State of Gujarat vs Jitendrasinh

Anant S. Dave, J.—This appeal under Section 378 (1) (3) of the Code of Criminal Procedure 1973 arise out of judgement and order of acquittal passed by learned Additional Sessions Judge, Fast Track Court No.3, Jamnagar in Sessions Case No.97 of 2001 dated 30.9.2005, by which, respondents are acquitted of offence under Sections 302, 397, 201 and 34 of Indian Penal Code.

In the backdrop of case of prosecution that on 2.4.2001, a telephonic vardhi received from Sarpanch Shri Jivrajbhai Dobaria of Khamata village that one dead body of unknown person was lying on the road of Khamata village. The police party went there at the scene and after drawing the inquest panchnama, the body was sent to the hospital for the postmortem report and accidental death No.10/2004 came to be registered at police station. During the course of inquiry under Section 174 of the Criminal Procedure, Code, 1973, the postmortem was obtained from the hospital, in which, cause of death was disclosed as asphyxia due to strangulation and hence, the complaint came to be lodged bearing C.R.No.16/2001 under Section 302 and 301 of the Indian Penal Code at Padhari Police Station and, thereafter, the investigation was commenced in that regard. During the course of investigation on 18.4.2004, Police Inspector Mr. Barot from P.C.B., Ahmedabad gave vardhi that the accused persons viz., Jitendra Vaghela and Kirit Vaghela were arrested at Ahmedabad and they have disclosed that the crime was committed by them at Khamata village and after obtaining transfer warrant police arrested the accused persons and TATA sumo a vehicle was also seized.

2.1. On conclusion of the investigation, charge-sheet came to be filed before the competent Court and, thereafter case was committed to the Court of Sessions and charge was framed, wherein the respondent-accused pleased not guilty and claimed to be tried. During the course of trial, the prosecution produced elaborate evidence both documentary as well as oral and examined as many as 79 witnesses and produced as many as 84 documentary evidence to substantiate the charge. After closing the evidence and hearing the respondents-accused under Section 313, the learned Additional Sessions Judge, Fast Track Court No.3, Jamnagar was pleased to acquit all the respondents-accused on the ground that the prosecution has failed to establish beyond reasonable doubt thus, acquitting the respondents-accused by granting benefit of doubt.

Learned APP for the appellant-State of Gujarat contends that the P.W.1 Jivrajbhai Dobaria, at Exh. 24 deposed in his testimony that on 2.4.2001 he was informed by one Polabhai Bhavanbhai that one dead body was lying on the road and hence after verifying the same the witness informed the padghari police station through his mobile phone and accordingly the police came over there and panchnama as well as proceedings were initiated. P.W.70-Dilipkumar Jayantilal at Exh.157 deposed that he was summoned by the police to be remained as panch witness on 18.4.2001 and this witness along with another witness went to Padghari Police Station on 19.4.2001 at about 2:30 p.m. Thereafter, they have seated in the jeep along with two accused persons and they reached at Khamata village and jeep was halted near the pool at the instance of two accused. Thereafter both the accused persons stated that they have thrown the victim from this bridge. The accused persons directed the vehicle to drive to Dhrol and reached at the Reliance Factory at Jamnagar and from there they directed the vehicle to drive towards the Khambhaliya and ultimately they reached at Devadiya Patiya i.e. 15 kilometers away from the Khambhaliya. Then the accused persons directed to drive the vehicle towards Devadiya Patiya and stated before them that they have gagged the victim by the wire and thereafter the body was thrown from the bridge. PW.72-Kishorsinh Karansinh at Exh.166 has deposed that in the year 2001 he was discharging the duty at Vadinar out post of the Khambhaliya Police Station as an unarmed police constable and deposed that on 31.3.2001 he received a phone call from the accused viz., Kiritsinh, wherein the accused person stated that he had come to the residence of his father-in-law Pratapsinh and therefore he had gone to the house of his father-in-law.

