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Judgment
S.H.Vora, J
Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 16.11.1994 passed by the learned Additional Sessions Judge, Nadiad in Sessions Case No.262 of 1993, whereby the respondents accused came to be acquitted for the offences under sections 302, 34, 120B and 504 of Indian Penal Code, the appellant – State has preferred present appeal under section 378 of the Code of Criminal Procedure, 1973 (“the Code” for short).
Brief facts leading to prosecution case can be stated thus, accused no.1 happens to be brother of accused no.2. The complainant – Ganpatsinh and prosecution witnesses – Bharatsinh and deceased Mohabatsinh were brothers. On 14.06.1993, complainant’s marriage was to be performed. Accused no.2 – Buniben is wife of Bharatsinh. Accused no.2 – Buniben is married with Bharatsinh, but necessary ceremony to bring her to the house of her husband was not performed. As marriage of Ganpathsinh was schedule, she was invited to join marriage. She was sitting outside the house on Otla. At that time, deceased – Mohabatsinh came there and told her that it is not proper to sit on Otla where many males members are passing through nearby Otla. She did not like it and replied that she would get him killed once her brother i.e. accused no.1 would come there. Thereafter, on the next day, when deceased – Mohabatsinh, Vikram etc. were sitting outside the house, accused no.1 came there at about 12.00 a.m. to bring his sister Buniben and Nanduben back with him, at that time, the complainant and other prosecution witnesses told accused no.1 to let Buniben and Nanduben to stay for few days more. On account of this, accused no.1 got annoyed and abused Mohabatsinh and took out knife from his pant, assaulted on Mohabatsinh and gave knife blow on his back side. On account of this, Mohabatsinh fell down and died. It is the case of the prosecution that sister in law of deceased – Mohabatsinh viz. Kamalaben aged 10 years was staying there. As she was not seen at the time of marriage procession, which was to be commenced, complainant asked wife of deceased Mohabatsinh as to why Kamalaben has not joined marriage procession, at that time, she informed that she has refused to join marriage procession at the instance of accused no.2 – Buniben.
In pursuance of the FIR lodged by the complainant – Ganpathsinh, which came to be registered as C.R.No.I-152 of 1993 with the Mehamdabad Police Station for the offence under sections 302, 120B, 504 and 34 of Indian Penal Code, the investigating agency recorded statements of the witnesses, drawn panchnama of scene of offence, discovery and recovery of weapons and obtained FSL report for the purpose of proving the offence. After having found sufficient material against the respondents accused, charge-sheet came to be filed in the Court of learned JMFC, Mehamdabad. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Nadiad as provided under section 209 of the Code.
Upon committal of the case to the Sessions Court, Nadiad, learned Sessions Judge framed charge at Exh.4 against the respondents accused for the aforesaid offences. The respondents accused pleaded not guilty and claimed to be tried.
In order to bring home charge, the prosecution has examined 8 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 4 and 5 of the impugned judgment and order.
On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondents accused so as to obtain explanation/answer as provided u/s 313 of the Code. In the further statement, the respondents accused denied all incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them.
We have heard learned APP Ms. Shah for the appellant – State and learned advocate Mr. H.M.Parikh for respondent no.2. It needs to be noted that respondent no.1 – accused no.1 – Ramanbhai Umedbhai Zala expired on 09.05.2018, pending hearing of the present Criminal Appeal and therefore, the present Criminal Appeal qua respondent no.1 came to be abated.
According to learned APP, respondent no.2 – Buniben instigated respondent no.1 to commit murder of deceased – Mohabatsinh on two counts viz. (1) deceased – Mohabatsinh refused her to sit on Otla where many male members were passing through nearby Otla and (2) respondent no.2 refused Kamalaben aged 10 years to join marriage procession of complainant – Ganpatsinh. In support of the charge qua respondent no.2, learned APP took us through deposition of the complainant – Ganpathsinh recorded below Exh.18 and prosecution witness – Raiben Badarsinh at Exh.21 and minor Kamalaben examined at Exh.22. An attempt is made by learned APP to submit that deceased – Mohabatsinh was done to death at the hands of respondent no.1 – Ramanbhai Zala and said act was done in furtherance of common intention of both the accused and therefore, respondent no.2 is liable for that act, as if it was done by her alone. On the basis of deposition of three eye witnesses as aforesaid, it is submitted that there was pre - plan / pre -arranged plan to commit murder of Mohabatsinh on account of two incidents occurred as aforesaid.
