[1.0] Present Criminal Appeal under Section 378 of the Code of Criminal Procedure, 1973 has been preferred by the appellant – State of Gujarat challenging the impugned judgment and order dated 30.03.1994 of acquittal passed by the learned Additional Sessions Judge, Kheda, at Nadiad in Sessions Case No.233 of 1993 by which the learned Sessions Court has acquitted the respondents herein – original accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). [2.0] Facts leading to the present Criminal Appeal in nutshell are as under:
[2.1] That according to the prosecution case, on 18.04.1993, deceased Valjibhai Hirabhai Vankar was sleeping in front of his house and at about 3 a.m. in the morning (19.04.1993), accused No.2 caught hold the legs of the deceased and original accused No.1 sat over the chest of the deceased and committed murder by throttling. According to the prosecution, the said act was intentional and sufficient to cause the death in ordinary course. It was also alleged that thereafter, after committing the murder of the deceased, the accused hanged the dead body of the deceased Valjibhai Hirabhai Vankar on badam tree and destroyed the evidence and thereby committed the offence under Section 201 of the IPC also. That the wife of the deceased Madhuben lodged the FIR against the accused persons for the offences under Sections 302, 201, 34, 120B and also under Section 203 of the IPC with Khambhat Rural Police Station. That after the conclusion of the investigation, the Investigating Officer submitted the chargesheet against the accused for the offence under Section 302 read with Section 34 of the IPC. As the case was exclusively triable by the Court of Sessions, the learned JMFC committed the case to the Sessions Court, Kheda, at Nadiad which was numbered as Sessions Case No.233 of 1993. That the charge came to be framed against the accused persons for the aforesaid offences, the accused pleaded not guilty and therefore, they came to be tried for the offences under Section 302 read with Section 34 of the IPC.
[2.2] To prove the case against the accused, prosecution examined as many as 12 witnesses inclusive of one Premabhai Pochabhai Makwana PW5 (Exh.27) – son of the accused persons. Prosecution also led documentary evidences. It is required to be noted that according to the prosecution, PW5 Premabhai was the sole eye witness to the incident. That on appreciation of evidence, the learned trial Court has disbelieved the socalled eyewitness PW5 Premabhai and has held that the prosecution has failed to prove the case against the accused persons for the offence under Sections 302 and 34 of the IPC and consequently by impugned judgment and order, the learned Additional Sessions Court has acquitted the accused. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the appellant – State of Gujarat has preferred the present Appeal under Section 378 of the Code of Criminal Procedure, 1973.
[3.0] Ms. Chetna M. Shah, learned Additional Public Prosecutor has vehemently submitted that learned Judge has materially erred in acquitting the accused for the offence under Section 302 read with Section 34 of the IPC. It is submitted that the learned Judge has materially erred in disbelieving the deposition of the eyewitness Premabhai (PW5) who has categorically stated in his deposition that he has infact seen the accused committing the murder of the deceased. It is submitted that the said witness is the son of the accused and therefore, the learned Judge ought to have believed his deposition. It is further submitted that even the motive has been established by the prosecution. It is submitted that there was a dispute with respect to the partition of the land and the same has been proved from the letters (Exhs.36 to 38) written by the deceased which have been proved. It is submitted that even the deposition of PW5 Premabhai (Exh.27) has been corroborated by the medical evidence – PM report. It is submitted that in the PM report the cause of death of deceased Valjibhai is stated to be asphyxia due to strangulation and therefore, the learned Judge ought to have convicted the accused.
Making above submissions, it is requested to allow the present Criminal Appeal.
[4.0] Present Appeal is opposed by the Shri H.M. Parikh, learned advocate appearing on behalf of the accused persons. It is submitted that on appreciation of evidence the learned Judge has rightly disbelieved PW5 Premabhai (Exh.27). It is submitted that as such Premabhai cannot be said to be the eyewitness. It is submitted that even the said Premabhai immediately did not disclose what is stated in the deposition to the police and even the FIR was lodged by Madhuben – wife of Valjibhai. It is submitted that as such even the medical evidence also does not support the case of PW5 Premabhai. It is submitted that except Premabhai nobody has claimed to be the eyewitness and so far as socalled eyewitness is not believable at all and therefore, the learned Judge has rightly acquitted the accused. It is submitted that as such the view taken by the learned trial Court is plausible and possible and as such view taken by the learned Judge is possible and therefore, it is requested to dismiss the present Appeal. He has also relied upon the following decisions of Hon’ble Supreme Court in support of his prayer to dismiss the present Appeal.
1. Ramesh Babulal Doshi vs. State of Gujarat (1996)9 SCC 225
2. Chandrappa and Ors. vs. State of Karnataka (2007)4 SCC 415
3. State of Uttar Pradesh vs. Banne @ Baijnath and Ors. (2009)4 SCC 271
4. Brahm Swaroop and Anr. vs. State of U.P. (2011)6 SCC 288 [5.0] Heard learned advocates appearing on behalf of respective parties at length and considered the judgment and order of acquittal as well as the entire evidence on record, documentary as well as oral from the Record & Proceedings received from the trial Court.
