R/CR.A/389/1995 JUDGMENT DATED: 21/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 389 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
RAGUNATH VIRAMJI MARWADI & 6 other(s)
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Appearance:
MR CHINTAN DAVE APP for the Appellant(s) No. 1
ABATED for the Respondent(s) No. 5,7
MR.MRUDUL M BAROT(3750) for the Respondent(s) No. 1,2,3,4,6
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 21/02/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK) Page 1 of 14 Downloaded on : Tue Feb 28 20:30:44 IST 2023 R/CR.A/389/1995 JUDGMENT DATED: 21/02/2023
1. Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 30.06.1994 passed by the learned Additional City Sessions Judge, Court No.20, Ahmedabad (hereinafter be referred to as "the Trial Court) in Sessions Case No.295 of 1989, whereby the accused - respondents herein came to be acquitted from the charge of the offences punishable under Sections 143, 147, 148, 149 r/w. Section 307 of the Indian Penal Code (for short "the IPC") and under Section 135(1) r/w. Section 120 of Bombay Police Act, the appellant - State of Gujarat has preferred present criminal appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short "the Code").
2. Briefly stated that on 02.09.1987 at about 1.15 p.m. in the open place near Samteshwar Temple situated Near Law Garden, Ahmedabad, the accused along with other persons formed unlawful assembly with a common object to kill Mohanji Ganeshji, the complainant and further common object of the above assembly, accused Nos.1 and 2 were armed with iron pipes, accused Bhavarlal Ragunath, who died subsequently, armed with razor and used force and accused No.1 inflicted a blow with iron pipe on the back of Mohanji Ganeshji and accused No.2 inflicted pipe blows on the head of Mohanji Ganeshji and deceased Bhavarlal Ragunath had inflicted a blow by a razor on the face of Mohanji Ganeshji, as a result of which said Mohanji Ganeshji sustained injuries.
3. During the course of the trial, accused Bhavarlal Ragunath was expired on 18.04.1994 and the trial qua accused Bhavarlal Ragunath came to be abated.
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4. On completion of the investigation, investigating agency recorded statements of the prosecution witnesses, drawn panchanama and collected relevant expert evidence for the purpose of proving the offence. After having found sufficient material against the respondents herein for the aforesaid offence, charge-sheet came to be filed in the concerned Court of JMFC. Since the case was exclusively triable by Sessions Court, concerned JMFC committed the case to the Sessions Court as provided under section 209 of the Code.
5. Upon committal of the case to the Sessions Court learned Sessions Judge framed charge at Exhibit 2 against the accused - respondents herein for the aforesaid offence. The accused pleaded not guilty and claimed to be tried.
6. In order to bring home charge, the prosecution has examined 12 prosecution witnesses and also produced documentary evidence before the learned trial Court, which is as under :-
Oral evidence:
Sr.No. Name of the witnesses Exhibit
1 Mohanji Ganeshji Marwadi - complainant and 22
eye witness
2 Dinesh Mohanji Marwadi - child witness 24
3 Otiben Mohanji Marwadi - wife of the 25
complainant
4 Hansaji Maganji - eye witness 26
5 Gopalbhai Joitharam Bhavsar - panch 28
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R/CR.A/389/1995 JUDGMENT DATED: 21/02/2023
6 Nimesh Jitubhai Laheri - panch 58
7 Bachugiri Kalyangiri - police inspector 59
8 Ramsinh Somabhai Chauhan - police officer 60
9 Dr. Hasmukhbhai B. Vora - doctor who 64
treated the complainant
10 Mangilal Buthaji Marwadi - panch 67
11 Kashinath Balaji Kharat - PSI 68
12 Amthabhai Manekbhai Desai - PI 74
Documentary evidence :
Sr.No. Documents
1 Complaint of Mohanji Ganeshji Marwadi
2 Police report
3 Seizure panchnama of the shirt and vest worn by the
complainant
4 Panchnama of the scene of offence
5 Panchnama of confiscation of weapons
6 Seizure panchnama of the pant worn by the
complainant
7 Medical certificate of the complainant
8 Medical certificate of the complainant
7. On conclusion of evidence on the part of the prosecution, the trial Court recorded further statements of respondents as provided under Section 313 of the Code, wherein, the respondents herein denied their involvement in the offence and stated that false case has been filed against them. After hearing both the sides and after appreciating evidence adduced by the Page 4 of 14 Downloaded on : Tue Feb 28 20:30:44 IST 2023 R/CR.A/389/1995 JUDGMENT DATED: 21/02/2023 prosecution, the trial Court acquitted the respondents herein from the charge of offence under Sections 143, 147, 148, 149 r/w. Section 307 of the Indian Penal Code and under Section 135(1) r/w. Section 120 of Bombay Police Act.
