State Of Gujarat vs Bhathiji Punjaji Makwana
2022 Latest Caselaw 9295 Guj

    R/CR.A/972/1996                                 CAV JUDGMENT DATED: 20/10/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 972 of 1996


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 ?

========================================================== STATE OF GUJARAT Versus BHATHIJI PUNJAJI MAKWANA & 4 other(s) ========================================================== Appearance:

MR MC BAROT(144) for the Opponent(s)/Respondent(s) No. 1 ==========================================================

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

Date : 20/10/2022

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 31/07/1996 passed by the learned Additional Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No.101 of 1994 acquitting the respondent Nos.1 to 5 - original accused Nos.1 to 5 from the offence punishable under sections 147, 148, 149, 451, 302, 504, 324 and 323 of Indian Penal Code.

It is pertinent to note that the appeal against the respondent Nos.2 to 5 - original accused Nos.2 to 5 has been dismissed at the time of admission of the appeal vide order dated 13/12/1996. Hence, the present appeal is proceeded against the respondent No.1 - original accused No.1.

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

As per the complaint, the complainant is residing at Village Vadvasa and is doing agricultural operations. He has three sons. The elder is Prabhatsinh, middle Suryasinh and younger one is Balvantsinh. Prabhatsinh and Suryasinh are married and residing separately. Balvantsinh is residing with the complainant.

As per the complainant, in the evening of 12/09/1994 when the complainant was at his house, accused No.3

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Arjanji Babaji after consuming the liquor was using abusive language in public, hence the complainant scolded him and therefore, in fury he started to give filthy abuses. Therefore, the complainant has given an application against him before the Prantij Police station on 13/9/1994. Keeping vengence of the same, at 11 AM on 14/9/1994 when the complainant, his wife Laxmiben, his sons Prabhatsinh, Suryasinh, Balvantsinh and wife of Prabhatsinh Kesharben and wife of Suryasinh Alkhiben were present at home, at that time accused No.1 Bhathiji Punjaji, accused No.2 Laxmanji Pujaji, accused No.3 Arjanji, accused No.4 Lalaji Salaji and accused No.5 Chaturji Babaji Makwana came towards his house with Dhariya, spear, sticks and assaulted on him and standing in front of his house, they were giving filthy languages and were saying that where is Masangji, come out. The complainant asked them not to use filthy abuses and hence accused No.1 inflicted Dhariyablow on the head of Prabhatsinh as a result, Prabhatsinh became unconscious and fell down in bleeding condition and at that time Suryasinh and complainant came to rescue Prabhatsinh accused No.2 Laxmanji inflicted spear blow on the palm of left hand of Suryasinh. Accused Nos.3, 4 and 5

- Arjanji, Lalaji and Chaturji inflicted stick blows to the complainant and therefore wife of the complainant and wives of his sons intervened, the accused left the place saying abusive words. Thereafter, Prabhatsinh was taken to Vavasadapatiya on scooter and from where he was taken to

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Prantij Government Hospital in Car and from where he was transferred to Himmatnagar Civil Hospital where the Doctor declared him dead. Hence, the complainant has lodged the complaint for the aforesaid offences.

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 respondent - accused, Chargesheet was filed before the learned Metropolitan Magistrate. 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.101 of 1994. Thereafter, Charge was framed against the accused for the offence punishable under sections 147, 148, 149, 451, 302, 504, 324, 323 and 34 of Indian Penal Code and under section 135 of Bombay Police Act. The accused 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 accused were recorded under section 313 of the Code of Criminal

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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 above, since the appeal against the respondent nos.2 to 5 was dismissed at the admission stage, present appeal is required to be considered qua respondent No.1 only.

4. Heard Ms.C.M. Shah, learned APP for the State and Mr.Tejas Barot, learned advocate for the surviving respondent accused.

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 No.1 accused No.1 from the charges levelled against him. She has further argued that the prosecution has proved that the respondent No.1 has committed offence under sections 147, 148, 149, 451, 302, 504, 324, 323 and 34 of Indian Penal Code and under section 135 of Bombay Police Act. She has further argued that Sessions Court has acquitted the respondent

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No.1 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 147, 148, 149, 451, 302, 504, 324, 323 and 34 of Indian Penal Code and under section 135 of Bombay Police Act., is made out against the respondent No.1, 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 respondent No.1 - accused No.1 erroneously. She has requested to allow the present appeal.

6. Mr.Tejas Barot, learned advocate for the respondent No.1 - original accused No.1 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 against the respondent No.1 beyond reasonable doubt and rightly acquitted the accused. He has requested to dismiss the present appeal.

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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 that the prosecution examined witnesses but mainly three witnesses namely, 1. Masangji Kuvarji Makvana - P.W. 6 Ex-33, - Complainant, 2. Suryasinh Masangji Makvana - P.W. 8 - Ex. 36 - younger brother of the deceased. 3. Melaji Amraji Makvana - P.W. 13 Ex.57, - nephew of the informant are the witnesses who are termed

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as eye witnesses of the incident as per prosecution.

