State of Gujarat Vs. Mohanbhai Dhanabhai and ors. - Court Judgment

Excerpt:
- sections 4(3), proviso, 5 & 6: [m.s. shah, d.h. waghela & akil kureshi, jj] complaint alleging inaccuracy or deficiency in maintaining record in prescribed manner as required under section 4(3) - held, it need not contain allegation of contravention of provisions of section 5 or section 6. burden to prove that there was contravention of provisions of section 5 or 6 does not lie upon prosecution. sections 5 & 6 & pre-conception & pre-natal diagnostic techniques (prohibition of sex selection) rules, 1996, rule 9: [m.s. shah, d.h. waghela & akil kureshi, jj] deficiency or inaccuracy in filling form f - held, deficiency or inaccuracy in filling form f prescribed under rule 9 of the rules made under pndt act, being a deficiency or inaccuracy in keeping record in the prescribed manner, it is not a procedural lapse but an independent offence amounting to contravention of the provisions of section 5 or 6 of the pndt act and has to be treated and tried accordingly. it does not, however, mean that each inaccuracy or deficiency in maintaining the requisite record may be as serious as violation of the provisions of section 5 or 6 of the act and the court would be justified, while imposing punishment upon conviction, in taking a lenient view in cases of only technical, formal or insignificant lapses in filing up the forms. for example, not maintaining the record of conducting ultrasonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of section 5 or 6 were violated, but incomplete details of the full name and address of the pregnant woman may be treated leniently if her identity and address were otherwise mentioned in a manner sufficient to identify and trace her. section 28: [m.s. shah, d.h. waghela & akil kureshi, jj] cognizance of offence held, use of the words appropriate authority twice, at the beginning and end of clause (a) of sub-section (1) of section 28, clearly conveys that complaint could be made by an officer who is authorised in that behalf by the central government, the state government or the appropriate authority, besides the appropriate authority itself. the power to delegate and authorise an officer to make a complaint is clearly conferred upon all the three authorities under the provisions of section 28, and, therefore, a court can take cognizance of an offence under the act on a complaint made by any officer authorised in that behalf by the appropriate authority. - in order to substantiate the charges levelled against the accused, the prosecution led oral as well as documentary evidence. however, the prosecution has failed to prove beyond reasonable doubt the involvement of the accused persons. 9. it will be also very interesting to note that the brother of the deceased, bipin patel has not been examined and the prosecution has not been able to adduce any satisfactory account for non-examination of the said witness. it will be also interesting to note that the fir also did not disclose that injured persons as such sustained injuries. in other words, merely because a better view can be taken by the appellate court upon appraisal of the evidence is no ground for setting aside the acquittal recorded by the trial court.j.n. bhatt, j. 1. both these appeals arise out of a common judgment and order of acquittal in relation to a common incident. upon request, they are being disposed of simultaneously.2. two sessions cases were tried and adjudicated upon by the learned sessions judge, valsad, navsari. sessions case no. 2/85 was against four accused out of five accused persons whereas separate sessions case no. 17/85 was committed against original accused no. 5, ramesh dhana, as initially, charge-sheet was not submitted against him by the investigating officer apprehending that he was a juvenile. subsequently, it was found that respondent no. 5, herein original accused no. 5 minor ramesh was not a juvenile. therefore, supplementary charge-sheet was submitted which gave rise to sessions case no. 17/85. that is how both the sessions cases came to be tried, entertained and disposed of simultaneously, by the trial court.3. for the sake of convenience and brevity, the respondents therein, who are the original accused persons, are referred as they were arraingned before the trial court. accused nos. 1,2,3 and 5 are four brothers amongst six and accused no. 4 was the neighbour. the prosecution case has been that in village talavchora of chikhli taluka in valsad district, accused persons and the complalnant dhirubhai and narsibhai and his brothers babubhai and dilipbhai and bipinbhai were residing, at the relevant time. in that village, a pond known as malkashiya was taken on lease by public auction for fishing purpose before the incident occurred.4. on 5-10-84 at about 7.45, the brother of the complalnant babubhai and dilipbhai went to keep a watch over the said pond followed by complalnant and his brother injured bipin on motorcycle. at that time, all the accused persons were present near the said pond and accused no. 1 mohan was found catching fish from the said pond leased by the complalnant party. the complalnant had told the accused party not to proceed with fishing work from the said pond, as a result of which accused persons got enraged and attacked the complalnant party. accused no. 1 mohan was allegedly armed with axe and inflicted one blow on the head of deceased babu, whereas, accused no. 2 shankar was armed with axe and stone and inflicted blows on the persons of injured bipin. accused no. 3 was armed with stick and he allegedly injured dilip, whereas, accused no. 4 uttam inflicted stone blows on dilip. accused no. 5 ramesh was allegedly armed with stick and inflicted blows on the head of injured dilip patel.5. it was further alleged by the prosecution that accused persons had formed an unlawful assembly with the common object