Observation of Hon’ble High Court that once the police recorded statements of the Doctor and PW-4, the statements of PW-4 and the Doctor before the Court became meaningless is contrary to section 162 Cr.P.C

Challenge against the reversal of acquittal by the Hon’ble High Court

1. The appellants, who are father and son, were prosecuted for the offence punishable under Section 302, read with Section 34 of the Indian Penal Code (IPC). The incident occurred on 17th September 1996. The allegation is that the appellants assaulted one Punjabhai (the deceased) with pipes and sticks. The deceased suffered a large number of injuries and ultimately succumbed to the injuries. By judgment dated 5th July 1997, the Sessions Court acquitted the appellants. Being aggrieved by the judgment of the Sessions Court, the respondent – State of Gujarat preferred an appeal against acquittal before the High Court. By the impugned judgment dated 14th December 2018, the High Court interfered and converted the acquittal of the appellants into a conviction for the offence punishable under Section 302, read with Section 34 and Section 323 of the IPC. By order dated 6th January 2020, this Court directed that the present appeal be listed for hearing. By order dated 18th May 2021, the application for suspension of sentence and grant of bail by the first appellant was rejected by this Court. However, this Court continued the order dated 21st January 2019 by which exemption was granted to the second appellant from surrendering.

Facts of the case: Section 302 IPC

2. The prosecution case in brief is that PW-1 Danabhai is the brother of the deceased. He had two brothers. The deceased was engaged in the business of diamond polishing. At about 9.45 pm on 17th September 1996, when PW-1 was sitting in his pan-bidi shop, one Vajsurbhai came to him by motorcycle and told him that the appellants had assaulted the deceased. On hearing this news, PW-1 went towards village Jhanjhmer. He met his uncle Ramabhai on the outskirts of the village, who was taking the deceased to the hospital by a tempo. According to the prosecution case, Karshanbhai (PW-4), Dayabhai, Jivabhai and other villagers were sitting in the tempo. The deceased was taken to the clinic of Dr. Goti at Dhola village. As per his advice, the deceased was immediately shifted to Bhavnagar in a private hospital. The deceased succumbed to the injuries in the early morning of 18th September 1996.

Trial court acquitted the appellants but Hon’ble High Court overturned the sentence and sentenced to life

3. The Trial Court disbelieved the testimony of PW-4 Karshanbhai for various reasons. In the impugned judgment, the High Court noted that though, according to the case of PW-4, he received injuries on 17th September 1996 at the hands of the accused, Dr Jagdishbhai (PW-5) deposed that PW-4 informed him that he suffered injuries on 18th September 1996. The High Court, in the impugned judgment, held that in his police statement, PW-4, had correctly stated that he was injured on 18th September 1996. Therefore, the statement he gave before the Court and the statement given by the doctor were meaningless. The High Court held that although the number of persons who witnessed the incident have not been examined, the appellants failed to adduce any evidence to falsify the prosecution’s version. By the impugned judgment, after overturning the acquittal of the appellants, the High Court sentenced them to undergo life imprisonment.

It is well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused

6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.

Unless there is statutory presumption the accused is not required to discharge any burden

7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution’s version. This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court’s finding on the burden of proof is completely erroneous. It is contrary to the law of the land.

Hon’ble High Court accepted the statements given before the police under section 161 cr.p.c and rejected the statement given before the court

9. PW-4 admitted that there is an ongoing litigation about his family’s land between the appellants and his family. PW-4 claimed that just before the fatal blow was inflicted on the deceased, a blow was given to the witness by pipe around 8 pm on the date of the incident. However, PW-5 Dr Jagadishbhai stated that when he examined PW4 on 19th September 1996, the history given by PW-4 was to the effect that he was assaulted by a pipe on 18th September 1996 at 8.00 pm. The incident is of 17th September 1996. The High Court has completely brushed aside this statement of PW-5 by observing that once the police recorded statements of the Doctor and PW-4, the statements of PW-4 and the Doctor before the Court became meaningless. As is apparent from Section 162 of the Code of Criminal Procedure, 1973 (CrPC), statements recorded by police under Section 161 of the CrPC cannot be used for any purpose except to contradict the witness. The Trial Court gives several reasons for discarding the testimony of PW-4. His prior enmity with the appellants and his failure to report the incident to the police, notwithstanding available opportunities, are also the factors considered by the Trial Court.

Finally acquitted the accused

Party

Bhupatbhai Bachubhai Chavda & Anr. … Appellants versus State of Gujarat … Respondent – CRIMINAL APPEAL NO. 334 OF 2019 – April 10, 2024.

https://www.sci.gov.in/wp-admin/admin-ajax.php?action=get_judgements_pdf&diary_no=6632019&type=j&order_date=2024-04-10

Further study

• Reversal of Acquittal: Appellate court cannot reverse the acquittal on fresh appreciation of evidence and without recording any illegality error of law or of fact in the Trial court judgment
• Cancellation of bail: Cancelling the bail which granted by another single judge by examining the merits tantamount to judicial impropriety/indiscipline
• Section 306 IPC: A casual remark that is likely to cause harassment in ordinary course of things does not constitute offence under section 306 IPC
• Conviction Sudden provocation
• Must have judgment for defense counsels: Prosecution cannot prove a fact during trial through witness which was not stated to the police during investigation