(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
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1. Feeling aggrieved and dissatisfied with the judgment and order of
acquittal dated 16.10.1997 passed by the learned Sessions Judge,
Banaskantha, at Palanpur in Sessions Case No.27 of 1991, whereby the
respondents accused came to be acquitted for the offences under section
302 read with section 34 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. The brief facts leading to the filing of the present appeal are as
under:
On 10.12.1990, at approximately 11:00 AM, the complainant was
informed that one Chanduji, who had gone to the complainant's field to
apply fertilizer to his mustard crop, had diverted water from a canal into
the complainant's field. Around 12:00 PM, the complainant confronted
Chanduji, advising him not to dispute over water. The complainant then
left for his home due to his wife's illness.
2.2 At approximately 3:00 PM, while returning to the field, the
complainant met Balwantji Sardarji in Godar village, who informed him
that Chanduji had been attacked and thrown into a canal. The
complainant, along with Balwantji, proceeded to the field and found
Chanduji deceased in the canal, with no visible injuries on his body but
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signs of strangulation by a rope. Suspecting murder, the complainant
reported the incident to the village Sarpanch, Virabhai Narsinhbhai Patel,
and Narsinh Manaji of Khodana.
2.3 The FIR was lodged on 10.12.1990 at Gadh Police Station under
Sections 302 and 34 IPC. The accused were arrested on 11.12.1990 at
6:30 PM and remanded to judicial custody. After investigation, a
chargesheet was filed on 07.01.1991 before the Chief Judicial Magistrate,
Palanpur, registered as Criminal Case No. 141 of 1991.
2.4 As the Chief Judicial Magistrate lacked jurisdiction to try an
offence under Section 302 IPC, the case was committed to the Sessions
Court, Palanpur, vide order dated 08.02.1991. The case was registered as
Sessions Case No. 27 of 1991 for trial.
2.5 Thereafter, the trial was conducted in Sessions Case No. 27 of
1991 before the Learned Sessions Judge, Banaskantha at Palanpur. After
examining the evidence, witness testimonies, and submissions from both
sides, the court delivered its judgment and order on 16.10.1997.
3. In pursuance of the complaint lodged by the complainant with the
Gadh Police Station for the offence under sections 302, 34 of IPC, the
investigating agency recorded statements of the witnesses, drawn
panchnama of scene of offence, discovery and recovery of weapons 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 Chief Judicial Magistrate, Banaskantha, at Palanpur.
As said Court lacks jurisdiction to try the offence, it committed the case
to the Sessions Court, Ahmedabad as provided under section 209 of the
Code.
4. Upon committal of the case to the Sessions Court, Ahmedabad,
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. During the course of trial, the prosecution
has examined in all 10 witnesses. The details of the aforesaid evidence
led by the prosecution is reproduced in the tabular form as under :-
1. Khushalbhai Bhikhabhai - Complainant PW-1 7
~:: Documentary Evidence ::~
Sr. no. Particular Exh.
2. Panchanama of place of incident 11 & 13
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5. 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 respondents accused
denied all incriminating circumstances appearing against them as false
and further stated that they are innocent and false case has been filed
against them.
6. We have heard learned APP Mr. Manan Mehta for the appellant -
State and learned advocate Mr. Yogendra Thakore, learned advocate
appearing for respondent and minutely examined oral and documentary
evidence adduced before the learned Sessions Court.
7. Mr. Manan Mehta, learned APP appearing for the appellant - State
herein submits that the impugned order is required to be interfered with
mainly on the ground that the deposition of Dhamaji Chaturji (PW-2)
below Ex.9 was an eye-witness to the alleged incident. It is submitted that
it is not in dispute that the cause of death of deceased Thakor Chanduji
Umedji is asphyxia due to drowning in the water, which emerges from
doctor's certificate at page no. 44 and the post-mortem report at page
No.52. In view of the aforesaid submissions, it is submitted that the
competent court has erred in acquitting the passing the impugned order.
Mr. Manan Mehta, learned APP appearing for the appellant - State
further relied upon the complaint below Ex.24, the deposition of the
complainant Khushalbhai Bhikhabhai (PW-1) examined below Ex.7 at
page no.17, deposition of Dhamaji Chaturji (PW-2) examined below Ex.9
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at page no.20, deposition of the wife of the deceased Chanduji viz.