It is undisputed fact that at the time of occurrence of incident, respondent no.2 was not at the scene of offence, but was inside the house and was cooking food, as deposed by PW-4 – Raiben at Exh.21 in para 2 of her deposition. Said PW-4 – Raiben is mother of the complainant. It is also admitted by her that there was no any dispute between deceased – Mohabatsinh and respondent no.1. PW-2 – complainant – Ganpathsinh in his deposition in para 3 specifically stated that respondent no.2 and Kamlaben never stayed together, nor there was any dispute between them and he has not seen them talking at any time. Said witness also admitted that he has seen both of respondents talking in private but he has not heard anything. No any other witnesses have heard anything with regard to talks between respondents. In other words, there is no evidence, except bare words by the complainant that respondent no.2 informed deceased – Mohabatsinh that she would get him killed once her brother i.e. respondent no.1 would come there on account of refusing her to sit on Otla of the house. It is not the case of the prosecution or complainant that such threat given to the deceased – Mohabatsinh is transmitted or provided to him by deceased Mohabatsinh or anybody else. In other words, there is no any evidence of participation of respondent no.2 when offence of murder was committed by respondent no.1. But respondent no.2 is charged for the offence on account of the fact that she did not like when deceased Mohabatsinh refused her to sit on Otla where many male members are passing through nearby Otla. No-doubt, common intention can be formed in the course of occurrence. In the case of hand, there is no overact on the part of respondent no.2 at the time of incident or there is any such allegation on the part of the prosecution witnesses.
At this stage, reliance is placed on record observations made by the Hon’ble Supreme Court in the case of Krishnamurthy @ Gunodu and Ors. v/s. State of Karnataka rendered in Criminal Appeal No.288 of 2022 in para 19, which reads as under :-
“19. Section 34 IPC also uses the expression “act in furtherance of common intention”. Therefore, in each case when Section 34 is invoked, it is necessary to examine whether the criminal offence charged was done in furtherance of the common intention of the participator. If the criminal offence is distinctly remote and unconnected with the common intention, Section 34 would not be applicable. However, if the criminal offence done or performed was attributable or was primarily connected or was a known or reasonably possible outcome of the preconcert/contemporaneous engagement or a manifestation of the mutual consent for carrying out common purpose, it will fall within the scope and ambit of the act done in furtherance of common intention. Thus, the word “furtherance” propounds a wide scope but should not be expanded beyond the intent and purpose of the statute. Russell on Crime, (10th edition page 557), while examining the word “furtherance” had stated that it refers to “the action of helping forward” and “it indicates some kind of aid or assistance producing an effect in the future” and that “any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony.” An act which is extraneous to the common intention or is done in opposition to it and is not required to be done at all for carrying out the common intention, cannot be said to be in furtherance of common intention [refer judgment of R.P. Sethi J. in Suresh (supra)]”.
We have independently re-examined and re-assessed evidence and also findings recorded by the learned Trial Judge in para – 16 of the impugned judgment with regard to charge of offence under section 34 of IPC qua respondent no.2. Only evidence which comes on record is such that some dispute took place with regard to taking respondent no.2 at her parental home and that dispute took place between accused no.1 and deceased – Mohabatsinh. Under the circumstances, the learned trial Judge has rightly acquitted the respondents - accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal.
Except relying upon aforesaid evidence, no any other direct evidence either oral or documentary is pressed into service to interfere with the findings of the learned trial Court leading to acquittal of the respondents accused. When substantial evidence is lacking to connect the respondent no.2 accused with the crime or not brought on record sufficient evidence to establish the guilt, other corroborative evidence loses its significance or needs any consideration to upset the findings and therefore, there is no need to overburden the judgment anymore or needs any discussion of such evidence.
It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the 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. (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 trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, 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."
As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.