10. Masangji Kuvarji Makwana P.W. 6 Ex-33 - complainant - who is himself is a police Patel of the village. The said witness has stated that the house of the said witness is situated at the main road and opposite pond and temple. There are shops and cabins near his house. It is busy road connected to Prantij Highway. He has also stated that there was fair of Ramdev Pir on the next day and public was moving in the village and there is also bus-stand opposite his house. However, he has stated that everyone in the village had gone to the fair and no-one was present at the site of incident. This aspects creates doubt as to entire village people had gone to fair and though the incident happened in a crowded area on the main road, near the bus-stand and where there are shops, panchayat office, pond and temple opposite the house of the complainant, not a single person is available, cannot be believed.

Considering the evidence of Masangji Kuvarji Makwana, it is admitted that he is police Patel, he knows procedure of filing the complaint. He knows some constable of the concerned police station also but though the incident happened at 11:00 a.m. he had gone to the Prantij Hospital. He has not filed the complaint in Himmatnagar Civil Hospital. He knows there is Police Choki in the Civil Hospital and information can be given there and as per his admission, police was present at the Civil Hospital despite

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that he has not given any information to the police and given excuse that he was under the impression thatcomplaint should be filed in Prantij Police Station. The police constable recorded the complaint at 3.00 to 3.30 p.m.

11. It is also admitted fact that the alleged incident, as per the case of the prosecution, has been witnessed by the complainant, who himself is an injured but the first information has been given to the Police Head Constable Chhaganbhai PW No.15 wherein it has been stated by the said witness that the complainant had alone come to Prantij Police Station and he orally declared that his son had quarreled with some boys of the village and 4 to 5 persons have assaulted and his son has died. The first declaration by the complainant before the police did not reveal any name before the PSO Prantij Police Station. As such, the conduct of the complainant whose son has expired and who left for Himmatnagar and came to Prantij, is unnatural and cast a shadow of doubt upon the case of the prosecution and the complainant who is known to the procedure of law being a police Patel has not disclosed any name initially in his oral declaration before PSO. As such, the complainant has not acted in natural way. His evidence cannot be relied upon without cogent and convincing evidence of other witnesses.

12. Suryasinh Masangji Makvana - younger brother of the

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deceased - P.W.8, Ex.36 has stated in his evidence that his brother was being taken on scooter and Jagdishbhai was riding the scooter, which was taken by Melaji from Manga Puja.

13. When accused came, at that time, the present witness was inside the home and Prabhatsinh was also inside in his residence. When Dhariya blow given by Bhathiji then Melaji came to the spot and on contrary, he said that when Melaji came, all accused went away and Melaji did not try to chase them.

14. When Bhathiji gave blow of Dhariya to Prabhatsinh, at that time, present witness's family was standing behind them and they neither tried to intervene nor did they save them.

15. As per the say of Suryasinh Masangji Makvana - P.W.8, Ex.36, he and his father both went to Civil Hospital, Himmatnagar and after staying there for 10 to 12 minutes, they both returned to Prantij Police Station, where his father had gone to the police station and he, after leaving his father at police station, had gone to Jinjva, for which the prosecution has not placed any reason why the witness Suryasinh went to Jinjava when his real brother had expired and his dead body was lying in the Civil Hospital, Himmatnagar. His natural conduct would be to support his

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father in lodging the complaint but it is on record that the complainant alone had gone to Prantij Police Station for lodging the complaint.

16. It has also come out from the evidence of Suryasinh that he returned back to the police station from Jinjva at 7.00 p.m. to the Prantij Police Station and his father, mother and other villagers were in the police station. They stayed there upto 12 to 12.30 and thereafter, they returned to their village. It is also admitted by the said witness in his evidence that he is unaware as to why the complaint was lodged by his father. It is also say of Suryasinh that though he was in Prantij Police station with his father, mother and villagers, his statement was not recorded and it was recorded at 12.30 AM at his village. This aspect also falsifies the evidence of the police witness on record because PSO of Prantij Police Station, Mr.Chhaganbhai PW No.15 has clearly mentioned that the complainant has not stayed upto 12 AM in the Police Station.

The aforesaid aspect, according to the evidence of the I.O. and police witness and even panch of scene of offence, is contradictory to the entire facts of the case.

17. PW No.16 Head Constable Arjunbhai Maganbhai has stated that the panchnama of scene of offence was conducted between 16.30 to 17.00 p.m. it is also on record that the I.O. D.K. Vankar PW No.17 had visited the scene of

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offence at 7.15 p.m. At that time the panchnama of scene of offence was carried out and he recorded statement of witnesses upto 9.00 p.m. As such, when the statement of witnesses are recorded between 7.15 p.m. and 9.00 p.m., the I.O. has not stated that the statement of witness Suryasinh was recorded at 12.30 A.M. The say of I.O. falsifies the story of Suryasinh. As such, even the conduct of Suryasinh is very unnatural and contradictory to the evidence of the investigating agency and does not inspire confidence.

