Gujarat High Court
State Of Gujarat vs Bhura Meraman Vania(Harijan) on 22 January, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
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R/CR.A/2332/2005 JUDGMENT DATED: 22/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2332 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
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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 ? Yes
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 ?
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STATE OF GUJARAT
Versus
BHURA MERAMAN VANIA (HARIJAN)
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Appearance:
MR. TIRTHRAJ PANDYA, APP for the Appellant(s) No. 1
MR KB ANANDJIWALA, SENIOR ADVOCATE, with MR. VISHAL K.
ANANDJIWALA for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 22/01/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal filed under the provisions of Section
378(1)(3) of the Criminal Procedure Code, 1973 (for short, "the
Cr.P.C), is directed against the judgment and order dated
15.10.2004 of acquittal passed by the Additional Sessions Judge
(Fast Track Court No.1), Gandhidham - Kachchh, in Sessions Case
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No. 7 of 2002.
2. The respondent - accused was charge sheeted and tried for
the offence punishable under Sections 302, 447 and 201 of the
Indian Penal Code, 1860 (for short, "the IPC") and under Section 135
of the Bombay Police Act, wherein and whereby at the end of the
trial, THE learned Sessions Judge has acquitted the accused from
the charges levelled against him.
3. The case of the prosecution as per the charge at Exh.1 and
the complaint dated 27.10.2000 at Exh.49/C is that on 26.10.2000,
on the next day of diwali, at round 5:00 a.m. in the morning, the
first informant got up on hearing the noise and found one person in
his compound (Varanda), who was his son-in- law and on inquiring
from him that how he had come inside, in response, the
respondent-accused said "he has crossed the fence", which was
behind his house. The daughter of the complainant Liliben along
with her minor girl aged about 12 months, who was also sleeping in
the compound of the first informant's house, got up and walked
towards the house of his brother - Naranbhai, PW-2. The first
informant heard the shouts and rushed out, where he saw the
accused was inflicting blows on his daughter Liliben and thereafter,
the complainants brother PW-2 came out and caught hold of the
accused and after, few scuffle he ran away. Hence, the PW-1
registered an F.I.R. in view of the said incident. The deceased
succumbed to the fatal blows, hence the respondent-accused was
charged with the aforementioned offences.
4. The learned JMFC, committed the case under the provisions of
Section 209 of the Cr.P.C to the Court of Sessions. At the end of the
trial, the accused-respondent was acquitted after evaluating the
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oral as well as the documentary evidence.
5. The State is in Criminal Appeal assailing the impugned
judgment and order of the trial Court.
6. Learned APP Mr.Tirthraj Pandya for the appellant-State has
submitted that the impugned judgment of the trial Court at the
outset, is required to be quashed and set aside as the trial Court has
barely adopted the averments of the written submissions filed on
behalf of the respondent-accused and has not applied it's mind to
the evidence.
7. Learned APP has submitted that the medical evidence
corroborates with the ocular evidence as the witnesses, who have
seen the incident, have categorically stated that number of blows
having been inflicted on the deceased and thus, it clearly
establishes the complicity of the respondent-accused in the offence.
8. Learned APP has submitted that the relationship between the
deceased and the accused was very strained and hence, on the
unfateful morning at 5:00 a.m. of 26.10.2000, in order to take the
revenge, the accused committed murder of the daughter of the first
informant.
9. Learned APP has referred to the deposition of PW-1, who is the
father of the deceased and has stated that his deposition would
clearly disclose the presence of the accused in the wee hours of the
morning of 27.10.2000, in his house. It is submitted by the learned
APP that the accused had crossed and jumped the fence of the
house of the complainant and had entered his compound, where the
daughter of the complainant was sleeping with her minor daughter
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and on seeing the accused, she went to the house of the brother of
the complainant PW-2 and the accused followed her to the
compound and committed murder by inflicting knife blows on the
deceased.
