State of Gujarat vs Sodha Kuldip Sureshbhai and Others

K.S. Jhaveri, J—All these three Criminal Appeals are preferred against judgment and order dated 08.02.2013 passed by learned Third Additional Sessions Judge, Dhrangdhra, in Sessions Case No. 14 of 2008. By the said judgment, accused Nos. 1 and 2 both were convicted for offences punishable under Sections 394, 304 Part-I, 120-B, 34 and 201 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act and ordered to undergo ten years rigorous imprisonment for offence under Section 394, 120-B and 34 of IPC and fine of Rs. 10,000/- was imposed and in default, they were ordered to undergo further imprisonment for six months; for offence punishable under Section 304 Part-I, 120-B and 34 of IPC also ten years rigorous imprisonment was awarded with fine of Rs. 10,000/- and in default, they were ordered to undergo further imprisonment for six months; for offence punishable under Section 201 of IPC accused Nos. 1 and 2 both were convicted and ordered to undergo rigorous imprisonment of one year and fine of Rs. 1,000/- was imposed and in default, they were ordered to undergo further imprisonment for one month. The accused persons have been convicted and ordered to undergo simple imprisonment for one month for offence punishable under Section 135 of the Bombay Police Act. Being aggrieved by the impugned judgment, the accused persons have preferred Criminal Appeal Nos. 482 of 2013 and 1105 of 2014, while Criminal Appeal No. 657 of 2013 is preferred by the State against acquittal of the accused for offence under Section 302 of IPC.

As these appeals are arising out of the same judgment rendered in connection with the same incident and the evidence is also common in all these appeals, the same are taken up for hearing together.

The case of the prosecution is that the complainant Dharmishtaben Dharmendrasinh Jhala, sister in law of deceased Sukhdevsinh Umedsinh Jhala, registered a complaint against accused persons with Dhrangdhara Police Station, which was registered as I-C.R. No. 20/2008 for the offences punishable under Sections 302, 120-B, 394, 201 and 34 of IPC and Section 135 of the Bombay Police Act. It is the case of the prosecution that the accused persons were in need of money, and, therefore, between 18.2.2008 at about 22 hours and 19.2.2008 at about 9.30 hours, they conspired with each other, called deceased Sukhdevsinh Umedsinh by making a phone call saying that "Daru ni petiyo Aavel Chhe Paisa Lai ne Aavo" and deceased Sukhdevsinh went to accused persons with an amount of Rs. 25,000/- and when the accused persons confirmed that the deceased had money, they caused grievous injuries on his head by inflicting iron pipe, iron spanner, sledge and stone blows, and thereby committed his murder, and after committing his murder, looted his money and ornaments and destroyed the evidence. Accordingly, the complaint was lodged.

3.1 Investigation was carried out and charge sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same committed to Sessions Court. Thereafter, charge was framed against the accused persons. The accused persons pleaded not guilty and claimed to be tried.

3.2 During the trial, the prosecution had examined following witnesses;

3.3 The prosecution has also produced and relied upon following documentary evidence:--

3.4 At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court.

Learned advocates for the appellants, Mr. Buddhbhatti and Ms. Vaniya, have taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. It is also submitted that the prosecution has not proved the chain of circumstances and as this is a case based on circumstantial evidence, the trial Court has committed an error in convicting the accused persons for offence punishable under Section 304 Part-I, 394 and other offences. It is submitted that even the prosecution witnesses have not supported the case of the prosecution. It is submitted that PW-41, investigating officer has stated in his evidence that he was not knowing who had called him on phone and he has also not stated that the accused committed the crime. It is also submitted that there was no eye witness to the incident, therefore also the learned trial Judge committed an error in convicting the accused persons. It is submitted that there are contradictions in recovery and discovery panchnama, panchas have also turned hostile and they have not supported the case of the prosecution. They have also contended that there is no cogent or reliable evidence to convict the accused persons. It is also submitted that recovery of robbery goods is not proved by the authorship of the accused persons and, therefore, they submitted that the accused have not committed the offence.

On the other hand, Mr. L.R. Pujari, learned APP appearing for the State has submitted that the order of conviction recorded against the accused persons is just and proper and he has supported the conviction recorded by impugned judgment. So far as Criminal Appeal No. 657 of 2013 is concerned, which is preferred against acquittal of the accused persons from charges of offence under Section 302 of IPC, he has taken us through the evidence and contended that the trial Court has committed an error in acquitting the accused persons inspite of voluminous evidence against them and contended that the trial Court ought to have convicted them for offence punishable under Section 302 of IPC. He has taken us through the evidence and more particularly medical evidence. He submitted that as per the evidence of Dr. Anupkumar Arvindkumar Jaiswal, PW-33, Exh. 126, injury No. 1 and 8 mentioned in column No. 17 and injury No. 1 mentioned in column No. 18 are fatal and there are corresponding injury which established that the injuries were caused on the sensitive parts of the body of the deceased and death of the deceased would be possible by such injuries. In support of his submission, he has relied upon the decision of the Supreme Court in the case of Som Raj @ Soma Vs. State of H.P., (2013) 3 AD 218 : AIR 2013 SC 1649 : (2013) CriLJ 2237 : (2013) 1 Crimes 305 : (2013) 3 JT 387 : (2013) 4 RCR(Criminal) 211 : (2013) 2 SCALE 774 : (2013) 14 SCC 246 : (2013) AIRSCW 2261 : (2013) 2 Supreme 65 . He submitted that in view of the observations made by the Apex Court, the accused should be held guilty for offence punishable under Section 302 of IPC. He submitted that in view of recovery of robbery goods, the accused persons have been rightly convicted for offence under Section 304 Part-I of IPC but considering the fact that there were blood stains of the deceased on such goods, the accused should have been convicted under Section 302 of IPC. He also submitted that even the FSL report supports the case of the prosecution. He also submitted that the trial Court has committed an error in not believing the version of the complainant and other witnesses and considering the medical evidence, it can be said that the accused are guilty of offence under Section 302, and therefore, they should have been convicted for the same and accordingly, sentence is required to be imposed upon them. He submitted that the accused has used deadly weapons and murder is committed by them, therefore, this is a fit case for reversing their acquittal under Section 302 of IPC. He also submitted that since chain of circumstances is established, the accused persons should be held guilty for offence punishable under Section 302 of IPC. Therefore, he submitted that Criminal Appeal No. 657 of 2013 may be allowed and the accused persons should be convicted for offence punishable under Section 302 of IPC.

