Gujarat High Court
State Of Gujarat vs Rajubhai Parshottambhai Koli Patel on 13 February, 2025
NEUTRAL CITATION
R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 951 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
=============================================
Approved for Reporting Yes No
=============================================
STATE OF GUJARAT
Versus
RAJUBHAI PARSHOTTAMBHAI KOLI PATEL & ANR.
=============================================
Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1
=============================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 13/02/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') against the judgment and the order dated 09.12.2005 in Sessions Case No.15 of 2005 passed by the Presiding Officer, 4th Fast Track Court, Nadiad (hereinafter referred to as 'the Trial Court'), whereby, the Trial Court has acquitted the respondents - accused from the offences punishable Page 1 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined under Sections 452, 393, 398, 120(B) and 34 of the Indian Penal Code (hereinafter referred to as 'the IPC') and Section 25(1)(a)(b) of the Arms Act, 1959. The respondents are hereinafter referred to as 'the accused' as they stood in the rank and file in the original case, for the sake of convenience, clarity and brevity.
2. During pendecy of the present appeal, the respondent No.2 - original accused No.2 Rajubhai Babubhai Parmar has expired on 28.12.2024. Copy of the death certificate is produced and the same is taken is taken on record, and hence, the present appeal qua respondent No.2 herein - original accused No.2 stands disposed of as abated.
3. The relevant facts leading to filing of the present appeal are as under:
3.1. The complainant Jashodaben, wife of Ashokbhai Nathabhai Patel, has filed the complaint on 24.12.2001 mainly stating that while she was at home at around 11:30am, Jayrambhai Savabhai Rabari, nephew of her earlier neighbour in Ashoknagar, came along with other three persons to her house and asked for Page 2 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined drinking water as they had come to the Civil Hospital. That she asked them to sit and went to bring water and after she gave them water, Jayrambhai Savabhai Rabari wanted to use the washroom and he immediately returned from the washroom and at that time, one of the three persons, had shut the door. That she opened the door and one of the three persons told her to keep the door shut and closed the door once again and while she was returning from the kitchen, one of the persons was talking to Jayrambhai Savabhai Rabari about the kidney and Jayrambhai Savabhai Rabari asked her how much would he get for a kidney and she told Jayrambhai Savabhai Rabari to ask her husband. That at that time, one of the persons caught her throat and her son intervened and the other persons caught her son and the third person showed her a revolver and an handkerchief from which there was smell of chloroform and she pushed them and opened the door of her house and started shouting. That her neighbours came and all four of them ran down the stairs and out of the four, Jayrambhai Savabhai Rabari was caught by the neighbours Buprendrabhai Vyas, Indravadan Desai etc. That in the struggle, she sustained sprain on the wrist of her left hand and the complainant filed the Page 3 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined complaint with Nadiad Town Police Station which was registered at I-C.R.No. 489 of 2001 under Sections 452, 393, 398, 120(B) and 34 of the IPC and 25(1)(a)(b) of the Arms Act.
3.2. After registration of the FIR, the investigation was carried out by the concerned Investigating Officer and after having sufficient material against the accused, the chargesheet came to be filed before the concerned jurisdictional Magistrate. As the case was exclusively triable by the Court of Sessions, the process under Section 209 of the Cr.P.C. was undertaken and the case was committed to the Sessions Court and the same was registered as Sessions Case No.15 of 2005.
3.3. The accused was duly served with the summons and the accused appeared before the Trial Court and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of the Code and a charge was framed by the Trial Court at Exh.8 and the statements of the accused were recorded at Exhs. 9 and 10, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution Page 4 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined has examined 10 witnesses and has produced 24 documentary evidences in support of the case.
3.4. After the closing pursis was submitted by the learned APP at Exh.22, the further statement of the accused under Section 313 of the Code was recorded. After hearing the arguments of the learned APP and learned advocate for the accused and after perusing the documents on record, the Trial Court, by the impugned judgment and order, has acquitted the accused for the offences punishable under Sections 452, 393, 398, 120(B) and 34 of the Indian Penal Code (hereinafter referred to as 'the IPC') and Section 25(1)(a)(b) of the Arms Act.
4. Being aggrieved and dissatisfied with the impugned judgment and order passed by the Trial Court, the appellant - State has filed the present appeal mainly stating that the impugned judgment and order passed by the Trial Court is contrary to law. The Trial Court has erred in believing the version of the PW-1 and PW-2 as both the witnesses have narrated similar facts and both the witnesses have supported the case of the prosecution. The Trial Court has erred in not believing the version of PW-3 who has Page 5 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined identified both the accused and PW-3 has been cross-examined by the other side, but nothing could have been elicited from this witness. The Trial Court has erred in arriving at conclusion that the prosecution has failed to establish the guilt of the accused beyond reasonable doubts. The Trial Court has failed to rely upon the test identification parade as well as the version of two eye witnesses, who has categorically stated the role attributed by the present accused persons. The Trial Court has erred in acquitting the accused on the ground of benefit of doubt. The impugned judgment and order of acquittal passed by the Trial Court is illegal, invalid, improper, perverse and bad in law and the same deserves to be quashed and set aside.
