Gujarat High Court
State Of Gujarat vs Sukabhai Mangabhai Rathod & Anr & ... on 21 October, 2015
Author: Anant S.Dave
Bench: Anant S. Dave, Z.K.Saiyed
R/CR.A/347/1994 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 347 of 1994
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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
SUKABHAI MANGABHAI RATHOD & ANR & 1....Opponent(s)/Respondent(s)
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Appearance:
MR HS SONI, APP for the Appellant(s) No. 1
MR RN SHAH, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 21/10/2015
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE Z.K.SAIYED) Page 1 of 19 HC-NIC Page 1 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT
1. By way of present appeal, filed under Section 378 of the Code of Criminal Procedure, 1973, the appellant State has challenged the judgment and order of acquittal dated 20.12.1993 passed by the learned Additional Sessions Judge, Surat, in Sessions Case No.79 of 1993. The said case was registered against the respondents-original accused for the offences punishable under Sections 504, 302, 323, 325 and 114 of the Indian Penal Code and under Section 37(1) read with Section 135 of the Bombay Police Act and under Section 161 of Gujarat Panchayat Act. By impugned judgment and order the respondents are acquitted for the alleged offence.
2. According to the prosecution case, the complainant Dipakbhai Sureshbhai Patel resides at Orna village and he is engaged in agriculture work. The agricultural land of the complainant is situated in Delad Street. The complainant has cultivated crop of sugarcane in the present year in the said farm. On 11.1.1993, the complainant and his friend Vaman Bhakti went to take a round of the farm. At that Page 2 of 19 HC-NIC Page 2 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT time, the accused Nos. 1, 2 and other two persons were found grazing their 8 to 10 buffaloes on the patch of land near the farm of the complainant. As the complainant went nearer, he found that cattle of accused persons and other two persons who were with the accused had caused damage to the crop of sugarcane of the complainant. Therefore, the complainant told the accused persons and the persons who were with them that, 'why do you damage crop of sugarcane'. Therefore, the accused persons and other persons with them said to the complainant, 'who are you to say us like this'. By saying so, they got instigated and as the accused persons and the other persons threatened the complainant to beat, the complainant and his friend Vaman Bhakti returned home. After reaching home, the complainant told about the incident to his father Sureshbhai. Therefore, Sureshbhai father of the complainant and his servant Bhimabhai went to farm and after some time, the complainant came to know that the accused persons and other two persons with them have thrashed Sureshbhai with fists and sticks. Therefore, the complainant, Dharmeshbhai Chhaganbhai, Page 3 of 19 HC-NIC Page 3 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT Dharmeshbhai Ishwarbhai, Prakashbhai Ranchhodbhai and Pravinbhai Lallubhai rushed to his farm and they saved Sureshbhai from being beaten up further. The complainant came to know that the accused persons and other two persons with them had beaten his father. The father of the complainant had sustained contusion in head and on back. Therefore, the complainant immediately took his father Sureshbhai to Orna Government hospital. After getting some treatment at this place, the medical officer of Orna advised to take him to another hospital. Therefore, the father of the complainant was admitted in Sardar Hospital at Bardoli. Thereafter, on 26.1.1993, Sureshbhai father of the complainant died during treatment due to the injuries sustained by him. As the complainant gave complaint against accused No.1, 2 and other two unknown persons in Orna outpost on the day of the incident, head constable of Orna outpost issued occurrence report and sent it to Kamrej Police Station. Hence the offence was registered.
3. Thereafter, charge Ex.3 came to be framed and explained to the accused person, to Page 4 of 19 HC-NIC Page 4 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT which they pleaded not guilty and claimed to be tried.
4. In order to bring home the charges against the accused persons, prosecution has examined witnesses and also produced documentary evidences.
5. Thereafter, after filing closing pursis by the prosecution, further statement of accused persons under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein the accused persons denied the case of the prosecution and submitted that a false case is filed against them.
6. On conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment and order acquitted the respondents - accused as stated above.
7. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 20.12.1993 passed by the learned Additional Sessions Judge, Surat, in Sessions Case No.79 of 1993 the State has preferred the present appeal before this Court.
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8. Heard Mr.H.S.Soni, learned APP for the appellant - State. He has contended that the impugned judgment and order passed by the learned Judge is contrary to law and evidence on record. He has contended that the learned Judge has not properly appreciated oral as well as documentary evidence adduced by the parties in its proper perspectives.
9. He has contended that learned Judge has erred in appreciating the evidence of complainant Dipakbhai Ex.12, son of the deceased and discarded the evidence of eyewitness Bhimabhai at Ex.16.
