Gujarat High Court
State Of Gujarat vs Vinod Parshottam @ Nathalal & on 17 November, 2017
Bench: Abhilasha Kumari, B.N. Karia
R/CR.A/167/1996 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT
AHMEDABAD
CRIMINAL APPEAL No. 167 of 1996
With
CRIMINAL REVISION APPLICATION No. 47 of 1996
FOR APPROVAL AND SIGNATURE :
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
==============================================================
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 ?
==============================================================
STATE OF GUJARAT....Appellant(s)
Versus
VINOD PARSHOTTAM @ NATHALAL &
3....Opponent(s)/Respondent(s)
==============================================================
Appearance : [Criminal Appeal No. 167 of 1996]
Ms JIRGA JHAVERI, ADDL PUBLIC PROSECUTOR for the Appellant(s)
No. 1
HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s) No.
1-4
Mr MADANSINGH O BAROD, ADVOCATE for the Respondent(s) No. 1 -
4
Appearance : [Criminal Revision Application No. 47 of 1996]
Mr M.J BUDDHBHATI, Advocate for the Applicant-Org. Complainant
Ms. JIRGA JHAVERI, ADDL PUBLIC PROSECUTOR for the Opponent-
State
Page 1 of 34
HC-NIC Page 1 of 34 Created On Sat Nov 18 02:10:25 IST 2017
R/CR.A/167/1996 CAV JUDGMENT
HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondents
Mr MADANSINGH O BAROD, ADVOCATE for the Respondents-Accused
==============================================================
CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
and
HONOURABLE Mr. JUSTICE B.N. KARIA
17th November 2017
CAV JUDGMENT (PER : HONOURABLE Mr. JUSTICE B.N. KARIA)
The appellant-State of Gujarat has filed Criminal Appeal No. 167 of 1996 under Section 378 of the Code of Criminal Procedure, 1973 ["CrPC" for brevity] challenging the judgment and order dated 13th November 1995 passed by the court of learned Sessions Judge, Jamnagar in Sessions Case No. 68 of 1994 acquitting the respondents-accused of the offence with which they were charged, and whereas, Criminal Revision Application No. 47 of 1996 has been preferred by the petitioner-original complainant under Sections 397 & 401 CrPC against the very order of acquittal.
As per the case of prosecution, complainant- Mangaldas Ladakbhai Mangi, father of his deceased son-Parshottam, lodged a complaint in respect of murder of his son in the broad day light on 17th March Page 2 of 34 HC-NIC Page 2 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT 1994 at the hands of the respondents herein. The genesis of grudge against the deceased was that the deceased accompanied one lady named Zaverben, her husband-Laljibhai Vashrambhai and Chaturbhuj Devji for lodging a police complaint against the respondents herein, who allegedly molested the said Zaverben on 9th March 1994 during night hours by the respondents herein, by forcibly entering into her house and thereby making illegal demand when her husband was not available at home. Thus, on 17th March 1994, Zaverben, her husband Laljibhai Vasharambhai, the deceased Parshottambhai Mangalbhai and Chaturbhuj Devji went to lodge a complaint in that regard in the auto rickshaw of the witness-Pravinbhai Muljibhai at around 2:30 O'clock. While they were returning after lodging the complaint, the accused persons, keeping enmity for lodging of the said complaint and in furtherance of their common intention to kill the deceased Parshottambhai Mangalbhai and to cause grievous injuries to the Page 3 of 34 HC-NIC Page 3 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT others, tried to stop rickshaw at around 3 O'Clock, near the cross roads of Digvijay Plot, Sheri No- 58/63 in Jamnagar. The said auto-rickshaw was driven by Pravinbhai Muljibhai, witness Chaturbhuj Devji was sitting adjacent to him on the front seat, Zaverben and Lilabhai [husband and wife] and deceased Parshottambhai were sitting on back seat. As the rickshaw slowed down, accused Vinod Nathalal, in furtherance of their common intention, stood with a naked sword. Thereafter, with an intention to stop the rickshaw, he aimed the sword near throat of rickshaw driver Pravinbhai. As Pravinbhai stopped the rickshaw and asked to keep away the sword, accused Vinod inflicted a sword blow on his hand and caused injury on left hand fingers. Thus, the accused have committed a punishable offence u/s 324 and 34 of IPC. Further, to accomplish the above common intention, accused Ramesh Savji gave a knife blow on the left side of stomach of the deceased Parshottambhai Mangalbhai, when he was trying to come out of the rickshaw. Page 4 of 34 HC-NIC Page 4 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT Thereafter, when the deceased Parshottambhai Mangalbhai ran towards the market in Sheri No. 63, the accused Vinod, armed with sword and the accused- Ramesh, Madhavji and Parshuram Kevalram armed with knives ran after Parshottambhai Mangalbhai and caught him. Thereafter, the accused inflicted repeated blows with their weapons and caused death of the deceased- Parshottambhai. Thus, all the accused have committed an offence punishable under Sections 302 and 34 of IPC read with Section 135(1) of the Bombay Police Act by violating Notification of prohibition to keep arms which was in force in the Jamnagar district, by possessing deadly weapons.
