Gujarat High Court
State Of Gujarat vs Jadeja Bhavalubha Mahipatsinh on 28 January, 2025
Author: Samir J. Dave
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/208/1995 JUDGMENT DATED: 28/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 208 of 1995
With
R/CRIMINAL REVISION APPLICATION NO. 33 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
JADEJA BHAVALUBHA MAHIPATSINH
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Appearance:
IN CRIMINAL APPEAL:
MS MH BHATT ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR PRATIK B BAROT(3711) for the Opponent(s)/Respondent(s) No. 1
IN CRIMINAL REVISION APPLICATION:
MR DHRUVIN P. BHUPTANI FOR MR. YOGESH S. LAKHANI, SR.
ADVOCATE, for the Applicant No.1
MS MH BHATT ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR PRATIK B BAROT(3711) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 28/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE) Both these matters arise out of the same judgment and Page 1 of 15 Uploaded by PRAVIN KARUNAN(HC00181) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:36:41 IST 2025 NEUTRAL CITATION R/CR.A/208/1995 JUDGMENT DATED: 28/01/2025 undefined order and hence, they are disposed of by this common judgment.
2. Challenge in Criminal Appeal No. 208 of 1995 filed under section 378 of the Cr.P.C. is to the judgment and order passed by the learned Sessions Judge, Jamnagar in Special Criminal Case No.35 of 1993 dated 06.12.1994 whereby, the respondent, original accused, has been acquitted of the charge under sections 302 and 376 of IPC and sections 3(2)(5) and 3(1)(10) of the S.C. & S.T. (Prevention of Atrocities) Act; whereas, Criminal Revision Application No. 33 of 1995 is filed under section 397 read with section 401 of the Cr.P.C. by the original complainant challenging the impugned judgment and order of acquittal recorded by the Court below in favour of the respondent, original accused.
3. The facts in a nutshell are as under;
On 29.04.1993, the original complainant, Jethabhai Devshibhai, filed a First Information Report bearing C.R. No. I- 46 of 1993 before Kalavad Police Station inter alia stating that he is a resident of Village: Kotha Bhadukiya, Taluka: Kalavad, District: Jamnagar where he is staying along with his family consisting of his wife, three daughters and one son and is earning livelihood by doing labour work. On 29.04.1993, at around 1500 hrs., the youngest daughter, aged about 18 years Page 2 of 15 Uploaded by PRAVIN KARUNAN(HC00181) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:36:41 IST 2025 NEUTRAL CITATION R/CR.A/208/1995 JUDGMENT DATED: 28/01/2025 undefined at the time of alleged incident and the prosecutrix in this case, had gone to the agricultural field alone for the purpose of driving-away birds from the standing crop. At around 1700 hrs., the respondent-accused came to the house of the complainant lifting the prosecutrix on his shoulders and thereafter, placed her on the ground. The complainant noticed that his daughter had sustained severe injuries on her head as also other parts of the body and was also bleeding. The complainant inquired from the respondent-accused the reason behind the death of his daughter and he replied that he found the prosecutrix lying at the end of the agricultural field where the complainant had cultivated the crop of pearl millet. The respondent-accused also informed the complainant that he had gone to the field for drinking water and that he is unaware as to how the prosecutrix had died.
4. Initially, the impugned FIR was registered u/s. 302 IPC and later on, the offence u/s. 376 IPC came to be added. As sufficient evidence was found against the respondent-accused, he was arrested and at the end of investigation, charge-sheet was filed against him. As the respondent-accused pleaded not guilty to the charge, trial was initiated. During the trial, the prosecution examined 12 (twelve) witnesses and relied upon several documentary evidence. However, at the end of trial, the Court below acquitted the respondent-accused of all the Page 3 of 15 Uploaded by PRAVIN KARUNAN(HC00181) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:36:41 IST 2025 NEUTRAL CITATION R/CR.A/208/1995 JUDGMENT DATED: 28/01/2025 undefined charges by passing the impugned judgment and order. Against the impugned judgment and order of acquittal, the appellant- State has preferred the captioned appeal whereas, the original complainant has preferred the revision application.