10. Learned APP has submitted that PW-2 Naranbhai, who is the
brother of the PW-1 on hearing the shouts of PW-1 and the
deceased had immediately rushed out from his house and caught
hold of the accused, but ultimately the accused ran away from the
street and the deceased was found lying dead in the compound of
the PW-2.
11. Learned APP has further referred to the deposition of one
Divaliben, PW-5 at Exh. 39 and submitted that her evidence would
suggest that she has actually witnessed the incident and she has
specifically narrated that when she came out of the house, she saw
the accused inflicting various knife blows on the deceased. She has
also seen that her father-in-law (PW-2), who was sleeping in the
compound, caught hold of the accused. Similarly, he has referred to
the depositions of the witnesses, who have supported the case of
the prosecution.
12. Learned APP has submitted that in the present case all the
evidence was collected on the date of offence, it is submitted that
an F.I.R. was registered on 27.10.2000 and the statements of the
witnesses are recorded on the very same day and the panchanama,
including the discovery panchnama was also undertaken on
27.10.2000.
13. Learned APP has further submitted that the F.S.L. report
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proves the blood of the deceased on the shirt of the accused and
hence, it is urged by him that involvement of the accused in the
offence of murder of his wife is established from the ocular as well
as documentary evidence.
14. Learned APP has also referred to the inquest panchanama at
Exh.36 as well as the discovery panchanama at Exh.41, in support
of his submissions. Thus, it is urged by him that the acquittal
recorded by the trial court is required to be reversed.
15. Learned APP has further submitted that evidence of all the
witnesses reveal that the deceased, who was the wife of the
accused, had come to stay at her father's home, since she was
upset with the accused and she was staying there since last 12
months. He submitted that so far as the aspect of death of the
minor is concerned, in fact such incident was not disclosed by the
complainant in the FIR and also in the statement, hence the
Investigating Officer did not investigate the said aspect.
16. In response to the aforesaid submissions, learned Senior
Advocate Mr.K.B.Anandjiwala appearing for the respondent-accused
has submitted that the judgment and order of the trial Court
acquitting the accused for the offence, for which he was charged
does not require any interference, as the evidence does not in any
manner indicate direct or indirect involvement of the accused in the
offence. He has submitted that there are major contradictions,
improvements and omissions in the depositions of the witnesses
and the trial Court has precisely held in favour of the accused while
acquitting him.
17. Learned Senior Advocate Mr.Anandjiwala has submitted that
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in fact the deposition of the PW-1, PW-2 and PW-5, who are the star
witnesses of the prosecution contradict with each other. It is
asserted by the learned Senior Advocate Mr.Anandjiwala that the
evidence in fact both ocular as well as documentary do not suggest
the exact scene of offence. It is submitted that PW-1 and PW-2, both
have narrated different versions with regard to the place of offence.
It is submitted that though the trial Court had directed the Revenue
Officer to prepare the scene of offence panchanama, however, the
same has not been prepared and hence, it is difficult to ascertain as
to exactly where the offence has been committed.
18. Learned Senior Advocate Mr.Anandjiwala has further
submitted that the evidence reveals that the Police Station was just
2-3 minutes away from the scene of offence and from the house of
the first informant, however, the F.I.R. was registered after a period
more than one and half hours, this shows the dereliction and the
planing of the complainant in registering the offence.
19. Learned Senior Advocate Mr.Anandjiwala has submitted that
it is the case of the prosecution and the witnesses that the accused
had ran away from the street and the same street leads to the
Police Station, which is just 2-3 minutes away. However, none of the
witnesses have tried to immediately contact the Police, despite PW-
2 having confined the accused momentarily.
20. Learned Senior Advocate Mr.Anandjiwala has submitted that
so far as the PW-5 is concerned, she is not an eye witness, as PW-2
in the statement recorded under provisions of Section 161 of the
Cr.P.C has admitted that except the first informant and PW-2, no
one else was present there.
