Gujarat High Court
State Of Gujarat vs Govindbhai Madhubhai Koli on 16 December, 2022
Author: S.H.Vora
Bench: S.H.Vora, Rajendra M. Sareen
R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 594 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE S.H.VORA Sd/-
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
GOVINDBHAI MADHUBHAI KOLI
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Appearance:
MR HK PATEL APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MR TATVDEEP J JANI(7227) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 16/12/2022
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN) Page 1 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022
1. Present Criminal Appeal is filed by the appellant - State of Gujarat being aggrieved by the judgement and order dated 24/03/1999 passed by the learned Sessions Judge, Amreli in Sessions Case No.49 of 1995 whereby the learned Judge has acquitted the accused / respondent from the offence punishable under sections 302, 397 and 451 of Indian Penal Code and under section 135 of Bombay Police Act.
2. Brief case of the prosecution is that on 12/8/1994 at 17.00 hours at Village Hemala, Taluka, taluka Jafarabad, District Amreli, the accused Govind Madhu Koli to fulfill his intention to kill the son of the complainant Madhubhai Rambhai Koli, to rob the clothes etc., enter into the house of the complainant and caused injuries to the son of the complainant named Munna, due to which he succumbed to the injury and robbed the ornaments and clothes worth Rs.4970/- from the house of the complainant.
Therefore, the complaint being CR No.I-56 of 1994 came to be registered on 12/8/1994 for the aforesaid offences.
3. Thereafter, the investigation was set in motion and the investigating officer recorded statements of witnesses, panchnama of the scene of offence and other panchnamas Page 2 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 were prepared, got pospostmortem of the deceased done, muddamal was sent to the FSL, and as there was sufficient against the accused, chargesheet was filed in the court of learned Judicial Magistrate, First Class. As the case was triable by the Sessions Court, the learned Magistrate having no jurisdiction to try the case, the case was committed to the Sessions Court and was numbered as Sessions Case No.49 of 1995.
4. The learned Sessions Judge before whom the case was committed, framed the Charge. The accused denied the contents of the charge. As a result, trial was conducted by the Sessions Judge. Further Statement of the accused under section 313 of the Code of Criminal Procedure was recorded in which accused / respondent denied the charges and prayed for trial. Upon recording of the Further Statement of the accused, arguments were heard by the learned Sessions Judge and thereafter trial was resulted into acquittal of the accused from the charges levelled against him, as a result of which the present appeal is filed by the appellant - State of Gujarat.
5. Mr.H.K. Patel, learned APP relying upon the evidence of Jahiben has vehemently argued that Jahiben was the first person who enter into the house hearing hue and cry of Tikuben and caught hold of the accused and able to see the Page 3 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 respondent / accused and Tikuben had also witnessed the accused running away. As such both hav identified the accused in the court and they have also identified the respondent / accused in the T.I. Parade. This substantial piece of evidence of Jahiben and Tikuben coupled with T.I. Parade conducted by the executive Magistrate has not been believed by the learned Sessions Judge.
6. It is also submitted by the learned APP that the witness Kalubhai Mohanbhai, Kanabhai and other villagers had gone after the respondent / accused and it was found that the respondent was in the house of Pragjibhai Dadubhai in village Ebhalvad and though the witness had chance to see the respondent / accused from near, he has identified him in the court also. This evidence is also not believed by the learned Sessions Judge, which is error apparent on record.
7. The learned APP has further submitted that the judgement and order passed by the learned Sessions Judge is against the evidence on record and provision of law. The learned Sessions Judge has not appreciated and accepted the medical evidence which is corroborated by the version of the eye witness. The learned Sessions Judge has also not appreciated the evidence of the investigating officer in its true and correct perspective. It is further submitted that Sessions Judge has committed a grave error in not believing Page 4 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 the deposition of the witnesses examined by the prosecution. It is further submitted that the Sessions Judge has erred in acquitting the respondent - accused from the charges levelled against him. It is further submitted that the prosecution has proved that the respondent has committed the offence under sections 302, 397 and 451 of Indian Penal Code and under section 135 of Bombay Police Act. It is further submitted that the Sessions Judge has acquitted the respondent / accused merely on some minor contradictions and omissions in the evidence of the witnesses. It is further submitted that the Sessions Judge has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case.