The learned Sessions Judge ought to have appreciated the version of prosecution witness No.72 viz., Kishorsinh Karansinh, who has been examined at Exh.166. He has deposed in his testimony that in the year 2001, he was discharging his duty at Vadinar out post of the Khambhaliya Police Station as an unarmed Police Constable. He has deposed in his testimony that on 31.3.2001, he received one phone call from the accused viz., Kiritsinh, wherein the accused persons stated that he had come to the residence of his father-in-law viz., Pratapsinh so this witness went to the house of his father-in-law. He further stated that the accused viz., Kiritsinh had introduced him the another persons as Jitendrasinh and one driver viz., Lalabha. He further stated that they had taken tea and breakfast at the house of Pratapsinh and, thereafter, all three came to residence and stayed upto half and hour. Thereafter, this witness started for his employment i.e. at Vadinar out post and thereafter he came to know on 30.4.2001 that both the accused persons have committed the crime. Thus, this witness has supported the case of the prosecution where the victim was last seen together with the accused persons.

4.1. Learned Sessions Judge ought to have appreciated the version of prosecution witness No. 74 viz. Dr. Ganesh Pyarelal Govekar, who has been examined at Exh. 172. The witness has deposed in his testimony that on 2.4.2001, when he was present at Rajkot Medical College, one dead body of unknown person brought with police yadi from Padghari Police Station and this witness along with another Dr. Anilkumar Jha had performed the postmortem of the dead body. The witness further stated that they observed five external injuries, which were said to be ant mortem injuries and are corresponding to the internal injuries. In the opinion of this witness, the cause of death is due to asphyxia. Thus, this witness has supported the case of the prosecution that the death was homicidal.

4.2. The learned Sessions Judge ought to have appreciated the version of prosecution witness No. 77 viz. Pramodgiri Pashugiri Goswami, who has been examined at Exh. 181. The witness has deposed in his testimony that on 2.4.2001, he was discharging his duty as P.S.O. at Padghari Police Station, wherein he received vardhi from one Jivrajbhai at about 8:25 a.m. about the dead body of one unknown person lying at Khamata village, Patiya behind bridge and, accordingly, the information entry was entered into the station diary and intimated accordingly to the P.S.I. Shri H.P. Doshi and, thereafter the A.D.No.10/2002 came to be lodged. Thereafter, the P.S.I. Shri Doshi had sent the report for registering the complaint on behalf of the State, which came to be registered at I-C.R.No.16/2001 under Section 302 and 201 of the Indian Penal Code and, accordingly, the investigation was entrusted to P.S.I. Thus, the witness has supported the case of the prosecution.

4.3. The learned Sessions Judge ought to have appreciated the version of prosecution witness No.78 viz., Himanshubhai Pravinbhai Doshi, who has been examined at Exh.185. The witness has deposed in his testimony that he was discharging his duty as PSI at Padhari Police Station and at that time, he was intimated about the dead body of one unknown person under the bridge of the Khamata village and, accordingly, he went there and dead body was sent for postmortem after observing necessary formalities. After obtaining the report from the doctor about the cause of death, the complaint was lodged on behalf of the State Government and, thereafter, the investigation was started in that regard and, accordingly, yadi was sent to the Superintendent of Police and commissioner of the State of Gujarat and during the course of investigation on 18.4.2001, P.I. Shri Barot of D.C.B., Police Station had intimated through telephone vardhi about the arrest of the two accused persons, who had confessed their guilt before them and, accordingly, the transfer warrant was obtained and arrest was procured of the present accused persons and after getting the missing person, report from the Sanand Police Station dated 14.4.2001, this witness procured the police remand of the accused persons. During the course of Police remand, this accused persons disclosed the place of occurrence in the presence of panch witnesses and vehicle i.e. TATA Sumo bearing registration No.GJ-1- AP6228 was seized and it was examined by the F.S.I. Officer. After obtaining the ample evidence against the accused persons and the relevant documents, charge-sheet came to be filed before the competent Court. Thus, this witness has supported the case of the prosecution. The witness further stated that he has recorded the statement of Mahesh Gajubha Chauhan, who has stated before him that his brother was driving the vehicle i.e. TATA Sumo since two and half years and on 29.3.2001 at about 9 o''clock, the accused persons hired the vehicle for taking trip to Rajasthan. The witness further stated before him that on 5.4.2001, the telephone message was received that Jimmy had told the owner of the TATA Sumo that they would come on 11.4.2001. That on 11.4.2001 to 14.4.2001, both the accused are in the village, but Lala was not traceable and, hence, the owner of the TATA Sumo had lodged the complaint regarding the missing person at Sanand Police Station along with TATA Sumo Vehicle which was procured from Kheda bus stand after some days. Thus, the witness has stated about the role played by the present accused persons. It is therefore submitted that appeal deserves to be allowed by quashing and setting aside acquittal ordered by the trial Court.

