respectively in the post-mortem notes were also possible in partial hanging if suicide is committed by the victim herself.
On the basis of the oral as well as documentary evidence produced before it, the learned Trial Court acquitted the accused by giving benefit of doubt and by observing that the prosecution has Page 4 of 10 R/CR.A/266/1991 JUDGMENT failed to prove the case against the accused beyond reasonable doubt. The State has, therefore, preferred this appeal before this Court.
Learned APP Ms.Maithily Mehta mainly relied on the deposition given by Balwantbhai Chaturbhai, PW-3, Ex.12 and submitted that the said witness has stated against the accused with regard to his past conduct towards deceased Hansaben. He was giving torture to the deceased. He used to quarrel with the deceased and therefore the deceased went to the place of the said witness many times. Learned APP further submitted that the Investigating Officer has supported the case of the prosecution. She thereafter referred to the deposition given by the doctor PW-8, Ex.33 who has performed the post-mortem of the deceased. By referring to such deposition the learned APP submitted that the deceased was having seven different injuries which were ante-mortem in nature and the doctor has specifically given the opinion that these injuries could be caused by any hard and blunt substance by pressing the neck. The learned AGP thereafter referred to the conduct of the accused who had left the place of incident immediately after the death of Hansaben. She has further submitted that warrant under section 70 of the Code of Criminal Procedure was issued against the accused and therefore proceedings under section 82 of the Criminal Procedure code was also initiated. The accused was arrested later on on the basis of the warrant issued by the learned Metropolitan Magistrate Court. Thus, looking to the conduct of the accused, it is clear that after committing murder of his wife, the accused had left Page 5 of 10 R/CR.A/266/1991 JUDGMENT the place and therefore, in view of the overall facts and circumstances of the case, the learned Trial Court has committed an error in acquitting the accused and therefore this Court may quash and set aside the order of acquittal and convert the acquittal into conviction by exercising powers under section 378 read with section 386 of the Indian Penal Code.
On the other hand, learned advocate Shri K.B.Anandjiwala appearing for the respondent has supported the judgment and order of acquittal rendered by the learned Trial Court. The learned advocate for the respondent accused mainly submitted that most of the prosecution witnesses have not supported the case of the prosecution. The complainant himself has turned hostile. The learned advocate further referred to the deposition given by PW-2, Sunil Shankarlal who is the brother-in-law of the accused and submitted that the said witness has also not supported the case of the prosecution. The witness Balwantbhai Chaturbhai, PW-3 is not an eye-witness of the incident and therefore his deposition is required to be discarded by this Court. The learned advocate further referred to the deposition given by PW-8, Dr.Nayankumar Natwarlal Parikh and submitted that during the course of cross-examination, the said witness has admitted that external as well as internal injuries shown in column Nos.17 and 19 respectively in the post-mortem notes were also possible in partial hanging if suicide is committed by the victim herself. The learned advocate, thereafter, referred to the impugned judgment and submitted that the learned Trial Court has taken into consideration the documentary as well as oral Page 6 of 10 R/CR.A/266/1991 JUDGMENT evidence produced on record and thereafter rightly held that the prosecution has failed to establish the case against the accused beyond reasonable doubt and therefore rightly acquitted the accused for the charges levelled against him and therefore when the learned Trial Court has acquitted the accused, this Court may not entertain this appeal while exercising powers under section 378 read with section 386 of the Code of Criminal Procedure.
We have considered the arguments canvassed by the learned advocates appearing on behalf of the parties. We have also considered the documentary as well as oral evidence produced on record. From the facts and circumstances of the present case, the following important facts emerge on record.
(1)Hansaben, wife of the accused died during 1.00 a.m. to 6.30 a.m. on 3.9.88 in the house of the accused.
(2) Son of the accused, Gopal Bharatbhai has filed FIR Ex.27 against the accused. However, the said witness is not an eye- witness to the incident and during the course of his deposition, he has not supported the case of the prosecution and was declared hostile. Therefore, his deposition is required to be discarded and rightly discarded by the learned Trial Court.
(3) Similarly, PW-2, Sunil Shankarlal, has also not supported the case of the prosecution.
Page 7 of 10R/CR.A/266/1991 JUDGMENT (4) Dr.Nayankumar Parikh, PW-8, though stated in his examination-in-chief that all the seven injuries could be caused by any hard and blunt substance by pressing the neck, during his cross-examination he has admitted that such injuries were possible in partial hanging if suicide is committed by the victim herself.
Thus, in the facts and circumstances of the present case, when most of the witnesses have not supported the case of the prosecution, the learned Trial Court has rightly passed the order of acquittal.
The Hon'ble Supreme Court in the case of Chandrappa v. State of Karnataka, (2007) 4 SCC 415 has laid down certain guidelines while exercising powers by the appellate court under section 378 of the Criminal Procedure Code in an appeal against the order of acquittal. In para 42 of the said judgment, the Supreme Court has observed as under:
"42.From the above decisions, in our considered view, the following general principles regarding powers of 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 Page 8 of 10 R/CR.A/266/1991 JUDGMENT and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', Very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(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."
As observed by the Hon'ble Supreme Court in the aforesaid decision, the appellate court must bear in mind that in case of acquittal, there is a double presumption in favour of the accused, firstly the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law and secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, Page 9 of 10 R/CR.A/266/1991 JUDGMENT reaffirmed and strengthened by the trial court. The Hon'ble Supreme Court has further observed that 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.
Keeping in mind the ratio laid down by the Hon'ble Supreme Court in the aforesaid decision, we are of the opinion that in the present case, the prosecution has failed to prove the case against the accused beyond reasonable doubt and therefore, when the learned Trial Court has acquitted the accused, we are not inclined to exercise powers by converting the order of acquittal into that of conviction in the facts of the present case.
Hence the appeal fails and accordingly it is dismissed.
R & P be sent back to the Trial Court.
(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) (vjn) Page 10 of 10