Gujarat High Court
State Of Gujarat vs Rupa Ganga Ayar & 3 ... on 17 November, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, B.N. Karia
R/CR.A/29/1995 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 29 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
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
RUPA GANGA AYAR & 3 ....Opponent(s)/Respondent(s)
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Appearance:
MS CHETNA SHAH, ADDL.PUBLIC PROSECUTOR for Appellant(s) No. 1
MR KB ANANDJIWALA, SENIOR ADVOCATE with MR VISHAL K ANANDJIWALA for
Opponent/Respondent No. 1 - 4
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 17/11/2017
CAV JUDGMENT
(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)
1. The appellantState of Gujarat has preferred this appeal under Section378 of the Code of Criminal Page 1 of 42 HC-NIC Page 1 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT Procedure, 1973 ("the Code" for short), against the judgment and order of acquittal passed by the learned Additional Sessions Judge, Kutch at Bhuj, in Sessions Case No.59/1992, whereby all four respondentsoriginal accused have been acquitted of the charge under Section302 read with Section34 of the Indian Penal Code, 1860 ("the IPC" for short).
2. The case of the prosecution, in brief, is that the first informant, Bhara Kaya Ayar, made a complaint before the Adhoi Police Station on 26.05.1992 at 9:30 a.m., to the effect that his younger, brother Jasha Kaya Ayar (the deceased), was cultivating the "vadi" (field) of Amra Megha (PW7) at Gharana and used to live at the said field. The first informant was sleeping in his house on 26.05.1992 when, at about 3:00 a.m. Amra Megha, from village Gharana, accompanied by Kana Ganesh Ayar, came to his house. They informed him that Amra Megha was irrigating the crop of "Rajko" (fodder) in his field and the deceased was sleeping outside the hut in the said field. At about 12:30 p.m. Amra Megha heard the deceased shouting "Bachao bachao" ("save me, save me"), Amra Page 2 of 42 HC-NIC Page 2 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT Megha ran to the hut of the deceased and saw the deceased lying on the ground. Rupa Ganga Ayar, Kana Ganga Ayar, Viram Vaja Rabari and Rana Kana Ayar (respondentsoriginal accused Nos.1 to 4), all of whom had sticks in their hands, were beating the deceased, who was shouting. As soon as Amra Megha came, he asked "who is there and why are you beating him? Leave him", upon which all four accused ran away. Amra Megha saw that the deceased was lying on the ground, bleeding profusely and writhing. Immediately thereafter, he died. Amra Megha left the deceased at the spot and came to Gharana village, where he disclosed the incident to Kana Ganesh (PW9) and Bhaya Bhima (not examined). All three then went to the house of the first informant and informed him regarding the incident, stating that Amra Megha (PW7) had witnessed the incident and recognized all four accused persons. Thereafter, the first informant and his brother, Rana Kaya, accompanied by Amra Megha (PW7), Kana Ganesh (PW9) and Ganesh Lakha, took a "Chhakdo" (one kind of conveyance with six wheels used in rural area) and proceeded towards the field of Amra Megha (PW7). When they reached there they saw the deceased dead and Page 3 of 42 HC-NIC Page 3 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT covered with blood. According to the first informant, the motive for killing his brother was that, fifteen months prior to the incident, the deceased had hit respondent No.1 on the head with a stick and a Police complaint was filed by respondent No.1 in the Police Station in this regard. Nursing a grudge regarding this incident, as alleged by the complainant, the respondents beat his brother to death.
3. Investigation into the complaint commenced and a chargesheet for the offences under Sections302 and 34 of IPC was filed in the Court of the learned Judicial Magistrate, First Class, Bhachau. As the case was sessions triable, the learned Magistrate committed it to the Sessions Court. The learned Sessions Judge framed the charge at Exhibit1 under Sections302 and 34 IPC against the accused persons, who denied their guilt and claimed to try. Accordingly, the case was put to trial.
4. In support of its case, the prosecution examined twelve witnesses and led documentary evidence. After appreciating the oral and documentary evidence on record, the Trial Court arrived at the conclusion that Page 4 of 42 HC-NIC Page 4 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT the prosecution has remained unsuccessful in proving the charge against the respondents, beyond reasonable doubt. Hence, it passed the judgment and order of acquittal that is under challenge before this Court.
5. Ms.Chetna Shah, learned Additional Public Prosecutor has submitted that the incident has been described by PW7, Amra Megha, who is an eyewitness and was present at the scene of offence. The testimony of this witness is corroborated by the Panchnama of the Scene of Offence and the Inquest Panchnama. It is at the field of PW7 that the crime took place and this aspect is mentioned in the Panchnama. 5.1 That there is no enmity between PW7 and the accused, therefore, there is no reason for their false implication.