5. Learned APP Ms. Bhatt assisted by learned advocate Mr. Bhuptani for the original complainant submitted that the impugned judgment and order passed by the learned Sessions Court suffers from several infirmities and illegalities. It is submitted that though the case is based upon circumstantial evidence, there is sufficient material on record to connect the respondent-accused with the alleged offence; however, the learned Sessions Court committed serious error while appreciating the evidence on record.
5.1 Learned APP drew attention of the Court to the FIR (Exhibit-16) to point out that after the prosecutrix had gone missing, it was the respondent-accused who had brought the dead body of deceased to the house of the complainant. No satisfactory explanation has been offered by the defence as to what prompted the respondent-accused to carry the dead body of the prosecutrix to the house of the complainant. It is submitted that in normal circumstances, the conduct of any individual would be to raise an alarm on seeing a dead body or to flee the scene out of fear. In this case, the conduct of Page 4 of 15 Uploaded by PRAVIN KARUNAN(HC00181) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:36:41 IST 2025 NEUTRAL CITATION R/CR.A/208/1995 JUDGMENT DATED: 28/01/2025 undefined the respondent-accused of carrying the prosecutrix on his shoulders, despite having noticed the gruesome injuries on her head and neck, speaks volumes about the criminal conduct and malafide intention of the respondent-accused.
5.2 It is further submitted that the oral evidence of the original complainant, PW-1 Jethabhai Devshibhai and of the brother of deceased, PW-5 Hira Jetha, establish the involvement of the respondent-accused in the crime. The oral evidence of PW-7 Chanabhai Gorabhai Bagda, who is a panch to the (i) panchnama of indication by sniffer dog (ii) panchnama of scene of offence and (iii) arrest panchnama as also of PW-8 Amubhai Muljibhai, who is a panch of the discovery panchnama, establish the role played by the respondent-accused. Through the evidence of these witnesses, the prosecution has been able to establish the chain of circumstances leading to the guilt of respondent-accused. However, the learned Sessions Court seriously erred in disbelieving their evidence and acquitted the respondent- accused of all the charges, which is erroneous. It was, accordingly, urged to quash and set aside the impugned judgment and order of acquittal.
6. Learned advocate Mr. Barot appearing for the respondent- accused submitted that the prosecution has failed to establish Page 5 of 15 Uploaded by PRAVIN KARUNAN(HC00181) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:36:41 IST 2025 NEUTRAL CITATION R/CR.A/208/1995 JUDGMENT DATED: 28/01/2025 undefined the vital aspect of motive behind the commission of alleged crime. Since the case is based upon circumstantial evidence, the prosecution has to establish the aspect of motive as also the chain of circumstances leading to the guilt of the respondent-accused. In the present case, the prosecution has failed to establish both these aspects and hence, the learned Sessions Court was justified in acquitting the respondent- accused of all the charges.
6.1 It is further submitted that the conduct of the respondent-accused of carrying the dead body of deceased on his shoulders and bringing it to the house of the complainant cannot be considered as a circumstance critical to the respondent-accused. It is submitted that such behaviour of the respondent-accused is normal of an individual, as it was done with the intention that the dead body of deceased is not torn- off or eaten away by animals. Had the respondent-accused been the author of the crime, then he would not have carried the dead body to the house of the complainant, thereby, risking himself by disclosing his identity to everyone. The respondent-accused would have simply left the scene having noticed the dead body lying in the field at an isolated place. The respondent-accused had done the act will a bona fide intention.
Page 6 of 15 Uploaded by PRAVIN KARUNAN(HC00181) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:36:41 IST 2025NEUTRAL CITATION R/CR.A/208/1995 JUDGMENT DATED: 28/01/2025 undefined 6.2 It is further submitted that there are several omissions in the depositions of witnesses in comparison to the police statements, which goes into the root of the matter. Further, the evidence of Panch witness of the Panchnama of indication by sniffer dog (Exhibit-23) has rightly not been believed since the respondent-accused was already in police custody before said Panchnama was drawn and therefore, the said Panchnama has no significance. It was, therefore, submitted that the learned Sessions Court was completely justified in acquitting the respondent-accused of all the charges.
