State Of Gujarat vs Kalubhai Shamalabhai Kamliya & Ors

Ilesh J. Vora, J

This acquittal appeal preferred by the State is directed against the judgment dated 03.09.2004 passed by the Additional Sessions Judge, Bhavnagar in Special Atrocity Case No.8 of 2004 by which the respondents-accused have been acquitted under Sections 302, 120B, 143, 147, 148, 149 read with Section 34 of the IPC and Section 3(2)(v) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act and Section 135 of Bombay Police Act.

Case of the prosecution, in short is that, an FIR against 14 accused for the murder of one Premjibhai Alabhai came to be registered with Bagdana Police Station, Mahuva at Bhavnagar. The motive for the murder was animosity between two groups. According to prosecution case, on 28.06.2001 at about 9:00 p.m., the accused formed an unlawful assembly and the object of the assembly was to kill the deceased Premjibhai and being a member of the unlawful assembly, the accused assembled at the bus stand of Village: Kasana and then, near the house of the deceased, armed with deadly weapons like iron rod, sticks and swords and by illegally trespassing in the house of the deceased, he was brutally assaulted and by locking the door from outside, the deceased was set on fire by pouring edible oil and diesel. The complaint came to be filed by the wife of the deceased PW.1 – Heeraben. The deceased belongs to Schedule Caste. The investigation handed over to PW.8 – Dy.S.P., Mahuva and after due investigation, the chargesheet came to be filed against the accused. It is relevant to note that, in the first phase, 9 accused were chargesheeted and they have been acquitted by the trial court for want of sufficient evidence and later on, the respondents-accused were put on trial and they also been acquitted because of no evidence.

In the course of trial, prosecution examined in all 10 witnesses and exhibited 20 documents. The eye witnesses namely PW.1 – Heeraben Premjibhai, PW.2 – Tinaben Premjibhai, PW.3 – Natubhai Zaverbhai, PW.5 – Shivabhai Bachubhai have not supported to the case of prosecution and in the cross-examination also, they did not extend support to the prosecution on the aspect of incident.

Trial court after hearing the parties and upon appreciation of the evidence, acquitted the respondents-accused from all charges observing that the prosecution miserably failed to prove the case beyond reasonable doubt by adducing cogent, acceptable and reliable evidence.

In the aforesaid facts and circumstances, the State being aggrieved with the judgment of the acquittal, has come up with this appeal.

We have heard Mr. Krutik Parikh, learned APP appearing for the appellant-State and Mr. Yatin Soni, learned counsel appearing for and on behalf of the respondents-accused.

Mr. Krutik Parikh, learned APP appearing for and on behalf of the appellant-State while assailing the impugned judgment, has submitted that, the judgment of acquittal suffers from legal infirmities, perversity and fundamental error in appreciation of evidence. That, the evidence of police officials would be material and considering the circumstantial evidence, the involvement of the accused being proved and established.

In such circumstances as referred above, Mr. Parikh, learned APP prayed that, there being merits in this appeal as the findings of acquittal are contrary to the evidence on record and same may be allowed and the accused be convicted and sentenced for the offences for which they were tried.

On the other hand, Mr. Soni, learned counsel appearing for the accused has supported the findings recorded by the Trial Court and contended that there is no sufficient evidence adduced by the prosecution to establish the charge of murder as the close relatives and family members have been declared hostile and they have not supported the factual aspect of the incident even in their cross-examination. It is further argued that, out of 14, the trial of 9 accused would also result into acquittal and therefore, this is a case of no evidence. In such circumstances, it is submitted that, the court below has rightly appreciated the oral as well as documentary evidence and does not committed any error either on law or facts while recording the acquittal. Thus, therefore, when view taken by the Trial Court is a possible view and the prosecution miserably failed to point out the compelling reason warranting inference in the order and judgment of the acquittal, the appeal lacks merits and may be dismissed.

We have considered the submissions made at the bar and perused the record and proceedings of the case.

Having regard to the evidence on record, and findings recorded by the Trial Court, the issue required to be considered whether the judgment of acquittal suffers from legal infirmity, perversity or fundamental error in appreciation of the evidence, that would warrant interference by this Appellate Court?

Before venturing into the merits of the case, we would like to refer the scope of Section 378 of the Cr.P.C. while deciding an appeal against the judgment and order of acquittal. The Supreme Court in its various pronouncements has persistently emphasized that there are limitations while interfering with an order against acquittal. In exceptional cases, where there are compelling circumstances and the judgment under appeal is found to be perverse, the Appellate Court can interfere with the order of acquittal. The Appellate Court should bear in mind the presumption of innocence of the accused and further that the acquittal by the Lower Court bolsters the presumption of his innocence. Interference in routine manner, where the other view is possible should be avoided, unless there are good reasons for interference.

In the facts of the present case, the material eye witnesses who are wife, daughter and residents of village, have not supported to the case of prosecution. The police officials have no personal knowledge about the incident and their evidence cannot be taken into consideration to come to a conclusion that the accused-respondents had been involved in the incident. In our opinion, this is a case of no evidence. In other words, there is no iota of evidence to prove that, the present respondents-accused were members of unlawful assembly and with the common object to kill the deceased Premjibhai, they joined the unlawful assembly and actively participated in commission of crime.

For the reasons recorded, the prosecution has not adduced sufficient evidence to prove the charge against the accused. On careful examination of the findings of the trial court, we do not find any compelling reasons warranting interference in the judgment of the acquittal as the findings of acquittal based on the evidence on record and the view of the Trial Court is possible view which do not warrant any interference.

Resultantly, in absence of any compelling reasons to interference with the judgment of acquittal, this acquittal appeal preferred by the State stands dismissed. The bail bonds, if any stands cancelled. Surety, if any, given, stands discharged. R & P to be sent to the Trial Court concerned.