5.2 That minor contradictions in the testimony of PW 7, such as the ownership and possession of the land and the discrepancies in the measurement of the land ought not to be a reason for discarding his evidence in toto. Such minor contradictions ought to have been be ignored and the genuineness of his testimony ought Page 5 of 42 HC-NIC Page 5 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT to be believed, as he saw the incident happening. 5.3 That the delay of nine hours in lodging the FIR cannot be considered to be fatal, as an explanation has been given regarding the same.
5.4 In support of this submission, reliance has been placed by the learned Additional Public Prosecutor upon a judgment of the Supreme Court in the case of Ravinder Kumar and another Vs. State of Punjab, reported in AIR 2001 SC 3570.
5.5 It is further submitted that, though the Panch witnesses have only partly supported the case of the prosecution, however, the evidence of the Investigating Officer proves the Panchanamas. The contents of the Panchnamas ought to be believed. 5.6 In support of this submission, reliance has been placed upon a judgment of the Supreme Court in the case of Mohd. Aslam Vs. State of Maharashtra, reported in (2001) 9 SCC 362.
5.7 That the weapons of offence have been discovered at the instance of the accused persons. From the Page 6 of 42 HC-NIC Page 6 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT Serological Report, it is clear that all articles contained blood of AB group, which is that of the deceased. That it is a settled position of law that conviction can rest upon the testimony of a sole eye witness; therefore, the testimony of PW7, who has seen the accused persons committing the offence ought to have been believed.
5.8 Lastly, it is submitted that the judgment of the Trial Court, being erroneous and unsustainable in law, may be set aside and the appeal be allowed.
6. Opposing the submissions advanced by the learned Additional Public Prosecutor, Mr.K.B.Anandjiwala, learned Senior Counsel for the respondents has submitted that the case of the prosecution hinges upon the evidence of the sole eyewitness, Amra Megha. The evidence of this witness is unreliable and has rightly not been believed by the learned Judge, who has given cogent reasons for discarding the same, on various grounds. The incident occurred in the field of Amra Megha (PW7), but no document of ownership of the field has been produced. The 7/12 extract produced on record at Exhibit34, clearly shows that the land is Page 7 of 42 HC-NIC Page 7 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT in the name of Aamad Bachu Gagda. Though, in his deposition, PW7 states that he has not received the possession of this field because he had not paid the entire money, however, the testimony of this witness is thoroughly unreliable on this, as well as other counts.
6.1 PW7, the socalled eyewitness, after purportedly witnessing the murder, could have immediately gone to the Adhoi Police Station to lodge an FIR. However, he contacted PW9, Kana Ganesh and both of them then went to the house of the first informant and brother of the deceased as well as the Sarpanch of village Lakadia and informed them about the incident at about 3:00 a.m., naming the accused persons. They did not lodge the FIR after the incident but all five persons, namely, the first informant, his brother Rana Kaya, PW7, PW9 and one Ganesh Lakha went in a "Chhakdo" to the field of PW7 and they saw the dead body. It is only thereafter that they went to the Police Station to lodge an FIR.
It was 9.30 a.m. when the FIR was lodged and nine hours had elapsed by then. No cogent explanation is coming forth as to why the FIR was not lodged at the earliest.
Page 8 of 42 HC-NIC Page 8 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT The lack of a reasonable explanation for the delay in lodging the FIR goes to the root of the matter. It appears that the delay in lodging the FIR was utilized for fabricating a false story against the accused persons. The learned Judge has described this aspect and, by giving cogent and convincing reasons, has come to the conclusion that the delay in lodging the FIR is fatal, on the facts and circumstances of the case. 6.2 In this regard, reliance is placed upon the judgment of the Supreme Court in the case of S tate of Punjab Vs. Kulwant Singh @ Kanta, reported in 2008 (16) SCC 290.
