Gujarat High Court
Rajput Naranbhai Jethabhai vs State Of on 30 July, 2013
Author: Ks Jhaveri
Bench: Ks Jhaveri
RAJPUT NARANBHAI JETHABHAIV/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/1131/2007 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1131 of 2007 With CRIMINAL APPEAL NO. 1225 of 2007 With CRIMINAL APPEAL NO. 687 of 2008 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 ? ================================================================ RAJPUT NARANBHAI JETHABHAI & 4....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance: Criminal Appeal No. 1131/2007 MR MJ BUDDHBHATTI, ADVOCATE for the Appellant(s) No. 1 - 5 MS CM SHAH APP for the Opponent(s)/Respondent(s) No. 1 Criminal Appeal No. 1225/2007 MR ND NANAVATI SR. ADVOCATE with MR ND BUCH for Nanavati Advocates for the Appellant MS CM SHAH APP for the Opponent(s)/Respondent(s) No. 1 Criminal Appeal No. 687/2008 MS CM SHAH APP for the Appellant MR MJ BUDDHBHATTI, ADVOCATE for the Opponents ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER Date : 30/07/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. The appellants-ori.
Accused no.1,6,7,8 and 14 have preferred Criminal Appeal No. 1131/2007 and the appellant-ori. Accused no. 17 has preferred Criminal Appeal No. 1225/2007 under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 7.8.2007 passed by the learned Addl. Sessions Judge & Presiding Officer,5th Fast Track Court, Rajkot in Sessions Case No. 66/1998, whereas, acquittal appeal being Criminal Appeal No. 687/2008 has been preferred by the State under section 378(1) of the Code of Criminal Procedure against the judgment and order of acquittal acquitting the respondents. whereby, the learned trial Judge has convicted the appellants- ori. Accused No. 1,6,7,8 & 14 under sec. 323 of IPC and sentenced them to undergo R/I for six months and to pay a fine of Rs. 500/-each, in default, to undergo further S/I for one month. The appellants- ori. Accused no. 1,6,7,8 & 14 also convicted for the offence under sec. 135 of the Bombay Police Act and sentenced them to undergo S/I for one month and to pay a fine of Rs. 100/- each, in default, to undergo further S/I for ten days. The appellant- ori. Accused no. 17 is also convicted under sec. 302 of IPC and sentenced to undergo R/I for life and and to pay a fine of Rs. 10,000/-, in default, to undergo further S/I for two years, which is impunged in these appeals. Since all the appeals arise from the judgment and order of the trial Court, they are heard and decided by this common judgment.
The case of the prosecution is that the complainant Narendrasinh B.Jadeja, PSI, Paddhari Police Station registered a complaint against the accused persons with Paddhari Police Station, which was registered as CR No. I-1 of 1998 for the offences punishable under section 147, 148, 149, 323, 324, 325326, 302 and 135(1) of the Bombay Police Act. In the FIR it is alleged that the complainant Police Sub Inspector had gone to Khandheri at about 10.45 hours. At about 17.30 hours, while he was passing from the road near Patel Parotha House situated at Padadhari, he saw about 20 to 25 persons belonging to Darbar community of Khakhara Bela village with sticks, dharia etc. It is alleged that upon seeing one Jairajsinh, he raised his shouts and stopped them from proceeding further and pursuant to which the said group of 20 to 25 persons allegedly escaped whereas the complainant proceeded further. It is further alleged that at that point of time, the complainant saw the group of about 50 persons belonging to Rajput community with motor cycles and rickshaw. It is alleged that the said group was armed with weapons. It is alleged that the group belonging to Rajput community ran after the persons of Darbar community. Upn seeing the said chasing, the complainant attempted to stop the group of persons of Darbar community, but allegedly failed. It is further alleged that thereafter scuffle took place between the two groups. It is also the case of the prosecution that there was a free fight between the two groups and with a view to stop the said groups, in caution the complainant fired from his revolver and thereafter two groups disbursed. It is further the case of the prosecution that upon further inquiring the complainant came to know that in the morning if ill-fate day, the accused no. 17 had gone to the office of the Taluka Panchayat of Padadhari where he found one Jairajsinh sitting on the chair of the President of Taluka Panchayat. It is also alleged that the said meeting was thereafter converted into some verbal exchange between the two and thereafter in the evening alleged incident took place. It is alleged that the accused no. 17 had threatened one Jairajsinh Lakhubha Jadeja and thereafter in the evening along with the members of his own community with a view to kill the deceased Hardevsinh @ Harvijaysinh Popatbha, an unlawful assembly was formed and pursuant to the common object of unlawful assembly, the accused no. 17 inflicted sword blow on the chest of deceased Hardevsinh and committed his murder. Accused no. 14 inflicted pipe blow on Jayendrasinh Chatursinh and intentionally caused grievous hurt to him. Accused no. 6 inflicted pipe blow on the head of Jayrajsinh Lakhubha and caused hurt intentionally and accused no. 17 caused injury to Karansinh Mahipatsinh by inflicting sword blow. Therefore, a complaint was lodged.
