R/CR.A/977/1999 JUDGMENT DATED: 15/05/2024
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 977 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 Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
STATE OF GUJARAT
Versus
BHIKHABHAI PUNJABHAI SOLANKI & ORS.
==========================================================
Appearance:
MR TIRTHRAJ PANDYA, APP for the Appellant(s) No. 1
(MR KK BRAHMBHATT)(2596) for the Opponent(s)/Respondent(s) No. 1,2
MS PRIYA A. PATEL, ADVOCATE FOR MR MC BAROT(144) for the
Opponent(s)/Respondent(s) No. 1,2
PETITION/APPEAL WITHDRAWN/DISMISSED for the
Opponent(s)/Respondent(s) No. 3
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 15/05/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Here is the Appeal by the State against the judgment
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and order of acquittal.
2. Being dissatisfied by the judgment and order passed
by the learned Additional Sessions Judge, Kheda,
Camp at Anand, dated 27.07.1999, acquitting the
respondents from the offence punishable under
Sections 302, 504 read with Section 34 of Indian
Penal Code, State has preferred instant appeal under
Section 378 of the Cr.P.C.
3. This Court has heard Mr. Tirthraj Pandya, learned
State counsel, Ms. Priya Patel, learned counsel for Mr.
M.C. Barot for the respective parties.
4. Brief facts giving rise to file the present Appeal are
that, on 28.08.1990 at about 19:30 p.m., the
deceased Vitthalbhai had proceeded from his
agricultural farm towards his house, at Village: Navli,
Anand. When he reached near the house of accused
Bhikhabhai Punjabhai Solanki, he was attacked by
the accused Mafatbhai Bhikhabhai and was assaulted
by stick. The accused inflicted 2 to 3 fatal blows over
the head, as a result, he succumbed to his injuries on
29.08.1990. It is the case of prosecution that, the
PW.1 – Patel Suresh Ranchhodbhai who happened to
be brother of the deceased, was eye-witness of the
incident. On the day of incident, the witness PW-1
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had gone to the field of the deceased where he was
informed by the deceased that, the accused
Bhikhabhai, having suspicion of him maintaining illicit
relation with the wife-accused no.3 Revaben, he was
threatened. Subsequently, the deceased left the farm
alone and when he reached near the place of
incident, raising the dispute of the illicit relationship,
the accused came out from his house and the
accused no.2 Mafatbhai who was armed with stick,
inflicted fatal blows over the head of the deceased.
Before the incident took place, the PW-1 Sureshbhai
on hearing the screaming, came to the place of
incident where he saw that accused Mafatbhai hurled
abusive and when deceased objected to it, the
accused inflicted the fatal blows. The PW-1
Sureshbhai and others taken the deceased to the
Civil Hospital, Anand and was referred to Karamsad
Hospital. On the next day i.e. on 29.08.1990, the
deceased succumbed to the injuries.
It needs to be noted that, the accused no.3 –
Revaben on the date of incident i.e. 28.08.1990,
lodged an FIR against the deceased for the offence
punishable under Sections 354, 426 of the Indian
Penal Code and same was registered as I-C.R. No.346
of 1990. In the said FIR, it was alleged by the
accused Revaben that, when she was out of her
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house to answer nature’s call, the deceased met her
and demanded sexual favour, which she refused, as
a result, she was molested by the deceased. In order
to restrain the deceased, by exercising right of
private defense, she took a wooden log from nearby
place and assaulted the deceased by it.
Pursuant to the said FIR, the Police Head
Constable PW-5 Mehbubkhan Imamkhan, started
investigation and on the next day i.e. on 29.08.1990,
he reached at Karamsad Hospital where the
deceased Vitthalbhai was admitted. After primary
inquiry of the wife of deceased Vimlaben and the
brother Suresh PW-1, the Police Constable PW-5
Mehbubkhan became a complainant and lodged the
FIR against the accused herein for the alleged
offence, causing injuries to the deceased Vitthalbhai
punishable under Sections 307 read with Section 114
of the Indian Penal Code and later on, Section 302
was added with the permission of the court.
Pursuant to the FIR filed by the PW-5, the
investigation was entrusted to PSI PW-13 Pankaj
Bhatt. The PSI Mr. Bhatt, arrested the accused and
seized the weapon stick, drew the panchnama of
place of incident, collected necessary samples of
blood etc. and recorded the statements of eye
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witnesses and finally, the accused were
chargesheeted. Since the case was exclusively tribal
by the Magistrate Court, the Magistrate Court had
committed the case to the Court of Sessions at
Anand which has been culminated into Sessions Case
No.58 of 1993.