6.3 That the deposition of PW7, Amra Megha, the sole eyewitness, is unreliable. He states that he was watering the crop at 11.00 p.m. According to him, he has two separate pieces of land, one of 3Acres and other of 4Acres in the boundary of village Lakadiya. He was the only person present in the field when the incident took place. Apprehending himself to be the sole suspect, PW7 has fabricated the evidence in a particular manner by posing Bhara Kaya as the first informant. At about 9:30 a.m. Bhara Kaya lodged the Page 9 of 42 HC-NIC Page 9 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT FIR, but the witness (PW7) did not accompany him. Thereafter, the Head Constable went to the field of PW7 and held an inquest on the dead body. Thereafter, the Panchnama of the Scene of Offence was drawn at about 11:00 a.m. However, PW7 did not remain present at the field and the Police had not even recorded his statement at the relevant time. His statement was recorded after about 3:00 p.m. It appears that PW7 never took any initiative to inform the Police that his statement may be recorded to show the manner in which the incident took place. Moreover, PW7 does not know the name of his own field, which is Thari. The learned Judge has correctly appreciated the evidence of PW7 and rightly disbelieved his evidence. 6.4 That PW7 has deposed that when he reached at a distance of seven to eight feet from the deceased, he switched on his torch and in the torchlight saw the accused persons going away. He further states that until he reached a distance of seven to eight feet from the deceased, he did not switch on his torch and could not identify the accused persons. This piece of evidence has been appreciated by the Court below, Page 10 of 42 HC-NIC Page 10 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT which has disbelieved this improvement regarding the torch and watering of the crop. The Police has not seized the torch and nor is there any mention of the torch in the statement before the Police. PW7 has definitely made an improvement in his deposition in this regard.
6.5 That the Trial Court has correctly observed that PW7, Amra Megha, has not told the truth regarding the manner in which the alleged assault on the deceased took place. As per PW7, the four assailants were assaulting the deceased with sticks. He states that till he reached the spot the assault continued. He even asked why they were beating the deceased and the assailants ran away from the spot. It is only after he switched on the torch that he is supposed to have seen the accused persons. However, he states that he does not recollect how many blows were given by them. According to PW7, the deceased died immediately thereafter. The Medical Officer noticed seven injuries on the leg of the deceased. As per the opinion of the doctor, the deceased could have survived for half an hour to three hours. However, all these discrepancies Page 11 of 42 HC-NIC Page 11 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT clearly show that PW7 is not narrating the truth and is concocting the story regarding his having witnessed the incident.
6.6 That the conduct of PW7 is quite unnatural. He states that the incident took place at 12:30 a.m. after which he went to Kana Ganesh and Bhaya Bhima and informed them regarding the same. According to him, it was 1:30 to 2:00 a.m. at the time. Bhaya Bhima has been dropped as a prosecution witness though Kana Ganesh has been examined. PW7 further states that when he went to inform Bhaya Bhima, Kana Ganesh was standing in the Bazaar. There are various inconsistencies in the evidence of these witnesses, which belie their truthfulness.
6.7 That, it is only after all these events took place that PW7 in the company of four other persons went in the "Chhakdo" of Ramji Virji to inform the first informant. Ramji Virji, the driver of the "Chhakdo", has not been examined. Thereafter, they went to the field, but it is not clear whose field they went to.
They are stated to have gone to Laliyana, from where they went to Lakadiya. At Lakadiya outpost the Police Page 12 of 42 HC-NIC Page 12 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT personnel was present and from there they are stated to have gone to Adhoi Police Station. The Head Constable of Lakadiya Police Station has not been examined in this regard. So, at every stage, there is a missing link which unravels the say of the sole eyewitness.
While appreciating the evidence of this witness and describing the evidence of this witness, the learned Judge has given cogent and convincing reasons and has rightly acquitted the accused persons of the charges levelled against them.
6.8 That the theory regarding the torch is unreliable. It has come on record that the incident occurred on a dark night and identification was not possible. The torch in question has not been recovered. The socalled eyewitness has not referred to the torch in his statement before the Police. This aspect has been introduced only with a view to framing the respondents.
6.9 That the Panchnama of the Scene of Offence reveals that there are several fields and dwellings in the vicinity but no independent witnesses have been examined.
Page 13 of 42 HC-NIC Page 13 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT 6.10 That PW7 could have straightaway gone to the Police Station to inform the Police regarding the incident. Instead, he chose to go to other persons first and then to the brother of the deceased, leaving the dead body unguarded in the field. The motive attributed to the respondents is that an incident took place fifteen months prior to the incident when the deceased had hit respondent No.1 with a stick. This is too weak a motive for the commission of murder. In any event, the parties had compromised as per the evidence of the first informant, therefore, no grudges remained.
6.11 The discovery of the sticks, which are the weapons of offence, is not in accordance with law. Joint discovery of two accused persons in one Panchnama and the other two accused in the other Panchnama, is not a discovery in the eyes of law. If the Panchnamas are seen, the Panch witnesses state that they have been informed by the Police regarding the discovery. It is, therefore, a statement of the Police to the Panch witnesses and not a statement of the accused persons. The two Discovery Panchnamas are Page 14 of 42 HC-NIC Page 14 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT not in consonance with Section27 of the Indian Evidence Act, 1872 ("Evidence Act", for short). In any case, the Panchnamas have not been proved as the Panch witnesses have not supported the case of the prosecution. There is no discovery of the sticks before the Panch witnesses but it is simply a seizure by the Police.
