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Judgment
The appellant-State of Gujarat has preferred the present appeal under Section 378 of Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 29.6.1995 passed by the learned Additional Sessions Judge, Panchmahal at Godhra in Sessions Case No.73 of 1994.
The case of the prosecution is that on 26.3.1994 at about 5 p.m., the complainant - Rameshkumar Bhimsinh resident of Village: Parvadi, Taluka: Godhra and his father Bhimsinh (deceased) went to the house of Aaratsinh at Village-Kotada and after taking dinner there, in the night, the deceased went for a walk nearby shop at about 8.00 p.m. After sometime, upon hearing commotion, Ramesh came out and he went in the direction in which his father had gone. As per the case of the prosecution, Ramesh had seen that on the way near hand pump, his father Bhimsinh was being beaten by the accused persons, viz. Shana Vira, Kanu Shana, Rangit Shana and Raman Shana. It is alleged that accused Kanu Shana inflicted axe blow on the head of the deceased, accused Raman Shana inflicted dharia blow on the leg of the deceased, accused Shana Vira and Rangit Shana used abusive language and had also beaten the deceased with stick and the deceased had fallen down. Thereafter, all the accused got caught hold the deceased and had taken him on the road leading towards Godhra. As per the prosecution case, the complainant thought that the accused were taking the deceased to the hospital and also out of fear of being beaten by the accused, the complainant did not go with the deceased and had hidden himself behind the tree and slept there. On the next day, in the early morning, the complainant went to his house and narrated the incident to his elder brother, viz. Kiran and Kiran disbelieved the story of the complainant, however, after sometime, he came to know that a dead body is lying on the railway line. Therefore, Ramesh, Kiran and their uncle Shana Bhodu and Sarpanch Bhalsing went to the railway line and found that the dead body of the deceased was lying in bleeding condition and police had also reached there. The police handed over the dead body of the deceased to the relatives after completion of postmortem of the deceased.
After completion of after-death ceremony of the deceased, the complainant filed the complaint being C.R.No.I-34/2012 for the offence punishable under sections 302, 504, 201 and 34 of the Indian Penal Code and under section 135 of the Bombay Police Act.
After completion of investigation, as the sufficient evidence was found, the police has arrested the accused and has filed the charge-sheet against the accused before the Judicial Magistrate (First Class), Godhra. As the offence was triable by the Court of Sessions, the Judicial Magistrate (First Class), has committed the case under section 209 of the Criminal Procedure Code to the Court of Sessions, Panchmahal at Godhra, wherein it has been registered as Sessions Case No.73 of 1994.
On the basis of the material available on record, the trial court framed the charge on 21.09.1994 vide Exhibit-2 against the accused for the offences punishable under section 302 read with section 34 and also for offence under Sections 326, 323, 504 and 201 of the Indian Penal Code and the same were explained to the accused. The accused have denied having committed any offence. The accused pleaded not guilty to the charge and claimed to be tried and, hence, the case was tried by the learned Additional Sessions Judge, Panchmahal at Godhra.
The accused were charged and tried by the learned Additional Sessions Judge, Panchmahal at Godhra in Sessions Case No.73 of 1994, wherein to prove its case, the prosecution has examined the following witnesses:-
P.W.1
Dr. Jabila Mohid Maksud
Doctor
Exh.17
P.W.2
Dhanabhai Mansukhbhai
Panch Witness
Exh.21
P.W.3
Balvantsinh Dalsukhbhai
Panch Witness
Exh.24
P.W.4
Laxmanbhai Amarsinh Patel
Panch Witness
Exh.26
P.W.5
Mahendrakumar Chhaganlal Bhatiya
Circle Officer
Exh.30
P.W.6
Pratapsinh Mansinh
Panch witness
Exh.32
P.W.7
Kevalsinh Kanubhai Patel
Panch witness
Exh.35
P.W.8
Rameshkumar Bhimsinh Patel
Complainant
Exh.37
P.W.9
Kirankumar Bhimsinh Patel
Brother of the complainant.
Exh.40
P.W.10
alvantsinh Dalabhai Patel
Panch Witness
Exh.42
P.W.11
Palsingbhai Dhirabhai
Sarpanch
Exh.45
P.W.12
Vijendrakumar Nandlal Jain
Doctor
Exh.55
P.W.13
Gulabsinh Fatehsinh
PSO
Exh.60
P.W.14
Ranjitsinh Naransinh Gohil
PSI
Exh.63
In addition to this, the prosecution has also produced the following documentary evidence:-
Sr. No
Particulars
Exh.
