Gujarat High Court
State Of Gujarat vs Pratapji Bijalji Thakor on 9 January, 2025
Author: Samir J. Dave
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/440/2001 JUDGMENT DATED: 09/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 440 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
==========================================================
Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
PRATAPJI BIJALJI THAKOR
==========================================================
Appearance:
MS JIRGA JHAVERI ADDL. PUBLIC PROSECUTOR for the Appellant(s) No.
1
MR. MRUDUL M BAROT(3750) for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 09/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE)
1. Challenge in this appeal filed under section 378(1) of the Code of Criminal Procedure is to the judgment and order passed by the learned Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 22 of 1999 dated 25.01.2001 whereby, Page 1 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:44:24 IST 2025 NEUTRAL CITATION R/CR.A/440/2001 JUDGMENT DATED: 09/01/2025 undefined the respondent, original accused, came to be acquitted of the charges under sections 302 and 510 of IPC and section 135(1) of the Bombay Police Act.
2. The facts in brief are as under;
The original complainant, Narottam @ Nareshji Anopji Thakor, was residing along with his family, consisting of his parents, brothers and sister and on the opposite side of his house, the house of his paternal Uncle, Bijolji Dhanaji, was situated. On 14.01.1998, at around 1300 hrs., while, the original complainant and his family members, were at their residence, the respondent-accused, Pratapji Bijolji Thakor, son of Bijolji Dhanaji, came to his house in an inebriated condition and picked up a quarrel with his father-Bijolji Dhanaji and wife-Keshaben on the issue of food and also hurled filthy abuses at them. Thereafter, the accused came out of his house and walked through the open road. At that time, the father of the original complainant, Anopji Bhikaji, asked the respondent- accused not to make an issue as it was the day of Makar Sankranti festival. However, the respondent-accused got enraged. He went to his house and returned with a sickle in his hand and thereafter, inflicted a sickle blow on the head of the father of complainant, namely Anopji Bhikaji Thakor. During this period, the other family members of the complainant intervened and in this process, some of them Page 2 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:44:24 IST 2025 NEUTRAL CITATION R/CR.A/440/2001 JUDGMENT DATED: 09/01/2025 undefined sustained minor injuries. Thereafter, the injured was taken to Palanpur Civil Hospital where he was declared dead during the course of treatment.
2.1 A complaint in relation to the above incident was registered with Gadh Police Station. Ivestigation was carried out and statements of witnesses were recorded. As sufficient evidence was found against the respondent-accused, he came to be arrested and at the end of investigation, charge-sheet was filed against him. As the respondent-accused pleaded not guilty to the charge levelled against him, trial was initiated.
3. During the trial, the prosecution had examined eight witnesses and had relied upon several documentary evidence. At the end of trial, the learned Sessions Court acquitted the respondent-accused of all the charges by way of the impugned judgment and order dated 25.01.2001. Against the impugned judgment and order of acquittal, the appellant-State has preferred the present appeal.
4. Learned APP Ms. Jhaveri submitted that the learned Sessions Court has not appreciated the evidence on record in its proper perspective. The incident in question took place in front of the house of the complainant in broad day-light. However, the learned Sessions Court has disbelieved the place Page 3 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:44:24 IST 2025 NEUTRAL CITATION R/CR.A/440/2001 JUDGMENT DATED: 09/01/2025 undefined of incident though the eye-witness have specifically deposed the place of incident to be the public road in front of the house of PW-2 Dariyaben Keshaji (Exhibit-20). It was submitted that the Blood Group of the deceased was 'B' and human blood belonging to the same Blood Group was found from the control sand seized from the place of incident as also from the clothes of the deceased. Therefore, the prosecution had successfully proved the panchnama of place of incident; however, the learned Sessions Court disbelieved the same. Further, the appellant-accused had not explained the injuries that were found on his body. Under the circumstances, the learned Sessions Court ought not to have disbelieved the prosecution case and passed the impugned judgment and order of acquittal. Hence, the same deserves to be quashed and set aside.