6.12 That as stated in the Discovery Panchnama a joint statement has been prepared regarding two accused persons whereas separate Panchnamas ought to have been drawn. Hence, the Discovery Panchnamas are not admissible in evidence, as no statement regarding the authorship and concealment of the articles by the accused persons has been recorded.
6.13 In support of this submission, reliance is placed upon a judgment of the Supreme Court in the case of Mohd. Abdul Hafeez Vs. State of A.P., reported in AIR 1983 SC 367. Another judgment relied upon is Ashok Somalal Thakkar and another Vs. State of Gujarat, reported in 2007 (2) GLH 520. 6.14 It is further submitted by learned Senior Page 15 of 42 HC-NIC Page 15 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT Counsel that the general criteria while dealing an appeal against acquittal is that, if the reasoning is sound the judgment ought not to be interfered with in any manner. It is only if a manifestly erroneous view has been taken by the Trial Court, which is neither probable or possible, should the Court interfere. However, if two views are possible, the view favourable to the accused deserves to be taken. Hence, in the present case, the view taken by the Court below, being probable and possible ought not to be disturbed and deserved to be confirmed. 6.15 On the basis of the above submissions, it is prayed by learned Senior Counsel for the respondents that the appeal be dismissed.
7. In the background of the above submissions, we may proceed to briefly examine the relevant aspects of the oral and documentary evidence on record. PW1, Bhara Kaya is the first informant and the brother of the deceased. He states that he was sleeping in his house at Laliyana village at about 3:00 a.m. when Amra Megha (PW7) and Kana Ganesh (PW9) came and woke him up. Both these persons belonged to village Gharana. Page 16 of 42 HC-NIC Page 16 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT PW7 told this witness that his brother Jasha (the deceased) was beaten to death by the respondents accused in his field. Upon this witness asking how the incident took place, PW7 is supposed to have said that he was irrigating his field and the deceased was sleeping. At about 12:30 a.m. the deceased started shouting "Bachao bachao" and upon hearing his shouts PW7 went to him. PW7 then asked the persons who were beating his brother. When he asked why they were doing so, all four persons ran away. He has stated that PW7 recognized the persons as being the respondents and named them all. Thereafter, this witness, his brother Rana, uncle Ganesh and PW7 went to the field of PW7 and saw the deceased lying dead, in a bleeding condition. Thereafter, this witness went to the Police Station at Lakadiya where a Police personnel told him to go to Adhoi Police Station. He then went to Adhoi Police Station and gave his complaint, which was read over to him and upon which he appended his thumb impression. According to this witness, the motive for the crime is that about fourteen months prior to the incident, the deceased had quarrelled with respondent No.1 and had hit him with a stick. A Page 17 of 42 HC-NIC Page 17 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT case was registered and a compromise had taken place with respondent No.1. However, according to this witness, respondent No.1 nursed a grudge regarding that incident and planned to murder his brother. He states that it is only thereafter that the Police arrived at the spot.
8. The testimony of this witness discloses that he has not witnessed the incident but is only narrating the story told to him by PW7, Amra Megha. As per his testimony, they first went to Lakadiya Police Station, but the Police personnel there told them to go to Adhoi Police Station. The Police personnel of Lakadiya Police Station has not been examined. In cross examination, this witness states that PW7 has one field. He denies that the field where the incident took place belonged to Aamad Bachu Gagda. This statement is belied by the extract of Village Form No.7/12.
9. PW2, Bhaya Vaju, is one of the Panch witnesses of the Inquest Panchnama at Exhibit15 and the Panchnama of the Scene of Offence at Exhibit21. Page 18 of 42 HC-NIC Page 18 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT
10. PW3, Champaklal Amrutlal Thakkar, is the Panch witness of the Discovery Panchnama at Exhibit23 regarding the discovery of the sticks from accused Nos.1 and 2. He has been declared hostile, as he has not supported the case of the prosecution.
11. PW4, Ratilal Popatlal Thakkar, is the other Panch witness of the Discovery Panchnama at Exhibit
23. He has also been declared hostile.
12. PW5, Prabhulal Khachar Darji, is the Panch witness of the Panchnama of Discovery of weapon from accused No.3 at Exhibit26. This witness has also not supported the case of the prosecution and has been declared hostile.