1
Panchnama of cloths of deceased.
12
2
Police Yadi.
14
3
Serology report
15
4
Letter of Scientific Officer.
16
5
Postmortem Report
17
6
Police report to Civil Surgeon for postmortem of the deceased.
19
7
Inquest panchnama.
22
8
Panchnama.
23
9
Panchnama of the place of offence.
25
10
Panchnama and Map
33
11
Panchnama of recovery of weapon.
36
12
Complaint.
38
13
Panchnama of physical condition of accusedShanabhai Virabhai Damor
41
14
Panchnama of recovery of stick from accusedRangitbhai Shanabhai.
43
15
Complaint given by Shanabhai Virabhai.
61
16
Police Yadi.
66
17
Police Yadi and dispatch note.
67
18
Letter of Deputy Director, FSL.
68
After closure of the evidence, the statements of the accused under section 313 of the Criminal Procedure Code, 1973 have been recorded wherein they denied having committed any offence and have stated that they are innocent.
After hearing both sides and considering the evidence on records, the learned Additional Sessions Judge by impugned judgment and order dated 29.06.1995 has acquitted the accused from all the charges levelled against them. Being aggrieved by this judgment, the State has preferred present appeal.
Mr.K.P.Raval, learned APP appearing for the appellant-State has submitted that the impugned judgment and order of acquittal is against the law and evidence on the record of the case. He submitted that the learned trial Judge has erred in not believing evidence of the son of the deceased Bhimsinh, who is an eye witness to the incident and also the evidence of the panch witnesses. He further submitted that the deceased and his son had gone to Village:Kotda from Village:Parvadi and, thereafter, when the deceased was in his field all the accused came armed with weapons like axe, dharia and stick, and assaulted the deceased. He further submitted that eye witness Ramesh has stated, in his evidence, as to which accused had given which blow to his father by using which weapon and what injuries were sustained by his father and after his father had fallen down, the accused lifted him and they had taken him towards road on Godhra side. He also submitted that, at the relevant time, Ramesh was minor and he might have failed to take immediate step for filing the complaint. He also submitted that the entire evidence has not been properly appreciated by the learned trial Judge and, therefore, the impugned order acquitting the accused persons is illegal. Accordingly, he prayed to set aside the impugned judgment and order of acquittal.
On the other hand, learned advocate for the respondents-accused has supported the impugned judgment and submitted that the trial court has not committed any error in appreciating the evidence on record. He also submitted that the complainant is the only eye witness and his evidence is also not trustworthy, therefore, the trial court has rightly acquitted the accused persons. He accordingly prayed to dismiss present appeal by upholding the impugned order of acquittal.
We have heard Mr.K. P. Raval, learned Additional Public Prosecutor for the appellant-State of Gujarat and learned advocate the respondents-accused at length. We have perused the entire evidence on record.
As per the deposition of Dr.Jabila Maksud, PW-1, Exh.-17 while he was serving as a Medical Officer in Godhra Civil Hospital, on 27.3.1994, at about 5.30 in the evening postmortem of the dead body of the deceased was started and it was completed at about 7 p.m. As per his deposition, following external injuries were found on the dead body of the deceased.
CLW on right frontal, right temporal, right parietal and right side occipital region, size 25 cm x 10 cm x skull cavity deep oblique in nature, with multiple skull bone fractured and some pieces of bone missing of frontal, parietal temporal bones.
CLW on occipital region size 5 cm x 5 cm x skull cavity deep, behind to 1st wound, with II occipital bone and some pieces of occipital bone missing.
CLW on right temporal region size 5 cm x 3 cm x skull cavity deep # temporal bone from wound No.1, 2,3 it has been seen that whole brain substance was missing and some blood clots on the base of skull.
Amputed (L) leg below knee, with # tibia and tabula, separate into two parts.
Compound # right tibia and tabula upper 1/3 part.
IW below right knee joint size 10 cm x 3 cm x bone deep # right tibia and tabula.
CLW on (L) shoulder joint 5 cm x 1 cm x bone deep (back).
CLW on (L) dorsal of hand size 2 cm x 1 cm x skin deep.
A blackish bruise on (L) upper arm and left side chest size 30 cm x 15 cm.
A blackish bruise on (L) scapular region size 15 cm x 15 cm.
