Gujarat High Court
State Of Gujarat vs Pratapsinh Akhmabhai Pandor on 4 June, 2024
NEUTRAL CITATION
R/CR.A/185/1999 JUDGMENT DATED: 04/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 185 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
and
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed Yes
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
PRATAPSINH AKHMABHAI PANDOR
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Appearance:
MS MAITHILI MEHTA, APP for the Appellant(s) No. 1
MR UM SHASTRI(830) for the Opponent(s)/Respondent(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
and
HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 04/06/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J. C. DOSHI)
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R/CR.A/185/1999 JUDGMENT DATED: 04/06/2024
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1. Feeling aggrieved and dissatisfied with the judgment and
order of acquittal dated 10.07.1998 passed by the learned
Additional Sessions Judge, Godhra in Sessions Case No.185 of
1995, whereby the respondent accused came to be acquitted for
the offences under sections 302, 201 of Indian Penal Code, the
appellant - State has preferred present appeal under section
378 of the Code of Criminal Procedure, 1973 ("the Code" for
short).
2. Brief facts of the case is that between 25.07.1995 and
26.07.1995 at any time, the respondent - accused had quarrel
with Mansinh Nathabhai and with intention to kill him, the
respondent - accused drowned Mansinh Nathabhai in water and
killed him and thereafter, he had tied big stone with body of
deceased and destroyed evidence. In this connection, Mansinh
Nathabhai was killed. Hence, FIR being C.R.No.102 of 1995 was
lodged with Morva Police Station.
3. In pursuance of the complaint lodged by the complainant
with the Morva Police Station for the offence under sections 302,
201 of IPC, the investigating agency recorded statements of the
witnesses, drawn panchnama of scene of offence, discovery and
recovery of weapons and obtained FSL report for the purpose of
proving the offence. After having found sufficient material
against the respondent accused, charge-sheet came to be filed in
the Court of learned JMFC, Santrampur. As said Court lacks
jurisdiction to try the offence, it committed the case to the
Sessions Court, Godhra as provided under section 209 of the
Code.
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4. Upon committal of the case to the Sessions Court, Godhra,
learned Sessions Judge framed charge at Exh.2 against the
respondent accused for the aforesaid offences. The respondent
accused pleaded not guilty and claimed to be tried.
5. In order to bring home charge, the prosecution has
examined witnesses and also produced various documentary
evidence before the learned trial Court, more particularly
described in para 10 to 12 of the impugned judgment and order.
6. On conclusion of evidence on the part of the prosecution,
the trial Court put various incriminating circumstances
appearing in the evidence to the respondent accused so as to
obtain explanation/answer as provided u/s 313 of the Code. In
the further statement, the respondent accused denied all
incriminating circumstances appearing against him as false and
further stated that he is innocent and false case has been filed
against him.
7. We have heard learned APP for the appellant - State and
minutely examined oral and documentary evidence adduced
before the learned Trial Court.
8. Learned APP for the appellant - State submitted that
impugned judgment of acquittal is contrary to law. It is
submitted that learned Trial Judge has committed error in
disbelieving the circumstantial evidence of the case. It is
submitted that learned Trial Judge committed error in
disbelieving the evidence of complainant, wherein, she has
stated that deceased was last seen together with respondent -
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accused and case is on circumstantial evidence and therefore,
there was no reason to disbelieve the circumstantial evidence. It
is submitted that learned Trial Court failed to appreciate that
version of the complainant get corroboration from medical
evidence, wherein, Doctor has supported the prosecution case.
It is also submitted that learned Trial Court has not considered
that accused has tied stone with dead body of deceased with
intention to destroy the evidence. Therefore, it is submitted to
allow the present Criminal Appeal.
9. At the outset, we may refer the judgment of Muralidhar v.
State of Karnataka, (2014) 5 SCC 730, wherein the Hon'ble Apex
Court dealing with the appeal against acquittal, has held as
under :-
(i) There is presumption of innocence in favour of an
accused person and such presumption is
strengthened by the order of acquittal passed in his
favour by the trial court;
(ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of the
appeal against acquittal;
(iii) Though, the powers of the appellate court in
considering the appeals against acquittal are as
extensive as its powers in appeals against convictions
but the appellate court is generally loath in
disturbing the finding of fact recorded by the trial
court. It is so because the trial court had an
advantage of seeing the demeanour of the witnesses.