5. Learned advocate Mr. Barot appearing for the respondent- accused submitted that the prosecution has failed to establish the place of incident beyond reasonable doubt. While drawing attention to the Panchnama of place of incident, it was pointed out that human blood stains were found inside the house of the respondent-accused; however, for reasons best known to the prosecution, the police did not collect any sample of blood from the said place. If the police had carried out investigation in that line, then the actual place of incident would have been Page 4 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:44:24 IST 2025 NEUTRAL CITATION R/CR.A/440/2001 JUDGMENT DATED: 09/01/2025 undefined established since it was the defence of the respondent-accused that the alleged incident took place inside his house and that the accused had also sustained injuries in the alleged incident. Further, the prosecution has also failed to establish the place where the respondent-accused is said to have sustained the injuries.
5.1 It is further submitted that the prosecution has not examined any independent witness/s though the alleged incident is said to have taken place on the public road in broad day-light. All the witnesses who have been examined are either family members of the deceased and a maternal aunt of the respondent-accused with whom the respondent-accused did not have cordial relations at the relevant time. Therefore, the evidence of the prosecution witnesses has rightly not been relied upon by the learned Sessions Court and hence, this Court may not entertain this appeal.
6. Having heard learned advocates on both the sides and on perusal of the material on record, there is no dispute regarding the fact that the deceased died a homicidal death. From the evidence of PW-4 Dr. Bharatbhai Dohjibhai (Exhibit-22), who had performed Post-mortem of the dead body of deceased and the Post-mortem Report (Exhibit-23), it is established that the deceased died an unnatural death caused on account of Page 5 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:44:24 IST 2025 NEUTRAL CITATION R/CR.A/440/2001 JUDGMENT DATED: 09/01/2025 undefined hemorrhagic shock due to head injury. The medical evidence on record clearly suggests that the deceased died on account of injury on the head caused by a sharp-edged weapon. Thus, the factum of deceased having died a homicidal death is established beyond doubt.
7. Before the learned Sessions Court, it was the case of the prosecution that PW-1 Nareshji Anopji, the original complainant, PW-2 Dariyaben Keshaji, PW-3 Bhavanji Anopji and PW-5 Sovanji Dharmaji were eye-witnesses to the incident in question. All the aforesaid witnesses have deposed that on the date of incident, the respondent-accused arrived at the center of the road of the Village hurling abuses and at that time, the deceased tried to explain him not to behave in such manner. However, on hearing this, the respondent-accused got enraged. He went to his house and returned with a sickle in his hands and thereafter, inflicted a sickle blow on the head of the deceased.
8. However, in the complaint (Exhibit-37) filed by the original complainant (PW-1), it has been averred that the respondent-accused while being in an inebriated condition picked up quarrel with his father and wife-Keshaben on the issue of food and was hurling abuses. At that time, the deceased tried to explain the respondent-accused not to behave Page 6 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:44:24 IST 2025 NEUTRAL CITATION R/CR.A/440/2001 JUDGMENT DATED: 09/01/2025 undefined in such manner as it was the day of Uttarayan but, the respondent-accused got enraged and he went inside the house and brought a sickle and thereafter, inflicted a sickle blow on the head of his deceased-father.
9. It appears from the depositions of the aforesaid four witnesses that initially, the respondent-accused picked up a quarrel with his father and wife inside his own house. Thereafter, the deceased-father of the complainant (PW-1), who was residing in another house in the neighborhood, tried to explain the respondent-accused not to behave in such manner as it was festival day. Both these facts have been averred in the impugned complaint (Exhibit-37) as also in the depositions of the aforesaid witnesses.
9.1 However, the episode where the deceased enters into a conversation with the respondent-accused, in order to explain him not to behave in said manner, could have taken place either at the time when the quarrel was going on, i.e. inside the house of the respondent-accused, or in front of the house of the respondent-accused, for the reason that no where in the complaint (Exhibit-37) filed before the Police Station, the factum of the respondent-accused having come out of his house and onto the road and thereafter, hurling abuses, is mentioned. The said aspect has also not been mentioned by the original Page 7 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:44:24 IST 2025 NEUTRAL CITATION R/CR.A/440/2001 JUDGMENT DATED: 09/01/2025 undefined complainant or by any of the witnesses in their statements before the police. The said story has been narrated by the original complainant (PW-1) and the witnesses, for the first time, only before the learned Sessions Court. In the opinion of the Court, this aspect goes into the root of the matter, particularly, when there is serious dispute as regards the place where the alleged incident is said to have taken place.