[5.1] At the outset it is required to be noted that in the present case the entire case raises upon the deposition of PW5 Premabhai (Exh.27) who claims to be the eyewitness to the incident. In the deposition the said Premabhai has stated that he is the son of the original accused No.1 through his second wife Devalben and Paniben was the first wife of this father. He has further stated that there was a dispute going on between his uncle Valjibhai (deceased) and his father with respect to land /property. That his uncle Valjibhai (deceased) was residing at Ahmedabad and occasionally he used to go to village Gudel for cultivation and at that time he was residing in the house situated at village Gudel. He has further stated that on 18.04.1993 at about 5 p.m., he had gone to house of one Kana Megha to watch TV and thereafter he came to his home and went to sleep. At about 3 a.m., there was some quarrel/noise and at that time he has waken up and seen from the window that his mother Jethiben has caught hold of the legs of his uncle Valjibhai and his father Pochabhai committed the murder of his uncle by throttling. He has further submitted that thereafter his father went inside and dropped the rope and thereafter hanged the dead body of the deceased on badam tree. He has further stated that at that time his father saw him and he told him that whatever he is doing is in his interest and he should not tell about the incident to anybody and if he tells anybody, he will also be done to death. He has also further stated that thereafter again he went to sleep and in the morning he has further stated that in the morning his father went to the residential area (vas) and he informed the village people that his brother Valjibhai has committed suicide by strangulation. He has further stated in examinationinchief that he did not inform about the incident to any other person as he was afraid as, after the death of his mother he was residing with his uncle at Ahmedabad. He has further stated in the examinationinchief that thereafter his father went to the Sarpanch and police came and his aunt (wife of the deceased) and his aunt’s brother came from the village Motiboru and he told them about the true facts. He has further stated that on second day of the incident, police recorded his statement. He has stated that his father and his step mother Jethiben are the real accused. In the crossexamination he has specifically admitted that after the partition there was no dispute between his uncle and his father with respect to the property/land. In the cross examination he has also stated that when he heard the noise, he has seen the incident from within the room. He has also clearly admitted in the crossexamination that before his aunt came, police started investigation and the police also inquired from him. However, before his aunt came, he did not inform anything with respect to the incident to the police. He has also admitted in the crossexamination that for 3 days he was in the police. He has also stated in the crossexamination that after his aunt Madhuben came along with her brother he told everything to them and about the incident. Though in the deposition he has stated that he has seen the incident at 3 a.m. from the window, however, from the sketch/panchnama it appears that there is no window at all in the room in which he is staying. Considering the entire evidence/deposition of PW5 Premabhai, it appears that though he claims to be the eye witness, infact he is not the eyewitness at all as he has not seen the incident. It appears that accused No.2 is his step mother and after the death of his real mother, he was compelled to stay at Ahmedabad with the deceased, he has given the evidence against the accused persons. Even from the medical evidence and postmortem and cause of death, the version given by the said witness is not corroborated and/or proved. As such there are no ligature marks and the cause of death as per the medical evidence is asphyxia due to strangulation. Therefore, the case on behalf of the said witness that first the deceased was done to death by accused No.1 by throttling and thereafter the deceased was hanged on badam tree is not corroborated and/or proved. The learned Judge while acquitting the accused has rightly appreciated the deposition of the said witness PW5 Premabhai and has rightly disbelieved the said witness. As stated herein above, though he was aware about the incident at 3 a.m. and he claims to be the eyewitness, neither he lodged the FIR nor stated about the incident to the police about the incident till next day i.e. Madhuben came. The aforesaid conduct on the part of the said witness is not appreciable.
[5.2] From the deposition of Madhuben – wife of Valjibhai (deceased), she has stated that her brother Laxmanbhai informed her at Ahmedabad with respect to the incident and committing murder of her husband by the accused persons. However, in the deposition, PW5 Premabhai has stated that when Madhuben came from Ahmedabad/village, he told Madhuben about the incident and true facts. However, Madhuben in her deposition is not saying so. Neither Laxmanbhai – brother of Madhuben nor Danabhai, who informed Laxmanbhai about the murder of Valjibhai committed by the accused, have been examined.
[5.3] Considering the aforesaid facts and circumstances, when the version of PW5 Premabhai Pochabhai Makwana (Exh.27) is not supported by the medical evidence and as stated herein above, PW5 Premabhai Pochabhai Makwana, who claims to be the only eyewitness, is not reliable at all and when the prosecution has failed to establish and/or prove that the accused have committed the murder of deceased Valjibhai and thereafter he was hanged on badam tree and consequently, when the learned trial Court has acquitted the accused for the offence under Section 302 read with Section 34 of the IPC, it cannot be said that learned Sessions Court has committed any error and/or illegality in acquitting them.
[5.4] From the entire evidence on record, it appears to the Court that the view taken by the learned Sessions Court while acquitting the accused is not only plausible and possible but it appears to us that no other view than the view taken by the learned Sessions Court is possible. We are of the firm view that the learned Sessions Court has not committed any error and/or illegality in acquitting the accused. The finding given by the learned Sessions Court is on appreciation of evidence and they are neither perverse nor contrary to the evidence on record.
[5.5] It is a cardinal principle of criminal jurisprudence that in an acquittal appeal even 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 (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.
[5.6] In the case of Ram Kumar vs. State of Haryana reported in AIR 1995 SC 280, Hon’ble 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."
[5.7] 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 the evidence has not inspired confidence of the learned trial Judge. 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 Ors. vs. Bijendra Narain Chaudhari reported in AIR 1967 SC 1124 and State of Karnataka vs. Hema Reddy and Anr. reported in AIR 1981 SC 1417.
[5.8] 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.
[5.9] 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 they were charged.
[6.0] In view of the above and for the reasons stated above, present Criminal Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed.
(M.R.SHAH, J.) (S.H.VORA, J.) Ajay