Gova @ Govaji @ Dashrath Patel Nagjibhai ... vs State Of on 11 July, 2013

[Cites 25, Cited by 0]

Gujarat High Court

Gova @ Govaji @ Dashrath Patel Nagjibhai ... vs State Of on 11 July, 2013

1. Criminal Appeal No. 2156/2005 has been preferred by the appellant-original accused no. 1 under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 25.8.2005 passed by the learned Addl. Sessions Judge, Court no. 7, Ahmedabad in Sessions Case No. 72/2001, whereby, the learned trial Judge has convicted the appellant-ori. Accused no. 1 under sec. 302 of IPC and sentenced to undergo life imprisonment till his life and to pay a fine of Rs. 1 lac, and in default, the said amount shall be recovered in accordance with the law. Out of the total amount of Rs. 1 lac, amount of Rs. 80,000/- (Rs. Eighty thousand) shall be paid by way of compensation to the widow of the deceased and his young daughter. For the offence under section 135(1) of the Bombay Police Act, the appellant-ori. Accused no. 1 has been convicted and sentence to undergo further imprisonment for six months and to pay a fine of Rs. 500/-, in default, to undergo S/I for the period of two months. Both the sentences were ordered to run concurrently. Criminal Appeal No. 2196/2005 has been preferred by the appellant-State under sec. 378 of Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 25.8.2005 passed by the learned Addl. Sessions Judge, Court no. 7, Ahmedabad in Sessions Case No. 72/2001, whereby, the learned trial Judge has acquitted the respondents -original accused no. 2,3, and 4, which is impugned in these appeals.

2. Both these appeals arise from the judgment and order dated 25.8.2005 passed by the learned Addl. Sessions Judge, Court no. 7, Ahmedabad in Sessions Case No. 72/2001, they are heard together and disposed of by this judgment.

The brief facts of the prosecution case is that, one Amrutbhai Sakabhai Desai, brother of Amthabhai Desai (Since deceased) inter alia stated on 27.3.2000 that they are three brothers and eldest of them is Amthabhai, who was a Municipal Counsillor of the Policetial Party Congress (I). Theirs is a joint family with a younger btoerh, his parents and his own family. His elder brother Amthabhai was married 21 years before to one Shantaben and a daughter was begotten from the said wedlock. His desire tohave a male child had remained unsatisfied. It also discloses that one Gova Nagjibhai Rabari resident of Jasodanagar Vitthalnagar Tekta, habitual offender and high handed person from Rabari caste, visited their house frequently with certain recommendations and requests. His brother also sometimes went to his place and he came in contact with a widowed sister of Gova Nagji Rabari. They liked each otherand as he was desirous to have a male child, a proposal for engagement had been pur forth as per the customs of their caste. However, considering disrepute of Gova and his ill conduct, his brother decided to end relationship with this man as he apprehended that his social prestige and political career would be disreputed as a result of this relationship.

It is further the case of prosecution that due to severing of relationship, the accused Gova Rabari with his cousins Vihabhai Sartanbhai Rabari, Tejabhai Sankabhai Rabari and a close friend of Gova, Mahesh Thakore a month before the complaint had threatened Amthabhai and also scuffled with him on the four roads of Amraiwadi area which due to mediation could be brought to the end. However, they left with the specific threat.

That on 26.3.2000, as per the complaint, when Amthabhai and this complainant had gone to Mangaldeep Party Plot, where preparation for dinner on the eve of marriage of son of Bhurabhai Taljabhai Rabari was going on, at around 11:30 at night Gova with both his cousins and Mahesh Thakore arrived at the said party plot and asked Amthabhai to accompany them and they also further asked his brother to sit in Gova s Maruti Van and being worried due to their past conduct, he sent two persons Rameshbhai Mandanbhai and Rameshbhai Laxmanbhai on motor bike after them and at around 12:00 this comlainant received a phone call from Gova Rabari at his residence that he had inflicted 10 blows to Amthabhai and therefore, he went in search of his brother and met Ramesh Mandanbhaiand Ramesh Laxmanbhai early morning, who both were perplexed and narrated him the incident as to how all the four persons who had taken Amthabhai had done him away to death by taking his near Maniyasa old octroi point near railwayline. He found his brother lying in the blood pool with many blows having been inflicted on his body at Bhagwati Park Society and after intimating his family he went to lodge a complaint at 7:00 a.m. on 27.3.2000 to Amraiwadi Police Station and it was registered as an offence being the Ist CR No. 151/2000 against four accused Gova rabari, Vihabhai Sartanbhai, Tejabhai Sankabhai and Mahesh Thakore. Inquest panchnama, panchnama of scene of offence, panchnama of recovery of clothes had been done on the very same day and two of the accused were arrested on 28.4.2000 whereas Gova Rabari, allegedly the main accused had been caught on 14.5.2000 from Indore by Crime Branch and accused no. 4 was arrested on 6.7.2000.

