State Of Gujarat vs Mer Rana Uka
2022 Latest Caselaw 8882 Guj

    R/CR.A/437/1995                                CAV JUDGMENT DATED: 07/10/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 437 of 1995


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE S.H.VORA                                          Sd/-

and

HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN                                Sd/-
==========================================================

1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2 To be referred to the Reporter or not ? NO

3 Whether their Lordships wish to see the fair copy NO of the judgment ?

4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== STATE OF GUJARAT Versus MER RANA UKA & 3 other(s) ========================================================== Appearance:

ABATED for the Opponent(s)/Respondent(s) No. 2,4 MR PARAM R BUCH(5625) for the Opponent(s)/Respondent(s) No. 1,3 ==========================================================

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

Date : 07/10/2022

CAV JUDGMENT

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

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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 20/01/1995 passed by the learned Additional Sessions Judge, Junagadh in Sessions Case No.96 of 1992 acquitting the respondent Nos.1 to 4 - original accused Nos.1 to 4 from the offence punishable under sections 302, 34 and 506(2) of Indian Penal Code.

It is pertinent to note that the appeal against the respondent Nos.2 to 4 - original accused Nos.2 & 4 stood abated vide order dated 12/04/2022. Hence, the present appeal is proceeded against the respondent Nos.1 & 3 - original accused Nos.1 & 3.

2. The crux of the case of the prosecution is as under:-

Accused Nos.1 to 3 are sons of the accused No.4. Accused No.4 is the brother of the complainant Ramabhai. - Rama Mulu - brother of the accused No.4 and original complainant Hardas has died. There was dispute of partition of land amongst the three brothers because the Puja - son of the deceased Rama has not received any share in the land situated at Koyli Math and hence Puja Rama has filed case in the Court for obtaining his share, wherein he succeeded and therefore, original complainant Hardas was

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ready to give share to Puja Rama but the accused No.4 and his sons - accused Nos.1 to 3 were not ready and hence there was dispute.

On 17/05/1992 during the time between 3.00 p.m. and 3.30 p.m. in the sim of village Koyli all the accused in the field which was in possession of the accused No.4 with common intention to kill the deceased, caused injuries to the deceased - Ranmal Hardaswith spear and axe, on account of which the deceased succumbed to the injuries.

3. On the basis of the said complaint, investigation was started, statement of witnesses were recorded, inquest panchnama was carried out, panchnama of scene of offence was carried out, postmortem report was obtained and after through investigation, as there was sufficient evidence against the respondents - accused persons, Chargesheet was filed before the learned Judicial Magistrate, First Class. As the offence committed by the accused persons was exclusively triable by the Court of Sessions as per the provisions of Section 209 of Criminal Procedure Code, the learned Judge was pleased to commit the case to the Court of Sessions and the case was transferred and placed for trial in the court of learned Additional Sessions Judge, which has been numbered as Sessions Case No.96 of 1992. Thereafter, Charge was framed against the accused for the offence punishable under sections 304-B, 498-A, 201 and

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114 of Indian Penal Code. The accused persons pleaded not guilty to the Charges and claimed to be tried. The prosecution, therefore, laid evidence, oral as well as documentary. After the evidence was over, Further Statement of the respondents - accused were recorded under section 313 of the Code of Criminal Procedure and arguments were heard. At the conclusion of the trial, the learned Sessions Judge was pleased to acquit the accused for the charges levelled against them. Hence, the appellant

- State of Gujarat has preferred the present Criminal Appeal challenging the judgement and order of acquittal.

As stated hereinabove, present appeal has been abated against the qua respondent Nos.2 and 4 and hence the present appeal is required to be considered qua respondent Nos.1 and 3 - original accused Nos.1 and 3.

4. Heard Ms.C.M. Shah, learned APP for the State and Mr.Param Buch, learned advocate for the surviving respondent No.1 and 3.

5. Mr.C.M. Shah, learned APP has vehemently submitted that the Sessions Court has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. She has further submitted that the Sessions Court has erred in acquitting the respondent Nos.1 and 3 - accused Nos.1 and 3 from the charges levelled against him.

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She has further argued that the prosecution has proved that the respondent No.1 has committed offence under sections 302, 34 and 506(2) of Indian Penal Code. She has further argued that Sessions Court has acquitted the respondent accused merely on some minor contradictions and omissions in the evidence of the witnesses. She has further argued that the trial court has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. She has further argued that the offence punishable under sections 304-B, 498-A, 201 and 114 of Indian Penal Code, is made out, however, the same is not believed by the Sessions Court. She has further argued that though the prosecution witness has supported the case of the prosecution, the trial court not believed their evidence and acquitted the accused erroneously. She has requested to allow the present appeal.

6. Mr.Param Buch, learned advocate for the respondent - original accused has submitted that there is hardly any substance in the submissions of learned APP. There is no evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses. The trial court has rightly appreciated the evidence on record and held that the prosecution has failed to prove the case beyond reasonable doubt and rightly acquitted the accused. He has requested

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to dismiss the present appeal.

7. Heard advocates for the respective parties and perused the impugned judgement and order of acquittal and re- appreciated the entire evidence on record.

8. Before adverting to the facts of the case, 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.

9. On re-appreciation of the evidence on record, it appears from the deposition of Manjuben Karsanbhai PW No.1 Ex.21 that the presence of eye witness on the spot is doubtful as multiple contradictions are found in her statement. She also stated that other family members came after the alleged incident took place. Therefore, none of the

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other witnesses can even be considered as eye witnesses. Her presence at the place of offence is doubtful. She changes her statement as to whether she caused clamor on seeing the scuffle. She does not know the name of her maternal grandfather. There is change of version as to whether she knew the motive behind the whole incident. In the statement to police, she stated she does not know why deceased was killed. Later the same is changed to the fact that there was a family dispute and she knew about it.