13. PW6, Lalji Karamshi Prajapati, is the other Panch witness of the Discovery Panchnama at Exhibit
26. Exhibit28 is the Panchnama of the Discovery of the stick from accused No.4.
14. The sole eyewitness, who is the star witness of the prosecution, is PW7, Amra Megha, in whose field the incident is supposed to have taken place. It can be said that the entire case of the prosecution rests Page 19 of 42 HC-NIC Page 19 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT on the testimony of this witness. He states that his field is in the boundary of Lakadiya village, but he does not know the name of his field. The deceased was working as "Sathi" (cultivator) on his field. According to this witness, he was irrigating the crop and the deceased was sleeping outside his hut. At about 12:30 a.m. he heard the deceased screaming. He ran near the deceased and after switching on the torch, he recognized all four respondents, who were present in the field. All four of them were beating the deceased with sticks. Upon seeing him, the accused persons ran away. He then went near the deceased, who was bleeding profusely. After one or two minutes, the deceased stopped breathing and died. This witness then went to village Gharana where he woke up Kana Ganesh (PW9) and Bhaya Bhima. He named the accused persons to PW9 and stated that they had killed the deceased. He and PW9 then went to Laliyana village in the "Chhakdo" of Ramji Vira. They awoke Rana Kaya, brother of the first informant and the deceased and thereafter they awoke the first informant and informed him about the incident regarding his brother, disclosing the names of all four accused and stating that PW7 had Page 20 of 42 HC-NIC Page 20 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT witnessed the incident. This witness states that all five persons then went in the "Chhakdo" of Ramji Vira to the place of incident and saw the dead body. Thereafter, the first informant lodged the complaint. This witness states in crossexamination that the Police took his statement in the afternoon at about 2:30 to 3:00 p.m. at the spot. He further states that his statement was read over to him and he put his signature thereupon, but the Police did not give him a copy thereof.
15. This witness states that he does not know the name of his field and he has not stated in his Police statement that its name is Thari. He states that he has another field of 3Acres.
16. Regarding the torch he states that he had the torch in his hand at the relevant point of time. When he was thirty to forty feet away he had not switched on the torch and switched on only when he came seven to eight feet from the spot of incident. Till he came at the distance of seven to eight feet he could not recognize anyone. He admits that the torch has not been taken in the custody though he had mentioned the Page 21 of 42 HC-NIC Page 21 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT torch in his Police statement, however, the Police did not write it. He further states that he does not know how many blows were inflicted by the respondents on the deceased and for how long they were beating the deceased. He saw that the deceased was injured on his back, hands and legs. He further states that the clothes of the deceased were stained with blood and he was bleeding. This witness admits that he was not present when the Inquest Panchnama and the Panchnama of the Scene of Offence were drawn.
17. In crossexamination, this witness admits that he left the dead body unguarded, without making any arrangements to protect it from any animal, as he was agitated about the incident. He states that he walked slowly and has stated in his Police statement regarding his agitated state of mind. This witness further states in crossexamination that first of all he went to the house of Kana Ganesh, who is not one of the leading persons in the village. Nor is he related to him or the deceased. He states that there is a Panchayat in the village and a Sarpanch is there, who belongs to his community. However, he did not think of Page 22 of 42 HC-NIC Page 22 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT informing the Sarpanch. He does not know whether there is a Police personnel in the village or not. He also does not know how far Adhoi is from Lakadiya village, though he is required to go to Adhoi about once a month or when so required.
18. He further states that he went to meet Kana Ganesh at about 1:30 to 2:00 a.m. After meeting Kana Ganesh, he went to Bhaya Bhima, who is related to him. They then went in the "Chhakdo" of Ramji Vira to inform the first informant. He states that he did not inform Ramji Vira, or any other person, regarding the incident. He admits that he did not accompany the first informant to register the complaint. He denies that he was not present at the time of the incident.
19. PW8, Ramnikgiri Devgiri Goswami, is the Circle Inspector. He has prepared the map of the scene of incident and produced the Village Form No.7/12, wherein it is indicated that the field where the incident took place is named Thari and it belongs to Aamad Bachu Gagda.
20. PW9, Kana Ganesh, is the person to whom PW7 Page 23 of 42 HC-NIC Page 23 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT discloses the incident first in point of time. He states that he was sleeping in his house at about 1:30 a.m. when Amra Megha woke him up and told him that the deceased had been beaten to death by the respondents, therefore, he should accompany him to Laliyana. This witness states that he went with him in the "Chhakdo" to the house of the first informant and from where they went to the field where the body was lying. This witness, PW7, first informant, Rana Kaya and Genesh Lakha saw the dead body, soaked in blood, lying in front of the hut. Thereafter, this witness went home and the first informant went to the Police Station to register the complaint. In crossexamination this witness states that there was no blood on the head of the deceased. After he went home he did not disclose the incident to anyone till the Police came to take his statement.