2.4 The accused came to be arraigned for committing murder and after the investigation was complete, the charge-sheet was laid against the accused. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 72/2001.

2.5 Thereafter, the Sessions Court framed the charge below Exh. 3 against the accused for commission of the offence under section 302 read with section 34 and 120(B) of IPC read with sec. 135(1) of the Bombay Police Act. The accused have pleaded not guilty and claimed to be tried.

2.6 To prove the case against the Accused, the prosecution has examined the following witnesses:

Amratbhai Sankabhai Rabari Ex. 122 Rameshbhai Mandanbhai Desai Ex. 126 Karamshibhai Harjibhai Desai Ex. 129 Dr. Jayantilal Virjibhai Satapara Ex.133 Bhurabhai Taljabhai Rabari Ex. 135 Bherusing Ramaji Vachheta Ex. 136 Ramjibhai Navinbhai Chauhan Ex. 138 Shaileshbhai Tiyofil Ex. 144 Laxmanbhai Lilabhai Ex.

146

Jahur Hussain Gulam Hussain Ex. 150 Ranchhodbhai Shambhubhai Patel Ex. 151 Natthubhai Muljibhai Rathod Ex. 156 Prakashchandra Kisanlal Ex. 161 Prakash Atmaram Kundi Ex. 164 Jasubhai Ramchandra Sinde Ex. 165 Mohmad Faruqbhai Hasumiya Shaikh Ex. 166 Mahendra Jivsinhbhai Patel Ex. 170 Rajeshkumar Keshavlal Nayee Ex. 171 Jivsinh Kitsinh Ex. 172 Kiritbhai Govindlal Patel Ex. 173 Hemangbhai Pinakinbhai Buch Ex.174 Sukhdevsinh Sardarsinh Chudasama Ex. 180 Jagdishsinh Temubha Chudasama Ex. 196 Subhas Govindlal Trivedi Ex. 244 2.7 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the Accused.

Report to PSO, Amraiwadi Ex. 182 Complaint Ex. 181 Inquest panchnama Ex.

145

Panchnama of scene of offence Ex. 139 Panchnama of seizure of clothes of deceased Ex. 184 Panchnama of seizure of Hero Honda Ex.162 Panchnama of arrest of accused Viha Rabari and Teja Rabari Ex. 188 Panchnama of weapons discovered by accused Teja Rabari Ex. 159 Panchnama of seizure of muddamal from accused Gova Ex. 245 Panchnama of discovery of knife by accused Gova Rabari Ex. 147 Panchnama of seizure of clothes of accused Gova Rabai Ex. 152 Panchnama of details of memory of phone Ex. 197 Panchnama of person of accused Mahesh Thakore and Jaswant Thakore Ex. 232 Dispatch Note of muddamal Ex. 199 Receipt from FSL Ex.

200

Report of FSL Ex. 201 Dispatch note of muddamal sent to FSL Ex.185 Receipt from FSL Ex.

186

Report from FSL Ex. 187 Report from FSL Ex. 202 Report from FSL Ex. 203 PM Report Ex. 134 Dispatch note Ex. 189 Receipt from FSL Ex.

