Gujarat High Court
Tansukh Urfe Tanso vs State Of on 26 September, 2013
Author: Ks Jhaveri
Bench: Ks Jhaveri
TANSUKH URFE TANSO GOVINDBHAI ZAPADIAV/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/2333/2008 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 2333 of 2008 With CRIMINAL APPEAL NO. 1610 of 2009 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER =========================================================== 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ TANSUKH URFE TANSO GOVINDBHAI ZAPADIA & 1....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance: Criminal Appeal No. 2333/2008 MR PP MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 MS CM SHAH APP for the Opponent(s)/Respondent(s) No. 1 Criminal Appeal No. 1610/2009 MS CM SHAH APP for the Appellant MR PP MAJMUDAR for the Respondents =========================================================== CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER Date : 26/09/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER) The appellants- Ori.
Accused 1 & 3 have preferred Criminal Appeal No. 2333/2008 under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 20.6.2008 passed by the learned Addl. Sessions Judge, Fast Track Court No. 4, Bhavnagar in Sessions Case No. 248/2006, whereby, the learned trial Judge has convicted the appellants-ori. Accused no. 1 & 3 under sec. 302 read with sec. 34 of IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 5000/-each, in default, to undergo R/I for one year. The appellants-ori. Accused no. 1 & 3 also convicted under section 324 read with sec. 34 of IPC and sentenced them to undergo R/I for one year and to pay a fine of Rs. 500/-each, in default, to undergo R/I for one month, which is impugned in this appeal.
2. The appellant-State has preferred Criminal Appeal No. 1610/2009 under section 378(1)(3) of the Code of Criminal Procedure against the judgment and order of acquittal dated 20.6.2008 passed by the learned Addl. Sessions Judge, Fast Track Court No. 4, Bhavnagar in Sessions Case No. 248/2006, acquitting the respondents for the offence under sec. 302, 324 read with section 34 of IPC and sec. 135 of the Bombay Police Act. Since both the appeals arise from same judgment and order of the learned trial Judge, they are disposed of by this common judgment.
The case of the prosecution is that on 17.8.2006, deceased Mukeshbhai and complainant had gone together at Chitra Marketing Yard and thereafter from there, complainant and his big brother Mukeshbhai were going to their house, when they reached at Fulsir Octroi at 2.45p.m., at that time, the appellant no. 1 ori. Accused no. 1 Tansukh Govindbhai had stopped their vehicles and asked that why you have a grudge against me from that day. Thereafter, the complainant and deceased got down from the motor-cycle and at that time, Tansukh s father Govindbhai accused no. 4, his brother Kana Govind and his mother Bhanuben came there and Tansukh had started giving blow to the deceased Mukeshbhai. Therefore, complainant had gone to help the deceased, Kana Govind had started giving blow with the sword, and the complainant was injured by that on his left hand wrist and Tansukh also gave a bow with a knife on the complainant s head. Thereafter, Kana Govind -appellant no. 2 had also given a blow with the sword in the deceased s stomach and Bhanuben Govindbhai also gave blows with the wooden piece (dhoka) to the complainant and the deceased and Govind Kalubhai had a pipe in his hand and had also started giving blows to the complainant and the deceased. After this fighting, the deceased was badly injured and he fell down and the complainant was also injured and he went to Rakeshbhai s STD shop, who is the younger brother of deceased Mukeshbhai. The complainant after telling about the incident he sat down as he was feeling giddiness, and thereafter, Rakeshbhai and Vimalbhai both went to Mukeshbhai. As the complainant was injured, his uncle Dineshbhai and his uncle s son Manishbhai had taken the complainant to the hospital. Thereafter, the complainant came to know that deceased Mukeshbhai was also brought to the same hospital and he had died. Therefore, a complaint was lodged.
2.3 The accused came to be arraigned for committing murder. The investigation being complete, the charge-sheet was laid against the accused. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No.248/2006.
2.4 Thereafter, the Sessions Court framed the charge below Exh. 6 against the accused for commission of the offence under section 302, 324 read with sec. 34 of IPC and under sec. 135 of the Bombay Police Act. The accused have pleaded not guilty and claimed to be tried.
2.5 To prove the case against the present appellants-accused, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned advocate for the appellants-accused.
