Gujarat High Court
State Of Gujarat vs Bhavikkumar @ Tinesh Shankarbhai & ... on 21 March, 2017
Author: A.G.Uraizee
Bench: A.G.Uraizee
R/CR.A/172/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 172 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
BHAVIKKUMAR @ TINESH SHANKARBHAI & 1....Opponent(s)/Respondent(s)
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Appearance:
PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR P P MAJMUDAR, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 21/03/2017
ORAL JUDGMENT
1. By way of this appeal, the appellantState has challenged the judgment and order of the learned Additional Sessions Judge, 5th Fast Track Court, Palanpur dated 22.02.2007 rendered in Special (Atrocity) Case No.123 of 2005, whereby the learned trial Judge Page 1 of 11 HC-NIC Page 1 of 11 Created On Mon Aug 14 22:22:46 IST 2017 R/CR.A/172/2008 JUDGMENT acquitted the original accused, the opponents herein of the charges for the offence punishable under Sections 323, 504, 506(2) of the Indian Penal Code (for short IPC) and Section 3(1)(x) of the Prevention of Atrocities Act, 1989.
2. The brief facts of the case of the prosecution, as set out before the learned Trial Court, read as under:
The complainantGautamkumar Mohanlal Vankar (Parmar), lodged complaint before Palanpur City Police Station being IICR No.3295 of 2005 for the offences punishable under Section 323, 504, 506(2) and 114 of the Indian Penal Code stating therein that he was working in Hit Mineral Water as a delivery boy. On 25.08.2005, he went for delivery of water carrate (Carba) with another delivery boy viz. Arun Kumar and Rickshaw driver viz. Dashrathbhai in loading rickshaw. At about 8.15 a.m., they parked rickshaw at Becharpura Railway Fatak for supplying the carrate (cabra) to their customers. After supplying when they were returned, at that time, the accused persons went from there on bike and by Page 2 of 11 HC-NIC Page 2 of 11 Created On Mon Aug 14 22:22:46 IST 2017 R/CR.A/172/2008 JUDGMENT stopping their bike, they asked them why they parked rickshaw here and complainant reply him by saying "Rickshaw Side Ma Padi Che, Su Taklif Padi, Tamo Tamari Motor Cycle Lai Jai Shako Cho". Because of that the accused persons got provoked and gave faul abuses to the complainant. From the accuse persons, accused No.2 caught hold the complainant and accused no.1 slapped him, inflicted iron punch blow on his mouth and also inflicted pist blows on his body. The accused persons also threatened the complainant by saying they would kill him.
3. After completion of the investigation, the chargesheet was filed against all accused persons before the Judicial Magistrate First Class, Banaskantha. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court, Banaskantha under Section 209 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) committed the said case to the Sessions Court, Banaskantha, which was, thereafter, numbered as Special (Atrocity) Case No.123 of 2005. Since the accused persons did not plead guilty and claimed to be tried, they were tried for the Page 3 of 11 HC-NIC Page 3 of 11 Created On Mon Aug 14 22:22:46 IST 2017 R/CR.A/172/2008 JUDGMENT alleged offences.
4. 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, Palanpur 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.
5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Court, the appellantState has preferred the present Criminal Appeal.
6. Mr. K.L. Pandya, learned Additional Public Prosecutor submits that though the offence under Section 3(1)(10) of the Prevention of Atrocities Act is not made out, the complainantGautam Mohanbhai (P.W. 1) and eyewitnessArunbhai Amrabhai (P.W. 2) support the prosecution case so far as the offence of assaulting the complainant and giving threats is concerned. The evidence of the eyewitness is also supported by DoctorDhirajbhai Becharbhai Jain (P.W. 6). He, therefore, urges Page 4 of 11 HC-NIC Page 4 of 11 Created On Mon Aug 14 22:22:46 IST 2017 R/CR.A/172/2008 JUDGMENT that the appeal may be allowed and the respondent may be convicted for the offence punishable under Section 323, 504 and 506(2) of Indian Penal Code.
7. Mr. Vipul Sundera, learned advocate for Mr. P.P. Majmudar, learned advocate for respondent Nos. 1 and 2 has supported the impugned judgment and order. He submits that the impugned judgment and order does not suffer from any illegality and perversity. Therefore, considering the limited and circumscribe scope of acquittal appeal, the impugned judgment and order does not warrant interference. He, therefore, urges that the appeal may be dismissed.
8. I have heard learned Additional Public Prosecutor for the appellantState and the learned advocate for the opponents and perused the materials available 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 Honble Apex Court laying down guidelines for having acquittal appeals.
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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 narrated the powers of the High Court in appeal against the order of acquittal. In Para54 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.
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[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.
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. Page 7 of 11 HC-NIC Page 7 of 11 Created On Mon Aug 14 22:22:46 IST 2017 R/CR.A/172/2008 JUDGMENT 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 Para16 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 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.
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. Even in a recent decision of the Apex Court in the case of MOOKKIAH AND ANR. VS.
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STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU (AIR 2013 SC 321), the Apex Court in Para4 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 SCC 573]
16. In the recent decision, the Honble Apex Court in Shivasharanappa & ors. v/s. 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.
17. The perusal of the FIR at Exhibit12 and evidence of original complainantGautam Page 9 of 11 HC-NIC Page 9 of 11 Created On Mon Aug 14 22:22:46 IST 2017 R/CR.A/172/2008 JUDGMENT Mohanbhai (P.W. 1) and eyewitness Arunbhai Amrabhai (P.W. 2) makes it manifestly clear that the respondent did not speak any offending words about the caste of the complainant when the alleged incident had happened. I am, therefore, of the opinion that the prosecution has failed to prove that the respondents had committed an offence under Section 3(1)(10) of the Atrocity Act.
18. So far as the prosecution case as regards the offence is concerned. The evidence of P.W. 1 and P.W. 2 is contradictory in material aspect. Moreover, the injuries as mentioned by Doctor Dhirajbhai Becharbhai Jain (P.W. 6) do not tally with the injuries of complainant is stated to have suffered in the incident.
19. In view of the above, all the impugned judgment and order of acquittal cannot be said to perverse or illegal and the plausible view taken by the special Judge cannot be substituted by another view in acquittal appeal.
20. For the foregoing reasons, the appeal fails and is hereby dismissed.
21. Record and Proceedings is order to be Page 10 of 11 HC-NIC Page 10 of 11 Created On Mon Aug 14 22:22:46 IST 2017 R/CR.A/172/2008 JUDGMENT remitted back to the lower Court forthwith.
(A.G.URAIZEE,J) Manoj Page 11 of 11 HC-NIC Page 11 of 11 Created On Mon Aug 14 22:22:46 IST 2017