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21. Learned Senior Advocate Mr.Anandjiwala has submitted that
so far as the motive or the reasons assigned by the prosecution of
having strained relationships between the accused and his wife is
also untrue, since, the accused has already filed an application
before the NGO i.e. (Kachchh Mahila Sangathan Mandal) seeking
company of his wife, who was prevented by the PW-2 and
accompanying her at his residence. In support of his submissions,
he has referred to the evidence of defence witness PW-1.
22. Learned Senior Advocate Mr.Anandjiwala, while referring to
the statement recorded under Section 313 of the Cr.P.C. of the
accused has submitted that in fact the accused has taken defence
that he was not present at the scene of offence and hence, the
investigation was required to be done. It is submitted by him that in
his further defence statement dated 16.09.2004 at Exh.70, he has
stated that he was present at his home with his kids on the day of
incident. Learned Senior Advocate has submitted that in fact in his
defence statement, the accused has stated that after the
application was made by him before the NGO, his wife - Liliben was
ready and willing to accompany him, however, she was prevented
by the PW-2 to come to his home.
23. Finally, learned Senior Advocate Mr.Anandjiwala has
submitted that in fact it is a case of double murder, since the
evidence of PW-1, PW-2 and PW-5 would indicate that the minor
daughter of the deceased was also seriously injured in the incident.
However, none of the witnesses in their statements recorded by the
police under Section 161 of the Cr.P.C. have admitted such facts
and ultimately before the Court, in their evidence, they have
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narrated such incident about the minor girl being injured, and
ultimately she succumbed to death. He has submitted that this was
very vital aspect, which has been suppressed by the complainant
and the Investigating Officer has also not undertaken any evidence
in this regard. Thus, it is urged that the case of the prosecution is
not required to be believed as all the witnesses can be termed as
unreliable witnesses.
24. Learned Senior Advocate Mr.Anandjiwala has finally submitted
that the trial Court may have adopted the reasoning given on behalf
of the accused in his written submissions, but that would not be
suffice to convict the accused, since, on appreciation of the ocular
and documentary evidence it indicates that the prosecution has
failed to established it's case beyond reasonable doubt.
25. We have heard the learned advocates appearing for the
respective parties at length and have also scaled both the ocular
and documentary evidence threadbare.
26. The incident has happened on 26.10.2000 at 5:00 a.m., as per
the case of the complainant PW-1 and PW-2 and other witnesses. It
alleged that at 5:00 a.m. in the morning, on the next day of Diwali,
the accused crossed over the fence and entered the house of the
complainant, where the deceased, who was the wife of the accused
and the daughter of the complainant was sleeping with her minor
child. On hearing the noise, the complainant woke up and inquired
from the accused as to from where he came inside, to which the
accused responded that he had jumped the fence and entered the
house.
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27. The prosecution has further alleged that the deceased along
with her minor daughter walked towards the house of the PW-2
Naranbhai, who is the brother of the PW-1, and the accused followed
her and ultimately committed murder in the compound of the PW-2.
It is noticed by us that the inquest panchnama at Exh.32 reveals
that the dead body of the deceased was found near the door of the
compound of the PW-2. The scene of offence, which is described in
Exh.32, is not happily worded and the same does not in any manner
reconcile with the depositions of PW-1 and PW-2. The trial court has
also directed to the Revenue Officer to carry out survey and produce
the map, however, it appears that the same has not been done so.
Despite our best efforts, we have been unable to decipher the exact
location where the offence has been committed.
28. At this stage, we may refer to the evidence of the first
informant PW-1, Bhurabhai, at Exh.8. His evidence reveals that
when he was sleeping in his compound in the morning at 5:00 a.m.,
he heard the noise and on hearing noise, he immediately woke up
and saw a man, he saw his son-in-law standing in his compound, on
inquiry from him, the son-in- law informed that he crossed the fence
and came inside. His daughter - Liliben was sleeping in the
compound, she also woke up and she went towards the courtyard
and the accused followed her and all of a sudden he heard the noise
of the daughter, who called her and accordingly he rushed to the
compound / yard, and at that time he noticed that the accused was
inflicting blows on her with knife, and he immediately raised hue
and cry and at that time his brother, PW-2 Naranbhai arrived, who
caught hold of the accused. It is stated that the accused thereafter
ran away and he saw the deceased lying on the floor. He saw three
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wounds on her chest as well as on side of the abdomen.
