Gujarat High Court
State Of Gujarat vs Arjundas Kishomal Harvani & ... on 12 February, 2016
Author: Ks Jhaveri
Bench: Ks Jhaveri, R.P.Dholaria
R/CR.A/867/2005 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 867 of 2005
[On note for speaking to minutes of order dated 23/12/2015 in
R/CR.A/867/2005 ]
With
CRIMINAL APPEAL NO. 532 of 2005
With
CRIMINAL APPEAL NO. 869 of 2005
==========================================================
STATE OF GUJARAT....Appellant(s)
Versus
ARJUNDAS KISHOMAL HARVANI & 2....Opponent(s)/Respondent(s)
==========================================================
Appearance In Criminal Appeal No. 867 of 2005:
MS CM SHAH, ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR ASHISH DAGLI, ADVOCATE FOR MR. AAMIR S PATHAN, ADVOCATE
for the Opponent(s)/Respondent(s) No. 1 - 3
Appearance In Criminal Appeal No. 869 of 2005:
MS CM SHAH, ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR ASHISH DAGLI, ADVOCATE FOR MR. AAMIR S PATHAN, ADVOCATE
for the Opponent(s)/Respondent(s) No. 4
Appearance In Criminal Appeal No. 532 of 2005:
MR ASHISH DAGLI, ADVOCATE FOR MR. AAMIR S PATHAN, ADVOCATE
for the Appelllants No. 1 - 3
MS CM SHAH, ADDL PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 12/02/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) Page 1 of 2 HC-NIC Page 1 of 13 Created On Sun Feb 28 00:31:32 IST 2016 1 of 13 R/CR.A/867/2005 ORDER Perused the Speaking to Minutes Note. Clauses (ii) &
(iii) of para 9 of the judgement dated 23.12.2015 passed in the above captioned appeals shall read as under:
"(ii) However, in the event the accused nos. 1 & 3 pay an amount of Rs. 50,000/- each by way of compensation to either the brother of the victim -
complainant under sec. 357 of Cr.P.C. over and above the amount of fine imposed by the trial court, they shall not be required to undergo the remaining part of sentence and the sentence they have already undergone shall be considered sufficient to meet the ends of justice.
(iii) The amount of compensation shall be paid by accused nos. 1 & 3 within a period of ten weeks from today. If the accused do not pay the amount as ordered hereinabove in time, the sentence awarded hereinabove shall stand revived and it shall be open to the concerned authorities to take accused into custody and they shall be liable to serve the remaining part of the sentence."
The judgement and order dated 23.12.2015 is modified accordingly. Speaking to Minutes note is allowed accordingly.
(K.S.JHAVERI, J.) (R.P.DHOLARIA,J.) divya Page 2 of 2 HC-NIC Page 2 of 13 Created On Sun Feb 28 00:31:32 IST 2016 2 of 13 R/CR.A/867/2005 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 867 of 2005 With CRIMINAL APPEAL NO. 532 of 2005 With CRIMINAL APPEAL NO. 869 of 2005 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE R.P.DHOLARIA ========================================================== 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 or any order made thereunder ?
========================================================== STATE OF GUJARAT....Appellant(s) Versus ARJUNDAS KISHOMAL HARVANI & 2....Opponent(s)/Respondent(s) ========================================================== Appearance In Criminal Appeal No. 867 of 2005:
MS CM SHAH, ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1 MR ASHISH DAGLI, ADVOCATE FOR MR. AAMIR S PATHAN, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 3 Appearance In Criminal Appeal No. 869 of 2005:
MS CM SHAH, ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1 MR ASHISH DAGLI, ADVOCATE FOR MR. AAMIR S PATHAN, ADVOCATE for the Opponent(s)/Respondent(s) No. 4 Page 1 of 11 HC-NIC Page 3 of 13 Created On Sun Feb 28 00:31:32 IST 2016
3 of 13 R/CR.A/867/2005 JUDGMENT Appearance In Criminal Appeal No. 532 of 2005:
MR ASHISH DAGLI, ADVOCATE FOR MR. AAMIR S PATHAN, ADVOCATE for the Appelllants No. 1 - 3 MS CM SHAH, ADDL PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 23/12/2015 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. By way of these appeals the original accused nos. 1 to 3 as well as the State have challenged the judgement and order dated 15.03.2005 passed by the learned Additional Sessions Judge & 4th Fast Track Court, Junagadh in Sessions Case No. 47 of 1997 whereby the trial court has convicted and sentenced the accused for rigorous imprisonment for 7 years & fine of Rs. 5000/- in default rigorous imprisonment for 1 year under Section 304-B and 498A r/w 114 of IPC and rigorous imprisonment for three years & fine of Rs. 5000/- in default, rigorous imprisonment for six months under Section 201 r/w 114 of IPC.