8. It is observed that during the pendency of the present appeal, accused no.5 - Bansilal Laxman Marwadi and accused no.7 - Babu Chandaji Marwadi expired and after considering the report and the death certificates of the deceased brought on record, the appeal came to be abated vide order dated 06.05.2022 passed by this Court.
9. We have heard Mr.Chintan Dave, learned Additional Public Prosecutor for the appellant - State of Gujarat and Mr.Mrudul Barot, learned advocate for the respondents - accused and minutely examined the oral as well as documentary evidence adduced before the Trial Court discussed at great length in the impugned judgment and order itself.
10. Mr.Dave, learned Additional Public Prosecutor for the appellant - State of Gujarat has submitted that the Trial Court has committed an error while appreciating the evidence of the complainant Mohanji Ganeshji Marwadi, P.W.1 at Exhibit 22, child witness Dinesh Mohanji Marwadi, P.W.2 at Exhibit 24 and eye witness Hansaji Maganji, P.W.4 at Exhibit 26. He has submitted that though the injury caused to the complainant was proved by supporting evidence of the doctor and the medical certificate, Page 5 of 14 Downloaded on : Tue Feb 28 20:30:44 IST 2023 R/CR.A/389/1995 JUDGMENT DATED: 21/02/2023 the Trial Court has disbelieved the case of the prosecution and, therefore, the Trial Court has committed an error while passing the impugned judgment and order of acquittal. According to the learned Additional Public Prosecutor, there was a motive with regard to the earlier incident took place between the two families which is on record, however, the Trial Court has not properly appreciated the evidence with regard to the motive. He has also submitted that the prosecution has produced necessary documentary evidence before the Trial Court, but the same is not considered by the Trial Court and has committed an error while appreciating the corroborative piece of evidence. He has urged to hold the accused guilty and convict them for the alleged offence. He has prayed to allow the present appeal and quash and set aside the impugned judgment and order of acquittal passed by the Trial Court.
11. Per contra, Mr.Barot, learned advocate for the respondents has pointed out that the prosecution has failed to establish the motive as alleged by the complainant and there was no cogent and material evidence with regard to the motive as alleged and, therefore, the Trial Court has rightly discarded the evidence of the complainant. He has submitted that it is the case of the prosecution that on earlier occasion, son of the complainant Dinesh was beaten by accused no.1 as he was working in the factory of accused no.1 and for that, he sustained injury and admitted in V. S. Hospital and remained as an indoor patient. He has submitted that for settling the said issue, at the intervention Page 6 of 14 Downloaded on : Tue Feb 28 20:30:44 IST 2023 R/CR.A/389/1995 JUDGMENT DATED: 21/02/2023 of their community people, accused no.1 agreed to pay Rs.100/- towards the compensation to the complainant and when the wife of the complainant Otiben visited the house of the accused for taking Rs.100/-, the another scuffle took place between Otiben and accused and the accused have beaten Otiben, so there is strong motive as alleged by the prosecution. He has submitted that there was no any settlement with regard to the injury caused to the son of the complainant and no talk with regard to settlement at the intervention of the community leader and, therefore, the Trial Court has rightly passed the impugned order of acquittal. He has also submitted that at the first instance, the injured has not suggested the name of the witnesses in the FIR and the persons who have been examined were not referred by the complainant in the earlier set of settlement recorded by the Investigating Officer and the prosecution has suppressed the genesis of the incident and, therefore, the Trial Court has rightly disbelieved and discarded the evidence of the witnesses. He has submitted that the complainant has referred that on earlier occasion he had given different representations to the different police stations and the Commissioner of police, but neither they have produced any documentary evidence nor examined any of the witnesses with regard to the complaints / representations made by the complainant and, therefore, the prosecution has failed to establish the involvement of the accused. He has submitted that the appeal being meritless deserves to be dismissed and the impugned judgment and order passed by the Trial Court may be confirmed.
