Gujarat High Court
State Of Gujarat vs Chhatrasinh Bhupatbhai Solanki & ... on 2 February, 2017
Author: A.G.Uraizee
Bench: A.G.Uraizee
R/CR.A/990/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 990 of 2009
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
CHHATRASINH BHUPATBHAI SOLANKI & 2....Opponent(s)/Respondent(s)
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Appearance:
MR RC KODEKAR, APP for the Appellant(s) No. 1
MR BHUNESH C RUPERA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 02/02/2017
ORAL JUDGMENT
1. The State has preferred the present appeal under Section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short) to challenge the judgment and order of acquittal dated 27.01.2009 passed by learned Sessions Judge, Anand in Sessions Case No.88 of 2008, Page 1 of 10 HC-NIC Page 1 of 10 Created On Sun Aug 13 08:24:27 IST 2017 R/CR.A/990/2009 JUDGMENT whereby the judgment and order of conviction dated 27.01.2009 passed by learned Sessions Judge Anand in Sessions Case No. 88 of 2008 came to be set aside and the respondents came to be acquitted for the offence punishable under Section 498(A), 306 read with Section 114 of the Indian Penal Code.
2. The brief facts giving rise to the present appeal are that the accused No.1 Chhatrasinh is the husband of the deceased Ranjanben and the accused Nos. 2 and 3 are the elder brotherinlaw and sisterinlaw of the deceased Ranjanben. On 12.04.2008 complainant Raavjibhai has given complaint to the Deputy Superintendent of Police, Petlad to the effect that earlier marriage of her fourth daughter viz. Ranjanben took place with one Vinubhai Mafatbhai. However, on account of torture being meted out at the hands of her husband, she got divorce and remarried to Chhatrasinh Bhupatbhai, the accused No.1. For conducting religious death ceremony of son of the complainant, he called all his five daughters with their husband on 1st April, 2007. Ranjanben used to visit the house of the complainant and she was complaining to her parents that she was subjected to physical harassment by her husband that too being instigated by her elder brother inlaw and sisterinlaw. The deceased was also Page 2 of 10 HC-NIC Page 2 of 10 Created On Sun Aug 13 08:24:27 IST 2017 R/CR.A/990/2009 JUDGMENT complaining that the accused were also demanding money for Tractor. The further prosecution case is that Chhatrasinh went back in the night when he came to attend religious death ceremony and Ranjanben stayed at the house of the complainant. On 11.04.2008, as wife of the complainant was going to her matrimonial house at Sandesar and Ranjaben also had to go her matrimonial house, both accompanied each other for Borsad. At about 4=00 O' clock Bhupatbhai, fatherinlaw of Ranjanben conveyed message to complainnat making call at shop of Ravjibhai to immediately come a matrimonial house of Ranjanben. Upon knowing, Ranjan was dead, the complainant and family members reached at Anklav Government Hospital where they found Ranjanben dead. Thereafter, the complainant filed his complaint with Borsad Police Station to the effect that on account unbearable mental and physical torture being meted out to her at the hands of the accused, consuming poison her daughter ended life being left with no option but to.
3. After completion of the investigation, the chargesheet was filed before the learned Judicial Magistrate First Class, Borsad. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court, Borsad under Section 209 of the Code of Criminal Procedure, Page 3 of 10 HC-NIC Page 3 of 10 Created On Sun Aug 13 08:24:27 IST 2017 R/CR.A/990/2009 JUDGMENT 1973 (for short Cr.P.C.) committed the said case to the Court of Sessions Judge, Anand, which was, thereafter, numbered as Sessions Case No.88 of 2008. Since the accused persons did not plead guilty and claimed to be tried, they were tried for the 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 Sessions Judge, Anand 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. I have heard learned APP for the appellant State and the learned advocate for the opponents and perused the material on record with their assistance.
7. In view of the above, I have to appreciate the facts in this case from the touchstone of the decisions of the Hon'ble Apex Court laying down Page 4 of 10 HC-NIC Page 4 of 10 Created On Sun Aug 13 08:24:27 IST 2017 R/CR.A/990/2009 JUDGMENT guidelines for having acquittal appeals.
8. 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.
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 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 Page 5 of 10 HC-NIC Page 5 of 10 Created On Sun Aug 13 08:24:27 IST 2017 R/CR.A/990/2009 JUDGMENT 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.
10. 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.
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 Para16 of the said Page 6 of 10 HC-NIC Page 6 of 10 Created On Sun Aug 13 08:24:27 IST 2017 R/CR.A/990/2009 JUDGMENT decision, the Court has observed as under;
16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.
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. ((2009) SCC 749), the Apex Court in Paras10 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 Page 7 of 10 HC-NIC Page 7 of 10 Created On Sun Aug 13 08:24:27 IST 2017 R/CR.A/990/2009 JUDGMENT 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.
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 (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] Page 8 of 10 HC-NIC Page 8 of 10 Created On Sun Aug 13 08:24:27 IST 2017 R/CR.A/990/2009 JUDGMENT
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 the recent decision, the Hon'ble Apex Court in Shivasharanappa & ors. v/s. State of Karnataka (JT 2013 (7) SC 66) has held as under:
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 evidence of original complainant Ravjibhai Mahijibhai Parmar (Exhibit19) who happens to be the father of the deceased is not supported by the evidence of Manjulaben Ravjibhai (Exhibit22) who happens to be the mother of the deceased. Kokilaben (Exhibit23) and Daxaben Bharatbhai (Exhibit24) also does not support the Page 9 of 10 HC-NIC Page 9 of 10 Created On Sun Aug 13 08:24:27 IST 2017 R/CR.A/990/2009 JUDGMENT prosecution case. The learned trial Judge has examined and analyzed the oral and documentary evidence adduced by the prosecution and by assigning cogent reasons has recorded the findings that the evidence of the prosecution is contradictory and does not inspire confidence. I am full agreement with the reasons reported by the learned Sessions Judge and the impugned judgment and order does not suffer from the voice of illegality or perversity warranting interference.
18. For the foregoing reasons, the appeal fails and is hereby dismissed.
19. Record and Proceedings, remitted back to the trial Court, forthwith.
(A.G.URAIZEE,J) Manoj Page 10 of 10 HC-NIC Page 10 of 10 Created On Sun Aug 13 08:24:27 IST 2017