Mr. Dipak Dave, learned advocate for the respondents would contend that a well reasoned order of acquittal passed by learned Judge in a case of the prosecution solely revolve around circumstantial evidence and do not require any reversal order in view of following important witnesses who have not supported the case of the prosecution.

PW No.

Name

Exh.

8(H)

Mahesh Gajubha Chauhan

Brother of deceased

31

9(H)

Gajubha Banesinh

Father of deceased

32

10(H)

Bhupatsinh Amarsinh

Relative of deceased

33

11(H)

Bahadursinh Harisung

Relative of PW 12

34

12(H)

Pravinsinh Madhubha

Brother-in-law of A-2 (Kiritsinh)

35

13(H)

Rekhaben Pravinsinh

Wife of PW-12 & Sister of A-2

36

14(H)

Kanchanba Madhubha

Mother of PW-12

37

15(H)

Jitubha Govubha

38

16(H)

Nanbha Jalamsang

Relative of A-2

39

17(H)

Bhikabhai Somabhai

Employee of Petrol Pump

40

18(H)

Bharatsinh Rana

Relative of A-2

42

19(H)

Ramchandra Dolbha

43

20(H)

Satishkumar Vaghela

Brother of A-1

44

21(H)

Bahadursinh Bhurubha

Uncle of A-2 & coemployee of A-2 at Petrol Pump

45

22(H)

Vasantben Navalsinh

Wife of deceased

46

23(H)

Jatubha Gambhirsinh

Neighbour of deceased

47

24(H)

Alpesh Desai

48

25(H)

Mahadevbhai Gafulbhai

49

26(H)

Maheshkumar Popatlal

Taxi Driver

50

27(H)

Dolatsinh Jasvantsinh

Employee of Hotel Apsara Guest House, Ahmedabad

51

28(H)

Kanakben Ajitsinh Vaghela

Aunty of A-1

53

29(H)

Ajitsinh Samatsinh Vaghela

Uncle of A-1

54

30(H)

Gafulbhai Jarshibhai Desai

Administrator of Sumo Vehicle registered No.GJ 1 AP 6228 of PW-66

55

31(H)

Ranjitsinh Lakhubha

Relative of deceased

56

32(H)

Geetaben Kishorsinh

Wife of PW-72

57

33(H)

Naliniben @ Meena Arvindsinh

Relative of A-1

58

34(H)

Ranjitsinh Arjanbhai

Father of A-2

59

35(H)

Vikramsinh Bhavsinh

Relative of A-1

60

36(H)

Prashant Ranjitsinh

Friend of A-2

61

37(H)

Arvindsinh Shivsinh

Uncle of A-1

62

38(H)

Jagdishsinh

Compounder in Hospital at Nadiad

63

39(H)

Amarsinh Bavaji

Uncle of A-1

64

40(H)

Jagdish Manubha

Relative of A-1

65

41(H)

Mahendrasinh Takhatsinh

Uncle of A-1

66

42(H)

Bhagvanji Somsinh

67

43(H)

Dharmanshu Gangaram

Employee of RTO, Rajkot

68

44(H)

Dr. Vipul Girdharlal Chandarana

Serving as Superintendent of Community Health Centre, Padadhari

70

45(H)

Premji Hamirbhai

Employee of RTO, Ahmedabad

78

46(H)

Ashwinkumar Mansinh

84

47(H)

Harjivandas Lakshmandas

Circle Officer

85

48(H)

Jivabhai Somabhai

Employee of STD PCO

91

49(H)

Prabhatsinh Jalamsinh

Relative of A-2

93

50(H)

Anand Hansraj

94

50-A (H)

Hansaba Rajendrasinh

Cousin sister of A-1

114

51(H)

