State Of Gujarat vs Jhalubhai Jivabhai Damor

Gujarat High Court

State Of Gujarat vs Jhalubhai Jivabhai Damor on 14 May, 2025

                                                                                                              NEUTRAL CITATION




                            R/CR.A/795/1999                                   JUDGMENT DATED: 14/05/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/CRIMINAL APPEAL NO. 795 of 1999


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MS. JUSTICE NISHA M. THAKORE

                       and
                       HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                       ==========================================================

                                    Approved for Reporting                   Yes           No

                       ==========================================================
                                                       STATE OF GUJARAT
                                                             Versus
                                                   JHALUBHAI JIVABHAI DAMOR
                       ==========================================================
                       Appearance:
                       MS MONALI BHATT, APP for the Appellant(s) No. 1
                       MR SS PANESAR(560) for the Opponent(s)/Respondent(s) No. 1
                       ==========================================================

                          CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                                and
                                HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                         Date : 14/05/2025

                                                        ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE MAULIK J.SHELAT)

1. The present Acquittal Appeal has been filed by the State under Section 378 of the Code of Criminal Procedure, 1973, challenging the judgment and order dated 26.02.1999 passed by learned Sessions Judge, Panchmahal (hereinafter referred to as "the Trial Court") in Session Case No. 265 of Page 1 of 15 Uploaded by SALIM(HC01108) on Mon May 19 2025 Downloaded on : Mon May 19 22:43:34 IST 2025 NEUTRAL CITATION R/CR.A/795/1999 JUDGMENT DATED: 14/05/2025 undefined 1998. By way of the impugned judgment and order, the accused has been acquitted of the charges levelled against him under Sections 302, 323, 504 of the Indian Penal Code, 1860 (hereinafter referred to as IPC).

The short facts of the case 2.1 It appears that Khanpur Police Station, District Panchmahal has received an information about the death of Khatubhai Galabhai Malivad (herein after referred as 'deceased') on 29.05.1998 whereby, initially police has received formal complaint of accidental death of deceased which was given by father of deceased namely Galabhai Motibhai Malivad.

2.2 Father of the deceased so narrated in his complaint that on 26.05.1998 at about 7:00 am, deceased went with Motibhai Danabhai Malivad for work at Limadiya Chaukdi, but deceased did not come back till late night and on the next day morning, one Koyabhai came to the house of the first informant and informed him that his son Khatubhai - deceased is unconscious and lying near nursery and Motibhai Danabhai was with him. So, he along with his family members went to the aforesaid place and found that his son was badly injured and enable to speak where Motibhai told them that Page 2 of 15 Uploaded by SALIM(HC01108) on Mon May 19 2025 Downloaded on : Mon May 19 22:43:34 IST 2025 NEUTRAL CITATION R/CR.A/795/1999 JUDGMENT DATED: 14/05/2025 undefined deceased Khatubhai fell down from bed and sustained injury. So, deceased was first shifted in Tempo from Limadiya Chaukdi to Lunawada Saifi Hospital, from where he was further shifted to Government Hospital, Vadodara and died during his treatment at about 6 pm on 28.05.1998.

2.3 On 30.05.1998, Motibhai Danabhai Malivad who was accompanied with deceased Khatubhai gave a written complaint to Khanpur Police Station, Panchmahal contending inter-alia that he along with deceased Khatubhai and others persons went for labour work at Village- Chhani. After completion of their work, when Sarpanch of Village- Chhani did not pay them their remuneration, on 26.05.1998 at about 14.30 hrs. he and deceased Khatubhai went to the house of Sarpanch of village -Chhani i.e. Jhalubhai Jivabhai Damor ( herein after referred as 'Accused'), where he was not found. So, they went to the house of Ratnabhai who happens to be one of member of the Panchayat and after some time they went to the house of Sarpanch - Jhalubhai - Accused where he was found but did not pay their remuneration rather scolded them in abusive language and also threatened them, but on repeated request made by them, paid them only Rs. 300/-.

