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Judgment
K.J. Thaker, J.—Since, all the appeals arise out of the common judgment and order of the trial Court, they are heard together and disposed of by this common judgment. Criminal Appeal No. 1849 of 2008 is preferred by the appellant-State, challenging the judgment and order of the learned Additional Sessions Judge, Court No. 10, Ahmedabad City, Dated: 06.05.2008, rendered in Sessions Case No. 244 of 2006, whereby, the learned Judge recorded acquittal of original accused No. 1, whereas, Criminal Appeal No. 2003 of 2008 is preferred by the original accused Nos. 4 and 5 and Criminal Appeal No. 2103 of 2008 is preferred by the original accused Nos. 2 and 3, challenging the aforesaid judgment and order, recording their conviction u/s 302 of the IPC and sentencing them to undergo rigorous imprisonment for life and to pay fine of Rs. 500/- by each of them and in default to undergo further rigorous imprisonment for one month.
For the sake of brevity all the accused will be mentioned with their original numbers, as they stood before the trial Court.
The brief facts of the case of the prosecution, as set out before the trial Court, reads as under;
A complaint was lodged by one, Sobhnaben W/o. Chiragkumar Rajnikant Shah on 15.11.2005, at Shardaben Hospital before PI, Bapunagar Police Station, wherein, she stated that since, she was having differences with her husband, she has been residing at her parental home since about one year prior to the alleged offence along with her son, her mother and the brother in relation, Babubhai @ Mehboob and she used to work in a chemist''s shop.
The complainant, then, went on to narrate the alleged offence stating that on the date of the alleged offence, she along with her mother, her aunt and brother, Babubhai, had gone to Sabarmati to meet one of their relatives and they came back to Bapunagar, at about 09:00 pm. On reaching Bapunagar, while the complainant and her brother Babubhai alighted from auto-rickshaw and were going towards their home, she found that about 10 to 15 persons were standing in front of their house, which included the original accused Nos. 1 to 5 and several other persons and they were armed with deadly weapons like sword, dagger, gupti etc. and as soon as they reached near them, the accused No. 3 asked Babubhai as to why he was harassing his sister, and then, they all started inflicting injuries on Babubhai and when the complainant tried to intervene, she was also inflicted injuries by accused No. 2. Even, the mother of the complainant was also beaten up and at that time accused No. 1 was instigating the accused persons. Then, since, the people gathered there, the accused fled the scene of offence.
On registration of the offence, police carried out the investigation and on finding, prima facie evidence against the original accused Nos. 1 and 5, herein, laid charge-sheet against them before the Court of the Ld. Chief Metropolitan Magistrate. However, the case being exclusively triable by a Court of Sessions, same was committed before the Sessions Court, Ahmedabad City, for trial. At the time of trial, the accused did not plead guilty and claimed to be tried. Hence, the accused were tried for the alleged offence.
To bring home the charges leveled against the accused Nos. 1 to 5, the prosecution examined the following witnesses;
Apart from that the prosecution also placed reliance on the following documentary evidences in support of its case;
On completion of the trial, the statements of the accused u/s 313 of the Cr.P.C. Came to be recorded, and then, the trial Court passed the judgment and order, as referred to herein above. Hence, the present appeals.
Heard, Mr. Gondalia, learned Counsel for original accused No. 1, Mr. Barod, learned Counsel for original accused Nos. 4 and 5, Mr. Lakhani, learned Sr. Counsel with Mr. Masaria, learned Advocate with Mr. Gondalia, learned Advocate for original accused Nos. 2 and 3 as well as Mr. Raval, learned APP for the State.