7.1. It is also further submitted that here in this case, recovery of the ornaments and muddamal weapon with blood stains of the deceased were recovered at the instance of the accused vide Discovery Panchnama Ex.30 and one of the panch namely Devjibhai Thakarshibhai Ex.36 has supported the case of the prosecution regarding discovery of the knife, however, the same is not believed by the learned Sessions Judge.
7.2. The learned APP has further submitted that the place from where the discovery of the knife was made was only in the knowledge of the respondent / accused and as Page 5 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 such panchnama under section 27 of the Evidence Act is duly proved by the prosecution.
7.3. It is further submitted that the offence punishable under sections 302, 397 and 451 of Indian Penal Code and under section 135 of Bombay Police Act, is made out against the respondent / accused, however, the same is not believed by the learned Sessions Judge. It is further submitted that though the prosecution witnesses have supported the case of the prosecution, the learned Sessions Judge has not believed their evidence and acquitted the respondent - accused erroneously. He has requested to allow the present appeal.
Making above submissions and relying upon the aforesaid evidence, it is prayed by the learned APP to allow the appeal and convict the respondent / accused in light of the arguments of the prosecution.
8. Mr.Tatvdeep Jani, learned advocate appearing for the the respondent / accused has submitted that there is hardly any substance in the submissions of learned APP. There is no evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses. The trial court has rightly appreciated the evidence on record and held that the Page 6 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 prosecution has failed to prove the case against the respondent / accused beyond reasonable doubt and rightly acquitted the accused. He has requested to dismiss the present appeal.
9. Heard advocates for the respective parties and perused the impugned judgement and order of acquittal and re- appreciated the entire evidence on record.
10. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice 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 reaffirmed and strengthened by the trial Court.
11 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, Page 7 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 "The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".
11.1 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:
"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC
189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:
12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record Page 8 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... 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."
14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
Page 9 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 (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 emphasise 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 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."
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the Page 10 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
(ii) The High Court's conclusions are contrary to evidence and documents on record;
(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
(v) This Court must always give proper weight and consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court Page 11 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
12. In aforesaid backdrop, the re-appreciation of the evidence on record is as under:-
13. The entire case of the prosecution rests upon the evidence of four witnesses namely Jahiben, Tikuben, Bhabhlubhai, who are termed to be eye witness of the case. Witness Kalubhai Mohanbhai, Witness Mansukhbhai, The executive Magistrate of Jafarabad, who has conducted the Identification Parade ("T.I. Parade" for short).
14. Here in this case, it is undisputed that a young child of 4 years has been killed. Doctor who has performed the postmortem report namely Dr.Jayantbhai Maganbhai Vaghamashi, who is examined at Ex.6 has stated in his evidence all the contents of th postmortem report and has specifically opined that the cause of death is cardio respiratory arrest, which was result of shock due to hemorrhage. The injury caused by the deceased was sufficient to cause the death. The evidence of the medical officer pertaining to the unnatural and homicidal death of the deceased is rightly appreciated by the learned Sessions Judge and it is undisputed fact that the deceased has died Page 12 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 homicidal death.
15. The evidence pertaining to intention of the respondent / accused To kill the son of the complainant and to commit the offence of dowry in the house of the complainant and committing theft of ornaments and clothes worth Rs.4970/- is to be appreciated at this juncture which is allegation against the respondent / accused by the prosecution in this case.
16. The first informant Madhubhai Koli - father of the deceased - PW No.1, who has been examined at Ex.3 is formal witness as he was not present at the time of incident. His mother Jahiben and his niece Tikuben informed that unknown person has killed his son and he came to know that he has escaped towards village Ebhalvad. The police had come to the scene of offence and complaint was lodged. However, he has admitted that on complaint written by the police, he has affixed thumb impression and what was written in the complaint, is not known to him. As such, the evidence of the first informant does not throw any light upon the act of the respondent / accused in this case. As stated above, the main witnesses upon whom the prosecution has relied is Jahiben Rambhai Koli PW No.4, who is the mother of the first informant, who has been examined at Ex.10 and PW No.5 Tikuben Bhabhluben Koli has been examined at Ex.11. The entire Page 13 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 case of the prosecution rests upon these two witnesses who have seen the accused and Jahiben tried to nab the respondent / accused and both of them have identified the accused in the Court as well as in the T.I. Parade.
