Gujarat High Court
Manu Golanbhai Khachar vs State Of ... on 29 January, 2016
Author: Ks Jhaveri
Bench: Ks Jhaveri, R.P.Dholaria
R/CR.A/2888/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2888 of 2008
With
CRIMINAL APPEAL NO. 1039 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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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MANU GOLANBHAI KHACHAR....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance In Criminal Appeal No. 2888 of 2008:
MRS REKHA H KAPADIA, ADVOCATE for the Appellant(s) No. 1
MR LR POOJARI, ADDL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
Appearance In Criminal Appeal No. 2888 of 2008:
MR LR POOJARI, ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1
MRS REKHA H KAPADIA, ADVOCATE for the Opponent(s)/Respondent(s) No.
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 29/01/2016
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. By way of these appeals original accused no. 4 as well as the State have challenged the judgement and order dated 19.12.2007 passed by the learned 2nd Fast Track Court Judge, Junagadh in Sessions Case No. 01 of 2005 whereby the trial court has convicted original accused no. 4 under sections 302 of Indian Penal Code and 135 of B.P. Act and ordered to undergo rigorous imprisonment for life & fine of Rs. 2000/- in default to undergo simple imprisonment for two months for offence under section 302 of Indian Penal Code and rigorous imprisonment for six months & fine of Rs. 500/- in default to undergo simple imprisonment for one month for offence under section 135 of B.P. Act. Criminal Appeal No. 2888 of 2008 has been preferred by original accused no. 4 against his conviction whereas Criminal Appeal No. 1039 of 2008 has been preferred by the State against the acquittal of original accused nos. 1 to 3.
2. The short facts of the prosecution case are that on 27.10.2004, while the complainant was returning back to village from his farm, Badru Tapu passed through his way and shouted certain words "Taru puru kari nakhyu, tu ja" (your work has been finished, you go) which the complainant could Page 2 of 15 HC-NIC Page 2 of 15 Created On Fri Feb 05 00:04:40 IST 2016 R/CR.A/2888/2008 JUDGMENT not understand. Thereafter at around 04.30 pm, when the complainant reached marketplace, his maternal uncle's son informed him that his son - deceased had been murdered and he also informed the complainant that when he was returning from his farm he saw the accused persons with axe and that the axe of accused no. 2 was stained with blood. It is the case of the prosecution that the complainant went to the place where the dead body was lying and saw that his son was heavily bleeding. It is the prosecution case that at that time one Badru Ravat told him that he had seen the accused persons having a quarrel with the deceased and therefore the complainant lodged the complaint.
2.1 The accused were apprehended and after investigation charge sheet was submitted. The case was committed to the Court of Sessions. The trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses as oral evidence whose evidence have been read out before us :
P.W. Name of Witness Exhibit
No. No.
1 Dr. Hemantlal Sakariya 14
2 Jagubhai Selarbhai 22
3 Suleman Sultanbhai 26
4 Dhirubhai Nathabhai 28
5 Karimkhan Samirkhan 29
6 Haresh Ratilal 31
7 Suresh Jagjivan 33
8 Jagubhai Suragbhai 36
9 Badrubhai Ravatbhai 39
10 Selarbhai Mulubhai 40
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11 Kanubhai Amrubhai 41
12 Jagmalbhai Humbal 42
13 Bhagwanbhai Bharwad 48
2.2 The prosecution also relied upon the following
documents as documentary evidences which have been perused by us such as inquest panchnama at Ex. 16, Death form at Ex. 17, P.M. Note at Ex. 18, yadi at Ex. 19/20/21, scene of offence panchnama at Ex. 24, arrest panchnamas of accused at Ex. 27/30, complaint at Ex. 37, FSL report at Ex. 53 and serological report at Ex. 55/57 etc. 2.3 At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the trial court convicted accused no. 4 as mentioned aforesaid. The trial court acquitted original accused nos. 1 to 3. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the accused and the State have preferred the present appeals.
3. Ms. Rekha Kapadia, learned advocate appearing for the accused has contended that there is nothing on record to establish that original accused no. 4 is involved in this case except the complaint and the evidence of P.Ws. 8 & 10 read with evidence of P.W. 9 who has been ultimately declared hostile. She submitted that in absence of any eye witness in the present case, the trial court has erred in convicting original accused no. 4 on the basis of circumstantial evidence when the chain has not been completed by the prosecution. She has drawn the attention of this Court to the post mortem Page 4 of 15 HC-NIC Page 4 of 15 Created On Fri Feb 05 00:04:40 IST 2016 R/CR.A/2888/2008 JUDGMENT report and the evidence of the doctor who performed post mortem and submitted that from the same it is clear that the deceased had died due to injuries which could have been sustained by an axe. She submitted that it may be noted that the alleged threat even otherwise was not administered by original accused no. 4. She submitted that even if the evidence of P.W. 8 & 10 is taken into consideration, it is not proved beyond reasonable doubt as to which accused had given the alleged blow. She submitted that original accused no. 4 deserves to be granted benefit of doubt as there is no clear evidence against him. Ms. Kapadia has relied upon a decision of the Apex Court in the case of Pohalya Motya Valvi vs. State of Maharashtra reported in (1980) 1 SCC 530 and submitted that each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence and that the circumstance must be of an incriminating character.