of committing murder of deceased babubhai and causing injuries to injured dilip. the accused persons were tried by the trial court for the offences punishable under sections 143, 147, 148, 337, 149, 323, 302 and 149 of the indian penal code and separately under section 302 of the ipc. the defence of the accused was of total denial. in order to substantiate the charges levelled against the accused, the prosecution led oral as well as documentary evidence.6. upon assessment and examination of evidence, the trial court acquitted all the accused persons of the charges against them by giving benefit of doubt by the impugned judgment of acquittal recorded on 24-4-85 in sessions case no. 2/85 and 17/85. thus, the trial court found that the accused persons are not guilty and responsible for the murder of babubhai and original accused nos. 2 and 4 are not responsible for the injuries caused to complalnant dhirubhai and his brother bipin. hence, this appeal at the instance of the state.7. after having heard and considering the evidence on record, we are of the opinion that the view recorded by the trial court in passing the impugned acquittal judgment could not be said to be unjust, unreasonable or perverse. no doubt, the prosecution had successfully established that the deceased babubhai died a homicidal death, in the light of the evidence on record. however, the prosecution has failed to prove beyond reasonable doubt the involvement of the accused persons. the trial court has given weighty reasons for passing the impugned acquittal order. it has also elaborately considered the major contradictions in the evidence of eye-witnesses.8. it will be surprising to note that even the evidence of the complalnant, injured prosecution witness no. 2 dhirubhai, at ex. 19, is not clear and consistent. his evidence is also not supported fully by prosecution witness no. 3, his brother injured dilip examined at ex. 21. both these witnesses, though, are related have not successfully reinforced the prosecution version and that is the reason why the trial court has observed that there are serious infirmities and material contradictions in their evidence. ordinarily, injured eye-witnesses would not stand benefited in, falsely, involving other persons and also, ordinarily, the court would be at loath to discard the evidence of such witnesses. however, the trial court has not placed reliance on the testimony for the reasons that their evidence is not only conflicting, but inconsistent and incoherent. prosecution witness no. 6, savitaben, at ex. 29 has turned hostile to the prosecution case. obviously, therefore, her evidence is of no avail to the prosecution. the evidence of injured is also contradicted to an extent by the medical evidence of dr. bhagwati prasad, at ex. 43. he had also examined the injured persons and conducted the autopsy. serious inconsistencies and material contradictions between the evidence of the medical officer and the eye-witnesses have been succinctly brought out by the trial court in minute detail.9. it will be also very interesting to note that the brother of the deceased, bipin patel has not been examined and the prosecution has not been able to adduce any satisfactory account for non-examination of the said witness. when the eye-witnesses account is full of contradictions on the main theme of the prosecution, the evidence of bipin patel, brother of the accused, would have been very material. out of five accused persons, no explanation is adduced as to why names of only two persons, accused nos. 2 and 4 were mentioned in the fir and not the names of others. no doubt, it happens at times and for some reasons, some times some names are not disclosed or recorded in the f.i.r. when injured eye-witness happens to be the first informant had no reasons for not disclosing the names of accused nos. 3 and 5 or if he had any there is no material on record as to why he did not mention these names in fir.10. it would be also very material to note, at this juncture, that the prosecution had not taken care to seize the blood-stained clothes of injured witnesses. no explanation is also noticed or spelt out from the record as to why the clothes of the injured persons dhiru and bipin were not collected and seized by the police during the course of investigation. it will be also interesting to note that the fir also did not disclose that injured persons as such sustained injuries. the discovery panchnama relied on by the prosecution is also not proved in terms of law. the discovery panchnama under section 27 produced at ex. 40 sought to be proved in the evidence pw-7, ranchodbhai, ex. 39, in reality, does not take the prosecution case any further.11. before concluding, needless to reiterate that when the appellate court, broadly, agrees with the reasons assigned by the trial court and the ultimate conclusion reached by it, it need not deal with and reiterate the same meticulously. therefore, it would not be necessary for us to consider other grounds threadbare. it is also a settled proposition of law that ordinarily, the appellate court would be at loath to interfere with the acquittal judgment and order recorded by the trial court, if the view taken by the trial court appears to be plausible. in other words, merely because a better view can be taken by the appellate court upon appraisal of the evidence is no ground for setting aside the acquittal recorded by the trial court. in short, the main anxiety of the appellate court is always to see whether the impugned acquittal judgment and order is in any way totally unjust, unreasonable, perverse or that it could not have been reached by a reasonable person upon assessment of the evidence. so is not the factual scenario in the present case and in the result, the appeal needs to be dismissed.12. consequently, both the appeals are dismissed. bail bond of the accused shall stand cancelled.