IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 282 of 1987 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE M.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STATE OF GUJARAT Versus RAJNIKANT N HIRANI -------------------------------------------------------------- Appearance: MS PAURAMI B SHETH, APP for Appellant MR RN SHAH for Respondents No. 1-3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE M.C.PATEL Date of decision: 19/10/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) By filing this appeal under Section 378 of the Code of Criminal Procedure, 1973, the State of Gujarat has questioned legality of judgment dated January 13, 1987 rendered by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No.52 of 1986 by which the respondents have been acquitted of the offence punishable under Section 302 read with 34 of I.P.C. 2. The facts emerging from the record of the case are as under: 2.1 An anonymous application was received by Mr. Gurudayal Singh who was then D.S.P., Bhavnagar making allegations that the respondents no.1 and 2 as well as one Kalu Pathan and Mahendra Mochi were indulging in bullying and eve-teasing and were threatening to kill those who were protesting and, therefore, appropriate action should be taken against them. That application was forwarded to Bhavnagar 'B' Division Police Station for necessary action which was received on December 26, 1985. On receipt of the said application, it was handed over to Mr. K.J. Chauhan who was then P.S.I. of 'B' Division Police Station, Bhavnagar for investigation. Mr. Chauhan asked Police Constable Pravinsinh to summon those persons at the police station against whom the application was filed. Accordingly, Police Constable Pravinsinh met the respondent no.1 and asked him to report at 'B' Division Police Station alongwith three others. However, the respondent no.1 failed to report at the Police Station with others on January 2, 1986 and, therefore, the police constable was again asked to summon those persons who were named in the anonymous application. Accordingly, Police Constable Pravinsinh again attempted on January 3, 1986 to contact the persons who were named in the anonymous application, but those persons could not be traced. Accordingly, an oral report was submitted by Police Constable Pravinsinh before Mr. Chauhan who, in turn, submitted a report dated January 6, 1986 to the Police Inspector of Bhavnagar 'B' Division Police Station. The respondents entertained a doubt that the anonymous application was addressed by deceased Balwantrai Chuharmal who was running a grocery shop as well as fair price shop at Bhavnagar, as a result of which they were summoned at Bhavnagar 'B' Division Police Station. Therefore, they started harassing him. 2.2 The incident in question took place on January 3, 1986. On the day of incident, at about 1.00 p.m., the deceased asked his wife Ushaben to accompany him to Ghogha Circle to look for another house. Ushaben tried to know from the deceased as to why he was looking for another house and she was informed by the deceased that the respondents were entertaining doubt that an anonymous application was submitted against them by him and that they were harassing him. After inspecting one or two buildings, the deceased returned home in the company of his wife and thereafter, went to attend his shop. After some time, Khumansinh, who was employed by the deceased as a peon, came to the house of the deceased and informed wife of the deceased that two Bharwads were sitting in the shop of Balwantrai and were quarrelling with him and, therefore, tea should be prepared for them immediately. Tea was accordingly prepared by Ushaben which was sent to the shop through younger daughter of one Chandu who was neighbour of the deceased. Thereafter, Ushaben sent woollen pullover for Balwantrai through wife of Chandu. The wife of Chandu also, after coming back, informed wife of the deceased that two Bharwads were sitting in the shop. At about 8.00 p.m., Ushaben went to the shop of her husband as she had to collect her petticoat from house of wife of her nephew which is situated just behind the shop. After reaching the shop, she informed her husband that it was necessary for her to collect the petticoat but she was asked by the deceased not to go to the house of nephew saying that Khumansinh would collect it. It was also found by her that at that time, her two daughters as well as Lalchand Master and Chetan Master were also sitting in the shop. The deceased asked Ushaben to go home with daughters and informed her that after closing the shop, he was also coming home. Accordingly, Ushaben went home with her two daughters. After