State Of Gujarat vs Bakulbhai Bachubhai Ninama
2023 Latest Caselaw 3062 Guj

      R/CR.A/1145/1998                                  JUDGMENT DATED: 20/04/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL APPEAL NO. 1145 of 1998

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE

and
HONOURABLE MR. JUSTICE M. R. MENGDEY

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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
                    BAKULBHAI BACHUBHAI NINAMA & 9 other(s)
==========================================================
Appearance:
MS. DIVYANGNA JHALA, APP

for the Opponent(s)/Respondent(s) No. 10,2,4,7
MR P P MAJMUDAR(5284) for the Opponent(s)/Respondent(s) No.
1,3,5,6,8,9
==========================================================
     CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
           and
           HONOURABLE MR. JUSTICE M. R. MENGDEY

                                  Date : 20/04/2023

                     ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. This Appeal, by the State, is preferred against the acquittal, recorded by

R/CR.A/1145/1998 JUDGMENT DATED: 20/04/2023

the judgment and order dated 11.9.1998 by the learned Additional Sessions

Judge, Sabarkantha at Himmatnagar in Sessions Case No. 21 of 1998.

2. By the aforesaid judgment, all the accused, who were charged with the

offence under Sections 147, 148, 149, 504, 451, 302, 323, 120B of the Indian

Penal Code and Section 135 of the Bombay Police Act, have been acquitted.

3. When the matter is taken up it is reported that Accused No.2 - Natubhai

@ Narsibhai Nemaji, Accused No.4 - Nemaji Harjibhai Ninama, Accused No.7

- Bachubhai Nemaji Ninama and Accused No.10 - Rupsibhai Saluji Ninama

have expired pending the Appeal. Hence, the Appeal qua all the aforesaid

Accused persons would stand abated.

4. Learned APP Ms. Divyangna Jhala submitted that the Sessions Court has

committed an error in not taking into consideration the evidence of the

eyewitnesses. Though all the eyewitnesses have given the narration in the

manner and method in which the incident took place assaulting the deceased.

5. Learned APP submitted that the medical evidence especially the PM

Note would indicate that the cause of death was the injuries received in the

incident by the deceased and the witness examined in this connection PW-2 Dr.

Urvashi Pravinchandra at Exh.20, who performed the PM has also opined that

R/CR.A/1145/1998 JUDGMENT DATED: 20/04/2023

the injuries sustained by the deceased would be caused by the hard and blunt

substance, and therefore, is matching with the articles, which were recovered

during the course of investigation and attributed to the respondent accused.

Therefore the State was able to establish the fact of homicidal death.

6. Learned APP submitted that evidence of the complainant Niruben

Virjibhai who was the eye witness, her presence at the place of offence is quite

natural as she was the wife of the deceased and the place at which the incident

took place, is adjacent to their house. The Court has considered the minor

contradictions in not accepting the version of this witness.

7. Similarly, the version of the another witness Mukeshbhai Virjibhai, who

is the son of the deceased, was also an eyewitness, and therefore, his version

should also have been considered by giving it sufficient weightage, as, even

from the cross-examination, nothing is coming out, which would damage the

case, which he had placed in the evidence-in-chief. It is submitted that only by

creating doubt on her is the interview at Himmatnagar, the presence of this

witness at the place of offence cannot be doubted especially when the incident

took place just adjacent to their house.

8. Learned APP has thereafter submitted that the reasoning given by the

Sessions Court in not accepting the evidence of these eyewitnesses though the

R/CR.A/1145/1998 JUDGMENT DATED: 20/04/2023

same version is corroborated by not only the medical evidence but also with the

scientific evidence.

9. As against this learned Advocate for the Respondent Accused, at the

outset, submitted that the entire case is a fabricated case and is arising out of a

land dispute, more particularly on the dispute between the family of the

deceased and the son from the first marriage of the deceased. It is submitted

that even from the evidence of an independent witness like Doctor, it is coming

out that the deceased was brought for the first time to his hospital by a police

officer apparently related to the complainant side. Since then, only the entire

investigation and, consequently, the prosecution was diverted in a wrong

direction.