29. Thus, as per the deposition of the PW-1 in his examination-in
chief, he has stated that the incident has happened in his courtyard.
In the examination-in-chief, it is noticed that PW-1 has maintained
blissful silent with regard to presence of wife of the PW-2, Dehiben
as well as his daughter-in- law Divaliben, at the time of commission
of offence. In his cross-examination, he has mentioned that it is true
that street is located at the outside of his house on the East and
there is entry gate going into the street located towards East from
the compound of his house, which is closed in the night. He has
admitted that the entry gate located on the East on the street and
opening the same one can enter into the compound of his brother -
Naranbhai, which is 30 feet long and on reaching the compound the
residential house of his brother PW-2, Naranbhai is located on the
opposite side i.e. on East. He has stated that the yard is situated in
the house and there is 'varanda' in the said yard. There are two
rooms and total 5 persons are residing in the house of his brother,
PW-2. It is admitted by him that when they sleep at night, Naranbhai
also closes the entry gate of his house and in case he has to go to
the house of Naranbhai, he has to open the entry gate of his house,
after crossing the street and thereafter he has to knock at the entry
gate of Naranbhai and only if he opens one can enter his house. This
version of PW-1, if it is considered and read in juxtaposition with the
scene of offence as well as the Inquest panchanama, the deceased
went outside the house of the complainant and travelled to the
compound of the Naranbhai (PW-2), after crossing the street and
only if the door of Naranbhai was kept open, she could have entered
the house. Though, the first informant refers his interaction with the
accused, it is surprising that the deceased though has seen the
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accused in the morning, appears to be silent, and without uttering
any words, she just starts walking carrying the minor daughter
towards the house of PW-2, and she crosses the street. In the
examination-in-chief, PW-1 has stated that in fact the incident has
occurred in his yard and the accused after jumping the wall had
followed the deceased towards the house of PW-2.
30. PW-1 in his cross-examination has admitted that the incident
did not occur in his compound but has occurred in the compound of
Naranbhai and both the compounds are different. He has admitted
that the minor girl was also sleeping in the cradle, where her
daughter Liliben was sleeping. He has admitted that the wall, which
the accused jumped was having thorns and was at least 5 feet. He
has also admitted that if anyone crosses the wall, the thrones would
get pricked and blood can also be oozed. The arrest panchnama
does not reveal any injury on the accused. He has also admitted
that after committing the offence, the accused jumped the same
wall and has fled away. This version of the PW-1 of the accused
jumping a 5 feet wall covered with thorns and again fleeing in the
same manner, does not appear to be reliable.
31. Thus, the place of commission of offence is doubtful. Though,
the witnesses claim to be the eye-witnesses, their versions with
regard to the place of offence do not reconcile with each other. As
per the version of the first informant, the incident has happened in
his courtyard, whereas the deceased was found in the courtyard to
PW-2. The evidence reveals that after the incident happened, the
deceased was kept on a cot and she was covered with a bed-sheet.
The scene of offence panchnama reflects blood stains found in the
street. It is also not palatable, that the accused, without harming
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himself has jumped a five feet wall covered with the thorns, and
also flees after jumping the same wall. Thus, the manner in which
the incident is narrated by the first informant does not appear to be
reliable.