On reading over the above charge before all the accused and explaining the same to them, they pleaded not guilty and claimed to be tried. With respect to their demand to proceed the trial further, their statement in this regard were recorded at Exhibit Nos. 3, 4, 5, 6, respectively.
As per the complaint [at Exhibit no-57] lodged by Page 5 of 34 HC-NIC Page 5 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT Lilabhai Vasharam on 17th March 1994, short facts of the prosecution case are that when the complainant returned to his home from Kachchh at around seven to eight O'clock in the night on 09th March 1994, his wife informed him that the accused Vinod Nathalal entered the house at around 12 O'clock in night of the Saturday and made an illicit demand by holding her hand. After discussing this fact with neighbours, the complainant went to Police Station on 17th March 1994 in an auto rickshaw of Pravinbhai Muljibhai alongwith Parsottam Mangalbhai and witnesses Chaturbhuj and Zaverben. While they were returning at about 3 O'clock after lodging the complaint, they saw Vinod Nathalal was standing near Digvijay Plot cross roads at Street no. 58/63 armed with a sword. He threatened them with sword and told them to stop auto-rickshaw. He put his sword near the neck of Pravinbhai, therefore Pravinbhai stopped rickshaw. In order to keep the sword at bay, Pravinbhai pushed his hand and therefore suffered simple injury on his finger in the left hand. At that time, Page 6 of 34 HC-NIC Page 6 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT Parsottam Mangalbhai tried to get down from the rickshaw from the right side, but Ramesh Savji, who was standing on the right side, inflicted a blow of knife on right portion of his stomach. Blood immediately started flowing out and therefore complainant's shirt and pent was stained with blood. Meanwhile, accused Vinod Nathalal told the persons sitting in rickshaw to get down, therefore, complainant alongwith his wife and Chaturbhuj, Parsottam Mangalbhai got down, and in the meanwhile rickshaw driver fled away and Parsottambhai started running towards Street no. 63, and whereas, Vinod Nathalal started chasing him with sword in his hand, other accused persons ran after him with knife in their hands. Thereafter they caught hold of the deceased and started stabbing him for multiple times, at that time complainant, his wife and Chaturbhuj Devji shouted, "Do not beat him". Due to injuries sustained Mangalbhai fell down, and thereafter all the four persons ran away towards market place, situated at Street no. 63, and injured Parshottam Page 7 of 34 HC-NIC Page 7 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT Mangalbhai died on the spot.
Police Sub-Inspector Mr. Gameti took the complaint and forwarded the same to Witness No. 10- P.S.O. Mr. Ghelubha Jadeja for its registration. Thereafter, Mr. Gameti drew panchnama of the scene of crime vide exhibit no. 58 and filled inquest of dead body of the deceased [Exh. 25]. Thereafter, Police Inspector Mr. Merunjay took over charge of investigation and arrested accused persons, obtained their remand, seized weapons and vehicles used in the commission of the offence, forwarded muddamal to Forensic Science Laboratory, Junagadh for examination. As sufficient evidence was found against the accused persons at the end of investigation, he filed charge- sheet against accused persons in the court of Chief Judicial Magistrate, Jamnagar on 22nd June 1994. Thereafter, as trial of the said offence was exclusively triable by the Sessions Court, learned Chief Judicial Magistrate committed it to the Sessions Court vide order dated 29th June 1994 under Section 209 Page 8 of 34 HC-NIC Page 8 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT CrPC. To prove the charge against the respondents- accused, total 13 witnesses were examined by the prosecution [Exhs. 10 to 15; 17 to 20; 55, 56 & 59]. The complaint [Exh. 57] given by complainant Liladhar, Discovery panchnama, report of Forensic Science Laboratory, Post Mortem report of the deceased Parsotambhai, etc. have been adduced as documentary evidences for the State.
