State Of Gujarat vs Chhatrasinh Ghemalsinh Rana & 1 Other(S)

Sandeep N. Bhatt, J

Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 31.08.1998 passed by the learned 4th Additional Sessions Judge, Nadiad in Sessions Case No.90 of 1995 for the offences punishable under Sections 302, 201 and 34 of the Indian Penal Code, the appellant – State of Gujarat has preferred this appeal as provided under Section 378 of the Code of Criminal Procedure, 1973 (for short, “the Code”) inter alia challenging the judgment and order of acquittal in favour of the respondents – accused. The present appeal is abated qua respondent No.2 vide separate order dated 22.03.2022 passed by this Court.

Brief facts of the case are as under:

2.1 On 29.11.1994 at about 10 p.m., Village-Napa Vanta, Taluka-Borsad, District-Kheda, one Manubha Bachubhai, who was nephew of the complainant-Mansingbhai Bharatsing Rana, was called by his friend- Siddikbha to the field of one Ramsinh Udesinh, whereby as per the case of the prosecution, the accused No.1-Chhatrasinh Ghemalsinh Rana had given the blow by dharia on the head of Manubha Bachubha and accused No.2-Abdul Rahim Takhatsinh Rana had tried to throttle the neck of the said-Manubha. Further, as the Manubha had died, his dead body was thrown on the main road by creating scene that said-Manubha died due to accident. Therefore, the complainant-Mansingbhai Bharatsing Rana has lodged the complaint on 30.11.1994 before the concerned police station by stating that on 29.11.1994 at about 9:15 p.m., his nephew-Manubha Bachubha went from his house towards his farm. At about 10:00 p.m., one villager Hamirsinh Fatesinh Rana has informed complainant that his nephew Manubha Bachubha has met with an accident near Napa Vanta bus stand and died on the spot. Therefore, he alongwith Sarpanch and his brother Amarsinh @ Himmatsinh, went to the place of incident. Thereafter, he found Manubha, lying on the road and had received head injuries. Thereafter, he has filed the complaint by indicating above stated facts. Initially, the police has investigated it as an accidental case and also inquest of the dead body carried out. Further, blood marks are also found from nearby field at the place of incident. Accordingly, it was informed to the A.P.I., Borsad that the said incident is not occurred due to the accident but it seems that some offence of murder has been taken placed. The P.S.I.-Sujansinh had carried out further investigation and has recorded the statements of the witnesses and has also carried out Panchnama etc. and dogs squad was also called for as a part of process of investigation.

2.2 In pursuance of the complaint lodged by the complainant, the investigating agency recorded the statements of the witnesses, collected the relevant documentary evidence and other relevant evidences for the purpose of proving the offence. After having material evidence against the respondents-accused, charge-sheet came to be filed before the learned Judicial Magistrate, First Class, at Borsad. As the said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Nadiad as provided under Section 209 of the Code. Thereafter, in Sessions Case No.90 of 1995 is tried by the learned Session Court, Nadiad.

2.3 Upon committal of the case to the Session Court, Nadiad, the learned Session Judge framed the charge at Exh.3 against the respondents-accused for the aforesaid offence. The respondents-accused pleaded not guilty and claimed to be tried. 2.4 In order to bring home charge, the prosecution has examined 13 witnesses and also produced various documentary evidence before the trial Court, more particularly described in para 5 and 6 of the impugned judgment.

2.5 On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondents-accused so as to obtain their explanation/answer as provided under Section 313 of the Code. In the further statement, the respondents accused denied all the incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them.

2.6 After hearing both the parties and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the accused for the offences punishable under Section 302, 201 and 34 of the Indian Penal Code, 1860 by giving benefit of doubt by holding that the prosecution has failed to prove the case beyond reasonable doubt.

3.1 We have heard learned advocate Ms. C.M. Shah, Additional Public Prosecutor for the appellant, learned advocate Mr. Hardeep L. Mahida for the respondent No.1. Further, respondent No.2-Abdul Rahim Takhatsinh Rana was expired on 10.08.2005, therefore, criminal appeal qua respondent No.2 stands abated as per the order passed on 22.03.2022. We have minutely examined the oral as well as documentary evidence.

3.2 Learned advocate for the appellant has submitted that the trial Court has not properly appreciated the evidence available on record and has committed error in acquitting the accused persons by giving benefit of doubt. She has relied on the factum of F.S.L. report where blood of the deceased was found at Muddamal-dharia. Therefore, looking to this circumstantial evidence, the learned judge ought to have convicted the accused persons under Section 302, 201 and 34 of the Indian Penal Code, 1860. Further, she has submitted that the trial Court has not properly considered the circumstantial evidence where the blood of the deceased was also found in the nearby place of accident. Further, she has drawn our attention towards the deposition of Dr. Arvindbhai Lallubhai Patel-medical officer, whose deposition is recorded at Exh.12. Whereby, she has tried to point out as per the deposition, it clearly established that sharp vertical stab-wounds and incised wounds were found on the body of the deceased.