reaching home, she switched on T.V. and was watching 'Chitrahaar' programme. At that time, Chetan Master, who was looking frightened, came to her house and asked her not to go out as his brother (the deceased) was being beaten by three Bharwads. Chetan Master also informed Ushaben that the deceased was lying near the bus stand. On receiving this information, Ushaben immediately left her house and started running towards the bus stand and found that her husband was sitting on the ground with one hand resting on the waist and another on the head near the bus stand. She made enquiry with her husband as to who caused injuries to him and thereupon, the deceased asked her to summon a rickshaw, and informed her that Rajnikant (original accused no.1 respondent no.1) with knife whereas Jasa (original accused no.3 - respondent no.2) with dharia and Bhopa (original accused no.2 respondent no.3) caused injuries to him. Thereafter, Ushaben attempted to stop a rickshaw but none stopped and, therefore, she went running towards her house as her neighbour Chandu was maintaining a tempo. Chandu was asked to come near the bus stand with tempo and, therefore, Chandu made arrangements for bringing a tempo to the place where the deceased was sitting in an injured condition. After asking Chandu to make arrangement for tempo, Ushaben left for the place where her husband was sitting in an injured condition where Khumansinh also came. In presence of Khumansinh, Ushaben tried to know from him as to who assaulted him, but the deceased could not speak and fell down. Meanwhile, Chandu arrived with tempo at the place where the deceased fell down. Ushaben's father and Pushpaben also arrived in a rickshaw. Thereafter, Khumansinh removed the deceased to Sir Takhtasinhji Hospital, Bhavnagar for treatment in Chandu's tempo whereas Ushaben with her father and Pushpaben followed the tempo in a rickshaw. Dr. Bhanushanker Joshi, who was then on duty at the hospital, examined the deceased and declared him dead. On hearing this, Ushaben became mentally disturbed and she was stunned. 2.3 At about 8.45 p.m. on January 3, 1986, Mr. B.R. Simpi, who was then P.I. of Bhavnagar 'B' Division Police Station, received an information from Constable Harichandra Mahipatsinh that Balwantrai was lying in a bleeding condition near the bus stand. On receipt of information, he immediately went with other police personnel to the bus stand. At the bus stand, he found that there was a crowd of 50 persons but Balwantrai Chuharmal was not there. He saw a pool of blood there, and on enquiry, he learnt that Balwantrai was removed to Government hospital for treatment. After posting one constable to protect the place, he went to the hospital where he was informed by Duty Head Constable that Balwantrai had died. Mr. Simpi made arrangements for sending the dead body of the deceased to post-mortem room. Autopsy on dead body of the deceased was performed on January 4, 1986 by Dr. Joshi. It was learnt by Mr. Simpi that a person named Khumansinh had gone to the police station for lodging F.I.R. Therefore, he went to police station and recorded First Information Report of Khumansinh, as narrated by him. The First Information Report was sent for registration and after registration of offences, the same was handed over to Mr. Simpi for further investigation. He, thereafter, went to Bharatnagar but could not trace the accused. On January 4, 1986, he made an attempt to record police statement of Chetanmal but it was found by him that Chetanmal was suffering from fever and severe headache, as a result of which his police statement could not be recorded. In the morning of January 4, 1986, Mr. Simpi drew panchnama of the place of incident and seized control earth, chappals of the deceased, handle of sword etc. from the place of incident. From there, he went to hospital and held inquest on the dead body of deceased Balwantrai. On the same day, he recorded police statements of Ushaben Balwantrai, Chetankumar N Manglani, Laxmanbhai Damjibhai Vanand, Mansukhbhai etc. On January 5, 1986, he recorded statements of Mahipatsinh Ranubha, Prabhatbha Mahipatsinh etc. On January 6, 1986, at about 3.00 p.m., the respondent no.1 surrendered before the police and, therefore, his arrest panchnama was prepared in presence of panch witnesses. It was found by Mr. Simpi that an injury was sustained by the respondent no.1 on his left hand over which a bandage was applied and, therefore, an enquiry was made as to how the injury was sustained and in reply to the same, the respondent no.1 informed Mr. Simpi that injury was caused to him by the respondent no.3. It was also noticed by Mr. Simpi that the T-shirt and pant put on by the respondent no.1 were blood-stained and, therefore, they were seized under a panchnama. An information was received by Mr. Simpi that the respondents no.2 and 3 were near Valand Society and, therefore, they were arrested in presence of panch witnesses regarding which a panchnama was prepared. The respondent no.1 lodged a complaint against respondent no.3 for commission of offence punishable under Sections 323 and 324 of I.P.C. which was also investigated by P.I. Mr. Simpi. While in police custody, the respondent no.1 made a disclosure statement on January 7. 