Gujarat High Court
State Of Gujarat vs Rajubhai Parshottambhai Koli Patel on 13 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 951 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
RAJUBHAI PARSHOTTAMBHAI KOLI PATEL & ANR.
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Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 13/02/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State
under Section 378(1)(3) of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the Code') against the judgment and the
order dated 09.12.2005 in Sessions Case No.15 of 2005 passed by
the Presiding Officer, 4th Fast Track Court, Nadiad (hereinafter
referred to as 'the Trial Court'), whereby, the Trial Court has
acquitted the respondents - accused from the offences punishable
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under Sections 452, 393, 398, 120(B) and 34 of the Indian Penal
Code (hereinafter referred to as 'the IPC') and Section 25(1)(a)(b) of
the Arms Act, 1959. The respondents are hereinafter referred to as
'the accused' as they stood in the rank and file in the original case,
for the sake of convenience, clarity and brevity.
2. During pendecy of the present appeal, the respondent
No.2 - original accused No.2 Rajubhai Babubhai Parmar has
expired on 28.12.2024. Copy of the death certificate is produced
and the same is taken is taken on record, and hence, the present
appeal qua respondent No.2 herein - original accused No.2 stands
disposed of as abated.
3. The relevant facts leading to filing of the present
appeal are as under:
3.1. The complainant Jashodaben, wife of Ashokbhai
Nathabhai Patel, has filed the complaint on 24.12.2001 mainly
stating that while she was at home at around 11:30am, Jayrambhai
Savabhai Rabari, nephew of her earlier neighbour in Ashoknagar,
came along with other three persons to her house and asked for
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drinking water as they had come to the Civil Hospital. That she
asked them to sit and went to bring water and after she gave them
water, Jayrambhai Savabhai Rabari wanted to use the washroom
and he immediately returned from the washroom and at that time,
one of the three persons, had shut the door. That she opened the
door and one of the three persons told her to keep the door shut
and closed the door once again and while she was returning from
the kitchen, one of the persons was talking to Jayrambhai Savabhai
Rabari about the kidney and Jayrambhai Savabhai Rabari asked
her how much would he get for a kidney and she told Jayrambhai
Savabhai Rabari to ask her husband. That at that time, one of the
persons caught her throat and her son intervened and the other
persons caught her son and the third person showed her a
revolver and an handkerchief from which there was smell of
chloroform and she pushed them and opened the door of her
house and started shouting. That her neighbours came and all four
of them ran down the stairs and out of the four, Jayrambhai
Savabhai Rabari was caught by the neighbours Buprendrabhai
Vyas, Indravadan Desai etc. That in the struggle, she sustained
sprain on the wrist of her left hand and the complainant filed the
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complaint with Nadiad Town Police Station which was registered
at I-C.R.No. 489 of 2001 under Sections 452, 393, 398, 120(B) and 34
of the IPC and 25(1)(a)(b) of the Arms Act.
3.2. After registration of the FIR, the investigation was
carried out by the concerned Investigating Officer and after having
sufficient material against the accused, the chargesheet came to be
filed before the concerned jurisdictional Magistrate. As the case
was exclusively triable by the Court of Sessions, the process under
Section 209 of the Cr.P.C. was undertaken and the case was
committed to the Sessions Court and the same was registered as
Sessions Case No.15 of 2005.
3.3. The accused was duly served with the summons and
the accused appeared before the Trial Court and it was verified
whether the copies of all the police papers were provided to the
accused as per the provisions of Section 207 of the Code and a
charge was framed by the Trial Court at Exh.8 and the statements
of the accused were recorded at Exhs. 9 and 10, wherein, the
accused denied all the contents of the charge and the entire
evidence of the prosecution was taken on record. The prosecution
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has examined 10 witnesses and has produced 24 documentary
evidences in support of the case.
3.4. After the closing pursis was submitted by the learned
APP at Exh.22, the further statement of the accused under Section
313 of the Code was recorded. After hearing the arguments of the
learned APP and learned advocate for the accused and after
perusing the documents on record, the Trial Court, by the
impugned judgment and order, has acquitted the accused for the
offences punishable under Sections 452, 393, 398, 120(B) and 34 of
the Indian Penal Code (hereinafter referred to as 'the IPC') and
Section 25(1)(a)(b) of the Arms Act.
4. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the Trial Court, the appellant -
State has filed the present appeal mainly stating that the impugned
judgment and order passed by the Trial Court is contrary to law.
The Trial Court has erred in believing the version of the PW-1 and
PW-2 as both the witnesses have narrated similar facts and both
the witnesses have supported the case of the prosecution. The Trial
Court has erred in not believing the version of PW-3 who has
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identified both the accused and PW-3 has been cross-examined by
the other side, but nothing could have been elicited from this
witness. The Trial Court has erred in arriving at conclusion that
the prosecution has failed to establish the guilt of the accused
beyond reasonable doubts. The Trial Court has failed to rely upon
the test identification parade as well as the version of two eye
witnesses, who has categorically stated the role attributed by the
present accused persons. The Trial Court has erred in acquitting
the accused on the ground of benefit of doubt. The impugned
judgment and order of acquittal passed by the Trial Court is
illegal, invalid, improper, perverse and bad in law and the same
deserves to be quashed and set aside.
5. Heard learned APP Ms.Jirga Jhaveri for the appellant -
State. Though served, the respondent No.1 has not appeared either
in person or through an advocate. Perused the impugned
judgment and order of acquittal and have re-appreciated the entire
evidence of the prosecution on record of the case.
6. Learned APP Ms.Jirga Jhaveri for the appellant - State
has taken this Court through the entire evidence produced by the
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prosecution and has vehemently argued that the Trial Court has
not appreciated the evidence properly and the prosecution has
produced cogent evidence to prove the the case and has
successfully proved the case against the accused but the Trial
Court has not considered the same and has acquitted the accused.
The judgment and order of acquittal passed by the learned Judge
is contrary to law, evidence on record and principles of justice. The
judgment and order of acquittal passed by learned Judge is based
on inferences, not warranted by facts of the case and also on
presumption, not permitted by law. Learned APP has urged this
Court to quash and set aside the impugned judgment and order of
acquittal and to find the accused guilty for the said offence.
7. At the outset, before discussing the facts of the present
case, it would be appropriate to refer to the observations of the
Apex Court regarding the acquittal appeal in the case of
Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4)
SCC 415, the Apex Court has observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313 :
AIR 2006 SC 831, this Court stated; "While deciding an appeal against
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acquittal, the power of the Appellate Court is no less than the power
exercised while hearing appeals against conviction. In both types of
appeals, the power exists to review the entire evidence. However, one
significant difference is that an order of acquittal will not be interfered
with, by an appellate court, where the judgment of the trial court is
based on evidence and the view taken is reasonable and plausible. It
will not reverse the decision of the trial court merely because a
different view is possible. The appellate court will also bear in mind
that there is a presumption of innocence in favour of the accused and
the accused is entitled to get the benefit of any doubt. Further if it
decides to interfere, it should assign reasons for differing with the
decision of the trial court". (emphasis supplied)
........ From the above decisions, in our considered view, the following
general principles regarding powers of appellate Court while dealing
with an appeal against an order of acquittal emerge;]
(1) An appellate Court has full power to review, reappreciate
and reconsider the evidence upon which the order of
acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
appellate Court on the evidence before it may reach its
own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling
reasons', 'good and sufficient grounds', 'very strong
circumstances', 'distorted conclusions', 'glaring mistakes',
etc. are not intended to curtail extensive powers of an
appellate Court in an appeal against acquittal. Such
phraseologies are more in the nature of 'flourishes of
language' to emphasize the reluctance of an appellate
Court to interfere with acquittal than to curtail the power
of the Court to review the evidence and to come to its
own conclusion.
(4) An appellate Court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
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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.