If the trial court takes a reasonable view of the facts
of the case, interference by the appellate court with
the judgment of acquittal is not justified. Unless, the
conclusions reached by the trial court are palpably
wrong or based on erroneous view of the law or if
such conclusions are allowed to stand, they are likely
to result in grave injustice, the reluctance on the part
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of the appellate court in interfering with such
conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation
and re-evaluation of the evidence is inclined to take a
different view, interference with the judgment of
acquittal is not justified if the view taken by the trial
court is a possible view. The evenly balanced views of
the evidence must not result in the interference by
the appellate court in the judgment of the trial court.
10. We may also refer the judgment of Babu Sahebagouda
Rudragoudar v. State of Karnataka, 2024 SCC OnLine SC 561 as
to minimize the scope of interference by the learned Sessions
Court for reversing the judgment of acquittal recorded by the
learned trial court. The Hon'ble Apex Court has carved out four
corners of the following principles for the learned Sessions Court
to interfere with the judgment and order of acquittal recorded by
the learned trial Court.
11. In case of Mallappa v. State of Karnataka, (2024) 3 SCC
544, the Hon'ble Apex Court observed as under:-
"25. . No doubt, an order of acquittal is open to appeal and
there is no quarrel about that. It is also beyond doubt that
in the exercise of appellate powers, there is no inhibition
on the High Court to re-appreciate or re-visit the evidence
on record. However, the power of the High Court to re-
appreciate the evidence is a qualified power, especially
when the order under challenge is of acquittal. The first
and foremost question to be asked is whether the Trial
Court thoroughly appreciated the evidence on record and
gave due consideration to all material pieces of evidence.
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The second point for consideration is whether the finding of
the Trial Court is illegal or affected by an error of law or
fact. If not, the third consideration is whether the view
taken by the Trial Court is a fairly possible view. A decision
of acquittal is not meant to be reversed on a mere
difference of opinion. What is required is an illegality or
perversity.
26. It may be noted that the possibility of two views in a
criminal case is not an extraordinary phenomenon. The
two-views theory has been judicially recognized by the
Courts and it comes into play when the appreciation of
evidence results into two equally plausible views. However,
the controversy is to be resolved in favour of the accused.
For, the very existence of an equally plausible view in
favour of innocence of the accused is in itself a reasonable
doubt in the case of the prosecution. Moreover, it
reinforces the presumption of innocence. And therefore,
when two views are possible, following the one in favour of
innocence of the accused is the safest course of action.
Furthermore, it is also settled that if the view of the Trial
Court, in a case of acquittal, is a plausible view, it is not
open for the High Court to convict the accused by
reappreciating the evidence. If such a course is
permissible, it would make it practically impossible to
settle the rights and liabilities in the eyes of law.
42. Our criminal jurisprudence is essentially based on
the promise that no innocent shall be condemned as guilty.
All the safeguards and the jurisprudential values of
criminal law, are intended to prevent any failure of justice.
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The principles which come into play while deciding an
appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal
trial and such appreciation must be comprehensive -
inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result
in a miscarriage of justice and is in itself a ground of
challenge;
(iii) If the Court, after appreciation of evidence, finds that
two views are possible, the one in favour of the accused
shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view,
mere possibility of a contrary view shall not justify the
reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal
in appeal on a re-appreciation of evidence, it must
specifically address all the reasons given by the Trial Court
for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the
appellate Court must demonstrate an illegality, perversity
or error of law or fact in the decision of the Trial Court."
It cannot go unnoticed that that in view of principles of
criminal jurisprudence, presumption of innocence runs in favour
of the accused unless proven guilty. This presumption
continues to operate at all stages of the trial. The presumption
of innocence gets established when the charge alleged against
him ends in acquittal. The presumption doubles once the
accused is proved innocent. A person/ prosecution, who intends
to prosecute the accused for charge, in which he has been
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acquitted after appreciation of evidence on record gets on higher
footings and his expected to be rebut the same in appeal.
12. Having heard learned APP for the appellant - State, and
looking to the case on hand, it appears that prosecution case
hinges upon circumstantial evidence, but going by case of the
prosecution, no motive is established or killing deceased is
established. Learned APP fairly submitted that prosecution has
no case to prove what was motive to kill deceased. Apart from
this aspect, if we go through evidence on record, solitary
evidence is that of complainant - PW-1 at Exh.6. If we read and
analyze evidence of PW - 1 - complainant along with FIR on
record, she has not levelled any allegations against any person
nor she has shown any suspicion. She has pointed out
suspicion against accused only on the ground that deceased
went to take curd from his house and subsequently, dead body
of the deceased was found from field. Significant to note that no
injury has been noted on dead body in PM report. Cause of
death in autopsy report is died due to asphyxia due to drowning.