1986 pursuant to which, knife used by him in commission of offence was discovered from a pip i.e. cylindrical upright vessel of metal kept in his house. The knife discovered was found to be blood-stained. Therefore, it was seized under a panchnama. Similarly, pursuant to disclosure statement made by the respondent no.3 on January 7, 1986, sword without handle used by him in commission of offence, as well as white 'chorni' and white shirt were discovered from a place which was near the bank of the river. All the three articles recovered were blood-stained and, therefore, seized under a panchnama. On January 7, 1986 itself, the Investigating Officer recorded statements of Dr. Rahemtullah B. Ratnani, Chandumal Mayamal, Kamlaben Paherumal, Anilkumar Chetumal etc. and also received post-mortem notes. While in police custody, the respondent no.2 made a disclosure statement on January 8, 1986 pursuant to which, dharia used by him in commission of offence as well as shirt and chorno i.e. pyjamas were discovered from a waste land. The articles discovered were blood-stained and, therefore, seized under a panchnama. The incriminating articles seized during the course of investigation were sent to Forensic Science Laboratory for analysis. On completion of investigation, the respondents were chargesheeted in the court of learned Judicial Magistrate, First Class, Bhavnagar for commission of offence punishable under Section 302 read with 34 of I.P.C. As the offence punishable under Section 302 I.P.C. is exclusively triable by a Court of Sessions, it was committed to Sessions Court, Bhavnagar for trial where it was numbered as Sessions Case No.52 of 1986. 3. The learned Additional Sessions Judge, Bhavnagar, to whom the case was made over for trial, framed charge against the respondents at Exh.3 for commission of offence punishable under Section 302 read with 34 of I.P.C. The charge was read over and explained to the respondents who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined (1) Khumansinh Jatubha as p.w.1 at Exh.19, (2) Chetanbhai Namamil as p.w.2 at Exh.20, (3) Mahipatsinh Ranubha as p.w.3 at Exh.22, (4) Ushaben Chetumal as p.w.4 at Exh.25, (5) Rahemtullah Bahadurali Ratnani as p.w.5 at Exh.26, (6) Pushpaben Nanchandbhai as p.w.6 at Exh.27, (7) Chandumal Mayamal as p.w.7 at Exh.28, (8) Bhupatbhai Jadavbhai as p.w.8 at Exh.30, (9) Dahyabhai Punambhai Patel as p.w.9 at Exh.31, (10) Subhash Chabildas as p.w.10 at Exh.32, (11) Ranjit Himatrai Dave as p.w.11 at Exh.33, (12) Dr. Bhanushanker Kantishanker Joshi as p.w.12 at Exh.35, (13) Ajitbhai Ismailbhai as p.w.13 at Exh.37, (14) Haresh Vinodrai as p.w.14 at Exh.38, (15) Aniruddhsinh Sardarsinh as p.w.15 at Exh.39, (16) Nanjibhai Lakhabhai as p.w.16 at Exh.40, (17) Bharatbhai Dhanvantrai Bhatt as p.w.17 at Exh.41, (18) Gopal Vamanbhai as p.w.18 at Exh.42, (19) Pravinsinh Jamsinh Chudasma as p.w.19 at Exh.44, (20) Kesarisinh Jalamsinh Chauhan as p.w.20 at Exh.45 and (21) Bhaskarrav Ramdas Simpi as p.w.21 at Exh.47, to prove its case against the respondents. The prosecution also produced documentary evidence such as panchnama indicating seizure of clothes of the deceased at Exh.11, post-mortem notes of the deceased at Exh.12, anonymous application submitted to D.S.P., Bhavnagar at Exh.13, complaint of Dineshkumar Jeshankar Pandya against the respondent no.3 and three others for commission of offence punishable under Sections 307, 143, 147, 148, 149, 326, 188 of I.P.C. and Section 135 of the Bombay Police Act at Exh.15, report of the Serologist at Exh.18, complaint of Khumansinh at Exh.60, application dated January 4, 1986 made by witness Chetankumar N. Manglani to Police Inspector 'B' Division Police Station, Bhavnagar stating that the respondents no.2 and 3 and another unknown person assaulted the deceased on January 3, 1986 at Exh.21, panchnama of place of incident at Exh.29, map of place of incident at Exh.43, arrest panchnama of respondent no.1 at Exh.48, arrest panchnama of respondents no.2 and 3 at Exh.49, complaint of respondent no.1 against respondent no.3 at Mark P/2, panchnama indicating discovery of knife pursuant to disclosure statement made by respondent no.1 at Exh.50, panchnama of discovery of dharia pursuant to disclosure statement made by the respondent no.3 at Exh.51, panchnama of discovery of sword pursuant to disclosure statement made by the respondent no.2 at Exh.52, another map of place of incident at Exh.56, compromise purshis arrived at in the case which was registered pursuant to complaint of the respondent no.1 against the respondent no.3 at Exh.59 etc. in support of its case against the respondents. 4. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the respondents the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements, as required by Section 313 of the Code of Criminal Procedure, 1973. In their further statements, the case of the respondents was that they were innocent. However, no evidence was adduced by any of the respondents to establish that the respondents were innocent and not connected with the incident in question. 5. On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that deceased Balwantrai Chuharmal died a homicidal death. The learned Judge noticed that witness Khumansinh Jatubha, witness Chetanmal Namamil and panch witnesses did not support the prosecution case. The learned Judge, thereafter, considered the testimony of Ushaben Chetumal who is wife of the deceased and held that her case that the deceased had made oral dying declaration before her involving the respondents was not reliable. It was further deduced by the learned Judge that evidence regarding discovery of weapons, pursuant to disclosure statements made by the respondents, was not reliable as panch witnesses did not support the prosecution case. In view of these findings, it was concluded by the learned Judge that it was not established by the prosecution that, in furtherance of common intention of all the respondents, murder of the deceased was committed. Therefore, the learned Judge has acquitted the respondents by judgment dated January 13, 1987 giving rise to instant appeal. 6. Ms. P.B. Sheth, learned APP argued that the evidence tendered by the prosecution regarding oral dying declaration made by the deceased before his wife is trustworthy, cogent as well as consistent and, therefore, the learned Judge of the Trial Court was not justified in brushing aside the same. According to the learned APP, on learning from Chetanbhai that her husband was assaulted by Bharwads, witness Ushaben who is wife of the deceased, went running towards the bus stand and found that her husband was sitting with one hand resting on his waist and another on his head and that, on enquiry being made, the witness was informed by the deceased that he was assaulted by the respondents and, therefore, the learned Judge was not justified in disbelieving the oral dying declaration made by the deceased. What was maintained by the learned counsel of the State Government was that the testimony of witness Ushaben does not suffer from any serious infirmity in the sense that no major or material contradictions or omissions have been brought on record by the defence with reference to her earlier police statement and, therefore, her testimony should have been accepted by the learned Judge. It was argued that the inference drawn by the learned Judge that on receipt of 47 injuries, the deceased must have lost consciousness and must not have been in a position to make any statement is against the weight of the positive evidence of witness Ushaben and the claim of Ushaben that the deceased had made oral dying declaration before her implicating all the respondents should have been relied upon, more particularly, when the medical evidence does not indicate that the deceased must have lost consciousness on receipt of 47 injuries. According to the learned APP, the learned Judge of the Trial Court was not justified in disbelieving the discovery evidence tendered by the prosecution on specious plea that the panch witnesses did not support the same and it was argued that discovery of different weapons and clothes, pursuant to disclosure statements made by the respondents, stands amply proved by the reliable testimony of the Investigating Officer which also lends support to the testimony of witness Ushaben. It was argued that find of same group of blood on the weapons discovered as well as on the clothes of the respondents would indicate that they were in close proximity of the deceased when he was fatally wounded and, therefore, this circumstance should have been treated as lending corroboration to the testimony of witness Ushaben. What was asserted by the learned APP was that the findings recorded by the learned Judge of the Trial Court are not only perverse but against the weight of the evidence on record and as the only conclusion, which is possible in the facts of the case, is that the common intention of the respondents was to cause death of the deceased, and in furtherance of said intention, death of the deceased was caused, the appeal should be allowed and the respondents should be convicted of the offence with which they were charged. 