3.3 Further, she has submitted that the trial Court has not properly considered the material evidence; like P.M. report at Exh.30 and F.S.L. report at Exh.32, in connection with the deposition given by the various witnesses and more particularly the medical officer. Further, she has submitted that as per column No.17 of P.M. report, the injury stated therein are possible by dharia, which is recovered as Muddamal and at the same point of time, it was found that the same injury is possible by the accident also. Further, she has submitted that the trial Court has not properly appreciated the deposition of the investigating officer-Mr. Sujansinh at Exh.10, who has clearly stated that accused No.1-Chhatrasinh Ghemalsinh Rana had inflicted blows on vital part of body of the deceased i.e. on the head of the deceased. Further, she has submitted that the accused No.2-Abdul Rahim Takhatsinh Rana had committed murder of the deceased by throttling the neck and the said facts are supported by the evidence of P.M. report as well as evidence of medical officers.

3.4 Further, she has submitted that the complain of the complainant- Mansingbhai Bhasatsing Rana gets corroboration from the evidence of investigating officer as well as medical officer. Therefore, there is no reason for the trial Court to disbelieve the same. Further, she has submitted that the other witnesses such as Siddikbhai Bachubha Rana, who has deposed at Exh.11 and Ikbal Fatesinh, who is examined at Exh.10, turned hostile but in their cross-examination, they had supported the case of the prosecution. But the trial Court has not believed the case, which was put up by prosecution and erred in acquitting the accused persons without giving cogent and convincing reasons. Therefore, she has prayed to allow this appeal by reversing the impugned judgment and order passed by the 4th Additional Sessions Judge, Kheda at Nadiad.

Per contra, learned advocate Mr. Hardeep L. Madida appearing for the accused No.1-Chhatrasinh Ghemalsinh Rana would support the judgment and order passed by the trial Court and submitted that the trial Court has not committed any error in acquitting the accused. The trial Court has taken possible views as the prosecution has failed to prove their case beyond reasonable doubt. He has pointed out from the deposition of the complainant-Mansingbhai Bharatsing Rana and also from the deposition of the witness Dadubha Gagubha, who is examined at Exh.14 as well as witnesses such as Ikbal Fatesinh at Exh.10 and Siddikbhai Bachubha Rana at Exh.11. Thereafter, he has pointed out that there are certain contradictions and the trial Court has rightly found that there is no believable evidence coming on record by the prosecution. Further, he has drawn out attention towards the findings of the trial Court, more particularly para 14, 15 & 16. From which, it clearly transpires that the present case, which is relied on the circumstantial evidence, are not completing the chain of circumstances and there are lots of inconsistencies and contradictions in the case of the prosecution. Therefore, he prays to dismiss the present appeal by confirming the impugned judgment and order passed by the trial Court.

5.1 We have independently re-assessed and re-analyzed oral and documentary evidence of the trial Court. We have also heard the submissions made by respective parties. We have gone through the documentary evidence; like P.M. report, F.S.L. report alongwith the depositions of various witnesses. It is a matter of fact that the deceased-Manubha Bachubha was last seen on 29.11.1994 at his residence, while he was watching the T.V. At that point of time, one viz., Siddikbhai Bachubha Rana had gone to the residence of the deceased-Manubha, who is also examined at Exh.11. Siddikbhai Bachubha Rana has stated that he is not having any knowledge about the incident. Therefore, he was declared hostile. He has rather submitted that the police has taken his statement by way of affidavit during the custody when he was detained for three days. The prosecution witness-Ikbal Fatesinh was examined at Exh.10 and deposed that he has last seen the deceased-Manubha while the deceased was watching the T.V. Thereafter, in cross-examination, he has admitted that he has not seen anything in the past, when he was going with deceased-Manubha. At that point of time, he never met with accused No.1-Chhatrasinh Ghemalsinh Rana. Therefore, the story that the accused No.1-Chhatrasinh Ghemalsinh Rana has relation with the cousin sister of the Manubha, was also not established.

5.2 Moreover, the complainant-Mansingbhai Bharatsing Rana has deposed at Exh.8 and has stated that he reached at place of incident after receiving the telephonic call from somebody. Therefore, he has never witnessed any occurrence of the incident. As the blood stain was found nearby place of incident, he has found that his nephew-Manubha would have died due to murder and not due to accident. Therefore, he has lodged the complaint. But nothing substantive is coming out from his deposition to establish beyond reasonable doubt that the offence is committed by the accused persons.

5.3 Further, if we consider the deposition of witness-Dadubha Gagubha, who is examined at Exh.14, as per his version, the other witness-Siddikbhai came to the residence of the Manubha when they were watching T.V. in the night and prosecution has also examined the witness-Siddikbhai Bachubha Rana, who has admitted that the police has forcefully taken his statement on the affidavit. Therefore, when witness-Siddikbhai Bachubha Rana is denying the factum of the prosecution that Siddikbhai went to call the deceased-Manubha, the deposition of Dadubha Gagubha is not helpful to the case of the prosecution.

