CR.A/1004/1986 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1004 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 Versus MADHAJI PUNMJI THAKORE – Respondent ========================================================= Appearance : MS MEETA PANCHAL ADDL PUBLIC PROSECUTOR for Appellant: 1, NOTICE SERVED for Respondent : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 17/07/2008 ORAL JUDGMENT CR.A/1004/1986 2/12 JUDGMENT (Per : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) 1. The appellant – State of Gujarat has presented this appeal under Section 378 of the Code of Criminal Procedure, 1973 assailing the order of acquittal dated 26.5.1986 passed by Additional City Sessions Judge, Court No. 3, Ahmedabad acquitting the respondent accused of the charges committing murder, punishable under Section 302 of the Indian Penal Code and under Section 135(1) of the Bombay Police Act. 2. This Court (Coram: M.B. Shah & B.S.Kapadia, JJ..) vide order dated 1.4.1987 granted leave and admitted the Appeal. 3. It was the case of the prosecution that, one Kailash – the deceased, the complainant – Raju and others were residing in a chawl called Kantilal Gokaldas. In their neighbourhood, a lady named Pushpa was residing with her father Mohanbhai. The accused and others had illicit relationship with said Pushpaben and therefore, quarreling with each other time and again. The deceased therefore, advised them not to quarrel for neighbour's daughter. Thus, deceased Kailash became eyesore for accused and others. Deceased Kailash, therefore, was stabbed by accused at about 12-45 PM on 9th December, 1985 while he and complainant were coming after seeing cinema. The deceased was riding bicycle and complainant was CR.A/1004/1986 3/12 JUDGMENT sitting behind him on the carrier. When deceased received knife blows from the accused, the complainant-witness Raju was present. After receiving four blows, deceased ran towards Fulchand chawl and he fell down. One eye- witness, Bai Nanda, wife of brother of deceased Kailash and one Bharusinh, her neighbour saw accused and Kailash. Therefore, they raised cries and ran towards that direction and they also ran in the direction where Kailash was found lying in a blood stain condition and accused had run away. As per the say of Bharusinh, intestines of Kailash had come out. On inquiry from Kailash as to what had happened, he said that he was assaulted with knife by Madhav, the accused. Bharusinh tied down his handkerchief so that intestines may not came further and managed to send him to Shardaben Hospital in rickshaw with deceased's Bhabhi Nanada. In Shardaben Hospital, Kailash- deceased succumbed to the injuries and was declared dead by Doctor. The vordhy from Shardaben Hospital were sent to Shaher Kotda Police Station. On receipt of Vordhy, the offence was registered and the police went to Shardaben Hospital and recorded complaint of witness Raju Govindbhai Chauhan and sent it for registration. After completing the formalities of panchnama and making investigation and recording statements, chargesheet came to be filed. The accused was chargesheeted on 21.2.1986. As the offence CR.A/1004/1986 4/12 JUDGMENT disclosed was punishable under Section 302 of the IPC, triable only by the court of Sessions, learned trial Judge committed the case to the Court of Sessions and case was committed to sessions Court. The Court framed charge against accused for committing offence of murder of Kailash under Section 302 of the IPC. The accused pleaded not guilty to the charge and prayed to be tried. The trial commenced. The prosecution examined as many as 13 witnesses and led evidences in support of the case. Learned APP filed purshis of completion of evidence and further statement of the accused under Section 313 of the Code of Criminal Procedure came to be recorded. The learned trial Judge framed following points for determination : (i) Whether the prosecution proves that deceased Kailash died a homicidal death? (ii) Whether prosecution proves that the accused caused injuries on the person of the deceased with an intention to cause his death? (iii) What offence, if any? (iv) What order? 4. The findings of the trial Judge are as under : (i) In the affirmative. (ii) In the negative. (iii)& (iv) as per final order. CR.A/1004/1986 5/12 JUDGMENT 5. The learned trial Court acquitted the accused for charge of committing murder on account of serious discrepancies and contradictions in statements of so called eye-witnesses and unnatural behaviour. The trial Court's order of acquittal dated 26.5.1986 is assailed in the present appeal by the State of Gujarat under Section 378 of the Code of Criminal Procedure. 