5. The learned Additional Sessions Judge, Anand vide its
order dated 19.01.1998, framed the 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 in all 14 witnesses and proved and
produced the necessary documents. The following
material witnesses were examined before the trial
court:
(1) PW-1Patel Suresh Ranchhod;
(2) PW-2 Vimlaben Vitthalbhai Ex.12;
(3) PW-3 Dr. Vinay Khanapur Ex.15;
(4) PW-5 Police Constable Mehbubkhan Imamkhan
Ex.22;
(5) PW-6 Sakuben Gordhanbhai Ex.24;
(6) PW-7 Mahesh Manibhai Ex.25;
(7) PW-8 Vinubhai Parmar Ex.26;
(8) PW-9 Dinesh Patel Ex.27;
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(9) PW-13 I.O. Pankaj Bhatt Ex.48;
(10) PW-14 Dr. Mohammad Shaikh Ex.53;
7. The material documentary evidence proved and
produced before the trial court will be referred at the
appropriate stage, if necessary.
8. After the evidence of prosecution witnesses over, the
trial court recorded the further statements of
accused under Section 313 of Cr.P.C. The accused
Bhikhabhai and his son Mafatbhai raised the plea of
alibi, stating that, at relevant time, they were at their
farm and they did not know about the offence. So far
as accused no.3 Revaben is concerned, by written
statement, she had specifically stated that, on the
day of incident, when she was out to answer nature’s
call, the deceased Vitthalbhai met her at the place
and demanded sexual favour and molested her and
in her defense, by taking a wooden log lying near the
place, she inflicted a blow over the head of the
deceased and thereafter, she lodged an FIR against
the deceased under Section 354 of the Indian Penal
Code.
9. The learned trial court after appreciating and
examining the oral as well as documentary evidence,
acquitted the accused no.3 Revaben in view of
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Section 100 of the Indian Penal Code as she inflicted
the stick blows in her private defense. The accused
no.1 and 2 have been acquitted mainly on the ground
that, the prosecution miserably failed to prove case
against them beyond reasonable doubt as the
deposition of sole eye witness PW-1 Sureshbhai was
not wholly reliable.
10. Aggrieved with the judgment and order of acquittal
dated 27.07.1999 passed by the Additional Sessions
Judge, Anand, the State has come up before this
Court by preferring this acquittal appeal. At the time
of admission of the appeal, the Coordinate Bench of
this Court vide its order dated 17.04.2000, dismissed
the appeal qua accused no.3 Revaben and so far as
accused no.1 and 2 are concerned, leave was
granted and accordingly, appeal admitted against
them. During the proceedings of present appeal, the
accused Bhikhabhai has passed away. The appeal
qua accused no.1 stands abated.
11. Mr. Pandya, learned Additional Public Prosecutor,
assailing the judgment and order of acquittal, has
submitted that, the findings of acquittal qua the
accused Mafatbhai are contrary to law and evidence
on record and the same are palpably erroneous and
based on the irrelevant material. The learned trial
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court ought to have held that, the testimony of PW-1
is wholly reliable which does not needs any
corroboration. The presence of PW-1 Suresh who
happened to be brother of deceased at the field was
natural and when the deceased reached near the
place of incident, the PW-1 heard his screaming and
rushed to the place. Thus, the presence of PW-1 is
established and merely being a brother of the
deceased, his testimony could not have been
discarded by the court.
12. In such circumstances, learned State counsel Mr.
Pandya has submitted that, the testimony of PW-1 on
material particulars is satisfactory and credible and
the motive for the incident was also clear as the
accused Bhikhabhai was having suspicious about the
illicit relationship and same has been admitted by the
accused in their statement recorded by the court
under Section 313 of Cr.P.C. Thus, he would urge
that, the trial court while acquitting the accused,
discarded the trustworthy evidence of PW-1 and on
flimsy ground, the court has disbelieved his evidence
and acquitted the accused and thus, therefore, the
findings recorded by the trial court being perverse,
case is made out warranting interfere with the
judgment of acquittal.
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13. On the other hand, Ms. Priya Patel, learned counsel
appearing for the accused Mafatbhai Patel, has
submitted that, the learned trial court has rightly
disbelieved the testimony of PW-1 Sureshbhai. That
the conduct of the witness was unnatural. That, no
prudent man would act in the situation as projected
in the prosecution because on the day of incident,
the deceased had informed the witness PW-1 that the
quarrel took place with the accused on the illicit
relationship and he was threatened by them and
despite of these facts, the deceased was permitted to
proceed alone from his farm towards his house. The
second infirmity in the evidence of PW-1 is that the
incident of 28.08.1990, was neither reported by the
witness Sureshbhai or the wife of deceased Vimlaben
before the Doctor, nor before the Police Constable
PW-5 Mehbubkhan Ex.22, who was in charge of
investigation of the case registered against the
deceased. The neighbours of the vicinity of area have
not supported the case of prosecution. The trial court
has believed and accepted the private defense of
accused no.3. The material witnesses namely Sitaben
and Shantaben who were the witness of offence of
molestation, were not examined by the investigating
officer. The FIR of accused no.3 was prior to the
complaint of present case.