17. Considering the evidence of Jahiben PW No.4 who has been examined at Ex.10 has stated that as she heard shouts of Tikuben from her house tht some unknown person is there in the house, she immediately rushed towards the house and caught hold of the person who was running. The person had worn black pent and designed shirt. Jahiben also shouted to catch hold of the person who was running and Kanabhai had seen the person and he followed him but the unknown person ran away in the field. When she entered in the house, the things were scattered and there was theft of ornaments and clothes, which ornaments have been identified in the court. She has also identified the accused in the court and has also stated that she had seen the accused in the office of the Mamlatdar.
In the cross examination it is admitted by the witness that she is 75 years old. She does not have any knowledge about hours, minutes and correct time. She has also admitted that police has not recorded her statement and after a period of five months, she was called in Mamlatdar Office, Jafarabad, for the identification of the accused in the Mamlatdar Office, first they had gone to the police station Page 14 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 and in the police station accused was sitting. And thereafter they all had gone to the office of the Mamlatdar, Jafarabad and she and witness Tikuben and witness Kala Mohan identified the accused in the office of the Mamlatdar. It is also admitted that at the time of T.I. Parade in the office of the Mamlatdar, Jafarabad the accused, police, panchas and Mamlatdar all were in the room where T.I. Parade was conducted. It is also admitted that at the time of T.I. Parade the police had stated to identify the accused.
18. Considering the evidence of eye witness Jahiben, the evidence of Jahiben is full of contradictions and omissions. She has stated some facts which are not stated in the statement before the police, which is admitted by her. Also she being lady aged 75 years it is not possible that she might have nabbed the respondent / accused at the time of offence and also it is not possible that the accused who was armed with knife as per the case of the prosecution if the old lady had caught hold the respondent / accused, the accused could have injured the aged lady, but that has not happened. The theory of nabbing the accused is not believable. Moreover, the admission regarding T.I. Parade also is of a nature which creates doubt regarding fair conducting of T.I. Parade and creates doubt regarding identification of the accused by the witness. Hence the evidence of Jahiben cannot be relied upon to be cogent and Page 15 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 convincing evidence of eye witness.
19. The second witness Tikuben Bhabhlu Koli PW No.5, who has been examined at Ex.11 has also stated some of the facts which are not narrated in her statement. It reveals from her evidence that as soon as she saw the unknown person, she immediately ran away to her grand-mother and returned back with grand-mother along with Kanabhai Ramabhai. It is specifically stated in her evidence that when she came back with her grand-mother and Kanabhai Ramabhai in the house, unknown person had run away. Considering this aspect, there is no possibility of Jahiben PW No.4 to see the respondent / accused and to try to nab him. As such the evidence of Jahiben regarding nabbing the respondent / accused after seeing him in the house hearing shouts of Tikuben are falsified in view of evidence of Tikuben. If upon shouts of Tikuben, Jahiben had rushed in the house and try to nab the respondent / accused, this aspect would have been confirmed by Tikuben in her evidence but the evidence of Tikuben and Jahiben are contradictory to each other. As such they both having seen the accused creates doubt. As per Tikuben, she had a glimpse of the unknown person and she immediately ran away to call Jahiben. As such both the witnesses must not have been able to see the accused at the time of incident properly. Moreover, so far as T.I. Parade is concerned, Tikuben has stated in her evidence that all had gone to Page 16 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 Jafarabad firstly they had gone to the police station and had seen the respondent / accused in the police station and as there was only one person and the police prompted the witnesses to identify the accused. She further admitted that police, witnesses and accused all together had gone to the office of the Mamlatdar. As such, before T.I. Parade, the respondent was made to be seen by the witness and hence the identification of the respondent / accused by the witness in T.I. Parade cannot be relied upon. Moreover, as regarding test identification of the respondent / accused in the court is concerned, Tikuben has admitted that she while coming for deposition in the Court was accompanied by police and the police person has said to identify the person sitting in the accused box and hence the identification of the respondent / accused by Tikuben in the Court is tutored. Hence, the identification by the witness before the Court and T.I. Parade as well as the evidence that both the eye witnesses have seen the accused is falsified in view of the contradictory evidence of Jahiben and witness Tikuben and hence both the so-called eye witnesses cannot be relied upon.