1.1 Criminal Appeals No. 867 of 2005 has been preferred by the State for enhancement of sentence imposed upon original accused nos. 1 to 3 and Criminal Appeal No. 869 of 2005 has been preferred by the State against the acquittal of original accused no. 4 recorded under Sections 304-B, 498(A), 306 & 201 r/w 114 of IPC. Criminal Appeal No. 532 has been preferred by original accused nos. 1 to 3 against the Page 2 of 11 HC-NIC Page 4 of 13 Created On Sun Feb 28 00:31:32 IST 2016
4 of 13 R/CR.A/867/2005 JUDGMENT judgement and order of conviction under Sections 304-B, 498(A) & 201 r/w 114 of IPC. Original accused have been acquitted under Section 306 of IPC.
2. It is the case of the prosecution that the original accused nos. 1 to 3 being husband, father-in-law and mother-in-law of deceased respectively used to harass her physically and mentally. It is the case of the prosecution that the deceased was set ablaze by the accused and without informing the police the dead body was taken to crematorium. It is the case of the prosecution that the complainant and one Jayubhai went there and saw that the dead body was completely burnt but they were told by the accused that the deceased had died in bath room on account of short circuit. A complaint was filed against the accused persons. The accused were apprehended and after investigation charge sheet was submitted. The case was committed to the Court of Sessions. The trial was initiated against the accused and during the course of trial the prosecution examined various witnesses whose evidences were read before us by learned advocates for both the sides. The prosecution also exhibited certain documents which have been perused by us during the course of hearing. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the accused as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the accused and the State have preferred the present appeals.
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3. Mr. Ashish Dagli, learned advocate appearing for original accused nos. 1 to 3 has stated that the trial court has erred in holding that deceased had committed suicide because of ill treatment by the accused persons. He submitted that after the death of the deceased, her parents were informed and they reached the place of cremation along with relatives and thereafter the cremation was done. He submitted that the complaint was lodged after a period of four days which is an afterthought.
Mr. Dagli submitted that the deceased was suffering from Thalasemia which is evident of Dr. Vallabhbhai Jadavbhai at Ex. 107 and even her daughter was suffering from Thalasemia as a result of which daughter also died on 25.06.2001. He submitted that the prosecution has failed to prove the guilt against the accused beyond reasonable doubt.
In the alternative, Mr. Dagli contended that considering the fact that the incident in question took place on 18.05.1993 and a considerable period of time has lapsed, this Court may take a considerate view in the matter. He submitted that the accused are remorseful and are ready and willing to pay appropriate amount as compensation to the family members of the victim. He submitted that accused nos. 2 & 3 are over 70 years of age and therefore this Court may take a considerate view in the matter.
4. Ms. CM Shah, learned APP appearing for the respondent State has been ably assisted by Mr. M.A. Kharadi, learned advocate for the complainant. She has submitted that the trial court has gone into the evidence in detail and has come Page 4 of 11 HC-NIC Page 6 of 13 Created On Sun Feb 28 00:31:32 IST 2016 6 of 13 R/CR.A/867/2005 JUDGMENT to the conclusion that the accused are guilty of the offence so convicted of. She also submitted that the sentence imposed upon the accused is on lower side and is required to be enhanced.
4.1 Ms. Shah submitted that the judgement and order of the Sessions Court acquitting accused no. 4 is against the provisions of law and that the Sessions 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 the whole ingredients of the evidence against accused no. 4. Learned APP has also taken this court through the oral as well as the entire documentary evidence.