7. Mr. R.N. Shah, learned senior counsel for the respondents contended that Ushaben in her police statement did not refer to the fact that at the instance of her deceased husband, she had accompanied him to Ghogha circle and seen one or two houses and that, on enquiry, she was informed by her husband that he was looking for another house as he was threatened by the respondents and in view of this material omission, the learned Judge of the Trial Court who had the advantage of observing demeanour of the witnesses was justified in disbelieving her testimony. According to the learned counsel of the respondents, the fact that the deceased sustained 47 injuries on different parts of his body would show that he must have lost consciousness within no time and, therefore, no error was committed by the learned Judge of the Trial Court in disbelieving the claim of witness Ushaben that the deceased had made oral dying declaration implicating the respondents. It was emphasised by the learned counsel of the respondents that as per the prosecution case, deceased Balwantrai Chuharmal was assaulted when he was pulling down the shutter of his shop but he was found in an injured condition near the bus stand which is not explained by the prosecution and, therefore, the learned Judge of the Trial Court was justified in disbelieving the testimony of Ushaben. The learned counsel for the respondents argued that the evidence tendered by the prosecution regarding discovery of weapons and clothes, pursuant to so-called disclosure statements made by the respondents, is not satisfactory at all and, therefore, rightly disbelieved by the learned Judge of the Trial Court. It was argued that find of same group of blood as that of the deceased on the weapons and clothes of the respondents allegedly discovered would not indicate, in any manner, that they were in close proximity of the deceased when he was fatally wounded and, therefore, the impugned judgment should be upheld. It was emphasised that the view taken by the learned Judge of the Trial Court is possible having regard to the nature of evidence led by the prosecution and as the same is neither perverse nor contrary to the evidence on record, the appeal should be dismissed. 8. This court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to broad and reasonable probabilities of the case. The court is aware of the fact that it is dealing with an acquittal appeal. However, the scope of an acquittal appeal is well-defined by a catena of decisions of the Supreme Court. In appeal against acquittal, the powers of the High Court are not different from its powers in an ordinary appeal against conviction. The Appellate Court has full power to review an order of acquittal and to come to its own conclusion in appeal against the acquittal. The only requirement that the Appellate Court must observe is that while dealing with an order of acquittal, the Appellate Court should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the Trial Court in support of its order of acquittal but it should also express its reasons in its judgment which lead it to hold that the order of acquittal is not justified. The Appellate Court is also required to bear in mind that the Trial Court has the opportunity of witnessing the demeanour of witnesses while in the witness-box and moreover, the presumption of innocence is not weakened by the order of acquittal and, therefore, if two reasonable conclusions can be reached on the basis of the evidence on record, the Appellate Court shall not disturb the finding of the Trial Court. The additional burden which is placed on the High Court is that it has to consider each of the grounds which has prompted the Trial Court to pass the order of acquittal and to record its own reasons for not agreeing with the Trial Court. 9. Having noticed the scope of this acquittal appeal, this court proposes to consider the evidence adduced by the prosecution against the respondents. 10. The fact that deceased Balwantrai Chuharmal died a homicidal death is not in dispute. It is not argued by the learned counsel of the respondents before this court that deceased Balwantrai did not die a homicidal death. Though complainant Khumansinh - p.w.1 (Exh.19) has turned hostile, he has stated that when he was at a distance