Gujarat High Court

State Of Gujarat vs Solanki Somaji Kalyanji on 1 August, 2022

Bench: Rajendra M. Sareen

     R/CR.A/502/1999                             JUDGMENT DATED: 01/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/CRIMINAL APPEAL NO. 502 of 1999


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

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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 ?

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                         STATE OF GUJARAT
                               Versus
                 SOLANKI SOMAJI KALYANJI & 2 other(s)
==========================================================
Appearance:
MS CM SHAH, ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,3
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    CORAM:HONOURABLE MR. JUSTICE S.H.VORA
          and
          HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                             Date : 01/08/2022

                         ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN)

R/CR.A/502/1999 JUDGMENT DATED: 01/08/2022

1. The State being prosecuting agency has preferred this

appeal under Section 378 of the Criminal Procedure Code

against the judgment and order dated 05.04.1999 rendered by

the learned Additional Sessions Judge, Mahesana in Sessions

Case No.48 of 1998.

2. Learned APP has produced death certificate of respondent

No.3 - Solanki Chamanji Ranaji, who expired on 17.09.2020.

Said death certificate issued by the Talati - cum - Mantri,

Nan Mota Karanpura / Ratanpura is ordered to be taken on

record. It is to be noted that during the pendency of appeal,

respondent No. 2 also has expired. As such, the appeal qua

respondent Nos. 2 and 3 has been abated and proceeded only

against respondent No.1.

3. The factual matrix of the present appeal is that, as per

the case of the prosecution, between 09.06.1997 and

10.06.1997 from 23:30 hrs till 5:00 a.m. in the morning, in the

house of complainant, incident of robbery took place. As per

the case of the complainant, complainant is residing at

R/CR.A/502/1999 JUDGMENT DATED: 01/08/2022

Sidhhemnagar Society with his family and his mother

Viramtiben aged about 72 years. It is further the case of the

complainant that at the time of incident, when they were

sleeping, his mother Virmatiben suddenly wake up due to the

voice of unidentified accused and therefore, such accused have

tried to stangulate her and also attacked her with knife. As a

result of which, mother of the complainant died. It is also the

case of the complainant that after killing his mother, accused

have stolen gold and silver ornaments, watches and cash from

his house and swept away. It is also the case of the

prosecution that along with robbery and murder in the house

of the complainant, the accused have also looted gold earrings

of the witnesses Niranjanaben, Manjulaben and Chandrikaben.

Complainant under Sections 302, 396, 397, 398 read with

Section 34 of the Indian Penal Code was filed. Accused were

nabbed by the investigating agency. Charge sheet was filed in

the Magistrate Court, Patan. Learned Judicial Magistrate has

committed the case to the Sessions Court. The Sessions Court

after receiving the case papers, framed the charges against all

the accused and recorded the evidence. Prosecution has

R/CR.A/502/1999 JUDGMENT DATED: 01/08/2022

examined in all 23 witnesses and has produced 26

documentary evidence. After the evidence was over, statement

under Section 313 of the Code of Criminal Procedure was

recorded and arguments were heard and thereafter the trial

resulted into the acquittal of the accused persons. Aggrieved by

which the prosecution agency - State has filed the present

appeal.

3.1 As stated above, during pendency of the appeal, accused

Nos. 2 and 3 have expired and appeal against accused Nos. 2

and 3 has been abated, the appeal is hereby decided only

against accused No.1.

4. Learned APP Ms. C. M. Shah appearing for the appellant

- State has vehemently argued that the trial Court has not

considered the evidence in its right perspective and has passed

impugned judgment against the evidence on record of the case.

It is also submitted that the respondent - accused have stolen

the valuable articles and inflicted injuries on the deceased,

considering the seriousness of the evidence, accused ought to

R/CR.A/502/1999 JUDGMENT DATED: 01/08/2022

have been convicted. The trial Court has not appreciated the

evidence to the effect that mudamal article was recovered at

the instance of the accused. It is also submitted that the trial

Court has not believed the evidence of Investigating Officer. As

such, order of the trial Court is required to be quashed and set

aside and it is also prayed to allow the appeal.

5. It would be worthwhile to refer to the scope in acquittal

appeals. It is well settled by is catena of decisions that an

appellate Court has full power to review, re-appreciate and

consider the Evidence upon which the order of acquittal is

founded. However, the appellate Court must bear in mind that

in case of acquittal, there is prejudice 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 reaffirmed and strengthened by the trial

Court.

R/CR.A/502/1999 JUDGMENT DATED: 01/08/2022

6. Considering the submissions of the learned APP, the

evidence laiddown before the trial Court is re-appreciated by

this Court. It is to be seen that though 23 witnesses have been

examined by the prosecuting agency, not a single iota of

evidence is pointed out whereby it can be said that accused is

involved in the crime.

6.1 Considering the evidence of the original complainant at

Exh.20, he is not an eyewitness of the incident. He woke up

in the morning and came to know that incident has happened.

As per his evidence he is not knowing the fact that how the

incident has happened and who is the accused. He has stated

that Gold and Silver ornaments and watches have been stolen.

6.2 Similarly, the family members of the complainant i.e.

wife of the complainant - Mayuriben and sons of the

complainant - Ritesh and Ashish, who are examined at Exh.43,

47 and 48 respectively. They are also ignorant to the fact of

the involvement of the accused.