10. He has read evidence of the Dr.Mahendrasinh examined at Ex.8 who has disclosed that 14 injuries were found from the body of the deceased. It is contended by him that as per evidence of the Medical Expert it is disclosed by him that said injuries are possible by ironrod or stick or blunt object and these injuries are sufficient to cause death. The same is revealed from Ex.9, Certificate and Ex.11, postmortem note. He has contended that prosecution has examined eyewitnesses and Page 6 of 19 HC-NIC Page 6 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT version of the eyewitnesses is trustworthy, reliable and acceptable. He has read evidence of P.W. No.2 Dr.Rajiv Mehta and contended that injuries are disclosed by present independent witness. He has contended that complainant who is son of the deceased is examined at Ex.12 as P.W. No.3. He has contended that he is sole eyewitness and he has disclosed exact role of both the respondents - accused and they are also identified by this witness. He has contended that the deceased has made oral dying declaration before this witness. He has read contents of complaint Ex.13 and contended that in support of said evidence P.W. No.4, who is also eyewitness, has disclosed identity of both the accused as well as role and they have committed assault on the deceased and in result of that assault deceased has received fatal injuries.
11. He has further contended that P.W. No.5 Vamanbhai Ratibhai examined at Ex.17 who is also cited as eyewitness has disclosed role of the present respondents - accused and it is established through oral version that accused have given fatal blows to the deceased with particular weapon and weapon Page 7 of 19 HC-NIC Page 7 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT are also identified by this witness. He has contended that as per evidence of P.W. No.6 Dharmeshbhai Patel examined at Ex.18 has disclosed that he was informed by the complainant and he rushed to the place with other witnesses and they have seen that both the respondents accused were present with two other persons and deceased's son was beaten by both the respondents accused. He has read evidence of P.W. No.7 Dharmeshbhai Ishvarbhai examined at Ex.19 and contended that both the respondents accused were identified and they were shown at the place of offence with deadly weapon and deceased was beaten by them and muddamal weapons were also identified by them. He has contended that P.W. No.9 Prakashbhai examined at Ex.19 is an eyewitness and from his oral version presence and role of both the respondents accused are proved beyond reasonable doubt. He has read over contents of Ex.23 recovery panchnama of muddamal and evidence of P.W. No.10 and contended that as per examination of independent witness they have fully supported prosecution case. Lastly, he has read observations of the learned Judge and contended that observations made by Page 8 of 19 HC-NIC Page 8 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside.
12. We have heard learned APP for the appellant - State. We have gone through the papers produced in the case. We have minutely perused evidence of the witnesses examined by the prosecution. The contradiction found between the statements of the complainant and aforesaid witnesses given before the Court and given before the police have been proved by the defence by the deposition of the Investigating Officer, as per which it has not been stated anywhere in the statement of the complainant or the witnesses before the police that they had seen the accused nos. 1 and 2 beating Sureshbhai with stick and spade at the place of the incident. Except the complainant, the other witnesses have stated before the police that the accused persons and two persons with them were running away with stick and spade when they reached the place of the incident. Thus, it clearly appears that the witnesses of the Prosecution have tried to put forward a new case that the Page 9 of 19 HC-NIC Page 9 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT complainant and the witnesses with him had seen the accused nos. 1 and 2 beating Sureshbhai with stick and spade and when they reached near the place of the incident, the complainant shouted, hence, the accused persons and others with them stopped beating Sureshbhai and ran away.
13. As per the case of the Prosecution, Sureshbhai had no weapon at the time of the incident. He was alone and the assaulters were four in number. Out of these four, at least two persons had weapons such as spade and stick. As per the medical evidence, there are about 14 injuries on the body of the complainant. It would not take much time for four persons to cause 14 injuries to a person. The witness Bhikhabhai was at the field which was the place of the incident. At the same time, the assaulters had started assaulting the deceased. Under such circumstances, it is not credible that the assaulters who assaulted the deceased Sureshbhai would be present and the act of assaulting would be going on upto the time till the complainant and the witnesses reached the place of the incident. The assaulters may have run away during the Page 10 of 19 HC-NIC Page 10 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT time when the complainant and the witnesses with him had reached the place of the incident, they had no reason to stay after making the assault.
14. If it is believed that the assaulters were still beating the deceased Sureshbhai even at the time when the complainant and the witnesses with him reached near the field of the complainant, and when the complainant shouted, the assaulters ran away, it becomes doubtful that the complainant or the witnesses with him can identify the assaulters from the distance of 300 ft. Further, there is contradiction regarding the evidence of the witnesses of the Prosecution also. Some witness states that the other persons apart from the accused had a weapon like stick and rod, some witness states that the other two persons had no weapons, while some witness states that he does not know what weapons were there with the other two persons. It has not been clarified by the concerned witnesses as to why they could not see the weapons held by the other two persons who were with the accused persons, if they were able to see which weapons were there with the accused persons. Hence, that Page 11 of 19 HC-NIC Page 11 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT circumstance also indicates that the complainant and the witnesses who were with him might not have eyewitnessed the incident, and they might have also not seen any weapons possessed by the accused at the time of the incident.
15. In the complaint at Exh.13, the complainant stated that his father and his servant Bhimabhai had gone to the field, and after sometime, he came to know that these four persons have beaten his father with kicks and fists and stickblows. Further, as per the fact stated by the complainant in his deposition, Bhimabhai had not given the names of the assaulters to him. Bhimabhai had told him only such a fact that scuffle took place and he was beaten.
16. The witness Vamanbhai states in his examinationinchief that when he was standing in the outskirts of the village, the servant of Dipakbhai namely Bhimabhai came there running and Bhimabhai told Dipakbhai that Suko and Ranjit and other two persons are beating Sureshbhai.
