Champaben Govindbhai vs Popatbhai Manilal And Ors

2. The deceased, Arunbhai and Popatbhai Manilal,

Jayantibhai Manilal and Ishwarbhai Manilal were 1 residents of Bapalal Ghanchi's Chawl, Chamanpura,

Ahmedabad. Champaben Govindbhai Patni, the

complainant, the mother of the deceased, was

married to Govindbhai, who was at the material

time working in Mumbai. They have three sons and

three daughters, the deceased Arunbhai, being the

eldest of the sons. The deceased, a rickshaw-

puller by profession, was married 10 years back

to Madhuben. She is the daughter of Chamanbhai

Popatbhai, the uncle of the accused persons. But

at the time of the incident Madhuben was not

staying in the family of the deceased.

3. The case of the prosecution is that on

18.6.1999, around 9.00 p.m., the deceased Arun

was sleeping on a cot on the Otla (extended

balcony) of the house after his supper. Accused

No. 1, Popat was walking past by him when the leg

of the deceased, which was dangling from the cot,

touched him. At that the Accused no. 1 started

abusing the deceased to which he protested and a

scuffle ensued and in the process they reached

the entrance of the chawl. The complainant, who

2 was inside the house heard the noise and came out

to see that the two were quarrelling. So she told

her son not to quarrel and took him aside.

Accused No. 1 Popat went to his house. After

sometime, all the three accused came to the place

of occurrence, armed with weapons. Accused No. 1

had a gupti (a long double edged knife) in his

hand; Accused No. 2 Jayanti was armed with a pipe

while the Accused No. 3 Ishwar was holding a

Dhoka (a wooden log, used for cleaning clothes).

At that time, the deceased Arun was standing

along with his sister Meghna (PW 4) and the

Accused No. 1 caught hold of her. The deceased

told him to let his sister go as the quarrel was

between the two of them. At that point of time,

the Accused No.1 hit the deceased with the gupti,

first on the chest and then on the stomach. The

Accused No. 2 hit the deceased on the chest with

the pipe and Accused No. 3 hit him with the

dhoka. The deceased thus received several blows

all over the body. Vijay Patni (PW 5), the nephew

of the complainant who had been living with them

at the point of time, came to the scene and tried

3 to intervene but was hit on the head by Accused

No. 2. The deceased fell on the ground in front

of his house thereupon all the three accused ran

away from the place. The deceased was taken to

the hospital by Champaben, her husband's sister

Dadamben and her nephew, Vijay where he was

examined and declared dead. A post-mortem

examination was conducted, after which the

complainant brought the dead body home. The

police came to her house and her complaint was

recorded.

4. The said complaint was recorded by P.I. Shri

Pratapsinh Udhesinh Ravol (PW12) of Meghaninagar

Police Station on 19.6.99. The complaint (Ex. 50)

and the Report (Ex. 51) were sent to the police

station to register the offence. PW 12 also

recorded the statements of PW 4 and PW 5 on the

same date. He also recorded statements of the

relatives of the deceased and the other people

present at the scene of incident. He made

panchnama of the place of incident and also

seized some pieces of bricks from there. PW 12

4 then went to the civil hospital where the

deceased had been taken and made inquest

panchnama of the dead body. The blood stained

clothes and a sample bottle of blood of the

deceased was brought to the police station by

P.C. Maheshbhai Maganbhai and was seized under a

panchnama (Ex.25).

5. On 19.6.99, the accused persons were brought to

the police station at 1.00 a.m. and their

panchnama was made. The blood stained clothes of

the Accused No. 2 was also seized and a panchnama

was made. Since the police felt that there was

enough evidence against them, the three accused

were arrested at 2.30 a.m. on 20.6.1999 and were

interrogated.

6. The day after their arrest, at the behest of

Accused No. 2, the police found the weapons of

offence which were hidden in the mailia (loft).

The police as well as Accused No. 2 went to their

house, broke the lock and recovered a wooden

dhoka, an iron pipe and a gupti which were seized

5 and panchnamas prepared. The seized weapons and

clothes were sent to the FSL on 22.6.99.

7. The accused were charged for offences under

Section 302 read with Section 34 of the Indian

Penal Code (referred to as IPC herein after) and

in the alternative, under Sections 302 read with

Section 114 of the IPC. In addition, Accused No.

