State of Gujarat vs Dhirendra and Others

K.S. Jhaveri, J—Heard learned Additional Public Prosecutor for the appellant - State Ms. C.M. Shah and learned Advocate for the respondents Mr. Dharmesh D. Nanavaty/Mr. Premal S. Rachh.

By way of this Appeal, the State has felt aggrieved by the judgment and order dated 30.11.2005 of the learned Additional Sessions Judge, Fast Track Court No. 3, Jamnagar in Sessions Case No. 170/2001 whereby the respondents herein were acquitted for the offences punishable under Sections 25(1)(1A) and 25(1)(1AA) of the Arms Act.

The case in brief and the incident which is alleged to have occurred on 12.04.1988 is as under:--

3.1. The complainant PSI Parakramsinh Kanubha Jadeja was discharging his duty as PSI at LCB Police Station, Jamnagar. Police Inspector Mr. C.B. Gandhi as well as other staff members of LCB Police Station were on patrol on the Jamnagar-Khambaliya Highway. On the said day at about 12.15 pm, one Maruti Car bearing Registration No. GJ-6A-3587 passed over this road. A signal was given but the said car did not stop. The police therefore, followed the said car and it was stopped near a hotel. The police personnel enquired about the registration papers of the said car, but the same were not found and therefore, a search was carried out. Necessary interrogation was done and during the said interrogation, one coloured pouch containing one pistol - 0.0380 caliber as well as pouches of cartridges were found below the seat of the driver. Upon being asked about the necessary permit, the said was denied by the accused No. 1. Thereafter, the panchnama was drawn, the accused was detained and a complaint was filed by the complainant.

3.2. Further investigation of the case was handed over to Police Inspector Mr. C.B. Gandhi and during investigation, it was revealed that the weapon in question was received by accused No. 1 from accused No. 2 and accused No. 2 had received the said weapon from the accused No. 3. Therefore, the accused No. 2 and 3 were also detained and investigated by the police. The pistol as well as cartridges were sent to F.S.L. for further investigation. Necessary statements of the panch witnesses were recorded. Further investigation was carried out and on completion of the investigation, the accused were charge-sheeted for the aforesaid offences.

3.3. The accused pleaded not guilty to the charge and claimed to be tried, so far as the accused of Sessions Case No. 170/2001. Therefore, the prosecution led evidence and on the conclusion of the trial, the learned Additional Sessions Judge, Fast Track Court No. 3, Jamnagar passed the order as above.

3.4. At the time of the trial, the prosecution examined the following witnesses:--

The prosecution also relied upon various documentary evidence, some of them are:--

Learned Additional Public Prosecutor Ms. C.M. Shah for the appellant - State has submitted that the learned Judge ought to have appreciated the version of PW 15 - Complainant PSI Parakramsinh Kanubha Jadeja who has narrated in length about the incident at Exhibit 48. It is narrated therein that the accused No. 1 herein was caught red handed with prohibited arms. It is further submitted that the learned Judge ought to have appreciated the version of PW 17 - Mr. N.M. Parmar who has been examined at Exhibit 62. This witness has deposed in his testimony that on 12.04.1998, he was summoned at the LCB Office, wherein he was instructed to check the pistol of 0.0380 caliber and upon examining the same, it was found to be an automatic pistol and the witness had checked four cartridges which were in a live condition. The deposition of this witness has been corroborated with other witnesses, i.e. the complainant but the learned Judge has not believed the same and thereby committed an error in coming to the conclusion. It was also pointed out that PW 17 - Police Witness Mr. Navalsinh Mahobatsinh Parmar has clearly stated that on the day of the incident, he had checked the firearm and it was found to be in a working condition and the cartridges were also alive. Considering the above, it is submitted that this is a fit case which requires interference by this Court and the judgment and order of the learned Additional Sessions Judge, Fast Track Court No. 3, Jamnagar requires to be upturned.

4.1. Learned Additional Public Prosecutor Ms. C.M. Shah has also placed reliance on the decision of the Hon''ble Supreme Court in the case of Mohd. Aslam Vs. State of Maharashtra, (2000) 8 JT 104 : (2004) 2 SCALE 242 : (2001) 9 SCC 362 wherein Paragraph 7 of the above judgment reads as under:--