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12. While appreciating the submissions made at the Bar, we have carefully examined the depositions of the witnesses namely Mohanji Ganeshji Marwadi, P.W.1 at Exhibit 22, child witness Dinesh Mohanji Marwadi, P.W.2 at Exhibit 24, eye witness Hansaji Maganji, P.W.4 at Exhibit 26 and Dr. Hasmukhbhai B. Vora, P.W.9 at Exhibit 64. The evidence of these witnesses are contradictory to each other. So far as the case put forward by the prosecution with regard to the motive is concerned, the same is destroyed by the depositions of the prosecution witnesses. It appears that Mohanji Ganeshji Marwadi in his cross-examination in para-6 has categorically stated before the Trial Court that since there was no settlement and no demand, the question of asking Rs.100/- towards compensation does not arise and that was the case and motive of the accused to make assault to the injured. From bare perusal of the evidence of Mohanji Ganeshji Marwadi, it also reveals that earlier he has stated before the doctor and investigating officer that he sustained injury by stick and bricks blows then further he improved version during the cross- examination that he sustained injury by razor etc, so the Trial Court has rightly examined and observed such fact while discussing the evidence of Mohanji and Hansaji Maganji. It is also observed by the Trial Court that while filing the complaint, the injured has not referred the name of Hansaji and Dinesh and admitted that the police has examined these witnesses, who have not referred in the FIR and the persons who have been referred in the FIR have not been examined by the prosecution.
Page 8 of 14 Downloaded on : Tue Feb 28 20:30:44 IST 2023R/CR.A/389/1995 JUDGMENT DATED: 21/02/2023 Therefore, the Trial Court has rightly discussed the evidence of those witnesses. According to the version of the witnesses, the prosecution is unable to establish the case against all the accused. Thus, though in the evidence of Mohanji Ganeshji Marwadi, P.W.1 at Exhibit 22, child witness Dinesh Mohanji Marwadi, P.W.2 at Exhibit 24, eye witness Hansaji Maganji, P.W.4 at Exhibit 26 there is lot of inconsistency in their depositions and the version of Mohanji Ganeshji Marwadi, P.W.1 at Exhibit 22 and Hansaji Maganji, P.W.4 at Exhibit 26, the prosecution has failed to establish the charge levelled against the accused persons and, therefore, the Trial Court has rightly discussed the evidence in detailed and passed the impugned judgment and order of acquittal. On our re-assessment and re-appreciation of entire evidence, we do not find that there is any infirmity or irregularity in the findings of fact recorded by the Trial Court. Under the circumstances, the Trial Court has rightly acquitted the respondents for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the Trial Court leading to the acquittal.
13. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the Page 9 of 14 Downloaded on : Tue Feb 28 20:30:44 IST 2023 R/CR.A/389/1995 JUDGMENT DATED: 21/02/2023 instant case, the learned APP has not been able to point out to us as to how the findings recorded by the Trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
14. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:
"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."
15. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in(2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is Page 10 of 14 Downloaded on : Tue Feb 28 20:30:44 IST 2023 R/CR.A/389/1995 JUDGMENT DATED: 21/02/2023 possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
16. The relevant paragraph of the decision of the Hon'ble Supreme Court in the case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415, reads as under:-
"The following general principles regarding powers of 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 curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize 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 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, Page 11 of 14 Downloaded on : Tue Feb 28 20:30:44 IST 2023 R/CR.A/389/1995 JUDGMENT DATED: 21/02/2023 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."
17. It would be worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 wherein the Hon'ble Supreme Court has held and observed in paragraphs No.151, 153 and 165 as under:-
"151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade V/s. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made : [SCC para 19, p. 807 : SCC (Cri.) p. 1047] Page 12 of 14 Downloaded on : Tue Feb 28 20:30:44 IST 2023 R/CR.A/389/1995 JUDGMENT DATED: 21/02/2023 Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
165. So far as this matter is concerned, in such cases the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction :
(1) there is a clear motive for an accused to administer poison to the deceased.
(2) that the deceased died of poison said to have been administered.
(3) that the accused had the poison in his possession.
(4) that he had an opportunity to administer the poison to the deceased.
18. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.
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19. In view of the above and for the reasons stated above, present criminal appeal fails and same deserves to be dismissed and it is according dismissed. The impugned judgment and order dated 30.06.1994 passed by the learned Additional City Sessions Judge, Court No.20, Ahmedabad (hereinafter be referred to as "the Trial Court) in Sessions Case No.295 of 1989 is hereby confirmed. Bail bonds, if any, shall stand cancelled. Registry is directed to transmit back the record and proceedings of the case to the concerned Trial Court forthwith.
(VIPUL M. PANCHOLI, J) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 14 of 14 Downloaded on : Tue Feb 28 20:30:44 IST 2023