After completion of the evidences of the prosecution, further statement of the accused were recorded under Section 313 of the Code of Criminal Procedure, 1973.
That, on overall appreciation of evidence - both ocular as well as documentary, by impugned judgment, the learned trial Judge acquitted the accused by giving the finding that the prosecution has failed to prove the case against the accused.
Feeling aggrieved and dissatisfied with the impugned judgment and order dated 13th November 1995 passed by the learned trial Judge acquitting the Page 9 of 34 HC-NIC Page 9 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT accused, the prosecution has preferred by the Criminal Appeal under Section 378 of the Code, and whereas, original complainant has preferred Criminal Revision Application No. 47 of 1996 under Sections 397 & 401 CrPC against the very order of acquittal of the respondents-accused.
We have heard extensively learned Additional Public Prosecutor Ms. Jirga Jhaveri for the appellant- State, Shri M.J Bhuddbhati, learned advocate appearing on behalf of the complainant-revisionist and Shri Madansingh O Barod, learned advocate for the respondents-accused.
Learned APP has submitted that the impugned judgment and order passed by the learned trial Judge acquitting the accused is contrary to law, facts and evidence on record of the case. That, there are ample direct as well as indirect evidence available on the record to connect the accused with the crime alleged, however, learned trial Judge has acquitted the accused and thereby committed a grave error. That, undue Page 10 of 34 HC-NIC Page 10 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT importance has been given to the evidence of Pravinbhai and Zaverben. That, the learned trial Judge has failed to appreciate testimony of eye-witness Dhirajlal Parshottambhai, who narrated whole incident. That, he was an independent witness, who was driving auto rickshaw and having reached at the place of offence, when it actually took place in his presence. That, this witness also knows the parties and has witnessed the occurrence. That, there was no reason to disbelieve the version of this witness-Dhirajlal who was present and has narrated the incident in his testimony. Learned APP further urged that the evidence of panch- Vitthalbhai Nandabhai has not been properly appreciated by the Court below. According to her, this witness has also supported the discovery of weapons at the instance of the accused persons, which corroborates with the version of witness-Dhirajlal Parshottambhai. That, the prosecution has clearly proved that death of Parshottambhai was a homicidal death and therefore, medical evidence in respect of Page 11 of 34 HC-NIC Page 11 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT injuries sustained also supports version of the eyewitness, and hence, proper weightage ought to have been given to his evidence. That, the learned trial Judge has committed grave error in discarding evidence of eye witness, treating him as a "chance witness". That, the Court below has committed an error in not taking into consideration the fact that as the eye witness, who did not support the prosecution, belongs to the caste of the accused and they were living in the same area, and therefore, they had not said anything against the accused. That, irrelevant facts were considered by the trial Court, while acquitting the accused. That, the reasons given by the learned trial Judge while acquitting the accused are improper, perverse and unwarranted. That, the FSL and Serological reports produced on record by the prosecution clearly support the prosecution case, as it being a scientific evidence available with the prosecution. Lastly, learned APP urged this Court to allow the Appeal by quashing and setting aside the Page 12 of 34 HC-NIC Page 12 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT impugned judgment and order dated 13th November 1995 passed by the court of learned Sessions Judge, Jamnagar in Sessions Case No. 68 of 1994 acquitting the respondents-accused.
Shri M.J Bhuddhbhatti, learned advocate appearing on behalf of the revisionist-original complainant in Criminal Revision Application No. 47 of 1996 has supported arguments advanced learned APP appearing on behalf of the appellant-State and contended that eye-witness Dhirajlal was never a chance witness; as observed by the trial Court, as he was an eyewitness, who was actually present at the time of crime being by the accused persons. By inviting attention of this Court to the cross examination of this witness, learned advocate further submitted that the presence of this witness was clearly established by the prosecution, and therefore, being a natural witness, evidence of Dhirajlal was required to be considered in a proper way, as he is not a chance witness. However, other witnesses having fully supported the prosecution, but to the extent of Page 13 of 34 HC-NIC Page 13 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT their deposition and their supporting the prosecution case should be accepted by the Court. That, motive to commit murder of the deceased Parshottambhai was also clearly established, as it was the case of the prosecution from the very beginning that molestation of a lady named Zaverben and therefore, the prosecution witness had gone to lodge a complaint before the Police against the accused persons. Hence, the learned trial Judge has committed a grave error in not believing the prosecution case and thereby acquitting the accused from the charge. It was therefore requested by him to quash and set-aside the impugned judgment and order by allowing revision application.
