State Of Gujarat vs Rakesh Sarjuprasad Kahar
2022 Latest Caselaw 8152 Guj

      R/CR.A/860/1997                                JUDGMENT DATED: 20/09/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 860 of 1997


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
                    RAKESH SARJUPRASAD KAHAR & 3 other(s)
==========================================================
Appearance:
MS CM SHAH APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1,2,3,4
ABATED for the Opponent(s)/Respondent(s) No. 2&4
MR PV PATADIYA(5924) for the Opponent(s)/Respondent(s) No. 1&3
==========================================================

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

                                 Date : 20/09/2022

                                ORAL 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 13/06/1997 passed by the learned Additional Sessions Judge, Surat in Sessions Case No.107 of 1995 acquitting the respondent Nos.1 to 4 - original accused Nos.1 to 4 from the offence punishable under sections 302 and 34 of Indian Penal Code and under section 135 of the Bombay Police Act.

It is pertinent to note that the respondent Nos.2 and 4

- original accused Nos.2 and 4 have expired during the pendency of the proceedings and hence the present appeal stood abated qua respondent Nos.2 and 4 vide order dated 08/09/2022.

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

The complainant - Hanif Mohammad Yasin Shekh lodged the complaint stating that all the four accused and deceased Mohammad Rafik Mohammad Yasin Shekh were residing at Fulwadi Juppadpatti, Bharimata Road, Surat. On the date of incident i.e. on 27/02/1995 at 12.15 hours all the accused and Mohammad Rafik Mohammad Yasin Shekh (hereinafter referred to "Rafik" for short) were passing near the Roshan Bekari, Fulwadi Juppadpatti and at that time accused No.1 - Rakesh Kahar had inflicted a stick blow to the deceased and therefore, there was quarrel and the

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accused had assaulted on the deceased wherein the accused No.2 - Jayesh Zeena (now deceased) had caught hold the deceased and accused No.1 inflicted knife blow on various parts of the deceased and thereby caused injuries whereas the accused nos.3 - Dashrath Ishvarlal and accused No.4 (Bharat Ramchandra Kanoje (now deceased) instigated the accused Nos.1 and 2. The deceased was taken to the hospital where the deceased died. It is alleged that all the accused with a view to fulfill their common intention, inflicted fatal injuries with knowledge that the injuries would be sufficient to cause death of the deceased and thereby committed the alleged offence.

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.107 of 1995.

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Thereafter, Charge was framed against the accused for the offence punishable under sections 302 and 34 of Indian Penal Code and under section 135 of Bombay Police Act. 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 Additional Sessions Judge was pleased to acquit the accused Nos.1 to 4 for the charges levelled against them. Hence, the appellant - State of Gujarat has preferred the the present Criminal Appeal challenging the judgement and order of acquittal.

It is pertinent to note that the respondent Nos.2 and 4

- original accused Nos.2 and 4 have expired during the pendency of the present appeal and hence present appeal stood abated qua respondent Nos.2 and 4 and the present appeal is required to be considered qua respondent Nos.1 and 3 - original accused Nos.1 and 3 only.

4. Heard Ms.C.M. Shah, learned APP for the State and Mr.P.V. Patadiya, learned advocate for the respondent Nos.1 and 3.

5. Ms.C.M. Shah, learned APP for the appellant State has

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vehemently argued that the Sessions Judge has wrongly acquitted the accused of the offences for which they were charged and the acquittal order is against the law and evidence on record. There is no proper appreciation of evidence done by the trial court. She has further argued that the Sessions Judge has committed a grave error in not believing the deposition of the witnesses examined by the prosecution and evidence adduced by the prosecution. It is further submitted that the Sessions Judge has erred in acquitting the accused from the charges levelled against them. It is further argued that the prosecution has proved that the respondent No.1 and 3 have committed offence under sections 302 and 34 of Indian Penal Code and under section 135 of Bombay Police Act. It is further submitted that Sessions Judge has acquitted the respondent No.3 merely on some minor contradictions and omissions in the evidence of the prosecution witnesses. It is further argued that the Sessions Judge has erred in not believing the evidence of the investigating officer and complainant who had no reason to implicate the accused falsely in the case. It is further argued that the offence punishable under sections 302 and 34 of Indian Penal Code and under section 135 of the Bombay Police Act, is made out, however, the same is not believed by the Sessions Judge. It is further argued that though the prosecution witnesses have supported the case of the prosecution, the Sessions Judge erroneously not believed their evidence and acquitted the accused. It is

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further argued that the Sessions Court has erroneously held that the prosecution has failed to prove the case beyond reasonable doubt. She has submitted that as such, the trial court has erred in not appreciating the evidence on record in its true spirit and has given wrongly acquittal to the respondents accused which cannot sustain at the scrutiny of this Court and has requested to allow the present appeal.

6. Mr.P.V. Patadiya, learned advocate for the respondent Nos.1 and 3 has submitted that the accused Nos.2 and 4 have expired and present appeal survives qua respondent Nos.1 and 3 - original accused Nos.1 and 3. He has further submitted that there is hardly any substance in the submissions of learned APP. There is no admissible evidence on record connecting the respondent Nos.1 and 3 with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses. The prosecution has not proved the case beyond reasonable doubt. No error or illegality has been committed by the trial court in acquitting the respondent Nos.1 and 3. He has requested to dismiss the present appeal.

7. Heard the leaned advocates for the respective parties at length and perused the impugned judgement and order of acquittal passed by the trial court as well as the entire record and proceedings.

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8. 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. We have gone through the entire record and proceedings. We have re-appreciated the evidence on record. On re-appreciation of the evidence, it appears that the muddamal knife was recovered and marked as "C", however, the knife which was sent to FSL was marked "J". Thus, there is doubt about the recovery of muddamal weapon.

