Gujarat High Court
State Of Gujarat vs Thakarda on 29 July, 1994
Author: Ks Jhaveri
Bench: Ks Jhaveri
STATE OF GUJARAT....Appellant(s)V/STHAKARDA BALDEVJI....Opponent(s)/Respondent(s) R/CR.A/1043/1994 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1043 of 1994 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE G.R.UDHWANI =========================================================== 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 ? ================================================================ STATE OF GUJARAT....Appellant(s) Versus THAKARDA BALDEVJI....Opponent(s)/Respondent(s) ================================================================ Appearance: MR. J.K. SHAH, LEARNED AGP for the Appellant(s) No. 1 MR JM BUDDHBHATTI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 22/03/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. This appeal under section 378 of the Criminal Procedure Code, at the instance of the State, is against the judgement and order of acquittal dated 29.07.1994, passed by the learned Additional Sessions Judge, Mehsana.
2. The brief facts of the prosecution case are that the complainant Puriben Thakore was residing with her brother Nathaji and his two daughters Vinu and Savita at village Jagudan. The complainant earns her livelihood by keeping animals and selling their milk and doing labour work. On 11.03.1991, at about 7:30 p.m., the complainant asked her niece Savita Nathaji to go to Jagudan Dairy in order to sell the milk. The complainant went out to see her, as it was a dark night. At that time, she heard some shouts on Jagudan to Sanganpur Road. When she went to see what was happening there, she saw one Baldevji Gandaji holding knife in his hand and giving abuses to her niece Savitaben and threatening her of dire consequences. When the complainant intervened, said Baldevji Gandaji assailed her and gave knife blow on her right hand and pushed her niece and she also got injuries on her body. Therefore, the complainant shouted for help and the accused went to the village. The complainant has firstly filed a complaint against the accused on 12.03.1991 and thereafter, second complaint was filed against the accused on 12.03.1991, alleging committal of rape on her niece Savita.
2.2. After investigation, Chargesheet was submitted before the Court of learned JMFC, Mehsana, against the accused. As it was a sessions triable case, the learned Magistrate committed the same to the Sessions Court, Mehsana, which was numbered as Sessions case No. 26 of 1992.
2.3. The accused pleaded not guilty to the charges leveled against him. After recording the evidence, the learned Additional Sessions Judge, Mehsana, vide judgement and order dated 29.07.1994, acquitted the accused of the offences with which he was charged. It is against the said judgement and order of acquittal that the present appeal has been filed by the State.
3. Learned APP appearing for the appellant-State has submitted that the trial Court has committed error in acquitting the respondent-accused since there were ample direct and indirect evidence on record to connect the respondent-accused with the crime. He further submitted that the Trial Court has failed to appreciate the material on record in its true perspective. Therefore, he requested this Court to allow this appeal.
4. 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 S.C.C. 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.
4.1. 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 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.
4.2. 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.
4.3. Even in the case of State of Goa V. 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 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.
4.4. 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 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589.
Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
4.5. 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 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 judgement 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.
4.6. 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:-
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 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 an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573] 4.7. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgement 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 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.
5. 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.
6. We have gone through the judgement and order 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 advocate for the appellant. It is required to be noted that in pursuance of the registration of the Complaint, the investigation was carried on for about two days, however, no papers to the said effect were produced before the Trial Court. It is also pertinent to note that the Doctor, who had examined the victim did not found any injury mark either on her chest or her private part. From the medical evidence, it has also come on record that the victim was habituated to sexual intercourse. In other words, the medical evidence on record, do not support the prosecution story. The nexus between the commission of the alleged offence of rape and the involvement of the respondent-accused is not established. Under circumstances, we are of the opinion that the Trial Court has rightly acquitted the respondent-accused of all the charges.
7. Learned APP is not in a position to show any evidence to take a contrary view in 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. In above view of the matter, we are of the considered opinion that the Trial Court was completely justified in acquitting respondent-accused of all the charges.
8. In that above view of the matter, we are of the considered opinion 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 in complete agreement with the reasonings given by and the findings arrived at by the Trial Court and hence find no reasons to interfere with the same. Hence, the appeal is hereby dismissed.
(K.S.JHAVERI, J.) (G.R.UDHWANI, J.) pawan Page 11 of 11