R/CR.A/816/1999 JUDGMENT DATED: 14/05/2024
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 816 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
SHASHIKANT GORDHANBHAI PATEL & ORS.
================================================================
Appearance:
MR LB DABHI APP for the Appellant(s) No. 1
MR HM PARIKH(574) for the Opponent(s)/Respondent(s) No. 2
MR PR NANAVATI(508) for the Opponent(s)/Respondent(s) No. 1,4
MS RHEA CHOKSHI(10808) for the Opponent(s)/Respondent(s) No.
3,5,6,7,8
===============================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 14/05/2024
ORAL JUDGMENT
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(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Here is the Appeal by the State against the judgment
and order of acquittal.
2. Being dissatisfied by the judgment and order passed
by the learned Additional Sessions Judge, Kheda,
Camp at Anand, dated 12.04.1999, acquitting the
respondents from the offence under Sections 302,
323, 365, 342, 147, 148, 149 of Indian Penal Code,
State has preferred instant appeal under Section 378
of the Cr.P.C.
3. This Court has heard Mr. L.B. Dabhi, learned Additional
Public Prosecutor, learned Counsel Mr. B.S. Khatana,
Mr. Hemang Parikh, Senior Counsel Mr. Tejas Barot
assisted by Ms. Rhea Choksi for the respective parties.
4. Learned counsel Mr. B.S. Khatana and Mr. Hemang
Parikh upon instructions, state that during the
pendency of this Appeal, the accused No.1 Shashikant
Patel, accused No.2 – Arvind Patel and Accused No. 4 –
Gordhan @ Bhanu Patel have passed away. The State
has also conceded the statement made at the bar.
Thus, the present appeal stands abated qua accused
Nos. 1, 2 and 4.
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5. Brief facts giving rise to file the present Appeal are
that, on 19.12.1997, deceased Ranchhodbhai and his
son Arvind had been killed at the farm of accused
accused No. 2 – Arvindbhai Patel. The father and son
were abducted by the accused and wrongfully
confined by the accused. There was a suspicion that
deceased Arvind stolen gunny bags of the principal
accused. The accused herein went to the house of the
deceased. The wife of the deceased Ranchhodbhai
was found alone at the house. The accused No. 4
Gordhan Chhotabhai and accused no. 2 – Arvind Patel,
went to the market in search of deceased Arvind and
subsequently, he was brought back by them at his
house. The father and son were taken to the farm of
accused no. 2. At the farm, the accused by using
wooden logs and giving fist and kick blows,
mercilessly caused a fatal injuries to both – father and
son. As a result, the father Ranchhod died at the
place, whereas the son Arvind was in semi
unconscious state of mind and was declared dead on
arrival at the Government Hospital. The entire incident
was being seen by the complainant Punjiben, as she
also came at the farm after the incident of abduction.
The accused no. 3 – Rajendra Patel and accused
no. 8 Pankaj Patel, after the incident, came to
Vidhyanagar Police Station. They informed to the
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police that, they caught the thieves of the gunny
bags and they are at their farm. The police namely
Janardan Mahida – PW-16, along with other officials
went to the place of offence where they found the
dead body of deceased Ranchhodbhai. They also saw
the deceased Arvind and heard that he was asking
for water. The police immediately taken him to the
Karamsad Hospital. Before they could reach at the
hospital, the deceased Arvind made a declaration
orally that, he and his father assaulted by Shashikant
Patel and others. The doctor declared the deceased
brought dead.
In nutshell, it is the case of the prosecution
that, the accused herein formed an unlawful
assembly with the common object to kill the father
and son, as a result, they were abducted and
wrongfully confined at the farm of accused no. 2 –
Arvind Patel, where by using wooden logs and
physically assaulted by kicks and fits blows, which
resulted into untimely death.
The complaint was being filed by Punjiben
Ranchhodbhai – PW-1, wherein, she had narrated the
entire incident and role played by each of the
accused. The Vidhyanagar Police registered the
aforesaid offence. The accused were arrested. The
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investigating officer Mr. Desai seized the wooden logs
and other materials from the place of incident. He
obtained the medical papers as well as PM report.
After having found sufficient evidence against the
accused for the said offences, the chargesheet came
to be filed. Since the case was exclusively triable by
the Sessions Court, the Court committed the case to
the Sessions Court, who has been culminated into
Sessions Case No. 104 of 1998.
The learned Additional Sessions Judge, Anand,
vide its order dated 04.01.1999, framed charge
under the aforesaid sections against the accused to
which, they pleaded not guilty and claimed trial.
