Gujarat High Court
The State Of Gujarat vs Patel Kamleshkumar @ Macmilan Somabhai ... on 4 May, 2017
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.J. Shastri
R/CR.A/102/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 102 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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THE STATE OF GUJARAT....Appellant(s)
Versus
PATEL KAMLESHKUMAR @ MACMILAN SOMABHAI MAGANBHAI &
4....Opponent(s)/Respondent(s)
================================================================
Appearance:
MR JM PANCHAL, SPECIAL PUBLIC PROSECUTOR for the Appellant No.1
MR MM TIRMIZI, ADVOCATE for the Appellant(s) No. 1
ABATED for the Respondent(s) No. 1
MR HARNISH V DARJI, ADVOCATE for the/Respondent(s) No. 2 - 5
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 4/05/2017
CAV JUDGMENT
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HC-NIC Page 1 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. The appellant - State has filed the present appeal against the judgment and order dated 30.6.2005 passed by the learned Sessions Judge and Presiding Officer, Mehsana in Sessions Case No.229 of 2004.
2. Brief facts leading to the rise of present appeal are that it was the case of prosecution that complainant - Bhikhumiya Mohmed Behlim, a resident of Visnagar has lodged the complaint by asserting that on 27.2.2002, pursuant to the Godhara railway carnage, Gujarat Bandh was called on 28.2.2002. Resultantly, all the shops of Visnagar town were closed and mob of Hindu community rushed down to Visnagar Bus Depot. as well as behind Uma market portion, created and an atmosphere of terror on account of which teargas cells were required to be fired. This complainant Bhikhumiya allegedly has seen the same from boarding where he was serving at a monthly salary of Rs.1200/- per month in Muslim hostel.
2.1 It was further the case of complainant that thereafter at around 11.45 hours, the mob of people outrageously attacked the hostel with an intention to kill muslim boys, who were residing there. It is on account of timely intervention by police, the students were shifted already from Visnagar muslim area and therefore, saved. It has been alleged in the complaint that while the complainant and hostel superintendent - Baloch Ashraf Jamalbhai were on duty in the hostel, the Hindu community mob entered the hostel from backside and set the hostel on fire. Resultantly, the Page 2 of 55 HC-NIC Page 2 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT complainant Bhikhumiya and hostel superintendent, Baloch Ashraf Jamalbhai with a view to save themselves, rushed down from the spot and ran towards the main gate of the hostel where police was sitting. In between, it is also the case of prosecution that when Ashraf Baloch, hostel superintendent was running ahead the complainant, some unknown persons out of mob had given a stick blow on the head of Ashraf Baloch, who fell down and rest of the persons with their weapons like stick, pipe, dhariya have beaten up hostel superintendent - Ashraf Baloch. On seeing this, the police saved the life of the complainant and mob disbursed and ran away. It has been the further case of the prosecution that hostel building was also set on fire and police personnel were also beaten up and the complainant has seen that at various places, the incident of arson had taken place, as a result of which the complainant Bhikhumiya went to Visnagar police station and lodged the complaint. This complaint was registered as I-C.R.No.59 of 2002 for the offence punishable under Sections 302, 307, 147, 148 r/w Section 149 of the IPC and Section 135 of the Bombay Police Act. It has been the case of prosecution that PSO got the complaint registered in the register and sent for investigation wherein, the statements have been recorded of the complainant and other injured witnesses. The persons who have died, their dead bodies were sent for postmortem examination. The inquest panchanama was drawn and after handing over the dead bodies to the relatives, the panchnama of scene of offence was carried out by the Investigating Officer and based upon the material, the accused persons having been found came to be arrested by recovering muddamal which have been used in the form of weapons and the recovered muddamal was sent Page 3 of 55 HC-NIC Page 3 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT for FSL examination and after receipt of the medical evidence, the postmortem report and cause of death certificate, a charge-sheet came to be filed by the Investigating Officer before the learned Chief Judicial Magistrate First Class, Visnagar wherein, the case was registered as Criminal Case No.1905 of 2002.
2.2 It appears from the record that since the offence was triable by the court of sessions, the learned Magistrate in exercise of jurisdiction under Section 209 of the Cr.P.C., was pleased to commit the case to the sessions and the same was then registered as Sessions Case No.229 of 2004. Pursuant to the committal, the case came up for consideration before the learned Presiding Officer, Fast Track Court at Mehsana, who, vide Exh.7, has framed the charge against the respondents accused. The charge was read over to them and the plea was recorded of the respondents accused at Exh.8, 9, 10, 11 and 12 respectively wherein, since the accused have denied the offence being committed, the case was put up for further evidence.
2.3 Pursuant to the said stage of recording of plea, the prosecution with a view to prove the case against the respondents accused have led oral as well as documentary evidence and as many as 17 witnesses have been examined and 23 documentary evidence came to be adduced in the following manner :
Sr. PW No. Name Exh.
No.
1 PW No.1 Dr.Bhavesh Vrajlal Nayak 14
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2 PW No.2 Dr.Bharatkumar Babubhai Solanki 19
3 PW No.3 Bhikhumiya Mohmedmiya Behlim 25
4 PW No.4 Mohmed Yunus Gulamnabi 28
5 PW No.5 Shankarbhai Maganbhai Patel 41
6 PW No.6 Kanji Babuji Thakore 50
7 PW No.7 M.K.Patel, PI 55
8 PW No.8 H.B.Rajput, PI 65
9 PW No.9 Aminabibi Ashrafkhan Baloch 66
10 PW No.10 Afsanaben Ashrafkhan Baloch 67
11 PW No.11 Ranabhai Shivabhai Luhar 78
12 PW No.12 Mithaji Narsingji Thakore 79
13 PW No.13 Jyotsnaben Sureshbhai Parmar 80
14 PW No.14 Dineshbhai Bhagabhai Raval 81
15 PW No.15 R.D.Baranda, PI 82
16 PW No.16 B.S.Shukla,PI 83
17 PW No.17 B.S.Pandor, Dy.S.P. 84
Following documentary evidence have been led :
1 PM Report of deceased Ashrafbhai Baloch 15 2 PM Report of deceased Jainabben Baloch 16 3 PM Report of deceased Hanifkhan Saiyed 174 Medical certificates issued by General Hospital, 18,20 Visnagar and Mehsana in respect of injured Mohmed Yunus 5 Case papers in respect of injured Mohmed 21 Yunus 6 Transfer letter 22 7 Case papers of treatment 23 8 X-ray film in respect of injured Mohmed Yunus 24 9 Original complaint 26 10 Depute order 29 11 Panchnama of clothes of the deceased 30 12 Panchnama of place of incident 31 13 Inuqest Panchanama (2) 32,33 Page 5 of 55 HC-NIC Page 5 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT 14 Letter as to sending of muddamal 34 15 Receipt of FSL as to receiving of muddamal 35,36 16 Analysis report of FSL 37 17 Serological report of FSL 38 18 Notification as to prohibition of use of weapons 39 19 Certificate issued Civil Hospital, Ahmedabad in 40 respect of injured Mohmed Yunus.
20 Panchnama of physical conditions of the 42-43 accused 21 Application for re-examination u/s.173(8) of the 57 Cr.P.C.
22 Affidavit as to investigation by Investigating 63,71 Officers.
23 Report for investigation by Dy.S.P. 74,76 2.4 After leading the evidence, the prosecution has submitted a closure pursis at Exh.85, pursuant to which a further statement was recorded of respondents accused in view of Section 313 of the Cr.P.C. But since the respondents accused have denied the offence being committed, claimed the trial to be conducted. Resultantly, the Presiding Officer has framed the issues for consideration and further adjudication.
2.5 After considering the evidence on record and after considering the written arguments tendered by the respective sides, vide judgment and order dated 30.6.2005, the learned Additional Sessions Judge and Presiding Officer, Mehsana was pleased to exercise the jurisdiction under Section 235 of the Cr.P.C. and by giving benefit of doubt, the respondents accused came to be acquitted for the offence for which they have been tried and it is this judgment and order passed by the trial court, the State has filed the present appeal after Page 6 of 55 HC-NIC Page 6 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT almost a period of more than 6 months. This criminal appeal appears to have been admitted vide order dated 13.2.2009 and after receipt of the same, the criminal appeal was substantially heard but then, on account of change of sitting, the appeal came to be released from dictation of order and thereafter, has come up for consideration before this bench in which final hearing has taken place.
2.6 Mr.J.M.Panchal, learned Special Public Prosecutor has represented the appellant, whereas Mr.M.M.Tirmizi has supported the appellant. So far as the respondent No.1 is concerned, he being died during the passage of time, the appeal gets abated qua him. However, Mr.Harnish V. Darji, learned counsel is representing respondent Nos.2 to 5 and in the background of this, the appeal has been taken up for final disposal.