10. Mr.Gangabhai Kanabhai PW No.2 is examined at Ex.22. He has admitted in his cross-examination that he was not present at the scene of offence, There are contradictions in his deposition and statement recorded by the investigating officer. There are difference as to number of blows in testimony at Exh. 22 and 23. The niece said 2-3 blows given. Mr.Gangabhai testifies that only one blow was given by each accused. Further testifies that he was alone at the farm when the incident happened. Gangabhai says he was also present. He testifies initially that he saw Ranmal- deceased being hit by the accused persons. However later he changes his stand and testifies that he only saw Ranmal. There are major contradiction in the testimony of Kaliben Meru. She narrates and admits that she could not see the place where the deceased was lying from the place where she was sitting. She also admits that she didn't state in her statement before the police that after Munki had created

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clamor they went to the place of the offence.

11. Merubhai Hardasbhai PW No.4 is examined at Exh.

27. He states that there was no scuffle or fight prior to the present incident about the land and partition. Hence, motive is negatived. Mr.Siddi Natha said four persons had beaten the accused and that he saw the whole incident. Therefore, the testimony of this witness was not believed as eye witness to the incident.

12. Valiben Ranmalbhai PW No.5 is examined at Exh. 28. She has stated that all four accused persons had surrounded the deceased and had beaten him. She has not narrated the incident.

13. Savdas Rayde PW No.6 is examined at Exh. 29. He is the brother-in-law of the deceased and is declared hostile.

14. Rama Abha PW No.7 is examined at Exh. 30. He is relative of the accused persons and is declared hostile.

15. Dr. Prabhakar Vasavda PW No.8 is examined at Exh.

32. he has stataed that the blows given by axe caused simple injuries whereas the wound caused by bhala is the fatal wound.

16. Investigating Officer Joravarsinh Manusinh Chavda

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PW No.19 is examined at Exh. 54. He has stated that the incident was that of scuffle and free fight between the accused and the deceased. Though Visa Hardas - real brother of the deceased had informed him with regards to the incident of scuffle and free fight and alleged to be an eye witness also. However, he is not examined as witness. This witness accepts that no entry was made in the station diary in respect of information given by Visa Hardas. This witness accepts that he has not inquired with reference to Junagadh Police Station as to whether any complaint of the incident was given to them by anyone or by Junagadh Civil Hospital. This witness also accepts that he had travelled from Vanthali to Junagadh. He also accepts that the inquest panchnama Exh. 40 begins with the words, that the dead body of the deceased was lying in the PM room, Junagadh Civil Hospital, which occurred as the result of free fight. He also accepts the fact that the statement of Sarman Ganga was not taken as he did not deem it proper. He admits that the accused Balu Uka was brought to the Civil Hospital Junagadh on 17.05.1992 for treatment and that when he was arrested on 18.05.1992, there was a hospital bandage tied on his hand. That Balu Uka had also received treatment at Vanthli Civil Hospital. The I.O. had also obtained the medical certificate of the injury sustained by the accused person and had also recorded further statement of witnesses thereof. He also accepts the fact that the Medical Certificate of the accused person reflects the injury that can

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be sustained by sharp edged weapon.

17. From the above, it is clear that that there are material contradictions in version of all the witnesses. Not a single witness has affirmed the manner in which the whole incident took place. Looking into the testimonies stated above, it can be clearly found out that even the presence of the eye witnesses on spot was doubtful.

18. That the prosecution has utterly failed to establish the fact that there was any intention and motive on part of the accused person to kill the deceased and that the offence was undertaken by the accused person in furtherance to common intention and with a motive to kill the deceased.

19. That the motive of the whole incident being a land dispute has been negated in view of the changed testimony of Manjuben Karsabhai and the Testimony of Merubhai who was the brother of the deceased person.

20. Not a single panch witness has supported the case of the prosecution and under such circumstances the case of the prosecution becomes highly doubtful.

21. Further, even when it is admitted that the incident took place in broad day light at around 3:00 PM, not a single independent eye witness has seen the incident nor

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has any of such witness been examined by the prosecution. Even when Rama Abha is examined at Exh. 30, he clearly says that he is not aware about any incident of killing of the deceased Ranmal.

22. There is no substantial evidence connecting the accused persons to the offence in question.

23. That there is a contradiction in testimony of the eye witness and that of the Doctor at Exh. 32 where the doctor has clearly said that there was only one fatal wound of spear (Bhala) otherwise all other wounds were ordinary in nature.

24. That the prosecution has miserably failed to prove accusations against the accused persons beyond reasonable doubt and therefore the learned Sessions Court has rightly acquitted the Accused persons.

25. Considering the entire evidence on record oral as well as documentary, we are of the opinion that the prosecution has failed to prove the case against the accused by leading cogent and convincing evidence. 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

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from the judgement. The judgement does not suffer any material defect or cannot be said to be contrary to the evidence recorded.

26. 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 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

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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

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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 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

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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 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

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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."

27. 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

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trial Court, it might have taken a different view.

28. 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',

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'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."

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29. 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.

30. In view of the above and for the reasons stated above, present Criminal Appeal deserve to be dismissed and is accordingly dismissed qua respondent Nos.1 and 3.

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(S.H.VORA, J)

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