Gujarat High Court
State Of Gujarat vs Barkatali Gavarali Devrani on 4 April, 2022
Author: S.H.Vora
Bench: S.H.Vora
R/CR.A/732/1998 JUDGMENT DATED: 04/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 732 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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
Versus
BARKATALI GAVARALI DEVRANI & 2 other(s)
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Appearance:
MS CHETNA M. SHAH, APP for the Appellant - State
None for the Respondents
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 04/04/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 09.06.1998 passed by the learned Sessions Judge, Page 1 of 16 Downloaded on : Wed Apr 06 21:08:56 IST 2022 R/CR.A/732/1998 JUDGMENT DATED: 04/04/2022 Rajkot in Sessions Case No.86 of 1997 for the offences under Sections 452, 342, 394, 397 and 114 of the Indian Penal Code and Section 135 of the B.P. Act., the appellant - State of Gujarat has preferred this appeal as provided under Section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short) inter alia challenging the judgment and order of acquittal in favour of the respondents - accused.
2. The case of the prosecution is as under :
2.1 On 01.06.1995, all three accused made reiki of the shop of complainant - Ashokbhai Ganatra. At about 3:00 p.m., accused No.3 -
Sultan made first reiki of the shop, then at about 6:00 p.m., other two accused - accused No.1 - Barkat and accused No.2 - Azim made reiki of the shop. Accused Nos.1 and 2 also made inquiry about the goods
- groundnut. Thereafter, at about 7:00 p.m., accused Nos.1 and 2 again came to the shop of the complainant. They locked the door from inside. They both have knife. They cut the telephone wire and the complainant was strangulated from that wire. They have threatened the complainant. They snatched away one portfolio lying near the complainant, in which there were total Rs.35,600/-. Thereafter, they ran away from the place of occurrence by locking the door from outside. The complainant shouted from inside through window and two labourers were immediately rushed inside by opining the door. They ran behind the accused, however, since the accused were on bicycle, they ran away from there.
2.2 Thereafter, the complainant lodged the complaint with regard to the incident before Rajkot City 'B' Division Police Station, Rajkot, which was registered as C.R. I No.192 of 1995 for the offences under Sections 452, 342, 394, 397 and 114 of the Indian Penal Code and Section 135 of the B.P. Act.
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3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence and drawn various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the respondents - accused, charge-sheet came to be filed in the Court of learned Judicial Magistrate, Rajkot. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Rajkot as provided under section 209 of the Code.
4. Upon committal of the case to the Sessions Court, learned Sessions Judge framed Charge against the respondents - accused for the aforesaid offence. The respondents - accused pleaded not guilty and claimed to be tried.
5. In order to bring home charge, the prosecution has examined 15 witnesses and also produced various documentary evidence before the learned trial Court, which is described in Para : 16 of the impugned judgment and order.
6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the respondent accused denied all incriminating circumstances appearing against him as false and further stated that he is innocent and false case has been filed against him. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondent accused of the offences, for which he was tried, as the prosecution failed to prove the case beyond reasonable doubt.
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7. This Court has admitted the appeal vide order dated 22.12.1998. The notices were served to the respondents, but they have chosen not to appear before this Court.
8. We have heard learned APP Ms. Shah appearing for the applicant State and have minutely examined the documentary evidence provided to us by learned APP during the course of hearing.
9.1 The entire case of the prosecution is based on corroborative evidence. Three accused made reiki before commission of offence. Thereafter, they have committed the offence and had run away from the scene of offence on one bicycle. There were three/four accused.
9.2 The case of the prosecution is that on 04.06.1995, the police went to the Village : Jivapar, Tal. - Dist. Jamnagar and reached at about 3:00 a.m. (midnight of 03.06.1995) at the residence of Jivabhai Gulamhusain Punjani (PW-41), where the accused persons Azim Ramzanali Khoja and Barkatali Khoja are found sleeping and recovery panchnama was carried out in presence of Panchas, where Azim had opened the suit case by keys, which were with him and Rs.28,500/- was found from his possession. The said accused Azim was absconding during the trial and said witness Jivabhai (PW-14), from whose house both the accused were found and recovery of amount was made, was also examined at Exh.41 by the prosecution. But said Jivabhai turned hostile and in his cross-examination also, he has not supported the case about recovery of amount or about the presence of Azim as well as Barkatali at his house. Even Panch witnesses viz., (i) Chhotubhai Gulamhusain Kanani (Khoja) (PW-12) was examined at Exh.38 and (ii) Anvar Noormohammad Chaki (PW-
13) was also examined at Exh.40, have not supported the Panchnama at Exh.39. Thus, the prosecution has failed to prove the recovery of Page 4 of 16 Downloaded on : Wed Apr 06 21:08:56 IST 2022 R/CR.A/732/1998 JUDGMENT DATED: 04/04/2022 the amount allegedly recovered from the accused Azim in the presence of Barkatali.
