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Judgment
K.S. Jhaveri, J.
1.0 The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgement and order of acquittal dated 27th January 2009 passed by the learned Additional Sessions Judge, Gandhidham-Kutchh in Sessions Case No. 6 of 2008 whereby the accused have been acquitted of the charges levelled against them.
2.0 The prosecution case in a nutshell is as under:
2.1 The accused persons kept a grudge against the complainant Haresh Narbheram because the complainant got married with Geeta, who is daughter of accused No. 1 Veluram Rughnath Khandeka. The present respondents-accused, on 3rd October 2007, at about 0700 hours formed an unlawful assembly in the sim of village Makhel, Taluka Rapar. They carried deadly weapons like pipe, stick, dhariya etc. They attacked the complainant and his father Narbheram Jivabhai and caused grievous injuries to them and committed murder of father of complainant Narbheram Jivabhai.
2.2 Therefore, a complaint with regard to the aforesaid offence was filed against the respondents with Bhimasar (Aadesar) Police Station for the offences punishable under Sections 302, 143, 147, 149, 323, 504 and 506(2) of Indian Penal Code and u/s 135 of the Bombay Police Act.
2.3 Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, the respondents were arrested and ultimately chargesheet was filed against them before the court of learned Judicial Magistrate, First Class, Rapar. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court, which was numbered as Sessions Case No. 6 of 2008. As the respondents pleaded not guilty, the trial was initiated against the respondents.
2.4 In order to prove the case the prosecution has produced the following documents:
[1] Inquest Panchnama (Exh.41)
[2] Panchnama of place of incident (Exh.44)
[3] Panchnama of blood sample of deceased and complainant (Exh.46)
[4] Arrest and Recovery Panchnama (Exh.47)
[5] Panchnama of recovery of clothes worn by the complainant at the time of incident (Exh.53)
[6] Arrest Panchnama (Exh.55)
[7] Panchnama of blood sample of accused (Exh.57)
[8] Discovery Panchnama (Exh.59)
[9] Yadi in respect of treatment of injured witnesses (Exh.73)
[10] Injury certificate of Santokben (Exh.74)
[11] Injury Certificate of Rambhasben (Exh.75)
[12] Pot Mortem Note of Deceased (Exh.77)
[13] Police Yadi (Exh.78)
[14] Injury certificate of complainant (Exh.79)
[15] Yadi in respect of treatment of complainant (Exh.80)
[16] Map of place of incident (Exh.83)
[17] Yadi in respect of preparation of Map (Exh.84)
[18] Original FIR (Exh.89)
[19] Yadi of complainant (Exh.90)
[20] Yadi made to Medical Officer for conducting PM (Exh.91)
[21] Death certificate (Exh.92)
[22] Yadi of Investigation (Exh.93)
[23] Yadi made to executive Magistrate (Exh.94)
[24] Abstract of G.G.A.78/2007 (Exh.96)
[25] Yadi made in respect of issuance of injury certificates (Exh.97)
[26] Yadi made to Chief Teacher (Exh.98)
[27] Birth certificate of accused Sanjay Khandeka (Exh.99)
[28] Yadi made to M.O. Shri Adesar (Exh.100)
[29] Yadi made to CPI Rapar (Exh.101)
[30] FSL receipt (Exh.102)
[31] Notification (Exh.103)
[32] Serological Analysis Report (Exh.104)
[33] Serological Report (Exh.105 & 106)
[34] Forwarding letter ofFSL (Exh.107)
[35] FSLl Report Exh.108
2.5 In order to prove the case the prosecution has examined the following witnesses:
[1] Mohanlal Kanjibhai Madhvi (PW1-Exh 40)
[2] Mohanlal Dahyalal Madhvi (PW2-Exh 42)
[3] Mohanbhai Bhimabhai Pandya (PW3-Exh.43)
[4] Devubha Bapubha (PW-4 Exh.45)
[5] Mamad Amad (PW5-Exh.48)
[6] Khodabhai Savabhai (PW6-Exh.52)
[7] Karamshibhai Ramjashibhai Masuriya (PW7-Exh.54)
[8] Fakirmamad Ramji Hingorja (PW8-Exh.56)
[9] Nagjibhai Morjibhai (PW9-Exh.58)
[10] Suleman Amad Hingorja (PW10-Exh.60)
[11] Naranbhai Madevabhai (PW 11-Exh.62)
[12] Madea Desurbhai Gohil (PW-12 Exh.64)
[13] Babubhai Bhurabhai (PW-13 Exh.65)
[14] Hareshbhai Narbherambhai (PW14-Exh.67)
[15] Rambiben Dayarambhai Madhvi (PW15-Exh.68)
[16] Rajdevprasad Yadav (PW16-Exh.72)
[17] Dr. Sujitkumar Satyendrakumar (PW17-Exh.76)
[18] Santokben Maheshkumar Khandeka (PW 18 Exh.81)
[19] Manshibhai Bhimjibhai Maheshwari (PW 19-Exh.82)
[20] Mayursinh Kishorsinh Rana (PW 20-PW 88)
[21] Gandabhai Revabhai Rabari (PW 21-Exh.95)
2.6 At the end of trial, after recording the statement of the accused u/s 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the respondents of all the charges leveled against him by judgement and order dated 27th January 2009.