3. The appellant - State has been represented by learned Special Public Prosecutor, Mr. J.M.Panchal, who submitted that the judgment and order passed by the trial court is not reflecting any application of mind to the evidence on record.
Learned Special Public Prosecutor, Mr. J.M.Panchal that while passing the order impugned in the present appeal, the learned trial Judge has not examined the evidence as a whole. On the contrary, entire conclusion is based upon inferences and conjectures and therefore, such an evasive order is not required to be allowed to stand in the eye of law. Mr.Panchal has further contended that to prove the case, the prosecution has examined several witnesses, who are natural witnesses and therefore, their testimonies could not have been brushed aside without assigning any cogent reasons. Mr. Panchal has Page 7 of 55 HC-NIC Page 7 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT further contended that there are serious lapses and loopholes kept by the investigating machinery on account of oppressed situation prevailing which has ultimately led the Court to pass an order of acquittal, so much so that neither the panchnama of scene of offence nor the panchnama at the place of hospital could not have drawn which can be said to be the place of occurrence of part of the main offence and therefore, the learned trial Judge on the basis of this instead of brushing aside the evidence ought to have examined the case minutely. Mr. Panchal has further contended that the injuries have been which are shown are corroborated with the medical evidence, bloodstains have been found on the weapons which were used and further, there was ample material available to come to a conclusion that there was an unlawful assembly with a pre- meditated mind and therefore, the learned trial Judge ought to have examined the evidence in more detail. Having not done so, a serious error of exercise of jurisdiction is committed by the learned trial Judge warranting interference by this Court. Mr.Panchal has further contended that for establishing the unlawful assembly, the evidence is sufficiently indicating the conduct and behaviour of the group before occurrence of actual incident and the conduct and behaviour at the time of the commission of crime and from that behavioural attitude of the group, the intention could have been gathered. Mr. Panchal has further contended that there was no reason for the group to come to the house of the victim and that too when the curfew was imposed in the town and despite curfew having not lifted, the persons gathered themselves, collected in numbers and came to the place of victim, which itself is sufficient to form the belief of unlawful assembly with a common object to assault. The object of the Page 8 of 55 HC-NIC Page 8 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT group was very much reflecting from the evidence on record and since those persons forming the group were armed with weapons, their intention also could have been easily inferred. These aspects have not been appreciated well by the learned trial Judge and therefore, the order being erroneous in the eye of law deserves to be corrected. Mr. Panchal has further contended that the identification for the first time in Court was also sufficient enough to establish the presence of the accused persons as the persons of the group were unknown persons and those persons have been identified as they were imprinted in the mind. Mr.Panchal has further contended that mere lapses in the investigation would not entitle the benefit automatically to the accused persons and therefore, the reasons which have been assigned by the learned trial Judge are not sufficient enough to substantiate the finding of acquittal. Mr.Panchal has further contended that the defect in framing the charge would not automatically vitiate the entire trial or the case of the prosecution unless some serious prejudice is shown to the respondents-accused. On the contrary, no prejudice is likely to cause since the accused have been examined, cross-examined and on the basis of that material, it cannot be said that any prejudice has been caused to the accused on non-framing of charge. Learned Special Public Prosecutor has further drawn the attention that the learned trial Judge has not rather understood and examined the evidence of two lady witnesses who have been examined in their true perspective and therefore, this is a fit case to reverse the order of acquittal. From the over-all material on record, Mr.Panchal has contended that the case of section 307 of IPC at least is made out and therefore, to allow this judgment of simplicitor acquittal can never be said to be a just Page 9 of 55 HC-NIC Page 9 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT order in the eye of law. Mr. Panchal has further contended that three persons have died in this gruesome act on the part of the respondents-accused and therefore, from the material on record and looking to the medical evidence, homicidal death is proved by the prosecution beyond reasonable doubt and the injuries which have been found on the body have also established to have been committed by weapons which were used and therefore, order passed by the learned trial Judge is not in any way sustainable in the eye of law.
4. To substantiate those submissions of Mr.Panchal, first of all, a reference is made of a specific charge which has been framed on 14/12/2014 as well as examination of P.W.No.1 appearing on page 95 of paper book compilation. Dr.Bhavesh, who performed post mortem, has narrated specifically in the post mortem note in column No.17 about the injuries which have been caused on the deceased and looking to the medical evidence, the injuries on Mohammad, who was later on shifted to Mehsana Civil Hospital have also been proved. Similarly, on the basis of evidence of another doctor, i.e. Dr.Bharat Solanki, who was examined as PW-2 at Exh.19, the prosecution has proved the injuries which are reflected on the body of the deceased. Likewise, a reference is made to the version of Bhikhumiya, the complainant, who was examined as PW-3 reflecting on page 140 of paper book compilation who has not supported the case of the prosecution as he has been declared as hostile. However, his version to some extent is helpful to the case of the prosecution. Mr.Panchal has then invited attention of the Court to the averments contained in the complaint at Exh.26 on page 144 and contended that ample description of the scene of offence is reflecting. He has Page 10 of 55 HC-NIC Page 10 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT further contended that though another injured eye witness, Mohmed Yunus, examined as PW-4, has become hostile, he has identified the accused Kamlesh, Shailesh and Prakash and therefore, his version could not have been brushed aside by the learned trial Judge simply because he was a hostile witness to the case of the prosecution. He has further invited attention of the Court to the panchnama of scene of offence drawn at Exh.31 appearing on page 155 of paper book compilation and contended that actual place of occurrence is the hostel at Fate Darwaja and therefore, there is a clear error committed by the learned trial Judge in evaluating the evidence led by the prosecution. Mr. Panchal has further drawn the attention to the evidence of Jenifben recorded at Exh.32 on page 158 and contended that this witness is also supporting the case of the prosecution and coupled with this, Mr. Panchal has further drawn the attention to the FSL report and conveyed that blood group of the deceased was 'B' which was found by the prosecution on sword used by accused No.1 i.e. Kamlesh and these injuries found on the body of Mohmed reflecting on injury certificate produced at page 176 corroborate the version of the prosecution that accused have used the weapons as narrated. By referring to this witness, Mr. Panchal has contended that though the witnesses have become hostile, reference of their evidence could have been taken to establish the case against the accused. Mr. Panchal has further contended that the actual place of occurrence is Vankarvas and not the hostel but on account of serious lapses on the part of investigating machinery, such a flaw might have taken place. The Court ought to have appreciated that the atmosphere was such in which there was no law and order situation prevailing in the town, there was imposition of Page 11 of 55 HC-NIC Page 11 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT curfew in the town and there was total disharmony and therefore, no one can expect the witness to go immediately to the police for reporting rather than to save their life and therefore, simply because there might be some lapses in either approaching the police or in conducting the investigation in such an environment, those lapses should have been ignored. According to him, no strict proof could have been expected by the Court as the investigating machinery was burdened with concrete responsibility to maintain law and order and carrying out every step of investigation was almost impossible and therefore, on the basis of overall circumstances prevailing on record and the manner in which the offence is committed, the order of acquittal is not sustainable in the eye of law. Mr. Panchal has drawn attention to some of the following decisions of the Hon'ble Apex Court on various issues which will be dealt with at an appropriate stage in this judgment:
i) (2014)10 SCC 272(on the issue of charge of section 149)
ii) (2003)5 SCC 746
iii) (2007)14 SCC 150(on the issue of solitary witnesses)
iv) AIR 2013 SC 2207 On the issue of identification for the first time in Court, he has relied on the following decisions ;
i. (2013)4 SCC 607
ii. (2015)6 SCC 306
iii. (2014)14 SCC 614
On the issue of lapses in carrying out investigation, Mr. Page 12 of 55 HC-NIC Page 12 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT Panchal has relied on the following decisions:
1) AIR 2010 SC 3718
2) AIR 2011 SC 1503
On the issue of framing of charge, following decisions are relied on by Mr. Panchal:
1) (2013)7 SCC 256
2) (2009)3 SCC (Crimes) 347
3) (2012)10 SCC 476
By referring to these decisions, Mr. Panchal has tried to assert that order passed by the learned trial Judge is in no way sustainable in the eye of law and therefore, the appeal filed by the State deserves to be allowed by granting the relief as prayed for.
