CR.A/578/1986 1/65 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 578 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus HATHISINH A PARMAR - Opponent(s) ========================================================= Appearance : MR.M.R.MENGDEY, ADDL. PUBLIC PROSECUTOR for Appellant, MR VIRENDRA BAHETI for Opponent- Org. Accused ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 23/07/2008 CAV JUDGMENT CR.A/578/1986 2/65 JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1. The instant appeal is preferred by the State under Section 378 of the Code of Criminal Procedure, against the judgment and order delivered by learned Additional Sessions Judge, Panchmahal at Godhra on 11th December, 1985 in Sessions Case No.78 of 1985, whereby the present opponent-Hathisinh Andarsinh Parmar, being accused of the said Sessions Case, came to be acquitted by learned Additional Sessions Judge, Panchmahal at Godhra for the charge levelled against the accused under Section 302 of the Indian Penal Code. Division Bench of this Court was pleased to admit this appeal on 28th August, 1986 and bailable warrant was issued against the respondent-accused. Now, respondent-accused is represented in this appeal by learned Advocate Mr.Virendra Baheti, who is Advocate appointed to represent the accused. 2. As per the brief case of prosecution, the incident occurred at Village Gollav, situated in Panchmahal District, on 13th April, 1985 at about 22:00 hours. Deceased in this case is Fatehsinh Andarsinh Parmar. FIR report has been lodged by Ganpatsinh Andarsinh Parmar, who is brother of the deceased and the brother of the accused as well. CR.A/578/1986 3/65 JUDGMENT Deceased and accused were stepbrothers. Complainant were four brothers and staying separately. Though out of four, three were staying in adjoining houses; while fourth was staying at little distance. Complainant-Ganpatsinh is brother of Fatehsinh- deceased in this case and third brother – Raghunathsinh are brothers from same mother; while accused-Hathisinh happens to be stepbrother by separate mother of the complainant and his real other three brothers. According to prosecution case, all the four brothers had separate agricultural land and as such their names were entered separately in separate lands. On the day of incident i.e. on 13th April, 1985 at about 22:00 hours while complainant- Ganpatsinh after taking his meal at night, was sleeping in his courtyard, accused and his wife – Amrutben started quarreling with other brothers, who were staying nearby about the land which they were cultivating. Complainant-Ganpatsinh advised them to take rest and sleep and let others also take rest. Even thereafter also, accused-Hathisinh and his wife- Amruta, continued quarreling with other brothers. At that time, deceased-Fatehsinh-brother of the complainant was sitting with Prabhatsinh Sardarsinh at the residence of Prabhatsinh. He came out of the CR.A/578/1986 4/65 JUDGMENT house of Prabhatsinh and requested the accused – Hathisinh that disputes could be settled on next day and at late of night there was no meaning of quarrel and to disturb the peace and sleep of all other neighbours. At that time, accused came out from his house and inflicted two blows of knife on the body of the deceased. Deceased started shouting and accused ran away with knife. Neighbours including Ganpatsinh Andarsinh, brother of the deceased-Kalusinh, Natvarsinh Fatehsinh, both sons of the deceased and other person witnessed this incident and it was found that knife blows were given by the accused on the chest of deceased. They were preparing to call doctor as deceased was lying in seriously injured condition, but within short time, Fatehsinh died and therefore all his relatives waited for the night and on the second day i.e. on 14th April, 1985 in the morning at 9:30 a.m., Ganpatsinh Andarsinh gave complaint before Devgadh Baria Police Station, which was registered as C.R.No.I-36 of 1985. Though on the same day, within half and hour of the incident, the Police Patel of the village was contacted, but due to non-availability of any means of transport, complaint could not be filed by the complainant on the same day and was filed on the next day. The cause of dispute CR.A/578/1986 5/65 JUDGMENT as per the prosecution case was the enmity in respect of the land because accused had grievance that though they were cultivating land which came to their share, but was not entered in their name in revenue record. Investigation was handed over to the then PSI, Devgadh Baria Police Station, Chandrakant Lallubhai Vora, Prosecution Witness No.8. After recording the statement of concerned witnesses, he arranged to forward the dead body for postmortem. Prosecution Witness