8. It is a settled principle of law that in an appeal against
acquittal, the Appellate Court is circumscribed by limitation that
no interference has to be made in the order of acquittal unless after
appreciation of the evidence produced before the Trial Court, it
appears that there are some manifest illegality of perversity which
could not have been possibly arrived at by the Court. It is also a
settled principle that there is no embargo on the Appellate Court
to review the evidence but, generally the order of acquittal shall
not be interfered with as the presumption of innocence of the
accused is further strengthened by the order of acquittal. The
golden thread which runs through the web of administration of
justice in criminal cases is that if two views are possible on the
evidence adduced in the case of the prosecution i.e. (i) guilt of the
accused and (ii) his innocence, the view, which is in favour of the
accused, should be adopted, and if the trial Court has taken the
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view in favour of the accused, the Appellate Court should not
disturb the findings of the acquittal. The Appellate Court can
interfere with the judgment and order of acquittal only when there
are compelling and substantial reasons and the order is clearly
unreasonable and where the Appellate Court comes to conclusion
that based on the evidence, the conviction is a must.
9. In light of the above, the evidence produced by the
prosecution on record is appreciated and the prosecution has
examined PW-1 Jashodaben W/o Ashokbhai Nathabhai Patel at
Exh.13 and the witness is the complainant, who has narrated the
facts of the complaint on oath. During the cross-examination by
the learned advocate for the accused, the witness has stated that
her husband is working as an Anesthetist in the kidney hospital
and Jayrambhai Savabhai Rabari was known to her husband. That
for the Test Identification Parade, she had gone from the Police
Station with the police and the accused to the Mamlatdar Office,
and she had thereafter identified the accused during T.I. parade.
9.1. The prosecution has examined PW-2 Nikunjbhai
Ashokbhai at Exh.15 and the witness is the eye witness and the son
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of the complainant who has fully supported the case of the
prosecution. During the cross-examination by the learned
advocate for the accused, the witness has stated that he had never
seen any of the four persons before the incident and they had
entered into the house after his mother had opened the door and
asked all the four persons to sit. That he does not know after how
long was he called by his mother as he was in the next room and
till he was called, he did not know who had come into the house.
That his mother had shouted and called him and he came outside
but, he could not identified the four persons. That he did not know
the name of any of the accused and the person, who was caught,
was caught in the ground.
9.2. The prosecution has examined PW-3 Bhupendrabhai
Bhanuprasad Vyas at Exh.16 and the witness is the neighbour,
who has stated that on 24.12.2001 between 11:00am to 12:00 noon,
he was in his house and he heard Jashodaben shouting and he
came out of his house and saw four persons running away. That
his house is on the second floor and Jashodaben's house is on the
third floor and he saw all the four persons going down the stairs
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and he too ran down and caught one person. During the cross-
examination by the learned advocate for the accused, the witness
has stated that he came out about five minutes after the shouts
were heard and all the accused ran away. That he was not called
during the test identification parade and when he went down, the
other persons from the block had gathered. That he does not know
where the person was caught from.
9.3. The prosecution has examined PW-4 Dilipbhai
Someshwar Bhatt at Exh.17 and the witness is the Executive
Magistrate, who has conducted the Test Identification Parade in
the presence of the panch witnesses and had drawn the
panchnama in the presence of the panch witnesses. During the
cross-examination by the learned advocate for the accused, the
witness has stated that the accused and the witnesses were
brought before him by the police and he does not know where the
panch witnesses were called from. That the police and the peon
had called the dummy persons and he does not as to whether the
dummy persons had seen the accused earlier or not. That it was
his first Test Identification Parade and he had not inquired the age
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of the accused and there was no mention of the age of the accused
in the yadi. That he cannot say as to whether the dummy persons
were similar in looks to the accused or not and there is only one
way to enter and exit the Mamlatdar office.
9.4. The prosecution has examined PW-5 Rashmikant
Nagindas Bhavsar at Exh.22 and the witness is the panch witness
of the panchnama of the Test Identification Parade. The witness
has stated that he was called to the Mamlatdarr Office on
20.12.2001 at around 3:00pm and Maheshbhai Vadilalbhai was the
other panch witness. That he was informed by the Mamlatdarr
about the Test Identification Parade, which was conducted in the
computer room adjacent to the Mamlatdar Office and the Test
Identification Parade was conducted in their presence. The
complainant identified the accused and the panchnama was
drawn and they had affixed their signature on the panchnama,
which is produced at Exh.23. During the cross-examination by the
learned advocate for the accused, the witness has stated that on
28.12.2001, he was at the Mamlatdar Office when he was called for
Test Identification Parade. That he does not know who had called
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him and the other panch witness Maheshbhai Vadilalbhai had also
come at Mamlatdar Office with him. That he has his business in
front of the Mamlatdar office and he is very well versed to the
Mamlatdar Office and they were called to the computer room.