5. Mr. M.M.Tirmizi, learned counsel, has vehemently contended that there is a serious error committed by the the learned trial Judge in passing the order which is impugned in the appeal. Mr. Trimizi has contended that the judgment is delivered in a hot hurried manner. To substantiate this, he has pointed out to this Court the contents of application dated 8/4/2004 submitted for seeking further investigation and order dated 30/4/2005 appearing on page 220 of paper book compilation and contended that though the period was extended by 30 days more, which is reflecting on 282 of paper book compilation at Exh.74, still, the trial is completed on 30/6/2005. Attention is drawn by Mr.Tirmizi to page 282 of paper book compilation in which a specific request of 30 days Page 13 of 55 HC-NIC Page 13 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT was made by Deputy Police Superintendent vide application dated 24/5/2005 and therefore, this hot hurried manner is to be viewed seriously as the judgment and order dated 30/6/2005 is based upon perverse finding. Mr. Tirmizi, therefore, contended that such a casual approach on the part of the learned trial Judge in concluding the entire trial of such a serious magnitude is nothing but a serious error on the part of the learned trial Judge and for that purpose, Mr. Tirmizi has requested ultimately to order for a retrial of the entire incident for fresh consideration and for that purpose, he has drawn the attention to a decision delivered by the Apex Court reported in (2009) 6 SCC 342 as well as Judgment Today 2004 (suppl) (1) SC 94 and then requested the Court that since such a serious incident is taken in such a light manner by the learned trial Judge, the same would be a travesty of justice. On the contrary, Mr. Tirmizi has alternatively submitted by supporting the stand of the Special Public Prosecutor that case is established at least under section 307 of IPC against the respondents accused and alternatively submitted to order for a retrial of the case in question and thereby has requested the court to allow the appeal filed by the State.
6. To oppose this stand taken by the learned advocates for both the parties, Mr. Harnish V. Darji appearing for the respondents accused has vehemently contended that on the basis of weak piece of evidence, since the guilt is not established beyond reasonable doubt by the prosecution, the learned trial Judge has rightly passed an order of acquittal and such finding of fact based upon the evidence on record is cogent enough and hence, no inference be made. Mr. Darji has further contended that the prosecution case is based upon Page 14 of 55 HC-NIC Page 14 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT the theories which are not believable as can be seen from the evidence on record, three different versions are coming out from the beginning of the prosecution and therefore, there is no consistency in the case of the prosecution to establish the guilt of the respondents accused. Mr. Darji is pointing out that the prosecution has examined Aminabibi as PW-1 at Exh.66 and her version is doubtful and not corroborating the case of the prosecution which is reflecting on page 260 of paper book compilation. Two different versions are coming out. First, on the issue of the commission of crime at a place and qua the incident which occurred at home reflecting from the evidence of two witnesses namely, the wife and the daughter of the deceased and upon examination of her version, for the first time in the Court, she is identifying the accused whereas in her police statement recorded on 11/3/2002, she has not stated anything nor attributed specifically towards the accused persons and to prove these contradictions, even Investigating Officer has not been put to questions nor even recalled. Similar is the case with other witnesses as well and therefore, the contradictions have not been that much simple which can be ignored and therefore, through the evidence of both the witnesses, who can be said to be star witnesses of the prosecution, contradictions are not establishing the case of the prosecution beyond reasonable doubt. Mr.Darji, by referring to a private complaint filed by Behlim Mustaqbhai Ibrahim in the form of M.Case reflecting on page 232 of paper book compilation, has pointed out that entirely a different story comes out which is not even the basic case of the prosecution and surprisingly this Behlim Mustaqbhai has chosen not to be examined by the prosecution and this M.Case does not appear to have been exhibited as well and Page 15 of 55 HC-NIC Page 15 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT therefore, there is a serious lapse on the part of the prosecution to prove the case beyond reasonable doubt. It appears from this private complaint filed by Behlim Mustaqbhai that no further steps have been taken by investigating machinery except filing a mere summary and an attempt is made by the prosecution to prove the case with the aid and assistance of practically a child witness, Afsanaben Ashrafkhan Baloch, PW-10, who at the relevant time of incident was minor. This child witness has not supported the case beyond reasonable doubt and since substantial reliance is placed by the prosecution on this witness, on the basis of such a weak piece of evidence, no order of conviction can be passed and therefore, the learned trial Judge has rightly exercised discretion. Mr. Darji has thereafter relied upon the decision of the Apex Court reported in AIR 2013 SC 76 on the issue of applicability of section 149 of Cr.P.C. He has further drawn the attention to a decision reported in (2014)10 SC 275 and by referring this, it has been contended by Mr. Darji that simply because they are part of assembly, unless and until common object is established, they cannot be held responsible and for that purpose, a further reliance is also made on the decision of the Hon'ble Apex Court in the case reported in (2009)12 SCC 447. He has then submitted that initially, a version is coming out that 5-10 persons have assembled. Thereafter at hospital, a mob of around 100-150 is narrated and therefore, in the absence of any consistency on the part of the prosecution and lack of evidence about who were the members of assembly, what were their objects and what was the evidence to connect them, the question of attracting section 149 does not arise at all and therefore, Mr. Darji has contended that the learned trial Judge has rightly exercise Page 16 of 55 HC-NIC Page 16 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT jurisdiction by passing the order. Mr. Darji has then drawn the attention from the evidence of different versions coming out of the case of the prosecution in the form of one Bhikhumiya, Aminabibi and then in the form of private complaint filed by Behlim Mustaqbhai and therefore, the entire case is based upon no reliable evidence to connect the accused persons specifically with the alleged crime and therefore, no order of conviction can be passed. Mr. Darji has further contended that reliability of evidence, credibility of witnesses and the suspicious circumstances, which are arising out of the different versions, are not cogently emerging to hold the accused guilty. Mr.Darji has further contended that investigation has been carried out in a lawful manner. There was just and proper atmosphere prevailing and the investigation was carried by various officers and ultimately, charge sheet came to be filed. Even further investigation under section 173(8) of Cr.P.C. has been granted and report has also been submitted and therefore, every attempt has been made by Investigating Officer to establish the guilt. However, then also, the evidence is not sufficient enough to establish the guilt of the respondents accused, so much so that staff of the hospital has also been examined and therefore, it has been contended that in an abrasive manner, the respondents accused have been arraigned in the case by the prosecution and therefore, the learned trial Judge has rightly passed an order of acquittal. Mr. Darji has also drawn attention and heavily relied upon the decision reported in AIR 2016 SC 3218 and contended that when two view are possible and when the evidence has been dealt with and examined by the learned trial Judge, the possible view may not be substituted and therefore, a reference is made on yet another Page 17 of 55 HC-NIC Page 17 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT decision of the Hon'ble Apex Court on the issue reported in (2009)4 SCC 271 and then ultimately requested to dismiss the appeal.
7. Having heard the learned advocates appearing for the respective parties, having gone through the evidence on record in co-relation with the findings which have been arrived at by the trial court, we feel that following circumstances are required to be taken note of for ultimate outcome. Of course, we are mindful of the fact that the reasons which are assigned by the trial court appear to be not that much sound. However, on going through the entire evidence on record, we feel that independent examination is also expedient and in this regard, following are the circumstances considered by us.
7.1 The entire case is based upon the fact that pursuant to the riotous situation which erupted in the month of February,2002 as per the case of prosecution, the respondents accused along with around 400 to 500 persons in the mob, formed unlawful assembly on 28.2.2002 and came at around 1.00 p.m. with an intent to damage the property and threat unto the death to the people of muslim community and in that process, as per the case of prosecution, one Ashrafkhan Jamalkhan Baloch, Jainabben, Saiyed Hanif Daudbhai succumbed to the injuries and died, whereas one Mohmed Yunus sustained serious injuries while they were in the hospital for treating Ashrafkhan. Said incident has resulted into filing of complaint and in the process culminated into Sessions Case No.229 of 2004.
Page 18 of 55HC-NIC Page 18 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT 7.2 The prosecution, in this regard, has examined few of the witnesses to establish the case against the respondents accused and for that purpose, ocular evidence was led by examining PW-1 - Dr.Bhavesh Vradlal Naik and several other witnesses have also been examined. But, out of those witnesses, material witnesses appear to be PW-3 - Bhikhumiya Mohmedmiya (complainant), PW-4 - Mohmed Yunus Gulamnabi, PW-6 - Kanaji Babuji Thakore along with PW-7 - Manubhai Karsanbhai - PI, Visnagar Police Station, who can throw some light with regard to case of prosecution. Yet another witness whose testimony will have to be examined is PW-8 - Himmatbhai Bhupatbhai along with PW-9 - Aminabibi Ashrafkhan Baloch, the mother of Jainabben.