10. Another relevant aspect is that in the impugned complaint (Exhibit-37), no averment is made as regards the injuries sustained by the respondent-accused in the alleged incident. This aspect is also crucial in view of the fact that the medical evidence on record suggests that the respondent- accused had sustained injuries on his head, which could have been caused by a hard - blunt substance, which contradicts the depositions of the aforesaid four witnesses who have stated that the respondent-accused had sustained injuries in the scuffle as he was not laying-off the sickle and during that period, the original complainant - PW-1 had inflicted stick blow on the legs of the respondent-accused. However, the medical evidence on record in the form of injury Certificate of the respondent-accused (Exhibit-25) does not support the said story of the prosecution. Thus, on this count also, the case of the prosecution is not found to be reliable and trustworthy and instead, the prosecution appears to have concealed the actual Page 8 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:44:24 IST 2025 NEUTRAL CITATION R/CR.A/440/2001 JUDGMENT DATED: 09/01/2025 undefined facts from the Court.
11. It is pertinent to note that in the Panchnama of scene of offence (Exhibit-11) it has been recorded that human blood stains were found in the house of the respondent-accused; however, the samples of blood were not collected for reasons best known to the prosecution. It was argued that the said blood could be of the respondent-accused as he had also sustained injuries in the alleged incident. However, when it has not been specifically stated in the impugned complaint as also in the statement before the police that the alleged incident had taken place on the public road and when it is the specific case of the defence that the alleged incident had taken place inside the house of the respondent-accused and not on the public road, under such circumstance, it could not be said that the blood stains found inside the house of the respondent- accused was of the respondent-accused or for that matter, of the deceased, in the absence of any scientific evidence to such effect. Had it been so that the blood sample found inside the house of the respondent-accused was collected and examined by the F.S.L., then it might have served as a piece of evidence for determining the actual place of incident. In the opinion of the Court, the non-collection of blood sample from the said place has led to failure of the prosecution in establishing beyond reasonable doubt the actual place of incident. Under Page 9 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:44:24 IST 2025 NEUTRAL CITATION R/CR.A/440/2001 JUDGMENT DATED: 09/01/2025 undefined the circumstance, the learned Sessions Court was justified in passing the impugned judgment and order of acquittal.
12. 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 Chandrappa Vs. State of Karnataka, (2007) 4 S.C.C. 415, the Apex Court has 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 Page 10 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:44:24 IST 2025 NEUTRAL CITATION R/CR.A/440/2001 JUDGMENT DATED: 09/01/2025 undefined 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."
12.1 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.
13. In the case of State of Goa V. Sanjay Thakran & Anr., (2007) 3 S.C.C. 75, the Apex Court reiterated the powers of the High Court in such cases. In Paragraph-16 of the said decision, the Court observed as under;
Page 11 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:44:24 IST 2025NEUTRAL CITATION R/CR.A/440/2001 JUDGMENT DATED: 09/01/2025 undefined "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."
14. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
15. In view of the above discussion and keeping in mind the law governing appeals arising out of a judgment and order of Page 12 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:44:24 IST 2025 NEUTRAL CITATION R/CR.A/440/2001 JUDGMENT DATED: 09/01/2025 undefined acquittal, this Court finds no substance in the present appeal. We are in complete agreement with the reasoning given by and the findings arrived at by the learned Sessions Court in the impugned judgment and order and hence, find no reasons to entertain this appeal.
16. In the result, the appeal is dismissed. Bail bonds, if any, stand discharged. Record and proceedings be sent back to the trial Court concerned forthwith.
(A.Y. KOGJE, J) (SAMIR J. DAVE, J) PRAVIN KARUNAN Page 13 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:44:24 IST 2025