10. It is submitted that there was otherwise no motive that could be

established as there was no dispute with regards to any land between the

accused and the deceased. At the best, even from the case of prosecution, such

dispute would have been between the son of the deceased from his first wife

and the family of the deceased. In any case a false case sought to be made out

by involving the Accused No.10 who is the elder brother of the deceased who

had nothing to do with the entire incident but to rope him into the offence he is

being given a role of conspiring.

R/CR.A/1145/1998 JUDGMENT DATED: 20/04/2023

11. Learned Advocate has thereafter drawn the attention of this Court to the

evidence of the accused to indicate major contradictions in their version, which

includes that the wife of the deceased, who claims to be an eyewitness, has lost

her consciousness when the assault was carried out. It is submitted that though

the daughter of the deceased Laxmiben was also cited as a witness but she was

never examined as witness.

12. It is submitted that in so far as the two other eyewitnesses are concerned

namely Mukeshbhai and Prakashbhai, they have failed in the cross-examination

to even depose as to which accused had carried out assault on them and injured

them.

13. Having considered the rival submissions of the parties and having

perused the documents on record the incident took place allegedly on account

of the land dispute. According to the prosecution the land was purchased by

the deceased from the Accused No. 4 for consideration but Accused No.4

wanted to recover the land back, and therefore, had conspired with other

accused including Accused No.10 who is the elder brother of the deceased.

14. On account of the aforesaid motive, the assault was carried out on

7.12.1997 at 19:30 hours when the deceased and the complainant Niruben were

at their residence at the time of dinner when all the accused armed with

R/CR.A/1145/1998 JUDGMENT DATED: 20/04/2023

weapons like pipe and sticks carried out the assault. With regards to the

incident the FIR being I-CR No. 141/1997 came to be registered, and upon

investigation, 10 accused persons were chargesheeted.

15. FIR Exh.25 however does not disclose the name of Accused No.10

Roopsinh Saduji Ninama, who is the elder brother of the deceased. Apparently,

there was an improvement in the case of prosecution for the purpose of

imposing the charge of conspiracy, where, loosely, the witnesses indicate that

Accused Nos. 1 to 9 before coming to the house of the complainant went to the

house of Respondent No.10. This version has come on record at a subsequent

stage of the investigation. This is evident again on account of non-naming of

Roopsinhbhai in the FIR

16. Over and above the other reasons to doubt the investigation is the

deposition of PW-1 Dr. Babubhai Doljibhai Exh.18, who was the first Doctor

who examined the deceased when he was brought to his hospital for treatment.

It would be pertinent to refer to the cross-examination wherein this witness has

deposed that the deceased was brought to his hospital by one Manoj Ninama in

his Maruti Car where this Manoj Ninama was DSP, therefore working with the

police, whereas witnesses have maintained that the deceased was brought to

this witness by Car driven by Somaji. It would be pertinent to note that neither

said Manoj Ninama or Somaji have been examined as witness by the

R/CR.A/1145/1998 JUDGMENT DATED: 20/04/2023

prosecution.

17. The Court thereafter taken into consideration the evidence of PW-3

Niruben Virjibhai Ninama, the informant, and the wife of the deceased. In her

evidence-in-chief, she has indicated about the assault by pipe carried out by

one Bakulbhai Accused No.1 and another blow inflicted by Natubhai @

Narsibhai Namaji -Accused No.2 (since deceased). Apart from these two

accused persons nothing is coming out in the chief of these witnesses of assault

by any other accused on the deceased. However, the witness has proceeded to

casually involve the names of other accused also without attributing any role,

but, generally stating that they were involved in giving kick blows. In the

cross-examination of this witness it is coming out that upon the assault that

being made out by pipe by the accused persons, the injury received by the

deceased was to such an extent that there was large amount of blood flow from

the injury received. If this version is compared with the medical evidence

including the PM report, there is no evidence of any blood flow. The fatal

injury indicated in the PM Note being diffuse swelling on both parietal and

occipital region and the corresponding injury of fracture noted in column 19 of

the PM report. However, there is no indication of any blood flow. Therefore,

this witness with regards to the injury has not come out with a clear narration.

