State of Gujarat vs Kalpesh Rameshbhai Koli Patel

J.R. Vora, J.—Appeal is Admitted. We do not at this juncture consider it necessary to call upon the respondent.

The above referred Criminal Appeal is preferred by the State u/s 378 of the Code of Criminal Procedure, 1973, against the judgment and order delivered by 5th Additional Sessions Judge, Surat, in Sessions Case No. 175 of 2008, whereby the respondent herein - being accused of the said Sessions Case, came to be acquitted by the Trial Court for the offences punishable under Sections 302 and 188 of the Indian Penal Code.

Leave to Appeal has been granted to the State and Appeal is finally heard. Learned APP Mr. A.J. Desai, appearing on behalf of the State, is extensively heard in respect of the order of acquittal and we have also called for the Record and Proceedings from the Trial Court and have gone through the same thoroughly. We have scrutinized the evidence to arrive at our independent conclusion and we have also examined the reasoning of the Trial Court for acquitting the accused for the above said charges.

In brief, the facts of the prosecution case are as under:

That the accused was demanding irresistibly from deceased one Mafaram @ Mohan Jivaji Patel, to satisfy his unnatural lust and deceased was refusing and, therefore, the accused was excited and took the deceased to Varsadevi Road, behind Natraj Theater, at Surat, inflicted injuries by stones on the body of the deceased and also inflicted injuries on throat of the deceased. On account of which, the deceased died. It is the case of the prosecution that the incident occurred any time before 13.10 hours at night of 8th of April, 2008. PW-3 Lala @ Lalji Hirabhai Sumra, having a pan and bidi shop near the scene of offence, noticed that there was crowd near the scene of offence, and on inquiring, found that a dead body was lying at the scene of offence and, therefore, Mahidharpura Police Station mobile van was informed and Constable Arunbhai Ishwarbhai informed to Mahidharpura Police Station and ultimately on 9th of April, 2008, PW-2 Manchharam Rakhaji identified the dead body to be of his nephew Mafaram @ Mohan Jivaji Patel. A crime came to be registered upon the information of Police Constable Arunbhai and for that PW-14 Nagainbahi Vanmaribhai Kosambiya is examined. Ultimately, charge sheet came to be filed. The case was committed to the Court of Sessions and charge was framed against the accused. The respondent accused pleaded not guilty and the prosecution examined following 13 witnesses:

PW No. Name of Witnesses Exh. No. 1 Dr. Gaurang Jagadishchandra Patel 09 2 Manccharam Rakhaji 12 3 Lala @ Lalji Hirabhai Sumra 16 4 Bhagvanbhai J. Patel 18 5 Mukeshbhai Lallubhai Dhodia 20 6 Munnalal Mevalal Kanoriya 25 7 Mansukhbhai Devsibhai Karkad 26 8 Bharatbhai Maganbhai 27 9 Chetankumar Chhibabhai Patel 28 10 Rakhaji Dhiraji Patel 31 11 Babraji Huraji Patel 32 12 Sujansinh Dungarsinh Devda 33 13 Arunbhai Ishwarbhai 34 14 Naginbhai Vanmaribhai Kosambiya 35 15 Harish Dalpatbhai Patel 37 16 Ramanbhai Soniyabhai Kunkani 40 17 Rajeshkumar Rameshchandra Vasava 43 18 Amrutbhai Ramabhai Desai 44

Prosecution also produced the following documentary evidence:

Sl. No. Name of documents Exh. Nos 01 Postmortem Note 10 02 Certificate regarding cause of death 11 03 Dead body panchnama 13 04 Complaint 17 05 Panchnama of scene of offence 19 06 Panchnama regarding scene of offence shown by accused 21 07 Panchnama of seizure of cloth by PSO 22 08 Panchnama of the body of accused 23 09 Inquest Panchnama 24 10 FSL primary report 29 11 Copy of registration of offence 41 12 Report of PSI Shri Kokani 42 13 Copy of the register of New Uttar Gujarat Hindu Lodge 45 14 Copy of licence of New Uttar Gujarat Hindu Lodge 46 15 Card of New Uttar Gujarat Hindu Lodge given to Mohanbhai 47 16 Forwarding Note 48 17 FSL receipt 49 18 FSL Forwarding letter 50 19 FSL Report 51 20 FSL Sereological Report 52 21 Treatment Certificate of accused 53 22 Copy of Telephonic Vardhi 54 23 Notification 55 24 Photo of scene of offence 56