The appellants accused came to be arraigned for committing murder. The investigation being complete, the charge-sheet was laid against the present appellants. 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. 66/1998.
2.3 Thereafter, the Sessions Court framed the charge below Exh. 1 against the appellants for commission of the offence under section 143,147,148, 302, 323,324, 325 and 149 of IPC and under sec. 135 of the Bombay Police Act. The appellants-accused have pleaded not guilty and claimed to be tried.
To prove the case against the present appellants, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned advocates for the appellants :
Jayrajsinh Lakhubha Jadeja Ex. 41 Karansinh Mahipatsinh Jadeja Ex. 85 Jayendrasinh Chatursinh Jadeja Ex. 100 Mangabhai Kalabhai Vadecha Ex. 104 Laljibhai Madhabhai Ex.105 Pravinbhai Narshibhai Ex. 106 Thakarashibhai Motibhai Ex. 108 Dhiraj Mepabhai Patel Ex. 110 Pratap Hakubhai Chavda Ex. 111 Chhaganpari Popatpari Ex. 113 Rafikbhai adambhai Ex.114
Noormamad Mijmiya Fakir Ex. 116 Bhimjibhai Tapubhai Ex.117
Bachubhai Bijalbhai Ex.118
Rasid Kherudin Khan Baloch Ex. 122 Dahyabhai Manjibhai Ex.123
Bhikhubhai Balubhai Ex.125
Husen Jemalbhai Ex. 128 Kamlesh Maganlal Parmar Ex. 134 Hasmukhbhai Bavalal Ex.136
Shabbir Yakubmiya Ex.138
Bhanubhai Bijalbhai Ex.140
Mahendra Ghelabhai Ex.141
Osman Valimahmad Modi Ex. 143 Ramnikbhai Haribhai Chavda Ex. 153 Meghjibhai Kalabhai Ghumbda Ex. 156 Hanifbhai UmarbhaiSumara Ex. 158 Dashubha Navubha Jadeja Ex. 166 Ranjitsinh Prabhatsinh Jadeja Ex. 175 Dr. Jayantilal Harjivandas Karia Ex.177 Dr. Dhirajlal Valjibhai Chauhan Ex. 185 Dr. Prakashchandra Gokaldas Modha ex. 190 Dr.Manishbhai Kantigiri Gosai Ex. 193 Dadmamad Kadarbaksh Baloch Ex. 196 Chandubha Manubha Jadeja Ex. 202 Gajendrasinh Nirmalsinh Zala Ex. 205 Sarnamsinh Prasadilal Bhaskar Ex. 211 Morardan Jilubha Gadhavi ex. 215 Narendrasinh Bharatsinh Jadeja Ex. 224 2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellants-accused.
Panchnama of scene of offence Ex. 107 Arrest panchnama Ex.
109Panchnama of cloth of accused Ex. 112 Arrest and cloth panchnama Ex. 115 Panchmana of cloth of deceased Ex. 119 Panchnama of cloth of Jaysukh Ex. 124 Panchnama of cloth of Jayrajsinh Ex. 126 Panchnama of person of Karansinh Ex. 127 Arrest panchnama Ex.
129Discovery panchnama Ex.
130Discovery panchnama Ex.
131Discovery panchnama Ex.
132Discovery panchnama of weapon Ex. 133 Discovery panchnama Ex. 135 Arrest panchnama of Jaysukh Ex.139 Arrest panchnama Ex.
139discovery panchnamas Ex. 144 to 149 Discovery panchnama Ex.