32. We have also noticed that PW-1 in his further cross-
examination has admitted that he tried to save his daughter by
catching hold of his son-in-law and the hand, which he held was
armed with knife. He shouted for 5 to 6 times and accordingly his
brother woke up and he came thereafter his brother Naranbhai
caught hold of the accused from behind. He has admitted that when
Naranbhai came the accused was in standing position and his son-
in-law fled away, however, when he tried to chase him his brother
did not catch him while he was fleeing. He has also admitted that
though the accused fled on the way of the Police Station, but he did
not inform the Police immediately.
33. We have also noticed that in his deposition he has mentioned
about the minor girl, who was the daughter of the deceased. He has
deposed that the minor was also injured and blood was oozing from
her mouth and the clothes of the minor girl also got stained with
blood. The clothes of PW-1, the complainant, were also stained with
blood. He showed the shirt stained with blood to the Police,
however, the Police did not seize the clothes. He has deposed that
the blood stained clothes of the minor girl were also shown to the
Police, but he has not aware about as to whether the Police have
seized the same or not. He has further stated that the minor girl was
bleeding, but he does not know whether she was taken to the doctor
or not. He has denied the suggestion that the minor girl sustained
injury with the knife at the time of incident. In his cross-
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examination, it is elicited that when he came running to the
courtyard of Naranbhai, Lilaben lifted the minor girl and when
Naranbhai came his daughter Lilaben was lying on the ground. He
has admitted that the Police Station is close to his house and would
take 10 - 12 minutes to reach the Police Station, and since, his heart
was filled with grief, and was shocked; he went to the Police Station
after one and half hours of the incident, after going to his son's
house.
34. We may now refer to the evidence of PW-2 Naranbhai, who is
brother of the complainant. He has stated that on hearing the
shouts of his brother, he got up and on getting up he saw the
accused inflicting the blows of knife on the deceased and thereafter
he caught him, however, he escaped and fled away. On inquiring
from his brother PW-1, he informed him that the accused had come
after jumping the fence. He has admitted that the Police Station,
which is just 10 - 12 minutes away from his house. He has admitted
that both the compounds of his house and the complainant's house
are separate and there is a gate to enter in his compound from the
house of the complainant. In his cross-examination, this witness
does not refer to the presence of his wife - Dehiben or daughter-in-
law - Divaliben. In his deposition, this witness has admitted that at
the time of offence no one else from his family was present, except
his brother. He has admitted that there is wall of six feet on the
West side of his house and there is a road on the West and he stays
in the East and his brother's house is on the Western side. In his
cross-examination, it is elicited that his family members had arrived
after the accused fled away, however, his wife - Dehiben had arrived
first. However, his wife has not been examined as witness.
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35. So far as the manner in which the incident has occurred, it is
elicited from him that when he came outside, he immediately
caught the accused from the back side, at that time his brother
complainant was standing 4 - 5 feet towards in the West direction
carrying the minor in his hands and the blood was coming from her
mouth and he has not witnessed that the clothes of the minor girl
got smeared with the blood or not. He has admitted that it would
take 10 minutes to the house of son at Haripura, who is also residing
in the same village. He has denied that there is a Police Station on
the way going to the house of Haripura. In his cross-examination, he
has admitted that there were 10 family members present at the
time of incident in his house. It is surprising to note that except
Dehiben and Divaliben, none other have witnessed the incident and
not arraigned as witnesses.
36. He has further deposed that he does not know when the
accused ran away passing through the Western gate after the
incident. He has stated that the gate of complainant - Bhurabhai
house situated towards the street and cannot be seen due to wall in
between. The distance from the Western gate, where the incident
took place on the house situated towards street is about 50 to 60
feet. It is stated that the accused fled away in the street leading
towards village. This is again contrary to the deposition of the PW-1,
who has stated that the accused has ran away after jumping the
fence. He has admitted that if the accused would be running in the
street leading towards village, then he would come across the Police
Station. So far as the incident of the minor girl is concerned, he has
admitted that she was injured in the incident and she was profusely
bleeding from her mouth and after half an hour of the incident, the
minor was taken to the doctor, while they went to the Police Station
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and thereafter the minor had died. He has admitted that the minor
girl was 12 months old and she was born at the house of the
complainant. He has admitted that he did not attend the last rituals
of the girl child, after she died and did not ask his brother as to why
she was bleeding from the mouth and how she sustained injuries.
