State Of Gujarat vs Bhimaji @ Premaji Manji Majirana
2022 Latest Caselaw 4138 Guj

     R/CR.A/41/1995                                   CAV JUDGMENT DATED: 13/04/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL APPEAL NO. 41 of 1995


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE S.H.VORA

and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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

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 ?

========================================================== STATE OF GUJARAT Versus BHIMAJI @ PREMAJI MANJI MAJIRANA & 1 other(s) ========================================================== Appearance:

MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the Appellant ABATED for the Opponent(s)/Respondent(s) No. 1 MR HIMANSU M PADHYA(1611) for the Respondent(s) No. 2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE S.H.VORA and HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 13/04/2022

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE S.H.VORA)

1. Feeling aggrieved and dissatisfied with the judgment and

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order of acquittal dated 4.3.1994 passed by the learned Addl. Sessions Judge, Banaskantha @ Palanpur in Sessions Case No.37 of 1993, whereby the respondents accused came to be acquitted for the offences under section 302, 34, 114 of Indian Penal Code, the appellant - State has preferred present appeal under section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short).

2. Brief facts of the complaint as per complainant is such that the name of the mother of the decesaed Mafaji is Khemiben. Said Khemiben has two sisters viz. Shantaben and Paruben and their mother's name is Kesriben, who was the first wife of Aaidanji Navaji and name of second and third wife of Aaidanji Navaji was Lavangaben and Lilaben respectively. Said Kesriben had expired, whereas Lavangaben and Lilaben are alive. Since Aaidanji has no heir, he adopted deceased Mafaji, son of his daughter Khemiben, when Mafaji was five years old. Said Aaidanji possessed land admeasuring 40 vigha. That accused No.1 Bhomaji, husband of Paruben oftenly said that he has 1/6th share in the aforementioned land and he has demanded his share from the deceased Mafaji and for that, a scuffle also took place between respondent accused No.1 and deceased Mafaji. It is the case of the prosecution that after adoption of deceased Mafaji, the possession of the aforementioned land was handed over to deceased Mafaji. That Shantaben and others have relinquished their rights from the aforementioned land. Thereafter, compromise is arrived at and Rs.25,000/- cash has been given to accused No.1 being the share of Paruben. However, the accused No.1 did not like said compromise and therefore, he used to quarrel with deceased Mafaji. That

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Paruben has also filed revenue apppeal before the Deputy Collector, Palanpur alleging that her name is wrongly deleted from the land in dispute. Thereafter, the village people intervened and told the accused No.1 for compromise. That on on the day of incident between 9:00 p.m. and 10:00 p.m.,, after taking meal, deceased Mafaji went for worship at the Otla of Ramdevpir. That at 12:00 a.m. in midnight, Shardaben - wife of Mafaji and Lavangaben suddenly wake up after hearing shouts of Mafaji, which was coming from the Otla of Ramdevpir. Thereupon, they went to the place of incident and saw the respondents accused standing at the place of offence having dharia and dagger in their hands. Thereafter, both the accused ran away from the scene of offence. Thereafter, Lavangaben went to the complainant Savabhai, whose field is adjacent to the place of offence and informed him about the incident. Thereupon, complainant Savabhai rushed to the place of incident where he found Mafaji dead, neck of Mafaji was cut and blood was oozing out from the body. Thus, FIR being C.R.No.I- 339 of 1992 came to be registered against the respondents accused for the offence under section 302, 114, 34 of IPC.

3. In pursuance of the complaint being C.R.No.I- 339 of 1992 lodged by the complainant with the Deesa Police Station for the offence under sections 302, 114, 34 of Indian Penal Code, the investigating agency recorded statements of the witnesses, drawn panchnama of scene of offence, discovery and recovery of weapons for the purpose of proving the offence. After having found sufficient material against the respondents accused, charge-sheet came to be filed in the Court of concerned learned JMFC. As said Court lacks jurisdiction to try the offence, it

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committed the case to the Sessions Court, Banaskantha @ Palanpur as provided under section 209 of the Code.

4. Upon committal of the case to the Sessions Court, Banaskantha @ Palanpur, learned Sessions Judge framed charge at Exh.3 against the respondents accused for the aforesaid offences. The respondents accused pleaded not guilty and claimed to be tried.

5. In order to bring home charge, the prosecution has examined 09 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 2 & 3 of the impugned judgment and order.

6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondents accused so as to obtain explanation/answer as provided u/s 313 of the Code. In the further statement, the respondents accused denied all incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them.