7. Heard learned advocates on both the sides and perused the oral as well as documentary evidence on record. PW-1 Dr. Satishkumar Shripuranchand is the Medical Officer who had performed the autopsy of deceased. In the Post-mortem Report (Exhibit-10), the cause of death is stated to be shock and hemorrhage on account of multiple injuries to head and neck. 33 external injuries and 03 internal injuries were found on the dead body and as per medical opinion, the injuries found on the head and neck were sufficient to cause death in the ordinary course of nature. In his deposition, the Medical Officer (PW-1) has opined that the injuries sustained by deceased were possible with a hard sharp-edged weapon like the muddamal shovel and sickle. In his cross-examination, the Medical Officer (PW-1) has stated that he could not give a Page 7 of 15 Uploaded by PRAVIN KARUNAN(HC00181) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:36:41 IST 2025 NEUTRAL CITATION R/CR.A/208/1995 JUDGMENT DATED: 28/01/2025 undefined definite opinion as to whether rape or sexual intercourse had been done with the individual. Thus, from the testimony of PW-1 Medical Officer, there remains no doubt that the deceased died a homicidal death.
8. The original complainant, Jethabhai Devshibhai, the father of deceased, has been examined as PW-2. In his examination-in-chief, he has stated that on the date of incident, his deceased-daughter had gone to the field and at around 1700 hrs., the respondent-accused came to his house carrying the dead body of his deceased-daughter on his shoulders. The complainant inquired from the respondent- accused regarding the condition of deceased and it is deposed that at that time, the respondent-accused threatened him that he would also meet with similar fate.
8.1 At this juncture, it is pertinent to note that in the complaint (Exhibit-16), the complainant has not named the respondent as the accused. If the respondent-accused had administered any threat, as has been deposed in the chief- examination, then the complainant would have definitely named the respondent as the accused-assailant in the FIR (Exhibit-16). However, the very fact that the respondent has not been named in the FIR (Exhibit-16) as the accused goes into the root of the matter.
Page 8 of 15 Uploaded by PRAVIN KARUNAN(HC00181) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:36:41 IST 2025NEUTRAL CITATION R/CR.A/208/1995 JUDGMENT DATED: 28/01/2025 undefined 8.2 It is also pertinent to note that no where in the FIR (Exhibit-16), it has been averred that the respondent-accused had administered any such threat to the complainant. In fact, in the FIR, it has been averred that when the complainant inquired from the respondent-accused about the condition of deceased, the respondent-accused informed him that the deceased was found lying at the end of the field of Prabhatsang where the complainant had grown crops of pearl millet and that he is unaware as to how the deceased had died. Even in his statement before the police, the complainant has not stated anything about any such threat / information given by the respondent-accused. It is only before the Court in the examination-in-chief that the complainant has stated about the alleged threat administered to him by the respondent- accused so as to implicate him in the alleged crime.
9. The prosecution had relied upon the deposition of PW-9 Laxmiben Danabhai, the Aunt of deceased. In her chief- examination, the witness has deposed that on the date of incident, at around 1600 hrs., while she was going towards the public tank for washing clothes, she noticed the respondent- accused carrying the deceased on her shoulders. She inquired about it from the respondent-accused and it was replied by the respondent-accused that the person on his shoulders was the Page 9 of 15 Uploaded by PRAVIN KARUNAN(HC00181) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:36:41 IST 2025 NEUTRAL CITATION R/CR.A/208/1995 JUDGMENT DATED: 28/01/2025 undefined daughter of the complainant and thereafter, the respondent- accused reprimanded her for asking the reason behind such inquiry and asked her to leave the place and not to disclose anything to anybody.