6. Learned APP Ms. Meeta Panchal appearing for the appellant has submitted that trial Court ought not to have disbelieve the prosecution witnesses. The deceased died homicidal death. The prosecution has heavily relied upon the testimony of Dr. Lad, PW-2 at Ex. 9 from whose evidence, it can be said that it was proved that deceased died homicidal death. As the injuries were sufficient to cause death and the injuries could have been caused by the weapon Article No. 6, it was contended that eye-witnesses cannot be said to be un-natural, nor could they have said to be interested witnesses in any way. The testimony of eye-witness Raju also deserves to be viewed in its proper prospective. The learned trial Judge has therefore, patently erred and misdirected himself in acquitting the accused respondent and therefore, this appeal deserves to be allowed. 7. This Court has perused the record and heard learned APP. CR.A/1004/1986 6/12 JUDGMENT 8. Before the trial Court, it was heavily contended on behalf of the defence that the incident had occurred at about 12-45 PM and Vordhy from Shardaben Hospital were sent at 14-45 hrs. Thus, it was late by 2 hour and 10 minutes and no explanation for delay was forthcoming. The facts narrated in the vordhy is nothing but the substance of narration made in the complaint of witness Rajubhai. There were contradictions in the version of Nanda and Bherusinh. It was also contended that Dying Declaration also not in fact the Dying Declaration as could be seen from the over enthusiasm of Bharusinh in recording the statement. Such a dying declaration cannot be treated to be a dying declaration. It was further contended by defense before the trial Court that witness Nanda and Bharusinh stated before the Court that they chased victim and the accused on seeing the blood stains from the road. There was no blood stains found or referred to in the panchnama or even by a panch witness and even by the investigating officer. The victim was picked up and put up in a rickshaw. If it was so, then their clothes must have been stained by blood. Yet no such cloths of the witnesses were forthcoming and the investigation on this side is absolutely silent, which caste serious doubt about the version of the prosecution. The defence further contended before the trial Court that non-examination of CR.A/1004/1986 7/12 JUDGMENT Bharat, Pushpa, Pravin, Gnanshi, Subhadra affects the prosecution case adversely. The trial Court has in detail considered the testimony of PW-1, PW-3 and PW-8, who claimed to be eye-witnesses and considered whether their evidences were such as to bring home guilt on the part of the accused. The Court has recorded that the evidence of all the three witnesses were full of contradictions, omission and improvement particularly on the important aspect and did not accept the evidence. The Trial Court has recorded very cogently as to why the PW-1 i.e. Raju, the complainant was not believed. The narration by the complainant about the incident and his conduct thereon did not inspire any confidence about his truthfulness. Raju, the complainant, who happened to be the close friend of the deceased Kailash, who had accompanied the deceased to see cinema and while coming back from cinema, deceased Kailash was assaulted with knife. He does not do anything even after the assailant i.e. accused ran away from the scene of offence. He has stated that when he was standing outside the road, his friend Dinesh came and told him to come with him at type class and thereafter, he accompanied him and gone to tying class. This has weighted with the trial Court in rejecting his evidence as far from being truth. The trial Court has not believed PW-1 from his un-natural conduct. The trial Court has recorded that PW-1 had seen the CR.A/1004/1986 8/12 JUDGMENT incident as alleged by him and despite that, he gone with Dinesh at typing class as per his say and why did he not disclose the said fact to the police especially when Raju known deceased as well as the accused well as they were all residing in the same chawl. In short, when the accused was not unknown to him, there was no keeping back to name of accused. The trail Court has also not believed PW-3 and PW-8 as eye- witnesses as PW-1 has not stated anywhere that he saw PW-3 and PW-8. The trial Court has not believed the version of PW-3. 