We have seen the evidence of each of the witnesses and have examined the documents also. There is no doubt about the culpable homicide of the deceased, for which PW-1 Dr. Gaurang Jagadishchandra Patel, who conducted the postmortem has been examined. According to him, the cause of death is due to asphyxia and injuries. There is no dispute in this respect, but there is no iota of evidence to connect the accused respondent with the crime. PW-2 Manccharam Rakhaji, examined at Exhibit-12, is a witness, who had identified the dead body. PW-3 Lalo @ Lalji Hirabhai Sumra, examined at Exhibit-16, is the witness, who informed the Police Constable Arunbhai. PW-4 Bhagvanbhai J. Patel, examined at Exhibit-18, is panch of panchnama of scene of offence Exhibit-19. PW-5 Mukeshbhai Lallubhai Dhodia, examined at Exhibit-20, is panch of panchnama scene of offence, Exhibit-21 and he has not supported the prosecution case as to the discovery of scene of offence at the instance of the accused and this evidence is of no avail to the prosecution. PW-6 Munnalal Mevalal Kanoriya, examined at Exhibit-25, identified one thread which was tied around the waist of the dead body and he stated that the said thread was of his laundry. PW-7 Mansukhbhai Devasibhai, examined at Exhibit-26, is the witness where deceased was working as diamond cutter. PW-8 Bharatbhai Maganbhai, examined at Exhibit-27, is a witness, who was working along with the deceased on the relevant date. PW-9 Chetankumar Chhibabhai Patel, examined at Exhibit-28, is the Scientific Officer, who had seen the scene of offence and had obtained samples from scene of offence. Other witnesses are not the witnesses connecting the accused with the crime. Witnesses No. 14, 15 and 16 - Naginbhai Vanmaribhai Kosambiya, Harish Dalpatbhai Patel and Ramanbhai Soniyabhai Kunkani, are the police witnesses and other two witnesses - Rakeshkumar Rameshchandra Vasava, examined at Exhibit-43, PW-17 and PW-18 Amrutbhai Ramabhai Desai, examined at Exhibit-44 are also the Investigating Officers. This is all the evidence of the prosecution.

The learned Trial Court acquitted the accused on the evidence recorded by him because there was no iota of evidence to connect the accused with the crime or no single circumstance appearing from the evidence recorded which would indicate that even remotely the crime was committed by the accused. Therefore, the Trial Court has, properly, appreciated the evidence and has reached to the possible conclusion from the evidence that there was no single circumstance which would incriminate the accused in the said crime. It cannot be said that the trial court has erred in coming to the conclusion nor it could be said that the reasonings of the Trial Court to arrive at the conclusion are so perverse that would not stand in any circumstances. When we appreciated the evidence recorded during the trial, we come to the conclusion that there is no other view possible than the view taken by the Trial Court. Even if the law is that if other view is possible, unless the reasonings of the Trial Court for acquittal are so perverse as not to stand to reason, then and then only interference in acquittal is permitted.

In view of the unsatisfactory evidence led by the prosecution, we are of the considered opinion that no illegality is committed by the learned Additional Sessions Judge in acquitting the accused of the offences with which he was charged and we are in complete agreement with the findings, ultimate conclusion and resultant order of acquittal recorded by the learned trial Judge, as, in our view, no other conclusion is possible except the one reached by the learned trial Judge.

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 Vs. State of Gujarat, 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 trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

In the case of Ram Kumar Vs. State of Haryana, Supreme Court has held as under:

The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal.

It may be noted that this is an acquittal appeal in which Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly, when there is no valid evidence to connect the accused with the crime. As this Court is in general agreement with the view expressed by the learned trial Judge, it is not necessary for this Court either to reiterate the evidence of the prosecution witnesses or to restate reasons given by the learned trial Judge for acquittal and in our view, expression of general agreement with the view taken by the learned trial Judge would be sufficient in the facts of the present case for not interfering with the judgment of the learned trial Judge and this is so, in view of the decisions rendered by the Hon''ble Supreme Court in the case of Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, and State of Karnataka Vs. Hemareddy Alias Vemareddy and Another,

On overall appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the learned trial Judge for acquitting the accused. Suffice it to say that the learned trial 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 trial Judge and convince this Court to take a view contrary to the one taken by the learned Judge.

For the reasons stated here-in-above, Appeal is dismissed.