In order to establish that the deceased Babubhai @ Mehboob died of a homicidal death, the prosecution examined P.W.-2-the doctor, who had performed PM on the body of the deceased, at Exhibit-26. In his examination-in-chief, P.W.-2 stated that at the time of PM, he had noticed as many as 20 injuries on the body of the deceased, which reads as under;
8 cm long cut wound right hand causing amputation of fingers middle and ring at proximal phalanx and little finger at abase with corresponding incised wound 1.5 X 0.5 X 0.5 cm on dorsum of inter finger at proximal interphalangeal joint, wound is directed oblique up to base of little finger,
5 X 2 X 1 cm transverse incised wound on back and medial of dorsum of hand, 3 cm below wrist, wound slices upwards,
2 X 0.5 X 0.5 cm incised wound on back and medial of right fore arm 1 cm above wrist, slices upwards;
5 X 0.3 cm linear abrasion on lateral and middle of right arm, oblique downwards backwards;
2 X 1 cm vertical stab wound on right lateral chest, 4 cm inferoanterior to posterior axillary fold, lower end acute, upper broad, margins sharply cut and inverted;
3 X 1 cm transverse stab wound on posterolateral aspect of right arm, 11 cm below shoulder tip and 3 cm lateral to posterior axillary fold, anterior angle acute, posterior broad margins sharply cut and inverted;
3 X 1 X 1 cm transverse incised wound 2 cm below injury No. 6 and 2 cm inferolateral to posterior axillary fold on right arm posterolateral aspect;
1.5 X 1 X 0.5 cm. Vertical incised wound on right chest 3 cm from midline and 5 cm below clavicle;
6 X 2 cm stab wound on left chest 5 cm below nipple and 5 cm from midline directed downwards medially, inferomedial angle acute, other broad, margins sharply cut and inverted;
5 X 0.3 cm linear abrasion on middle of right arm directed downwards backwards;
7 cm long incised wound on left lower forearm-wrist dorsum aspect causing cut fracture of lower ends of radius and ulna with full thickness, slices downwords, lower margin having incised 4 X 0.5 X 1 cm injury 10 and 11 corresponding;
7 X 0.3 cm transverse incised wound on posterolateral of left arm 9 cm below shoulder tip;
2 X 0.5 X 1 cm. Vertical incised wound on right mid lower lip;
4 X 1 X 1.5 cm transverse incised wound on left chick-mouth starting from mid upper lip, upper margin incised having 3 X 0.5 X 12 cm directed upwards laterally;
6 X 0.5 X 1 cm incised wound on left scalp frontal-temporal area directed anterior to posteriorly downwards anterior end is 9 cm and posterior end is 6 cm from ear;
(1) 8 X 1 X bone cut incised wound on left scalp fronto parietal 1 cm medial to injury No. 15 [directed anterior to posteriorly downwards, anterior end is 3 cm. From midline, (b) 14 X 1 X bone cut incised wound medial to (a) and anterior end start from 3 cm posterior to anterior end of (a), a and b merged posteriorly;
(1) 8 X 1 X bone cut incised wound 1 cm medial to injury no 16b on left parietal, anterior end is 1 cm from midline, (b) 9 X 1 X bone cut incised wound medial to (a) and anterior end start from 3 cm posterior to anterior end of (a), posteriorly merged;
6 X 2 X bone cut incised wound oblique on left occipitparietal area backwards laterally 2 cm from midline;
5 X 1 X bone cut incised wound on right posterior parietal area oblique downwards laterally near midline and 10 cm superoposterior to right ear;
11 X 1 X bone cut incised wound on left temporal-occipital region starting from 3 cm posterosuperior to left ear backward medially.
According to P.W.-2, the injuries sustained by the deceased Babubhai, especially, external injury Nos. 15, 16 and 17 were sufficient enough to cause death in general course of nature. According to this witness, the cause of death of the deceased Babubhai was due to shock and hemorrhage due to multiple stab and cut injuries. From the cross-examination of this witness, the learned Counsel for the original accused failed to bring out anything, which would help their case.
Hence, from the evidence of P.W.-2, it becomes amply clear that the death of the deceased Babubhai was neither natural nor accident, but, the same was homicidal one.
Having held that the deceased Babubhai died of a homicidal death, now, we have to examine, whether the prosecution has been successful in establishing its case against the accused persons or not.
In support of its case that on the date and time stated in the complaint, the accused attacked the complainant and caused death of Babubhai, it examined the complainant, P.W.-3 at Exhibit-28. In her examination-in-chief, P.W.-3 narrated the facts given by him in her complaint. Then, she went on to narrate the alleged offence stating as to how she and the deceased Babubhai were intercepted by the accused persons, while they were proceeding towards their house and as to which accused was holding what weapon, and then, how all the accused persons started inflicting injuries on the deceased, indiscriminately and when she tried to intervene, how she was also inflicted injuries by the accused persons. This witness, thereafter, identified the clothes put on by her at the time of the offence as well as the accused and the muddamal weapons before the Court. This witness was also thoroughly cross-examined by the learned counsel for the accused, but, they failed to controvert her evidence on the material aspects. Here, it is pertinent to note that P.W.-3 had also sustained injuries during the alleged offence and she had to undergo treatment in the hospital as an indoor patient for about one week. In that view of the matter here, it would be relevant to refer to a decision of the Hon''ble Apex Court in the case of State of U.P. Vs. Naresh and Others, SC/0228/2011 : 2011 Cri. L.J. 2162, wherein the Hon''ble Apex Court observed that the evidence of an injured witness is accorded special status, since, his presence at the place of occurrence is beyond doubt and it is unlikely that he has spared the actual assailants in order to falsely implicate someone else, and therefore, his evidence should be relied upon, unless there are major contradictions and discrepancies, therein.
In the case of hand also, in view of the fact that P.W.-3 had also sustained injuries during the alleged offence, there is no reason to believe as to why she would involve the accused Nos. 1 to 5, herein, had they actually not committed the crime, sparing the real culprits.