150PM report Ex. 178 Yadi to medicala officer by CPI Ex.179, 180 Medical certificate of Karansinh Ex. 186 Medical certificate of Jayrajsinh Ex.191, 195 Medical certificate of Karansinh Ex. 192,194 Inquest panchnama Ex.
197Notification Ex. 198 Letter Ex. 203 Map of scene of offence place Ex.204 Copy of station diary Ex.206 Copy of station diary entry no. 28 Depute order for investigation Ex. 212 Complaint Ex. 213 Forwarding letter Ex.214 Copy of entry no. 16 Ex. 216 Zerox copy of note no.
2 of station diary Ex. 217 Copy of complaint Ex.
225Report regarding offence Ex. 226 Report by PSO Ex. 253 Report regarding serious offence Ex. 254 Report to add sec. 302 of IPC Ex. 255 Yadi to MO for blood grouping Ex. 257 Yadi to give medical certificate of Jayendrasinh Ex. 258 Letter Ex. 259 Zerox of RC book of GJ.10.U.6674 Ex. 260 Zerox copy of insurance policy Ex. 261 RTO Form No. 38 of vehicle No. GJ.10.U.6674 Ex. 262 Office order Ex. 263 Yadi for blood grouping Ex. 264 Medical certificate issued by Shreyas hospital Ex. 265 Letter Ex. 266 Copy of service time of dated 1.1.98 Ex. 267 RTO book of vehicle No. GJ.11.A.665 Ex. 268 RTO book of tanker No. GTF-6190 Ex. 269 Letter Ex.270 Letter to M.O. By CPI Ex. 271 Copy of letter for sending muddamal Ex.272 Yadi by CIP to MO Morbi Ex. 273 Yadi for medical certificate to Dr.Modha Ex.274 Forwarding letter of FSL Ex. 275 FSL Report Ex. 276 Serological report Ex.
277Report Ex. 278 Closing pursish Ex. 279 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.
4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 7.8.2007 held the present appellants- original accused guilty of the charge levelled against them under sec. 302 and 323 of IPC and under sec. 135 of the Bombay Police Act, convicted and sentenced the appellants-accused, as stated above.
We have heard at length learned advocate Mr M.J. Buddhbhatti for the appellants of Criminal Appeal No. 1131/2007 and Mr. N.D. Nanavati learned Senior Advocate with Mr. N.D. Buch learned advocate for the appellant of Criminal Appeal No. 1225/2007 and Ms. C.M. Shah learned APP for the respondent-State in both the appeals. We have also heard Ms. C.M. Shah learned APP for the appellant-State in Criminal Appeal No. 687/2008 and Mr M.J. Buddhbhatti learned advocate for the respondents.
6. The learned advocates for the present appellants have 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.
7. 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 appeals deserve to be dismissed.
8. The first information report Ex. 225 given by Mr.N.B. Jadeja, who was PSI, at Padadhari at 10.45a.m., and therefore, it appears that from this document it can be termed as FIR being CR No. I-1/1998. There was a free fighting and in that scuffle, Jayrajsinh had been injured. Looking to the evidence on record of PW-1 Jayrajsinh Lakhubha Jadeja Ex. 41 and PW-3 Jayendrasinh Chatursinh Jadeja Ex. 100, it appears that most of the witnesses have not supported the prosecution case, except the police authorities, Medical Officer and PWs-1,2,3 and 6. Looking to the medical evidence and post mortem report, it can be safely said that there was a free fight which had ensued, it cannot be said that there was any motive on the part of any of the accused, however, the injuries will not permit us to give the benefit of doubt to the accused. It cannot be said that there was a sudden quarrel, but there was a quarrel and it cannot be said that the appellants or respondents in the State appeal were aggressor. The incident in question occurred in the year 1998. The accused no. 17 Ramnikbhai Nathabhai Rajput is in jail for a period of 7 ¿ years, as per the jail record. The other accused are on bail.