Per contra, learned advocate Shri Madansingh Barod appearing on behalf of the respondents accused has submitted that names of the accused persons were never disclosed by the passengers who were allegedly eye witness to the incident in their evidence before the Court. That, the prosecution has failed to prove their presence at the scene of offence. It was further Page 14 of 34 HC-NIC Page 14 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT submitted that only one witness Dhirajlal Parshottam who was present at the place of occurrence was rightly held as a chance witness because he was staying in Street No. 63 of Jigvijay Plot whereas the incident took place at a different place. That, father's name of any of the accused were known to this witness as per his testimony before the Court, however, their names were disclosed by him in the statement before the Police. That, he was not staying nearby the place of the incident nor he was doing any business at the same place. That, he was the only a passerby from Street No. 64 and had seen the incident which was a co-incident. As per his evidence, he had never enquired with PW- Zaverben. That, there is no possibility that this witness was in a position to be an eye witness of the offence, as his presence at the scene of offence was clearly doubtful. That, PW-11 Dhirajbhai Ratansinh Gajra, who is related to the deceased, has not supported the prosecution case. That, no vehicle was found at the scene of offence. That, auto-rickshaw driver Pravinbhai Page 15 of 34 HC-NIC Page 15 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT who would have also sustained injury in the alleged incident has turned hostile by not supporting the prosecution. That, the relatives as well as passengers sitting in the auto-rickshaw have not supported the prosecution case at all. That, discovery of weapons and panchnama prepared in the presence of panchas, as relied upon by the prosecution, has not been proved before the trial Court. That, the prosecution case is based only on a singular eyewitness, since others have turned hostile. That, no motive was established by the prosecution, and hence, considering entire evidence led by the prosecution, the trial Court has rightly acquitted the accused, since the prosecution has grossly failed to prove the case beyond reasonable doubt. Hence, it was requested by Shri Barod, learned advocate for the respondents to dismiss the Appeal as well as Revision Application and thereby confirm the judgment and order of acquittal dated 13th November 1995 passed by the court of learned Sessions Judge, Jamnagar in Sessions Case No. 68 of 1994.
Page 16 of 34 HC-NIC Page 16 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT In an appeal against acquittal filed under Section 378 CrPC or in a revision application preferred by the original complainant under Section 397/401 CrPC, as such there is no limitation on the Appellate Court to review the evidence. But, at the same time, if on facts as well as on law, conclusion drawn by the trial Court based on appreciation of evidence unless compelling, cogent and substantial reasons appear for interference and when findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable, acquittal is not to be reversed or disturbed. When acquittal is based on the surmises and conjectures and not substantiated by law and evidence on record, an Appellate Court may re-appreciate and review the entire evidence to see that undue benefit is not given to the accused. Now, it is well settled that even if two views are possible, the Appellate Court shall not ordinarily interfere with the judgment of acquittal in a routine manner unless the judgment of the trial Court is per se wrong on facts and on law or perverse, Page 17 of 34 HC-NIC Page 17 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT substituting its own views by the High Court is not permissible. That in case of acquittal, it is to be borne into mind by the Appellate Court that there is double presumption in favour of the accused that firstly, presumption of innocence in favour of a guilty on the premise that every person should be presumed to be innocent unless he is proved to be guilty by the Court of Law, and secondly, when accused secures an acquittal, such presumption of innocence is reinforced and reaffirmed by the trial Court. That it is further well settled that even if two views are possible in an appeal against acquittal, the views taken by the trial Court if one of the possible views, then the view which favours the acquittal is to be not disturbed or interfered with.