R/CR.A/502/1999 JUDGMENT DATED: 01/08/2022

6.3 Here in this case it is the case of the prosecution that

some gold ornaments are robbed from the witnesses

Manjulaben, Chandrikaben and Niranjanaben, when they were

sleeping who are examined at Exh.39, 41 and 42 respectively.

These witnesses are residing nearby to the complainant's

house. They are also not able to point out any fact which can

be said to be an evidence involving the accused persons in the

offence.

6.4 Considering the evidence, there is no doubt that robbery

was committed in the night of 09.06.1999 and gold and silver

ornaments were stolen from the house of the complainant and

gold earrings of the three witnesses are also stolen, who are

staying in the nearby area. But here in this case, no Test

Identification parade has been taken place by any of the

witnesses, nor any kind of identification has come on record

during the evidence of any witness. The admitted aspect which

cannot be ruled out is regarding robbery and loot and murder

of deceased Virmatiben which is proved in the evidence of the

Doctor at Exh.44 who has performed post mortem of the

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deceased, which clarifies that death of the deceased was

unnatural death, so the allegations pertaining to offence under

Section 302 of the IPC as raised in the complaint are justified,

but not to the extent of involvement of the accused. Here in

this case learned APP has relied upon the discovery and

recovery of the gold and silver Ornaments at the instance of

the accused. However, to this aspect also it is to be noted that

the Investigating Officer has drawn panchnama regarding

recovery of watches at the instance of accused No.1 at Exh.25,

recovery of watches at the instance of accused No.2 at Exh.26

and recovery of watches at the instance of accused No.3.

Panchnama of recovery of gold earrings of witness

Niranjanaben at Exh.28, recovery of earrings of witness

Manjulaben and Chandrikaben at Exh.29. It is pertinent to note

that all these Panchamas are drawn by the Investigating Officer

and only one Panch witness Allarakha Ahmedbhai is taken as

Panchwitness in all panchnamas, who has turned hostile. One

more panch witness Hasubhai who is examined at Exh.30 is

Panch witness of gold ingot recovered from Soni Dharmabhai

Danabhai which was made after melting the gold ornaments

R/CR.A/502/1999 JUDGMENT DATED: 01/08/2022

who has also turned hostile. Panchnama is produced at Exh.31.

Moreover, panch witness Rajubhai for the panchnama at

Exh.34 wherein gold earrings are recovered from one

Maheshbhai Mulchand who has purchased it from soni, turned

hostile and panchnama is not proved.

6.5 As per the case of the prosecution, accused No.1 has

given watches for repairing through his brother in law

Raybhansinh in one Chhaya Traders from where it was

recovered at the instance of accused No.1 vide panchnama at

Exh.37, Panch witness Umeshbhai Somabhai has not supported

the case of prosecution.

6.6 It is pertinent to note that the entire case of the

prosecution rest upon the recovery and discovery of the

ornaments and watches at the instance of the accused and

though the panch witness turned hostile and it is basic

principle of law that if at the instance of the accused mudamal

is recovered and if the the panch witness turned hostile, it is

the duty of the Investigating Officer to prove the contents of

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Section 27 of the Code of Criminal Procedure of the discovery

panchnama which considering the deposition of the

Investigating Officer here in this case at Exh.59 PW 23 is not

believed.

6.7 Here in this case it is the case of the prosecution that the

watch recovered from Chhaya Traders were given by the

brother in law for repairing. Witness of Chhaya Traders

Pravinbhai examined at Exh.50 has also not supported this

aspect, as he does not know who has given him the watch for

repair.

6.8 Moreover, the investigating officer has not conducted any

TI parade of the brother in law of the accused No.1 before the

witness to ascertain the fact of giving watches by the brother

in law for repairing to the witness. The witness Raybhansinh -

brother in law of accused No.1 is also examined at Exh.52 has

also not supported the case of prosecution.

6.9 As such considering the overall evidence on record

R/CR.A/502/1999 JUDGMENT DATED: 01/08/2022

against the accused laid by the prosecution before the trial

Court, the trial Court has rightly appreciated the evidence on

record, there is no iota of evidence brought on record except

the Panchnamas which are not duly proved to point out the

guilt of the accused and so based upon the entire evidence the

trial Court has rightly acquitted the accused from the offence

alleged against the accused.

7. In a decision of the Apex Court in the case of State of

Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75 ,

the Court has reiterated the powers of the High Court in such

cases. In para 16 of the said decision the Court has observed

as under:

"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

R/CR.A/502/1999 JUDGMENT DATED: 01/08/2022

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 reappreciate 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."

7.1 Similar principle has been laid down by the Apex Court

in the cases of State of Uttar Pradesh Vs. Ram Veer Singh &

Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad

(Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW

5589. Thus, the powers which this Court may exercise against

an order of acquittal are well settled.

7.2 It is also a settled legal position that in acquittal appeal,

the appellate court is not required to re-write the judgment or

to give fresh reasonings, when the reasons assigned by the

Court below are found to be just and proper. Such principle is

laid down by the Apex Court in the case of State of Karnataka

Vs. Hemareddy, reported in AIR 1981 SC 1417.

7.3 Scope of appeal against acquittal is well laid down in case

of Chandrappa and ors. vs. State of Karnataka reported in

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(2007) 4 SCC 415, it was observed:

"42. 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 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."