20. One more witness Kalubhai Mohanbhai Chauhan PW No.6 has been examined at Ex.12. He has not seen the entire incident. He has not seen the accused at the time of offence. His evidence is hearsay evidence even as per his Page 17 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 own say. He has come to know that the person who has committed the act and run away towards the road of Village Ebhalvad. As such he along with Kana Bijal and Babu Soma had gone to village Ebhalvad to the house of Pranajibhai Dadubhai. Unknown person was sitting there who was asked to accompany him to village Hemal but that person refused and went away, and so the witness returned back. As per the case of the prosecution, this witness has identified the accused in the T.I. Parade. In the cross examination, it is admitted by the witness that the person sitting in the house of Pragji Dadu was his brother-in-law. This witness has not stated this fact before police in his statement that unknown person sitting in the house of Pragji Dadu was his brother-in-law. Moreover, this witness has not disclosed the aspect of seeing unknown person in the house of Pragji Dadu and though he called him, he had refused to come before any of th person of the village when he returned back to the village. Moreover, nothing has come on record through the evidence of eye witnesses Jahiben and Tikuben that Kalubhai Mohanbhai was present at the time of incident and he had seen the unknown assailant and hence no question would arise for the witness to ask an unknown person sitting in the house of Pragjibhai Dadubhai to accompany him. As such, the witness has stated something which he has not narrated before the investigating officer.
Page 18 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 Regarding T.I. Parade is concerned. Ex.21 is deposition of the Executive Magistrate. Nothing has come on record that this witness was present at the time of identification, on the contrary the witnesses who were called at the time of T.I. Parade were Jahiben, Tikuben, Kantibhai Rama and Bhupatbhai Laxman. The name of the present witness is not disclosed in the T.I. Parade. As such, witness Kalubhai Mohanbhai who is not an eye witness to the incident and who has not seen the accused any time, his evidence is hearsay evidence and his evidence is not of a nature which can be termed to be reliable, cogent and convincing evidence.
21. The prosecution has relied upon the T.I. Parade also wherein the main witnesses Jahiben and Tikuben have identified the respondent / accused before the Executive Magistrate. The Executive Magistrate Mansukhbhai Jethabhai PW No.11 has been examined at Ex.21. he has conducted T.I. Parade. It is pertinent to note that after the occurrence of the incident, five months and ten days later, T.I. Parade has been conducted. The Executive Magistrate has given explanation of delay that the accused was not produced by the jail authority and due to the election, he was not able to conduct T.I. Parade. This explanation of the Executive Magistrate cannot be accepted because the PSI Shashikant Chandubhai Dave has specifically stated that Page 19 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 after conducting investigation on 22/9/1994, he had sent a report to the Magistrate for T.I. Parade but the executive Magistrate has not given any date for T.I. Parade and first date given was 31/1/1995. The investigating officer had admitted that the it has not happened that the Executive Magistrate had called for T.I. Parade and the investigating agency asked for date. As such there is vast contradictions with respect to T.I. Parade conducted after a period of 5 months and 11 days. On this count itself, T.I. Parade comes under the shadow of doubt. It is also admitted by the Executive Magistrate in his evidence that the police has brought witnesses with them along with the accused. He has not verified upto what time accused was in police custody. The panchas of the T.I. Parade who are examined in this case were from the village Hemal and Out of four dummy persons standing in the queue with the accused during the identification parade, 3 dummy persons were from the village Hemal where the witnesses were residing. The Executive Magistrate has not taken care to verify the panch witnesses and dummy persons are known to the witnesses who have come for identification of the accused. As such, when the panch witnesses and dummy persons were from the village where the witnesses are residing, only unknown person was the accused and hence the entire proceedings of T.I. Parade conducted by the Executive Magistrate is of such a nature which frustrates the object of test identification parade laid down by law.