2 Vijaybhai was also tried for an offence

punishable under Section 324 of the IPC while the

rest were tried for the said offence punishable

under Section 114 of the IPC. Charges were also

brought against each of them for offences

punishable under Section 135 (1) of the Bombay

Police Act 1951. After trial, the accused were

acquitted by the Court of the Learned City

Sessions Judge, Ahmedabad vide judgment dated

7.8.2000. It may be mentioned that a cross-

complaint was filed by the accused persons

registered at 1:25 a.m on 19.6./20.6.1999

alleging that the accused No.1 was injured during

the incident.

6

8. The State preferred an appeal against the

acquittal before the High Court of Gujarat at

Ahmedabad. The contention of the State was that

there was enough evidence for conviction of the

accused persons and the Trial Court ought to have

believed the case of the prosecution on the basis

of the evidence of the star witness Champaben

which was supported by other two eye-witnesses,

namely Vijay (PW 5) and Meghnaben (PW 4). The

High Court however dismissed the appeal by the

impugned judgment dated 18.7.2001.

9. Hence this SLP by the complainant Champaben

Govindbhai, the mother of the deceased. The State

supports the complainant's appeal.

10. It is well settled that in an appeal

against acquittal the Appellate Court does not

reverse the finding of acquittal if the Court while

granting acquittal has taken a reasonable or a

possible view on the evidence and materials on

record. Law is equally well settled that if the

view taken by the Court granting acquittal is

7 perverse or shocks the conscience of the higher

Court, the finding of acquittal can be reversed.

In the instant case, the High Court as the First

Appellate Court has a duty to consider in detail

the material on record and also should appreciate

the evidence very carefully before affirming the

order of acquittal given by the trial Court.

11. The counsel for the respondents referred

to the decision of this Court in Chandrappa and

others Vs. State of Karnataka - (2007) 4 SCC 415,

to put forward the argument that an appellate court

must bear in mind that in case of acquittal, there

is a double presumption in favour of the accused.

Firstly, the presumption of innocence is available

to him under the fundamental principle of criminal

jurisprudence that every person shall be presumed

to be innocent unless he is proved guilty by a

competent court of law. Secondly, the accused

having been acquitted, the presumption of his

innocence is further reinforced, reaffirmed and

strengthened by the trial court. In this connection

we may refer to the principles summarized in

8 paragraph 42 at page 432 of the judgment and they

are extracted:-

"42. ....(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

9 (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

12. Also, if two reasonable views are possible

on the basis of the evidence on record and one

favourable to the accused has been taken by the

trial court it ought not to be disturbed by the

appellate court (Para 44). Reference was also made

to the case of Bhagwan Singh and others Vs. State

of M.P. - (2003) 3 SCC 21, where this Court had

held that in an appeal against acquittal, the High

Court is competent to reappreciate the evidence to

find out whether the trial judge has misappreciated

any part of the evidence or not. If the evidence

has been properly appreciated and conclusions drawn

from them are reasonable in that case reversal of

the finding of acquittal is not warranted (Para

35).

13. The counsel for the petitioners on the

other hand cited the case of Mahtab Singh & Anr.

Vs. State of U.P. - JT 2009 (5) SC 431 [at Page. 10 437, Para. 16-18] which reiterated the following

view of the SC laid down in Kalyan Singh Vs. State

of M.P. - (2006) 13 SCC 303, wherein it has been

held "It is now well known that if two views are

possible, the appellate court shall not ordinarily

interfere with the judgment of acquittal. We do

not, however mean to lay down the law that the High

Court, in a case where a judgment of acquittal is

in question, would not go into the evidence brought

on record by the prosecution or by the State but we

would like to point out that even if the High Court

reversed the judgment of acquittal recorded by the

trial court, it is incumbent on the High Court to

arrive at the conclusion that no two views are

possible." (Para 16, page 437)

14. In dealing with the question of appeal

against acquittal, a very balanced view has been

struck by a three-Judge Bench of this court in

Shivaji Sahabrao Bobade and another Vs. State of

Maharashtra - (1973) 2 SCC 793. In paragraph 6,

page 799 of the report, Justice Krishna Iyer,

speaking for the Bench, observed:-

11

"6. .... The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted `persons' and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ...." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic."

15. This Court finds that unfortunately the

High Court in this case acted in a very casual

12 manner and has reached certain findings which are

perverse. The High Court has held "medical

evidence does not disclose that injuries caused on

the person of Arun (deceased) were sufficient in

ordinary course of nature to cause death." The

aforesaid finding is totally contrary to the

record, if one looks at the evidence of Dr.