5. We have perused the records of the case. From the records of the case, it is borne out that the deceased was meted out with physical and mental torture. It is also borne out from the records that on 18.12.1996 at about 04.30 pm the brother of deceased received a phone call from Manavadar that the deceased had died due to electric shock and therefore the parents, brother and other relatives of the deceased went to her matrimonial house. It is also borne out from the records that when they reached the house, the accused were present there and on inquiry they were told that deceased expired because of electric shock in bathroom. The deceased was thereafter taken to graveyard for cremation. The witnesses have stated that there was no geyzer or heater in the bathroom and the entire valve and roof was covered with black ash. No post mortem was done by the accused and instead they straight away cremated the dead body. The deceased seems to have informed the parents of the ill Page 5 of 11 HC-NIC Page 7 of 13 Created On Sun Feb 28 00:31:32 IST 2016 7 of 13 R/CR.A/867/2005 JUDGMENT treatment meted out to her by the accused. The medical evidence if taken into consideration reveals that the deceased was not suffering from serious illness which could have resulted into her death on that day. Moreover, the conduct of the accused in not allowing the post mortem to be done is also required to be viewed seriously. The witnesses have supported the case of the prosecution. We are therefore of the view that the conviction and sentence imposed upon the accused is required to be confirmed.
6. The trial court has awarded sentence which meets the end of justice. Therefore, there is no substance in the enhancement appeal filed by the State. However, considering the fact that original accused nos. 2 & 3 are above 70 years of age, the sentence imposed upon the accused nos. 2 & 3 may be suspended on their paying suitable compensation to the brother of the victim. The accused nos. 2 & 3 are willing to pay compensation to the family member of the victim. On the peculiar facts and circumstances of this case, we are of the considered opinion that the recent decision of the Apex Court in the case of Ankush Shivaji Gaikwad vs. State of Maharashtra, reported in 2013(6) Scale 778 will squarely apply to the facts of the present case. In that view of the matter, we have felt it appropriate that when the Apex Court has shown concern that section 357 of Cr.P.C be implemented in its proper perspective this is a fit case where we feel that the same requires to be adopted.
7. So far as acquittal appeal qua original accused no. 4 is concerned, it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court Page 6 of 11 HC-NIC Page 8 of 13 Created On Sun Feb 28 00:31:32 IST 2016 8 of 13 R/CR.A/867/2005 JUDGMENT 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 judgement 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."
7.1 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 Page 7 of 11 HC-NIC Page 9 of 13 Created On Sun Feb 28 00:31:32 IST 2016 9 of 13 R/CR.A/867/2005 JUDGMENT 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."
7.2 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.
7.3 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 Page 8 of 11 HC-NIC Page 10 of 13 Created On Sun Feb 28 00:31:32 IST 2016 10 of 13 R/CR.A/867/2005 JUDGMENT 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 judgement 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."
7.4 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 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.
7.5 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 reasonigns, 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 Page 9 of 11 HC-NIC Page 11 of 13 Created On Sun Feb 28 00:31:32 IST 2016 11 of 13 R/CR.A/867/2005 JUDGMENT 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."
7.6 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. from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. 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.
8. Considering the facts and circumstances of the case coupled with the ocular as well as the documentary evidence, and considering the fact that a considerable period of time has lapsed, we think it fit to pass the following order:
9. In the result, the impugned judgment and order of conviction and sentence dated 15.03.2005 passed by the Additional Sessions Judge & 4th FTC, Junagadh in Sessions Case No. 47 of 1997 is modified as under:
(i) The conviction and sentence imposed upon the accused nos. 1 to 3 is confirmed. The acquittal of original accused no. 4 is also confirmed.
(ii) However, in the event the accused nos. 2 & 3 pay
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an amount of Rs. 50,000/- each by way of compensation to either the brother of the victim - complainant under sec. 357 of Cr.P.C. over and above the amount of fine imposed by the trial court, they shall not be required to undergo the remaining part of sentence and the sentence they have already undergone shall be considered sufficient to meet the ends of justice.
(iii) The amount of compensation shall be paid by accused nos. 2 & 3 within a period of ten weeks from today. If the accused do not pay the amount as ordered hereinabove in time, the sentence awarded hereinabove shall stand revived and it shall be open to the concerned authorities to take accused into custody and they shall be liable to serve the remaining part of the sentence.
(iv) Bail bond shall stand continued till the accused pay the amount of fine and compensation is paid.
(v) Criminal Appeal No. 532 of 2005 is allowed to the aforesaid extent.
(vi) Criminal Appeal No. 869 & 867 stand dismissed accordingly.
(vii) R & P to be sent back to the trial court forthwith.
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