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22. At this reference is to be made of the decision of the Hon'ble Apex Court in the case of Gireesan Nair and others vs. State of Kerala (Appeal No.1864-65/2010) decided on 11/11/2022 reported in 2022 LiveLaw SC 955, wherein principle on T.I. Parade has been laid down. Relevant paras read thus:
25. ...The object of conducting a TIP is threefold. First, to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the crime. Second, to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. Third, to test the witnesses' memory based on first impression and enable the prosecution to decide whether all or any of them could be cited as eyewitnesses to the crime (Mulla and Anr. v. State of U.P., reported in (2010) 3 SCC 508.
26. TIPs belong to the stage of investigation by the police. It assures that investigation is proceeding in the right direction. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant (Matru alias Girish Chandra v. State of U.P. reported in (1971) 2 SCC 75;
and C. Muniappan and Ors. v. State of Tamil Nadu, reported in (2010) 9 SCC 567). The evidence of a TIP is admissible under Section 9 of the Indian Page 21 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of an accused can be sustained (State of H.P. v. Lekh Raj and Anr. reported in (2000) 1 SCC
247).
27. It is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that a TIP is held without avoidable and unreasonable delay after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses before the test identification parade. This is a very common plea of the accused, and therefore, the prosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. But reasons should be given as to why there was a delay (Mulla and Anr. v. State of U.P. reported in (2010) 3 SCC 508 and Suresh Chandra Bahri v. State of Bihar reported in (1995) Suppl. 1 SCC
80).
28. In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from Page 22 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 the day of arrest, the accused was kept "baparda" to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form, i.e., physically, through photographs or via media (newspapers, television etc...), the evidence of the TIP is not admissible as a valid piece of evidence (Lal Singh and Ors v. State of U.P. reported in (2003) 12 SCC 554 and Suryamoorthi and Anr. v.
Govindaswamy and Ors. reported in (1989 3 SCC 24).
29. If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Shaikh Umar Ahmed Shaikh and Anr. v. State of Maharashtra reported in (1998) 5 SCC 103). Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 (Chunthuram v. State of Chhattisgarh30and Ramkishan Mithanlal Sharma v. State of Bombay reported in (1955) 1 SCR
903).
30. It is significant to maintain a healthy ratio between suspects and non-suspects during a TIP. If rules to that effect are provided in Prison Manuals or if an appropriate authority has issued guidelines regarding the ratio to be maintained, then such rules/ guidelines shall be followed. The officer conducting the TIP is under a compelling Page 23 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 obligation to mandatorily maintain the prescribed ratio. While conducting a TIP, it is a sine-qua-non that the non-
suspects should be of the same age-
group and should also have similar physical features (size, weight, color, beard, scars, marks, bodily injuries etc.) to that of the suspects. The concerned officer overseeing the TIP should also record such physical features before commencing the TIP proceeding. This gives credibility to the TIP and ensures that the TIP is not just an empty formality (Rajesh Govind Jagesha v.
State of Maharashtra reported in (1999) 8 SCC 428 and Ravi v. State reported in (2007) 15 SCC 372).
31. It is for the prosecution to prove that a TIP was conducted in a fair manner and that all necessary measures and precautions were taken before conducting the TIP. Thus, the burden is not on the defence. Instead, it is on the prosecution (Rajesh Govind Jagesha v. State of Maharashtra reported in (1999) 8 SCC 428).
46. Re: Delay in conducting the TIP:
Undue delay in conducting a TIP has a serious bearing on the credibility of the identification process. Though there is no fixed timeline within which the TIP must be conducted and the consequence of the delay would depend upon the facts and circumstances of the case42 , it is imperative to hold the TIP at the earliest. The possibility of the TIP witnesses seeing the accused is sufficient to cast doubt about their credibility. The following decisions of this Court on the consequence of delay in conducting TIP have emphasised that Page 24 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 the possibility of witnesses seeing the accused by itself can be a decisive factor for rejecting the TIP. In Suresh Chandra Bahri v. State of Bihar43 , it was held that: "It is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards were effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution. But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of a TIP."
