State of Gujarat vs Ratansinh Chandrasinh Baria

H.B. Antani, J.—Heard Ms. Krina Calla, learned APP for the appellant-State. The appeal is admitted.

This is an appeal preferred u/s 378[1][3] of the Code of Criminal Procedure, 1973 ["Code" for short] against the judgment and order of acquittal dated 9th April, 2009 passed by Additional Sessions Judge, Panchmahal, Godhra in Sessions Case No. 143 of 2008, by which, the learned Judge acquitted the respondent for the offence punishable u/s 302 and 201 of Indian Penal Code ["IPC" for short] as well as u/s 135 of Bombay Police Act.

As per the prosecution case, a complaint was given by Parbatbhai Hirabhai Baria, residing at Rampur, Taluka-Morva on 9.5.2008. The complaint was with regard to accidental death, wherein it was stated that on 6.5.2008, Ashwin, elder son of the complainant had gone to the place of the respondent[accused] with a view to obtain some amount from the respondent for labour work done by him for the respondent. Ashwin did not return home till late at night and assuming that he would have stayed at the place of the respondent, the complainant did not inquire about whereabouts of Ashwin. On the next day, when Ashwin did not return home, the complainant inquired of him and on 9.5.2008, dead body of Ashwin was found from his well. Post-mortem which was carried out revealed that the deceased was murdered and therefore, complaint was lodged on 11.5.2008. In view of the complaint given by the complainant, investigation was set in motion. Panchnama of the place of incident was prepared in presence of panch witnesses, statements of witnesses were recorded and dead body was sent for autopsy. Inquest panchnama was prepared in presence of panch witnesses, panchnama with regard to recovery of clothes recovered from the scene of offence was also prepared. At the conclusion of investigation, the respondent was charge-sheeted and produced before the Chief Judicial Magistrate at Godhra, who, in turn, committed the case to the Sessions Court u/s 209 of the Code as the case was exclusively triable by the Sessions Court. Charge against the respondent was framed vide exh. 2 for the offence punishable u/s 302 and 201 of IPC as well as u/s 135 of Bombay Police Act. The respondent pleaded not guilty to the charge levelled against him and therefore, the case was set down for full-fledged trial before the learned Sessions Judge. Prosecution examined 11 witnesses and produced documentary evidence such as panchnama of place of incident, inquest panchnama, panchnama of recovery of clothes etc., in order to bring home the guilt against the respondent. Learned Judge, on the basis of the evidence on the record of the case held that the prosecution has miserably failed to prove that the incident took place on 6.5.2008 and as Ashwin, son of the complainant had illicit relations with wife of the respondent, he got infuriated and gave stick blow to Ashwin on head as well as in abdomen and caused his death. Learned Judge, on the basis of the evidence on the record of the case further held that the prosecution has failed to prove that the respondent, with a view to destroy the entire evidence with regard to gruesome murder of deceased Ashwin threw dead body in the well and thereby committed offence punishable u/s 201 of IPC. The learned Judge held that the prosecution has not established the entire link connecting the respondent with the commission of offence in conclusive manner and, therefore, the learned Judge acquitted the respondent for the offence punishable u/s 302 and 201 of IPC.

Learned APP Ms. Krina Calla representing the appellant State submitted that the learned Judge has not taken into consideration the depositions adduced by the prosecution witnesses in proper perspective while acquitting the respondent for the offence punishable under Sections 302 and 201 of IPC. Learned APP submitted that the learned Judge has not appreciated the deposition adduced by Parbat-complainant vide exh. 12 and erred in holding that the deposition adduced by Parbat does not inspire confidence of the Court to convict the respondent for the commission of crime. Learned APP submitted that the medical evidence, panchnama etc. also indicate involvement of the respondent in the commission of crime and this aspect was overlooked by the learned Judge while acquitting the respondent. It is submitted that the learned Judge has committed error in holding that there was no evidence that the deceased had gone to the house of respondent at 8.00 O''clock. Thus, the learned Judge has committed grave error in holding that the respondent was not involved in the commission of offence and subsequently destroying the dead body of the deceased. Thus, it is submitted by the learned APP that considering the reasoning given by the learned Additional Sessions Judge, the appeal deserves to be allowed and the order of acquittal passed by the learned Sessions Judge be quashed and set aside.

We have heard learned APP Ms. Krina Calla at length and in great detail. We have also perused the reasoning given by the learned Judge while acquitting the respondent for the offence u/s 302 and 201 of IPC read with Section 135 of B.P. Act. Record and proceedings called for by this Court is also perused by us. The prosecution, with a view to establish involvement of the respondent in the commission of offence, has examined 11 witnesses and produced documentary evidence such as P.M. Note vide exh. 11, complaint vide exh. 14, inquest panchnama vide exh. 19, panchnama of place of incident vide exh. 21, panchnama of recovery of clothes vide exh. 22 and report of FSL vide exh. 26 etc. Considering the evidence on the record of the case, the prosecution has not established involvement of the respondent in the commission of offence and there is nothing in the evidence on record of the case to suggest that respondent was involved in the commission of offence punishable u/s 302 read with Section 201 of IPC. On overall perusal of the evidence on record of the case, the learned Judge has come to a conclusion that the prosecution has not established the entire link connecting the respondent with the commission of offence of murder. We do not find any infirmity in the reasoning given by the learned Judge as the evidence adduced on behalf of the prosecution is not consistent and trustworthy so as to indicate involvement of the respondent in the commission of offence. Thus, taking into consideration the entire gamut of oral depositions and documentary evidence on record of the case, there is no direct evidence connecting the respondent with the commission of offence and even circumstantial evidence does not suggest involvement of the respondent in the commission of crime. In view of the above, we have no hesitation in holding that there is no infirmity in the judgment rendered by the learned Additional Sessions Judge and the learned Judge has rightly acquitted the respondent for the offence u/s 302 and 201 of IPC read with Section 135 of B.P. Act.

This Court is also aware of the fact that this is an acquittal appeal preferred u/s 378[1][3] of the Code in which the Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly, when the evidence has not inspired necessary confidence of the learned Additional Sessions Judge who had the opportunity to observe demeanour of the witnesses. As this Court is in general agreement with the view expressed by the learned Additional Sessions Judge, the Court does not think it necessary either to reiterate the evidence of prosecution witnesses or to restate the reasons for acquittal given by the learned Additional Sessions Judge and this Court is of the opinion that expression of general agreement with the view taken by the learned Additional Sessions Judge would be sufficient in the facts of the case. We, therefore, do not find any infirmity in the order passed by the learned Additional Sessions Judge and therefore, the appeal deserves to be dismissed.

For the foregoing reasons, the appeal is without merit, and the same is, therefore, dismissed. The judgment and order of acquittal dated 9th April, 2009, passed by the learned Additional Sessions Judge, Panchmahal, Godhra in Sessions Case No. 143 of 2008, is hereby confirmed.