18. The other reason why this witnesses may not be believed is the fact that

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though the assault was attributed only to the two accused even as per version of

this witness in evidence in chief she has proceeded to name all the 8 accused

persons by attributing them the role of kick and fist blows including to this

witness. However, in cross-examination this witness has deposed that there

was no injury which was sustained by her nor she has received any medical

treatment for such injury. In that view of the matter, the Sessions Court was

justified in not treating this witness to be wholly reliable but a witness

interested not only on account of her relation but also on account of over

implicating the other accused persons though no role is coming forth for these

accused.

19. Similarly, the evidence of witness Mukeshbhai Virjibhai Ninama PW-4

at Exh.26 though he narrates the incident in evience-in-chief quite like narrated

in the FIR itself, however, the presence of this witness is also doubtful as this

witness in the cross-examination has referred to the injuries sustained by him

but has not disclosed as to which accused had given a blow to this witness. It

appears that the Sessions Court on this issue has observed that the witness

though narrates the entire incident of inflicting of blows to the deceased, claims

himself to be injured in the assault but is unable to give the name of any

accused persons who would have assaulted him and therefore such witness

could not be relied upon.

R/CR.A/1145/1998 JUDGMENT DATED: 20/04/2023

20. Moreover his presence at the scene at the time of offence is doubted on

account of the fact that this witness had gone to Himmatnager for attending a

job interview and with regards to his visit to Himmagnagar and return, he has

not given a clear time of his return.

21. The evidence of eyewitness Prakashkumar Bharatbhai PW-6 Exh.32 is

also under cloud in view of the cross-examination, where he claims to be

assaulted by one of the accused persons but has failed to indicate as to how and

which person had assaulted him. Moreover in the cross-examination with

regards to him being a witness to the incident he has clearly indicated that

while the incident had taken place he was at his residence and upon hearing the

shouts he reached the place of incident. However, he has deposed that when

the assault was taking place he was able to see the same from his own house.

In all the aforesaid injured eye witnesses what is common is that they belong to

the same village and knew identity of each of the alleged assaulter, therefore it

is not that some unknown persons have assaulted and therefore the witnessses

were not able to name accurately who caused injury to them.

22. The Court has also taken into consideration the manner in which the

involvement of all the 10 accused persons has taken place though the

eyewitnesses are attributing the role only to Accused No.1 and Accused No.2

(since deceased), and therefore, though the witnesses were correctly held by the

R/CR.A/1145/1998 JUDGMENT DATED: 20/04/2023

Sessions Court not to be wholly reliable on the basis of whose evidence the

conviction can be recorded.

23. The Court may also draw strength from the decision of the Apex Court

in case of Rajesh Prasad Vs. State of Bihar & Anr. reported in (2022) 3 SCC

471, wherein the Apex Court has examined the case law with regard to the

power of the High Court to overturned the decision of the Sessions Court

where an another view is possible. Examining the case including that of

Chandrappa &Ors. vs. State of Karnataka reported in (2007) 4 SCC 415, the

Apex Court has culled out the general principles regarding the powers of the

Appellate Court while dealing with the appeal against the order of acquittal.

The Apex Court has held that the appellate court has full power to review, re-

appreciate and reconsider the evidence upon which the order of acquittal is

founded. However, the appellate court has to keep in mind that in case of an

acquittal, there is a double presumption in favour of the accused. Firstly, the

presumption of innocence is available to him under the fundamental principle

of criminal jurisprudence, and thereafter, upon securing of acquittal, the

presumption is further reinforced, reaffirmed and strengthened, and therefore,

whenever there are two reasonable conclusions are possible on the basis of the

evidence on record, ordinarily, the Apex Court would not disturb the findings

of acquittal recorded by the Trial court.

R/CR.A/1145/1998 JUDGMENT DATED: 20/04/2023

24. Considering the overall evidence of prosecution and the reasons

assigned by the Sessions Court in rejecting such evidence, the Court does not

find any reason to interfere with the impugned judgment and order.

25. In the result, the appeal fails and is dismissed. The judgment and order

dated 11.9.1998 passed in Sessions Case No.21 of 1998 by the Additional

Sessions Judge, Sabarkantha at Himmatnagar stands confirmed. Bail and bail

bonds of the accused, if any, stands discharged. R & P be sent back to the

concerned Trial Court, forthwith.

(A.Y. KOGJE, J)

(M. R. MENGDEY,J) J.N.W / 4