6. In order to prove the charge, the prosecution has
examined 25 witnesses in support of its case. The
following material witnesses were examined by the
trial Court namely, the complainant eye-witness PW-2
– Punjiben Ranchhodbhai, Exh. 31, PW4 – Jagdish
Ranchhodbhai Exh. 34, Dr. Abhijit Das, PW-18,
Exh.18, Dr. Mayur Trivedi, PW-20, Exh. 62,
Bhailalbhai Punjabhai, PW-3, Exh. 33, Laljibhai
Ranchhodbhai, PW-6, Exh. 36, Mafatbhai Shankarbhai
PW-5, Exh. 35, Janardan Narsinh Mahida – PW-16,
Exh. 51. Jayantibhai Gordhanbhai PW-17, Exh. 52,
Karamshi H. Desai, PW-23, Exh. 73 and Dr. Minakshi
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Patel PW-25, Exh. 83.
7. During the course of the trial, the prosecution,
proved and produced 32 documents including the PM
reports, injury certificate of complainant, the arrest
panchnama, panchnama of seizure of the vehicles,
the inquest panchnama of the deceased.
8. On conclusion of oral evidence, the trial Court
recorded further statements of the accused as
provided under Section 313 of the Code, wherein,
they claimed their innocence.
9. The learned Sessions Judge after appreciating and
examining the oral as well as documentary evidence
acquitted the accused herein for the offences with
which they were charged, on the ground that, the
eye-witnesses have not supported the case of the
prosecution and the oral Dying Declaration before
the police officials does not inspire any confidence.
10. In view of the aforesaid facts and circumstances, this
acquittal appeal has been preferred by the State.
11. Mr. L.B. Dabhi, learned Additional Public Prosecutor
appearing for the appellant – State assailing the
judgment and order of acquittal, has submitted that
the findings of acquittal are contrary to law and
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evidence on record and the findings recorded are
palpably erroneous and based on the irrelevant
material. The learned trial Court ought to have
considered the oral dying declaration of the
deceased, which had been disclosed by the deceased
voluntarily and at relevant time, he was in fit state of
mind. The witness Janardan Mahida – PW-16 is an
independent witness and he has no reason to falsely
involved the accused. In such circumstances, the trial
Court, while acquitting the accused discarded the
material evidence and has committed error of law
while coming to the conclusion that prosecution
miserably failed to prove its case.
12. On the order hand, learned counsel appearing for the
respondents accused have submitted that the High
Court in a case of Appeal against the acquittal, can
interfere only when there are compelling substantial
reasons for doing so and more particularly, the
findings are without reasons and unreasonable and
contrary to the evidence. In the facts of the present
case, there is no direct evidence. The evidence
available is the oral dying declaration before the
police officials, PW-16, which has not been relied by
the trial Court, as it does not inspire confidence. The
deceased Arvind was semi-unconscious state of mind
and when he brought to the hospital, the doctor
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declared him ‘brought dead’. The medical evidence
clearly established that, the deceased was not able
to speak because of the injuries. In such
circumstances, the trial Court has rightly disbelieved
the oral dying declaration.
13. In view of the aforesaid contentions, the learned
counsels appearing for the original accused have
submitted that, the findings recorded by the trial
Court cannot be said to be perverse as while arriving
at the findings in relation to oral Dying Declaration,
the trial court has considered the entire material and
assigned sufficient reasons for not believing the
evidence of the police officials and has rightly come
to a conclusion that the prosecution has not been
able to establish the guilt of the accused beyond
reasonable doubt.
14. Before proceeding to reappreciate the evidence, it
would be appropriate to brief account of the settled
legal position while dealing with the appeal against
the acquittal.
Recently, the Hon'ble Apex Court in the case of Ravi
Sharma v State (Government of N.C.T. Delhi
and another), MANU/SC/0856/2022 : 2022
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LiveLaw (SC) 615 has considered and discussed the
law settled by the Hon'ble Apex Court in the case of
Chandrappa v. State of Karnataka,
MANU/SC/7108/2007 : 2007:INSC:142 : (2007) 4
SCC 415, which are as under :
"42. From the above decisions, in our considered
view, the following general principles regarding
powers of the appellate court while dealing with
an appeal against an order of acquittal emerge:
(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.
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Such phraseology are more in the nature of
"flourishes of language" to emphasis 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.
(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. Likewise in the same judgment, the Hon'ble
Apex Court has touched and dealt with as to
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what is meant by perverse findings by taking
recourse to the earlier decisions in the cases of
Arulvelu and another v. State,
MANU/SC/1709/2009 : 2009:INSC:1168 :
(2009) 10 SCC 206; Babu v. State of Kerala
MANU/SC/0580/2010 : 2010:INSC:495 :
(2010) 9 SCC 189 and Anwar Ali and
another v. State of Himachal Pradesh,
MANU/SC/0723/2020 : 2020:INSC:563 :
(2020) 10 SCC 166.
Similarly, while dealing with the aspect as to
what is meant by "possible view", the Hon'ble
Apex Court in Ravi Sharma (supra), by
referring to the Judgments in the cases viz.