9.3 Looking to the complaint of the complainant himself, after commission of offence, the accused had run away on the bicycle from the scene of offence. It reveals that the accused had come for commission of offence on bicycle. There was a mention of only one bicycle. There were three/four accused. There are contradictions in the number of accused also, which will be dealt with in later part of this judgment. The accused had taken the said bicycle on rent from the cycle repairing shop run by one Bahadurali Jumabhai Sorathiya. The said bicycle is numbered as '13' given by the cycle repairing shop keeper. In the cross-examination of PW-3 - Bahadurali Jumabhai Sorathiya at Exh.11, he has stated that the said bicycle numbered as '13' had taken on rent by one Rajubhai and was returned at 7:30 p.m. Further, the entry made in his register regarding the bicycle given on rent to the people, was made after 7:15 p.m., where the timing for given the bicycle on rent was shown as 4:50 p.m. Therefore, it cannot be said that the said bicycle was involved in the commission of offence by the accused.
9.4 Further, in the deposition of PW-5 - Ashokbhai Mansukhlal Ganatra - the complainant at Exh.15, the trial Court has noted that there were four accused. One of them is absconding. Therefore, it shows that there were total four accused involved in the commission of offence. Whereas, on plain reading of the complaint given by the complainant, there were three accused, who have made reiki before commission of offence and two have committed an offence. Therefore, there is material contradiction in the number of accused.
9.5 Looking to the evidence of PW-15 - Biharilal Kanjibhai Purohit Page 5 of 16 Downloaded on : Wed Apr 06 21:08:56 IST 2022 R/CR.A/732/1998 JUDGMENT DATED: 04/04/2022
- Police Sub Inspector of Rajkot City 'B' Division Police Station, Rajkot at Exh.42, the name of accused No.2 - Abbas was not there at all. He has stated that from the evidence of all the witnesses, accused No.2 - Abbas has not committed any offence.
Further, the said witness has clearly stated in his cross- examination that from the statements of all the witnesses recorded by him, the name of accused No.3 - Sultan was not there at all. Therefore, it seems that accused Nos.2 and 3 were not involved in the commission of offence at all.
9.6 From the evidence of PW-5 - Ashokbhai Ganatra - the complainant at Exh.15, he has stated that after about three months from the commission of offence, the T.I. parade of the accused was done. It is noted that, the manner and method in which the T.I. parade was done smacks a lot. The trial Court has rightly observed in its judgment that before T.I. parade, the accused was presented before the complainant.
It is necessary to note that from Panchnama of T.I. parade, it is clearly found that all the dummy persons are from different age group and Panchnama does not speaks about recording of the description of facts of these persons. This Hon'ble Court in the case of State of Gujarat versus Mahmad @ Munno Usmanbhai Chauhan reported in 1996 (2) GLR 821 has considered the aspect of Identification Parade and observed as under :
"(H.R. Shelat, J.)
8. Much has been emphasized upon the indetification parade. Mahesh P. Pandya, the Deputy Mamlatdar and Executive Magistrate, held the Page 6 of 16 Downloaded on : Wed Apr 06 21:08:56 IST 2022 R/CR.A/732/1998 JUDGMENT DATED: 04/04/2022 identification parade. His evidence is recorded at Exh.