190

Report of FSL Ex. 231 Letter from Department of Telecommunication Ex. 239

27. AT & T Data Ex. 242

28. Notice Ex. 234

29. Notice Ex. 233

30. List of different officers on duty in the area of Amraiwadi Police Station Ex. 268

31. Closing purshis Ex.

248

2.8 Thereafter, after examining the witnesses, further statement of the accused under sec. 313 of CrPC was recorded in which the accused have denied the case of the prosecution.

3.1 After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 25.8.2005 has convicted the appellant original accused no. 1 of Criminal Appeal No. 2156/2005, as stated above.

3.2 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant-original accused no. 1 of Criminal Appeal No. 2156/2005 has preferred the present appeal.

3.3 We have heard learned advocate Mr.K.B. Anandjiwala learned advocate for appellant-ori. Accused no. 1 in Criminal Appeal NO. 2156/2005, Mr. Nigam Shukla learned advocate for respondent no. 1, Ms.Hetvi Sacheti learned advocate for respondent no. 2 and Mr. J.M. Panchal learned advocate for respondent no. 3 in Criminal Appeal No. 2196/2005 and Mr. L.R. Pujari learned APP for the State in both the appeals.

The learned advocate Mr. Anandjiwala for the appellant-ori. Accused no. 1 of Criminal Appeal No. 2156/2005 has contended that the trial court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellant be given the benefit of doubt and be acquitted. It has been further submitted by the learned advocate Mr.Ajandjiwala for the appellant that the conviction is solely based on the so-called confessional statement to the defence witness no. 1 and it has been submitted that when the learned trial Judge has failed to appreciate the fact that when the prosecution has failed to prove the case, the defence has to be ignored and conviction can only be based on the limbs of the prosecution and not on the evidence of the defence whether it is by accused no. 1 or 2. Learned advocate for the appellant also submitted that the witnesses are got up and evidence of PW-1 and 2 has not been rightly believed by the learned trial Judge. Mr. Anandjiwala learned advocate for the appellant has relied on the decision of Apex Court in the case of Bhim Singh vs. State of Haryana, reported in 2003 SCC (Cri.) 1469, wherein, in para-8, Hon ble the Apex Court has observed as under:

8. The High Court has relied on the recovery of a .12 bore gun at the instance of the appellant while the Sessions Judge has not placed any reliance on this recovery. It is seen from the records that before the appellant was brought to the village, the house of A-3 was searched by the police and they did not find any weapon. It is a few days thereafter when the appellant was arrested, the prosecution alleges that on the basis of his statement the recovery of the gun was made form the chabutra near the house of A-3. The panch witness for this recovery has not supported the prosecution case. In such a situation and in the background of the fact that on an earlier search of the house, the police was unable to recover this gun, it becomes doubtful whether a recovery as stated by the investigating agency can be believed, more so when the panch witness has not supported the recovery. Therefore, in our opinion even the recovery allegedly made at the instance of the appellant cannot be relied upon. If this be the conclusion in regard to the prosecution case, we think it is not necessary to go into the defence put forth by the appellant because the prosecution should either succeed or fail on its own case. In the instant case we agree with the learned Sessions Judge that the prosecution has not established its case even against the appellant and the High Court was in error in selectively accepting the evidence tendered by the prosecution in regard to the appellant to come to the conclusion that he is guilty of the offence charged.

Mr. Anandjiwala learned advocate for the appellant has relied on the decision of the Apex Court in the case of Toran Singh vs. State of M.P., reported in 2003(1) GLH 244, head note (B) reads as under:

(B) Indian Penal Code,1860 S. 302- Criminal Trial Proof beyond reasonable doubt Prosecution should rest on its own strength and not on absence of explanation or plausible defence of the accused.

6. Mr. Anandjiwala learned advocate for the appellant has placed reliance on the decision of the Apex Court in the case Bhagirath vs. State of Madhya Pradesh, reported in (1976) 1 SCC 20, wherein, in para-15, Hon ble the Apex Court has observed as under:

15. It is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court,on its own, make out a new case for the prosecution and convict the accused on that basis.