That after the accused were brought into the room, they were not
asked for their names or addresses and 9-10 persons were called
from outside. That before the accused were called, the Executive
Magistrate had not written anything and the Mamlatdar did not
inquire the names of the persons, who were standing in the room.
9.5. The prosecution has examined PW-6 Hanifbhai
Bachubhai Vohra at Exh.25 and the witness is the panch witness of
the arrest panchnama which is produced at Exh.26. The witness
has not supported the case of the prosecution and has been
declared hostile.
9.6. The prosecution has examined PW-7 Saurabbhai
Kanubhai Shah at Exh.27 and the witness is the panch witness of
the panchnama of the place of offence which is produced at
Exh.28. The witness has fully supported the case of the prosecution
and during the cross-examination, he has stated that he is working
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in the purchase department of the kidney hospital. Ashokbhai
Nathabhai is also working in the kidney hospital in the
sterilization department and he is his good friend and he visits his
house and is known to his wife.
9.7. PW-8 Jehtabhai Bhikhabhai examined at Exh.29 is PSO
of Nadiad Town Police Station, who has registered the complaint
of the complainant at I-C.R.No.489 of 2001.
9.8. PW-9 Navalsinh Madhusinh Solanki examined at
Exh.30 is the second Investigating Officer, who has filed the charge
sheet against the accused.
9.9. PW-10 Pratapsinh Udesinh Raval examined at Exh.31
is the Investigating Officer who has narrated in detail the
procedure undertaken by him during investigation. During the
cross-examination by the learned advocate for the accused, the
witness has stated that the complainant had given the oral
complaint and in the complaint, the details of "kidney" were made
out and the fact that the husband of the complainant was was
working in the kidney hospital was also made out. That in the
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complaint, there was also a reference about the sale of the kidney
and money but the same was not investigated during investigation
and during the statement of Nikunjbhai Ashokbhai, the son of the
complainant he had stated that Jayrambhai Savabhai Rabari was
known to his mother and he used to frequently come to his house.
10. On minute appreciation of the entire evidence of the
prosecution, the accused have been charged with the offence
under Section 452 of the Cr.P.C. but, in the complaint and the
deposition of the complainant, it has come on record that the
accused Jayrambhai Savabhai Rabari was known to the
complainant and he was called into the house by the complainant.
That he had rang the bell and the complainant Jashodaben opened
the door and all the four persons had come and were asked to sit,
and hence, there is no iota of evidence that the accused has forcibly
entered into the house. That there is no evidence as to which of the
accused had a handkerchief with chloroform or the revolver and
there are major contradictions in the deposition of the complainant
and eye witness PW-2 Nikunjbhai Ashokbhai. That there is
evidence that there was talk about the sale of kidney and money
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with the complainant and the Test Identification Parade is not
reliable as the complainant has herself stated that she had gone
along with the police and the accused to the Mamlatdar Office and
she had seen the accused prior to the Test Identification Parade.
That there is no clear evidence about the role played by each of the
accused and the learned Trial Court has considered all the oral and
documentary evidence and has found that the prosecution has not
proved the case beyond reasonable doubts.
11. In view of the above, the Trial Court has appreciated
the entire evidence in proper perspective and there does not
appear to be any infirmity and illegality in the impugned
judgment and order of acquittal. The Trial Court has appreciated
all the evidence and this Court is of the considered opinion that
the Trial Court was completely justified in acquitting the accused
of the charges leveled against them. The findings recorded by the
Trial Court are absolutely just and proper and no illegality or
infirmity has been committed by the trial Court and this Court is
in complete agreement with the findings, ultimate conclusion and
the resultant order of acquittal recorded by the Trial Court. This
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Court finds no reason to interfere with the impugned judgment
and order and the present appeal is devoid of merits and
resultantly, the same is dismissed.
12. The impugned judgment and the order dated
09.12.2005 in Sessions Case No.15 of 2005 passed by the Presiding
Officer, 4th Fast Track Court, Nadiad is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S.KAZI