PW-1 PW-1 Mayursinh Nagalsinh Ex. 14 PW-2 Mangabhai Munnabhai Ex. 16 PW-3 Hasmukhbhai Diyalbhai Ex. 18 PW-4 Pravinbhai Ghanshyambhai Ex. 20 PW-5 Sanjaybhai Rajubhai Ex. 23 PW-6 Shabirbhai Mahmadbhai Ex. 25 PW-7 Dr. Jitendragiri Dayagiri Ex. 28 PW-8 Dr. Satish Dinkarbhai Ex. 34 PW-9 Sandipbhai Laxmanbhai Ex. 39 PW-10 Rakeshbhai Dulabhai Ex. 43 PW-11 Rajubhai Devjibhai Ex. 44 PW-12 Himatbhai Savjibhai Ex. 46 PW-13 Prakashbhai Mavjibhai Ex. 48 PW-14 Nagjibhai Devjibhai Ex. 49 PW-15 Kiranbhai Kumarchandra Ex. 52 PW-16 Bhanushankar Harilal Ex. 56 PW-17 Prafulbhai Parshottambhai Ex. 58 PW-18 Rafikbhai Rahimbhai Ex. 60 PW-19 Ambalal Laljibhai Ex. 61 PW-20 Ravjibhai Lagharbhai Ex. 72 2.6 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused.
Inquest panchnama Ex.
15Panchnama of scene of offence Ex. 17 Arrest panchnama Ex. 19 Discovery panchnama Ex.
21Medical certificate of Sandipbhai Ex. 29 Medical certificate of Rajubhai Ex. 30 Medical certificate of Rajubhai Kamabhai Ex.31 P.M. Note Ex. 36 Police report Ex. 37 Complaint Ex. 40 Panchnama Ex.47 Map of scene of offence place Ex. 53 Station diary Ex. 57 FSL Report Ex. 59 Receipt of FSL Ex. 63 FSL Report about muddamal Ex. 65 Serological report Ex.
66Panchnama of blood sample Ex.75 Panchnama of clothes of dead-body Ex. 76 Thereafter, after examining the witnesses, further statement of the appellants-accused under sec. 313 of CrPC was recorded in which the appellants-accused have denied the case of the prosecution.
After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 20.6.2008 held the present appellants- original accused no. 1 & 3 guilty of the charge levelled against them under sec. 302, 324 read with sec. 34 of IPC, convicted and sentenced the appellants- ori. Accused no. 1 & 3, as stated above.
We have heard at length learned advocate Mr P.P. Majmudar learned advocate for appellants- ori. Accused no. 1 & 3 and for respondents ori. Accused no. 2 & 4 in Criminal Appeal No. 1610/2009 and Ms CM Shah learned APP for the respondent-State and for Appellant-State in Criminal Appeal No. 1610/2009.
6. The learned advocate for the present appellants 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 appellants deserve to be given the benefit of doubt and be acquitted.
On the other hand, learned APP has strongly opposed the contentions raised by the learned advocate for the present appellants 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 being Criminal Appeal No. 2333/2008 deserves to be dismissed.
8. It would be relevant for us to refer to the charge which was framed vide Ex. 6. So as to prove the case, the prosecution has examined several witnesses. We have carefully gone through the evidence of the panchas and the complainant, who was also injured. The postmortem report will be very relevant and the deposition of the doctor would be more relevant for our purpose.
9. The submissions of the learned advocate for the appellants ori. Accused no. 1 & 3 are that the appellants have been wrongly roped in the case since all being the members of the same family. There was a earlier enmity between the complainant side and the accused and appellant no. 2 ori. Accused no. 3 Kanu @ Kano Govindbhai Zapadia has not inflicted any blow with the sharp cutting weapon. The medical evidence and the complainant is the only person who has testified against the accused. Other all interested witnesses. No blood stains were collected from the sword. There is nothing to show that it was a case which would fall within the provisions of section 34 of IPC. At a time the prosecution even before the investigation started, one Raju Vala was named as an accused. He was perpetrator of the crime, but for whatever reasons best known to the investigating agency, he has not been shown as an accused. It has been further submitted by the learned advocate for the appellants that there was no premeditation and it cannot be said that there was either common intention or common object. Even on relying on the complainant s version, they were not present at the same time. The appellant no. 1 ori. accused No. 1 - Tansukh @ Tanso Govindbhai had stopped the vehicle on which the deceased and the complainant were plying and after inflicting the blows, thereafter appellant no. 2 ori. Accused no. 3 Kanu had come. It was further submitted that there was no injury found on the deceased which could be caused by Kanyu and no over-act or any act or no object or intention is proved.