7. Mr. Anandjiwala learned advocate has also relied on the decision of Hon ble Apex Court in the case of Suchand Pal vs. Phani Pal & Another, reported in (2003)11 SCC 527, wherein, in para-9, the Apex Court has held as under:

9. The trial court appears to have discarded the defence version highlighting the unacceptability of the prosecution version and came to a conclusion that the shot was made from a close range on the courtyard. This plea was taken at the argument stage by the prosecution, trying to read the prosecution evidence in a manner so that the ocular evidence and medical evidence do not appear to irreconcilable. The High Court was right in disapproving the course adopted by the trial Court. It is an established position in law that the prosecution can succeed by substantially proving the version it alleges. It must stand on its own legs and cannot take advantage of the weakness in the defence case. The court cannot on its own make out a new case for the prosecution and convict the accused on that basis. Only when a conclusion is arrived at on the evidence and the substratum of the case is not changed, such a course is permissible. The High Court noticed the medical evidence to be consistent with the defence version that the deceased was hit by the gunshot from a close range and that she was accidentally shot in the scuffle between the informant party and the accused. Coming to the acceptability of the dying declaration, the High Court has rightly discarded it. The declaration made by the deceased was not voluntary and in fact, the answers were not given by her and it was her husband who was answering. Such nature and manner of response from the injured who ultimately succumbed to injuries can by no means be elevated to the level of her dying declaration , even when it is found to sound the voice of Jacob . Stand of the prosecution that he tried to clarify by stating that it was the accused who had fired the gun does not improve the situation. In the true sense of the term or in legal parlance the statement made by the deceased cannot be called a dying declaration. In view of the admitted hostility and strained relations, the natural effort was to rope in the accused. The High court, therefore, discarded the evidence as not worthy of acceptance.

Mr. Anandjiwala, learned advocate for the appellant, therefore, submitted that as far as other witnesses are concerned, there is variance in the evidence of PW-1 & PW-2 as well as DW-1, and therefore, the appeal deserves to be allowed.

8. On the other hand, learned APP Mr. Pujari has strongly opposed the contentions raised by the learned advocate for the present appellant and has submitted that the trial court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeal deserves to be dismissed. Learned APP has further contended that this is a case of brutal murder, and therefore, no leniency should be shown to the accused since the injuries are on the vital part of the body, hence, no interference is called for and the appeal deserves to be dismissed.

9. We have gone through the entire evidence, oral as well as documentary, and considered the ocular version and the medical evidence on record. While giving our reasons, we are with the learned trial Judge as far as conviction is concerned and acquittal is concerned. However, on re-appreciation of the entire evidence which is led before the learned trial Judge, we are unable to persuade ourselves that to subscribe the total reasons given by the learned trial Judge and hence, we have re-appreciated, appreciated and re-evaluated the entire evidence on record. As far as convict accused is concerned, he was an absconder and he was nabbed from Indore. Though PW-15 Jasubhai Ex.165, a panch witness turned hostile, in his evidence nothing significant is brought out and hence, his evidence is not discussed. As far as PW-1 Amratbhai Sankabhai Rabari Ex. 122 is concerned, we do not think that his evidence is such which does not inspire confidence. His complaint is also very specific. It has been rightly pointed out by learned advocate Mr. Anadjiwala that in the evidence of PW-2 Rameshbhai Mandabhai Desai Ex. 126, he has very categorically mentioned that he did not know who has beaten the deceased, and even if so, why did he left the scene of offence and the contradiction is brought on record. It has been submitted that he could not have been seen the offence occurred at night, however, on enquiring, it was found that on 26.3.2000 it was a night because there was no moon as it was 8th day of the second half of the month. It has been rightly submitted by the learned advocate Mr. Anandjiwala that certain persons who are named as eye witnesses have not been examined. The prosecution has given ample reasons for not examining the said eye witnesses.

10. The evidence on which the learned trial Judge has heavily relied is sought to be negatived by the learned advocate Mr. Anandjiwala on the ground that it is secondary piece of evidence. He has made certain additions as has been admitted in cross-examination. He prepared the report and the original writing has been destroyed, and therefore, the primary evidence is destroyed. He has further submitted that there is variance in the say of PW-1 & 2 as well as the defence witness who has been examined by accused no. 2. The witnesses are got up. It is submitted by the learned advocate for the appellant that the learned trial Judge has filed to appreciate the fact that the prosecution has failed to establish the guilt of the accused, however, he has heavily relied on the defence witness. It has been submitted that Ramesh Laxmanbhai is not examined, and therefore, adverse inference is drawn against him.