10. There is no consistency with respect to the name of the accused. The complainant Hanif Mohammad Ex.17 has stated in his chief-examination that he is illiterate, he does not put his signature and the complaint does not bear his signature. Therefore, the complaint cannot be believed.

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Thus, the very foundation of the case of the prosecution is weak.

11. There are major contradictions, addition and alterations in the evidence of the eye witnesses and the witnesses who had reached at the place of offence after commission of the offence and the evidence of both the set of witnesses is inconsistent and even does not show the presence of other set of witnesses. Therefore, the presence of the witnesses at the place of offence at the relevant time is doubtful.

12. The complaint is lengthy and in detail and on perusal of the complaint it cannot be said that the person who has given the complaint is mentally unstable and if it is believed, then also the benefit of the same goes in favour of the accused because the averments stated in the complaint shows that the complaint is given by a person who is not mentally fit. Therefore, the complaint also cannot be believed.

As per the complaint, when the incident had occurred, Roshan Bakery was opened. The incident had happened in thickly populated area. The time of incident is 9.30 p.m. when the people also used to go to their house. However, no statement of the independent witnesses have been recorded by the investigating officer.

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13. As per the case of the prosecution, the incident occurred on account of joking of the ladies who were fetching water from the tap, however, no evidence to that effect has been brought on record by the prosecution. Not a single female has been examined.

14. As per the case of the prosecution, the deceased was aged 20 years. He was young and healthy. When any assault was made on him, naturally he could have resisted, on account of which, there must be mark of injury on the person of the accused. However, no such mark of injury has been found on the body of the accused. That also creates doubt about involvement of the accused in the commission of the offence.

15. As per the witnesses, they were not knowing the full name of the accused and they were knowing only first name and hence it is not possible for them to state full name of the accused in their police statements. Even no T.I. Parade has been conducted. However, in the statement of the witnesses recorded by the investigating agency, full name of the accused have been mentioned. Therefore, the question is from where the full name of the accused came in the statements. Even the investigating officer has admitted that there may be many person of the same name in the vicinity. In such situation, identification parade is required but in

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the present case, no identification parade has been conducted. Therefore also, the involvement and identification of the accused in the commission of the offence is doubtful.

16. Considering the evidence of Ashoksingh Fojisingh Rughnath Ex.31, his evidence cannot be said to be trustworthy in the sense that he had seen the muddamal knife from 20 to 25 feet away and thereafter he had never seen till he identified the muddamal knife in the Court. He has not named the father of the accused nor disclosed surname of the accused. Even name of accused No.4 is also not disclosed. His evidence also states that Bakery was open and many persons were working and the incident happened just opposite the Bakery. However, no independent witness has come for the help of the deceased.

17. Considering the evidence of Bhutnath Ex.32, he has also not disclosed the name of the accused and he came to know about the name of the accused through the police. He has not disclosed the name of the accused in his statement before police. As per his case, he had gone with witness Ashok at the site of incident. He is also so-called eye witness. His statement is recorded after cremation of the deceased. What was written in the statement is not known to him. At the time of cremation, he has stated the facts of the incident to Shamim.

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18. As per the case of the prosecution, panchnama is drawn where blood was found. Place of incident as per the panchnama is kachcha road and only at one place blood is found at 25 feet away from Roshan Bakery. As per the case of the prosecution, eye witnesses they lifted the deceased and the deceased was walked 8 to 10 steps and thereafter the deceased fell down. As such, the place where the incident occurred and the place where the deceased fell down are two different place. As per panchnama blood found only at one place. Evidence of the eye witness Ashoksinh and Bhutnath lifting the deceased and deceased walked 8 to 10 steps, is not believable. Panchnama of place of offence is drawn at the one place which is kachcha road. These aspects falsifies the evidence of the so-called eye witnesses Ashoksinh, Bhutnath and Madhbhai that were present and they had gone to the place of incident and they had seen the incident. As per the case of the complainant and his brother Shamim they both were at their residence and they heard commotion and shouts and they immediately came outside and saw that his brother was lying and nobody was around him. As such this say of the complainant that he saw his brother lying down and nobody was around his brother falsifies the evidence of the so-called eye witnesses. Thus, there are major contradictions between the deposition of the eye witnesses and complainant and his brother Shamim. Under the circumstances, the evidence of

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the so-called eye witnesses cannot be believed.

19. As per the evidence of Bhutnath, he had gone to call brother of the deceased Shamim at his house and at that time Shamim was coming towards him with bucket and Shemim met him on the road. This is not stated by witness Shamim. As such, the evidence of Bhutnath and Shamim are contradictory to each other.

20. As per the say of the witnesses Ashoksingh and Madhubhai they took the deceased to the hospital, whereas per the say of the Doctor, the deceased was brought by the complainant as per the Vardhi. There is no name of the witnesses Ashoksinh and Madhubhai in the Vardhi. As such the presence of the eye witnesses at the place of incident is very doubtful.

21. The place of residence is public road in residential area and thickly populated area and one bakery is situated just 20 feet away from the place of incident. However, no statement of the independent witnesses have been recorded nor they have been examined as witnesses. The evidence of the witnesses who are termed to be eye witnesses is not trustworthy and their evidence is full of contradictions to that of evidence of complainant and his brother Shamim. As such, the trial court has rightly appreciated the evidence of each and every witnesses, which is not required to be

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interfered with.

22. the motive of the incident which has been brought on record by the prosecution regarding eve-teasing of the women fetching water from the tap is also not proved by the prosecution. As such, the entire evidence on record does not inspire confidence of eve-teasing.

23. 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.

24. 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:

"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse,

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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 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."

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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 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

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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."

25. 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.

26. 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

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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."

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27. 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.

28. 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 and 3.

(S.H.VORA, J)

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