21. PW10 is Dr.Dayalbhai Mavjibhai Bhadra, the Medical Officer at Rambag Hospital, who conducted the Postmortem on the body of the deceased. He states that on 26.05.1992, at 5:30 p.m. he was on duty at the said hospital when the body was brought to him for Postmortem Page 24 of 42 HC-NIC Page 24 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT by the Head Constable of Adhoi Police Station. He has described the injuries mentioned in Column No.17 of the Postmortem Report. Eight injuries were found on the body of the deceased, out of which injury No.1 was a fracture of the left leg. The other injuries were contused and lacerated ones. As per the deposition of the Medical Officer, the injuries could have been inflicted, ten to fifteen hours before the death. He has stated that there is no injury on the head of the deceased. The cause of death as indicated in Column No.23 of the Postmortem Report is "Bony fracture with tearing of blood vessels leads to external haemorrhage leads to shock and death".
In crossexamination, the Medical Officer states that after receiving the injuries as described above, the deceased could have remained alive for half an hour to three hours. He states that he has not been shown the muddamal sticks by the Police, therefore, he cannot say whether the injuries are possible with the said sticks.
Significantly, this witness does not state that the injuries sustained by the deceased are sufficient in the ordinary course of nature to cause death.
22. PW11, Ramavtar Hiralal, is the Police Station Officer of Adhoi Police Station. The first informant Page 25 of 42 HC-NIC Page 25 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT lodged the complaint before him and the initial investigation has been conducted by him.
23. PW12, Parbatsinh Magansinh Chavda, is the Investigating Officer, who has arrested the accused, seized the muddamal and in whose supervision the discovery of the weapons was made.
24. The Serological Report reveals the presence of human blood of AB group on the mattress, blanket and towel seized from the spot and the muddamal sticks as well as the clothes worn by the deceased. The blood group of the deceased is stated to be of AB group, which has been determined by a sample collected from the body at the time of the Postmortem.
25. In the above background we have heard learned Additional Public Prosecutor and learned Senior Counsel for the respondents. After giving thoughtful consideration to the evidence on record, we may now examine whether the view taken by the Trial Court is possible and probable in the context of the said evidence or not.
Page 26 of 42 HC-NIC Page 26 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT
26. The case of the prosecution rests upon the oral evidence of PW7, Amra Megha, the sole eyewitness. This witness has stated that when he was watering the crop at about 12:30 a.m. he heard the deceased shouting and went towards him. It was a dark night. He states that he switched on his torch when he came at a distance of seven to eight feet from the sound and recognized the accused persons, who were beating the deceased. This witness does not mention anything about the torch in his Police statement, therefore, evidence with regard to the torch, being an improvement has not been found to be credible by the learned Judge. This witness has further stated that till he reached the spot, the respondents continued to assault the deceased and when he asked why they were doing so, the respondents ran away from there. It is only when he switched on the torch that he saw the respondents giving stick blows to the deceased. He does not remember how many blows were given. According to this witness, after a minute or two, the deceased died.
27. The learned Judge has found this version to be highly doubtful. Clear and cogent reasons have been Page 27 of 42 HC-NIC Page 27 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT given by the learned Judge in this regard. No torch has been seized by the Police and it does not appear that the incident took place as narrated by this witness. There is no mention in the FIR regarding the aspect that the deceased switched on the torch and saw the accused. This gives rise to a grave doubt whether this witness recognized or identified the assailants. In our view, the Trial Court has rightly disbelieved the testimony of PW7.
28. Insofar as the injuries on the body of the deceased are concerned, none of them are serious in nature. The doctor has not stated that the said injuries are sufficient in the ordinary course of nature to cause death. The doctor has further stated that the deceased could have remained alive for half an hour to three hours after sustaining the said injuries. However, PW7 states that the deceased died immediately after one or two minutes. His ocular evidence, therefore, belies the medical evidence.