11. Learned APP has submitted that as there was motive and there was an incident which was occurred before one month and PW-1 & 2 is not believed. PW-5 before turning hostile, has stated that there was a marriage. The accused and the deceased were seen together. The prosecution given cogent reason that Ramesh Laxmanbhai was not examined and the finding of the learned trial Judge cannot be disturbed. According to the learned APP, there was no inducement to the accused to give a statement before the learned trial Judge. Learned APP Mr. Pujari has relied on the provisions of sec. 81 of the Evidence Act and has relied on the decision of the Apex Court in the case of Chattar Singh and Anr. vs. State of Haryana, reported in (2008)14 SCC 667. It is very difficult for us to take a different view then that one taken by the learned trial Judge as far as ori. Accused no. 1 Gova is concerned. From the evidence on record, it is very clear that the accused was seen together, and there was a motive also. Even if the evidence of defence witness examined by the accused no. 2 is brushed aside, all the antecedents factor clearly go to show that Gova was last seen together with the deceased. The decision cited by learned advocate Mr. Anandjiwala will not apply to the facts of this case, more particularly, when there is a evidence which has come on record.

12. Recently, our view is fortified by Hon ble the Apex Court in the case of Rajendrasingh vs. State of Uttaranchal, reported in (2013)4 SCC 713, and therefore, these three incidents would persuade us to hold that the accused Gova was present. In this case, it would be necessary for us to rely on the old decision of the Privy Council in the case of Pulukuri Kottaya & Ors. vs. Emperor, reported in AIR (34) 1947 Privy Council 67, as far as section 27 of the Evidence Act is concerned. In this case, the accused has done the act. His overt-act as culminated into commission of the criminal offence which was in furtherance of his intention, namely to do away with the deceased, and therefore, having delved into each and every aspects, we do not think appropriate to take a different view then that taken by the learned trial Judge.

13. The doctor s evidence shows that the weapon which was recovered at the behest of Gova, and therefore, these three incidents are also enough for us to conclude that none else then the accused has committed murder. However, it would be necessary to refer to the decision cited by learned APP Mr. L.R. Pujari in the case of Chattar Singh & Anr. vs. State of Haryana, reported in (2008) 14 SCC 667, wherein, it has been held that there is an extra judicial confession and there is nothing to show that the same will have to be also considered in light of the fact that he has never retracted the said statement. He has never come openly even during the trial or immediately after the statement was made and there was no reason why to falsely involve his name. It would be a different issue that there was a news-paper report immediately as he was not in the custody of the police. The photo was already there and it related to the death which has occurred and for which the accused was a wanted accused. Despite that, no retaliation from his side to the said statement. The post mortem report shows the following injuries:

4.5x1x bone visible transverse incise wound on right forehead 3.5cm superior and paralled to eyebrow.

1 cm bone deep oval shape stab wound on lateral to right nostril with 6 x 1.5cm transverse contusion abrasion at adjoining lateral area with 0.5cm muscle deep oval shape stab wound at lateral part.

5x0.5x0.3cm incise wound on right face directed down words anteriorly starting from 1cm anterior to upper ear with tailing effect 7 cm inferiorly in continuous 1.5x0.2x0.2 incise wound on right chin 3 cm right to midline.

1x0.5 incise wound on right ear lobe with continuous incise wound on right face size 1x0.3x0.3 directed down words forward.

9 cm anterior to posterior linear incise wound limited to skin on left face at level of tragus in continuous 3cm cut wound on left ear middle part.

Transverse V shape insize wound on front of neck at thyroid cartilage level upper part measures 16x1.5cm lower part measures 13 x 1.5 and middle and left part 9x2 cm. It is muscle deep and cutting superficial vascular drainage and half thickness of thyroid cartilage on left side.

3x.0.5x1.5 transverse incise wound with tailing effect on both side 2cm on sternal notch.