9. On going through the judgment of the Hon ble Apex Court in the case of Ankush Shivaji Gaikwad vs. State of Maharashtra, reported in 2013(6) Scale 778, wherein, it is held that the principle of sub-section (3) of section 357 of CrPC is empowering the Court to award compensation and Hon ble Apex Court has referred to catena of decisions, and on going through the entire record, it is found that the incident is of the year 1998 which was a free fight between combat with or without weapon. The complaint which is given by the police official shows that there was a combat going on between two groups. The police also fired in air and it was a heat of moment which had picked up the quarrel with other group. The other rival group has been granted benefit of doubt and have been acquitted by the same learned Judge, whereas, out of 19 accused persons, accused no. 1 had died during the trial. Five accused, i.e. accused no. 1,6,7,8 and 14 have been imposed conviction under sec. 323 of IPC read with sec. 135 of the Bombay Police Act and against the same, the State has preferred Appeal and Accused no. 17 has been convicted for life under section 302 of IPC. The learned trial Judge has not believed the commission of offence under sec. 143, 144, 147, 148 and 149 of IPC and acquitted all these six accused.
10. In this case, after the injury was inflicted, the injured fell down. He was not a person of either group. The injury shows that there was only one injury on the deceased and he was not inflicted any other injury thereafter by the accused persons, and therefore, para-11 of the decision in the case of Ankush Shivaji Gaekwad (supra) would apply in full force in the facts of this case as it goes to show that in the heat of passion followed by a fight, the accused persons had caused injury to the deceased.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. The ingredients which are required are that there should be no motive. We are of the opinion that the culpable homicide is there, but it would fall within the provisions of section 304 Part-I and not part-II of IPC, as submitted by the learned advocate for the appellant. In this case, ends of justice would be met if the widow of the deceased (who is not belonged to either of the group) or his legal heirs are compensated. A suggestion was made that amount of Rs. 3,50,000/- is to be paid by the accused as fine under sec. 357 of CrPC. The factual scenario and the manner of assault, in our considered view, the appropriate conviction shall be under section 304 Part-I of IPC, and to that extent, the Criminal Appeal No. 1131/2007 and Criminal Appeal No. 1225/2007 require to be partly allowed.
18. So far as the acquittal appeal being Criminal Appeal No. 687/2008 is concerned, 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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]
26. 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.
27. 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,no overt act has been found to have been committed by the respondents. 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.
28. Ms. CM 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.
29. 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, the appeal being Criminal Appeal No. 687/2008 requires to be dismissed.
30. In the result, Criminal Appeal No. 1131/2007 & Criminal Appeal No. 1225/2007 preferred by the Appellants- original accused, are partly allowed and Criminal Appeal No. 687/2008 preferred by the State is dismissed. The impugned judgment and order of conviction and sentence dated 7.8.2007 passed by the learned Addl. Sessions Judge & Presiding Officer, 5th Fast Track Court, Rajkot is modified as under:
31. The appellants of Criminal Appeal No. 1131/2007 & Criminal Appeal No. 1225/2007, in all, shall pay an amount Rs. 3,50,000/- by way of compensation under sec. 357 of CrPC. The conviction and sentence imposed upon Original Accused No. 17 of Criminal Appeal No. 1225/2007 under section 302 of IPC to undergo life imprisonment, is altered and he is convicted under section 304 Part-I of IPC and sentenced to undergo 10 years imprisonment but the same is suspended and he is ordered to be set at liberty, forthwith. Similarly, the sentences imposed upon the Appellants original Accused No. 1,6,7,8 and 14 of Criminal Appeal No. 1131/2007 are maintained but shall stand suspended and their bail and bail bonds stand discharged.
32. Appellant- original Accused No. 17 shall pay an amount of Rs. 2,50,000/- and rest of the amount shall be paid by other accused, i.e. Original accused no. 1,6,7,8 and 14 of Rs. 20,000/- each, after deducting the amount, which they have already paid before the trial Court by way of fine, within a period of eight weeks. If any of them does not pay the amount as ordered, for Accused No. 17, in default, to undergo four years imprisonment and for accused No. 1,6,7,8 and 14, the sentences awarded by the learned trial Judge shall stand revived.
33. Out of total amount of Rs. 3,50,000/-, the State shall get Rs. 6000/-, and remaining amount of Rs. 3,44,000/- shall be paid to the widow of deceased Hardevsinh alias Harvijaysinh Popatbha or his legal heirs by way of compensation under sec. 357 of Code of Criminal Procedure.
R & P to be sent back to the trial Court, forthwith.
(K.S.JHAVERI, J.) (K.J.THAKER, J) mandora Page 28 of 28