13.1 As per the opinion of the doctor, as a result of the injury head and other parts of the body of the deceased, he suffered hemorrhage and died. As per the opinion of this doctor, the injuries caused on the head and leg of the deceased could be caused by muddamal axe and dharia. Moreover, the injuries on the back of the deceased can be caused by stick. There is no contradiction found in the evidence of this witness even in his cross-examination. This witness is an independent witness and there is no reason for him to give false statement. Therefore, from the deposition of PW-1, it is clear that the deceased has died homicidal death.
Rameshkumar Bhimsinh Patel, PW-8, Exh.37, is the complainant and he is the only eye witness to the incident. As per the deposition of the complainant, on 26.3.1994, there was festival of Holi and in the evening at about 5 p.m., he along with his father Bhimsinh were going to the house of Aaratsinh at Kotda Village. After taking dinner, at about 8 p.m., his father went towards to the shop and, after some time, he heard the commotion, therefore, the complainant came out and went in the direction where his father had gone. The complainant had seen the accused beating his father in the field. Accused-Kanu Shana had given an axe blow on the head of the deceased Bhimsinh. Accused-Raman Shana had hit the deceased with a dharia on his leg. Accused Shana Vira and Rangit Shana had beaten the deceased with sticks, thereafter, the deceased fell down. Thereafter, again Kanu Shana had given an axe blow on the head of the deceased. Shana Vira and Rangit Shana continued to beat the deceased with sticks. Thereafter, the accused had taken the deceased on the road going towards Godhra, therefore, the complainant felt that they were taking the deceased to the hospital, and the complainant hidden himself behind the tree. As per his deposition, the complainant slept under the tree and, on the next morning, he rushed to his house at Parvadi and informed about the incident to his brother-Kiran. The complainant has further stated in his deposition that after some time he came to know that dead body of an unknown person is lying on railway line. Therefore, the complainant, his brother Kiran, their uncle and sarpanch of the village went there and found the dead body of Bhimsinh. Thereafter, Sarpanch went to the police station and came back. On 28.3.1994, the complainant gave complaint about the incident. From the cross-examination of the complainant, it is clear that the complainant had studied upto 6th standard and he was knowing as to what should be done if such incident happens, inspite of that the complainant did not call anyone at the time of the incident.
Behaviour of the complainant to hide behind the tree and to sleep there, after witnessing the incident cannot be said to be natural. It is stated by him, during his cross-examination, that though they were at the residence of his maternal uncle, upon witnessing the incident, the complainant did not inform about the incident to his maternal aunt, who was at home. PW-2 and PW-7 have admitted in their deposition that though the railway police personnel were present near the dead body of the deceased and though the inquest panchnama was drawn in presence of the complainant and his brother Kiran, neither the complainant nor his brother Kiran gave the complaint at that time. Though the complainant has stated that his statement was recorded by the police on the railway track, near the dead body, however, no signature of the complainant was taken, therefore, it could not be treated as complaint and no such complaint is produced on record.
As per the evidence of the complainant, he went to Godhra Taluka Police Station to lodge the complaint at about 8 a.m on 28.3.1994. PW-9, Kiran Bhimsinh has also stated that when he went to Godhra Police Station on the next day after the post death rituals of the deceased, Ramesh had given complaint there. As per the evidence of investigation officer, on 28.3.1994, at about 11 a.m., the complaint was lodged and the offence was registered. The complainant has admitted in his cross-examination, that as the advise of other person was to be taken, the complaint was given late. It is also admitted that after the completion of after-death rituals of the deceased, his uncle had called Sarpanch and they have discussed about the incident. It is also admitted that after reaching the police station, Sarpanch went inside the room of PSI and, after 10 to 15 minutes, he came out and, thereafter, the complaint was given. The complainant has not given any explanation for delay in filing the complaint.
As per the evidence on record, there is inconsistency even with regard to the place of offence. In the panchnama of place of offence it is stated that 8 ft. towards eastern side from the place of offence there is a road and, thereafter, there is field of Shana Veera and after that at about 204 ft. there is hand pump. While the complainant has stated that the offence is committed in the field of the deceased, which is far from the place shown in the panchnama of scene of offence.
Kirankumar Bhimsinh Patel, PW-9, Exh.40 as well as Bhilsingbhai Dhirabhai, Sarpanch, PW-11, Exh.45 were at Parvadi-village at the time of offence and they have not seen the offence, therefore, their evidence is hearsay evidence.