9cm vertical linear incise wound limited to skin on anterior of right shoulder.

5x1x muscle deep incise wound on posterolateral of dorsume of right l and 2 cm superior to claft of thump and index directed posteriarly down words.

1.5x0.7x0.5cm incise wound directed anterior to posterior on lateral end of left eyebrow with 3 cm tailing effect posteriorly.

5x3 muscle deep vertical incise wound on left chest limited to out side the chest wall. Lower end is just lateral to nipple and 5cm tailing effect at upper end, lower end broad.

3.5x 1cm stab wound down words posteriorly on mid axillary area 7 cm inferior to axilla, anterior angle broad and bruse posterior angle acute, it is 7 cm mussel deep goes up words medial outside the chest wall up to lateral of injury no. 11.

8x2 muscle deep transverse incise wound at left subcostal region, medial angle acute and superficial 4 cm lateral to midline.

2.5x0.5 transverse stab wound 8 cm inferior to umbilical at middle of abdomen right angle acute and left angle broad.

3x0.5cm transverse stab wound 4 cm inferior and lateral to injury no. 14 on right side abdomen, lateral angle is acute medial angle broad.

3x1 stab wound on lateral of left abdomen 18 cm lateral to umbilical directed anterior to posterior, anterior angle broad, posterior acute.

4x0.5x1 anterior to posterior incise wound on left lateral upper lip.

3x1 cm down words anteriorly stab wound on right lateral abdomen, 21 cm lateral to umbilical, anterior angle acute, posterior broad.

3.5x1.5 anterior to posterior stab wound on left chest anterior end is in posterior auxiliary line, 13cm inferior to auxiliary fold, posterior angle contused. In nipple plane 15 cm away from nipple, anterior angle broad and bruise, posterior acute, it goes 10 cm deep up words posterior and medially outside the chest wall.

3x1.5 vertical stab wound on posterior axillary line on left chest, 18 cm inferolateral to left nipple, upper angle broad and bruise, lower acute.

2.5x1 cm stab wound directed down words anteriorly on posterolateral of left lower chest, 4.5cm interior to injury no.20, upper angle broad and bruise, lower acute.

Margins of the all above stab wounds are sharply cut and inverted. Blood and clotts are present at margins floor and tract of stab and incise wounds.

14. Therefore, we have no hesitation in coming to the same conclusion, however,on re-appreciation of evidence, the decisions cited by learned advocate Mr. Anandjiwala will not apply to the facts of the present case. The prosecution has the first opportunity to have the newspaper report and it appears that the prosecution has deliberately said that it may affects the case of the prosecution and the other accused have not produce the same on record.

15. One another aspect also which requires to be borne in mind that even if the prosecution story may be not fully convincing, but one fact is that Gova has telephoned PW No.1 and the prosecution has produced the telephone bill details, which is also a circumstance which goes against the present appellant-accused. Hence, no other conclusion then that at which the learned trial Judge has arrived, can be arrived in this case.

16. In our view, considering the FSL report, inquest panchnama, total number of injuries on the dead-body and the FSL report the impugned judgment and order of conviction and sentence passed by the learned trial Judge requires to be confirmed.

17. In the recent decision of the Apex Court in the case of Bakshish Ram & Anr. vs. State of Punjab, reported in AIR 2013 SC 1484, wherein, the Apex Court has held that the High Court should apply its independent mind and record its own finding by making independent assessment of evidence. On re-appreciation of the evidence also, we are unable to persuade ourselves to take a different view then the one taken by the learned trial Judge.

18. We have arrived at our own findings on facts and evidence and the ultimate conclusion and resultant order of conviction and sentence passed by the trial Court has to be upheld and we are of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence. Hence, Criminal Appeal No. 2156/2005 requires to be dismissed.

19. So far as the acquittal appeal being Criminal Appeal No. 2196/2005 is concerned, we are in agreement with the submissions made by learned advocates Mr. J.M. Panchal, Ms. Hetvi Sancheti and Mr.Nigam Shukla for the respondents.