7.3 From the evidence on record, first of all while examining the testimony of medical officer - PW-1 - Dr.Bhavesh Vradlal Naik, the injuries which have been caused to the deceased and the injured Mohmed Yunus appeared to have been reflected. From his testimony, it is emerging that the deceased and the injured have sustained injuries when they were brought for postmortem examination. According to testimony of this medical officer, who conducted postmortem examination, it is found that the injuries which have been caused were prior to death and there was fracture injury on the skull along with other cut injuries which are reflected. The opinion of this medical officer indicates that the death has occurred on account of excess bleeding on account of injuries caused on the head of the deceased and these injuries can be possible to be caused by sharp and blunt substance weapon. Similar is the examination conducted with respect to Jainafben. Deceased Jainabben had also head injury and there Page 19 of 55 HC-NIC Page 19 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT was on cut wound found of 7 cm. X 5 cm. and there was a fracture injury also found on the head from where brain material was visible. These injuries which have been reflected on the body of deceased Jainabben were sufficient enough to cause death and here also, the opinion is that on account of profuse bleeding from head, the death has occurred. Similar is the case of Hanif Daudkhan Saiyed where also the injuries have been stated and noted down in Column No.17 of postmortem examination. This medical officer appears to have also examined injured Mohmed Yunus Gulamnabi Memon at around 2.45 p.m. on 28.2.2002 where several cut injuries were found on the body and though these injuries were found to be serious but, if no consequences are occurring then the same can be healed by 7 to 10 days. The cross-examination of this medical officer has revealed that the hospital building is consisting of two floors; the ground floor and the first floor having all other facilities and these dead bodies have been brought to the hospital for postmortem examination after 1.15 p.m. That three dead bodies which came for postmortem examination have been straightaway sent to postmortem room and normally, the key of the postmortem room is to be handed over to police officer but, no signature is being obtained. Now, these injuries which are explained are reflecting in the postmortem note which has been put up on record. From the certificate which has been issued by the General Hospital, Visnagar which is at Page 127 of the paper book compilation indicates that Mohmed Yunus Gulamnabi Memon was brought at 3.45 p.m. where he sustained injury by mob at around 2.45 p.m. 7.4 The prosecution appears to have examined PW-2 -
Page 20 of 55HC-NIC Page 20 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT Dr.Bharatkumar Babubhai Solanki, who is the medical officer, before whom, for treatment the injured witness Mohmed Yunus Gulamnabi Memon was brought, who was in conscious state of affairs and has stated to have received injuries on account of sword. On the right side of the head he appears to have sustained fracture injuries. But this medical officer has stated that x-ray plate has not been taken while he was present and he is also not a radiologist. It appears from another certificate issued on 2.1.2005 reflecting on page-130 of paper book compilation where from it would appear that he was brought to the hospital on 1.3.2002 at 2.15 p.m. The medical evidence is reflecting injury part on the deceased as well as injured witness but, whether the same has been caused by whom will be a subject of examination and for that purpose, irrespective of the analysis of the trial court, since the incident in question is serious enough, we have also undertaken the task of examination of evidence in the context of role being played by each of the accused persons and for that purpose, first of all we have perused the testimony of PW-3 - Bhikhumiya, who was examined by the prosecution to establish the guilt.
7.5 This PW-3 - Bhikhumiya, who was serving at Muslim hostel in Visnagar, has stated that around 25 students were there in the hostel when occurrence took place. This witness has stated that Superintendent was one Mr.Ashrafbhai Jamilbhai. Further, this witness has stated that in Visnagar town, on account of curfew and ban, the police was roaming across the town. But this witness has stated that he has not seen any mob around and has further stated that when police came, the boys who were in the hostel have been placed in Page 21 of 55 HC-NIC Page 21 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT safe police and he and one Jafarbhai was sitting at the hostel and at that point of time, two policemen along with one home guard personnel came to the spot, inquired about Jafarkhan of the office. But since he was not there, the police took this witness to the police station and took some signatures on the writings and then, dropped him at his residence. Said signature appeared to have been taken on the complaint which is at Exh.36. Now the cross-examination of this witness has reflected that mob belonging to Hindu community, rushed in the hostel but, by that time the hostel students were brought and dropped at a safe place by the police and when mob came, he along with Superintendent - Mr.Ashraf Jamilbhai ran away to the main door of hostel where the police sitting. This witness has reflected that mob was consisting of some 400 to 500 persons and were armed with sticks and dhariya weapons etc. But then after evidence is revealing that after taking complaint at Exh.26, no further statement is taken but, has clarified that through oversight, the name of the Superintendent, who was done away, is written and in fact, the Superintendent was Kazi Jafar. The further reading of the testimony of this witness is indicating no specific role specifying the name of any of the accused persons out of the respondents herein. However, a reference is made about mob consisting of 400 to 500 in numbers and cross-examination which is done by advocate of the respondents accused have revealed nothing much about the actual occurrence nor anything by virtue of which the role of the respondents accused can be culled out.
7.6 The next witness Mohmed Yunus Gulamnabi Memon, who is an injured eye witness and who sustained injuries on Page 22 of 55 HC-NIC Page 22 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT that day and who has been examined by the prosecution, has turned hostile and has not supported the case of prosecution any further. This witness, according to the prosecution, is an important witness, whose testimony can assist the prosecution and for that purpose, the examination and analysis of it reveal that Hanif Daudbhai Saiyed and Baloch Jainabben both were thrown from second floor of the hospital. Now if this version is to be evaluated in the context of medical opinion with respect to injuries of both these persons, it would reveal that if the mob has thrown them from the second floor then, cut injuries might not have been visible. On the contrary, the injuries might be different from what appears in postmortem examination and therefore, here the version of this witness appears to be in conflict with the medical evidence on record and therefore, ocular evidence and the medical evidence are not in co-relation as it appears. In furtherance of this analysis, the testimony is revealing that this injured eye witness has turned hostile and has clearly denied the role of Kamlesh Prahlad with iron pipe and Shailesh Naranbhai with sword along with other five persons. The cross-examination is revealing that those two persons, namely, Hanif Daudbhai Saiyed and Baloch Jainabben were thrown from the second floor but, it appears that the mob has not given them blows. Had there been some different injury marks must have been visible and that is not reflecting which has raised a serious doubt about the case of prosecution especially when this very injured eye witness has chosen to deviate and chosen not to support the case of prosecution and therefore, important witness is not with the prosecution which has weakened the case to a substantial extent.
Page 23 of 55HC-NIC Page 23 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT 7.7 Now, in the context of this, yet another witness in the form of PW-7 - Manubhai Karsanbhai, who was police inspector at Visnagar at the relevant point of time, who appears to have undertaken the investigation with respect to incident in question. This police witness has recorded the statements of some of the witnesses, also recovered the muddamal and executed the map through circle inspector and also recovered the weapons and therefore, to some extent the examination of this evidence is also required to be undertaken. This police inspector during the course of investigation has recovered the weapons, undertaken the exercise till he got transferred to another police station and from his steps which he has taken, it is revealed that two persons were thrown from Visnagar hospital and for which he has taken further statement as well. One of the witnesses - Mohmed Yunus Gulamnabi, an injured, had stated before him that some persons from the mob came inside the hospital, inflicted blows and one Hanif Daudbhai Saiyed and Baloch Jainabben both were thrown from the second floor. In that process, it had been stated that Sailesh Naran was armed with sword whereas Kamlesh Prahlad was having iron pipe. It appears from his cross-examination that statements of Aminabibi and Ashrafbanu have been recorded after a period of more than 10 days on 11.3.2002. But from his deposition, there appears to be no blow on the two persons, namely, Hanif Daudbhai Saiyed and Baloch Jainabben and therefore, if the same is co-related with the injury certificates of these two, the version is not getting supported. Had there been a simple throwing from the second floor of the hospital, the injuries which are reflected in the certificates would not have sustained and therefore, qua this there appears to be a Page 24 of 55 HC-NIC Page 24 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT material conflict between the medical evidence and ocular evidence. In addition thereto, the record indicates that an application was submitted under Section 173(8) of the Cr.P.C. whereby, on 30.4.2005 an order came to be passed in which a direction was given to the Investigating Officer to produce a detailed report in case of investigation which has been carried by him with respect to 3 murders in civil hospital or in the alternate, if such investigation was not carried out, a direction was given to investigate further and submit the report within 7 days. Now, this appears to have not been observed which again is a serious flaw / lapse in the case of prosecution in furtherance of proving the offence against the respondents accused beyond reasonable doubt. In the context of aforesaid situation if the further examination of record is to be undertaken, one another Investigating Officer named as Himmatsinh Bhupatsinh Rajput (PW-8), who is examined at Exh.65 has also undertaken the process to some extent in which it is revealed that Superintendent of hostel - Kazi Zafarbhai Noorbhai also stated to have died or murdered and "A" summary was filed in the court concerned by the Investigating Officer on 22.2.2003 and this witness has filed the charge-sheet on 8.9.2002 against one Kamlesh @ Macmilan and other four persons with respect to the incident which occurred at Visnagar hospital in which Ashrafkhan Jamalkhan came to be murdered.