To be recollected that deceased was found lying flipped facing
earth substantially water filled agricultural field.
13. One more aspect pointed out by learned APP is big stone
was placed near body of the deceased when it was found from
field. She would further submit that this would indicate that
deceased was kept in field and then very big stone was put on
dead body as to see that he would be drown in field which is
filled with rainy water. However, in this regard, no further
evidence is on record, which would point finger of suspicion
towards accused. There is no substance in last seen together
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theory as alleged against the accused. Even otherwise such
evidence is weak piece of evidence and cannot form basis of
conviction.
14. In nutshell, there is no evidence much less evidence which
speaks or point finger of suspicion against accused to prove
charge levelled against him.
15. In order to prove evidence against accused being
circumstantial evidence, one has to keep in mind panchsheel
principle laid down by Hon'ble Apex Court in the well celebrated
case of Sharad Birdhichand Sarda v. State of Maharashtra
[(1984) 4 SCC 116]. Recently, the Hon'ble Apex Court has
reiterated in the said principle in the case of Ballu @ Balram @
Balmukund Versus State Of Madhya Pradesh [2024 (0) AIR(SC)
1678]. Relevant para 6 and 8 of said judgment reads as under :-
"6. Undoubtedly, the prosecution case rests on
circumstantial evidence. The law with regard to conviction
on the basis of circumstantial evidence has very well been
crystalized in the judgment of this Court in the case of
Sharad Birdhichand Sarda v. State of Maharashtra, (1984)
4 SCC 116 = 1984 INSC 121 wherein this Court held thus:
"152. Before discussing the cases relied upon by the
High Court we would like to cite a few decisions on
the nature, character and essential proof required in
a criminal case which rests on circumstantial
evidence alone. The most fundamental and basic
decision of this Court is Hanumant v. State of
Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343
: 1952 SCR 1091 : 1953 Cri LJ 129] . This case has
been uniformly followed and applied by this Court in
a large number of later decisions up-to-date, for
instance, the cases of Tufail (Alias) Simmi v. State of
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Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55]
and Ramgopal v. State of Maharashtra [(1972) 4 SCC
625 : AIR 1972 SC 656] . It may be useful to extract
what Mahajan, J. has laid down in Hanumant case
[(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR
1091 : 1953 Cri LJ 129] :
"It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of
guilt is to be drawn should in the first instance
be fully established, and all the facts so
established should be consistent only with the
hypothesis of the guilt of the accused. Again,
the circumstances should be of a conclusive
nature and tendency and they should be such
as to exclude every hypothesis but the one
proposed to be proved. In other words, there
must be a chain of evidence so far complete as
not to leave any reasonable ground for a
conclusion consistent with the innocence of the
accused and it must be such as to show that
within all human probability the act must have
been done by the accused."
153. A close analysis of this decision would show
that the following conditions must be fulfilled before
a case against an accused can be said to be fully
established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
It may be noted here that this Court indicated that
the circumstances concerned "must or should" and
not "may be" established. There is not only a
grammatical but a legal distinction between "may be
proved" and "must be or should be proved" as was
held by this Court in Shivaji Sahabrao Bobade v.
State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC
(Cri) 1033 : 1973 Crl LJ 1783] where the
observations were made: [SCC para 19, p. 807: SCC
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(Cri) p. 1047]
"Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
distance between may be and must be is long
and divides vague conjectures from sure
conclusions."
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable ground
for the conclusion consistent with the
innocence of the accused and must show that
in all human probability the act must have
been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based
on circumstantial evidence."
8. It is settled law that the suspicion, however strong it
may be, cannot take the place of proof beyond reasonable
doubt. An accused cannot be convicted on the ground of
suspicion, no matter how strong it is. An accused is
presumed to be innocent unless proved guilty beyond a
reasonable doubt."
16. In view of above, in the present case, learned APP has
failed to point out any reason to interfere with impugned
judgment and order. Even before the learned Trial Court, there
was no plausible case against accused, on acquitting accused
presumption of innocence is doubled.
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17. Considering the 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.
18. Resultantly, present Criminal Appeal stands dismissed.
Bail bond discharged. Judgment and order recorded in Sessions
Case No.185 of 1995 by learned Additional Sessions Judge,
Panchmahal at Godhra stands approved. Record and
Proceedings be send back. Non valuable Muddamal if any, be
destroyed, if already not destroyed.
(SANDEEP N. BHATT,J)
(J. C. DOSHI,J)
SATISH