We have heard learned advocates Mr. Buddhbhatti, Ms. Vaniya for the accused persons and learned APP, Mr. Pujari for the State. We have also gone through the impugned judgment as well as evidence on record. As per Exh. 33, panchnama under Section 27, the robbery goods viz. Ring with blood stains and the clothes with blood stains were recovered at the instance of accused No. 2 and the same were sent to FSL for analysis wherein the blood group of the deceased had matched with the blood group on the clothes of accused No. 2 as well as ring, which was recovered from the custody of accused No. 2. In that view of the matter, the prosecution has proved panchnama Exh. 33. One Bipin Durlabhjibhai Vaniya was also examined at Exh. 36, wherein he has stated that the clothes were recovered with blood stains of the deceased by way of Exh. 40 and in view of Exh. 181, blood group on the clothes were matching with the blood group of the deceased. The prosecution has also proved Exh. 40. Similarly, one Ramdevsinh Hanubha Jadeja, was examined Exh. 41, who was panch witness to the scene of incident. He has also supported the panchnama and stated that blood stains of the deceased were found from the place of incident. Therefore, the prosecution has proved the place of incident.

6.1 Similarly, at Exh. 46, one Kalubhai Ravjibhai Dalvadi has been examined, who is the panch of panchnama Exh. 47 which was carried out with regard to the clothes thrown into the well by the accused. No such clothes could be recovered from the well. However, the Court has believed an eye witness, who has seen the accused there throwing his clothes into the well. The prosecution has also proved Exh. 50 through Hasmukhbhai Shah and Manjibhai Shah. Thus, the blood stains on the ring and the clothes of the accused goes against the accused persons. The crucial witness, Dashrathbhai Harjibhai Dabhi, PW-31, Exh. 113, before whom accused No. 1 has confessed and his statement is recorded before the Magistrate and even the Magistrate is also examined to prove the statement recorded under Section 164, wherein Dashrathbhai Dabhi has clearly stated that after the incident, one of the accused has tried to dispose of the mobile, which he had got in the robbery and he has repaired the same and while talking to witness, he has admitted that the murder committed at Dhrangadhra had been done by the accused. He has been cross-examined, but in view of statement under Section 164, which was though not allowed to be exhibited, was exhibited while the Executive Magistrate was examined by the prosecution as PW-37, Exh. 149. The statement recorded under Section 164 clearly establishes that the confession of accused No. 1 is proved by the prosecution, through Exh. 88, evidence of Vijay Arvindbhai Patel, that said Dashrathbhai, who has purchased the mobile from the accused has come for repairing of the mobile and he has recognized the mobile, which was recovered by the police from Dashrathbhai.

6.2 The cash amount of Rs. 13,000/- which was recovered from the accused was proved by witness Rameshbhai Gandhi. Similarly, Umeshbhai Devsibhai Rabari has proved that demand of the accused was required to be fulfilled, therefore, he has given Rs. 6,000/- to the deceased. The prosecution has also proved the accused telephoning from the PCO and they were identified by the PCO owner in identification parade and the involvement of the accused is proved by complete chain of evidence. Thus, accused No. 1 has called the deceased and recovery of cash and ornaments from both the accused and blood stains on the clothes of the accused and muddamal ring and it is also proved that they have taken the police to the scene of incident. At this stage, Mr. Buddhbhatti submitted that it cannot be read into evidence, however, both the accused were together and they have taken the deceased to the scene of incident and it is proved. In that view of the matter, the trial Court has not committed any error in convicting the accused. Therefore, Criminal Appeal Nos. 482 of 2013 and 1105 of 2014 preferred by the accused persons against their conviction are required to be dismissed.

So far as Criminal Appeal No. 657 of 2013 filed by the State against acquittal of accused persons under Section 302 of IPC is concerned, it is required to be noted that 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 a catena of decisions. 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 the powers of 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."

7.1 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:

"42. 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."

7.2 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.

7.3 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."

7.4 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.

7.5 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 paras-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 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."

7.6 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 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 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 ]."

7.7 It is also a settled legal position that in acquittal appeal, 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, 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."

7.8 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence is not necessary. Therefore, we find that the accused persons are rightly acquitted by the learned trial Judge for the charge of offence punishable under Section 302 of IPC. Moreover, learned APP is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored material evidence while acquitting the accused persons. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting the respondents-accused from the charge of offence under Section 302 of IPC. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and, therefore, find no reasons to entertain appeal of the State and this appeal is also required to be dismissed. In our view, considering the evidence on record, the trial Court has rightly convicted the accused under Sections 394 and 304, Part-I and the sentence awarded is proper.

Therefore, all the three appeals deserve to be dismissed and they are dismissed. The impugned judgment and order dated 08.02.2013 passed by learned Third Additional Sessions Judge, Dhrangdhra, in Sessions Case No. 14 of 2008 is confirmed. Record and proceedings be sent back to the concerned trial Court forthwith.