7.8 In the aforesaid context, the deposition of PW-9 - Aminabibi Ashrafkhan Baloch is to be looked into. As per the testimony of this witness, she has narrated the incident in the manner in which it occurred. The same appears to have been at the place of her residence. The narration of this testimony Page 25 of 55 HC-NIC Page 25 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT is revealing that after the attack by these accused persons, the injured was taken to the hospital initially at Memon's clinic and thereafter, was taken to the civil hospital, Visnagar and said Ashraf, the deceased was taken by Jainabben, Hanif Daudbhai Saiyed in the hand-lorry of Yunus and thereafter, it was revealed that from the second floor of the hospital, Hanif Daudbhai Saiyed and Baloch Jainabben were thrown and Ashraf was also done away. From this incident which alleged to have taken place at civil hospital appeared to be not witnessed by this witness and it further appears that her statement has been taken after a period of 10 days. Now if this testimony is to be looked into and tested from the panchnama which has been prepared, no blood stains have been found at the general hospital nor any incriminating marks were found which could corroborate the version of this witness. It has further been examined that even in the gallery portion of second floor of hospital, no blood stains have been found nor any marks which suggest the attack. Had there been any blows given on the person of the deceased, there might be some marks of blood stains and apart from this, if the evidence of this witness is to be further analyzed, with a profuse bleeding if deceased Ashraf was taken to the hospital in the hand-lorry, definitely that would have the blood stains or marks on the lorry which is completely missing and nothing incriminating is also recovered from the said lorry which suggests that there appears to be a serious doubt about the version of this witness which is in contrast with the documentary evidence. Now, this very witness has deposed further that initially, incident took place at Vankarvas and her residence is just on the corner of this Vankarvas. But no panchnama appears to be reflecting of this Vankarvas place Page 26 of 55 HC-NIC Page 26 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT from where Ashrafkhan appears to have been taken to the hospital and therefore, this testimony is not getting supported by any cogent evidence in any other form. On the contrary, the injured witness Mohmed, as stated earlier, has not at all supported the case of prosecution. From this version, it is further coming out that in such a serious injured position, Ashrafkhan was initially taken on the bicycle by placing him on carrier and was taken to Dr.Memon's clinic. Now, this could have been visualized by several persons but, it appears that no independent persons have been examined to support this version and therefore, to rely upon this version of interested witness, who happened to be the wife of Ashrafkhan without any cogent corroboration, it would not appear to be safe to place sole reliance upon it to establish the guilt in the aforesaid background. There appears to be a conflict of her version from the police statement and the deposition and therefore, in such a situation, in the absence of any other material circumstance to connect the respondents accused, it is difficult to place sole reliance. Similar is the case with respect to testimony of Ashrafkhan's daughter aged about 15 years at the relevant point of time, whose version is not in consonance exactly with that of earlier witness Aminabibi. The entire episode which allegedly has taken place at Vankarvas, according to her testimony. However, nobody has seen this incident and her statement is again taken by the police after more than a period of 10 days and has been examined in the year 2005 after almost a period of more than 3 years.
8. These are the circumstances prevailing on the evidence which if to be looked into, it appears that the prosecution has Page 27 of 55 HC-NIC Page 27 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT not been able to establish the case against the respondents accused beyond reasonable doubt. There are certain circumstances which suggest that there appears to be a serious lapse in the investigation, the manner in which it has been undertaken. It appears further from the record that pursuant to the order whereby, further investigation was ordered on 30.4.2005, the prosecution appears to have not submitted the report as per the direction. On the contrary, a further period of 30 days was sought which clearly suggests that no further investigation report is submitted which fact also indicates that there is no enough material secured by the prosecution which can be easily seen from page-281 of paper- book compilation whereby, at Exh.74 a further time was sought of 30 days.
9. The aforesaid scenario also further indicates that on 4.6.2005, casually a step was taken to issue summons upon the witnesses which is reflecting on Page-309 of the paper- book compilation. The other witnesses who are pressed into service for establishing the case, namely, PW-12 - Mithaji Thakore and PW-13 - Jyotsnaben Sureshbhai Parmar are not revealing anything which suggests the case against the respondents accused. Nothing appears to have come out from yet another testimony of PW-15 - Rohit Dhulji Baranda, from whom the investigation was taken back by Dy.S.P Shri Pandor and therefore, comprehensive analysis of the evidence on record is suggesting that there appears to be no cogent material to connect the respondents accused so cogently to hold them guilty. The aforesaid analysis has further reflected that there is inadequate material brought by the prosecution and have thanked themselves for their own insufficiency and Page 28 of 55 HC-NIC Page 28 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT infirmities. It is cardinal principles of criminal jurisprudence that merely on the basis of inferences and surmises, no order of conviction can be passed. It is the legal obligation on the part of prosecution agency to establish the guilt beyond reasonable doubt. The aforesaid comprehensive analysis of the case has rather constrained us to accept the fact that legal obligation appears to have not been performed or discharged by the prosecution to connect the respondents accused so cogently with commission of crime.
10. Before dealing with respective decisions cited by the learned counsel appearing for the respective parties, we are mindful of the fact the decision of the Apex Court in case of State of A.P. v. M. Radha Krishna Murthy, reported in 2009 (5) SCC 117 wherein, it has been held that circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases and therefore, disposal of the cases by blindly placing reliance on a decision is not proper. Relevant extract of the aforesaid decision are in Para.6 and 8 which are reproduced hereinafter:
"6. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret Page 29 of 55 HC-NIC Page 29 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
8. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper."
11. Of course, we may say that the reasons which are assigned by the trial court in passing an order of acquittal appear to be not sound or sufficient. But for that to analyze and examine the truth and trustworthiness of the case of prosecution, we have undertaken comprehensive analysis of the entire evidence which has revealed the aforesaid material and therefore, we are of the considered opinion that the same is not sufficient enough to connect the respondents accused and hold them guilty.
12. As the degree of proof which is required in criminal proceeding is much more than the degree of proof which is required in any other proceedings and therefore, there must be impeachable evidence sufficient enough to connect the respondents accused with commission of crime and as we have evaluated the evidences which are reflecting on record, on the contrary, suggest that not only there was an irregularity in investigation but, while leading evidence also, Page 30 of 55 HC-NIC Page 30 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT the prosecution appears to have not discharged its burden to the fullest extent. The testimony of complainant - Bhikhumiya practically is not reflecting anything which can cogently connect the respondents accused. The injured eye witness Mohmed, who can be said to be a material witness, has not supported at all the case of prosecution and even from his cross-examination, nothing sufficient is reflecting which can indicate that respondents accused are the only persons out of the mob responsible for inflicting the injuries. In addition thereto, the medical evidence is not in consistence with the ocular evidence. For example, two persons have been thrown from the second floor of hospital, their injuries are not corroborating the versions which have been given by the witnesses in ocular evidence. In addition thereto, it appears from the record that though there was a specific direction reflecting on Page-223 of paper book compilation wherein, a detailed report was to be submitted with the rider that due and careful investigation is expected from the Investigating Officer. Still, however, it appears from the record that no such cogent material is further added even though an opportunity was given to the prosecution and therefore, it appears that though the opportunity was given to the prosecution to lead cogent evidence in connection with the incident in question, no serious steps appeared to have been taken. An attempt made by the learned counsel for the State to rely upon the testimony of Aminabibi, whose statement is undisputedly recorded after a period of more than 10 days and again, she is not the witness to the incident which took place at the hospital. The narration of the incident which occurred at civil hospital, Visnagar, the panchnama is not reflecting anything and therefore, it appears from overall analysis that on the Page 31 of 55 HC-NIC Page 31 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT basis of such kind of casual investigation and the deposition of the witnesses, it is not safe to hold the respondents accused of guilty of an offence even if crime is serious. The incident in question is not only serious enough but, as a responsible prosecuting agency, the cogent material ought to have been led before the trial court which appears to have not been led. The burden of degree which was expected has not been observed which has left no option but, to grant benefit in favour of respondents accused.
13. Therefore, in the background of this, before opining any further we may observe some of the observations of the Supreme Court on the issue of onus to prove, on the issue of appreciation of evidence and further on the issue of exercising appellate jurisdiction while dealing with an order of acquittal.