Baibaben Chanduji (PW-3) who is examined below Ex.10 at page no.24,
the deposition of Kanjibhai Ganeshbhai (PW-4) examined below Ex.17 at
page no.35, deposition of medical officer Dr. Devabhai Becharbhai (PW-
5) examined below Ex.20 at page no.41 and deposition of P.S.I. D.R.
Zala (PW-7) examined below Ex.25 at page no.60.
8. Mr. Yogendra Thakore, learned Advocate for the respondents
submit that no interference is called for in the impugned judgment passed
by the court in view of the fact that only Dhamaji Chaturji (PW-2) who is
examined below Ex.9 is an unreliable witness as, it emerges from the
record that the said witness never informed the police at the relevant point
of time though he was present from the time of incident till the death of
the deceased Chanduji. It was only after the cremation of Chanduji
Dhamaji Chaturji (PW-2) informed to the village Sarpanch, Virabhai
Narsinhbhai Patel, and Narsinh Manaji of Khodana that he was the
witness to the incident and that the deceased Chanduji had been attacked
and thrown into a canal. It is submitted that the complainant i.e.,
Khushalbhai Bhikhabhai (PW-1) who was examined below Ex.7 has
turned hostile. It is also submitted that the wife of the deceased Chanduji
viz. Baibaben Chanduji (PW-3) is examined below Ex.10. PW-3 is a
hearse witness. Thus the deposition of wife of Chanduji is not helpful to
the case of the prosecution. It is submitted that it is not in dispute that
Chanduji succumbed to death due to asphyxia due to drowning in the
wather. However, the same cannot be proved against the respondents
herein in absence of any evidence on record. It is submitted that
deposition of Kanjibhai Ganeshbhai (PW-4) below Ex.17 is rightly not
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considered by the competent court. Learned advocate for the respondents
further submitted that in light of the finding of fact arrived at by the
competent court that, if there are standing crops of more than 6 feet on
the farm, then it is not possible to overhear any of the conversations that
were allegedly appearing between the accused and the deceased
Chanduji. Therefore, the said deposition of the deposition of the wife of
the deceased Chanduji viz. Baibaben Chanduji (PW-3) who is examined
below Ex.10, has rightly been discarded by the competent court. It is
submitted that in absence of any evidence which is proved beyond
reasonable doubt, this Court may not interfere with the impugned
judgment and order, wherein, the respondents herein are acquitted.
9. Heard learned advocates for the parties and perused the deposition
of witnesses as also documentary evidence placed on record as well as
the order passed by the learned Sessions Court. We have perused the
charge Ex.2 which is duly produced from page no.7 of the paper-book.
We have perused deposition of Khushalbhai Bhikhabhai (PW-1)
examined below Ex.7. Having considered the charges levied against the
respondents herein, it emerges that the complainant has turned hostile.
We have also considered the evidence of the wife of the deceased
Chanduji viz. Baibaben Chanduji (PW-3) who is examined below Ex.10,
in our opinion is hearse witness. We have considered the deposition of
Kanjibhai Ganeshbhai (PW-4) examined below Ex.17. We agree with the
view of the competent court having perused the record.
10. In the context of the reliance placed by the learned APP while
referring to the deposition of PW 3 Kanji, examined below Ex. 10, who
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claims to have seen the accused with the deceased, this witness has been
candidly considered. However, as reflected in the cross-examination, his
farm is situated beside the complainant's farm, where a canal for
irrigation purpose exists. It is further noted that in the complainant's farm
there are standing mustard crops, with a height of 5 to 6 feet, resulting in
a total height of approximately 12 feet from the ground. Consequently,
persons standing nearby cannot hear conversations or detect the presence
of individuals behind the standing crops. Therefore, the claim of the said
witness that he has seen and heard the conversation between the deceased
and the accused stands on equal footing and does not inspire confidence.
11. Admittedly, the prosecution has relied on the depositions of the
witness, namely Dhamaji Chaturji (PW-2) below Ex.9, who claims to be
an eyewitness to the incident. However, the conduct and demeanor of this
witness speak volumes. He claims to have been passing through the
complainant's farm, where the deceased was working as a laborer, and
due to interruption in the flow of canal water, this witness claims to have
rushed to the place of the incident. There, he further claims to have seen
the accused, namely Ranchhodji, strike the head of the deceased and push
him beneath the water, resulting in the deceased's death.
