Gujarat High Court
The State Of Gujarat vs Gulabsinh Sumersinh Rajput- ... on 29 March, 2016
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/1552/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1552 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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THE STATE OF GUJARAT....Appellant(s)
Versus
GULABSINH SUMERSINH RAJPUT- DEVADA....Opponent(s)/Respondent(s)
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Appearance:
MR RUTVIJ OZA APP for the Appellant(s) No. 1
MR DK DESAI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 29/03/2016
ORAL JUDGMENT
1. The present appeal, under section 378 of the Page 1 of 14 HC-NIC Page 1 of 14 Created On Thu Mar 31 01:12:49 IST 2016 R/CR.A/1552/2006 JUDGMENT Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 25.2.2004 passed by the learned Addl. Sessions Judge & Fast Track Court, Ahmedabad (Rural) at Gandhinagar in Criminal Appeal No. 1/2002, whereby, the learned first Appellate Court has quashed and set aside the judgment and order of conviction and sentence dated 15.1.2002 passed in Criminal Case No. 3096/1988 by the learned Judicial Magistrate First Class, Gandhinagar, and acquitted the present respondent-ori. Accused for the offence punishable under section 471 of IPC.
2. The brief facts of the prosecution case are that the accused person serving as a unarmed Head Constable under the Deputy Police Officer, Defence Branch, Gandhinagar. The accused person has been given duty to perform at resident of Minister Shri Harising Mahida on 23.10.1985 at about 8.00p.m. To 24.10.1985 at about 8.00p.m. But without prior permission, he remained absent on the duty. Therefore, notice dated 20.11.1985, has been issued by the authority calling upon him but notice could not be served, thereafter, on 19.12.1985, the accused remained present before the authority with a Medical Certificate No. 885 dated 18.12.1985, issued by Gandhinagar Civil Hospital After considering the medical certificate, the statement of the accused person Page 2 of 14 HC-NIC Page 2 of 14 Created On Thu Mar 31 01:12:49 IST 2016 R/CR.A/1552/2006 JUDGMENT was recorded by the authority. At that time, the complainant Mr. Chavda had doubted the genuineness of medical certificate and therefore he examined the medical certificate and it was found to be forged. Therefore, a complainant of forgery had been lodged against the accused persons. Necessary investigation was carried out and statements of several witnesses were recorded and charge-sheet was filed against him in the Court of learned Judicial Magistrate First Gandhinagar, which was numbered as Criminal Case No. 3096/1988. The trial was initiated against the respondent-accused.
3. To prove the case against the present accused, the prosecution has examined several witnesses and also produced many documentary evidence.
4. At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Magistrate, has convicted and sentenced the accused, against which the accused has preferred Criminal Appeal No. 1/2002 before the first appellate court, which came to be allowed and acquitted the respondent of the charges leveled against him by judgment and order dated Page 3 of 14 HC-NIC Page 3 of 14 Created On Thu Mar 31 01:12:49 IST 2016 R/CR.A/1552/2006 JUDGMENT 25.2.2004.
5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the first appellate Court, the appellant State has preferred the present appeal.
6. It was contended by learned APP Mr. Oza that the judgment and order of the first appellate Court is against the provisions of law; the first appellate Court has not properly considered the evidence led by the prosecution before the trial court and looking to the provisions of law itself it is established that the prosecution has proved all the ingredients of alleged charges against the present respondent. Learned APP Mr. Oza has also taken this court through the oral as well as the entire documentary evidence and submitted that the present appeal deserves to be allowed.
7. Per contra, learned Advocate Mr. D.K. Desai has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned Magistrate is just and proper. Mr. Desai learned Advocate further submitted that in view of the evidence on record, it cannot be said that the learned first appellate Judge has committed any error in allowing the appeal and acquitting the accused, and therefore, the present appeal Page 4 of 14 HC-NIC Page 4 of 14 Created On Thu Mar 31 01:12:49 IST 2016 R/CR.A/1552/2006 JUDGMENT deserves to be dismissed.
8. The principles which would govern and regulate the hearing of an 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 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."
9. 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 Page 5 of 14 HC-NIC Page 5 of 14 Created On Thu Mar 31 01:12:49 IST 2016 R/CR.A/1552/2006 JUDGMENT 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 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, Page 6 of 14 HC-NIC Page 6 of 14 Created On Thu Mar 31 01:12:49 IST 2016 R/CR.A/1552/2006 JUDGMENT 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."
10. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views / 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.
11. 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 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 Page 7 of 14 HC-NIC Page 7 of 14 Created On Thu Mar 31 01:12:49 IST 2016 R/CR.A/1552/2006 JUDGMENT 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."
12. 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.
13. In the case of "LUNA RAM VS. 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 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 Page 8 of 14 HC-NIC Page 8 of 14 Created On Thu Mar 31 01:12:49 IST 2016 R/CR.A/1552/2006 JUDGMENT 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."
14. 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", 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 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, 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 Page 9 of 14 HC-NIC Page 9 of 14 Created On Thu Mar 31 01:12:49 IST 2016 R/CR.A/1552/2006 JUDGMENT 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 SCC573]"
15. 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."
16. In a recent decision, the Hon'ble Apex Court in "SHIVASHARANAPPA & ORS. VS. STATE OF Page 10 of 14 HC-NIC Page 10 of 14 Created On Thu Mar 31 01:12:49 IST 2016 R/CR.A/1552/2006 JUDGMENT KARNATAKA", JT 2013 (7) SC 66 has held as under;
"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."
17. 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.
18. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned APP Mr. Oza for the appellant-State and learned advocate Mr. Desai for the respondent-accused. On going through the entire evidence, it cannot be said that the provisions of section 471 of IPC can be attracted in the facts of this case. The learned Magistrate in Criminal Case No. 3096 of 1988, after a period of about 14 years, convicted the accused under section 471 of IPC only and not under section 465 or 468 of IPC. Against the said order of conviction and sentence, the accused went in appeal. The first appellate court, after appreciating the factual scenario, acquitted the Page 11 of 14 HC-NIC Page 11 of 14 Created On Thu Mar 31 01:12:49 IST 2016 R/CR.A/1552/2006 JUDGMENT accused. This Court is called upon to examine the correctness of the judgment of the first appellate court. One Jeshing Prabhu was also co- accused and he was discharged vide order dated 4.10.1988 which was not brought in challenge before any court. We are not concerned with the same and hence, no discussion is necessary. The factual scenario as it emerges was that the documentary evidences and the evidence at ex. 45 and other, the learned appellate Judge has categorically came to the conclusion that the document at ex. 14 which was purported to be a forged document was not made by the accused. The learned appellate Judge held that the document was never prepared by the accused. However, once it is held that the document was never forged, could it make ground for convicting the accused. The answer has been given "no" by the learned first appellate Judge. The panchas have not supported the case of the prosecution. The learned Magistrate has held that the offence under section 465 has not been made out as the document was not forged and convicted the accused under sec. 471 of IPC. The reasonings given by the learned first appellate court and the learned Magistrate for the offence punishable under section 465 and 468 would not permit this Court to take a different view than that taken by the learned first appellate Court that no case is Page 12 of 14 HC-NIC Page 12 of 14 Created On Thu Mar 31 01:12:49 IST 2016 R/CR.A/1552/2006 JUDGMENT made out for section 471 of IPC, and therefore, this court on the touch-stone of the decisions of the Apex Court narrated hereinabove, cannot accept the submission of learned APP that the accused be held guilty and the judgment of the first appellate court be upturned. I do not find any infirmity in the order passed by the learned first appellate Judge so as to interfere in this case. The judgment and order of acquittal passed by the learned first appellate Judge is just and proper. The evidence on record will not permit this court to take a different view than that taken by the learned trial Judge. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the learned first appellate Court. Even looking to the evidence on record, ld. APP is not able to bring home the charge levelled against the accused and persuaded this Court to take a different view than that taken by the learned trial Judge in view of the catena of decisions of the Apex Court and the latest decision of the Apex Court in the case of State of Punjab v. Madan Mohan Lal Verma, reported in (2013) 14 SCC
153. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
19. In the above view of the matter, I am of the Page 13 of 14 HC-NIC Page 13 of 14 Created On Thu Mar 31 01:12:49 IST 2016 R/CR.A/1552/2006 JUDGMENT considered opinion that the first appellate court was completely justified in acquitting the respondent of the charges leveled against him. I find that the findings recorded by the first appellate court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am, 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.
20. In the result, the present appeal is hereby dismissed. R & P to be sent back to the trial Court. Bail and bail bond, if any, stands cancelled. Surety also, if any given, stands discharged.
(K.J.THAKER, J) mandora Page 14 of 14 HC-NIC Page 14 of 14 Created On Thu Mar 31 01:12:49 IST 2016