2.4 It has been alleged in the complaint that Motibhai and Page 3 of 15 Uploaded by SALIM(HC01108) on Mon May 19 2025 Downloaded on : Mon May 19 22:43:34 IST 2025 NEUTRAL CITATION R/CR.A/795/1999 JUDGMENT DATED: 14/05/2025 undefined deceased Khatubhai returned towards their house at about 19:00 hrs. at that time near village Madapur, Accused- Jhalubhai came with his motorcycle and again threatened and used abusive language and also slapped them. So, due to fear and threat given by Sarpanch - Jhalubhai - Accused, they came near Pandarva bus stand about 22:00 hrs. where again Accused came with his motorcycle and again used abusive language to them and slapped them, so, Motibhai ran away from that place but deceased Khatubhai was badly injured by Jhalubhai and he was also hit by handle of machine on his head, whereby deceased fell down. So, accused has thrown deceased into well nearby place of incident. As accused was present for quite long time upto 4:00 am., once Motibhai found that there is no one near to well as he has hide himself nearby, he came near to well and found that deceased Khatubhai was lying unconscious and then-after he brought him in ST bus near Limadiya Nursery, from where he was shifted to respective hospital as narrated by first informant i.e. father of the deceased. It has been stated in the compliant given by the Motibhai that deceased Khatubhai told him not to report complaint but when he reported died, he has narrated entire incident to the family members of deceased Khatubhai and then after lodged a complaint to the police.

NEUTRAL CITATION R/CR.A/795/1999 JUDGMENT DATED: 14/05/2025 undefined 2.5 On the basis of the aforesaid complaint and information received by the police concerned, an investigation was carried out and after recording of the statement of different witnesses, preparing panchanama of scene of occurrence as well as discovery of article used for the alleged offence, a case was registered against accused - Jhalubhai Jivabhai Damor, Sarpanch of Village-Chhan qua alleged offence (hereinafter referred to as accused).

2.6 Upon completion of the investigation and upon committal of the case to the trial Court, learned trial Court, after appreciating oral and documentary evidence on record, has found so many contradictions in the version of witnesses and complainant, who have been examined by the prosecution and the story narrated by complainant as well as other supporting witnesses, are not found trust worthy. The learned trial Court has also found that the prosecution has failed to establish any intention and motive on the part of accused to kill deceased and story narrated by Motibhai Danabhai who was prime witness of the prosecution is not only doubtful and improbable but not supported by any other evidence laid by the prosecution. Thus, considering the evidence on record, the learned trial Court, has acquitted the accused from all the charges.

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3. We have heard learned Additional Public Prosecutor, Ms. Monali Bhatt at length, who has taken us through various oral evidence as well as documentary evidence, which are on record. We have independently examined and re-appreciated evidence of witnesses.

4. Learned trial Judge, framed charges vide Exh. 2 against the Respondent - Accused for the aforesaid offences. The Respondent Accused pleaded not guilty and claim to be tried. He was tried for the said offences and in order to bring home the charge, the prosecution has examined 11 prosecution witnesses and also produced 17 documentary evidence, which are as under:-

ORAL EVIDENCE PW Name of the witness Exh.

10 PSI P.R. Chauhan 27A 11 B.K. Pandor 28 Page 6 of 15 Uploaded by SALIM(HC01108) on Mon May 19 2025 Downloaded on : Mon May 19 22:43:34 IST 2025 NEUTRAL CITATION R/CR.A/795/1999 JUDGMENT DATED: 14/05/2025 undefined DOCUMENTARY EVIDENCE Sr. No. Particulars Exh.

5 Receipt regarding recovery of clothes from the 20 body of the deceased 6 Panchnama of clothes 22 7 Panchnama of place of offence 23 8 Map of place of offence 24 9 Yadi by Police to Mamlatdar 25 10 Postmortem Note 27 11 Panchnama as per Section 27 of evidence 29 12 Receipt regarding return of dead body 30 13 Yadi by PSI, Khanpur to Medical Officer 31 14 Letter by PSI, Khanpur to Medical Officer to clarify 32 the injuries 15 Letter by Medical Officer to PSI, Khanpur 33 16 Letter by PSI, Khanpur to Executive Magistrate 34 17 Death Certificate issued by SSG Hospital, 14 Vadodara

5. Learned APP Ms. Monali Bhatt would submit that the trial Court has committed grave error in not properly appreciated evidence of PW-1 Motibhai Danabhai which resulted into miscarriage of justice.