"7. Regarding A-1 Mohmed Aslam (@ Shreu Mohd. Hasan) the only evidence for possession of the forbidden lethal weapon is the testimony of PW 34 (Nagesh Shivdas Lohar, Assistant Commissioner of Police, CID Intelligence, Mumbai). Learned counsel contended that two panch witnesses who were cited to support the recovery turned hostile and therefore the evidence of PW 34 became unsupported. We cannot agree with the said contention. If panch witnesses turned hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated. Nor do we agree with the contention that his testimony is unsupported or uncorroborated. The very fact that PW 34 produced in the court lethal weapons recovered is a very formidable circumstance to support his evidence. Learned counsel made an attempt to show that the recovery in fact was not effected from the said flat in which A-1 Mohmed Aslam (@ Sheru Mohd. Hasan) was residing. It is admitted that A-1''s wife and children were residing in that flat. If no such recovery was made from such flat why was nobody examined on the defence side at least to suggest that no police officer effected any recovery from there? As the trial has chosen to believe the testimony of PW 34 and on a further scrutiny we too have no reason to reject the same, we are emboldened to accept the testimony of that witness."

Learned Advocate for the respondents No. 1 and 2 Mr. Dharmesh D. Nanavaty has drawn the attention of this Court to Paragraphs 35, 36 and 37 of the judgment and order of the learned Sessions Judge and has submitted that both the panch witnesses who were semi-government employees have not supported the case of the prosecution and hence, the case of the prosecution has not been proved. He has referred to the various judgments of the Hon''ble Apex Court on the aspect of acquittal which are detailed hereinbelow.

In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala and Another, AIR 2006 SC 3366 : (2006) 3 BC 433 : (2006) 132 CompCas 450 : (2006) 6 CompLJ 39 : (2006) CriLJ 4607 : (2006) 3 CTC 730 : (2006) 6 JT 72 : (2006) 6 SCALE 393 : (2006) 6 SCC 39 : (2006) 3 SCR 124 Supp : (2006) AIRSCW 4652 : (2006) 5 Supreme 547 , the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:--

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

Further, in the case of Chandrappa and Others Vs. State of Karnataka, (2007) CriLJ 2136 : (2007) 3 JT 316 : (2007) 3 SCALE 90 : (2007) 4 SCC 415 : (2007) 2 SCR 630 , the Apex Court laid down the following principles:

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.

[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."

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.

Even in the case of State of Goa Vs. Sanjay Thakran and Another, (2007) 5 JT 146 : (2007) 3 SCALE 740 : (2007) 3 SCC 755 : (2007) 3 SCR 507 , the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under:

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to 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."

Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh and Others, AIR 2007 SC 3075 : (2007) 10 SCALE 545 : (2007) 13 SCC 102 : (2007) 10 SCR 689 : (2007) AIRSCW 5553 : (2007) 6 Supreme 164 and in Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, AIR 2007 SC 3106 : (2007) 10 JT 421 : (2007) 10 SCALE 358 : (2007) 7 SCC 625 : (2007) AIRSCW 5589 : (2007) 6 Supreme 49 . Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

In the case of Lunaram Vs. Bhupat Singh and Others, (2009) CriLJ 1899 : (2009) 3 JT 155 : (2009) 3 SCALE 363 : (2009) 3 SCC 749 : (2009) 3 SCR 706 : (2010) AIRSCW 298 : (2009) 7 Supreme 103 , the Apex Court in para 10 and 11 has held as under:--

"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so-called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the post-mortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.

Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."

Even in a recent decision of the Apex Court in the case of Mookkiah and Another Vs. State rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SC 321 : (2013) 1 Crimes 8 : (2013) 1 JT 626 : (2013) 1 SCALE 95 : (2013) 2 SCC 89 : (2013) AIRSCW 339 : (2013) 1 Supreme 88 , the Apex Court in para 4 has held as under:--

"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellant very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan Vs. Sohan Lal and Others, (2004) CriLJ 3842 : (2004) 5 JT 388 : (2004) 5 SCALE 86 : (2004) 5 SCC 573 : (2004) SCC(L&S) 1078 : (2004) 2 SCR 480 Supp : (2004) 2 UJ 1118 : (2004) AIRSCW 4321 : (2004) AIRSCW 5560 : (2004) 6 Supreme 669 : (2004) 3 Supreme 404 ]."

It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy Alias Vemareddy and Another, AIR 1981 SC 1417 : (1981) CriLJ 1019 : (1981) 1 SCALE 206 : (1981) 2 SCC 185 : (1981) SCC(Cri) 395 : (1981) 2 SCR 695 , wherein it is held as under:--

"This Court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, AIR 1967 SC 1124 : (1967) 1 SCR 93 that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Others Vs. State of Karnataka, AIR 2013 SC 2144 : (2014) 1 CCR 485 : (2013) CriLJ 2658 : (2013) 7 JT 66 : (2013) 3 RCR(Criminal) 86 : (2013) 6 SCALE 757 : (2013) 5 SCC 705 : (2013) AIRSCW 2719 : (2013) 4 Supreme 38 .