17. The witness Dharmeshbhai Ishwarbhai has deposed to the extent that the spade held Page 12 of 19 HC-NIC Page 12 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT by the accused no.2 had a black handle, and he remembers the specific marks that the stick which was with the accused no.1 had 78 knots in it. As noted above, the complainant and the other aforesaid witnesses were at the distance of 300 ft. from the place of the incident. Such an evidence is given by him that at that time, the complainant and the aforesaid witnesses saw the weapons in the hand of the accused nos.1 and 2. Under such circumstances, it cannot be said by anyone precisely that a particular weapon was there with the accused. Even the witness standing at the distance of 1015 ft. cannot count the knots of the stick held by the accused. Hence, it is clear that the complainant and the aforesaid witnesses have purposefully stated the false fact that only the weapons such as those of article nos.1 and 2 were there with the accused persons at the place of the incident. It could be understood if it had been said by the aforesaid witnesses that the weapons such as the article nos. 1 and 2 were there with the accused persons at the time of the incident.
18. The complainant has stated in his Page 13 of 19 HC-NIC Page 13 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT examinationinchief that when he reached his field at the time of the incident, his father was conscious. He asked his father as to who were there, and why he had been beaten. His father replied in broken language that 'Suko, Ranjit and other two persons were there'.
19. Dr. Mahendrasinh Nandlal Bharati who has been examined vide Exh. 8 has also stated in his deposition that on 11.1.1993, Sureshbhai Gordhanbhai had been brought to him for treatment at about 415 hours in the afternoon. The injured person was conscious at that time and his blood pressure and pulserates were also normal. The witness Vamanbhai stated in his examinationinchief vide Exh.17 that Sureshbhai was conscious when he reached to him, and Sureshbhai spoke in broken language that 'Suko and Ranjit were beating me'. The witness Dharmeshbhai Chhaganbhai has stated in his examination inchief that when he went to Sureshbhai, he had told him in broken language that Suka Manga, Ranjit Manga and other two unknown persons were there. The witness Dharmeshbhai Ishwarbhai has nowhere stated in his deposition that the deceased Page 14 of 19 HC-NIC Page 14 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT Sureshbhai had given the names of the accused persons before him, whereas, the witness Prakashbhai Ranchhodbhai has stated in his examinationinchief that Sureshbhai was asking for water from Dipakbhai when he and the complainant reached to Sureshbhai by running. He does not know as to what Sureshbhai told Dipakbhai. Dipakbhai had asked questions to Sureshbhai. Sureshbhai told Dipakbhai that as he refused to graze cattle, the accused persons had beaten him. The A.P.P. has submitted that the evidence given by the complainant in respect of the dying declaration of the deceased is corroborated by the evidence of the other witnesses and the medical evidence. The medical evidence shows that the deceased Sureshbhai was conscious till he was taken to the hospital and his blood pressure and pulserates were normal. As per the medical evidence, he was in such a condition that he could give dying declaration. Thus, the complainant and the other witnesses of the prosecution state for the first time before the Court that the deceased had given the names of the accused nos.1 and 2 as the assaulters. When the prosecution relies on the oral Page 15 of 19 HC-NIC Page 15 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT dying declaration, they should prove as to which words had been exactly spoken by the deceased. As per the deposition of the complainant, the deceased spoke that, 'there were - Suko, Ranjit and other two persons'. As per the evidence of the witness Vamanbhai, the deceased spoke that Suko and Ranjit were beating. As per the evidence of the witness Dharmeshbhai Chhaganbhai, the deceased spoke that Suka Manga and Ranjit Manga and other two unknown persons were there. The witness Prakashbhai states that the deceased had asked for water from Dipakbhai and he told Dipakbhai that as he refused to graze cattle, the accused persons beaten him. Thus, each witness has a different version in respect of the words spoken by the deceased. Taking into consideration the circumstances mentioned above, if it is believed that the deceased was conscious and in such a condition that he could speak till he reached the hospital, the fact that he had given the names of the accused nos.1 and 2 as the assaulters is not proved beyond doubt even then, and the accused cannot be awarded a punishment by placing reliance on such an oral declaration.
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20. 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 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."Page 17 of 19
HC-NIC Page 17 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT
21. 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 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.
22. It is settled legal position that in an acquittal Appeal, the Appellate Court is not required to rewrite the Judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondents - accused and adopting the said reasons as well as the reasons aforesaid, in our view, the impugned Judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this Appeal requires to be dismissed.
23. In the result, the appeal is dismissed.
Page 18 of 19HC-NIC Page 18 of 19 Created On Tue Oct 27 00:46:42 IST 2015 R/CR.A/347/1994 CAV JUDGMENT The impugned judgment and order of acquittal dated 20.12.1993 passed by the learned Additional Sessions Judge, Surat, in Sessions Case No.79 of 1993, acquitting the respondents - accused is hereby confirmed.
24. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith.
(ANANT S.DAVE, J.) (Z.K.SAIYED, J.) KKS Page 19 of 19 HC-NIC Page 19 of 19 Created On Tue Oct 27 00:46:42 IST 2015