Statae Of Gujarat vs Aher Lakhman Hardas
2022 Latest Caselaw 7073 Guj

    R/CR.A/555/1998                                CAV JUDGMENT DATED: 08/08/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 555 of 1998


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE S.H.VORA

and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
==========================================================

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 ?

========================================================== STATAE OF GUJARAT Versus AHER LAKHMAN HARDAS & 8 other(s) ========================================================== Appearance:

ABATED for the Opponent(s)/Respondent(s) No. 8,9 HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 2,5,6,7,8,9 MADANSINGH O BAROD(3128) for the Opponent(s)/Respondent(s) No. 2,5,6,7 MR PR ABICHANDANI for MR CR ABICHANDANI(2421) for the Opponent(s)/Respondent(s) No. 1 NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 3,4 ==========================================================

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

Date : 08/08/2022

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

R/CR.A/555/1998 CAV JUDGMENT DATED: 08/08/2022

1. Present Criminal Appeal has been preferred by the appellant - State of Gujarat under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 20/03/1998 passed by the learned Additional Sessions Judge, Porbandar in Sessions Case No.32 of 1993 acquitting the respondents - original accused Nos.1 to 9 - original accused Nos.1 to 9 from the offence punishable under sections 307, 147, 148, 149, 353 and 504 of Indian Penal Code and under section 25(1B) of the Arms Act and under section 135 of the Gujarat Police Act.

2. Facts of the case, in brief, are as under:-

On 06.02.1993, the police party headed by PSI, Shri V.R.Aagath was in a police matador passing near Gosabara bridge near Mokar village of Madhavpur Taluka of Porbandar district returning from village Balej where the police party had gone for investigation of offence under section 302 of Indian Penal Code. Late at night about 11.30 they saw that three trucks were coming from the opposite side. The lead truck had its lights on whereas the other two trucks did not have lights on. The police got suspicious. They signaled to the first truck by flashing their lights to stop. The first truck did not stop immediately. Instead, the vehicle crossed the police matador and stopped a little

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further ahead. The other two trucks, in the meantime, had stopped before the police vehicle. From the lead truck, about 9 or 10 people got down and stood close to their truck. 4 or 5 people got down from the other two trucks and joined the others who had got down from the lead truck. Out of the group, Mamumiya Panjumiya @ Umarmiya, accused No.1, against whom a separate chargesheet was filed, was carrying pistol and as per the case of the prosecution, accused No.1 and 9 were carrying knife. Mamumiya Panjumiya fired thrice from his pistol in the direction where the police party was standing. In retaliation, PSI Shri Aagath fired from his service revolver. Initially, he fired in the air but even then Mamumiya Panjumiya fired two more times. The PSI aimed at the mob and fired twice. In the commotion that ensued, some five people got into the two trucks behind and managed to escape. Others ran towards the road side bushes leaving the first truck behind. The police managed to catch accused accused Nos.1 and 2 at the scene of offence. However, other seven accused were left. Against the accused Nos.1 and 2, Sessions Case No.32/993 was tried and against respondent Nos.8 and 9 Sessions Case No.1/1994. The learned Additional Sessions Judge, Porbandar by judgement dated 20/3/1998 acquitted all the accused, against which the present appeal is filed by the State.

3. The Sessions Case was filed, which was committed to

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the Sessions Court under Section 209 of the Code of Criminal Procedure. The trial was commenced. Charge was framed for the offence under sections 307, 147, 148, 149, 353 and 504 of the Indian Penal Code and under section 25(1)(B) of the Arms Act and under section 135 of the Gujarat Police Act.

4. But what was the motive of the respondents accused or other persons against whom the other cases are filed for the occurrence of this incident, is not clarified.

5. It is the case of the prosecution that when the trucks were intercepted and 10 persons were boarded down from the truck wherein accused No.1 Mamumiya was having fire arm and respondent Nos.1 and 9 were having knives. No evidence has been brought on record that any of the other accused persons were having any arm.

6. It is also the case of the prosecution that firing started and Mamumiya Panjumiya opened fire and in retaliation, PSI Aagath fired from his service revolver. Witnesses Manubhai Shamjibhai and Rasikbhai Babubhai, who were members of the police party, have deposed that in retaliation PSI Agath opened fire in air and during that time, there may be cross firing also towards the vehicle in which the police party was returning and at the same time, there were cross firing towards the accused persons also.

