Gujarat High Court
The State Of Gujarat vs Ramanbhai Kikabhai Koli Patel & on 4 April, 2016
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/2043/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO.2043 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER Sd/
=================================================
1 Whether Reporters of Local Papers may
be allowed to see the judgment ? NO
2 To be referred to the Reporter or not
? NO
3 Whether their Lordships wish to see
the fair copy of the judgment ? NO
4 Whether this case involves a
substantial question of law as to the NO
interpretation of the Constitution of
India or any order made thereunder ?
===================================================
THE STATE OF GUJARAT....Appellant(s)
Versus
RAMANBHAI KIKABHAI KOLI PATEL &
3....Opponent(s)/Respondent(s)
===================================================
Appearance:
MR RASHESH A. RINDANI, APP for Appellant(s) No. 1
MR ADIL R MIRZA, ADVOCATE for Respondent(s) No.13
UNSERVEDEXPIRED (R) for Respondent(s) No. 4
=================================================
CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 04/04/2016
ORAL JUDGMENT
(1) The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 10.08.2006 passed by learned Special Judge, Valsad, in Special (Atrocity) Case No.16/2005, whereby the learned trial Judge Page 1 of 14 HC-NIC Page 1 of 14 Created On Thu Apr 07 01:56:51 IST 2016 R/CR.A/2043/2006 JUDGMENT acquitted the present respondentoriginal accused, of the charges under Sections 323, 504, 506(2), 114 of the Indian Penal Code, 1860 (the IPC) and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
(2) The brief facts of the prosecution case are that the complainant, Ambubhai Ghelabhai Dhodiya (Patel), belongs to SC ST community. That on 14.04.2005 there was a function of marriage ceremony at the house of the complainant of his younger sister and therefore all the relatives of the complainant were stayed at the residence of the complainant. That allegedly at about 1400 hrs. all the four accused (one of which was expired during pendency of the appeal), came at the house of the complainant and used abusive language and allegedly uttered abusive words of his caste and also allegedly beaten the complainant. Therefore, the complainant had filed the complaint. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondents were arrested and, ultimately, chargesheet was filed against them, which was numbered as Special (Atrocity) Case No.16/2005. The trial was initiated against the respondents.
Page 2 of 14
HC-NIC Page 2 of 14 Created On Thu Apr 07 01:56:51 IST 2016
R/CR.A/2043/2006 JUDGMENT
(3) To prove the case against the present accused, the prosecution has examined ten witnesses and also produced four documentary evidence.
(4) At the end of trial, after recording the statement of the accused under section 313 of the Code of Criminal Procedure, 1973, and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondents of all the charges leveled against him by judgment and order dated 10.08.2006.
(5) Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court the appellant State has preferred the present appeal.
(6) It was contended by learned APP that the judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution 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 respondents. Learned APP has also taken this court through the oral as well as the entire documentary evidence. The presence of the respondents are already established and Page 3 of 14 HC-NIC Page 3 of 14 Created On Thu Apr 07 01:56:51 IST 2016 R/CR.A/2043/2006 JUDGMENT commission of offence is also established, and therefore, the present appeal deserves to be allowed. It is further submitted that the judgment and order of acquittal passed by the learned Judge is based on inferences not warranted by the facts of the case and also on presumption not permitted by law. It is also submitted by him that the learned Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting respondents for the alleged offences. Therefore, learned APP submits that the present appeal deserves to be allowed.
(7) On the last date of hearing, Mr.Mirza, learned advocate for the respondentsaccused, mentioned that the parties have settled the dispute arising out of Special (Atrocity) Case No.16/2005 and they have now healthy relation and therefore he seeks compounding of offences under Sections 323, 504 read with Section 114 of the Indian Penal Code, 1860, which are compoundable offences.
Mr.Mirza, learned advocate for the respondents accused, also has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned Judge is just and proper. It is submitted that in view of the evidence on Page 4 of 14 HC-NIC Page 4 of 14 Created On Thu Apr 07 01:56:51 IST 2016 R/CR.A/2043/2006 JUDGMENT record, it cannot be said that the learned Judge has committed any error in allowing the appeal and acquitting the accused, and therefore, the present appeal deserves to be dismissed.
(8) Today, original complainant, Ambubhai Ghelabhai Patel, who is present in the court, states that now there is congenial atmosphere, which is maintained in the village and he has settled the matter outside the court with the original accused. A compromise pursis to that effect dated 04.04.2016 is tendered, which is taken on record.
(9) Consequently, the said offences are hereby compounded considering the factual scenario of the case.
(10) It is to be noted that Section 506(2) of the Indian Penal Code, 1860 read with Section 3(1) (10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which are noncompoundable offences, however, considering the factual scenario as it emerges that investigation was put into motion by lodgment of complaint by the complainant, which culminated into filing of chargesheet before the competent magistrate. The magistrate committed the case to the concerned sessions Page 5 of 14 HC-NIC Page 5 of 14 Created On Thu Apr 07 01:56:51 IST 2016 R/CR.A/2043/2006 JUDGMENT court, who hand over the case to Special Judge, Valsad, who framed charge at Exh.3.