13.1 In the decision delivered by the Supreme Court in case of Sureshkumar V/s. State of Haryana, reported in (2013) 16 SCC 353, it was observed that if two views are possible, the High Court should hold in favour of the accused and should not interfere with an order of acquittal. The relevant observations of the decision are reflected in Para.55, 56 and 57 which read as under :
55. The second contention is that the High Court ought not to have interfered in the acquittal by the Trial Court.
It was submitted that if two views are possible, the High Court should lean in favour of the accused and should not interfere with an acquittal.
56. A few years ago, the law on the subject was culled out from a large number of decisions and summed up in Ghurey Lal v. State of U.P., (2008) 10 SCC 450 : (AIR 2009 SC (Supp) 1318 : 2008 AIR SCW 6598) as follows:
Page 32 of 55HC-NIC Page 32 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT "1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court.
The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:
i. The trial court's conclusion with regard to the facts is palpably wrong;
ii. The trial court's decision was based on an erroneous view of law;
iii. The trial court's judgment is likely to result in Page 33 of 55 HC-NIC Page 33 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT "grave miscarriage of justice";
iv. The entire approach of the trial court in dealing with the evidence was patently illegal;
v. The trial court's judgment was manifestly unjust and unreasonable;
vi. The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. vii. This list is intended to be illustrative, not exhaustive."
57. Learned counsel for Suresh Kumar referred to S. Anil Kumar v. State of Karnataka, (2013) 7 SCC 219 : (2013 AIR SCW 6180) particularly paragraph 14 of the Report wherein reliance was placed on Rohtash v. State of Haryana, (2012) 6 SCC 589 : (AIR 2012 SC 2297 : 2012 AIR SCW 3318) to conclude that it is "only in exceptional cases where there are compelling circumstances and where the judgment in appeal is found to be perverse, can the High Court interfere with the order of acquittal."
In Rohtash it was further observed:
"The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan v. Talevar, (2011) 11 SCC 666 : (AIR 2011 SC 2271 : 2011 AIR SCW 3889) Govindaraju v. State (2012) 4 SCC 722 :
(AIR 2012 SC 1292 : 2012 AIR SCW 1994).
13.2 In yet another decision in the case of Ramaiah @ Rama Vs. State of Karnataka, 2014(9) SCC 365, it has been held by Hon'ble Apex Court that if two views are possible on the evidence adduced and the one favourable to the accused has been taken by the trial court, it should not be disturbed as Page 34 of 55 HC-NIC Page 34 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT observed in paragraph Nos.30 and 31.
13.3 In the case of Upendra Pradhan Vs. State of Orissa, 2015 (5) Scale 634, it has been held by Hon'ble Apex Court that when there are two views culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. Paragraph No.10 of the said decision reads thus:
"10. Taking the First question for consideration, we are of the view that in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. It has been recognized as a human right by this Court. In Narendra Singh and another v. State of M.P., (2004) 10 SCC 699 : (AIR 2004 SC 3249), this Court has recognized presumption of innocence as a human right and has gone on to say that:
"30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may be' and 'must be'.
31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court.
xxx xxx xxx xxx xxx
33. We, thus, having regard to the post-mortem report, are of the opinion that the cause of death of Page 35 of 55 HC-NIC Page 35 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT Bimla Bai although is shrouded in mistery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld.
13.4 The decision taken by the Apex Court in the case of V. Sejappa Vs. State, reported in 2016 AIR (SC) 2045, wherein the apex Court in paragraph no.21 observed thus:
21. If the evaluation of the evidence and the findings recorded by the trial court does not suffer from any illegality or perversity and the grounds on which the trial court has based its conclusion are reasonable and plausible, the High Court should not disturb the order of acquittal if another view is possible. Merely because the appellate court on re- appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. In State through Inspector of Police, A.P. v. K. Narasimhachary (2005) 8 SCC 364, this Court reiterated the well settled principle that if two views are possible, the appellate court should not interfere with the acquittal by the lower court and that only where the material on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court. The same view was reiterated in T. Subramanian v. State of T.N. (2006) 1 SCC 401.
14. Now, in the aforesaid background of peripheral scope of jurisdiction, we may deal with some of the decisions which have been pressed into service by learned counsel for the respective parties. One such decision of the Apex Court in case of Anup Lal Yadav & Anr., Surang Lal Yadav v. State of Bihar, reported in 2014 Law Suit (SC) 815. It has been contended by Mr.Panchal that in this decision also, there was a mob attack and in the background of that fact, the Apex Page 36 of 55 HC-NIC Page 36 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT Court has propounded the proposition that once it is established that unlawful assembly had a common object, it is not necessary that all persons forming unlawful assembly must be shown to have committed some overt act, rather they can be convicted under Section 149 of IPC and therefore, the order of conviction in that case is upheld by the Apex Court. This Court is completely in conformity with the said principle, rather bound by the said principle. But in that particular case there was an overwhelming evidence of prosecution witness, who categorically described the role played by the accused persons and there was sufficient material to establish their presence, about their role and about their overt act and in that peculiar set of circumstance, the Apex Court had confirmed the order of conviction. Whereas the case on hand, as discussed above, has a different set of circumstance. There appears to be no such cogent evidence about the categorical role played by each of the accused and not only that but, there seem to be no consistency in medical evidence as well as ocular evidence and further, here is a case where even the main witnesses have chosen not to support the case of prosecution. There appears to be serious flaw in proving the case against the respondents accused by the prosecuting machinery and therefore, the background of this fact on hand is not permitting the Court to straightaway adopt such principle and hold the respondents accused guilty of an offence and therefore, the case has a different fact situation, we are unable to apply the principle as a straitjacket formula.
14.1 Yet another decision which has been relied upon by Mr.Panchal is in case of Subal Ghorai & Ors. v. State of West Bengal, reported in 2013 Law Suit (SC) 275 and by Page 37 of 55 HC-NIC Page 37 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT referring this, it has been contended by Mr.Panchal that even if related witnesses are there, their testimonies cannot be over looked. We are in agreement with the said proposition laid down by the aforesaid decision. But when such related witnesses' testimonies are not corroborated by medical evidence, not corroborated by any other independent material and therefore, if same is not inspiring any confidence any more than truthfulness is shaken and therefore, even if the aforesaid principle is tried to be stretched in the background of present facts, we are unable to apply so mechanically the ratio laid down by the Apex Court in the peculiar set of circumstance prevailing on that case.
14.2 Yet another decision is tried to be pressed into service by Mr.Panchal in case of Namdeo v. State of Maharashtra, reported in 2007 Law Suit (SC) 296, where the interested witnesses and natural witnesses is characterized. Here, the quality of evidence is material and not the quantity which principle is enunciated by the Apex Court but, the detailed facts which are narrated and analyzed on the background of present fact, we are not in a position to safely apply this principle as practically the evidence is found to be so inadequate of the present case which can permit us to examine from the stand point of the view taken in the aforesaid decision. In facts of the present case, no doubt, Aminabi even if interested witness and who can be said to be the natural witness then also, the natural witness's version has to be corroborated and must have been sounded with confidence which is missing in the present scenario and therefore, we are unable to apply this principle and hence, the aforesaid decision which is relied upon by Mr.Panchal is of no Page 38 of 55 HC-NIC Page 38 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT avail.
14.3 Mr.Panchal, learned Special Public Prosecutor has further tried to rely upon a decision of the Apex Court in case of D.K.Rajendran & Ors. v. State of Tamil Nadu, reported in AIR 2010 SC 3718(1), to indicate that defect in investigation should not be made a sole base for passing an order of acquittal. Now, to rely upon this judgment, Mr.Panchal has drawn our attention to Para.44 of the said decision in which the judgment of the Apex Court was described in such a situation where there was a defect in investigation. But, here apart from the defect of investigation in the present case, even the testimonies which are brought on record to establish the guilt are not sufficient enough to indicate that such defect of investigation has an impact on the testimony. On the contrary, the court wanted to examine the testimony irrespective of the defect of investigation but, the discussion and analysis of evidence on record as undertaken by us in earlier paragraphs would clearly indicate that apart from defect of investigation, even the evidence of witnesses should have been examined, has also not led any sufficient material to justify the role of the respondents accused. Had it been succinctly placed on record the entire version with proper material, the case might have been viewed in a different context. But we unfortunately are not in a position to find any stinking material which can even connect the circumstance against the respondents accused so cogently to hold them guilty and therefore, here on the case on hand, not only an order of acquittal is passed by the trial court or by us on the basis of defective investigation but even the evidence whatever is led, has also not found any sufficiency and Page 39 of 55 HC-NIC Page 39 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT therefore, we respectfully agree with the role and duty assigned to the court but then, the lapses are so vital and other evidence so inadequate, we cannot apply any converse theory. Even on the basis of hostile witnesses, we have undertaken an exercise of examining whether any connecting link is available so safe to reverse the acquittal but, unfortunately the material is not sufficient enough to arrive at such a conclusion and therefore, with this material on record, the case on hand irrespective of defect in investigation, we found no other proper material and therefore, respectfully agreeing with the proposition laid down by the Apex Court in the aforesaid decision, we are unable to reverse the order of acquittal.