Yogeshbhai Jadav, Medical Officer, Civil Hospital,

Ahmedabad, who did the post-mortem examination on

deceased Arun. Dr. Jadav found the following

injuries on the external part of the body:-

(1) 2.5 x 1 cm vertical stab wound on left side of chest to midline end. 2 cm inferior to nipple plane margins of wound are out sharply and inverted.

(2) 2 x 1 x 1 cm incised wound on medical and superior of Rt. elbow directed downward positively.

(3) 4 x m 11 near incised wound limited to skin on Rt. lower chest lateral aspect directed downward.

(4) 2.5 c.m. transverse linear incised wound limited to skin on lateral end lower abdomen.

(5) 1 x 1 cm contusion abrasion on lateral and upper part of left lip 4 cm inferior to injury no.4.

13 (6)... x 1 cm transverse contusion abrasion posterial to injury no5.

Other injury which were found because of investigation of touch, if any.

Fracture of left 4th and 5th sternochondral area of ribs.

16. On internal examination, the doctor opined

on the chest "injury goes deeply posterior upwards

and laterally in a way. It cuts skin, tissue,

sterno, chondral area of left 4th and 5th ribs along

with fractures, inter costal muscles, pericardium,

medical border of it. Verticle, it measures 2 cm

then pieres through and through on posterial wall

it measures 1 cm then ultimately ends at lower lobe

upper part of left lung it measures 0.5 x 05 cm and

causing - Hemo Pericardium and Hemotharax in left

Thoaraic cavity. Blood and clots found about 1800

ml." The doctor clearly opined that the cause of

death is shock and hemorrhage due to stab injury on

the chest. By characterizing these injuries as not

sufficient in the ordinary course to cause death,

the High Court, with respect, fell into a grave

14 error and its appreciation of evidence borders on

perversity.

17. In our view this is a glaring infirmity in

the judgment of the High Court. The other reason

given by High Court in affirming the order of

acquittal is that only interested persons are the

witnesses and no independent witness has been

examined. The other reason given by the High Court

to support the judgment of acquittal of the Trial

Court is that much time has elapsed between the

occurrence and filing of a complaint. The High

Court has also come to the finding that the blood

stained clothes, weapons were not examined and this

has created a doubt about the veracity of the

prosecution case.

18. It has been repeatedly pointed out by this

Court that just as the witnesses are related to the

deceased that is no ground to discard their

evidence. In the instant case, there are three

eye-witnesses and one of them is an injured

witness. Their evidence cannot be discarded just

15 on the ground that they are related to the

deceased. It is settled law if the evidence of the

witnesses, who are related, is credible and cogent,

the fact that they are related is not a ground for

discarding such evidence. This Court has held that

related witness do not normally spare the guilty

and implicate innocent persons.

19. About the delay of lodging the FIR, this

Court finds that immediately after the occurrence

the deceased was taken to the hospital by the

complainant and other relations where the deceased

was declared dead. One G.D was entered by 11:05 on

the same night which was just after a gap of about

2 hours. Therefore considering normal human

conduct, this delay of about 2 hours between the

occurrence and lodging of the complaint is not a

factor for discrediting the prosecution case. A

finding of acquittal on the ground of this delay is

not a reasonable exercise of jurisdiction by an

Appellate Court.

16

20. It also appears from the record that the

weapons of offence were examined to find out that

they had stains of human blood, in group `B'.

21. Therefore considering all these facts and

circumstances of this case, this Court is

constrained to hold that the High Court did not

exercise its jurisdiction properly under Section

378 of the Criminal Procedure Code in appreciating

the material on record while approving the order of

acquittal of the trial court.

22. Therefore, the High Court's judgment of

acquittal cannot be sustained and is set-aside.

23. The High Court will now hear the State's

appeal afresh.

24. We expect, having regard to the passage of

time, High Court will try its best to dispose of

the State's appeal as expeditiously as possible.

17

25. The High Court will not feel bound by any

observation made in the judgment. The observations

which have been made here are for the purpose of

disposing of the present appeal. The High Court is

at liberty to apply its mind to the evidence and

materials available on record and come to its

independent finding. The appeal is, thus, allowed.

...................J. (D.K. JAIN)

...................J. New Delhi (ASOK KUMAR GANGULY) July 31, 2009

18