Now, before we proceed to discuss the evidence, we would like to refer to certain principles culled out from various decisions of the Apex Court for exercise of powers under Section 378(1)(3) r/w. Section 383 & 397 of the Code, which are as under:
[1] In the case of Shivaji Sahebrao Bobade Page 18 of 34 HC-NIC Page 18 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT & Anr. v. State of Maharashtra [AIR 1973 SC 2622] the Apex Court scanned decision of Privy Council in Sheo Swarup v. King Emperor 61 Ind App. [AIR 1934 P.C. 227(2) in the context of the then Section 417 of the Criminal Procedure Code and parameters laid down for the High Court to interfere in the appeal against acquittal. The Apex Court also considered the case of Sawant Singh v. State of Rajasthan [AIR 1961 SC 715] and Harbans Singh v. State of Punjab [AIR 1962 SC 439] and in para 7 held as under :
"7. This Court had ever since its inception considered the correct principle to be applied by the Court in an appeal against an order of acquittal and held that the High Court has full power to review at large I the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed. The, Privy, Council in Sheo Swarup v. King Emperor Sheo Swarup v. King Emperor 61 Ind App. 398 = AIR 1934 P.C. 227(2) negatived the legal basis for the limitation which the several decisions of the High Courts had placed on the right of the State to appeal under section 417 of the Code. Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate tribunal", that no distinction has drawn "between an appeal from an order Page 19 of 34 HC-NIC Page 19 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that power unless it be found expressly stated in the Code". He further pointed out at p. 404 that, "the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been, acquitted at his trial, (3) the right of the accused lo the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses". In Sanwat Singh & Others v. State of Rajasthan (AIR 1961 SC 715) after an exhaustive review of cases decided by the Privy Council as well as by this Court, this Court considered the principles laid down in Sheo Swarup's case and held that they afforded a correct guide for the appellate court's approach to a case against an order of acquittal. It was again pointed out by Das Gupta, J.
delivering the judgment of five Judges in Harbans Singh and Another v. State of Pubjab (AIR 1962 SC 439). "In many cases, especially the earlier ones the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on `compelling and substantial reasons' and has expressed the view that unless such reasons are present an Appeal Court should not interfere with an order of acquittal (vide Suraj Pal Singh v. The State (AIR 1952 SC 52); Ajmer Singh v. State of Punjab (AIR 1953 SC 76);
Puran v. State of Punjab (AIR 1953 SC Page 20 of 34 HC-NIC Page 20 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT
458). The use of the, words 'compelling reasons' embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words 'compelling reasons'. In later years the Court has often avoided emphasis on 'compelling reasons' but nonetheless adhered to the' view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine .not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused "and should interfere only if satisfied after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable. (Vide Chinta v. The State of Madhya Pradesh, Criminal Appeal No. 178 of 1959 decided on 18111960 (SC), Haibatkha Pathan v. The State of Bombay Criminal Appeal No. 38 of 1960 decided on 14121960 (SC)."
"...... On close analysis, it is clear that the principles laid down by the Court in this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the Court of Appeal must examine the evidence with particular care, must examine also the reason on which the order of acquittal was based and should interfere with, the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the Page 21 of 34 HC-NIC Page 21 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT lower court is clearly an unreasonable one that itself is a "compelling reason' for interference. For, it is a court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established."
In para 8 of the above judgment, the Apex Court held that behavioural pattern and perceptive habits of the witnesses have to be judged by the trial court while appreciating the evidence when such witnesses are from rural area.
In para 8 of the above judgment, the Apex Court held as under :
"8. Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. The learned Sessions Judge as at some Page 22 of 34 HC-NIC Page 22 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT length. dissected the evidence, spun out contradictions and unnatural conduct, and tested with precision the time and sequence of the events connected with the crime, all on the touchstone of the medical evidence and the postmortem certificate. Certainly, the court which has seen the witnesses depose,has a great advantage over the appellate judge who reads the recorded evidence in cold print, and regard must be had to this advantage enjoyed by the trial judge of observing the demeanour and delivery, of reading the straightforwardness and doubtful candour, rustic naivete and clever equivocation, manipulated conformity and ingenious unveracity, of persons who swear to the facts before him. Nevertheless, where a judge draws his conclusions not so much on the directness or dubiety of the witness while on oath but upon general probabilities and on expert evidence, the court of appeal is in as good a position to assess or arrive at legitimate conclusions as the court of first instance. Nor can we make a fetish of the trial judge's psychic insight".
[2] In the case of State of U.P. v. Anil Singh [AIR 1988 SC 1998], the Apex Court considered the parameters in appeal against acquittal and in paras 13 to 16 held as under:
"13. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire Page 23 of 34 HC-NIC Page 23 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matangini, 24 Cal.W.N. 626 : (AIR 1919 PC 157), the Privy Council had this to say (at 628)(of Cal WN) : (at p.158 of AIR):
"That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly unture, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence."
15. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, Page 24 of 34 HC-NIC Page 24 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to PG No. 618 remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. In the instant case, the trial judge and the High Court have accepted the fact that the report to Police was lodged by Prahlad Kumar (PW 1) at 9.15 p.m. That means that the report disclosing the name of accused did reach the Police Station immediately after the murder. This is a positive finding in favour of prosecution. The report contains all particulars including the motive for the crime and the manner in which it was committed. It gives us the names of eyewitnesses as well. It also gives a clear picture as to what KK did after the attack and how the accused made good his escape." Having considered facts of the case, submissions made by learned advocates appearing on behalf of the respective sides, it is not in dispute that the death of Page 25 of 34 HC-NIC Page 25 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT Parshottambhai was a homicidal death. From the evidence of Dr. Gupta, who performed postmortem examination of the dead body of the deceased [Exhs. 15 & 16], it transpires that there were in all nineteen external injuries sustained by the deceased and all of them were pre-mortem. As per the opinion of this witness; except injuries No. 13, 15 & 17, remaining injuries were all possible due to sharp cutting weapon and the cause of death opined is due to shock and hemorrhage caused due to multiple injuries; particularly stab injury of chest which has penetrated upto the heart. Thus, from the evidence of this PW-Dr. Gupta, it is not in dispute that the death of deceased was a homicidal death, and therefore, the prosecution has been able to prove the homicidal death caused due to fatal injuries sustained by the deceased. Now, it would be necessary for the prosecution to prove that such fatal injuries caused to the deceased were at the hands of the respondents-accused.
Reverting back to the facts of the case, as per the Page 26 of 34 HC-NIC Page 26 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT prosecution story, in an auto-rickshaw upto the place of offence, the complainant-Lilabhai Vashrambhai, PW- Chatrabhuj Devjibhai, PW-Zaverben Lilabhai and rickshaw driver Pravinbhai Muljibhai Vinodbhai were present. All of them have been examined by the prosecution at Exhs. 10, 11, 14 and 13 respectively. In addition, the prosecution also examined Dhirajbhai Ratansinh Gajra and Dhirajlal Parshottambhai at Exhs. 55 & 12 respectively. Now, if we analyze evidence of PWs-Liladharbhai Vashrambhai, Chatrabhuj Devjibhai, Zaverben, Dhirajlal Ratansinh and rickshaw driver- Pravinbhai, though to some extent they have extended support to the prosecution case, but they were not in a position to say as to who were assailants. Not only that, they were not in a position to identify any of the accused, though they were very much present in the court room and on the contrary, upon these witnesses having been shown the respondents herein as accused persons, they denied of their having been assailants. Thus, considering the deposition of these four Page 27 of 34 HC-NIC Page 27 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT witnesses, it clearly transpires that none of them have supported the prosecution case; as deserved. It appears that thereafter permission for their cross examination was sought for and accordingly, requisite permission came to be granted by the learned trial Judge and thereafter, further cross examination was made of all these witnesses, but during their cross- examination also, they have not extended support to their statements recorded by the Police. It is pertinent to note that none of the witnesses have turned hostile by the Court only the permission for cross examination was sought by the prosecution, and accordingly, permission was granted. From their deposition, it appears that none of them have supported the prosecution case, as their testimonies were not supporting or found to be helpful to the prosecution. Now, if we look at, and re-appreciate the evidence of PW-Dhirajlal Parshottambhai, who was examined by the prosecution at Exh. 12, as per his version, when he was passing by Street No. 58 of Digvijay Plot from Page 28 of 34 HC-NIC Page 28 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT Street No. 64 in his auto-rickshaw, at that point of time, he witnessed the incident by halting his vehicle at a distance of some 7-8 fts away. As per his version, Vinodbhai [who was armed with sword], Rameshbhai, Madhavji and Parshottam Kevalram were standing in front of the autorickshaw armed with knife. The said Vinodbhai ordered Lilabhai and others to alight from the vehicle and when Parshottambhai got out of his rickshaw, he was inflicted a knife blow on his left side abdomen by Ramesh and in the interregnum, all others sitting in the rickshaw fled away from the scene, however, few drops of blood fell on Lilabhai's clothes. According to this witness, when injured Parshottambhai tried to rescue himself, the accused persons chased him from behind, and one by one