5.1 Learned APP Ms. Bhatt would further submit that PW-1 Page 7 of 15 Uploaded by SALIM(HC01108) on Mon May 19 2025 Downloaded on : Mon May 19 22:43:34 IST 2025 NEUTRAL CITATION R/CR.A/795/1999 JUDGMENT DATED: 14/05/2025 undefined was an eye witness to the incident supported the case of the prosecution and there was a motive and intention on part of the accused to kill deceased was proved on record. As deceased was not paid his remuneration by the accused and having asked for money, accused beaten deceased as well as PW-1 which would self sufficient to establish motive and intention of accused to commit such crime.

5.2 Learned APP Ms. Bhatt would further submit that accused was in dominant position and deceased was labourer having asked for money of his work done, accused was misbehave used abusive language thereafter, followed deceased and Motibhai for quite long time and ultimately beaten deceased to the extent that he succumbed the injury.

5.3 Learned APP Ms. Bhatt would further submit that the trial Court has committed grave error by observing that whether incident has narrated by the Motibhai was actually happened or not is in fact doubtful rather to save himself, Motibhai might have registered false complaint with police on 30.05.1998.

5.4 Thus, the reasons assigned by the learned Trial Court while acquitting the accused are unjust, improper, perverse and unwarranted to the facts of the prosecution case and Page 8 of 15 Uploaded by SALIM(HC01108) on Mon May 19 2025 Downloaded on : Mon May 19 22:43:34 IST 2025 NEUTRAL CITATION R/CR.A/795/1999 JUDGMENT DATED: 14/05/2025 undefined thereby, has committed an error in acquitting the accused. It is further submitted that the prosecution has established the guilt of all the accused and learned Trial Court has committed an error both on law and facts.

5.5 Thus, the learned trial Court has wrongly recorded the order of acquittal, which deserves to be quashed and appropriate sentences for the offences be passed against the accused and he urged this Court to allow the captioned appeal.

6. We have gone through the records and after re- appreciating the evidence and keeping in mind, the ratio laid down by the Supreme Court of India while deciding acquittal appeal, we deem it appropriate to decide the appeal.

7. Before dealing with merits of the appeal, at this stage, we would like to remind ourselves the position of law enunciated by Supreme Court of India in its various decisions, whereby it has laid down several criteria while deciding acquittal appeal.

8. One of the recent pronouncement, in which, the Supreme Court of India in a case of Babu Sahebagouda Rudragoudar and Others vs. State of Karnataka reported Page 9 of 15 Uploaded by SALIM(HC01108) on Mon May 19 2025 Downloaded on : Mon May 19 22:43:34 IST 2025 NEUTRAL CITATION R/CR.A/795/1999 JUDGMENT DATED: 14/05/2025 undefined in (2024) 8 SCC 149 has held as under :-

"39. This Court in the case of Rajesh Prasadv. State of Bihar and Another, (2022) 3 SCC 471 encapsulated the legal position covering the field after considering variousearlier judgments and held as below:-

"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [ Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] "

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 Criminal Procedure Code, 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 emphasise 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 Page 10 of 15 Uploaded by SALIM(HC01108) on Mon May 19 2025 Downloaded on : Mon May 19 22:43:34 IST 2025 NEUTRAL CITATION R/CR.A/795/1999 JUDGMENT DATED: 14/05/2025 undefined 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."

40. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: -

"8.1.The acquittal of the accused further strengthens the presumption of innocence;

8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;

8.3. The appellate court, while deciding an appeal against acquittal, after re- appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;

8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."

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41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-

41.1 That the judgment of acquittal suffers from patent perversity;

41.2 That the same misreading/omission to evidence on record; is based on a consider material 41.3 That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.

42. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."