7. It appears that during the pendency of present criminal appeal, respondent No.1 - original accused No.1 Bhomaji @ Premaji Manji has expired on 6.12.2007 and therefore, present criminal appeal qua respondent No.1 - original accused No.1 Bhomaji @ Premaji Manji stood abated by virtue of order of Coordinate Bench of this Court passed on 15.10.2015.

8. We have heard learned APP Ms. Shah for the appellant - State and learned advocate Mr. Himanshu Padhya for

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respondent No.2. We have minutely examined oral and documentary evidence adduced before the learned Trial Court.

9. Learned APP submits that the learned trial Court has erred in not appreciating the evidence of two witnesses, namely Shardaben, widow of deceased Mafaji examined at Exh.11 and Lavangaben examined at Exh.15. According to her, these two witnesses have seen the respondents accused running away from the scene of offence after committing murder. The learned trial Court ought to have considered the fact that said two witnesses are uneducated persons and ought to have believed their evidence, more particularly, the incident in question has occurred in midnight and the scene of offence is in jungle area. It is also submitted by her that the learned trial Court has failed to appreciate that there was some dispute between the deceased and the respondents accused regarding the land property and thus, the motive was really established before the learned trial Court and therefore, order of acquittal is improper and unjust. At the end, she urged to reverse the order of acquittal.

10. Per contra, learned advocate Mr. Himanshu Padhya appearing for the respondent No.2 submits that no case is made out by the State to interfere with the findings recorded by the learned trial Court, more particularly, in para 8 to 11 and therefore, he submits that two prosecution witnesses referred to by learned APP are not reliable witnesses so as to infer that they have scene the actual occurrence of the incident as deposed by them before the learned trial Court. He further submits that because of land dispute, false FIR came to be registered against the present respondents accused after consultation with the Sarpanch of the village and further, the investigating officer

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failed to record the FIR at the earliest point of time, for which, the learned trial Court has made detailed observations in its judgment under challenge. At the end, he urged to confirm the order of acquittal.

11. Before we analyze and re-appreciate the evidence of two prosecution witnesses, namely Shardaben, widow of deceased Mafaji examined at Exh.11 and Lavangaben examined at Exh.15, we would like to reproduce the findings of the learned trial Court recorded after due appreciation of evidence, more particularly of these two witnesses, which is freely translated in English and which reads as under:

"8. Issue No - 2.

The prosecution relies especially on two witness for its case. First, Shardaben, the widow of Mafaji Aaidanji with Exhibit - 11 and Lavangaben Lakhabhai, the widow of Aaidan Navaji with Exhibit - 15. As per the statement of the prosecution, both of the said witnesses were sleeping at their house. They have built their house in farm. At that time, they heard shouting and both of them got awaken. Hearing the shouting, they ran towards the platform of Ramdevpir. At that time, Shardaben saw that both the accused persons were stepping down the platform. Thereafter, both of them stepped down with the scythe and the knife and ran away towards the rivulet. It has been found from the deposition of witness Lavangaben that her eyesight is weak. Shardaben had told Lavangaben that both the persons, who ran away, were Accused No - 1 and Accused No - 2. Lavangaben had seen two persons running away. But it appears from her deposition that she had not seen the persons who were running away, but Shardaben had given their names. However, both the said witnesses are not eyewitnesses. The case of the prosecution is also not like this. Both the witnesses have rushed to the platform of Ramdevpir on hearing the shouting of deceased Mafaji and they have seen the accused persons running away. Except this, they have not seen accused persons or any of them inflicting the blow.

The prosecution has not produced any evidence as to how the incident took place. The incident has taken place around 12 to 1 o'clock in night. That night was between Margshirsh

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Sud 13 and 14 and Shardaben has stated that she identified the accused persons in that light. It does not appear to be safe to rely upon such identification. Because the place of the incident is 260 feet far from the house in which Shardaben was sleeping. Further, there are many Neem trees surrounding the said platform. Moreover, there is a rivulet near the said platform, which is around four to five feet deep. It has been mentioned in the panchnama and the map of the place of the incident that there are trees at three sides of the platform. Further, it also appears from the depositions of witnesses Shardaben and Lavangaben that the condition near the place of the incident is similar to the forest. There are thickets and berries in the rivulets and on the cliffs at the bank of Banas river. Further, it has also been found from the evidences that there are babool and other trees. It has also appeared from the deposition of Lavangaben that there are many trees at the temple of Shankar, the platform of Ramdevpir, the rivulet and in their farm and it is almost a forest like place. Moreover, both the witnesses woke up after hearing the shouting. Shardaben ran ahead and Lavangaben followed her. Further, Shardaben has not stated during the police investigation that the said shouting was done by her husband. It has been proved by drawing her attention towards this contradiction. However, even if this fact is not considered as important, it cannot be believed in any circumstances that, the accused persons could have been identified by both the witnesses under the moonlight in such circumstances.