We have heard learned Advocates for the parties and perused the records of the case. It will not be out of place to mention that out of 25 witnesses, almost 14 witnesses have turned hostile. PW 3 and PW 6 both are working in a Municipal Corporation. Relevant portion of further statement of the accused No. 1 under Section 313 of the Code reads as under:--

"Question No. 12 : Witness C.B. Gandhi and he-himself further averred at Exhibit 111 that on conducting search of the said car, brown coloured pouch was found from below the driver seat and opening the same, foreign made pistol was found from therein and four live cartridges were found from the magazine of this pistol. Do you want say anything regarding this"

Answer : It is false.

Question No. 26 : As per the averment of this witness, when a pistol was given for checking, it was of 0.38 caliber and it was such that both single and double action can be fired with it. Do you want to say anything regarding this?

Answer : It is wrong opinion.

Question No. 28 : As per his averment, it was an automatic type of pistol that a firing can be done after loading magazine and after keeping its trigger pressed, firing of cartridges remain continued. Do you want to say anything regarding this?

Answer : It is a false opinion. I do not know anything regarding that pistol.

Question No. 60 : Do you want to state anything further?

Answer : Jamnagar Police reached Porbandar on the day of the incident and came to my house in the morning. I was arrested on the basis of suspicion and brought to Jamnagar with my car. I have been falsely implicated therein thereafter. Muddamal pistol, cartridges or pouch have neither been found from my possession nor from my car. Complaint, panchnama etc. have falsely been raised. I am totally guiltless."

Further, Paragraphs 35, 36 and 37 of the judgment and order of the learned Additional Sessions Judge, Fast Track Court No. 3, Jamnagar is relevant and the translated version is as under:--

"35. In view of the entire evidence of the prosecution and the aforesaid submissions of both the parties, if we take into account the facts on record, it comes to be noted that as per the case of the prosecution, all the accused persons have been alleged in respect of the commission of the offence under Sections 25(1), (1A), (1AA) of the Arms Act, 1959. As per Section - 25(1A) of the said Act, if a person manufacture any arms or ammunition, sells it, transfers it, converts, repairs or tests or proves it or exposes or offers for sale or transfer, or keeps it in his possession for sale, transfer, conversion, repair, test or proof in contravention of section 5 of this Act, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years, and he shall also be liable to pay fine. According to Section 5 of the said Act, no person can keep such arms of ammunition with him without obtaining licence to manufacture or sell arms and ammunition. Section 25(1A) of the said Act reads that any person who acquires, or has in his possession or keeps with him any prohibited arm or ammunition in contravention of Section 3, he shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to ten years, and he shall be liable to pay fine. As per Section 3 of the said Act, the person possession any firearm or ammunition is required to obtain a licence as per the rules, and no person can acquire or keep in his possession any firearms without a licence. Similarly, as per Section 25(1AA) of the said Act, any person, who manufactures any prohibited arm or ammunition, sells it, transfers, converts, repairs, tests or proves it, or exposes or offers it for sale or transfer, or keeps it in his possession for sale, transfer, conversion, repair or test or proof in contravention of Section 7, he shall be punishable with imprisonment for a term which shall not be less than seven years, but which may extend to life imprisonment, and he shall also be liable to pay fine. As per Section 7 of this Act, it has been prohibited to acquire or keep in one''s possession or to manufacture or sell prohibited arms and ammunition. Thus, the accused persons of this case have been alleged by the prosecution in respect of not holding the licence issued for acquiring and keeping in their possession the firearms or muddamal, and of violating the law by selling the prohibited arm in question by keeping it in their possession. Taking into perusal the evidence produced in this case by prosecution to prove the said allegation, such a fact comes to be noted that in this case, it has been alleged by the prosecution that a Maruti car and the pistol and cartridge and pouch have been seized from the chief accused of S.C. No. 170/01 namely Dhirendra @ Dhiru Jiva, Resident of Porbandar as per the detail of the panchnama, exh. 112, and the pistol had been got checked by the local armourer. In this respect, two panchas namely Baldevsinh Vikramsinh and Aravindsinh Dilubha Jadeja, and the armourer Navalsinh Parmar have been examined by the prosecution in order to prove this fact on record. Taking into perusal their evidence, such a fact comes to be noted that though the two panchas were government servants, they have not supported the fact of the prosecution at all in respect of the maruti car having been stopped in their presence, the accused Dhirendra @ Dhiru Jiva having been found from it and the seizure of pistol, cartridge and pouch of muddamal from the maruti car. Now, if the incident as per the case of the prosecution had actually taken place in presence of the persons serving as government/public employees, they would have definitely given support to that fact in this respect. These two pancha-witnesses, being public servants, could not have any reason to tell a lie. At this stage, it is also necessary to note that as per the evidence of the armourer Navalsinh, he had been called at LCB Officer for checking pistol, and at that time, he had checked the pistol and cartridge himself there. Thus, in his examination-in-chief Navalsinh has stated it clearly that he has checked the arms at the office of L.C.B. As against the evidence of Navalsinh, such a fact has been written in the panchnama of exh. 112 that, this Navalsinh had been called near the diversion of the culvert on Khambaliya Highway in front of Damji Hotel, he checked the pistol and cartridge there, and it has been dictated that he had averred that it was such foreign-made arm as could fire single-action and double-action automatically, and it was in working condition. Thus, the said fact dictated in the panchnama is not corroborated by a significant police-person such as the armourer Navalsinh, and Navalsinh has stated a contrary fact in his evidence. At this stage, it is necessary to note that Navalsinh has not been declared hostile in respect of the facts stated by him in the examination-in-chief, and thus the prosecution relies on the evidence of the examination-in-chief of Navalsinh. At this stage, it is also necessary to note that Navalsinh has also stated it clearly in his deposition that when he went to the LCB Office, he had been shown this pistol by Mr. P.K. Jadeja and one constable had brought that pistol. Thus, it becomes clear from the evidence of Navalsinh also that when he checked the pistol, either the panchas or the accused were not present there. Under such circumstances, the fact stated by both the panchas who are public servants, is supported by the evidence of the police witness, and thus, it is not proved that the so-called motorcar of the muddamal, the weapon of muddamal and the cartridge and the pouch had been seized from Dhiru Jiva in presence of the independent witnesses.