10. Having gone through the medical evidence and the evidence on record, we are convinced that the the complaint is fully proved the guilt of the accused. The oral testimony of all the witnesses are scrutinised by us and the documents go to show that the incident occurred and the death was caused, and therefore, it is proved that it is homicidal death. The prosecution has brought home the case that the accused were present at the scene of offence. We concur with the view of the learned trial Judge as far as presence is concerned. Learned APP Ms. Shah has taken us through the postmortem report, complaint and the evidence of complainant Sandipbhai Laxmanbhai Baraiya Ex. 39, which shows that there was an injury on the abdomen by the sword and the presence of accused no. 3 is also proved beyond reasonable doubt, and therefore, it is proved that it was homicidal death.
11. Looking to the provisions of section 27 of the Evidence Act, it was a sharp cutting instrument with which the deceased died which was recovered at the instance of the accused, and therefore, the same is also admissible in evidence in view of the decision of the Apex Court in the case of Jagroop Singh vs. State of Punjab, reported in (2012) 11 SCC 768. This takes us to the most crucial point as per the decision of the Apex Court, we are convinced that this would fall within the purview of sec. 304 part-I of IPC. The reasons are herein enumerated. The incident happened all of sudden. The grievous injuries to the deceased were not motivated nor there was motive to cause death, and therefore, it would fall within the purview of section 304 part-I of IPC.
12. Having considered minutely the evidence on record, oral as well as documentary evidence, which we have appreciated, re-appreciated and reconsidered in light of the latest decision of the Apex Court. The finding of facts as far as the death being homicidal death cannot be found any fault with. The trial Court was justified in holding the appellants guilty for the offence punishable under sec. 302, however, on re-appreciation of the facts, the provisions of section 299(b) and section 300(3) and degree of probability of death would be a determining factor. It cannot be said that the accused had any motive to do away with the deceased, however, he had a knowledge looking to the injuries, it cannot be said that he had no knowledge that the danger cause proximate to a practical certainty and such knowledge on the part of the accused was of the higher degree. The act having been committed by the accused is proved beyond reasonable doubt.
13. The residual question which arise before us whether section 302 of IPC has its application or it would be falling within section 304 of IPC.
14. This bring us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and murder its specie. All murder is culpable homicide but not vice-versa. Speaking generally, culpable homicide sans special characteristics of murder is culpable homicide not amounting to murder . For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognize three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree . This is the gravest form of culpable homicide, which is defined in Section 300 as murder . The second may be termed as culpable homicide of the second degree . This is punishable under the first part of Section 304. Then, there is culpable homicide of the third degree . This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
15. The academic distinction between murder and culpable homicide not amounting to murder has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done-
Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.
INTENTION
(a) with the intention of causing death; or (1) with the intention of causing death; or
(b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;
KNOWDLEGE
(c) with the knowledge that the act is likely to cause death.
KNOWLEDGE (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
16. Clause (b) of section 299 corresponds with clauses (2) and (3) of Section 300.The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the intention to cause death is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to section 300.
17. Clause(b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words likely to cause death occurring in the corresponding clause (b) of Section 299, the words sufficient in the ordinary course of nature have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause(b) of Section 299 and clause(3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word likely in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words bodily injury... sufficient in the ordinary course of nature to cause death mean that death will be the most probable result of the injury, having regard to the ordinary course of nature.
18. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the internal bodily injury or injuries sufficient to cause death in the ordinary course of nature.
19. In light of the decision of the Apex Court, each accused has to be tried separately as we hold that there was no common intention or common object to do away with the deceased or to cause injury. We are not convinced that it has happened in a spur of moment. There were dispute going on much before the incident, and therefore, accused no. 1 had a grudge and the injuries which he had inflicted will not permit us to take any other view then the one taken by the learned trial Judge as far as accused no. 1 is concerned.