5. Heard learned APP Ms.Jirga Jhaveri for the appellant - State. Though served, the respondent No.1 has not appeared either in person or through an advocate. Perused the impugned judgment and order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case.
6. Learned APP Ms.Jirga Jhaveri for the appellant - State has taken this Court through the entire evidence produced by the Page 6 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined prosecution and has vehemently argued that the Trial Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the the case and has successfully proved the case against the accused but the Trial Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by the learned Judge is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by learned Judge is based on inferences, not warranted by facts of the case and also on presumption, not permitted by law. Learned APP has urged this Court to quash and set aside the impugned judgment and order of acquittal and to find the accused guilty for the said offence.
7. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court regarding the acquittal appeal in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415, the Apex Court has observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313 :
AIR 2006 SC 831, this Court stated; "While deciding an appeal against Page 7 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied) ........ From the above decisions, in our considered view, 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 Page 8 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined 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.
8. It is a settled principle of law that in an appeal against acquittal, the Appellate Court is circumscribed by limitation that no interference has to be made in the order of acquittal unless after appreciation of the evidence produced before the Trial Court, it appears that there are some manifest illegality of perversity which could not have been possibly arrived at by the Court. It is also a settled principle that there is no embargo on the Appellate Court to review the evidence but, generally the order of acquittal shall not be interfered with as the presumption of innocence of the accused is further strengthened by the order of acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case of the prosecution i.e. (i) guilt of the accused and (ii) his innocence, the view, which is in favour of the accused, should be adopted, and if the trial Court has taken the Page 9 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined view in favour of the accused, the Appellate Court should not disturb the findings of the acquittal. The Appellate Court can interfere with the judgment and order of acquittal only when there are compelling and substantial reasons and the order is clearly unreasonable and where the Appellate Court comes to conclusion that based on the evidence, the conviction is a must.
9. In light of the above, the evidence produced by the prosecution on record is appreciated and the prosecution has examined PW-1 Jashodaben W/o Ashokbhai Nathabhai Patel at Exh.13 and the witness is the complainant, who has narrated the facts of the complaint on oath. During the cross-examination by the learned advocate for the accused, the witness has stated that her husband is working as an Anesthetist in the kidney hospital and Jayrambhai Savabhai Rabari was known to her husband. That for the Test Identification Parade, she had gone from the Police Station with the police and the accused to the Mamlatdar Office, and she had thereafter identified the accused during T.I. parade. 9.1. The prosecution has examined PW-2 Nikunjbhai Ashokbhai at Exh.15 and the witness is the eye witness and the son Page 10 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined of the complainant who has fully supported the case of the prosecution. During the cross-examination by the learned advocate for the accused, the witness has stated that he had never seen any of the four persons before the incident and they had entered into the house after his mother had opened the door and asked all the four persons to sit. That he does not know after how long was he called by his mother as he was in the next room and till he was called, he did not know who had come into the house. That his mother had shouted and called him and he came outside but, he could not identified the four persons. That he did not know the name of any of the accused and the person, who was caught, was caught in the ground.
9.2. The prosecution has examined PW-3 Bhupendrabhai Bhanuprasad Vyas at Exh.16 and the witness is the neighbour, who has stated that on 24.12.2001 between 11:00am to 12:00 noon, he was in his house and he heard Jashodaben shouting and he came out of his house and saw four persons running away. That his house is on the second floor and Jashodaben's house is on the third floor and he saw all the four persons going down the stairs Page 11 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined and he too ran down and caught one person. During the cross- examination by the learned advocate for the accused, the witness has stated that he came out about five minutes after the shouts were heard and all the accused ran away. That he was not called during the test identification parade and when he went down, the other persons from the block had gathered. That he does not know where the person was caught from.
9.3. The prosecution has examined PW-4 Dilipbhai Someshwar Bhatt at Exh.17 and the witness is the Executive Magistrate, who has conducted the Test Identification Parade in the presence of the panch witnesses and had drawn the panchnama in the presence of the panch witnesses. During the cross-examination by the learned advocate for the accused, the witness has stated that the accused and the witnesses were brought before him by the police and he does not know where the panch witnesses were called from. That the police and the peon had called the dummy persons and he does not as to whether the dummy persons had seen the accused earlier or not. That it was his first Test Identification Parade and he had not inquired the age Page 12 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined of the accused and there was no mention of the age of the accused in the yadi. That he cannot say as to whether the dummy persons were similar in looks to the accused or not and there is only one way to enter and exit the Mamlatdar office.