18. Here in this case, it is the case of the prosecution that Melaji Amraji also came at the scene of offence at the time of incident, however, considering the evidence of Mansangji - complainant and witness Suryasinh, they have not stated that at the time of incident, witness Melaji was present and he had seen the incident. Both the witnesses have stated that Melaji Amraji and Jagdish Amraji, both arrived and the accused fled away, whereas the witness Melaji has stated that he was present when the accused arrived at the house of the complainant when the accused were beating the complainant and the deceased and he intervened and the accused were shouting at that time, however, this aspect and the aspect of intervening during the scuffle has not been stated by the main witnesses, complainant and his son Suryasinh. If the Melaji Amraji was present at the time of scuffle, he would have intervened in the scuffle and would

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have taken the injured to the hospital but no such thing has happened. Therefore, the presence of Melaji Amraji at the time of incident cannot be believed in light of the evidence of the complainant and his son Suryasinh and Melaji who is nephew of the complainant merely to support the complainant, has stated false story, which does not inspire confidence.

19. It has also come on record that Melaji had gone to call Jagdish to take the deceased to the hospital but surprisingly he has not uttered a word to Jagdish regarding the incident. It is the say of the witness that police came on the next day on 15/09/1994 and recorded his statement in the morning and when he came back from Himmatnagar. On the day of the incident, there was no police at his house and police came on the next day morning. As per his say, Melaji was called at last for recording his statement and the statements of the complainant and his son were recorded prior to recording his statement and on the contrary he has stated that the statement of Suryasinh was recorded in the police station. This aspect also creates a shadow of doubt upon the case of the prosecution and the veracity of witnesses. As per police witnesses, police has stayed upto 10.00 p.m. to 10.30 p.m. in the village as per the say of Suryasinh, his statement is recorded at 12.30 A.M. Melaji has stated that there was no police when he entered the village from Himmatnagar and Suryasinh's statement was

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recorded in the police station. As such the evidence of both the witnesses Suryasinh and Melaji are contradictory to each other and as stated above, Melaji being nephew of the complainant, he is interested witness and does not inspire confidence and whose evidence cannot be relied upon.

20. Rajaji, panch of panchnama of scene of offence has supported the case of the prosecution and has stated that he was called by P.I. Vankar at the time of panchnama and panchnama was drawn in front of him. It is admitted that the panchnama was drawn between 4.30 to 5.30 p.m., which cannot be denied. It is also on record that P.I. Vankar for the first time visited site of offence at 9.15 p.m.. The panch stated that the P.I. was present when the panchnama was drawn, which is contrary to the evidence of P.I. Mr.Vankar regarding his presence. This aspect falsifies the drawing of panchnama in presence of panch Ramjibhai, who is very much known to the complainant and his son. The evidence of panch Rajaji also cannot be believed.

21. Rameshbhai and Jasvantbhai, panch witnesses of panchnama of discovery panchnama have not supported the case of the prosecution regarding discovery of Dhariya.

22. It has also come on record that the place of offence is thickly populated area where the house of the complainant is situated and there are bus-stand, pond and temple

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opposite the house of the complainant and even there is road connecting the Highway of Prantij. There was fair of Ramapir on the next day of the incident. There was movement of people also. However, the complainant and witnesses have tried to falsify this aspect by saying that everybody had gone for Darshan to Rama Pir in the fair and nobody was there in the entire village, which cannot be believed. The place of incident which is a main road having bus-stand and there should be movement of buses, even shops and cabins are their, police bandobast was allotted to that place and in that broad day light on the main road, nobody has viewed the incident, is highly improbable and it has been admitted by the investigating officer that the statements of independent witnesses have been recorded but as they are not supporting the case of the prosecution, they are not cited as witnesses in the chargesheet.

23. The only witnesses are complainant and his sons and one nephew, who are related to each other and interested witnesses, whose evidence cannot be said to be independent, reliable, trustworthy, cogent and convincing coupled with the other evidence on record.

24. In this case, considering the record and proceedings, it has come on record that some incident happened with the accused No.2. He was having a bandage on his head when panchnama of his person was drawn, which is produced at

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Ex.64. However, in the entire evidence, the prosecution has failed to explain as to how there was injury on the head of the accused No.2 and the genesis as to how the incident has occurred is suppressed as it is not the case that the accused No.2 was injured during the scuffle. The prosecution has failed to prove the injury caused to the accused No.2. This aspect also goes against the prosecution.

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 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

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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 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:

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"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 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

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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 by the High Court."

8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme

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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."

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 trial Court, it might have taken a different view.

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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', '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

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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."

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 No.1.

(S.H.VORA, J)

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