Dhanabhai Mansukhbhai, is the witness of inquest panchnama, Exh.22 and panchnama of the place where the dead body was lying. PW-3, Balvantsinh Dalsukhbhai, is the panch witness of the panchnama of place of offence. As per his evidence, place of offence was in the field of Bhimsinh and from there, sand containing blood was also collected. As per FSL report, Exh.14 and serological report, Exh.15, the sand was containing human blood of "B" group. Even from the clothes of the deceased, human blood of "B" group was found as per FSL report. From the blood collected from the metal stones of railway line also, human blood of "B" group was found. Therefore, it seems that the incident had happened in the field of Bhimsinh and thereafter, his dead body was thrown on the railway track.
Laxmanbhai Amarsinh Patel, PW-4, Exh.26, is the panch witness of discovery panchnama of muddamal axe and dharia. As per his say, on 29.3.1994, he was called at Godhra Taluka Police Station and another panch, Bhavabhai Banabhai was also called there. Accused Kanubhai Shanabhai and Ramabhai Shanabhai were present there and they had shown the place of offence and the place where the weapons were hidden. Police has seized such weapons and panchnama was prepared. It is stated that both the accused have stated that they wanted to show the place of offence and the place where the weapons were hidden. This version of the prosecution cannot be believed that both the accused would say that they want to show the place and weapons of offence. It is also said by this witness that the police has asked only the name and address of the accused, therefore, there is a possibility that all other details would have been written by the police on its own in the panchnama. Before this panchnama was drawn, the complainant had also shown the place of offence to the police, for which panchnama was drawn at Exh.25. Therefore, this panchnama at Exh.27 cannot be believed. Moreover, the description of the surroundings of the home of accused Shana Vira given by this witness is also incorrect.
Pratapsinh Mansinh, PW-6, Exh.32, is the panch witness of discovery of muddamal bag. This witness has stated that accused-Bai Nanda has stated that this bag was hidden by her in Ram Sagar Lake. The police has discovered and seized this bag which was having blood stains. However, in the cross-examination of this witness, it has come that Bai Nanda has said about the incident on her own without being asked by him. It cannot be believed that any person would start telling about the offence to a third person, without being asked to her. Therefore, this panchnama also cannot be believed.
Kevalsinh Kanubhai, PW-7, Exh.35, has stated that the accused Shana Vira has stated to show the stick used in the offence, thereafter, from his house at Village-Kotda, stick was shown, which was seized by panchnama Exh.36. It is admitted by this witness that in village, all persons are keeping such sticks and there were no blood stains on the stick. Therefore, it cannot be said that this stick was used by accused-Shana Vira in the offence.
As per the evidence of Balvantsinh Dalabhai Patel, PW-10, Exh.42, one person has produced stick in the police station, which was seized. Moreover, one pant was also recovered, however, it was not known to him as to from whom such pant was recovered. This witness has stated in his cross-examination that accused-Rangit Shana had produced a stick and one pant containing blood stains was also recovered from him. This accused Rangit Shana was arrested on 29.3.1994, i.e. on the fourth day of the incident. Therefore, it cannot be believed that the accused would not change his blood stained clothes for four days or would not even try to remove the blood stains from the clothes. Therefore, evidence of this witness also cannot be relied. Moreover, relations between the accused the deceased were strain and earlier cross-complaints were filed by both the sides against each other. On the basis of this, the accused cannot be convicted.
It is an admitted position that in an acquittal appeal, powers of the appellate Court is very much circumscribed as held in the case of Muralidhar @ Gidda and Another v. State of Karnataka reported in (2014) 5 SCC 730, wherein it is held as under in paragraph 12: "12. .. ..
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
The Supreme Court in the case of Ghurey Lal v. State of Uttar Pradesh v. State of UP reported in (2008) 10 SCC 450, has crystallized the principles to be followed by the appellate courts to overrule or otherwise disturb the trial court's acquittal in the following manner: "70. ...
The appellate court may only overrule or otherwise disturb 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 trial 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 trial court's decision was based on an erroneous view of law;
(iii) The trial court's judgment 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 trial court's judgment 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."
Now, considering this well settled proposition of law and upon perusal of the entire evidence on record, it clearly transpires that the learned trial Court has rightly not believed the case of the prosecution and rightly held that the prosecution has failed to prove its case beyond reasonable doubt against the accused persons. There being no legal infirmity in the impugned judgment of acquittal, it does not require interference at the hands of this court.
In view of the above, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, it is dismissed. The impugned judgment and order dated 29.06.1995 passed by the learned Additional Sessions Judge, Panchmahal at Godhra in Sessions Case No.73 of 1994 is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.