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7. It is also on record that the incident has occurred at 11.30 in the midnight on the Highway where obviously there may not be any light. If such a condition was there, for the sake of argument if firing is done from both the sides due to the occurrence it must have been done without target, without any aim and without any idea as to where the bullets are going.

8. It is also to be noted that the police party had gone for investigation of offence under section 302 of Indian Penal Code in a private Matador and firing was done from the side of the Matador in the dark where the accused were standing and from the dark side, firing was done towards the police party, as they were standing besides the Matador.

9. As mentioned hereinabove, there must be possibility of heating the bullets to the Matador also, as due to the darkness, there was no idea where the bullets were going. As such in this case, no panchnama of Matador has been drawn by the prosecution from which it can be believed that Matador was used and police party were returning in the Matador after investigation.

10. As per the case of the prosecution, cross firing was done. There were 5 police personnel with the PSI in the Matador but not a single bullet coming from the accused

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side hit any of the police personnel though the firing was done by the accused in the darkness.

11. Two shells were found nearby the bridge at the distance of nearly 150 to 200 feet away from where the first truck had stopped and near to which accused No.1 Mamumiya had allegedly fired. As such, considering the panchnama and evidence on record, the story of prosecution is found to be improbable.

12. Here in this case, it is also to be noted that the driver of the Matador, who was present at the time of incident accompanying the police party named Kishorgiri has not been examined and has been dropped by the police. Hence, adverse inference and the same creats doubt about occurrence of the alleged incident.

13. It is the case of the prosecution that the accused Nos.1 and 2 have been caught at the time of incident but they were shown arrested on the next day at 10.30 p.m. i.e. after a span of 10 to 11 hours.

14. So far as the other accused Nos.3 to 7 / respondent nos.3 to 7 and deceased respondent Nos.8 and 9, is concerned no Test Identification Parade has been conducted by the prosecution and not a single witness has identified the accused nos.3 to 7 in the Court.

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15. As discussed hereinabove, there is no overt act against the respondent nos.1 and 2 and also against the respondent Nos.3 to 7 is proved. It is also to be noted that, as per the evidence on record, no recovery or discovery against the respondent Nos. 1 and 2 is proved.

16. It is also pertinent to note that the genesis of the offence as per the case of the prosecution is that firing was done by the accused No.1 named Mamumiya Panjumiya and on that basis, the prosecution has filed the FIR for the offence of attempt to murder. After appreciation of evidence in the Sessions Case against the accused No.1 Mamumiya, the learned Sessions Judge convicted the the accused No.1 Mamumiya, whereas all other accused in all the Sessions Cases have been acquitted. The original accused No.1 Mamumiya challenged the conviction by way of filing Criminal Appeal No.1714 of 2008 and vide order dated 21/8/2013, the co-ordinate Bench of this Court has set aside the conviction and the sentence and acquittal appeals filed by the State except the present one were also dismissed. In the event, the root of the entire case which arises due to the firing done by the original accused No.1 Mamumiya and case for the offence under section 307 is filed against all other accused, is not proved and when the the conviction of the Mamumiya is also set aside, this entire case of the prosecution also does not remain.

17. Considering the entire evidence on record, we are of the opinion that the prosecution has failed to prove the case

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against the accused by leading cogent and convincing evidence for the allegation that the accused formed unlawful assembly with common object and committed the alleged offence. The judgement delivered by the Sessions Judge is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial court has been rightly appreciated by the trial court. No apparent error on the face of the record is found from the judgement. The judgement does not suffer any material defect or cannot be said to be contrary to the evidence recorded.

18. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-

"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :

"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal

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jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:

"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be

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no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:

"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."

28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:

"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."

"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken

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by the High Court."

8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:

"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."

19. 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 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.

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20. Scope of appeal against acquittal is well laid down in case of Chandrappa and ors. vs. State of Karnataka reported in (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.

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(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."

21. 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.

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

(S.H.VORA, J)

(RAJENDRA M. SAREEN,J) R.H. PARMAR