9. We have re-appreciated entire evidence on record but unable to countenance the submissions made by the learned APP and so also unable to take different view then taken by the trial Court while acquitting accused.

10. As such, keeping in mind the aforesaid ratio and after reappreciating the evidence on record, following glaring facts, which are noticed by learned Sessions Court, while acquitting the accused, are required to be considered while deciding the present appeal.

11. We have to observe that prosecution case was mainly rest upon oral testimony of PW-1 Motibhai but due to Page 12 of 15 Uploaded by SALIM(HC01108) on Mon May 19 2025 Downloaded on : Mon May 19 22:43:34 IST 2025 NEUTRAL CITATION R/CR.A/795/1999 JUDGMENT DATED: 14/05/2025 undefined following reasons, his evidence is neither trustworthy nor reliable.

(i) The so called incident of beating deceased by accused was taken place on 26.05.1998 but PW-1 - Motibhai has reported such incident to the concerned Police Station on 30.05.1998 at about 18:15 hrs. by giving his written complaint. As such no satisfactory explanation coming forth for delay in filing complaint by PW-1 to police.

(ii) Prior to such complaint, father of the deceased PW-6 - Galabhai has already given his written compliant on 29.05.1998 to police concerned wherein the story which has been narrated by PW-1 in his police complaint was not coming forth. Though, it was clearly stated by him that PW-1 Motibhai has informed that deceased fell down from bed thereby sustained injury, whereas story narrated by PW-1 in his complaint is completely different. So, at relevant point of time, PW-1 had not revealed alleged incident to father of the deceased which he had narrated in his police complaint.

(iii) PW-1 has admitted in his cross examination that villagers of Panderwada gathered near Panderwada bus stand but he did not informed them that accused beaten up deceased Khatubhai. Likewise, he has not informed uncle in-

NEUTRAL CITATION R/CR.A/795/1999 JUDGMENT DATED: 14/05/2025 undefined laws of deceased when he brought deceased to uncle's house that accused beaten up deceased. Moreover, such fact even not disclosed to Doctor when deceased was first brought to Lunawada Saifi Hospital then to Vadodara hospital as the case may be. As such, there was no plausible reasons available with PW-1 not to disclose true story to any of these persons but having not stated at given point of time speaks volume about his conduct as he was accompanied deceased.

(iv) Further, PW-1 has admitted in his cross examination that handle which was alleged to have been used to beaten up deceased by accused shown to him as a Muddamal Article, he denied that such handle was not used for committing crime but in fact it was little smaller than Article of Muddamal shown to him.

(v) Even PW-2 - Ratnabhai has also not supported the case of prosecution as he has stated in his oral evidence that accused had not abused deceased and PW-1 in his presence.

(vi) So, in view of the aforesaid, entire story came in the evidence of PW-1 would not inspire confidence and his conduct is not natural when he himself beaten up by accused on 26.05.1998 but did not reveal incident till 30.05.1998 Page 14 of 15 Uploaded by SALIM(HC01108) on Mon May 19 2025 Downloaded on : Mon May 19 22:43:34 IST 2025 NEUTRAL CITATION R/CR.A/795/1999 JUDGMENT DATED: 14/05/2025 undefined evening to anyone.

11. Thus, after overall assessment of evidence and its re- appreciation as well as reasons assigned by learned Trial Court, we are in complete agreement with view taken by the Trial Court having acquitted the accused by giving benefit of doubt.

12. Considering these set of evidences on record and in light of the aforesaid decision of the Hon'ble Supreme Court as reproduced hereinabove, which deals with the law on acquittal, we are of the opinion that no error has been committed by the Trial Court, Panchmahal, in Sessions Case No. 265 of 1998 while acquitting the respondents.

13. The appeal is accordingly DISMISSED. Resultantly, the impugned judgment and order of the trial court is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings, if called for, be sent back to the concerned Trial Court forthwith.

(NISHA M. THAKORE,J) (MAULIK J.SHELAT,J) SALIM/ Page 15 of 15 Uploaded by SALIM(HC01108) on Mon May 19 2025 Downloaded on : Mon May 19 22:43:34 IST 2025