17. Before we discuss about his evidence, we may refer to the decision of this Court rendered in the case of Motilal Gajarbhai Chasisiya v. State of Gujarat, 1988(1) GLH 264, wherein it is laid down that, while holding the indetification parade, care should be taken to procure the dummies of nearly the same age and physique of the accused, so that the accused may not be wrongly identified, and involved with the crime. In this case, we find the indetification parade held was perfunctory and an empty formality also. Nothing has been mentioned in the I. P. panchnama (Exh. 15) of what height the dummies were. The Deputy Mamlatdar selected the dummies of the age of 20, 32, 43, 36 and 27 years. He did not take care to select the dummies falling within the same age group. The persons having similar physique were also not selected. It seems the Executive Magistrate did not ascertain the description of the respondent so as to select almost similar dummies. Description of the persons selected as the dummies is also not mentioned in the panchnama, but with a view to fill up the gaps that remained in the panchnama, the Deputy Mamlatdar has made rectifying statement at the time of his evidence. The panchas selected were the managers of the mid-day meal scheme. The panch witness (Exh. 14) has made it clear that they had to obtain the permit from the Mamlatdar's office for the mid-day meal scheme. Both the panchas were, therefore, not above the dominating effect of the Executive Magistrate. The panchas will, therefore, like to be attuned to the requirements of the prosecution Page 7 of 16 Downloaded on : Wed Apr 06 21:08:56 IST 2022 R/CR.A/732/1998 JUDGMENT DATED: 04/04/2022 and will never be impartial and bold. The dummies from the village of the respondent were not selected. In view of such circumstances, it was easy for Bhikhiben to single out the respondent. The identification parade held, therefore, cannot be termed veracious and credible, and consistent with the law made clear in the above referred decision. The learned Judge has elaborately dealt with the point of the identification parade assigning adequate reasons. We do not find any reason to disagree with him. We, therefore, cannot agree with the submission made on behalf of the appellant in this regard.
(A.N. Divecha, J. - concurring)
6. In order to establish the identity of the respondent connecting him with the offences with which he stood charge at trial, the prosecution undertook the holding of the identification parade. It was done by the Executive Magistrate at the relevant time. His testimony has been recorded at Exh. 17 on the record of the case. The outcome of the identification parade has been reduced to writing and it is at Exh. 15 on the record of the case. The learned trial Judge has minutely scrutinised the evidence in that regard and highlighted quite a few infirmities found therein. The infirmities galore in the identification parade would leave no room for doubt that what was done was a mere empty formality. The Executive Magistrate had done his job very casually and in a cavalier and perfunctory manner."Page 8 of 16 Downloaded on : Wed Apr 06 21:08:56 IST 2022
R/CR.A/732/1998 JUDGMENT DATED: 04/04/2022 9.7 It is also required to note that the police has not covered the face of the accused persons when they had taken to the Court and even they have brought for T.I. parade from the police station and for that also, benefit should be given to the accused. This aspect has been considered by this Court in the case of Motilal Gajarbhai Chasisiya versus State of Gujarat reported in 1988 (1) GLH 264.
9.8 The Test Identification Parade is a weak piece of evidence and the Hon'ble Apex Court in the case of Md. Sajjad alias Raju alias Salim versus State of West Bengal reported in AIR 2017 SC 642 has observed as under :
"15. In the case in hand, apart from the fact that there was delay in holding the Test Identification Parade, one striking feature is that none of the concerned prosecution witnesses had given any identification marks or disclosed special features or attributes of any of those four persons in general and the accused in particular. Further, no incident or crime had actually taken place in the presence of those prosecution witnesses nor any special circumstances had occurred which would invite their attention so as to register the features or special attributes of the concerned accused. Their chance meeting, as alleged, was in the night and was only for some fleeting moments.
16. In Subash v. State of U.P. 2, the aspects of delay as well as absence of any special features for identification and the effect thereof were considered by this court in paragraphs 8 and 9 as under:-Page 9 of 16 Downloaded on : Wed Apr 06 21:08:56 IST 2022
R/CR.A/732/1998 JUDGMENT DATED: 04/04/2022 "8. Apart from this infirmity we further find that Shiv Shankar was not put up for test identification parade promptly. The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features.
9. Over and above all these things there remains the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade. It is, no doubt, true that all the three witnesses had correctly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval. It is relevant to mention here that neither in Exhibit Kha-1 nor in their statements during investigation, the eye-witnesses have given any descriptive particulars of Shiv Shankar. While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had "sallow" complexion. If it Page 10 of 16 Downloaded on : Wed Apr 06 21:08:56 IST 2022 R/CR.A/732/1998 JUDGMENT DATED: 04/04/2022 is on account of these features the witnesses were able to identify Shiv Shankar at the identification parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then. Thus in the absence of any descriptive particulars of Shiv Shankar in Ex.