20. The learned advocate for the appellant has taken us through the entire record. Having perused the entire record, we are convinced that this is a case which falls under the category of culpable homicidal, however, the degree of the same is similar to the one in the case of Budhi Lal vs. State of Uttarakhand, reported in AIR 2009 SC 87. The conviction in the said case was altered from section 302 of IPC to 304 Part-I of IPC instead of section 300 of IPC. In this case, as distinguished from the said decision, the assault was by knife, sword, pipe and wooden piece and not by only hand. The intention cannot be said to be absent. The cause of death as narrated in the Post Mortem report is in proximity with the injuries. Therefore, it cannot be said that the accused did not have any intention or knowledge that the injuries which they had inflicted would culminate into such bodily injury which may or may not cause death. The injuries were sufficient to cause death, and therefore, we deem it fit to consider it as culpable homicide not amounting to murder. The latest decision of the Apex Court would help the accused in the case of Swarn Kaur v. Gurmukh Singh and Ors., reported in JT 2013(9) SC 439. We are unable to accept the submission of the learned advocate that there was no intention or motive. As against this, learned APP Ms. CM Shah has taken us extensively through the entire evidence and therefore, we are unable to convince ourselves that the accused is not guilty or that benefit of doubt requires to be given to them. The finding of fact reached by the learned trial Judge are so succinct, we are unable to take a different view then the one taken by the learned trial Judge, save and except that the conviction under section 302 of IPC requires to be altered to under sec. 304 Part-I of IPC qua appellant no. 2 original accused no. 3.
21. The factual scenario and the manner of assault, in our considered view, the appropriate conviction shall be under section 304 Part-I of IPC qua appellant no. 2- ori. Accused no. 3, and to that extent, the appeal requires to be partly allowed.
22. So far as the acquittal appeal being Criminal Appeal No. 1610/2009 is concerned, we are in agreement with the submissions made by learned advocate Mr P.P.Majmudar for the respondents ori. Accused no. 2 and 4.
23. Ms CM Shah learned APP appearing for the appellant-State has made an endeavor that there are serious injuries by pipe and wooden piece (dhoka), but unfortunately, looking to the trends of the Apex Court and the decisions, we are unable to persuade ourselves to take a different view then that taken by the learned trial Judge, as no case is made out by the prosecution against the respondents ori. Accused no. 2 and 4, who are the father and mother of original accused no. 1.
24. Mr. P.P. Majmudar 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.
25. 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.
26. 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.
27. Ms Shah 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.
28. 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.
29.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.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
35. 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]
36. 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.
37. 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.
38. 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. 1610/2009 requires to be dismissed.
39. In the result, Criminal Appeal No. 2333/2008 is partly allowed. The impugned judgment and order of conviction and sentence dated 20.6.2008 passed by the learned Addl. Sessions Judge, Fast Track Court no. 4, Bhavnagar, in Sessions Case NO. 248/2006 under section 302 of IPC is confirmed qua appellant no. 1 Tansukh @ Tanso Govindbhai Zapadia ori. Accused no. 1. Fine is maintained, however, default sentence is reduced to six months. Rest of the judgment and order of the trial Court stands confirmed. However, life would not be till last breath and his case may be considered by the State Government after 14 years.
40. So far as Appellant no. 2- Kanu @ Kano Govindbhai Zapadia ori. Accused no. 3 is concerned, his conviction and sentence under section 302 of IPC to undergo imprisonment for life, is altered and he is convicted under section 304 Part-I of IPC and sentenced to undergo 10 years imprisonment. Fine is maintained, however, the default sentence is reduced to six months. Rest of the judgment and order of the trial Court stands confirmed.
41. R & P to be sent back to the trial Court, forthwith.
42. Criminal Appeal No. 1610/2009 is dismissed. The impugned judgment and order of acquittal dated 20.6.2008 passed by the learned Addl. Sessions Judge, Fast Track Court no. 4, Bhavnagar in Sessions Case NO. 248/2006, acquitting the respondents original accused no. 2 & 4 is confirmed.
(K.S.JHAVERI, J.) (K.J.THAKER, J) mandora Page 29 of 29