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14. In view of aforesaid contention, it is submitted that,
the accused have been falsely implicated by the
police, as on the day of incident, the accused no.3
Revaben in her self-defense, caused injuries over the
head of the deceased and the witnesses of the said
incident have not been examined by the
investigating officer. Thus, the learned trial court
after appreciation of testimony of PW-1, has rightly
held that his evidence is wholly unreliable and his
presence at the spot is not established.
15. Lastly, Ms. Priya Patel, learned counsel would urge
that, in a case of appeal against the acquittal, there
is a double presumption in favour of the accused i.e.
the presumption of innocence is available to him
under the fundamental principles of criminal
jurisprudence that every person shall be presumed to
be innocent unless he is proved guilty by the
competent court of law and secondly, the accused
having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and
strengthened by the trial court and thus, she
submitted that the view taken by the trial court is a
possible view and prosecution is failed to point out
the compelling reasons warranting interference in the
order and judgment of acquittal, no case is made out
to disturb the acquittal.
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16. Before considering the appeal on merits, the law on
the appeal against the acquittal and the scope and
ambit of Section 378 of Cr.P.C. and interference by
the High Court in an appeal against the acquittal is
require to be considered. In Babu vs. State of Kerala
(2010 9 SCC 189) the Supreme Court reiterated the
principles to be followed in an appeal against the
acquittal. In paras-12 to 19, it is observed and held
as under:
“12. This Court time and again has laid down the guidelines for
the High Court to interfere with the judgment and order of
acquittal passed by the trial court. The appellate court should
not ordinarily set aside a judgment of acquittal in a case where
two views are possible, though the view of the appellate court
may be the more probable one. While dealing with a judgment
of acquittal, the appellate court has to consider the entire
evidence on record, so as to arrive at a finding as to whether the
views of the trial court were perverse or otherwise
unsustainable. The appellate court is entitled to consider
whether in arriving at a finding of fact, the trial court had failed
to take into consideration admissible evidence and/or had taken
into consideration the evidence brought on record contrary to
law. Similarly, wrong placing of burden of proof may also be a
subject-matter of scrutiny by the appellate court. (Vide Balak
Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State
of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P
(2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC
699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P.
v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S.
Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC
206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98
and Ram Singh v. State of H.P (2010) 2 SCC 445)
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy
Council observed as under: (IA p. 404) “… the High Court should
and will always give proper weight and consideration to such
matters as (1) the views of the trial Judge as to the credibility of
the witnesses; (2) the presumption of innocence in favour of the
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accused, a presumption certainly not weakened by the fact that
he has been acquitted at his trial; (3) the right of the accused to
the benefit of any doubt; and (4) the slowness of an appellate
court in disturbing a finding of fact arrived at by a Judge who
had the advantage of seeing the witnesses.”
14. The aforesaid principle of law has consistently been
followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC
1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G.
Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu
Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State
of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of
M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3
SCC 755) : (2007 2 SCC (Cri) 162).
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this
Court reiterated the legal position as under: (SCC p. 432, para
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.
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(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.”
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court
reiterated the said view, observing that the appellate court in
dealing with the cases in which the trial courts have acquitted
the accused, should bear in mind that the trial court’s acquittal
bolsters the presumption that he is innocent. The appellate
court must give due weight and consideration to the decision of
the trial court as the trial court had the distinct advantage of
watching the demeanour of the witnesses, and was in a better
position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court
again examined the earlier judgments of this Court and laid
down that: (SCC p. 374, para 20)
“20. … an order of acquittal should not be lightly interfered
with even if the court believes that there is some evidence
pointing out the finger towards the accused.”
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave
certain illustrative circumstances in which the Court would be
justified in interfering with a judgment of acquittal by the High
Court. The circumstances include: (SCC p. 286, para 28)
“28 (i) The High Court’s decision is based on totally erroneous
view of law by ignoring the settled legal position;
(ii) The High Court’s conclusions are contrary to evidence and
documents on record;
(iii) The entire approach of the High Court in dealing with the
evidence was patently illegal leading to grave miscarriage of
justice;
(iv) The High Court’s judgment is manifestly unjust and
unreasonable based on erroneous law and facts on the record
of the case;
(v) This Court must always give proper weight and
consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering
with a case when both the Sessions Court and the High Court
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have recorded an order of acquittal.” A similar view has been
reiterated by this Court in Dhanapal v. State (2009) 10 SCC
401.