2.7 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant State has preferred the present appeal.
3.0 M.r Jani, learned APP has taken this Court through the oral as well as the entire documentary evidence on record.
3.1 He submitted that the order of the Sessions Court is against the provision of law; the Sessions Court has not properly considered the vidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondents.
3.2 He contended that the Sessions Court has failed to appreciate that the accused were keeping a grudge against the complainant and it is because of the said grudge the complainant and others were attacked. According to him, the accused have assembled with deadly weapons and in fact they attacked the complainant and father of the complaint as a result of which the father of the complainant has succumbed to the injuries. He further submitted that the evidence of eye witnesses fully supported the prosecution case and therefore the Sessions Court ought not to have acquitted the respondents-accused.
3.3 Mr. Jani submitted that the Sessions Court has committed an error in holding that the evidence given by the complainant Hareshbhai, witness Rambhiben and Santokben are contradictory in nature and that has resulted into gross miscarriage of justice. According to him all these witnesses have deposed that the accused persons have attacked the father of the complainant and also identified all the accused persons.
3.4 He submitted that as per the deposition of Rambhiben and Santokben, who are independent witnesses, it is evident that deceased Narbheram Madhvi has been attacked by the accused with deadly weapons and both the witnesses have tried to save the deceased as a result of which they have also received injuries. This would clearly establish the fact of attack and therefore the Sessions Court has committed an error in acquiting the accused.
3.5 He further submitted that the FSL report produced at Exh.108 clearly shows that the blood sample collected by the investigating agency from the place of incident and the blood sample taken from the accused is the same and therefore on that basis the trial court ought to have convicted all the accused.
3.6 He submitted that the medical evidence shows that the complainant has received injuries and the injuries on the deceased person were of such nature which would be sufficient to cause death. According to him the trial court has given undue weightage of not obtaining death certificate because it is clearly established from the deposition of medical officer at Exh.76 wherein description as to body of the deceased person was narrated. He contended that even in the cross-examination the said medical officer has categorically denied that he has not performed postmortem of the live person. He has also contended that the trial court has committed an error in giving undue weightage to the delay in filing FIR and submitted that delay in lodging the FIR would not always be fatal to the prosecution.
3.7 Mr. Jani has also contended that the Sessions Court ought not to have given undue weightage to the minor contradictions as to number of accused involved, which accused has given which kind of blow and by which weapon, etc. He has further contended that the trial court has materially erred in discarding the evidence of witness Rambhiben merely because she has stated that she has not seen the muddamal weapon.
3.8 Mr. Jani contended that the Sessions Court has materially erred in ignoring the evidence/deposition given by Santokben at Exh.81 wherein she has identified at least four accused persons and muddamal weapon as according to him the said witness is an independent witness and there was no animosity between her and the accused persons. He, therefore submitted that the version given by the said witness ought to have been believed by the Sessions Court.
3.9 Mr. Jani, therefore, submitted that the appeal deserves to be allowed.
4.0 At the outset 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, , the Apex Court has narrated about 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 judgement 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.
4.1 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, reappreciate 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.
4.2 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.
4.3 Even in a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran and Anr. Reported in (2007)3 SCC 75, the 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 judgement 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.
4.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh and Ors. reported in AIR 2007 SCW 5553 and in Girja Prasad (Dead) by LRs v. state of MP reported in AIR 2007 SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
4.5 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgement or to give fresh reasonigns, 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 when it agrees with the view of the trial 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.
4.6 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.
5.0 We have gone through the judgement and order passed by the trial court. We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned Advocate for the appellant.
5.1 The prosecution has examined Dr. Sujitkumar Satyendrakuamr at Exh.76. This witness has conducted the postmortem of the deceased. According to his report, it was not established that before the postmortem whether the injured was in coma or he had expired. No such evidence was produced. According to the complainant, he and others took his father in handcart to their house, thereafter in a jeep he was taken to Adesar Hospital and as the same was closed he was taken to Godhra hospital. However, since Godhra Hospital was closed they have taken him to Bachhau hospital. However, it is not established whether at that time the injured had died or not. Therefore the Sessions Court has come to a conclusion that it was not established whether it was a murder or not.
5.2 As regards the filing of the complaint is concerned, the Sessions Court found that the complaint was filed late by eight hours. The incident in question has taken place on 3rd October 2008 at about 7 am. However, the complaint has been lodged at about 3.15 pm. It is required to be noted that the police station is just seven minutes journey from the place of incident. It is also required to be noted that from the evidence it is established that before Bachau there are places like Adesar and Sakhiyali and at both the places government hospitals are available. However, the complainant has not chosen to take his father to the said hospitals. The delay of 8 hours is not at all explained by the prosecution.