20. Mr.L.R. Pujari learned APP appearing for the appellant-State has submitted that the weapons, presence of all the accused has been identified. Evidence of PW-1 & 2 and the panchnamas go to show that all the accused were involved in the incident just because one of them was not related each other, it will not make any difference. The extra judicial confession of one accused has to be used against all the accused. In view of above, he prays that this appeal may be allowed.

21. Mr. J.M. Panchal learned advocate has placed reliance on the decision of the Apex Court in the case of Yudhvir vs. State of Haryana, reported in 1997 SCC (Cri.) 222, wherein, Hon ble Apex Court in para-9 has observed as under:

9.

That apart, the role attributed to the four appellants that one of them blow with a hockey stick on the deceased has been prevaricated by the two eye witnesses examined in Court. As the post-mortem report showed no corresponding injury on the head of the deceased, Prosecution Witness 1 and Prosecution Witness 2 said during trial that they were not sure whether the strike given by A-4 had fallen on the head of the deceased. Again,as we noticed some of the anti-mortem injuries sustained by the deceased, we find it difficult to believe that second and third appellants would have held the deceased s hands while first appellant was inflicting blows on the deceased with a knife. Deceased had an incised tailing wound on the anterior aspect of the left upper arm, incised wounds on the right thumb, right index finger, left ring finger and also on left middle finger and an abrasion 3 x 2 cm on left upper arm with infiltration of blood. It is highly improbable that deceased could have sustained those injuries if both of his arms were held in the firm grip of anyone else.

22. It is a settled legal position that if the appellate Court agrees with the reasons and findings given by the trial Court, then the discussion of evidence is not necessary, however, we will have to consider the submissions made by all the learned counsel appearing for the parties.

23. The decisions which are referred to hereinafter, would apply to the facts of this case in its totality and on four counts, namely; that no different finding then that given by the learned trial Judge can be arrived at; that the circumstance did not permit us to take a different stand then that taken by the learned trial Judge on the basis of the evidence before it; that the State has not been able to succinctly make the case against the present respondents-original accused and that even if two views are possible, we do not think that it is such a case where we would like to interfere with the finding of the learned trial Judge.

24. Mr. LR Pujari learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.

25. At the outset, it is required to be noted that 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 a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006)6 SCC, 39, the Apex Court has narrated about 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.

26.Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 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, reappreciate 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 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.

27. Thus, it is a settled principle that while exercising appellate power, 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.

28. Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said 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.

29. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.

30. It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write 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, reported in AIR 1981 SC 1417, wherein, it is held as under:

& This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial 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.

31. In the case of Luna Ram v. Bhupat Singh and Ors, reported in (2009) SCC 749, the Apex Court in para 10 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 anke 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 post-mortem 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.

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.

32. Even in a recent decision of the Apex Court in the case of Mookiah and Anr. v. State, rep. By the Inspector of Police, Tamil Nadu, reported in 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 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 Sec. 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, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate 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 the acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]

33. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.

34. We have gone through the judgment and order of acquittal passed by the trial court. We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned APP for the appellant-State. The trial court while considering the oral as well as documentary evidence has clearly observed that there is no any evidence to convict the respondents. The prosecution has miserably failed to prove the case against the accused beyond any reasonable doubt. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.

35. In the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. We find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence, Criminal Appeal No. 2196/2005 requires to be dismissed.

36. In the result, both these appeals are dismissed. The impugned judgment and order of conviction and sentence dated 25.8.2005 passed by the learned Addl. Sessions Judge, Court No. 7, Ahmedabad in Sessions Case No. 72/2001, convicting the accused no. 1- Appellant of Criminal Appeal No. 2156/2005 and acquitting the respondents no. 1, 2 & 3 of Criminal Appeal No. 2196/2005, is confirmed. R & P to be sent back to the trial Court, forthwith. However, life would not be till last breath and his case may be considered after 14 years by the appropriate authority.

37. As the appellant of Criminal Appeal No. 2156/2005 is on bail, his bail and bail bonds are cancelled, however, he is entitled for set-off. He is in jail in connection with some other case, so no order for his surrender is passed.

(K.S.JHAVERI, J.) (K.J.THAKER, J) mandora Page 36 of 36

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