19. Thus, the law on the issue can be summarised to the effect
that 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
trial court’s acquittal bolsters the presumption of his innocence.
Interference in a routine manner where the other view is
possible should be avoided, unless there are good reasons for
interference.”
17. In light of the settled law and applying the same to
the facts of present case, the issue falls for
consideration as to whether the trial court was
justified in acquitting the accused or not.
18. The issue is not in dispute that, the death of
deceased Vitthalbhai was homicidal death. The
Doctor PW-14 Mr. Shaikh who conducted the
postmortem, has opined that, the cause of death was
shock due to hemorrhage with multiple fractures of
skull bone.
19. PW-1 Sureshbhai Ranchhodbhai Ex.11 was examined
before the trial court. In his chief examination, he
narrated the entire incident and further alleged that,
the accused Mafatbhai, caused injuries by weapon
stick, over the head of the deceased. It is admitted
fact that, the incident of 28.08.1990 was reported on
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the next date and that too not by the PW-
1Sureshbhai but based on their input, the Head
Constable Mehbubkhan PW-5 became a complainant
and lodged the FIR. In such circumstances,
considering the conduct of Sureshbhai, the learned
trial court did not acted upon the testimony of the
witness as his presence at the place was doubtful
and except Sureshbhai, no one has stated that, the
accused were involved in the offence. Thus, the
entire case of the prosecution hinges upon the sole
evidence of PW-1 Sureshbhai. The other witnesses
namely Sakuben Gordhanbhai PW-6, Mahesh
Manibhai PW-7, Vinu Parmar PW-8 and Dinesh Patel
PW-9 who were neighbours of the parties, have
chosen not to depose against the accused and they
were turned hostile and in their cross-examination
also, they did not extend their support to the case of
prosecution.
20. Law is well settled that, where the prosecution case
based on the sole evidence of eye witness, the court
may act upon the testimony of single witness though
uncorroborated, provided that, his testimony is found
reliable. The Apex Court in Vadivelu Thevar vs. The
State of Madras (AIR 1957 SC 614) has laid down the
dictum that, evidence of single witness if wholly
reliable, the conviction can be safely based on that
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evidence alone. In assessing the value of evidence of
an eye witness, two principles are necessary to
consider: (i) whether in the circumstances of case, it
is possible to believe his presence at the scene of
offence or in such situation, as would make it
possible for him to witness the fact deposed by him,
(ii) whether there is anything inherently improbable
or unreliable in his evidence.
21. Reverting back to the facts of present case, the PW-1
from the date of incident, sat silent and his conduct,
permitting the deceased to proceed alone is further
create a doubt about his presence at the field as well
as place of offence. When the Deceased had
informed him that on the issue of illicit relationship,
dispute arose with the accused, in that
circumstances, the natural conduct would be not to
permit the deceased to proceed alone and he should
have accompanied the deceased so as to avoid the
further consequences. The second conduct came to
our notice that, when he was at the field, he heard
the screaming of the deceased and he immediately
rushed to the place. This conduct would further
create a doubt about his presence at the place of
offence. It is to be noted that throughout the
proceedings, the wife of deceased was with PW-1 and
she could have an opportunity to lodge the complaint
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when police came to them. In such circumstances,
the findings recorded by the trial court that presence
of PW-1 at the place is doubtful and the testimony of
him is wholly unreliable and same suffers from
serious infirmities as discussed hereinabove. The trial
court while acquitting the accused no.3 Revaben,
accepted her defense under Section 100 of the Indian
Penal Code. The observations qua the accused no.3
acquitting her, has attained finality as neither the
complainant, nor the State has challenged it before
the competent court. Thus, it is evident that, on the
day of incident, when accused no.3 was out to
answer nature’s call, the deceased met her and
demanded sexual favour for which she was molested
and in her defense, she inflicted a stick blows.
22. For the reasons recorded, the findings of acquittal
arrived at by the trial court based on the evidence on
record and views of the trial court as to the credibility
of witness PW-1 is possible view and therefore, the
judgment is just, reasonable and proper which do not
warrant any interference.
23. We are in complete agreement with the findings,
ultimate conclusion and the resultant order of
acquittal recorded by the court below and hence,
finds no reason to interfere with the same.
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24. Resultantly, in absence of any compelling reasons to
interfere with the judgment of acquittal, this acquittal
appeal preferred by the State stands dismissed. The
bail bonds, if any, stand cancelled. Surety, if any,
given stands discharged. R & P to be sent to the trial
court.
Sd/-
(ILESH J. VORA,J)
Sd/-
(NIRAL R. MEHTA,J)
TAUSIF SAIYED
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