9. Moreover, Shardaben has stated in her deposition that both the persons were running and at that time, their back was towards me. She has also stated in her deposition that she did not know as to who was running ahead and who was behind. It can not be believed that after hearing the shouting, she ran about 250 feet and the accused persons stayed at the place of incident till then. Moreover, Shardaben has stated in her deposition that she was asleep and after hearing the shouting, she ran and saw the accused were persons stepping down, two steps platform. In her statement recorded before police, she has not dictated that the accused persons were stepping down from the platform. Her attention was drawn to this contradiction and the same is proved. Some of the contradictions at para 6 of her deposition have been asked to her and such contradictions are significant. It is proved through the deposition of the Investigating police officer. She has accepted some of the contradictions. Moreover, in her statement recorded before police, she has dictated that she identified the accused persons in the moon light. Thus, it is not surfaced from the

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deposition as to what other type of light besides it, was there to identify the accused persons. The witness Shardaben has made important changes in her deposition. It is a very important change that she herself saw the accused persons stepping down the platform. She had not stated this fact at the stage of police investigation. However, this is not the only circumstance on the basis of which, the deposition of Shardaben can not be believed but after consolidating all the circumstances, it becomes clear that reasonable doubt arises on every stage in the case of prosecution.

10. It is also surfaced from the evidence that the witness Lavangaben is weak in hearing and vision. She is 65 years old. It is surfaced from the deposition that she rushed to the complainant after the incident and told him the fact and the complainant immediately reached to the scene of offense. Thereafter, Lavangaben and the complainant Sava Kachara, both had gone to the house of Sarpanch- Cyrusbhai, but Cyrusbhai was not present at the house and his father Marzbanbhai was present. It is surfaced from the deposition of Marzbanbhai that at about 02:00 o'clock in the night, Lavangaben, the complainant-Sava Kachara and his family members went to his house and informed about the incident. They told that both the accused persons have killed Mafa. Thereafter, at the behest of the complainant and Lavangaben, Marzbanbhai went to the police station. The complainant-Sava Kachara, Nagraji Bhana, Masru Bhana, Rasik Shankar and Marzbanbhai went to Deesa Taluka Police Station in the motor of Marzbanbhai. The police inspector was not present there and therefore, they went to his house. It was about half past two or three o'clock in the night. They woke up the inspector at his house and witness Marzbanbhai declared the fact of the incident. All these facts have been carved out of the evidence. It makes it clear that the complainant, Marzbanbhai and other persons have gone to the house of Inspector Mr.Rav at half past two or three o'clock in the night, informed him about the incident and despite that, Mr. Rav has not recorded any fact. He went to the police station at seven o'clock in the morning and recorded the complaint of the complainant. However, it cannot be believed that the said complainant was given at seven o'clock because a copy of the said complaint was reached to the Learned Magistrate at eleven o'clock in the morning on that day. The quarter of the Magistrate is hardly half kilometer far from the Deesa Taluka Police Station. Moreover, the complaint has been recorded on the blank page. When the complaint is recorded in the police station, as per the provision of Section-154 of the Cr.P.C., the complaint is required to be recorded in the prescribed form,

