1998 Supreme(Guj) 648

Gujarat High Court
Judgename :A.M.KAPADIA, J.N.Bhatt
STATE OF GUJARAT - Appellant
Versus
MAMUBHA PREMSANGJI JADEJA - Respondent
CRIMINAL APPEAL 485 of 1991
Decided On : 11/27/1998

Headnote:(a) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sec. 378 - Appeal in case of acquittal - Scope of - Where two views are possible the appellate Court would not substitute its own views in place of Trial Court - In order to succeed in an acquittal appeal prosecution has to establish one of the grounds enumerated - Grounds.

       It is a settled proposition of law that when two views are possible, the appellate Court, while examining the merits of an acquittal appeal with the aid of Sec. 378 of the Criminal Procedure Code, would not substitute its own view in place of the view taken by the Trial Court if it is probable and plausible. Merely because a better view can be perceived or a higher and better perception could be obtained upon analysis and evaluation of the evidence of the prosecution, had the appellate Court been the Trial Court is not the ground for setting aside the acquittal recorded by that Trial Court.

       [Para 18]

       In order to succeed in an acquittal appeal under Sec. 378 of the CrPC, the prosecution has to successfully establish one or the more grounds enumerated hereinbelow : -

       (i)

       That the view taken by the Trial Court is not only unjust, unreasonable, but is impermissible in the light of the evidence on record.

       (ii)

       That the impugned acquittal order is tainted with vices, which has resulted into miscarriage of justice.

       (iii)

       That the view taken by the Court, at the end of the trial could never have been taken by any reasonable man of prudence.

       (iv)

       That the impugned acquittal is, totally, perverse and palpably wrong and manifestly unjust.

       [Para 19]

       (b) Criminal Trial - Dying declaration - Reliability - Dying declaration does not require corroboration if are found true, correct, unprompted and voluntarily given by deceased - In the case there are three dying declarations having material contradiction & deficiencies in respect of use of incriminating weapons, number of blows & change in the name of accused - Trial Court has given detailed reason for rejecting the same - No reason to disagree with the view of Trial Court.

       Ordinarily, the dying declarations are accepted, if they are found to be true, correct, unprompted and voluntary statements of the deceased. The dying declaration does not require corroboration as such. The conviction can also be founded upon such dying declaration. While rejecting the three dying declarations and the refusal to rely on any of them, the Trial Court described detailed reasons and has discussed the material contradictions and deficiencies in respect of the use of the incriminating weapons, the number of blows, the change in the names of the accused persons, etc. After having, carefully, examined the aforesaid three dying declarations, we have also not been able to convince ourselves to disagree with the reasons assigned by the Trial Court in rejecting them.

       [Para 23]

       (c) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sec. 313 - Power to examine accused - Exercise of power under is not mere ritual or a formality - It is improper to raise the one & common question out of entire evidence regardless of incriminating material against particular accused to all accused persons as is done in the case - Court recorded a serious dissatisfaction.

       It is not, really, a proper compliance to read out a long string of, or a long list of all witnesses and to put same question to one and all not only in a complicated or composite form, but also in an omnibus methodology ipso-facto, could not be said to be satisfactory, expedient and proper compliance of the provisions of Sec. 313. We are very sorry to say that the manner and mode in which the mandatory statutory obligation emerging out of the provisions of Sec. 313 which has rational, legitimacy and philosophy. In the present case where not less than 9 accused persons are involved are put and asked with not only a common but an omnibus question to one and all. We, therefore, are constrained to observe, in with respect to the Trial Court approved that such a practice is highly unsatisfactory, inexpedient and running counter to the legislative design and device of Sec. 313. We, therefore, are left with no alternative but to record our serious disapproval and strong displeasure to which we also will not like to be a silent spectator and that it shall not be repeated by the Courts concerned in future as true and fair trial in a criminal case is a sine-qua-non. With these observations, we would conclude this aspect by extinguishing our burning feeling by our disquiet fire.

       [Para 34]

       (d) Evidence Act, 1872 (Central Act 1 of 1872) - Sec. 27 - Enblock composite discovery of incriminating weapons of all accused persons - Not appreciated - It is always expedient & safer to record separate discovery `panchnamas - Mohd. Abdul Hafeez vs. State of A.P., AIR 1983 SC 367 cited.

       Though technically it may be possible for two persons or more to give joint information which may lead to discovery of a fact which is, distinctly, related, but it is always expedient and safer to record separate discovery panchnama. In a given case, in case of a joint discovery, the Court will be further burdened and obliged to consider and examine as to whether were making of joint discovery panchnama has as such be able to prove the material ingredients of Sec. 27 as it is very important to note that discovery of fact is reliable only for the information given by the accused. Therefore, the Court will be obliged to consider the circumstances in each such case solely on the ground of being joint discovery panchnama with the result in each case where more than one accused made a joint and simultaneous discovery of the same fact and from the same place the, exercise of discovery does not operate for the reason that it becomes difficult to ascertain which of the other accused persons could be connected with discovery of the fact in question. Therefore, in order to obviate such a factual situation and resultant correct examination and adjudication by the Court it is very much expedient and desirable to make or prepare separate discovery panchnama when more than one accused is involved.

       [Para 37]

       (e) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sec. 378 - Appeal against acquittal - Findings - Considering the entire evidence & relevant proposition of law - Also failure to scrupulously adherance to material ingredients of provisions of Sec. 313 and Sec. 27 of Evidence Act & material contradiction on material aspects of the prosecution case, Court found helpless painfully do any thing in the appeal - Affirmed the judgment of Trial Court acquitting the accused respondents.

       After taking into consideration the entire evidence of the prosecution and the rival submissions in the light of the relevant proposition of law and more so on account of failure to scrupulously adhere to the material ingredients of the provisions of Sec. 313 of the CrPC while preparing and indicating the incriminatory material and questions to the accused persons and also the failure to appreciate and follow the underlying design of the provisions of Sec. 27 of the Evidence Act, and the material contradictions on the material aspects of the prosecution case, we have to raise our hands in helplessness painfully, but dutifully in rejecting this appeal. Accordingly, the appeal is rejected and the impugned judgment and order shall stand affirmed on the grounds stated by the Trial Court and in addition to what we have stated hereinbefore in our judgment.

       [Para 39]