Kha-1 or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of the assailants of Ram Babu. As pointed out in Muthuswami v.
State of Madras 3where an identification parade was held about 2½ months after the occurrence it would not be safe to place reliance on the identification of the accused by the eye-witnesses. In another case Mohd.
Abdul Hafeez v. State of A.P. 4It was held that where the witnesses had not given any description of the accused in the first information report, their identification of the accused at the sessions trial cannot be safely accepted by the court for awarding conviction to the accused. In the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the Page 11 of 16 Downloaded on : Wed Apr 06 21:08:56 IST 2022 R/CR.A/732/1998 JUDGMENT DATED: 04/04/2022 identification parade."
17. Similarly the issue of delay weighed with this court in Musheer Khan v. State of M.P. 5 in discarding the evidence regarding test identification as under:
"8. Insofar as the identification of A-5 is concerned that has taken place at a very delayed stage, namely, his identification took place on 24-1-2001 and the incident is of 29- 11-2000, even though A-5 was arrested on 22- 12- 2000. There is no explanation why his identification parade was held on 24- 1-2001 which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. No reliance ought to have been placed by the courts below or the High Court on such delayed TI parade for which there is no explanation by the prosecution.""
9.9 Further, there was a joint recovery Panchnama at Exh.22. The witnesses of the said Panchnama has not supported the case of the prosecution at all. Also, joint recovery Panchnama is not acceptable to prove the case against the accused. The trial Court has rightly observed this aspect.
9.10 The trial Court has rightly observed that there was no satisfactory reason for doing T.I. parade late. The investigating officer has not explained properly for the same. Therefore, this aspect also affects the case of the prosecution and which tilts the Page 12 of 16 Downloaded on : Wed Apr 06 21:08:56 IST 2022 R/CR.A/732/1998 JUDGMENT DATED: 04/04/2022 balance in favour of the accused.
9.11 Further, there were material contradictions in the deposition of the complainant. The trial Court has rightly observed the same in Para : 35 of the impugned judgment. Also, the trial Court has rightly considered the fact that the denomination of the amount was not clearly and specifically mentioned by the complainant.
9.12 The trial Court has observed that the entire case is based on complaint, T.I. parade and the evidence of cycle repairing shop keeper. The trial Court has noted that except the evidence of PSI Mr. Purohit at Exh.42, no other independent or corroborative evidence is available. The trial Court has rightly and elaborately considered the entire evidence on record. There is no infirmity in the impugned judgment.
9.13 Under the circumstances, the learned trial Judge has rightly acquitted the respondents - accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal.
10. In view of above and on our own analysis and re-appreciation of the evidence, we do not find any infirmity or compelling reasons to interfere with the order of acquittal recorded by the trial Court. We have also perused the judgment and findings given by the trial Court and find that the same are in accordance with law.
11. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly Page 13 of 16 Downloaded on : Wed Apr 06 21:08:56 IST 2022 R/CR.A/732/1998 JUDGMENT DATED: 04/04/2022 erroneous or demonstrably unsustainable (Ramesh Babulal Doshi V. State of Gujarat - (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
12. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:
"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."
13. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such Page 14 of 16 Downloaded on : Wed Apr 06 21:08:56 IST 2022 R/CR.A/732/1998 JUDGMENT DATED: 04/04/2022 appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
14. In the very recent judgment reported in 2021 (15) SCALE 184 in the case of Mohan @ Srinivas @ Seena @ Tailor Seena V/s. State of Karnataka, the hon'ble Apex Court has observed the scope of section 378 of the Code in Para : 20 to 22 as under :-
"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial Court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the Page 15 of 16 Downloaded on : Wed Apr 06 21:08:56 IST 2022 R/CR.A/732/1998 JUDGMENT DATED: 04/04/2022 nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial Court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial Court decides a case on its own merits despite its sensitivity.
22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark."
15. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.
16. In view of the above and for the reasons stated above, present Criminal Appeal deserves to be dismissed and is accordingly dismissed.
(S.H.VORA, J) (SANDEEP N. BHATT,J) M.H. DAVE Page 16 of 16 Downloaded on : Wed Apr 06 21:08:56 IST 2022