N.Vijay Kumar v. State of Tamil Nadu,
MANU/SC/0051/2021 : 2021:INSC:60 :
(2021) 3 SCC 687; Murugesan v. State,
MANU/SC/0857/2012 : 2012:INSC:467 :
(2012) 10 SCC 383, Hakeem Khan v. State
of M.P., MANU/SC/0316/2017 :
2017:INSC:254 : (2017) 5 SCC 719, observed
that "if the "possible view" of the trial Court is
not agreeable for the High Court, even then such
"possible view" recorded by the trial Court
cannot be interdicted. It is further held that as
long as the view of the trial Court can be
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reasonably formed, regardless of whether the
High Court agrees with the same or not, verdict
of the trial Court cannot be interdicted and the
High Court cannot be supplant over the view of
the trial Court".
15. In the facts of present case, the father and son died
in the alleged incident and their dead bodies were
found at the farm, mentioned in the panchnama of
the place of offence The injured eyewitness Punjiben
PW:2, Exh.18 did not support the case of the
prosecution and in the cross examination, she denied
the factum of incident and role attributed to the
present applicants herein. The son of the deceased
Jagdish Ranchhod, PW:4 was also declared hostile.
The other two witnesses Mafat Shankar Raval and
Lalji Ranchhod PWs:5 and 6 have did not support to
the case of the prosecution. In such circumstances,
the prosecution miserably failed to prove the charge
against the accused by leading direct evidence. The
only evidence available before the Trial Court was
the oral Dying Declaration of the deceased Arvind,
made before the witness Janardan Mahida PW:16,
Exh.37. The witness Janardan Mahida, when he
reached at the place, he heard that deceased Arvind
was asking for water and he was in semi-conscious
condition. According to the case of the prosecution,
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the deceased had disclosed the factum of incident
before the witness PW-16 to the effect that the
accused Shashikant and Arvind Patel beaten him by
wooden logs and others have caused injuries by
giving fists and kicks blows. The learned Trial Court,
while examining the acceptability and readability of
the oral Dying Declaration, observed that the
statement of police official was not recorded nor the
witness PW:16 had recorded the Dying Declaration in
writing. The factum of oral Dying Declaration
admittedly not found in the station diary or case
diary of police. The Medical Officer Dr. Minakshi Patel,
before whom the deceased Arvind was examined,
declared brought him dead. The police official has
categorically stated that while they were on the way
to hospital, the deceased died before they could
reach the hospital. The witness Janardan deposed
that they reached the hospital within five minutes
from the place of the incident. It is on record that the
oral Dying Declaration was not reduced in writing by
the police official. In such circumstances, the Trial
Court observed that the oral Dying Declaration does
not inspire confidence and in absence of
corroboration to the contents of the oral Dying
Declaration, it cannot be relied upon.
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16. The law is well settled that an oral Dying Declaration
can form the basis of conviction if the deponent is in
fit condition to make the declaration and if it is found
to be truthful. The Courts as a matter of prudence
look for corroboration to oral Dying Declaration.
However, if there exists any suspicion as regards the
correctness or otherwise of the said Dying
Declaration, the Courts in arriving at the conclusion
of conviction, shall look for some corroborating
evidence. The Apex Court in its various
pronouncements observed and held that a
mechanical approach in relying upon the Dying
Declaration just because it is there, is extremely
dangerous and it is the duty of the Court to examine
a Dying Declaration scrupulously with a microscopic
eye to find out whether the Dying Declaration is
voluntary, truthful, made in a conscious state of mind
and without being influenced by the relatives present
or by the investigating agency, who may be
interested in the success of investigation or which
may be negligent while recording the declaration.
17. Reverting back to the facts of present case, the
family members of the deceased examined before
the Trial Court have also not pointed out that the
deceased Arvind made an oral Dying Declaration
before the police nor threw any light on the issue of
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oral Dying Declaration. The witness PW-16 Janardan
Mahida in his deposition has not stated that at the
time of oral declaration, the deceased was in a fit
state of mind and was able to understand what he is
speaking. In such circumstances, the trial Court has
rightly seek corroboration to the oral declaration as
within three to four minutes, the deceased
succumbed to his injuries, which factors weighed to
come to a conclusion that the oral declaration made
before the witness cannot be formed basis of
conviction.
18. In light of what has been noted above, the reasons
for not accepting the oral Dying Declaration are
reasonable and based on the evidence on record and
the view taken by the Trial Court is plausible and
there is no perversity in the findings brought to the
notice of this Court so as to interfere. Thus, in our
considered opinion, the Trial Court was justified in
acquitting the accused and we are in complete
agreement with the findings, ultimate conclusion and
resultant order of acquittal recorded by the Court
below and hence finds no reason to interfere with the
same.
19. With the observations as aforesaid, the appeal is
accordingly dismissed. The Registry is directed to
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send back the R & P to the Trial Court. Bail bonds are
cancelled, if any, and surety is discharged.
(ILESH J. VORA,J)
(NIRAL R. MEHTA,J)
P.S. JOSHI/16/05..
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