4. Mr. L.R. Poojari, learned APP, however, submitted that the trial court has given cogent reasons for sustaining the conviction under section 302 of Indian Penal Code and this court may not interfere in the conviction appeal filed by the accused. He stated that the trial court has based the conviction not only on the evidence of witnesses but also considered entire circumstances of the case and the facts which are proved by cogent evidence. He has drawn the attention of this Court to the statements of P.W. 8 & P.W. 10 and the cross examination of P.W 9 and submitted that these witnesses have supported the contents of the FIR. He has submitted that in view of the post mortem report and the cause of death, the possibility of accidental death is clearly Page 5 of 15 HC-NIC Page 5 of 15 Created On Fri Feb 05 00:04:40 IST 2016 R/CR.A/2888/2008 JUDGMENT ruled out. He contended that no benefit of doubt is required to be given to the accused as the four accused persons were seen together near the scene of offence. He further submitted that the trial court has erred in acquitting original accused nos. 1 to 3 when the prosecution has successfully proved the case against them beyond reasonable doubt.
5. We have perused the records of the case. The case is based on circumstantial evidence in the absence of any eye witness. There is no direct evidence implicating the appellants. It is trite that all the proved circumstances must provide a complete chain, no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence.
5.1 As per the latest decision of the Apex Court, we have appreciated, re-appreciated and re-evaluated the evidence led before the trial court in its entirety but we are unable to persuade ourselves to take a different view than the one taken by the trial court. In the present case, the trial court has mainly relied upon the testimonies of two witnesses viz. P.W. 8 - Jagubhai Suragbhai (Ex. 36) and P.W. 10 - Selarbhai Mulubhai (Ex. 40). Let us go through the evidence of these witnesses at the outset.
6. P.W. 8 - Jagubhai Suragbhai who is the father of the deceased has deposed that on the date of incident, he had gone to his farm as the opener had not come. At that time, this witness met Badru Tapu on the way to Kankai. P.W. 8 stated that Badru Tapu told him that they had put an end to his task. He did not understand anything. It was about 4.30 Page 6 of 15 HC-NIC Page 6 of 15 Created On Fri Feb 05 00:04:40 IST 2016 R/CR.A/2888/2008 JUDGMENT O'clock. P.W. 8 has further stated that thereafter, he came back to the village. People had gathered and they were standing in the village. P.W. 8 was told by Selarbhai that his son had been killed. He was also told that the four persons named Badru Tapu, Manu Tapu, Devkubhai Khodubhai and name of fourth person was given which he did not know at that time, met at the Khakhravada. At that time, Selarbhai was coming from his farm. Except this, no any other talk took place. Selarbhai also stated that axes were smeared with blood. Thereafter, they went to the slop of Haldava where the dead body was lying. Badrubhai Ravat and one other person were there but he did not know the name of that person. In addition, many other persons were also present there. P.W. 8 has stated that he saw the dead body of his son Bharat in a bleeding condition. He has stated that he saw the wounds on the head and neck of his son. At that time, Badru Ravat told P.W. 8 that a dispute occurred between Bharatbhai and Badru Tapu, Manu, Devku. Badru Ravat stated that he saw all the above said persons beating Bharat bhai. P.W. 8 has further stated that before eight days of the said incident, Valkubhai, who is son of his uncle, stated that they will kill his son Bharat. P.W. 8 stated that he asked as to why they wanted to kill Bharat. But, he did not speak anything. P.W. 8 further stated that he felt that his son Bharat might have quarreled with all these persons, therefore, Valkubhai had told such thing to him.
6.1 Another material witness in the present case is P.W. 10 - Selarbhai Mulubhai. This witness in her deposition vide Ex. 40 has stated that on the day of incident, he had gone to his field. Thereafter, at about 03 : 00 to 03 : 30 o'clock in the noon, as Page 7 of 15 HC-NIC Page 7 of 15 Created On Fri Feb 05 00:04:40 IST 2016 R/CR.A/2888/2008 JUDGMENT he was going home via Khakharavala Dala Road, Badaru Tapubhai, Pathubhai Golanbhai, Manubhai Golanbhai and Devkubhai Khodbhai came across him. This witness has stated that the four persons were armed with axes, wherein he saw Pathubhai armed with blood stained axe and the remaining persons were armed with axes. These four persons were about 20 - 25 steps away. Thereafter, he went towards his home and those four persons went towards their land via grazing land. This witness has further stated that when he was going to the village, Badrubhai Ravat met him near his home. This witness has stated that Badru Ravat told him that Bharat is murdered. Therefore, this witness told Badru that four persons - Badaru Tapu, Manu Golan, Pathu Golan and Devku Khodu were armed with axes and had met him on the way. This witness has stated that thereafter, he went to the village and Badarubhai went near the dead body with four to five persons of the village. P.W. 10 has stated that he went to the village and informed Jagubhai - the father of Bharat about his murder. This witness has stated that he told that, four persons - Badaru Tapu, Manu Golan, Pathu Golan and Devku Khotu came across him on the way. This witness has clarified that except this, no conversation took place between him and Jagubhai. Thereafter, Jagubhai went near the dead body of Bharat. P.W. 10 has stated that Bharat was working in the shop of Bhabhalubhai who is brother-in-law of the accused Valku. Before a week of the incident, when Bharat was in the shop, Valkubhai was sitting there in the shop and as Jagubhai
- the father of Bharat was passing from there, Valkubhai threatened him to persuade Bharat, otherwise they would kill him.