49. Re: Legality of the TIP and the presence of the IO during the conduct of the TIP: A three-judge bench of this Court in Chunthuram v. State of Chhattisgarh48 , by relying on Ramkishan Mithanlal Sharma v. State of Bombay49 , has held that any identification made by witnesses in a TIP in the presence of a police officer tantamount to statements made to the police officer under Section 162 Cr.P.C.
The Court held: "The infirmities in the conduct of the test identification parade would next bear scrutiny. The major flaw in the exercise here was the presence of the police during the exercise. When the identifications are Page 25 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 held in police presence, the resultant communications tantamount to statements made by the identifiers to a police officer in course of investigation and they fall within the ban of Section 162 of the Code."
23. In this case, considering the observations of the Apex Court in the case of Girish and another (supra) and perusing the evidence on record, here in this case, witness Jahiben Rambhai Koli Ex.10 and Tikuben Bhabhlubhai Koli Ex.11 have admitted that the accused was shown to them before the T.I. Parade was held as they had visited the police station where the accused was kept and police had shown him to be the accused. Secondly, T.I. Parade has been held after a period of 5 months and 10 days, which is ordinate delay, for which no plausible explanation has been submitted and the explanation is contradictory to the version of the investigating officer. Thirdly, all the witness and the accused, as per their evidence travelled together from police station to the office of the Mamlatdar, Jafarabad and from the evidence of the Mamlatdar it is clear that no precautions have been taken before conducting T.I. Parade. In this case, dummy persons who were in the queue were of the same village and panch witness of the T.I. Parade are also of the same village. So it was easy for the witness to find out the person who was not of his village.
Page 26 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 It is a rule of law which cannot be denied that the test identification parade is not a "substantive evidence". The purpose to conduct the T.I. Parade is to help the investigating agency as to whether the investigation is heading right direction or nor. As observed by the Hon'ble Apex Court in the case of State of Himachal Pradesh Vs. Lekhraj, reported in AIR 1999 SC 3916, test identification parade is a rule of prudence. It is considered to be safe to look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them. There may, however, be some exceptions to this general rule. Considering the above observations of the Hon'ble Apex Court, here in this case, the respondent / accused was totally unknown to the witnesses. As per the case of the prosecution, Jahiben and Tikuben had glimps of the accused. Witness Kalubhai Mohanbhai as per the case of the prosecution had met the respondent / accused in the house of Pragjibhai Dadubhai. So in this case, to corroborate the statement of these witnesses, test identification parade was conducted but as stated above, the evidence of the witnesses are mere formality and is contradictory to each other and witness Kalubhai Mohanbhai had not seen the incident and has stated that he was part of the test identification parade which is also falsified from the test identification parade panchnama. Test identification parade would have been corroborative piece of evidence helping the prosecution, but as discussed above, Page 27 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 the entire test identification parade conducted by the Mamlatdar was mere formality which was not conducted in fair and just manner and no necessary precautions and measures were taken by the Executive Magistrate regarding revealing of the identity of the respondent / accused before the witnesses prior to conducting test identification parade. As such, in the eye of the substantive evidence of the witnesses, identification parade which can be considered to be a corroborative piece of evidence supporting the case of the witnesses cannot be given any value in the case in view of the evidence of the witnesses and procedure of conducting test identification parade.
24. In view of the above discussion and evidence on record, we are of the opinion that the T.I. Parade conducted by the Mamlatdar was only a formality and it was not conducted in fair manner. No necessary measure and precautions were taken before conducting T.I. Parade. As such the T.I. Parade and the identification of the accused cannot be given any value in this case.
25. So far as discovery of ornaments and clothes is concerned, Nandlal Kalyanbhai - Goldsmith PW No.10 who has been examined at Ex.19, has not supported the case of the prosecution. As such, the discovery of the ornament also does not support the case of the prosecution.