5.4 There are other contradictions and omissions, found from the statement of witnesses, who were examined at Exh.10, 11, 14 and the complainant himself at Exh.8. If we consider the deposition of one Mahammadkhan Bapusaheb at Exh.25, who was turned hostile but from his deposition, it clearly established that no bloodstain is found from dharia, which is recovered by the investigating agency. Even, another witness-Fatesinh Jashubha Rana, who is examined at Exh.27, has also not supported the Panchnama, which stood as a punch on the inquest Panchnama.

5.5 Further, it is found from the record that the prosecution has examined one Bashirkhan Umravkhan-the head constable at Exh.28 who has carried out inquest Panchnama but nothing comes out from his deposition, which can support the case of the prosecution in any manner. Another witness-Shanabhai Somabhai, who is examined at Exh.20, has registered the F.I.R. of the complainant, for that purpose, he is also examined by the prosecution. So, nothing further comes out from his evidence to support the case based on the circumstantial evidence. The prosecution has also examined witness Sujansinh Juvansinh Vala at Exh.30, who has carried out the investigation by carrying out the Panchnama and has also taken the statement of the witnesses and also has sent the Muddamal to F.S.L. Further, he has deposed and has admitted in the cross-examination that he has not taken the statements of said Hamir and Rahim, who are the sons of Chandubha, but from his evidence also, nothing further established to complete the chain of circumstances which can lead to establish the guilt of the accused.

5.6 The Panchnama, which is drawn on the recovery of dharia at Exh.22, is also found improper in view of Section 27 of the Indian Evidence Act, 1872. At the same time, both the accused were present for recovery of weapons and timing mentioned in the Panchnama are also not matching with the fact that both the accused are showing their weapons, one is dharia and second is stick. Therefore, the trial Court has rightly held that for the recovery of both the weapons, the Panchnama under Section 27 of the Indian Evidence Act, 1872 cannot be drawn simultaneously. Further, it is noted by the trial Court that if the dharia is washed out by the water then, bloodstain could not have been found from the dharia. Moreover, we have also noted that the prosecution has failed to produce the blood group of the deceased on record, therefore, it is difficult to believe that bloodstain is found from the dharia, is also very difficult to believe that it is of the deceased. Even, blood marks, which is alleged to have been found from the road nearby field is also not found in the Panchnama of the scene of offence. Bloodstain is not found from the Panchnama but as per the statement of witness-Bashirkhan Umravkhan that he has pointed out this aspect to the P.S.I. and he has noted down this also. But P.S.I. in his examination-in-chief has not disclosed this aspect about the information received about bloodstain. In fact, the last seen together herein, of the deceased with the accused is not established by the abovementioned evidence. Even, the dogs squad is called at the place of incident, as per the case of prosecution the form for calling the dogs squad is filled up, which is produced at Exh.31 but from Panchnama, it is not shown that investigation is carried out with the dogs squad.

5.7 Further, the trial Court has rightly discussed all the material aspects of the abovementioned evidence, more particularly para 15 and 16 of the impugned judgment. It is also found from our appreciation that the forwarding letter by which Muddamal is sent to the F.S.L., is produced at Exh.32 and this letter shows that it was written on 30.01.1995 and another letter alongwith this letter, clearly shows that Muddamal pertains to Crime Register No.299 of 1994 dated 30.11.1994, which is sent on 30.01.1995 to the F.S.L. Therefore, the Muddamal is lying for two months in the police station. For that, no explanation is coming on record. Whether, the correct Muddamal is sent to the F.S.L. or not is also not coming out form the deposition of the investigating officer. The story of the prosecution that the witness-Siddikbhai Bachubha Rana was asked by the accused-Chhatrasinh Ghemalsinh Rana and his friend Abdul Rahim Takhatsinh Rana to call Manubha as they are having some private work with Manubha is not established. Accordingly, witness-Siddikbhai went to call Manubha and he had gone with Siddikbhai that theory is also not supported by Siddik himself, who was examined at Exh.11. Therefore, in the case of circumstantial evidence, motive behind the commission of offence is required to be proved as important aspect and therefore, in the present case also, motive is not established or proved by the prosecution. Therefore, on our careful re-appreciation of the entire evidence, we found that there is no infirmity or irregularity in the findings of fact recorded by learned trial Judge and under the circumstances, the learned trial Judge has rightly acquitted the respondent-accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal.

It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:

“The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."

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 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 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.

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, 1973 no case is made out to interfere with the impugned judgment and order of acquittal.

In view of the above and for the reasons stated above, the present Criminal Appeal No.962 of 1988 fails to prove its case and the same deserves to be dismissed and is dismissed, accordingly.