Rekhaba Bharatsinh Zala

Cousin sister of A-2

115

52(H)

Jayaba Rambhadrasinh

Relative of A-2

116

53(H

Kokilaba Mahendrasinh

Relative of A-2

117

54(H)

Rajendra Jatubha

Brother-in-law of A-1

118

55(H)

Mahendrasinh Ranjitsinh

Relative of A-2

119

56(H)

Narendrasinh Kaharsinh Panch

witness

122

57(H)

Pravinsinh Bhavsinh Panch

witness

123

58(H)

Narottam Popatlal Panch

witness

124

59(H)

Dilipkumar Kakubhai Panch

witness

125

60(H)

Ashokbhai Chaganbhai Panch

witness

126

61(H)

Sureshbhai Lalbhai Panch

witness

127

62(H)

Hasmukh Kantilal Panch

witness

130

63(H)

Narendra Govindbhai Panch

witness

131

64(H)

Alpesh Bhagubhai

Owner of STD PCO at Sanand

136

65(H)

Kaushar Mansukbhai

Receptionist of Hotel City Plaza Guest House, Ahmedabad

137

66

Vasram Devabhai

Owner of the Vehicle No.lGJ 1 AP 6228

153

67(H)

Kiranbhai Dashrathbhai

154

68(H)

Vikramsinh Bhagvansinh

Relative of A-1

155

69(H)

Meenaba Janubha

Relative of A-1

156

70

Dilipkumar Jayantilal Panch

Wintess of demonstration panchnama at Exh.206

157

71(H)

Meenaben Jayantibhai

160

72

Kishorsinh Karansinh

166

73(H)

Dayabhai Naranbhai Panch

witness

171

74 Dr.

Ganesh Pyarelal Govekar

PM Doctor

172

75(H)

Rajendrasinh Karansinh

Brother-in-law of A-1

179

76(H)

Lakhubha Umedsinh Jadeja

Relative of deceased

180

77(H)

Pramodgiri Pathugiri Goswami

PSO at Padadhari Police Station, Dist. Jamnagar

181

78(H)

Himanshubhai Pravinbhai Doshi

PSI, Padadhari Police Station, Dist. Jamnagar and the complainant

185

79(H)

Bharatsinh Madhubha Vaghela

PSI, Khambhaliya Police Station

236

P.W.8 to P.W.42, P.W.46 and P.W.48 to P.W.65, P.W.''s 67, 68, 69, 71, 73, 75 and 76 have turned hostile and not supported the case of the prosecution.

Mr. Dipak Dave, learned advocate for the respondent has placed reliance on following decisions of the Apex Court.

(1) Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450

(2) Ratan Lal v. State of Rajasthan 2015 (2) SCALE 107: In the context of powers of appellate Court under Section 378 and 386 of the Code of Criminal Procedure, 1973 in an appeal against order of acquittal in which presumption of innocence of accused is reinforced by the acquittal by trial Court and further when benefit of doubt is given to accused, reviewing evidence and conclusion of trial Court no doubt are very vide but same must be exercised with great care and caution by the appellate Court.

(3) Nizam and Anr. v. State of Rajasthan (2016) 1 SCC 550

Having regards to the facts and circumstances and perusal of the record and submissions made by learned advocate for the parties it is undoubtedly proved that death of deceased was homicidal and sufficient evidence surfaced on record by testimonies of P.W.74 Dr. Ganesh Pyarelal, a doctor who carried out postmortem. However, the evidence brought on record by prosecution is based on demonstration panchnama, for which, panch witnesses have not supported. Police Constable Kishore Singh, P.W.72 in his testimonies deposes to the extent of accused where last seen together with the deceased when he was alive since they had stayed at his residence for some time. However, the very fact is denied by wife of the constable and, therefore, evidence of this witnesses is not believable. At the same time when the case is based on circumstantial evidence every link is to be established by the prosecution and needs to be proved so. That statements made by witnesses before investigating officer are sought to be proved in the evidence of such investigating officer before the Court and that also is based on hearsay evidence. As such evidence has to be direct and in absence of direct evidence hearsay evidence has to get clear corroboration from the circumstances.