No.4-Dattatray Radhakisan conducted postmortem of dead body. Investigating Officer thereafter prepared Panchnama of scene of offence and while he was leaving for Devgadh Baria for investigation at Village Gollav, accused appeared in Police Station. He had injury and was arrested noting injuries on his body. Thereafter, the accused volunteered to show weapon used in the crime and Investigating Officer draw discovery Panchnama by which from one ravine of culvert of the road, the accused took out knife which was seized as muddamal. Blood sample of the deceased and the clothes of the deceased as well as clothes of the accused upon which there were blood stains were seized as muddamal and were forwarded to Forensic Science Laboratory for analysis. Accused was also referred hospital for his CR.A/578/1986 6/65 JUDGMENT injuries. Ultimately, after investigation was over, a charge-sheet came to be filed against the accused before the learned Judicial Magistrate First Class at Devgadh Baria. The offence was triable by the Court of Sessions and learned Magistrate committed the case to the Court of Sessions at Panchmahal at Godhra which was registered as Sessions Case No.78 of 1985 and the case was made over to learned Additional Sessions Judge for trial. 3. Vide Exh.4 learned Additional Sessions Judge framed charges against the accused on 21st October, 1985 stating that on 13th April, 1985 at about 10:00 p.m., at Village Gollav at Devgadh Baria Taluka, in the courtyard of the deceased which was situated just opposite the house of the accused, accused with the knowledge and intention inflicted blows with knife on the chest of the deceased and since those injuries were sufficient in ordinary course of nature to cause death and thereby deceased – Fateshsinh Andarsinh Parmar died. The accused was liable for the offence punishable under Section 302 of the Indian Penal Code. Accused pleaded not guilty and hence prosecution examined as many as eight witnesses as under: CR.A/578/1986 7/65 JUDGMENT 1. Ganpatsinh Andarsinh Exh.12 2. Kalusinh Fatehsinh Exh.13 3. Natvarsinh Fatehsinh Exh.14 4. Dr.Dattatrey Radhakisan Exh.15 5. Jayantilal Kodarlal Exh.17 6. Police Constable, Chhatrasinh Malabhai Exh.21 7. Jumabhai Tesing Exh.22 8. P.S.I, Chandrakant Lalluram Vora Exh.23 4. Prosecution also produced on record documentary evidence like F.I.R., Exh.24, Postmortem Note Exh.16, Panchnama of body of the accused and seizure of cloths at Exh.18, Panchnama of scene of offence at Exh.17, Discovery Panchnama at Exh.20 by which the clothes of the deceased was seized, forwarding note of muddamal to F.S.L. at Exh.27, Serological Report of Forensic Science Laboratory at Exh.27 and other reports of Forensic Science Laboratory. 5. On the evidence of prosecution being over, learned trial Judge brought to the notice of the accused circumstances appearing against him for explanation of the accused under Section 313 of the CR.A/578/1986 8/65 JUDGMENT Code of Criminal Procedure. The case of the accused was of total denial and he stated that the evidence of prosecution was false. He denied to examine any witnesses in defence. Learned trial Judge, thereafter, heard prosecution and defence at length and came to the conclusion to acquit the accused of the charge under Section 302 of the Indian Penal Code levelled against him and hence this appeal against the order of acquittal by the State. 6. Learned Additional Public Prosecutor, Mr.M.R.Mengdey, vehemently urged that the judgment and order under challenge is not only erroneous but perverse, because it has been established by the prosecution that the death of the deceased was as culpable homicide and the injuries which he received was sufficient in the ordinary course of nature to cause death. It is vehemently argued that it has been proved by the prosecution beyond doubt that there was motive on the part of the accused on account of land dispute to cause death. It has been also argued that there are three eye-witnesses of the incident i.e. Prosecution Witness No.1-Ganpatsinh Andarsinh, Prosecution Witness No.2-Kalusinh Fatehsinh and Prosecution Witness No.3-Natvarsinh Fatehsinh of the CR.A/578/1986 9/65 JUDGMENT incident, who have noticed the accused inflicting injuries and running away the accused from the scene of offence with knife in the hand of the accused. The reasons advanced by the learned trial Judge for disbelieving the eye-witnesses are perverse to the extent that in-fact there are no reasons at all for acquittal. Only because these witnesses are relatives of the deceased, it could not be said that no reliance can be placed upon the depositions of these witnesses. It has been vehemently urged that the discovery evidence which is proved beyond doubt, has been brushed aside by the learned trial Court as if such evidence is not worthy of appreciation at all. It has been alleged that the incident has occurred in the courtyard of the house of the accused and the witnesses are natural witnesses. There was no reason to disbelieve the incident on mere conjecture that on account of darkness, none of the witnesses could have seen the incident. Learned trial Judge also did not place reliance on the evidence of Forensic Science Laboratory by which it is proved that the clothes seized from the accused contained blood group of the deceased and learned trial Judge simply brushed aside this evidence observing that blood group of the accused was not ascertained by the prosecution. It CR.A/578/1986 10/65 JUDGMENT is submitted that though this is an acquittal appeal, but having gone through the evidence of the prosecution and having gone through the reasons assigned by the learned trial Judge for acquittal it becomes clear as day-light that the conclusions are against the weightage of the evidence and no other conclusion except conviction of the accused could be deduced from the evidence recorded and therefore the conclusion and reasons assigned by the learned trail Judge for the acquittal of the accused are so perverse that would not stands to reason or could not be supported in any circumstances and hence the interference of this Court in this appeal is called for and appeal be allowed. 7. Learned Advocate for the respondent, Mr.Baheti, supporting the decision of the trial Court vehemently urged that the prosecution failed to prove the case beyond doubt against the accused and the accused was rightly acquitted by the trial Court. It is submitted that this is an appeal against the acquittal wherein the Court would be loathe to interfere, unless the judgment and order of acquittal is perverse and when two views are possible, view taken by the trial Court for acquittal must prevail. CR.A/578/1986 11/65 JUDGMENT According to learned Advocate, Mr.Baheti for accused- respondent, this is not the case wherein interference is required in an appeal against the acquittal. This is so because the case of prosecution is clouded by doubt and therefore the learned trial Judge acquitted the accused. It is submitted that firstly the prosecution case weakens on the ground of filing of late FIR, as the incident occurred on 13th April, 1985 at night 10:00 p.m. and complaint came to be filed after premeditation at 9:30 a.m. next day, when the distance to the Police Station and Village admittedly was of 12 kilometers. This delay in FIR has not at all been explained in F.I.R., and attempt on the part of the witnesses to explain the delay utterly fails. Therefore, this is a case wherein there is planting of the accused which obvious. Second conspicuous feature of the prosecution case which goes to the root is the injuries upon the body of the accused. It is submitted that a Panchnama has been drawn of the body of the accused when he submitted himself to the Police Station on the next day and the said Panchnama is placed at Exh.18 whereby the cloth of the accused were also seized. It is submitted that from this Panchnama it is crystal clear that when accused approached Police Station on next day, he had CR.A/578/1986 12/65 JUDGMENT injury on his forehead and those injuries were serious, if had there been fracture of the skull according to medical evidence. In Panchnama accused made a categorical statement that he received the injuries in the incident. Prosecution has failed to explain this injury upon the body of the accused and therefore the prosecution witnesses conceal genesis of the incident, which creates grave doubt in the prosecution case. It is submitted that out of the three eye-witnesses examined during trial, one is real brother of the deceased and other two are the sons of the deceased. In all probabilities, these interested and relative witnesses, on account of an enmity and grudge against the accused, would try to involve the accused in this serious case and would pose them as eye-witnesses which would lead to create doubt in the prosecution case. It is submitted that no independent witness is examined by the prosecution of the incident. It was dark on account of night. There was no light around for visibility. Even the witnesses stated before the Court that they came running at the scene of offence with torch and found injured lying on earth and therefore there are probabilities that the accused might have quarrelled in his own house and might have been injured by CR.A/578/1986 13/65 JUDGMENT someone else within his house because it is improbable that witnesses could have noticed the incident in this dark at such a distance and therefore the learned trial Judge rightly came to the conclusion that no reliance can be placed upon eye- witnesses. It is submitted that according to prosecution case, Police Patel of the Village was immediately contacted. The State has provided occurrence Book to Police Patel and even then in his deposition, Police Patel categorically stated that he had not prepared any occurrence report even though he was informed about the incident. These circumstances lead to suspicion that accused was not involved in the incident and nobody knew at that juncture that who caused injuries to the deceased. It is submitted that though upon the crime weapon and the clothes of the accused blood group of the deceased is noticed, but facts cannot be ignored that the blood group of the accused could not be ascertained by the prosecution especially when he had received injuries and therefore the said evidence was rightly not believed by the trial Court. It is submitted that the discovery of weapon evidence is not as per the law and statement of the accused before the Panchas could not be proved by the prosecution to the CR.A/578/1986 14/65 JUDGMENT precision and therefore discovery is of no use to the prosecution. According to learned Advocate that those are the drawbacks loop-holes in the prosecution case serious in nature and on account of such lapses on the part of the prosecution to adduce concrete and reliable evidence, learned Judge acquitted the accused. It is submitted that therefore it is obvious that prosecution could not prove the case against the accused beyond doubt and the accused was entitled to acquittal. It is submitted that there is no reason to take second view than taken by learned trial Judge in this appeal against the acquittal and hence the present appeal is required to be dismissed. 8. Having heard learned Counsels at length and having regard to the fact that this is an appeal by the State against the acquittal, it is necessary to observe that it is true that the order of acquittal cannot lightly be interfered with. At the same time, it is not the law that all the orders of the acquittal of the trial Courts should not be probed into for justification of the order whether the same falls within the boundaries of settled legal principles. It is always open to the appellate Court in an appeal against the acquittal to re-appreciate CR.A/578/1986 15/65 JUDGMENT the evidence and come to its own conclusions. But, if those conclusions are second possible view of the appreciation of evidence, the appellate Court would not ordinarily interfere with the appeals against the acquittal. But, where it is found that conclusion arrived at by the learned trial Judge are against the settled legal principles and the record and so perverse that would not stand to reason, the appellate Court is not powerless to interfere in the appeal against the acquittal as well. 9. Necessary, therefore, in this case is to re- appreciate the evidence recorded during the trial and to find out whether the reasons assigned by the trial Court to reach at the conclusion of the acquittal are perverse and against the evidence recorded during the trial. Necessary, therefore also to advert briefly to the evidence recorded during the trial to appreciate the same in its legal and permissible perspective. 10. Prosecution Witness No.1-Ganpatsinh Andarsinh, complainant is examined at Exh.12. He deposed about his family and stated that deceased was his real brother; while accused is also his brother CR.A/578/1986 16/65 JUDGMENT because his father had two wives. According to witness all the four brothers had separate agricultural land and was recorded in revenue record in the name of respective brothers. The incident occurred before eight months of the deposition. Witness further stated that it was about 10:00 p.m. He was resting at the Otla of his house. It must be noted here that all the brothers are residing from near and adjoining house of one Falia. Witness further stated that at that time, accused and his wife – Amrut were quarreling with other brothers from their house. The house of the accused was situated at the distance of 20 feet from the house of the witness. Witness stated that the house of the accused was clearly visible from his house. Accused and his wife were quarreling that the land which they were cultivating was not recorded in their name in revenue record and therefore other brothers might seize the land from them and would not allow them to cultivate. Therefore, the witness stated to the accused that let him rest and sleep at that time and advised the accused also to take rest and go to sleep because it was late at night. According to witness, even then the accused continued to quarrel. In the meantime, deceased-Fateshsinh Andarsinh who was CR.A/578/1986 17/65 JUDGMENT sitting in the house of Prabhatsinh, came to the house of the accused and near Otla of the house of the accused. At that juncture, accused came out of house and deceased-Fatehsinh scolded the accused not to fight and quarrel further. Upon that juncture, accused-Hathisinh who had a knife in his hand, inflicted two blows on the body of Fatehsinh on his chest. Witness stated that he himself, Natvarsinh, Kalusinh and Fulsinh also came running at the scene of offence. After some time, according to witness, Fatehsinh died and the accused absconded from the scene of offence. Witness further stated that since it was night, they did not go for recording of complaint, but Natvarsinh Fatehsinh informed the Police Patel of the village. Police Patel visited the scene of offence. It was a time of night and to go to the Police Station according to witness, some hills were to be crossed and there was danger of wild animals and there was no other means of conveyance to go to the Police Station. At that night, complaint could not be lodged. On the next day in the morning, he went to the Police Station at Devgadh Baria in S.T. Bus. Police Patel accompanied him. From his village they started at about 8:00 to 8:30 and reached at Devgadh Baria Police Station and lodged a CR.A/578/1986 18/65 JUDGMENT complaint which he identified at Exh.24 and recognized his signature. He deposed that he had shown scene of offence to the Police. He has been cross-examined in detailed by the defence. In his cross-examination, he deposed that he heard shouts of the deceased and he reached at the scene of the offence. When he reached at the scene of offence, deceased was lying on the ground. He was first person to reach at the scene of offence and thereafter Natvarsinh Fatehsinh, Kalusinh Fatehsinh and Arjunsinh Udesinh also gathered there. Natvarsinh was carrying torch. The deceased had been to the house of accused and he had approached upto the door of the house to say that why the accused was unnecessarily quarreling. He denied the suggestion that when he reached at the scene of offence, one stick was lying down there. There were eight to ten houses in the Falia of the incident. The house of Police Patel was situated at about half of a mile from the scene of offence. Police Patel visited the site of incident at about 10:30. He has further stated in his cross-examination that the accused had a son whose name was Ratansinh and Ratansinh was aged about 18 to 20 years at that juncture. He denied the suggestion that there was CR.A/578/1986 19/65 JUDGMENT some altercation between the deceased and the accused. He admitted that they had informed Police Patel about the incident. He further stated that Police Patel had not written any report. He denied the allegation that Police Patel did not write the report because they did not know who caused injuries to deceased. He admitted that a Police Station was situated at a distance of 12 Kilometers from their village. In the morning, they had gone to Devgadh Baria in S.T. Bus and reached there at about 8:00 to 8:30. He denied the allegation that with manipulation with the Police and after pre- meditation, the complaint came to be lodged. He admitted that in the complaint, why the complaint was not lodged on that night itself, had not been mentioned. He stated that nobody had beaten the accused and he did not notice any injuries on the body of the accused. He did not know whether accused was sent to Hospital for treatment. This is all is the evidence of Prosecution Witness No.1 – eye- witness. 11. Prosecution Witness No.2-Kalusinh Fatehsinh is examined at Exh.13. He is an eye- witness and son of the deceased. According to him, CR.A/578/1986 20/65 JUDGMENT he had five brothers, Natvarsinh, Jelsinh, Fatehsinh, Dalpatsinh Fatehsinh and Jaswantsinh Fatehsinh. The incident had taken place before eight months of the deposition at 10:00 p.m. According to this witness, at that time, he was sitting on the Otla of his house. His house was situated at the distance of 15 feet from the house of the accused. It is deposed by him that house of the accused and his house are in the same line and adjoining. Accused happened to be his uncle. At that time, accused and his wife, sitting in their house were quarreling and disputing about the land and were insisting that the land which was given to their share, why was not recorded in the revenue record. Ganpatsinh Andarsinh-brother of the deceased requested the accused that it was late night and if at all accused and his wife intended to quarrel, it could be done on the next day even. But the accused continued quarreling. According to this witness,