12. It is pertinent to note that, as reflected in the conduct and material
on record, the place where the deceased was found dead is surrounded by
several farms owned and possessed by neighbors, none of whom claimed
to have seen or witnessed the incident. This is attributed to the fact that
no one reached the location due to the interruption in the water flow. The
prosecution witness claims to possess a farm located 14 to 15 far away,
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yet he allegedly rushed to verify the interruption and claims to have found
the accused causing the death of the deceased by throwing him into the
canal water. It is further noted that the alleged incident took place at
11:00 AM on 10.12.1990, and at the same time, the witness's conduct in
remaining silent, neither intervening nor raising an alarm, casts doubt on
his credibility. Moreover, the witness claimed to have remained silent,
not disclosing the gruesome incident to anyone, and instead participated
in the last rituals and death procession of the deceased. It was only after
the completion of the cremation that he claimed to have witnessed the
incident and narrated it to one Narsinhji, who, notably, has not been
examined by the prosecution.
13. Thus, the sum and substance of the testimony of witness, coupled
with his demeanor during and subsequent to the incident, raise doubts
about the veracity of his claim to have witnessed the incident. Therefore,
the conclusion reached by the learned competent court that all the
witnesses lack credence, and the claim of the said witness appears to be
fabricated and concocted has rightly been discarded and not believed by
the learned Sessions Court.
14. It is not in dispute that the death of the deceased is by asphyxia due
to drowning in the water. However, we are inclined to consider the
aforesaid with the deposition of Dhamaji Chaturji (PW-2) examined
below Ex.9 at page no.20. Considering the deposition, it emerges that
though the said witness is not a reliable eye-witness as the witness was
present at the time when deceased Chanduji was cremated. Only after the
cremation of the deceased, Dhamaji Chaturji (PW-2) informed about the
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incident to the village Sarpanch, Virabhai Narsinhbhai Patel, and Narsinh
Manaji of Khodana. The competent court considered the aforesaid fact
has held that as per the cross-examination of Dharmaji Chaturji, he claims
to have witnessed the incident first. However, he did not immediately
disclose this to anyone. He met several people and visited the site of the
body not once but twice, where many others were present, yet he
remained silent. It was only on the evening of the following day that he
narrated the incident to Narsinhbhai. Therefore, such testimony is not
credible. Therefore, in our opinion, this witness has been put forward as a
fabricated eyewitness. The evidence of such a witness cannot be relied
upon to convict the accused.
15. The wife of the deceased Chanduji viz. Baibaben Chanduji (PW-3)
who is examined below Ex.10 claims that she heard the accused and the
deceased having conversation. In our opinion, the learned Sessions Court
has rightly disbelieved the same having arriving at a conclusion that the
conditions at the scene indicate that from a road six feet below, with six-
foot-high mustard crops in the field, it is impossible to see or hear any
conversation. The witness claims to have heard the deceased talking with
an individual but could not identify that person during cross-examination.
Thus, the witness appears to be a fabricated one, and their testimony
cannot be relied upon to convict the accused. Therefore, the order passed
by the competent court in our opinion requires no interference.
16. In the case of Bhupatbhai Bachubhai Chavda & Anr. v. State of
Gujarat [2024 INSC 295], Hon'ble Supreme Court has held as under :-
"6. It is true that while deciding an appeal against acquittal, the
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Appellate Court has to reappreciate the evidence. After re-
appreciating the evidence, the first question that needs to be
answered by the Appellate Court is whether the view taken by the
Trial Court was a plausible view that could have been taken based
on evidence on record. Perusal of the impugned judgment of the
High Court shows that this question has not been adverted to.
Appellate Court can interfere with the order of acquittal only if it
is satisfied after reappreciating the evidence that the only possible
conclusion was that the guilt of the accused had been established
beyond a reasonable doubt. The Appellate Court cannot overturn
order of acquittal only on the ground that another view is possible.
In other words, the judgment of acquittal must be found to be
perverse. Unless the Appellate Court records such a finding, no
interference can be made with the order of acquittal. The High
Court has ignored the well-settled principle that an order of
acquittal further strengthens the presumption of innocence of the
accused. After having perused the judgment, we find that the High
Court has not addressed itself on the main question.
7. The second error the High Court committed is found in
paragraph 23 of the impugned judgment. The High Court has gone
to the extent of recording a finding that the appellants have failed
to adduce evidence in their support, failed to examine the defence
witness and failed to establish falsity of the prosecution's version.
This concept of the burden of proof is entirely wrong. Unless,
under the relevant penal statute, there is a negative burden put on
the accused or there is a reverse onus clause, the accused is not
required to discharge any burden. In a case where there is a
statutory presumption, after the prosecution discharges initial
burden, the burden of rebuttal may shift on the accused. In the
absence of the statutory provisions as above, in this case, the
burden was on the prosecution to prove the guilt of the accused
beyond a reasonable doubt. Therefore, the High Court's finding on
the burden of proof is completely erroneous. It is contrary to the
law of the land.
8. We have carefully examined the evidence of the material
prosecution witnesses. PW-1 Danabhai stated that after he was
informed in the night around 9 O'clock about the assault on the
deceased by one Vajsurbhai, he proceeded by his bicycle. He
stated that when he reached Jhanjhmer, he found that his deceased
brother was laid in a tempo of Ramabhai. He stated about the
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presence of Arjanbhai and Jivabhai. He stated that no one
informed him about the incident at that time. He thereafter
described how the deceased was taken to the hospital of Dr Goti
and thereafter to a private hospital in Bhavnagar. PW-1 deposed
that PW-4 Karshanbhai went with him to Bhavnagar, and in the
hospital of Dr Rana, PW-4 informed PW-1 that the appellants had
assaulted the deceased by using a stick. He stated that though PW-
4 informed him that he was present at the time of the incident, he
did not tell him about the assault on him by the accused. Thus, PW-
1 did not state that PW-4 was present when he reached the place
where he found that the deceased was laid in a tempo, and
according to his version, PW-4 came to Bhavnagar. Though PW-4
stated that PW-1 came on a bicycle and came to Dhola with them,
the version of PW-1 is that PW-4 joined him at Bhavnagar. This
creates a doubt about the presence of PW-4 at the time of the
incident. Importantly, one Vajsurbhai, who informed PW-1 about
the assault on the deceased, has not been examined as a witness.
9. PW-4 admitted that there is an ongoing litigation about his
family's land between the appellants and his family. PW-4 claimed
that just before the fatal blow was inflicted on the deceased, a blow
was given to the witness by pipe around 8 pm on the date of the
incident. However, PW-5 Dr Jagadishbhai stated that when he
examined PW-4 on 19th September 1996, the history given by PW-
4 was to the effect that he was assaulted by a pipe on 18th
September 1996 at 8.00 pm. The incident is of 17th September
1996. The High Court has completely brushed aside this statement
of PW-5 by observing that once the police recorded statements of
the Doctor and PW-4, the statements of PW-4 and the Doctor
before the Court became meaningless. As is apparent from Section
162 of the Code of Criminal Procedure, 1973 (CrPC), statements
recorded by police under Section 161 of the CrPC cannot be used
for any purpose except to contradict the witness. The Trial Court
gives several reasons for discarding the testimony of PW-4. His
prior enmity with the appellants and his failure to report the
incident to the police, notwithstanding available opportunities, are
also the factors considered by the Trial Court.
10. Therefore, after having perused the evidence of the material
prosecution witnesses, in our view, the finding of the Trial Court
that the evidence of PW-4 did not inspire confidence is a possible
finding which could have been recorded on the basis of the
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evidence on record. There was no reason for the High Court to
overturn the order of acquittal when the findings of the Trial Court
were possible findings that could be arrived at after reappreciating
evidence.
11. Therefore, the appeal must succeed. We set aside the judgment
and order dated 14th December 2018 of the High Court and set
aside the conviction of the appellants. The judgment and order
dated 5th July 1997 of the Trial Court is restored. The appeal is,
accordingly, allowed. The bail bonds of the appellant no.2 are
cancelled. The appellant no.1 shall be forthwith set at liberty
unless he is required to be detained in connection with any other
case."
17. In our opinion, the findings arrived at by the competent court are
just and proper and does not require any interference.
18. In view of the above and for the reasons stated above, present
Criminal Appeal deserves to be dismissed and is accordingly dismissed.
(VAIBHAVI D. NANAVATI,J)
(R. T. VACHHANI, J)
Mitesh/sompura