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26. Panchas of Panchnama of arrest of the accused - Chhotabhai Jadavbhai, pancha of Panchnama of recovery of clothes - Maganbhai Shamjibhai Koli, panch of discovery of ornaments - Siddibhai Kasambhai Sipai, all have turned hostile.
Panch Devjibhai Thakarshi Patel, before whom discovery of knife is made, has only supported the case of the prosecution, but considering his evidence on record, discovery is not proved as per the provisions of Section 27 of the Evidence Act. It is also to be seen that as per the evidence of witness Devjibhai Thakarshibhai Ex.36, primary panchnama was carried out at the bus-stand where there was no reason for the witness to go. It is also on record that there were 100 to 150 persons as per the evidence of panch Devjibhai Thakarshibhai standing at the bus-stand. It is also admitted that the place from where the muddamal was found as per the case of the prosecution was on the road of Ebhalvad which is a busy road wherein there is regular movement of public and vehicles. It is also admitted by the panch witness in his evidence that the place from where the muddamal was found below the stone was of a nature which can be seen by any person. The panch witness is also not able to say what was the time when he was called for the panchnama, whether it was morning, afternoon or evening. As such, the deposition of witness Devjibhai Page 29 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 Thakarshi which comes on record as a discovery panch cannot be relied upon, as the contents of section 27 of the Evidence Act are not duly proved and the panch witness himself is from village Hemal and is not an independent witness and out of 100 to 150 persons at the bus-stand, he was selected as a panch which can be said to be tainted witness by the investigating officer. Moreover, discovery of the weapon and ornament was found below a stone, 1 KM away from village Hemala. Nothing has been done by the police regarding weight of the ornaments at the site of the panchnama. The said panchnama Ex.30 is carried out on 20/8/1994 whereas the incident has occurred on 12/8/1994 i.e. after a span of one week the panchnama has been carried out and before than, investigation was started and the place as it appears from the record that before the discovery was made, it was open to all and there was movement of public on that place. As such, it cannot be said that the accused was only person who was knowing that aspect and it was not known to others. Even the aforesaid panch witness has not stated that the accused had stated before him regarding discovery of the weapon. The only circumstance which is brought on record by the prosecution besides absence of substantial evidence, the discovery panchnama Ex.30 cannot be relied upon.
27. Considering the entire evidence on record oral as well as documentary, this Court is of the opinion that the Page 30 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 prosecution has failed to prove the case against the accused by leading cogent and convincing evidence. The judgement delivered by the Sessions Judge is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial court has been rightly appreciated by the trial court. No apparent error on the face of the record is found from the judgement. The judgement does not suffer any material defect or cannot be said to be contrary to the evidence recorded.
28. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-
"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :
"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given Page 31 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:
"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:Page 32 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022
R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 "I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."
28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:
"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."
"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."
8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:
"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside Page 33 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."
29. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
30. Scope of appeal against acquittal is well laid down in case of Chandrappa and ors. vs. State of Karnataka reported in (2007) 4 SCC 415, it was observed:
"42. From the above decisions, in our considered view, the following general principles regarding powers of 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;Page 34 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022
R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 (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 in favour of the accused. Firstly, the presumption of innocence 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."
31. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to Page 35 of 36 Downloaded on : Sat Dec 24 03:49:26 IST 2022 R/CR.A/594/1999 CAV JUDGMENT DATED: 16/12/2022 interfere with the impugned judgment and order of acquittal.
32. In view of the above and for the reasons stated above, present Criminal Appeal deserve to be dismissed and is accordingly dismissed. The judgement and order passed by the learned Sessions Judge, Amreli in Sessions Case No.49 of 1995 dated 24/03/1999 acquitting the respondent / accused from the offence punishable under sections 302, 397 and 451 of Indian Penal Code and under section 135 of Bombay Police Act, is hereby confirmed. Bail Bond, if any stands cancelled. R&P be sent back forthwith.
Sd/-
(S.H.VORA, J) Sd/-
(RAJENDRA M. SAREEN,J) R.H. PARMAR..
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