State Of Gujarat vs Rajubhai Mathurbhai Patel & ... on 5 January, 2015

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Gujarat High Court

State Of Gujarat vs Rajubhai Mathurbhai Patel & ... on 5 January, 2015

1. By way of this appeal, the appellant-State has challenged the judgment and order of the learned Special Judge, Court No.5, Ahmedabad (City) dated 29.04.2003 rendered in Atrocity Criminal Case No.9 of 2002, whereby the learned Trial Judge acquitted the original accused-the opponents herein of the charges for the offence punishable under Sections 323, 294(B), 506(1) and 114 of the Indian Penal Code (for short "IPC") and Section 3(1)(10) of the Atrocity Act.

2. The brief facts of the case of the prosecution, as set out before the learned Trial Court, read as under:

2.1 A complaint was lodged by the complainant being II-C.R.No.3013 of 2001 registered with Bapunagar Police Station, Ahmedabad, wherein the complainant went to the Son and Sons Club on 10.01.2001 at about 6:00 a.m. for the purpose of exercise. He had with him the weight for exercise. Accused no.1 had approached him and asked for the weight. However, the complainant told him that he was using the same. There was an exchange of words between the two. Accused no.1 gave a fist blow on the nose of the complainant, as a result of which blood came out from his nose. Other persons present in the club interfered and separated them. Accused No.1 told Page 2 of 13 R/CR.A/1071/2003 JUDGMENT him (whether the complainant wanted to prolong or not and if he wanted to prolong come down. So saying the accused No.1 left the place. The complainant thereafter went to his shop and talked to his friend Dharmesh Pitamber Parmar when the said Dharmeshbhai came to see him. At about 11:30 he started for his house. He found the accused No.1 along with two other boys aged about 20 to 25 standing near the gate of his society. When the complainant was going towards his house, the accused No.1 uttered "sala dhedho fati gaya chho pan have temne Choodvana nathi, ane aajthi club ma avto nahi, nahitar janthi mari nakhisu". On hearing this, the boys playing cricket and others came there running and accused No.1 and his companions were pacified. There was a scuffle between the persons on the side of the complainant and persons on the side of the accused. The residence of both the societies assembled there and they told the complainant and the accused not to quarrel with each other.

Accused No.1 thereafter left the place saying that he is coming with his man and further threatened the complainant that "Sala dhedha tane chhodayo nathi". The complainant got frightened and therefore, the complaint was lodged.

3. To prove the prosecution case, the prosecution has examined the following witnesses:

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         R/CR.A/1071/2003                                    JUDGMENT




P.W. Nos.         Witnesses                                    Exhibit
                                                               Nos.
1                 Girishbhai Galabhai Rathod                   11
2                 Ashokbhai Kanubhai Parmar                    14
3                 Dharmeshbhai Pitambarbhai Parmar 15
4                 Bhaveshbhai Jayantibhai Patel                17
5                 Bharatbhai Nathabhai Zala                    18
6                 Rajubhai Shivabhai Makwana                   20
7                 Hareshbhai Nathabhai Zala                    21
8                 Babuji Movtaji Thakor                        25
9                 Ramsingh Kodarsingh Solanki                  28
10                Sunilkumar Mahendrabhai Patel                32
11                Bharatsinh Mangalsinh Jadeja                 35


4.     The      prosecution        has         led    the     following

documentary evidence in support of its case:

Sr.Nos. Documentary evidence Exhibit Nos.

1 Original Complaint 13 2 Report under Section 157 of 29

Cr.P.C.

3 Scene of offence panchnama 36 4 Medical Certificate of injured 33

witness Girishkumar 5 Caste Certificate of the 12 complainant

5. After completion of the investigation, the chargesheet was filed before the learned Chief Metropolitan Magistrate Court, Ahmedabad. As the case was exclusively triable by the Court of Page 4 of 13 R/CR.A/1071/2003 JUDGMENT Sessions, learned Magistrate Court, Ahmedabad under Section 209 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") committed the said case to the Court of Special Judge, Court No.5, Ahmedabad (City), which was, thereafter, numbered as Atrocity Criminal Case No.9 of 2002. Since the opponent did not plead guilty and claimed to be tried, they were tried for the alleged offences.

6. At the end of the Trial and after recording the statement of the accused under Section 313 of Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the learned Special Judge, Court No.5, Ahmedabad (City) acquitted the accused of all the charges leveled against them. On completion of the trial, the Sessions Court passed the judgment and order acquitting the opponents.

7. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Court, the appellant-State has preferred the present Criminal Appeal.

6. Learned APP, vehemently, submitted that the learned Trial Judge ought to have considered the evidence of the complainant-Girishbhai Rathod, who was examined at Exh:11. It is submitted that he belonged to the scheduled caste and he Page 5 of 13 R/CR.A/1071/2003 JUDGMENT produced caste certificate to prove his caste.

The learned APP, further, submitted that this Criminal Appeal is required to be allowed.

7. As against that, learned advocate for the opponents supported the judgment and order of the Trial Court submitting that the same was passed after appreciating the evidence adduced on record by the prosecution and hence, no interference is called for with the same at the hands of this Court.

8. I have heard learned APP for the appellant- State and the learned advocate for the opponents and perused the material on record with their assistance.

9. In view of the above, I have to appreciate the facts in this case from the touchstone of the decisions of the Hon'ble Apex Court laying down guidelines for having acquittal appeals.

10. The principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the Trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR (2006) 6 S.C.C. 39, the Apex Court has Page 6 of 13 R/CR.A/1071/2003 JUDGMENT narrated the powers of the High Court in appeal against the order of acquittal. In Para-54 of the decision, the Apex Court has observed as under;

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

11. Further, in the case of CHANDRAPPA VS. STATE OF KARNATAKA reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge;

[1] An appellate Court has full power to review, re-appreciate 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 Page 7 of 13 R/CR.A/1071/2003 JUDGMENT to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis 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.

[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."

12. Thus, it is a settled principle that while exercising appellate powers, even 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.

13. Even in the case of STATE OF GOA Vs. SANJAY THAKRAN & ANR. reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In Para-16 of the said Page 8 of 13 R/CR.A/1071/2003 JUDGMENT decision, the Court has observed as under;

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

14. Similar principle has been laid down by the Apex Court in cases of STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS. (2007 A.I.R. S.C.W. 5553) and in GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP (2007 A.I.R. S.C.W. 5589). Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

15. In the case of LUNA RAM VS. BHUPAT SINGH AND ORS. ((2009) SCC 749), the Apex Court in Paras-10 Page 9 of 13 R/CR.A/1071/2003 JUDGMENT and 11 has held as under;

"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.

11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."

16. Even in a recent decision of the Apex Court in the case of MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU (AIR 2013 SC 321), the Apex Court in Para-4 has held as under:

"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, Page 10 of 13 R/CR.A/1071/2003 JUDGMENT even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]"

17. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of STATE OF KARNATAKA VS. HEMAREDDY (AIR 1981 SC 1417), wherein it is held as under;

"...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

18. In the recent decision, the Hon'ble Apex Court in Shivasharanappa & ors. v/s. State of Karnataka (JT 2013 (7) SC 66) has held as under:

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R/CR.A/1071/2003 JUDGMENT "That appellate Court is empowered to re-appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."

19. Having gone through the entire record and proceedings, the complainant has been examined at Exh:11 and the medical evidence does not support the case of the prosecution and therefore, looking to the totality of facts and circumstances of the case, this is not a case where it can be said that the learned Judge has given a perverse judgment.

20. I find that the Trial Court, while considering the evidence on record, has rightly acquitted the accused persons. The Trial Court has observed that there are various discrepancies in the evidence produced by the prosecution. The Trial Court has doubted the veracity of the investigation. There are loopholes in the evidence and investigation which has been observed by the Trial Court. Moreover, the incident is of the year 2001 and I do not find any strong ground to reverse the decision of the Trial Court. In that view of the matter, the view taken by the Trial Court is not required to be disturbed.

21. I am, therefore, of the considered opinion Page 12 of 13 R/CR.A/1071/2003 JUDGMENT that the findings recorded by the Trial Court in acquitting the accused of the charge leveled against them are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am in complete agreement with the reasonings given and the findings arrived at by the Trial Court. No interference is warranted with the judgment and order of the Trial Court.

22. In view of the above discussions, I am of the opinion that the learned Judge committed no error in passing the impugned judgment and order. Hence, the present appeal deserves to be dismissed.

23. In the result, the appeal fails and is dismissed. The judgment and order of the Trial Court dated 29.04.2003 stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned trial Court, forthwith.

(K.J.THAKER, J) koshti/ Page 13 of 13

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