The evidence of P.W.-3 with regard to injuries sustained by her gets support from the evidence of P.W.-1, who had attended and treated her on the date of the alleged offence. In his cross-examination, P.W.-1 stated that the injuries sustained by P.W.-3 on her buttock had been caused just above a few inches, then, she could have died.
The evidence of P.W.-3 gets support from the evidence of P.W.-4, who happens to be the mother of the deceased as well as the complainant. P.W.-4, in her evidence, reiterated what was already stated by P.W.-3 in her complaint as well as her deposition. This witness also identified the accused as well as the weapons wielded by them at the time of the offence before the Court. This witness was exhaustively cross-examined by the learned Counsel for the accused persons, but, the same was of no avail.
Insofar as the evidence of panch witnesses, i.e. P.W.s - 6, 8, 9, 10, 11, 12, 13, 14, 15 and 16 are concerned they did not support the case of the prosecution and were declared hostile. However, P.W.-5, who was a witness to the panchnama of place of offence (Exhibit-42) and P.W.-7, who was witness to the panchnama of seizure of clothes of the deceased (Exhibit-59) supported the prosecution case to the extent of said panchnamas.
The case of the prosecution also gets support from the Serological Report of FSL, which indicated that the presence of human blood of group ''O'', was found on muddamal article Nos. N, O, R1, T, T, U, V, C-1, whereas, the blood group of the deceased was ''O''.
Thus, in view of the above discussion, we have no hesitation in holding that on the date of the alleged offence accused Nos. 2 to 5 wielded weapons like gupti, sword, dagger etc. and inflicted injuries on Babubhai, which later on resulted in his death. However, we are unable to find anything against accused No. 1, namely Madhuben Maheshbhai Panchal. P.W.-3 has not attributed any overt act qua original accused No. 1 either in her complaint or in her evidence before the Court. From the evidence of P.W.-4 also the role of accused No. 1 is not discernible. In other words, there is no material on record to suggest that accused No. 1 actively participated in the alleged offence. In view of the above, we have to look into the matter from the touchstone of the decisions of the Hon''ble Apex Court right from 1991 to 2013.
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 catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala and Another, the Apex Court has narrated 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;
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, 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 powers, 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, 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;
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 cases of State of Uttar Pradesh Vs. Ram Veer Singh and Others, and in Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, 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, the Apex Court in para 10 and 11 has held as under;
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 postmortem 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, the Apex Court in para 4 has held as under:
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 u/s 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants 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 reappreciate 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,
It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite 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, wherein it is held as under;
...This Court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, 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.
In the recent decision, the Hon''ble Apex Court in Shivasharanappa and Others Vs. State of Karnataka, has held as under;
That appellate Court is empowered to re-appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence.
In the case of Krishan Kumar Malik Vs. State of Haryana, the Apex Court set aside the conviction of the original accused, since the prosecutrix, who was alleged to be subjected to physical exploitation by the accused during broad day light, failed to identify the ''Kothi'', i.e. the premises, wherein, the alleged offence was stated to be committed. The apex Court, hence, set aside the conviction of the original accused observing that the conduct of the alleged rape victim raises suspicion and renders her evidence shaky and untrustworthy.
Similar view was taken by this Court, while disposing of an application, bearing Criminal Misc. Application No. 12653 of 2009, for grant of leave to appeal, which was preferred by the State against the acquittal of the original accused in Sessions Case No. 153 of 2008 for the offence punishable under Sections 363, 366 and 376 of the IPC. In Para-3 of the said order, this Court observed as under;
It appears to us that there are basic infirmities in the case of the prosecution inasmuch as in the history given before doctor the victim had stated that she herself had gone voluntarily with the accused. Further, the victim had stayed with the accused for about 8 months. She had all opportunities to go away. This shows that there was no compulsion on her part and she voluntarily remained with the accused. The age of the victim is proved above 16 years. Not only that, but, two times the abortion was made and in the Hospital she has declared that she is the wife of the accused. Under these circumstances it is not possible to believe that there was any sexual intercourse under compulsion, more particularly, when there is no medical evidence supporting the case for the offence u/s 376 of I.P. Code. The panchas have turned hostile and they have not supported the case of the prosecution.
In the result, we are inclined to concur with the judgment and order of the trial Court and the same requires to be confirmed. In the result, all the appeals fail and are DISMISSED. The judgment and order of the trial Court, Dated: 06.05.2008, stands CONFIRMED. It is, however, clarified that the appellants - accused Nos. 2 to 5 shall be given all the benefits, i.e. remission etc., as available to them under the law. It shall also be open to the competent authority to consider their case for release after fourteen years. A copy of this order be sent to the concerned jail authorities, forthwith.