9.4. The prosecution has examined PW-5 Rashmikant Nagindas Bhavsar at Exh.22 and the witness is the panch witness of the panchnama of the Test Identification Parade. The witness has stated that he was called to the Mamlatdarr Office on 20.12.2001 at around 3:00pm and Maheshbhai Vadilalbhai was the other panch witness. That he was informed by the Mamlatdarr about the Test Identification Parade, which was conducted in the computer room adjacent to the Mamlatdar Office and the Test Identification Parade was conducted in their presence. The complainant identified the accused and the panchnama was drawn and they had affixed their signature on the panchnama, which is produced at Exh.23. During the cross-examination by the learned advocate for the accused, the witness has stated that on 28.12.2001, he was at the Mamlatdar Office when he was called for Test Identification Parade. That he does not know who had called Page 13 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined him and the other panch witness Maheshbhai Vadilalbhai had also come at Mamlatdar Office with him. That he has his business in front of the Mamlatdar office and he is very well versed to the Mamlatdar Office and they were called to the computer room. That after the accused were brought into the room, they were not asked for their names or addresses and 9-10 persons were called from outside. That before the accused were called, the Executive Magistrate had not written anything and the Mamlatdar did not inquire the names of the persons, who were standing in the room. 9.5. The prosecution has examined PW-6 Hanifbhai Bachubhai Vohra at Exh.25 and the witness is the panch witness of the arrest panchnama which is produced at Exh.26. The witness has not supported the case of the prosecution and has been declared hostile.
9.6. The prosecution has examined PW-7 Saurabbhai Kanubhai Shah at Exh.27 and the witness is the panch witness of the panchnama of the place of offence which is produced at Exh.28. The witness has fully supported the case of the prosecution and during the cross-examination, he has stated that he is working Page 14 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined in the purchase department of the kidney hospital. Ashokbhai Nathabhai is also working in the kidney hospital in the sterilization department and he is his good friend and he visits his house and is known to his wife.
9.7. PW-8 Jehtabhai Bhikhabhai examined at Exh.29 is PSO of Nadiad Town Police Station, who has registered the complaint of the complainant at I-C.R.No.489 of 2001.
9.8. PW-9 Navalsinh Madhusinh Solanki examined at Exh.30 is the second Investigating Officer, who has filed the charge sheet against the accused.
9.9. PW-10 Pratapsinh Udesinh Raval examined at Exh.31 is the Investigating Officer who has narrated in detail the procedure undertaken by him during investigation. During the cross-examination by the learned advocate for the accused, the witness has stated that the complainant had given the oral complaint and in the complaint, the details of "kidney" were made out and the fact that the husband of the complainant was was working in the kidney hospital was also made out. That in the Page 15 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined complaint, there was also a reference about the sale of the kidney and money but the same was not investigated during investigation and during the statement of Nikunjbhai Ashokbhai, the son of the complainant he had stated that Jayrambhai Savabhai Rabari was known to his mother and he used to frequently come to his house.
10. On minute appreciation of the entire evidence of the prosecution, the accused have been charged with the offence under Section 452 of the Cr.P.C. but, in the complaint and the deposition of the complainant, it has come on record that the accused Jayrambhai Savabhai Rabari was known to the complainant and he was called into the house by the complainant. That he had rang the bell and the complainant Jashodaben opened the door and all the four persons had come and were asked to sit, and hence, there is no iota of evidence that the accused has forcibly entered into the house. That there is no evidence as to which of the accused had a handkerchief with chloroform or the revolver and there are major contradictions in the deposition of the complainant and eye witness PW-2 Nikunjbhai Ashokbhai. That there is evidence that there was talk about the sale of kidney and money Page 16 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined with the complainant and the Test Identification Parade is not reliable as the complainant has herself stated that she had gone along with the police and the accused to the Mamlatdar Office and she had seen the accused prior to the Test Identification Parade. That there is no clear evidence about the role played by each of the accused and the learned Trial Court has considered all the oral and documentary evidence and has found that the prosecution has not proved the case beyond reasonable doubts.
11. In view of the above, the Trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The Trial Court has appreciated all the evidence and this Court is of the considered opinion that the Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Trial Court. This Page 17 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025 NEUTRAL CITATION R/CR.A/951/2006 JUDGMENT DATED: 13/02/2025 undefined Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed.
12. The impugned judgment and the order dated 09.12.2005 in Sessions Case No.15 of 2005 passed by the Presiding Officer, 4th Fast Track Court, Nadiad is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) F.S.KAZI Page 18 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:02 IST 2025