9.1 However, in her statement before the police, this witness (PW-9) has not stated anything about any such reprimand at the hands of the respondent-accused. Though the witness has deposed about seeing the respondent-accused carrying the deceased on his shoulders in her police statement but, she has not stated anything about the reprimand at the hands of the respondent-accused in her police statement. It is only before the Court that the witness, for the very first time, has deposed about the alleged reprimand at the hands of the respondent- accused. Thus, the evidence of both the complainant (PW-2) and PW-9 is not found to be reliable and trustworthy since there are vital omissions / critical improvements in their evidence and that too on material aspects of the case.
10. Another notable aspect is that the prosecution has failed to establish motive behind the commission of alleged crime. As per the prosecution case, on the date of incident, the respondent-accused had attempted to commit rape on the deceased and when he was unsuccessful, he inflicted sickle blow on the head of deceased and thereafter, inflicted shovel Page 10 of 15 Uploaded by PRAVIN KARUNAN(HC00181) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:36:41 IST 2025 NEUTRAL CITATION R/CR.A/208/1995 JUDGMENT DATED: 28/01/2025 undefined blow, which resulted into her death. The medical evidence on record, as discussed herein above, does not suggest the factum of rape having been committed. The only evidence on record against the respondent-accused is that he had carried the dead body of deceased on his shoulders and had taken it to the house of the complainant and kept it there.
11. It is true that human blood stains belonging to Group 'B' have been found at the place of incident, on the muddamal weapons and on the clothes of the respondent-accused; however, the same have to be examined in the backdrop of the evidence of both PW-1 (complainant) and PW-9 (aunt), whose testimonies are not found to be reliable and trustworthy. Insofar as the Panchnama of indication by sniffer dog (Exhibit-23) is concerned, the same could not be relied upon for the reason that before such Panchnama was undertaken, the respondent-accused was already in custody of the police and the panch witnesses had also noticed him.
12. In the opinion of the Court, merely on the basis that blood stains belonging to Group 'B' have been found at the place of incident and on the muddamal weapons, which were recovered by way of discovery panchnama, the respondent- accused could not be held guilty for the reason that the chain of circumstances pointing towards the guilt of the respondent-
Page 11 of 15 Uploaded by PRAVIN KARUNAN(HC00181) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:36:41 IST 2025NEUTRAL CITATION R/CR.A/208/1995 JUDGMENT DATED: 28/01/2025 undefined accused does not get complete. Moreover, the FSL Report (Exhibit-54) on record suggests that no conclusive decision could be arrived at as regards the blood group of the semen collected from the dead body of deceased. Under these circumstances, this Court is of the opinion that the learned Sessions Court has rightly acquitted the respondent-accused by granting him the benefit of doubt.
13. 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 Chandrappa Vs. State of Karnataka, (2007) 4 S.C.C. 415, the Apex Court has 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, re- appreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.Page 12 of 15 Uploaded by PRAVIN KARUNAN(HC00181) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:36:41 IST 2025
NEUTRAL CITATION R/CR.A/208/1995 JUDGMENT DATED: 28/01/2025 undefined [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 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."
13.1 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.
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14. In the case of State of Goa V. Sanjay Thakran & Anr., (2007) 3 S.C.C. 75, the Apex Court reiterated the powers of the High Court in such cases. In Paragraph-16 of the said decision, the Court 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 be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment 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."
15. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an Page 14 of 15 Uploaded by PRAVIN KARUNAN(HC00181) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:36:41 IST 2025 NEUTRAL CITATION R/CR.A/208/1995 JUDGMENT DATED: 28/01/2025 undefined order of acquittal, are well settled.
16. In view of the above discussion and keeping in mind the law governing appeals arising out of a judgment and order of acquittal, this Court finds no substance in the present appeal as also the revision application. We are in complete agreement with the reasoning given by and the findings arrived at by the learned Sessions Court in the impugned judgment and order and hence, find no reasons to entertain the appeal / revision.
17. In the result, both the appeal as well as revision application are dismissed. Bail bonds, if any, stand discharged. Record and proceedings be sent back to the trial Court concerned forthwith.
(A.Y. KOGJE, J) (SAMIR J. DAVE, J) PRAVIN KARUNAN Page 15 of 15 Uploaded by PRAVIN KARUNAN(HC00181) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:36:41 IST 2025