9. The trail Court has recorded that PW-3 admitted in cross-examination that till Bhairavsinh and she reached at the place where Kailash had fallen, they had no talk with each other. Bhairavsinh did not know as to how Kailash was injured. She has stated that though she had accompanied deceased to Shardaben Hospital in Rickshaw, she did not remember anything what had happened and she has also admitted that till police recorded statement, she did not talk with Bhairavsinh about the incident. From the testimony of Bhairavsinh and Nandaben, the trial Court has concluded that both these witnesses were not telling truth and their versions were also therefore, not acceptable to the Court. The trial Court has also recored that the scene of offence is surrounded by shops and by residential locality at a distance of about 60 CR.A/1004/1986 9/12 JUDGMENT ft and PW-3 as per her say was sitting on charpai and she admitted that she was taking rest as she had a pain. PW-3 had a serious disease of cancer of uterus. She also suffered from T.B. and Asthama and in such a condition, when she was resting on a charpai and therefore, if a person is lying down in a charpai in front of the house, her version that she had seen the incident is not possible looking to the direction of the house and version of PW-3. The Court has recorded that from the version, she could not be termed as eye-witness and she was got up witness. According to her version, she had gone to scene of offence but according to PW-1 Raju, 4 blows were given at the spot and he alone was present. 10.The trial Court has recorded that Bherusinh is guilty of improvement of his case. His case before the police was not that he had seen the actual occurance of the incident. However, before the Court, he comes out as an eye witness to the incident. If Bherusinh was sitting in the house at the time of incident, he could not seen the place where incident occurred. Even if he was sitting in the osari, then also, he could not have seen the incident. It appears from the map at Exh. 17 that, persons sitting in the house of Bherusinh or Kailash or person sitting outside their houses could not seen the incident or site of incident in view of the fact that CR.A/1004/1986 10/12 JUDGMENT there was a compound wall of about 5 ft. height in between the scene of offence and the house of this witness. 11.The trial Court has not believed the version of these three witnesses and recorded that cumulative effect of evidence of PW-1, PW-3 and PW-8 that none of them had seen the incident and they were not reliable. The deceased has received 4 injuries of knife and therefore, there must be extensive bleeding at the place of incident, however, no blood stains are found from the place where Kailash as alleged was injured by the accused. Even the cycle had no blood stains. Except the oral version of PW-1, PW-2 and PW-8, there is no circumstances to show that the incident took place at the place shown or alleged. 12.The recordings and findings of the trial Court with regard to veracity of the version of PW-1, PW-3 and PW-8 does not seem to be perverse at all. The trial Court has very cogently recorded and brought about the glaring discrepancies in the version of three witnesses, who are claiming to be eye-witnesses and trial Court has disbelieved them to be an eye-witnesses. The absence of bleeding at the place of occurance as recorded by the trial Court, go to show that the trial Court's finding with regard to veracity of version of three witnesses and on that basis CR.A/1004/1986 11/12 JUDGMENT holding that prosecution could not establish its case beyond reasonable doubt does not suffer from any perversity. 13.It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (See Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned Additional Sessions Judge are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 14.On overall appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the learned Additional Sessions Judge for acquitting the accused. Suffice it to say that the learned Additional Sessions Judge has given cogent and convincing reasons for acquitting the accused and the learned A.P.P. has failed to dislodge the reasons given by the learned Additional Sessions Judge and convince this Court to CR.A/1004/1986 12/12 JUDGMENT take a view contrary to the one taken by the learned Additional Sessions Judge. 15.Seen in the above context, we do not find any valid reason or justifiable ground to interfere with the impugned judgment and order acquitting the accused of the offences with which he was charged. 16.For the foregoing reasons, appeal fails and hereby is dismissed. The Registry is directed to send the records and proceedings forthwith to the trial Court. Bail bond stands cancelled. (BHAGWATI PRASAD, J.) (S.R. BRAHMBHATT, J.) pallav