Further, taking into account the evidence of the armourer, it comes to be noted that when he examined the pistol and the cartridge at the LCB Office, there was no seal on it. Under such circumstances, the fact of the evidence of Mr. Jadeja and Mr. Gandhi in respect of the seizure of the pistol and cartridge in presence of the panchas at the place becomes doubtful. In reality, it was required for the prosecution to produce the copy of the extract of the muddamal-register kept in the police station to show the fact that the arms and cartridge were in sealed condition, and then it was then required to produce the evidence of that person to whom the muddamal had been handed over in sealed condition, and it was required to produce an evidence showing the fact as to in what condition the arm of muddamal and cartridge were before they were sent to F.S.L. However, in this case, such a fact comes to be noted from the evidence mentioned above that no satisfactory evidence has been produced showing the fact as to in what condition the muddamal was before it was received by F.S.L.

Further, in this case, it also comes to be noted that as per the fact stated in the book of Shri Gor related to Firearms, 1989, the measurement of the pistol of 0.35 caliber is considered to be 9.5 mm. Whereas, for the caliber of 0.38, it is considered to be of 9.3 and 9.5, and no complaint has been submitted by the prosecution against this fact. In this case, as per the report of F.S.L., the pistol and cartridge received by them were of 9mm. In this case, as per the case of the prosecution, the pistol and cartridge found from the accused were of 0.38 caliber. Thus, contradictory fact has been found in respect of the evidence on record also relating to the arm and the cartridge."

We have considered the evidence brought on record, the judgment and order of the learned Sessions Judge as also the statement of the accused No. 1 under Section 313 of the Code. While confirming the judgment and order of the learned Additional Sessions Judge, Fast Track Court No. 3, Jamnagar in Sessions Case No. 170/2001, we are in complete agreement with the view taken by the learned Sessions Judge, the possibility of planting the accused No. 1 cannot be ruled out. Further as already stated hereinabove, out of 25 witnesses, almost 14 witnesses have turned hostile and the two witnesses who were employed with a semi-Government organization have also not supported the case of the prosecution.

In view of the above, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the accused and adopting the said reasons as well as the reasons aforesaid, in our view, the impugned Judgment is just, legal and proper and requires no interference by this Court at this stage.

The Appeal is devoid of merits and stands dismissed. The judgment and order dated 30.11.2005 of the learned Additional Sessions Judge, Fast Track Court No. 3, Jamnagar in Sessions Case No. 170/2001 is confirmed. Bail and bail bond, if any, stands cancelled. Record and proceedings, if any, be sent to the concerned Trial Court forthwith.