14.4 Yet another decision is tried to be relied upon by Mr.Panchal is in case of Umesh Singh v. State of Jharkhand & Anr., reported in AIR 2011 SC 1403 which is again with respect to deficiency in investigation. As discussed above, the deficiency in investigation is not the sole consideration while dealing with the present case on hand and therefore, ratio laid down by the Apex Curt no doubt has got an impact on appreciation of evidence but, the same is not possible to be stretched to pass an order of acquittal and therefore, this decision is also of no avail to the appellant.
14.5 Mr.Panchal then has made an attempt to rely upon yet another decision of the Apex Court in case of Ashwani Kumar @ Ashu & Anr. v. State of Punjab, reported in 2015 Law Suit (SC) 356. By referring this decision, a contention is raised by learned counsel that if witness is trustworthy and reliable, the mere fact that no test Page 40 of 55 HC-NIC Page 40 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT identification parade was conducted would not be a reason to discard the evidence of the witness. So on the issue of admissibility of evidence, an attempt is made by Mr.Panchal to rely upon the principle. But, as we have stated earlier that witness's evidences on the case on hand are not that much trustworthy or reliable to hold the respondents accused guilty. The detailed analysis of the entire evidence would not permit us to jump to the conclusion by applying the principle laid down by the Apex Court in the aforesaid decision.
14.6 Mr.Panchal has further tried to develop the case by referring one another decision of the Apex Court in case of Pargan Singh; Harminder Singh v. State of Punjab & Anr., reported in 2014 Law Suit (SC) 655. However, the aforesaid decision is based upon an issue whether the extra- judicial confession is warranted by suspicious circumstances, its credibility becomes doubtful or not. The Apex Court in a different facts and circumstances than the case on hand, has propounded the proposition which appears to be not attracted in the present case and therefore, the basis of such ratio cannot be implanted to reverse an order of acquittal.
14.7 Mr.Panchal then has made an attempt further to rely upon the decision delivered by the Apex Court in case of Jasvinder Saini & Ors. v. State (Govt. of NCT of Delhi), reported in 2013 Law Suit (SC) 559 in which the case was related to dowry death where the charge was framed with respect to an offence of Section 302 of IPC and in that context, the Apex Court has propounded that if the main charge under Section 302 of IPC is not proved against the accused at the trial, the Court can look into the evidence to Page 41 of 55 HC-NIC Page 41 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT determine whether alternate charge of dowry death is established or not. Now, here the background of fact is altogether different. Even prima facie there seem to be no material on record to justify even the conclusion of any other charge on account of inadequacy of cogent material, on account of faulty investigation and on account of witnesses who have turned hostile and chosen not to support the case of prosecution, this ratio laid down is altogether in a different facts. No doubt, that ratio laid down by the Apex Court is salutary but, we are unable to accept the same to apply on the present case on hand.
14.8 Yet another decision which is cited by Mr.Panchal is in case of Sanichar Sahni v. State of Bihar, reported in 2009 Law Suit (SC) 891 in which the Apex Court was again dealing with the issue relating to framing of charge and was dealing with an order of conviction wherein, it has been held that even if specific question by the trial court about conspiracy is asked and even if there is a defect in framing of the charge, no interference was called for on account of mere technicalities. Whereas the background of fact is altogether different and therefore, without disputing such proposition of law laid down by the Apex Court in the aforesaid decision, we are respectfully unable to accept the same and not in a position to implant straightway to reverse the order of acquittal.
15. Mr.M.M.Tirmizi, learned counsel appearing for and with prosecution has also referred to some of the decisions delivered by the Apex Court. Such decisions are in case of National Human Rights Commission v. State of Gujarat, Page 42 of 55 HC-NIC Page 42 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT reported in 2008 Law Suit (SC) 2484; in case of Zahira Habibulla H Sheikh v. State of Gujarat, reported in 2004 Law Suit (SC) 437; in case of Veer Singh & Ors. v. State of U.P., reported in 2013 Law Suit (SC) 1133 as also in case of State of Punjab v. Karnail Singh, reported in 2003 Law Suit (SC) 755.
16. Having gone through the aforesaid decisions, our anxious consideration has led us to recollect the analysis undertaken by the trial court as well as by us in aforesaid form and we are not doubt respectfully agreeing to the principle laid down by the aforesaid decisions. But the facts are not permitting us to implant these principles straightway as a straitjacket formula. The ratio laid down in case of Karnail Singh (supra) is dealing with an evidentirary value of the related witnesses and also dealing with an order of acquittal. But, we have discussed the background of present fact above which would indicate that said decision is not possible to be straightway applied. The decision reported in case of National Human Rights Commission (supra) in which the Apex Court has given an indication and direction to Special Investigating Team whereby, they were permitted to act freely to work out their modality and norms required to be followed for the purpose of investigation including further investigation as the sole object of criminal justice system is to ensure that a person who is guilty of an offence is punished. But here as we have stated earlier and reiterate that even if further direction given under Section 173(8), nothing much is collected which has practically constrained the court to grant benefit in the absence of any cogent material even under Page 43 of 55 HC-NIC Page 43 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT further investigation and therefore, we are mindful of the aforesaid decisions delivered by the Apex Court but, the same are of no avail to the learned counsel appearing for the supporting prosecution.
17. The decision in case of Veer Singh & Ors. (supra) is in different context of facts which necessitated us not to apply the principle as a straitjacket formula as the case was with respect to house trespass and murder. The principle not doubt is undisputed but, we are not in a position to press into service to reverse the order of acquittal. Again, in case of Zahira Habibulla H Sheikh (Supra), the Apex Court has dealt with in a different contextual facts wherein, the trial before the court was found to be inappropriate in which context a principle was propounded that threat to witnesses or non-hearing of material witnesses amount to denial of fair trial and State has to ensure that during the trial, witness could safely depose truth without any fear. The protection which was envisaged was no doubt was expedient in the background of that fact. But here the testimony of hostile witnesses including injured witness has reflected no such fear, no attempt was made by the accused persons to apply in that context and even the prosecution agency's case was also not such which would warrant us to dwell much into such decision and therefore, by keeping the decisions in mind, we are of the opinion that the stand taken by the learned counsel has no strength to unturn the order of acquittal.
18. To oppose the stand taken by the appellant in this proceeding, in addition to the contentions raised by Mr.Harnish V. Darji, learned counsel for the respondents Page 44 of 55 HC-NIC Page 44 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT accused narrated above, he also cited some of the decisions to assist the Court and to substantiate his contentions. One of such decision is in case of State of Rajasthan v. Shiv Charan & Ors., reported in 2013 Law Suit (SC) 544. By referring to this, Mr.Darji has contended that the persons cannot be convicted by resorting to Sections 148 and 149 simply because they happened to be allegedly in the mob. In fact, here on the case on hand, the identity is also not free from doubt of the respondents accused. But even then role is not ascribed which would permit the Court to hold them guilty. The pivotal question of applicability of Section 149 of IPC has its foundation on constructive liability which is the sine qua non for its application. Essentially two ingredients are required to be established by the prosecution (i) offence committed by any member of any unlawful assembly consisting five or more members and (ii) such offence must be committed in prosecution of the common object of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. Now, if this be surfaced from the evidence on record then only, a person can be held guilty in view of Section 149 of IPC and therefore, by citing this decision more particularly relying upon Para.16 thereof, it has been contended that no error is committed by the trial court in acquitting the respondents accused.
18.1 Yet another decision which is relied upon is in case of Anup Lal Yadav & Anr. v. Surang Lal Yadav v. State of Bihar, reported in 2014 Law Suit (SC) 815, which is on the very same issue about vicarious criminal liability as envisaged under Section 149 of IPC which makes a member of unlawful assembly responsible as a principal for the acts of each, and Page 45 of 55 HC-NIC Page 45 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT all, merely because he is a member of an unlawful assembly. The ingredients which are stipulated must have been brought on record by the prosecution then only, the principle of such liability as stipulated under Section 149 of IPC can be called in question.