37. Another star witness of the prosecution is PW-5 Divaliben, who
is daughter-in-law of PW-2. In her examination-in-chief she deposed
that the incident had occurred at 5:00 a.m. and when all of them
woke up, they saw the accused inflicting blows of knife on the
deceased and her father-in-law, PW-2 caught hold of the accused.
However, the accused ran away from the wooden door. She saw the
deceased lying on the floor. She saw the injuries on her stomach. In
her cross-examination, she has stated that when she saw the
incident, the deceased was lying and accused was inflicting
repeated blow of knife on her. In her statement recorded under
Section 161 of the Cr.P.C. totally different version has been narrated
by this witness, wherein she has stated that the accused had
crossed the compound of one Kacharabhai and entered into the plot
after jumping the fence and the incident has occurred in the street
and the accused had given various blows on her, while she was in
the street and she died in the street. With regard to the incident of
minor girl, she has specifically stated that the minor girl was
profusely bleeding, who was 12 months of age. She has admitted in
her statement recorded by the Police that she has not stated that
the minor was profusely bleeding and was taken to the doctor. She
has admitted that the minor was taken by one Bhikhabhai (her
brother), where she subsequently died. She has stated that she did
not go to the house of Bhikhabhai for attending after death rituals.
She has admitted that there is chain inside the door of the
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compound of PW-2 Naranbhai, who is her father-in-law.
38. A close reading of the evidence of all the three witnesses
would reveal that PW-5 Divaliben was not present when the incident
had occurred. Her deposition does not in any manner establishes
her reliable witness as she has stated that when the incident had
occurred, on hearing the noise all of them including her sister-in-law
came out and saw the accused inflicting repeated blows with knife
on the deceased. The actual incident, where it is alleged that the
accused has inflicted blows on the deceased remains in the state of
flux as per the evidence of this witness. PW-1 had stated that the
incident had occurred in his compound as the accused jumped 5
feet wall covered with thrones and entered into his compound and
after committing the offence, he jumped the fence and fled away.
Whereas PW-2 has stated that the deceased had come from the
house of the PW-1 crossing the compound and the street and after
opening the door, when she arrived in the compound of PW-2, the
accused followed her and inflicted blows on her. The statement of
PW-2 was recorded under Section 161 of the Cr.P.C. In such
statement and before the trial Court, he has admitted that when the
incident had occurred, except he and his brother PW-1 and no one
else was present. PW-2 has asserted that after the offence was
committed, the accused ran away from the street, which would lead
to the Police Station, whereas PW-1 stated that the accused fled
away after jumping the fence.
39. Under these circumstances, the inquest panchanama shows
that the dead body has been recovered from the compound of
house of PW-2. The panchas of the inquest panchnama PW-6 at
Exh.31 Panchbhana, mention about the blood stains in the street. It
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is the case of the prosecution that the blood group of the deceased
has been recovered from the shirt of the accused. The discovery
panchanama is not proved as per the requirement of law as both
the panchas have turned hostile and the Investigating Officer PW-8
at Exh.48, who was required to prove the contents of panchnama
has not proved the same as required under the provisions of Section
27 of the Evidence Act.
40. In his deposition, the Investigating Officer has referred the
Police Station 300 - 500 meters away from the scene of offence.
Though the Police Station was very near, the F.I.R. has been
registered after a period of one and half hours. It is case of the PW-
2 that the accused had fled away from the street, which leads to the
Police Station. It is also admitted by him that he caught hold of the
accused. PW-1 has admitted that PW-2 was capable enough to hold
the accused. The Investigating Officer has admitted that he has
carried out the panchanama at the home of the accused as there
were three children present with him and he has not recorded any
evidence of the children as well as the neighbors. It is very shocking
to know that the Investigating Officer in his cross-examination has
admitted that during his investigation, it was revealed that the
deceased was carrying the minor when the incident had occurred.