29. The conduct of PW7 also does not inspire confidence. After seeing the deceased being beaten to death in the field that he claims ownership of, this Page 28 of 42 HC-NIC Page 28 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT witness does not go to the Police Station immediately after witnessing the incident as claimed, which would be the normal reaction of any reasonable person. Instead, he goes to village Gharana and informs PW9, Kana Ganesh and another person named Bhaya Bhima. Bhaya Bhima has not been examined at all. It is only thereafter that PW7, along with the abovenamed persons, Rana Kaya and Ganesh Lakha, went to the house of the first informant at village Laliyana and woke him up at about 3:00 a.m. As per the deposition of the first informant, he, PW7, PW9 and Ganesh Lakha first went to Lakadiya Police Station where, according to him, they met a Police personnel who directed them to go to Adhoi Police Station. The Police personnel of Lakadiya Police Station has not been examined. The first informant, therefore, went to Adhoi Police Station and lodged the FIR at 9:30 a.m.
30. It would be natural behavior that a person before whom a murder has been committed would straightaway go to the Police Station. Instead of this, a period of nine hours has been spent fruitlessly and the dead body was found lying in the open before the complaint is registered. The delay in filing the FIR, therefore, Page 29 of 42 HC-NIC Page 29 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT has not been explained satisfactorily.
31. On the issue of the delay in lodging the FIR, Ms.Chetna Shah, learned Additional Public Prosecutor has relied upon the judgment in the case of Ravinder Kumar and another Vs. State of Punjab (supra), wherein the Supreme Court has held as below:
"13. The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the Page 30 of 42 HC-NIC Page 30 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT genuineness of the version incorporated therein.
14. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.
15. We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to Page 31 of 42 HC-NIC Page 31 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT point out that the stale demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR. [Vide Zahoor vs. State of UP, 1991 Suppl.(1) SCC 372; Tara Singh vs. State of Punjab, 1991 Suppl.(1) SCC 536; Jamna vs. State of UP, 1994 (1) SCC 185]. In Tara Singh (supra), the Court made the following observations (Para 4 of AIR, Cri.L.J.):
"It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being griefstricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some Page 32 of 42 HC-NIC Page 32 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT time to go to the police station for giving the report."
32. On the other hand learned Senior Counsel for the respondents has relied upon State of Punjab Vs. Kulwant Singh @ Kanta (supra). The relevant extract is as below :
"13. There has not been any change and in many subsequent decisions, i.e., Ramesh Babu Lal Doshi Vs. State of Gujarat, George Vs. State of Kerala, Jaswant Singh Vs. State of Haryana, Bhagwan Singh and others Vs. State of M.P. and Kallu Vs. State of M.P., the aforesaid views have been reiterated. This Court in Chandrappa and Ors. v. State of Karnataka, having a complete retrospect on all the earlier judgments, has culled down, in para 41, the following principles regarding the power of the appellate court while dealing with an appeal against an order of acquittal:
(1) An appellate Court has full power to review, appreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion,, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial Page 33 of 42 HC-NIC Page 33 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT and compellingreasons; '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 reluctant 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 should 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 it further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Trial Court."
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33. Regarding the discovery of the weapon of offence, learned Senior Counsel for the respondents has referred to Mohd. Aslam Vs. State of Maharashtra (supra), wherein the Supreme Court has held as below :
"If evidence otherwise confessional in character is admissible under Section 27 it is obligatory upon the investigating officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person. (para
5) The evidence that one accused along with all others gave information leading to recovery of robbed article and the evidence of receiver of robbed property that accused 1 to 3 sold him the ring and that accused 1 to 3 asked him to produce the ring when they come with the police party do no present any incriminating material against the accused. Such mode of recording evidence was deprecated. (Para 5)"
34. Thus, a joint recovery statement of more than one accused has not been approved of by the Supreme Court Page 35 of 42 HC-NIC Page 35 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT by stating that when he is dealing with more than one accused, the Investigating Officer must record the words used by each accused so that the recovery pursuant to the said information can be connected to the person giving the information which becomes incriminating evidence against that person. In the present case, such procedure has not been followed, therefore, joint discovery statements of the accused persons have no legal value.
35. In Ashok Somalal Thakkar and another Vs. State of Gujarat (supra), also relied upon by the learned Senior Counsel for the respondents, the Supreme Court has held as below :
"21. The other relevant witness in this respect is the panch of discovery panchnama Ex.34, P.W.8Chandulal Mathurbhai, examined at Ex.32. It is the prosecution case that all the weapons even used by the other accused were discovered at the instance of only accused i.e. accused No.2. The evidence of discovery is also not helpful to the prosecution case. Ex.34 panchnama of discovery is firstly not proved and secondly in para2 of his deposition, this witness Chandulal categorically stated that the Page 36 of 42 HC-NIC Page 36 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT discloser statement was made by the accused No.2 before the Police SubInspector and not before the panchas. The discovery, therefore, is hit by the provisions of the Evidence Act, not only that but this witness stated that all the weapons as used by all the accused, were discovered at the instance of the accused No.2 and such discovery is not creditworthy."