18.2 Mr.Darji has further tried to rely upon yet another decision on this issue related to Section 149 of IPC and has also canvassed other issues related to the scope of interference in acquittal appeal and relying upon this decision in case of State of Punjab v. Sukhchain Singh, reported in 2008 Law Suit (SC) 1649. By referring this decision, it has been contended that the background of fact is such where it is not possible to come to a definite conclusion to hold the respondents accused guilty of an offence and therefore, learned counsel has requested the Court that no error is committed and this is not a fit case in which the order of acquittal is to be reversed. Mr.Darji, learned counsel has pointed out that scope of interference is well known by catena of decisions and looking to this scope spelt out by series of decisions which are also reflected in the aforesaid decision, no interference is warranted.
18.3 Mr.Darji has further drawn our attention to yet another decision of Apex Court in case of Ghurey Lal v. State of UP, reported in 2008 Law Suit (SC) 2059 which deals with the scope of appeal against an order of acquittal. By referring to Para.34 of the aforesaid decision, Mr.Darji has contended that this is not a fit case in which in the absence of legal infirmity, an order of acquittal is to be reversed. In the said decision, there are large number of other decisions have also been Page 46 of 55 HC-NIC Page 46 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT relied upon by the Apex Court and by considering the observations made therein, we are also of the view that this is not a case in which interference is warranted. The relevant extract of the said decision contained in Para.45 which is reproduced hereinafter :
"45. The earliest case that dealt with the controversy in issue was Sheo Swarup v. King Emperor AIR 1934 Privy Council 227. In this case, the ambit and scope of the powers of the appellate court in dealing with an appeal against acquittal has been aptly elucidated by the Privy Council. Lord Russell writing the judgment has observed as under: (at p. 230):
"..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 to 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.."
The law succinctly crystallized in this case has been consistently followed by this Court. On proper analysis of the ratio and findings of this case, it is revealed that the findings of the trial court are based on the fundamental principles of the criminal jurisprudence. Presumption of innocence in favour of the accused further gets reinforced and strengthened by the acquittal of the trial court. The appellate court undoubtedly has wide powers of re-appreciating and re-evaluating the entire evidence but it would be justified in interfering with the judgment of acquittal only when the judgment of the trial court is palpably wrong, totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and non- existent material, demonstrably unsustainable or perverse."
Page 47 of 55HC-NIC Page 47 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT 18.4 Yet another decision of the Apex Court in case of Basappa v. State of Karnataka, reported in (2014) 5 SCC 154 has been brought to our notice by Mr.Darji, learned counsel for the respondents wherein, the Apex Court has propounded in the recent time the proposition about interference by appellate court in an order of acquittal. Relevant extract of the said decision are in Para.9, 10, 11, 12, 13, 14 and 16 worth to be taken note of is reproduced hereinafter :
"9. The High Court in an appeal under Section 378 of Cr.PC is entitled to reappraise the evidence and conclusions drawn by the trial court, but the same is permissible only if the judgment of the trial court is perverse, as held by this Court in Gamini Bala Koteswara Rao and Others v. State of Andhra Pradesh through Secretary[1]. To quote:
"14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so."
(Emphasis supplied)
10. It is also not the case of the prosecution that the judgment of the trial court is based on no material or that it suffered from any legal infirmity in the sense that there was non-consideration or misappreciation of the evidence on record. Only in such circumstances, reversal of the acquittal by the Page 48 of 55 HC-NIC Page 48 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT High Court would be justified. In K. Prakashan v. P.K. Surenderan[2], it has also been affirmed by this Court that the appellate court should not reverse the acquittal merely because another view is possible on the evidence. In T. Subramanian v. State of Tamil Nadu[3], it has further been held by this Court that if two views are reasonably possible on the very same evidence, it cannot be said that the prosecution has proved the case beyond reasonable doubt.
11. In Bhim Singh v. State of Haryana[4], it has been clarified that interference by the appellate court against an order of acquittal would be justified only if the view taken by the trial court is one which no reasonable person would in the given circumstances, take.
12. In Kallu alias Masih and others v. State of Madhya Pradesh, it has been held by this Court that if the view taken by the trial court is a plausible view, the High Court will not be justified in reversing it merely because a different view is possible. To quote:
"8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court."
(Emphasis supplied) "12. In Ramesh Babulal Doshi v. State of Gujarat[6], this Court has taken the view that while considering the appeal against acquittal, the appellate court is first Page 49 of 55 HC-NIC Page 49 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable and if the court answers the above question in negative, the acquittal cannot be disturbed. To quote:
"7. ... the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then -- and then only -- reappraise the evidence to arrive at its own conclusions. ..."
(Emphasis supplied)
14. In Ganpat v. State of Haryana and others[7], at paragraph-15, some of the above principles have been restated. To quote:
"15. The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly, against an order of acquittal:
(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.
(ii) The appellate court can also review the trial court's conclusion with respect to both facts and law.
(iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.Page 50 of 55
HC-NIC Page 50 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT
(iv) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons"
for doing so. If the order is"clearly unreasonable", it is a compelling reason for interference.
(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed. ..."
16. In this context, yet another caution struck by this Court in Chandrappa and others v. State of Karnataka would also be relevant.
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption Page 51 of 55 HC-NIC Page 51 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(Emphasis supplied)"
18.5 Yet another decision relied upon by Mr.Darji is in case of Kanu Ambu Vish v. The State of Maharashtra, reported in AIR 1971 SC 2256. Since the said decision is also indicating the very same proposition of law of interference by appellate court in an appeal against an order of acquittal, without dwelling much into that, said principle is adopted in the background of present fact. Hence, we deem it proper to opine that the scope of interference is limited and circumscribed.
18.6 Yet another decision relied upon by learned counsel for the respondent is in case of State of Gujarat v. Jayrajbhai Punjabhai Varu, reported in AIR 2016 SC 3218 wherein, the Apex Court has propounded that burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the respondents accused beyond all reasonable doubt and if two views are possible then, the view which is in favour of the accused should be adopted and therefore, said principle which is enunciated by the Apex Court more aptly referred to in Para.13, we deem it proper to Page 52 of 55 HC-NIC Page 52 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT quote hereinafter;
"13. The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted."
18.6.1 Therefore, in view of aforesaid decision cited before us by the learned counsel for the respondents accused, we are in conformity with the law laid down by the Apex Court in the cases cited hereinbefore and we are of the considered opinion that this is a fit case in which the order of acquittal is required to be confirmed. There appears to be no stinking material distinguishable from the views which have been taken by the trial court, we are unable to unturn the order of acquittal. We are also mindful of the another decision of the Apex Court in case of Baldeo Singh & Ors. v. State of Bihar, reported in AIR 1972 SC 464 in which by referring to the testimony of group rivalries wherein large number of persons are involved, it is almost impossible to particularize the blows and the veracity of the testimony becomes doubtful. In nutshell, we are of the view that the comprehensive analysis of the evidence on record suggests that the prosecution has miserably failed to prove the offence against the respondents accused beyond reasonable doubt in the present case. As we have analyzed the evidence even independent from the views expressed by the trial court, we hereby deem it proper not to interfere with an order of acquittal passed by the trial court. Accordingly, we found the State's appeal as meritless and the same deserves to be dismissed.
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19. Lastly, we also consider the possibility of considering the submission of retrial as canvassed by Mr.Tirmizi, learned counsel. But on practicality of the situation prevailing on the case on hand, we are unable to accede to such request. We are mindful of the fact that this incident in question allegedly occurred in 2002 and after almost a period of about 15 to 17 years, no evidence worth would come forward which may help out the prosecution in any manner as it had not come even at that point of time. We are not considering this request keeping in mind the additional factor that not only at the relevant point, important steps have not been taken by the investigating agency of executing panchnama of proper place to find out and by taking steps at the relevant point of time and to record the testimony of important witnesses and that has not been done even after a chance was given by the trial court and therefore, since prior to almost 15 to 17 years even after chance having been given, the same had not been utilized, we are unable to appreciate such submission and deem it proper not to accede to such request and the same is rejected hereby.
20. The present appeal is accordingly dismissed. The judgment and order, dated 30.6.2005, passed in Sessions Case No.229 of 2004, by the learned Additional Sessions Judge and Presiding Officer, Mehsana is hereby confirmed. Bail bonds, if any, shall stand discharged. Record and Proceedings be sent back to the trial Court concerned, forthwith.
Page 54 of 55HC-NIC Page 54 of 55 Created On Fri May 05 03:34:20 IST 2017 R/CR.A/102/2006 CAV JUDGMENT (S.R.BRAHMBHATT, J.) (A.J. SHASTRI, J.) vipul Page 55 of 55 HC-NIC Page 55 of 55 Created On Fri May 05 03:34:20 IST 2017