However, it is also true that the minor was injured in the incident,
however he did not care to investigate or ask the witness in this
regard. He has stated that he was not aware that the minor has
succumbed to the injury and he has not collected the medical
papers of her treatment. From the evidence which has surfaced
from the record, unquestionably the death of the minor has
remained un-investigated. The witnesses have in fact admitted that
the minor who was sleeping with the deceased, and was with the
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deceased had also sustained injuries in the incident, and she was
profusely bleeding. The witnesses have also deposed that, she was
also taken to the doctor for treatment and ultimately she died due
to such injuries. The witnesses, including the complainant in their
statements under Sections 161 of the Cr.P.C. have maintained
blissful silence with regard to the injuries caused to the minor. Thus,
it would have been the case of double murder. If the prosecution
has projected that the deceased was murdered by the accused,
then it is also established from the evidence of the witnesses that
the minor also died from the injuries sustained in the incident,
however, the witnesses have suppressed the same, and no
investigation is done in this regard.
41. Thus, the overall appreciation of the evidence establishes that
though the incident has occurred, the prosecution has failed to
prove the case against the accused beyond reasonable doubt, by
leading evidence of sterling quality leading to only conclusion that
the accused had murdered the deceased. We have also referred to
the statement under Section 313 of the Cr.P.C. of the accused. He
has maintained that he was not present on the day of incident at
the place of incident. We have also referred to the statement dated
16.9.2004, as referred to the incident of death of his daughter, who
was staying with the deceased.
42. Though, we are upholding the acquittal recorded by the trial
Court, but at the same time we have noticed the judicial impropriety
committed by the learned trial Judge, who has delivered the
judgment. It is noticed by us that the learned advocate appearing on
behalf of the accused before the trial Court had tendered a
comprehensive written statement dated 06.10.2004, dealing with
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the various facets of the incident. The written statement also
contained legal citations. It is noticed by us that the trial Court has
merely done a cut, copy and paste job and has verbatim copied the
averments of the written statement tendered on behalf of the
accused. Page Nos.112-125 onwards of the written statement
matches verbatim with Page Nos.182 onwards of the impugned
judgment. Finally, the reasons or findings recorded while acquitting
the accused are also verbatim similar to that of the written
statement. Such an approach adopted by the trial Court, while
recording the acquittal or delivering the judgment deserves to be
highly deprecated. Though, the trial Court may, while examining the
evidence may agree with the submissions of the accused or any
other party, but the learned Presiding Officer is duty bound to record
independent findings, which would show complete application of
mind towards the facts and the submissions. The trial Court is not
supposed to do a cut, copy and paste job while recording the final
findings on the issues. Such an approach will send wrong signal to
the litigants, and will be viewed with a jaundice eye. We have also
noticed that if the map where the offence was committed would
have been produced, the same could have been helpful in
appreciating the evidence. Thus, in a case of where there is
variance in the ocular evidence with regard to depicting the place of
offence, and the panchanama is also ambiguous, it is always
desirable to call for the map or chart from a responsible State
Officer. Such map or chart can come to the aid of the Trial Courts in
appreciating the evidence.
43. We have thus carried out the entire exercise afresh and have
analyzed the evidence threadbare. As recorded hereinabove the
evidence appears to be doubtful in nature and as per the legal
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settled preposition of law, if two views are possible and the view
which is in favour of the accused, the same is required to be
adopted. Hence, the present Criminal Appeal fails and the same is
hereby dismissed.
44. The Registry, if so desire, may circulate the observations
made by us in Paragraph No.41 of this Judgment to all the Courts
below.
R & P shall be returned to the concerned trial Court.
(A. S. SUPEHIA, J)
(VIMAL K. VYAS, J)
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