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7. Considering the nature and number of injuries sustained by the deceased coupled with the evidence of P.W. 1 - Dr. Hemantlal Sakariya, it is clear that the death of deceased was a result of culpable homicide. However, from the evidence of the witnesses it does not come forth that they had seen the accused giving axe blow to the deceased. It is required to be noted that all the four accused were allegedly carrying the same weapon - axe. The threat to the father of deceased was not given by accused no. 4. It is also required to be borne in mind that the blood group of the deceased as well as accused no. 4 is the same. Therefore, it shall be inappropriate to convict the accused merely on the basis of blood stains. No witness has deposed that he had seen the accused no. 4 giving axe blow to the deceased or doing away the deceased. It cannot be said beyond reasonable doubt that it was accused no. 4 who had killed the deceased. The FSL report also does not seem to be conclusive.
8. In the case of Pohalya Motya Valvi (supra), the Apex Court has observed as under:
"5. It is common ground that there is no direct evidence implicating the appellant. Prosecution case rests on circumstantial evidence. As the case depends on circumstantial evidence, at the outset the well-established principles governing the appreciation of evidence in a case dependent upon circumstantial evidence may be borne in mind. Briefly, the principles are that each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence; that the circumstance relied upon must be such as cannot be explained on any hypothesis except the guilt of the accused. In other words, the circumstances must be of an incriminating character. All the Page 9 of 15 HC-NIC Page 9 of 15 Created On Fri Feb 05 00:04:40 IST 2016 R/CR.A/2888/2008 JUDGMENT proved circumstances must provide a complete chain no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence."
9. In the present case, considering the evidence of witnesses as well as the medical evidence, we are of the opinion that the prosecution has proved the fact that the deceased died a homicidal death beyond reasonable doubt. The factum of accidental death is also ruled out considering the FSL reports and the panchnamas on record. However, the fact that it was accused no. 4 who had given axe blow to the deceased is not coming forth from the evidence. We are therefore of the view that accused no. 4 is required to be granted benefit of doubt as the prosecution has failed to complete the chain of events. The witnesses have said that they had seen all the four accused together arguing with the deceased. However, none of them have deposed that they had seen any particular accused inflicting injury or axe blow upon the deceased. The other three accused have been acquitted by the trial court. We, therefore, are of the opinion that the judgement and order passed by the trial court calls for interference so far as conviction of original accused no. 4 is concerned.
10. So far as acquittal appeal is concerned, it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006)6 SCC, 39, the Apex Court has narrated Page 10 of 15 HC-NIC Page 10 of 15 Created On Fri Feb 05 00:04:40 IST 2016 R/CR.A/2888/2008 JUDGMENT about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below."
10.1 Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court laid down the following principles:
"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 curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate court to interfere with acquittal than to Page 11 of 15 HC-NIC Page 11 of 15 Created On Fri Feb 05 00:04:40 IST 2016 R/CR.A/2888/2008 JUDGMENT curtail the power of the court to review the evidence and to come to its own conclusion.
[4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence 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."
10.2 Thus, it is a settled principle that while exercising appellate power, even 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.
10.3 Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to Page 12 of 15 HC-NIC Page 12 of 15 Created On Fri Feb 05 00:04:40 IST 2016 R/CR.A/2888/2008 JUDGMENT be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re- appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."
10.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
10.5 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgement or to give fresh reasonigns, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
"... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93:
(AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."Page 13 of 15
HC-NIC Page 13 of 15 Created On Fri Feb 05 00:04:40 IST 2016 R/CR.A/2888/2008 JUDGMENT 10.6 Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary. from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt so far as original accused no. 5 is concerned. Mr. Poojari, learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record so far as the acquittal of original accused nos. 1 to 3 is concerned. We are therefore of the view that the acquittal appeal filed by the State deserves to be dismissed.
11. For the foregoing reasons, Criminal Appeal No. 2888 of 2008 is allowed. The order of conviction and sentence qua original accused no. 4 dated 19.12.2007 arising from Sessions Case No. 01 of 2005 passed by the 2nd Fast Track Court Judge, Junagadh is quashed and set aside. Original accused no. 4 is acquitted of the charges levelled against him giving benefit of doubt. Since he is on bail, his bail bond shall stand cancelled. The acquittal of original accused nos. 2 to 3 is confirmed. Criminal Appeal No. 1039 of 2008 is dismissed. R & P to be sent to the trial court forthwith.
(K.S.JHAVERI, J.)
(R.P.DHOLARIA,J.)
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divya
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