Gujarat High Court
State Of Gujarat vs Pankaj @ Pako Babubhai Rathod on 30 January, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
R/CR.A/506/1997 JUDGMENT DATED: 30/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 506 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT
Versus
PANKAJ @ PAKO BABUBHAI RATHOD & ORS.
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Appearance:
MR HARDIK SONI, APP for the Appellant(s) No. 1
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No.
1,2,3
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1,2,3
MR.MRUDUL M BAROT(3750) for the Opponent(s)/Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 30/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal filed under Section 378(1)(3) of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 27.03.1997 passed by the learned Additional Sessions Judge, Court No.15, Ahmedabad City in Sessions Case No.119 of 1996 acquitting the accused for the offences punishable under Page 1 of 7 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:30:54 IST 2025 NEUTRAL CITATION R/CR.A/506/1997 JUDGMENT DATED: 30/01/2025 undefined Sections 302 and 114 of the Indian Penal Code, 1860 (IPC) and under Section 135(1) of the Bombay Police Act.
2. At the outset, learned APP has tendered a Report of the Police Sub Inspector, Danilimda Police Station, Ahmedabad City. The same is ordered to be taken on record. As per the aforesaid report, the original accused No.2-Babubhai Devjibhai Parmar and the original accused No.3-Bharat alias Lado Nathubhai Makwana have passed away. Hence, the present Appeal abates qua the original accused No.2 and 3 and is confined only to the accused No.1-Pankaj alias Pako Babubhai Rathod.
3. As per the case of the prosecution, and the charge at Exhibit 1, all the three accused had on 01.12.1995 at 21.00 hours assaulted the deceased. The role of the present surviving accused is that he had pushed the deceased, whereas the other accused No.2 had inflicted a blow with a knife on the left side of the abdomen. Ultimately, the deceased succumbed to the injuries. Charges for the offences punishable under Sections 302 read with Section 114 of the IPC were framed. All the accused were tried for the offences and ultimately, the trial Court by the judgment and order dated 27.03.1997 acquitted the accused for which they were charged.
4. Learned APP while pointing out the findings recorded by the trial Court has submitted that the same are perverse and hence, the acquittal recorded by the trial Court is required to be quashed and set aside. At the outset, he has referred to the evidence of the eye Page 2 of 7 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:30:54 IST 2025 NEUTRAL CITATION R/CR.A/506/1997 JUDGMENT DATED: 30/01/2025 undefined witness PW6-Pramodkumar Shrivijaysinh Yadav at Exhibit 20 and has submitted that his evidence unequivocally points out the complicity of the present accused in the offence. It is submitted that this accused had pushed the deceased and thereafter, two other accused had inflicted knife blow on the vital part of the deceased which ultimately resulted into his death. Learned APP has also referred to the evidence of PW2-Jagrajji Nenaji at Exhibit 16 and submitted that he was the eye witness to the incident and he has supported the case of the prosecution. Similar reference is made to the other witnesses who are the eye witness PW3-Dayalji Nenaji, PW4-Sampatbhai Shankarji Marwadi at Exhibit 18 and also PW5- Premabai Surajmal, who is the complainant and who was examined at Exhibit 19. While referring to her deposition, it is submitted that the trial Court has failed to appreciate her testimony. Thus, it is urged that the acquittal recorded by the trial Court may be reversed.
5. We have examined the evidence as well as the findings of the trial Court threadbare. Since the original accused No.2 and 3 have passed away, we only examine the present Appeal in the context of role of the accused No.1. As mentioned hereinabove, as per the charge and the case of the prosecution, the role attributed to him is that he had pushed the deceased. There are two witnesses on which the prosecution has placed heavy reliance, i.e. the complainant-PW5-Prema Surajmal who was examined at Exhibit 19, and another eye witness PW-6, Promod Kumar Yadav. She has referred to the presence of the mother of the deceased, and is Page 3 of 7 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:30:54 IST 2025 NEUTRAL CITATION R/CR.A/506/1997 JUDGMENT DATED: 30/01/2025 undefined alleged that all the accused pushed them, and they had fallen down. It is also deposed that all the three accused dragged the deceased, and they stabbed the deceased with knife. She has identified them in the Court and also in the TI parade. In her deposition she had made a general statement that all the three accused had taken away the deceased and thereafter, they had inflicted knife blow. The medical report as well as the post mortem report reveals that there was one stab wound which was present on the left side of the abdomen of the deceased.
6. It is interesting to note that the First Information Report (FIR) which has been registered by the present witness at Exhibit 144. In the contents of the said FIR, and the deposition, PW-5 has mentioned about the mother of the deceased. However, she is not examined as a witness. Another witness is the eye-witness, i.e. PW6-Pramodkumar Shrivijaysinh Yadav. His deposition reveals that he had taken the injured to the hospital. His testimony reconciles with the testimony of PW-5 so far the incident of pushing of the complainant and the mother of the deceased is concerned. However, thereafter, he has deposed that one accused had inflicted one blow of knife on the deceased, and he was also pushed from the cycle. It is also deposed that he had helped the deceased, and thereafter he was taken to the hospital by him. A careful reading of the testimony of this witness does not reveal any role of the present surviving accused. It is not the case of the prosecution that pushing of the deceased by the present accused was deliberate in order to see that the other accused No.2 could inflict one vital blow Page 4 of 7 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:30:54 IST 2025 NEUTRAL CITATION R/CR.A/506/1997 JUDGMENT DATED: 30/01/2025 undefined on the abdomen of the deceased. There are other witnesses also who have not supported the case of the prosecution and they have been declared hostile.
7. We have perused the evidence. So far as the role of the present accused is concerned, we find that it cannot be said that he has abetted the offence of Section 302 of the IPC which has been committed by the accused No.2, who had inflicted the fatal blow on the deceased which has resulted into his death.
8. At this stage, it would be apposite to refer to the observations of the Supreme Court in the case of Chandrappa and other v. State of Karnataka reported in (2007) 4 SCC 415. The Supreme Court after survey of various judgments, has ultimately discussed the scope of Appellate Court in interfering the acquittal. The same is as under :-
"41. 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 Page 5 of 7 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:30:54 IST 2025 NEUTRAL CITATION R/CR.A/506/1997 JUDGMENT DATED: 30/01/2025 undefined 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, 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."
9. Thus, it is held by the Supreme Court that in the case of acquittal, there is double presumption in favour of the accused, firstly the presumption of innocence available to him under the fundamental principal of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by the competent Court of law, and secondly, the accused having secured his acquittal, the presumption of innocence is further reimposed, reaffirmed and strengthened by the trial Court. It is further held that if two reasonable conclusions are possible on the basis of evidence on record, the appellate Court should not disturb the findings of acquittal recorded by the trial Court.
10. Thus, on an overall appreciation of the evidence, we do not find any infirmity or perversity in the order passed by the learned Sessions Judge. Hence, we are not inclined to interrupt the acquittal of the accused.
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11. The present Appeal hence, is dismissed. Record and proceedings shall be returned forthwith.
Sd/-
(A. S. SUPEHIA, J) Sd/-
(GITA GOPI, J) CAROLINE / DB-1 # 6 Page 7 of 7 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:30:54 IST 2025