36. In Ravinder Kumar and another Vs. State of Punjab (supra), relied upon by the learned Additional Public Prosecutor though delay in filing an FIR would not be termed as illegal, perse, however, the genuineness of the reasons produced on record for the delay are required to be scrutinized. In the present case, after purportedly witnessing a murder, PW7 does not go straight to the Police Station or even to the house of the brother of the deceased but, instead, goes to village Gharana and informs PW9 and Bhaya Bhima regarding the incident. They then go to the house of of the first informant and all of them go to Lakadiya Police Station, where they are directed by a Police Officer to go to Adhoi Police Station. The FIR is lodged at 9:30 a.m. after a delay of over nine hours. There is Page 37 of 42 HC-NIC Page 37 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT no explanation for this delay except the above narration of events by the prosecution witnesses which does not constitute natural or reasonable conduct. The delay in lodging the FIR may not be a sole reason for disbelieving the entire case of the prosecution, however, it does cast a doubt upon reliability of the prosecution witnesses and the manner in which they have conducted themselves. The judgment in the case of Ravinder Kumar and another Vs. State of Punjab (supra) , therefore, may not be helpful to the learned Additional Public Prosecutor as it has been rendered in a different factual scenario, unlike that existing.
37. Thus, we find from the evidence on record and the manner in which the Discovery Panchnamas have been drawn that the requirements of Section27 of the Evidence Act have not been kept in mind, therefore, reliance cannot be placed upon the said Panchnamas. There is some discrepancy regarding the place of occurrence, which aspect has been discussed in detail by the Trial Court. PW7 claims to be the owner of the field where the incident took place but he does not remember the name of his own field. However, in the extract of the Village Form No.7/12 the field is Page 38 of 42 HC-NIC Page 38 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT mutated in the name of another person and the name of the field has also been indicated. The location of the place where the incident took place is also shrouded in doubt as different witnesses have given different locations, which aspect has been discussed by the learned Judge.
38. The case of the prosecution is based solely on the testimony of PW7, Amra Megha, which is not found to be reliable by the Court below, for reasons already discussed hereinabove. We are in agreement with the findings and conclusion arrived at by the Trial Court, which has given clear and cogent reasons in support of its findings after discussing the entire evidence on record minutely.
39. It is a settled position of law that in an appeal against acquittal, there would be a presumption of innocence in favour of the accused. Therefore, if two views are possible, the benefit of the favourable view ought to be given to the accused and the High Court would be slow to interfere, except where it finds that the judgment under challenge is illegal or perverse. Such is not the case in the present matter, as the judgment of the Trial Court is found to be just and Page 39 of 42 HC-NIC Page 39 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT proper.
40. In a recent judgment in the case of Hakeem Khan and others Vs. State of Madhya Pradesh, reported in (2017) 5 SCC 719, the Supreme Court has held as below:
"12. For all these reasons, we are of the considered opinion that the High Court clearly fell in grave error in setting aside the acquittal in the present case. We have to remind ourselves that the law on reversal of acquittals is well settled and is stated in many judgments, but one of them needs to be quoted here. In Murugesan Vs. State this court went into the meaning of different expressions "erroneous", "wrong" and "possible", and has stated the law as follows: (SCC p.398, paras 3334) "33. The expressions "erroneous", "wrong"
and "possible" are defined in Oxford English Dictionary in the following terms:
"erroneous. wrong; incorrect. Wrong. (1) not correct or true, mistaken. (2) unjust, dishonest, or immoral.
Possible.(1)capable of existing, happening, or being achieved.
(2) that may exist or happen, but that is not certain or probable.
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34. It will be necessary for us to emphasise that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact whether it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court."
41. In our considered view, the view taken by the Trial Court in the present case is probable and Page 41 of 42 HC-NIC Page 41 of 42 Created On Fri Nov 17 23:27:44 IST 2017 R/CR.A/29/1995 CAV JUDGMENT possible on the basis of the evidence on record. No error has been committed by the learned Judge in acquitting the respondents.
42. The appeal, therefore, fails and stands dismissed.
43. Bail bonds, if any, stand cancelled. The R & P be sent back to the concerned Trial Court.
(SMT. ABHILASHA KUMARI, J.) (B.N. KARIA, J.) Gaurav+ Page 42 of 42 HC-NIC Page 42 of 42 Created On Fri Nov 17 23:27:44 IST 2017