5.3 As regards the evidence of complainant is concerned, he has stated that accused No. 6 Pravin had inflicted a dharia blow on the head and accused No. 4 Dhansukh had inflicted an axe blow on stomach. However, the inquest panchnama and postmortem report do not support his evidence.
5.4 According to the inquest panchnama and postmortem report there are no injuries on the head or on the stomach of the deceased. It is stated that this witness is an eye witness and he has seen the incident. In that case there would not have been any discrepancy in the evidence.
5.5 Even the evidence of Medical Officer shows that the injury of the complainant was normal which is possible even while working in the field. The complainant stated that Mohanbhai and Dhansukhbhai are eye witnesses, but they were not examined at all.
5.6 It is required to be noted that the complainant Hareshbhai is son of deceased Narbheram. According to the complainant, when the accused attacked his father he ran away and for about half an hour the accused beaten his father. Under normal circumstances when a father is being attacked, no son would ran away, but he would try to save his father. Therefore the Sessions Court has rightly not accepted this statement of the complainant.
5.7 In the evidence, according to the complainant the accused have attacked Narbheram for about half an hour. It is also stated that within 10 minutes about 70 injures were inflicted. In that situation, about 210 injures could have been caused on the deceased. However, in fact only eight injuries were found. Therefore this part of evidence was not accepted by the Sessions Court. Further, according to the complainant the injured was initially taken in a handcart and thereafter in a jeep. However, there are no bloodstains or blood particles found either in the handcart or in the jeep.
5.8 Rambiben Dayaran Madhvi, PW 15 was examined at Exh.68. At the relevant time she was going to her field. She stated that the accused had come and attacked the complainant and his father. However, she did not know as to who inflicted which blows. According to her she had run away from the scene. This witness has identified four accused. However, complainant Hareshbhai has stated that there were seven accused, but this witness has stated that there were only four accused. This witness had also stated that due to Baval tree she could not see the injured. However, it has come on record that in the nearby area of the place of incident there are no Baval trees. Therefore there are serious contradictions in the evidence of the complainant and this witness.The Sessions Court has discussed the evidence of this witness threadbare and found that the evidence of this witness is not believable and no conviction can be based on her evidence.
5.9 Santokben Maheshkuamr (PW18 Exh.81) was examined by the prosecution. According to her she was going to the field at the relevant time, she saw the accused inflicting blows on Narbheram and she tried to intervene as a result of which she received injury and therefore she has gone away. She stated that she had taken treatment in the hospital. However, the investigating Officer has denied her version. She has gone for treatment on the next day and according to the medical report such injury is possible while doing agricultural work. However, in her cross-examination she has denied many aspects and there were many contradictions in her evidence. Thus, evidence of this witness also was not trustworthy and the Sessions Court has rightly not accepted the same.
5.10 As stated hereinabove there are many contradictions in the medical evidence and all the injuries were not fatal injuries. According to the postmortem report, earlier no treatment was given to the injured and no certificate was also produced to the effect that Narbheram had expired earlier in a hospital.
5.11 It is further required to be noted that Panch witnesses Mohanlal Kanjibhai (EPW 1 Exh.40), Mohanlal Dahyalal Madhvi (PW 2- Exh.42 have turned hostile. Therefore the documents of panchnama of place of incident were not proved.
6.0 The Sessions Court has considered the evidence of each and every witness and also considered the documentary evidence on record. It is well settled law that the prosecution has to prove the case against the accused beyond reasonable doubt. However, in the present case, looking to the overall circumstances and the evidence, oral as well as documentary, produced on record are not believable so as to base conviction of the respondents. The prosecution has miserably failed to bring home the charge against the respondents.
6.1 From the evidence on record it is found that the evidence given by the complainant Hareshbhai, witness Rambhiben, Santokben are contradictory in nature. According to the complainant himself he has run away from the scene of offence and he returned only after half an hour. The Sessions Court found that his conduct was not a natural one and therefore cannot be accepted.
6.2 Admittedly before conducting the postmortem the death certificate was not obtained by the complainant. In fact the Medical Officer has not inquired before conducting the post mortem whether the person brought before him has actually died or that person was in coma. The case that there are chances that the person brought before the medical officer was not actually died at the relevant time cannot be accepted in absence of any concrete evidence on record to that effect.
6.3 An explanation was offered for delay in lodging the FIR to the effect that since the father of the complainant was taken to various places for treatment, much time has lapsed. However, government hospital was available at the nearest place ,but the complainant has chosen not to go there. It is also a well settled law that delay in lodging the FIR would be fatal to the prosecution. When the witnesses claim to have seen the incident they are supposed to narrate the incident. However, there are serious discrepancies in pointing out as to who has held which weapon and who inflicted on blows of Narbheram. However, no witness was able to explain the same and in fact some of the witnesses have run away form the place of incident. Further there is also a serious contradiction in the number of accused. Complainant has stated about 7 persons, whereas the witness stated about only four accused.
6.4 Thus from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
6.5 Mr. H.L.Jani, learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
7.0 In the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him.
8.0 We find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
9.0 We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed.