CR.A/926/1986 1/58 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 926 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================= 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 Versus MER KARSHAN MULU & ORS Appearance : MR KC SHAH APP for Appellant, MR ND NANAVATI for Respondents No. 1 & 2 MS SADHANA SAGAR for Respondent No. 3 ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 02/07/2007, 03/07/2007 & 04/07/2007 CR.A/926/1986 2/58 JUDGMENT ORAL JUDGMENT : (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 This Criminal Appeal is preferred by the State against the judgment and order delivered by learned Additional Sessions Judge, District – Junagadh at Porbandar, on 29th of April, 1986, in Sessions Case No. 30 of 1985, under Section 378 of the Criminal Procedure Code, 1973. All the three present respondents were accused in the said Sessions Case and were charged for the offences punishable under Sections 447, 341, 323, 324, 504, 302, 397, 201 to read with Section 113 and 34 of the Indian Penal Code as well as for the offences punishable under Section 25(1)(a) and Section 27 of the Indian Arms Act. The respondents were also charged for the offences punishable under Section 37(1) to read with Section 135 (1) of the Bombay Police Act. Vide judgment and order impugned in this Appeal, all the three respondents came to be acquitted by the Trial Court for all the charges levelled against them and, hence, this Appeal. 2 According to the prosecution case, the incident in question occurred on 5th of February, 1985, between 22.00 hours and 23.00 hours, in the field belonged to complainant, situated in the sim of village Bharvada. Ramde Samat ­ complainant and Narmad Samat ­ deceased in the incident, are real brothers and Samat Hamir happened CR.A/926/1986 3/58 JUDGMENT to be their father. Other two witnesses – Masari Narmad and Veja Narmad happened to be sons of deceased Narmad Samat. According to further prosecution case, this family was residing in the residence situated in their field in the sim of village Bharvada. At the time of incident, complainant Ramde Samat with his nephews Veja Narmad and Masari Narmad had been to their field for irrigating the agricultural land because they intended to sow crop of bajari. At about 10'O clock at night, Ramde Samat, Veja Narmad and Masari Narmad were doing agricultural work. At that time, three respondents accused came to their field, and out of them, accused No.1 Mer Karsan Mulu and accused No.2 Mer Balu Lakhman were identified by the witnesses, but accused No.3 was referred as unidentified person. Accused No.1 had spear with him, accused No.2 had an axe with him while accused No.3 (referred to as unknown person) had a spear with him. Accused No.1 as soon as he reached near Ramde Samat, gave a slap on his cheek. Ramde Samat asked that why a slap was delivered to him. Accused No.1 stated that he wanted Rs. 50,000/­. Ramde Samat thereupon replied that he did not have that much money with him. Thereafter, accused No.2 inflicted a blow of an axe on the waist of Ramde Samat by blunt side. Thereupon Ramde Samat had fallen down on the ground and accused Nos. 1 and 2 thereafter started dragging Ramde Samat out of field. At that juncture, accused No.3, who is CR.A/926/1986 4/58 JUDGMENT referred all the while to be unknown person, gave three blows by spear on left hand of Ramde Samat. Veja Narmad, who was present at the field, ran towards their house to call his grandfather and father and thereafter immediately Samat Hamir, Raniben, and Narmad Ramde reached at the spot. Samat Hamir requested accused No.1 to let go Ramde Samat, but accused No.1 stated that he needed Rs. 50,000/­ and on delivering that amount only he would let loose Ramde Samat. On further persuasion by Samat Hamir, etc accused No.1 got excited and inflicted a blow of spear on the stomach of Narmad Samat. Narmad Samat had fallen down on the ground and blood started oozing from his wound. In the meantime, Ramde Samat got himself freed and all the three accused started running towards waste land situated near their field. While all the three accused were escaping, accused No.1 took out a revolver from his shirt and fired a round in the air. All the three accused were speaking abuses while running away. Thereafter Ramde Samat as well as Narmad Samat were seriously injured, were shifted to their house situated in the field. 3 On reaching at their house, Samat Hamir called one Jivabhai at his field and one Kana Karna was also called at his field. Thereafter Jiva Nathu and Samat Hamir both went to the village at the house of one Mulu Nathu and narrated the incident. Bhura Natha CR.A/926/1986 5/58 JUDGMENT and Mulu Nathu both came to the field of the complainant and thereafter Samat Hamir, Hamir Natha, Devshi Natha, etc also reached at the field. Injured Narmad Samat was shifted in a tractor and was taken to the government hospital, Porbandar. Injured Ramde Samat was also taken to the same hospital. Other persons including mother of the deceased accompanied them. When they reached Porbandar Government Hospital, Dr.Dilip Amrutlal Vyas, PW­6 treated them and informed Porbandar Police Station. According to the prosecution case, injured persons reached at the Government Hospital at 1.30 am. At 1.50 a.m. on 6th of February, 1985, Dr. Vyas informed Porbandar Police Station about the injured being brought to the hospital, and the then PSO of Porbandar Police Station Trikambhai Rambhai made entries in the station diary and Police Constable Jagannath Govinda – PW­23 visited the hospital and he found that Narmad Samat was in serious condition and was not in a position to speak and Ramde Samat also was not in good condition. At about 5.00 a.m., Ramde Samat was conscious and therefore he recorded the complaint offered by Ramde Samat. He went to the Police Station at Porbandar and the complaint which he produced at Exhibit­68 was registered at `Zero number' by Porbandar Police Station as the jurisdiction of the crime was of Bagavadar Police Station. At about 6.00 a.m. PSO Trikambhai Rambhai, by a special messenger, forwarded the above said First CR.A/926/1986 6/58 JUDGMENT Information Report to Bagavadar Police Station, which was received by Bagavadar Police Station at about 10.30 a.m. Investigation thereafter was entrusted to Mansukhlal Ramjibhai Jeni, PW­25, at that time, serving as PSI of Bagavadar Police Station. The crime was registered initially under Section 307 of the Indian Penal Code as Crime Register No. 15 of 1985. Thereafter, a surgery was performed on injured Narmad Samat, but he succumbed to the injuries and died at 14.15 hours in the hospital and, therefore, the offence was converted to Section 302 of the Indian Penal Code. 4 After the investigation, a charge sheet against all the three accused was submitted in the Court of Judicial Magistrate, First Class, at Porbandar. Thereafter the case was committed to the Court of Sessions, vide Order dated 05th of October, 1985. The learned Additional Sessions Judge, Porbandar, framed the above said charges against all the three accused vide Exhibit­3 on 1st of April, 1986, but vide Exhibits 4, 5 and 6 all the three accused pleaded not guilty. 5 Prosecution examined as many as 25 witnesses to prove its case and produced on record documentary evidence as well. Thereafter, further statements of each of the accused were recorded by the Trial Court on 19th of April, 1986, the defence of each of the accused was of CR.A/926/1986 7/58 JUDGMENT total denial. After hearing the prosecution and defence, the learned Trial Judge came to the above conclusion and, hence, this Appeal. 6 Learned APP Mr. K.C. Shah on behalf of the State submitted that the Trial Court committed grave error in acquitting the respondents in this serious offence. It is submitted that the Trial Court did not believe the eye witnesses only on account of they being relatives of the deceased and that their conduct was not natural. Relying upon a decision of the Apex Court in the matter of GANGADHAR BEHERA vs. STATE OF ORISSA, as reported in 2002 (8) SCC page 381, it is submitted that Law is that the evidence of close relatives may be scrutinized carefully, but it is not the law that the credibility of the witnesses is affected only on account of they being relatives of the victim. It is submitted that the learned Trial Judge also committed error in appreciating the evidence of eye witnesses. Witness Veja Narmad as well as Masari Narmad though they are minor witnesses, but they are not child witnesses and their evidence ought not to have been brushed aside by observing that they were tutored witnesses and their conduct was not natural. It is submitted that Ramde Samat is an injured witness and more weightage is required to be attached to the evidence of this witness as his injuries are also proved by Dr. Ramesh Gaurishankar Trivedi who examined injured soon after the incident. CR.A/926/1986 8/58 JUDGMENT Dr. Trivedi examined Ramdev Samat and Narmad Samat both and injuries were found fresh and there was no reason for Ramde Samat and other witnesses to implicate these three respondents in a false case and let go the real culprits. Accused No.3, even if it is found that, was known to the witnesses before test identification parade, it could not be said that this fact could make any dent in the prosecution case. It is submitted that more particularly when ocular evidence is trustworthy, there is no reason to come to a conclusion of acquittal and giving benefit of doubt to the accused. There may be minor contradictions in the evidence of eye witnesses which is quite natural as witnesses are not expected to give parrot like version, but those contradictions as have been mentioned by the learned Trial Judge in the judgment, was of no consequence. By evidence of PW­2 Dr. Ramesh Gaurishankar Trivedi it is established that the death of Narmad Samat was culpable homicide and coupled with the oral evidence, the crime of all the three respondents is amply proved by the prosecution. It must be taken into consideration that all the witnesses are rustic villagers and no exactness can be expected from these witnesses and the variation, if any, is found in their evidence, cannot be the basis of the acquittal of the respondents. All the witnesses have stated in clear terms that accused No.3 inflicted three spear blows on the hand of Samat Hamir, and a spear blow was inflicted by accused No.1 on the stomach of CR.A/926/1986 9/58 JUDGMENT Narmad Samat, resulting in his death. This say of the witnesses is corroborated by the medical experts, first, Dr. Ramesh Gaurishankar Trivedi and thereafter by Dr. Dilip Amrutlal Vyas, examined as PW­6, who first in point of time examined the injuries of both the injured persons and, therefore, in fact, there is no conflict between the ocular evidence and medical evidence. The reasons, therefore, given by the learned Trial Judge for acquitting all the respondents are untenable and the findings are not proper. It is submitted that Veja Narmad, who was witness only upto the part of the incident till Ramde Samat was dragged by the accused and he, in fact, stated so, and only because thereafter he did not return to the place of offence, it would be improper to discard his whole evidence. He appears to be a matured witness, as according to evidence, his betrothal had also taken place. His presence at the scene of offence to certain extent corroborates the prosecution case. The conduct of the witnesses, which is much criticized by the Trial Court is, in fact, a natural conduct and otherwise also it cannot be assumed that certain person would act in certain manner in given circumstances. Therefore, the reasoning of the Trial Court about the conduct of the witnesses and, therefore, discarding the prosecution case is totally erroneous. At least, it is found that the injured were immediately shifted to the hospital, where fresh injuries were found on the body of both the injured. No reasons were shown for CR.A/926/1986 10/58 JUDGMENT false involvement of the respondents in the case and, therefore, the Trial Court failed to give cogent reasons for discarding the worthy evidence of prosecution. Discovery of revolver from accused No.1 and cartridges along with the opinion of ballistic expert, certainly corroborates the prosecution case. It is clear from medical evidence that injury caused to Ramde Samat as well as Narmad Samat could have been caused by spear, also corroborates the prosecution case and, therefore, the appreciation of the evidence undertaken by the Trial Court and the reasons assigned for acquitting the accused, are wholly untenable. It is submitted that, therefore, the judgment and order is required to be set aside and since the prosecution is able to prove the case against the respondents, they be convicted and sentenced accordingly as there is ample evidence to connect them with the crime. 7 On the other side, the learned Advocate Mr. N.D. Buch on behalf of learned Senior Counsel Mr. N.D. Nanavati supported the judgment and order impugned. It is submitted that the prosecution story as disclosed by the evidence is full of material contradictions and inspire no confidence at all. It is submitted that even if the prosecution case is evaluated independently of the reasoning given by the learned Trial Judge, it becomes apparent that the prosecution case suffers serious infirmities, resulting in serious doubt in the CR.A/926/1986 11/58 JUDGMENT prosecution case. It is submitted that the prosecution firstly has failed to establish the scene of offence. It is submitted that it is found that each witness changes the scene of offence, and according to the prosecution case itself, scene of offence stated is so confusing that it could not be decided that in fact where the incident took place. The learned Advocate draw our attention towards the panchnama of scene of offence and a map drawn by the Circle Inspector, examined as witness. With reference to this, the learned Advocate also draw our attention on the evidence of witnesses in respect of scene of offence and stated that even as per the prosecution case, there are two versions as to the scene of offence, and firstly, as per the prosecution case, both the incidents occurred in the field of complainant. At the same, it is also the prosecution case in panchnama that the incident took place in the field of one Alshi Hamir. There are contradictions amongst the evidence of witnesses as complainant Ramde Samat Exhibit – 44 stated that he received injuries on left elbow while in First Information Report he stated that he received injuries on right hand. The medical certificate produced on record denotes that the complainant had injuries on right hand. Very important aspect, according to learned Advocate, is in respect of the first injury, which the complainant received on his waist. It is the prosecution case that with the blunt part of an axe, accused No.2 inflicted him that injury, but during medical examination, CR.A/926/1986 12/58 JUDGMENT soon after the incident, no such injury was found by Doctor and even though Ramde Samat was admitted in the hospital for about 7 days he did not take any treatment in this respect. The complainant alleges about his dragging by accused Nos. 1 and 2 for about 10 to 12 feet, but even then, as admitted by the complainant, he did not receive any bruises on his back. The story, therefore, narrated by the prosecution witnesses is improbable and impossible. The presence of prosecution witness Masari Narmad is also doubtful at the scene of offence. Contradictions brought about in his cross­examination in respect of the incident, is proved through the evidence of Investigating Officer. Learned Advocate drawn the attention of this Court towards these contradictions recorded in the evidence. His evidence also creates confusion as to when axe blow was inflicted i.e. before Veja Narmad left the scene of offence or after that. Our attention was also drawn to the evidence of Veja Narmad as well as on the evidence of Samat Hamir. The prosecution case becomes doubtful as to when the spear blows were given to witness Ramde Samat. The evidence of Veja Narmad shows that he had left the scene of offence even before the spear blows were given to the complainant. The complainant states that spear blows were given by accused No.2 before Samat Hamir reached at the scene of offence while Samat Hamir states that those three spear blows had given by accused No.2 in his presence. Even CR.A/926/1986 13/58 JUDGMENT drawing our attention to the deposition of Samat Hamir, in cross examination, the truth was elicited from this witness, as submitted by learned Advocate. It is submitted that Samat Hamir attempted to have stated that some unknown persons had beaten Ramde Samat and Narmad Samat. Samat Hamir was present when the panchnama of scene of offence was drawn and he stated the scene of offence which is somewhere else than in the field of witnesses. While all through out the witnesses gave an impression that both the incidents took place within the field of the complainant and witnesses. It is, therefore, submitted that this confusion and infirmities created in the prosecution case are fatal and it is difficult to reach conclusion of guilt from this evidence. It is submitted that the medical evidence was also fall short to bring home the guilt of the accused because more particularly it could not be established by the prosecution case that the blow which was given to Narmad Samat was possible by a spear, because in such a case, both the edges of the wound would be clean cut, as the spear is two edges sharpened weapon, but this fact has not been examined by Dr. Dilip Amrutlal Vyas. The recovery or discovery of weapon i.e. revolver and a knife from the accused is of no consequence because neither revolver nor knife, according to prosecution case, were used in the incident. It is improbable that accused No.1 would fire a round from his revolver while escaping from the field of the witnesses. At the same CR.A/926/1986 14/58 JUDGMENT time, it is improbable that accused No.2 would have handled two weapons at a time i.e. an axe and knife both. On the contrary, the prosecution case becomes improbable by referring to revolver and knife. The learned Trial Judge has given cogent reasons for acquitting the accused. The appreciation of the evidence was undertaken by the Trial Court of the evidence recorded during trial, and no extraneous material was taken into consideration. It is submitted that unless it is established that reasons given by the Trial Court are perverse, the same would not be interfered with in acquittal appeal. It is submitted that leaving aside the natural conduct of the witnesses, criticized by the Trial Court, if rest of the case of the prosecution is examined, the witnesses do not inspire any confidence and prosecution case is not proved beyond reasonable doubt. It is submitted that, therefore, no interference is required in the judgment and order impugned in this Appeal. It is, therefore, requested that the appeal be dismissed. 8 The learned Advocate Ms. Sadhana Sagar appears for respondent No.3 and adopted the arguments advanced by learned Advocate Mr. N.D. Buch for respondents No. 1 and 2 and submitted that no interference is required in the impugned judgment and order. 9 This is an Appeal against the acquittal. The law laid down CR.A/926/1986 15/58 JUDGMENT in dealing with the acquittal Appeals is clear and well established. The High Court has the same powers in dealing with the orders of acquittal as it has in dealing with the orders of convicting the accused. High Court may re­appreciate the evidence recorded during the trial and come to its own conclusion, but it must be noted that when two views are possible from the same evidence, view favourable to the accused must be adopted, and unless the reasoning given by the Trial Court for the acquittal are perverse and wholly untenable and against the weightage of the evidence, interference is not warranted in the order of acquittal. In the matter of AJIT SAVANT MAJAGAVI vs. STATE OF KARNATAKA, as reported in (1997) 7 SCC, 110, the Apex Court while dealing with the appeal against acquittal, settled the following principles in para 16 of the decision which is as under : “16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the Trial Court. These principles have been set out in innumerable cases and may be reiterated as under : (1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the CR.A/926/1986 16/58 JUDGMENT powers, it possesses while hearing an appeal against the order of conviction. (2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record,or in other words, perverse. (3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal. (4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court. (5) If the High Court, on a fresh scrutiny and reappraisal CR.A/926/1986 17/58 JUDGMENT of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. (6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the court especially in the witness box. (7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused. 10 Therefore, we have undertaken a complete and comprehensive appreciation of all vital features of the prosecution case and the entire evidence on record has been appreciated with reference to the broad and reasonable probabilities of the case. The contention raised by both the sides have also been taken into consideration. We have re­appreciated and scrutinized each corner of the case to come to our independent conclusion. We have also evaluated the reasons given by the Trial Court for the order of acquittal. CR.A/926/1986 18/58 JUDGMENT 11 It is, therefore, necessary to depict the gists of the evidence recorded at the trial and for appreciating the same. The prosecution examined following witnesses : 11.1 PW­1 Laldas Ramandas is examined at Exhibit – 34. This witness