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2011 Supreme(Guj) 346
2011 (3) GCD 2594 (Guj) (DB)
Hon’ble Mr. Justice Ravi R. Tripathi &
Hon’ble Mr. Justice P.P. Bhatt
State of Gujarat
Versus
Nagarsing Fatesing Nut & Ors.
Criminal Appeal No. 757 of 1987—Decided on 14/06/2011
Appearance :
Mr. Kartik Pandya, APP for the Appellant No. 1.
Notice Served, for the Opponents No. 1 - 3.
Point in Issue :
Whether in the facts and circumstances of the case acquittal of accused respondents is sustainable.
Headnote:Head Note :
Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Section 232 — [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 460, 395, 396 and 397 — Acquittal — Giving benefit of doubt — Appreciation of evidence — Finding of — Learned Judge of the trial Court has discussed the evidence of prosecution closely and has rightly come to the conclusion that it is not established by prosecution that the present accused — Three in number were present in the incident of loot — In his threadbare analysis of evidence on the point the learned Judge has given convincing reasons for not believing the evidence of prosecution — Learned Judge taking into consideration the overall evidence available on record has not committed any error in recording acquittal.
Held :
Learned Judge has also discussed the same aspect in Paragraph Nos. 32, 33, 34, 35 and 36 and then recorded a finding that it is not established by the prosecution that the present accused-three in number, were present in the incident of loot which took place on 13/14.08.1985. [Para 7]
In his threadbare analysis of the evidence on the point, the learned Judge has given convincing reasons for not believing the evidence of Meeraben and that of Bharatbhai.
[Para 8]
Learned Judge has rightly discarded the evidence led before the Court on the ground that there were material contradictions and thus the prosecution failed in proving the case against the accused. [Para 8 (v)]
Law Laid Down :
The prosecution has to discharge it’s pious duty of establishing the case beyond reasonable doubt.
Ravi R.Tripathi, J.—The present appeal is notified at Serial Number 21 “for orders”. The remark column contains the following remark:
“* B/W un-executed upon Respondent Nos. 1 to 3. As per report of Sessions Court, Navsari. (Only fax received) R & P and paper book received”.
2. On perusal of papers, it is noticed that the appeal was admitted by Division Bench of this Court (Coram: D.C. Gheewala & J.P. Desai, JJ. as they were then) by order dated 20th January, 1988. The order reads as under:
“Leave granted. Appeal admitted. Bailable warrant in the sum of Rs.2000/- to issue against each of the accused”.
It is this order of bailable warrant which has remained un-executed on all the Respondents i.e. 1 to 3.
3. It is painful that in the matter of 1987, bailable warrant issued by this Court on 20th January 1988 has remained un-executed. In this regard, it will be appropriate to refer to an order passed by Division Bench of this Court (Coram: A.M. Kapadia, as he then was and B.N. Mehta, JJ) dated 31st January, 2011. “....A perusal of the record of the case, it is seen on behalf of the appellant, Mahendrasinh H. Puwar, Police Sub-Inspector, Jalalpore Police Station, District-Navsari has filed an Affidavit, wherein it is stated that, the respondents are not residing permanently anywhere as they are regularly moving from one place to another for earning bread and they are not easily traceable, so for further inquiry, minimum two months period is required, which may be granted....”
4. Taking into consideration the age of the appeal, it is deemed fit to examine the matter on merits and therefore, we heard learned APP Mr. Pandya at length. Learned APP tried to assail the judgment and order dated 12.6.1987 passed in Sessions Case No.83 of 1986, whereby, the learned Judge was pleased to acquit the accused under Section 232 of Criminal Procedure Code by giving them benefit of doubt for the offences punishable under Sections 460, 395, 396 and 397 of Indian Penal Code (IPC).
5. Learned APP vehemently submitted that the offences alleged against the present accused is of very grave nature, inasmuch as the mother of the complainant was killed in the incident which took place on 13/14-8-85. Learned APP also submitted that there was convincing evidence in the form of deposition of Bharatbhai, brother of the complainant and Meeraben, wife of Bharatbhai.
6. On perusal of the record and proceedings and the relevant documentary as well as oral evidence, this Court is of the opinion that learned Judge has not committed any error in recording acquittal of the present accused. In this regard, it is important to put it on record that the learned Judge has rightly answered issue No.1 in affirmative and has then focused his attention to issue No.2 and that focused attention is reflected in Paras 22, 23, 24, 25, 26, 27, 28, 29, 30 and last but not least 31.
7. Learned Judge has also discussed the same aspect in Paragraph Nos. 32, 33, 34, 35 and 36 and then recorded a finding that it is not established by the prosecution that the present accused-three in number, were present in the incident of loot which took place on 13/14-8-1985.
8. In his threadbare analysis of the evidence on the point, the learned Judge has given convincing reasons for not believing the evidence of Meeraben and that of Bharatbhai. To illustrate some of the reasons for not believing the deposition of these two witnesses are:
(i) Both witnesses have tried to improve upon their version not only from their statement before the police but even from the deposition in another sessions Case being Sessions Case No.72 of 1985. A Certified copy of deposition of Meeraben in Sessions Case No.72 of 1985 was placed before the learned Judge and though it was recorded in that deposition that, ‘except four persons, she has not seen any other persons’, she tried to depose before the Court that she had occasion to see these three accused who were standing on an ‘Otla’ (outside the house) from the window of h