(11) The main plunk of the argument is that complainant, Ambubhai Ghelabhai Dhodiya (Patel), who belongs to SC ST community and the accused belong to Koli Patel, used abusive language against the complainant and beat him and also used abusive words against the caste of the complainant. Unfortunately, before the trial Court the allegation was not proved and therefore on the touchstone of the decisions of the Apex Court this acquittal appeal will have to be decided on the point that whether the judgment was such which requires to be converted into conviction.
(12) Before the trial Court the prosecution had examined about 10 witnesses. Deposition of the doctor would not be necessary as the offences under Sections 323 and 504 of the IPC being compoundable and are hereby compounded. Out of other witness many of them eyewitnesses have not supported the case of the prosecution, as per the findings of the court below.
(13) The four documents which are produced on record
- the complaint (at Exh.16), panchnama at the place of offence (at Exh.23), medical certificate of the complainant (at Exh.13) and Page 6 of 14 HC-NIC Page 6 of 14 Created On Thu Apr 07 01:56:51 IST 2016 R/CR.A/2043/2006 JUDGMENT caste certificate of the complainant (at Exh.24). All the points for determination were held against the prosecution.
(14) 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."
(15) 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 Page 7 of 14 HC-NIC Page 7 of 14 Created On Thu Apr 07 01:56:51 IST 2016 R/CR.A/2043/2006 JUDGMENT 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."
(16) 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.
(17) 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 Page 8 of 14 HC-NIC Page 8 of 14 Created On Thu Apr 07 01:56:51 IST 2016 R/CR.A/2043/2006 JUDGMENT 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 reappreciate 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."
(18) 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.
(19) 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 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."
(20) Even in a decision of the Apex Court in the Page 9 of 14 HC-NIC Page 9 of 14 Created On Thu Apr 07 01:56:51 IST 2016 R/CR.A/2043/2006 JUDGMENT 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 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]"
(21) 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 Page 10 of 14 HC-NIC Page 10 of 14 Created On Thu Apr 07 01:56:51 IST 2016 R/CR.A/2043/2006 JUDGMENT 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."
(22) In a decision, the Hon'ble Apex Court in "SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA", JT 2013 (7) SC 66 has held as under:
"That appellate Court is empowered to reappreciate 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."
(23) 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.
(24) 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 for the appellantState and learned advocate for the respondentaccused. On going through the entire evidence, it cannot be said that the provisions of the aforesaid sections of the IPC can be attracted in the facts of this case.
(25) The trial Court, after appreciating the factual scenario, acquitted the accused. The trial Court held that the complaint was given after delay of considerable time that is to say the Page 11 of 14 HC-NIC Page 11 of 14 Created On Thu Apr 07 01:56:51 IST 2016 R/CR.A/2043/2006 JUDGMENT incident occurred on 15.04.2005 at 11:40 hrs. and the complaint came to be lodged on 14.04.2005 at 14:00 hrs. i.e. after 24 hrs. and the explanation for such delay was given by the complainant that he was busy with a marriage ceremony of his sister but in his cross examination the complainant stated that he became free by 5 O'clock and therefore that was one of the grounds which was weighed with the trial Court. As far as Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, deposition of Swityben Mukeshbhai PW6 is contrary to the evidence of the others and who uttered which words are not specified. There are contradictions in the evidence of all the witnesses and hence, this Court on the touchstone of the decisions of the Apex Court cannot and should not interfere with the well reasoned judgment of the trial Court.
(26) The reasonings given by the trial Court for the alleged offences would not permit this Court to take a different view than that taken by the trial Court, and therefore, this court on the touchstone 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 trial Court be upturned. I do not find any infirmity in the Page 12 of 14 HC-NIC Page 12 of 14 Created On Thu Apr 07 01:56:51 IST 2016 R/CR.A/2043/2006 JUDGMENT order passed by the trial Court so as to interfere in this case. The judgment and order of acquittal passed by the trial Court is just and proper. The evidence on record will not permit this court to take a different view than that taken by the trial Court. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial 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 then that taken by the trial Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
(27) In the above view of the matter, I am of the considered opinion that the trial Court was completely justified in acquitting the respondents of the charges leveled against them. I find that the findings recorded by trial 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.
Page 13 of 14
HC-NIC Page 13 of 14 Created On Thu Apr 07 01:56:51 IST 2016
R/CR.A/2043/2006 JUDGMENT
(28) 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.
Sd/ [K.J.THAKER, J] *** Bhavesh* Page 14 of 14 HC-NIC Page 14 of 14 Created On Thu Apr 07 01:56:51 IST 2016