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but the said complaint has been recorded on the blank page, which is significant. There was no reason to record the complaint on the blank page despite of having prescribed form. Moreover, the entire version of the incident has been narrated before Inspector Mr. Rav at half past two to three o'clock in the night, despite that, he has not made any effort or taken care to record the complaint till seven o'clock in the morning. All these circumstances are significant. Inspector Mr.Rav has been cross-examined in this regard at length, which is at Para-12 of his deposition. The witnesses have stated the facts of the incident to him at his doorsteps, despite that, he has not arranged to go to police station to record the complaint immediately. Moreover, he has not instructed the police station officer to record the complaint. It is surfaced from his deposition that he is provided government vehicle with wireless set, despite that, he had not given any information to the police station through wireless set. There was no reason to make the complainant wait at police station. Thought the fact of murder was declared, the negligence shown by the Police Inspector Mr.Rav cannot be taken for granted under any circumstances. The entire police investigation raises doubt and affects the genuineness of the prosecution case badly. Witness Marzban has stated that he informed about the incident to Inspector Mr.Rav in detail, whereas, Inspector Mr.Rav hides this fact and states only that Marzbanbhai told him that the murder took place. Despite that Mr. Rav has not taken care to get the information as to who has been murdered, who has murdered, from where Marzbanbhai received the said information, where is the scene of offense, where it is situated, how the murder took place and in which village the murder took place etc. All these circumstances are very significant and the whole police investigation leads towards doubt. Method of lodging complaint, report of Section-157 of Cr.P.C., deposition of the witness Marjbanbhai and deposition of Police Inspector Shri Rao, if all these circumstances are consolidated, one fact becomes clear that the complaint has been registered late. Inspector Shri Rao has been informed at 2.30 to 3.00 O'clock in the night and fact of murder has been declared and however, the matter of surprise is that the complainant's complaint is not registered till 7:00 O'clock of morning. The said fact clearly proves that many negotiations has been taken place before registering the complaint. All the facts have been arranged. Thereafter all these individuals have gathered. The complainant Nagraj Bhanaji, Masur Bhana, witness Mrzbanbhai, etc., have gathered and the complaint is registered late at 7:00 O'clock in the morning at Disa Taluka Police Station. In this resolution, as mentioned above, all

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these circumstances create reasonable doubt. There are significant defects in the case of the prosecution case which cannot be denied under any circumstances. Whole police investigation is conducted exparte. Inspector Shri Rao has not taken due care. Under all these circumstances, I do not deem fit to keep trust and reliance in the case of the prosecution. The prosecution case and deposition of the witnesses should be of such kind that can establish trust of the Court. Not only the Courts but deposition should be of such kind that can establish trust of general public.

11. With respect to a motive behind the incident, it has been stated that, the land of Aaidanji had been given to deceased Mafaji and he used to cultivate the land. Paruben, the wife of the accused No.1 had submitted that she has one sixth share in the land and due to which, the accused persons and deceased Mafaji had objection. A compromise was arrived at in this regard and the accused No.1 was given Rs.25,000/-. The complainant has stated in his deposition that a document was prepared in this regard. But, no such documents has been produced in this case. It is a case of prosecution that, despite the compromise, the accused persons had an objection and Paruben filed a Revenue Appeal in the Office of the Deputy Collector, Palanpur and such evidence has been produced. Thus, at the most, it can be said that the prosecution has produced some evidence regarding the motive behind the incident. Even if it is presumed that there was a motive, only on that basis, it cannot be presumed that the offence has been committed by the accused persons. However strong may be the motive behind the incident, it cannot replace the proof."

12. In order to consider the submissions made by learned APP at bar, it requires to be noted that the incident took place at midnight, there is no evidence as to availability of any light at the scene of offence, the place of incident is surrounded by lots of trees and said prosecution witnesses, more particularly, witness Shardaben witnessed the incident at the distance of 250 feet as per her deposition. It has come on record that said Shardaben has seen the accused persons running away from behind and not running towards her. One more important unnatural conduct noticed by us is such that at the time of

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alleged incident, the children of Shardaben were sleeping in the house and despite such incident being witnessed by Shardaben, she did not see that her children are awaken. According to her deposition, in para 3 she specifically stated that the age of her elder son Majuji is 19 years. Said witness thought it fit not to disturb her son despite the fact that her husband has been done to death. This conduct is unnatural to great extent. Further, we have found that witness Lavangaben has eye problem and further, as per the statement of Shardaben, she informed her that the accused have committed murder of her husband Mafaji. Bearing in mind the aforesaid conduct and findings recorded by the learned trial Court in para 8 to 11, the learned trial Judge has rightly acquitted the respondents - accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal.

13. Except relying upon two prosecution witnesses, as aforesaid, no any other direct evidence either oral or documentary is pressed into service to interfere with the findings of the learned trial Court leading to acquittal of the respondents accused. When substantial evidence is lacking to connect the accused with the crime or not brought on record sufficient evidence to establish the guilt, other corroborative evidence loses its significance or needs any consideration to upset the findings and therefore, there is no need to overburden the judgment anymore or needs any discussion of such evidence.

14. 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

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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 instant case, the learned APP for the applicant has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

15. 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."

16. 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

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that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is 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.

17. 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.

18. In view of the above and for the reasons stated above, present Criminal Appeal deserves to be dismissed and is accordingly dismissed.

(S.H.VORA, J)

(SANDEEP N. BHATT,J) SHEKHAR P. BARVE