The case of the prosecution is not even supported by brother, father and wife of the deceased namely P.W.''s 8, 9 and 22 all together. Therefore, testimonry of the P.W.74, doctor who carried out postmortem only confirms cause of death that is due to asphyxia as a result of ligature strangulation and nothing beyond that. The informant had seen body of the deceased lying near the bridge and vehicle was seen by another witness. Thus, P.W.1 and P.W.2 namely Jivrajbhai Hansrajbhai and Becharbhai Abhabhai do not carry case of the prosecution any further. Simply because deposition of P.W.24, P.W.25 and P.W.26 to some extent disclosed that A.-1 had hired the taxi of the deceased again do not connect with next circumstances and though A-1 staying at Hotel Apsara Guest House, ultimately have turned hostile and not supported the case of the prosecution.

In the case of Ghurey lal v. State of Uttar Pradesh (supra) in para 70, the Apex Court culled out well settled principles crystallized by number of judgements in case if the appellate Court is going to overrule or otherwise disturb the trial Court acquittals and in para 70, 71, 72 and 73 held as under:

"70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgements if it is going to overrule or otherwise disturb the trail Court''s acquittal:

The appellate court may only overrule or otherwise distrub the trial court''s acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trail Court''s decision. "very substantial and compelling reasons" exist when:

(i) The trial court''s conclusion with regard to the facts is palpably wrong;

(ii) The trail court''s decision was based on an erroneous view of law;

(iii) The trail court''s judgement is likely to result in "grave miscarriage of justice";

(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

(v) The trail court''s judgement was manifestly unjust and unreasonable;

(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.

(vii) This list is intended to be illustrative, not exhaustive.

The appellate court must always give proper weight and consideration to the findings of the trial court.

If two reasonable views can be reached one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused.

Had the well-settled principles been followed by the High Court, the accused would have been set free long ago. Though the appellate court''s power is wide and extensive, it must be used with great care and caution.

We have considered the entire evidence and documents on record and the reasoning given by the trial court for acquiring the accused and also the reasoning of the High Court for reversal of the judgement of acquittal. We have also dealt with a number of cases decided by the Privy Council and this Court since 1934. In our considered opinion, the trial court carefully scrutinised the entire evidence and documents on record and arrived at the correct conclusion. We are clearly of the opinion that the reasoning given by the High Court for overturning the judgement of the trial court is wholly unsustainable and contrary to the settled principles of law crystallised by a series of judgement.

On marshalling the entire evidence and the documents on record, the view taken by the trial court is certainly a possible and plausible view. The settled legal position as explained above is that if the trial court''s view is possible and plausible, the High Court should not substitute the same by its own possible views. The difference in treatment of the case by two courts below is particularly noticeable in the manner in which they have dealt with the prosecution evidence. While the trial court took great pain in discussing all important material aspects and to record its opinion on every material and relevant point, the learned Judges of the High Court have reversed the judgement of the trial court without placing the very substantial reasons given by it in support of its conclusion. The trial court after marshalling the evidence on record came to the conclusion that there were serious infirmities in the prosecution''s story. Following the settled principles of law, it gave the benefit of doubt to the accused. In the impugned judgment, the High Court totally ignored the settled legal position and set aside the well-reasoned judgement of the trial court."

Therefore, law laid down in the case of Ghurey Lal v. State of Uttar Pradesh (supra) with regard to powers to be exercised under Sections 378 and 386 of Code of Criminal Procedure, 1973 and also in the case of Ratan Lal v. State of Rajasthan (supra) about presumption of innocence is reinforced by acquittal by the trial Court and other parameters emerging from similar decisions, we are of the view that learned trial Judge has not committed any illegality in ordering acquittal of respondents and in absence of any substantial and compelling reasons in view of lack of evidence, the order of acquittal warrant no interference and accordingly, the appeal is dismissed.

The Judgement and order dated 30.9.2005 passed by learned Additional Sessions Judge, Fast Track Court No.3, Jamnagar in Sessions Case No.97 of 2001, by which, respondent/original accused is acquitted of offences under Sections 302, 397, 201 and 34 of Indian Penal Code, is confirmed. Bail bond, if any, shall stand cancelled. R & P to be send back to the trial Court forthwith.