inflicted knife blows over his body and last such blow on the forehead of deceased was inflicted by Vinod. Thereafter, all of them ran away. Thus, considering the evidence led by the prosecution, presence of this witness at the scene of offence appears to be doubtful because he is not Page 29 of 34 HC-NIC Page 29 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT residing nearby the place of offence nor doing anything related to business in the locality. It was co-incidental for him to pass by Street No. 64 where incident had happened, and therefore, it can be said that he is a chance witness examined by the prosecution. He has clearly stated in his deposition that names of the father of respective accused persons were known, and therefore, in his statement before the Police, he could record the same, but in his deposition before the Court, he has stated to have been knowing nothing about the names of father of the accused persons, which itself creates doubt about his initially recording the statement or even for that matter, witnessing the crime. Hence, the trial Court has rightly not believed the version of this witness. Even stretching further our analysis on this aspect, as per evidence of this very witness, he had not enquired anything in respect of the incident from PW-Zaverben or PW-Lalitbhai. Now, if we consider evidence of PW-Zaverben, in her cross examination, she had admitted of her having a meeting Page 30 of 34 HC-NIC Page 30 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT with both of them ie., Dhirajlal Parshottambhai as well as Dhirajlal Ratansinh. Thus, considering the evidence of PW-Zaverben, it can be said that after an hour of the incident, PW-Dhirajlal Parshottambhai had a meeting with Zaverben in which she was inquired by this witness in respect of the entire incident. If, in fact, he would have been an eye-witness to the offence, there was no earthly reason for him to have a meeting with PW-Zaverben and inquire from her about the incident. Therefore, the learned trial Judge has rightly not considered safe to rely upon his evidence, which falls flat on two aspects narrated hereinabove. Moreover, it would also be equally unsafe to rely on the version of this solitary witness, in absence of any supporting evidence of other four witnesses who were reportedly sitting in the auto-rickshaw.
Even the discovery panchanama, upon which heavy reliance was placed by the prosecution and purportedly having been prepared in accordance with provisions of Section 27 of the Evidence Act, has not Page 31 of 34 HC-NIC Page 31 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT been proved before the trial Court. Now, if we analyze version given in Discovery Panchanama, panch Vithalbhai Nanda [Exh. 17] has stated that these four accused persons were taken near Railway Crossing in a Jeep and from behind the bushes, they took out knives and one sword. The said document appears to be a joint panchnama showing willingness by all the four accused in discovering weapons used in the offence. Moreover, the place from where these weapons were discovered is a public place, and therefore, it is possible that they knew that the accused had hidden these weapons, but it is unsettling to say that such discovery was made at the instance of the accused. Hence, it cannot also be said that I.O has proved discovery of weapons at the instance of accused in accordance with Section 27 of the Indian Evidence Act. Thus, the learned trial Judge has rightly discarded this piece of evidence holding the same to be hardly helpful to the prosecution.
Even, as per the prosecution case, rickshaw driver Page 32 of 34 HC-NIC Page 32 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT Pravinbhai also sustained injury on his left hand finger by a sword blow given by accused Vinod, when the rickshaw driver tried to move the sword, but from the deposition of the said witness-Pravin, it appears that he could not identify the assailant. Moreover, in during the cross examination, he has stated of having sustained no injury, and therefore, this evidence also does not substantiate the prosecution case. Thus, on all counts, prosecution failed to prove charge against the respondents-accused either under Section 324 and/or 302 IPC read with Section 135 of the Bombay Police Act.
No other contention has been raised by the learned APP appearing on behalf of the appellant-State to dislodge the conclusion arrived at by the trial Court.
Consequently, for the reasons recorded hereinabove, this Court finds no reason to interfere with an order of acquittal passed by the trial Court, acquitting the respondents-accused for offence punishable under Sections 302 and Section 135 Page 33 of 34 HC-NIC Page 33 of 34 Created On Sat Nov 18 02:10:25 IST 2017 R/CR.A/167/1996 CAV JUDGMENT Bombay Police Act.
Resultantly, Criminal Appeal fails. Consequently, Criminal Revision Application No. 47 of 1996 stands rejected. Bail bond; if any, stands cancelled.
Registry to transmit the record to the trial Court forthwith.
[Smt. Abhilasha Kumari, J.] [B.N Karia, J.] Prakash Page 34 of 34 HC-NIC Page 34 of 34 Created On Sat Nov 18 02:10:25 IST 2017