Gujarat High Court
State Of Gujarat vs Bhagwatiben Chamanlal Mohanbhai ... on 15 March, 2017
Author: A.G.Uraizee
Bench: A.G.Uraizee
R/CR.A/71/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 71 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
BHAGWATIBEN CHAMANLAL MOHANBHAI MEVADA(SUTHAR) & 3....Opponent(s)/Respondent(s)
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Appearance:
MS MONALI H BHATT, APP for the Appellant(s) No. 1
MR ABHAYKUMAR P SHAH, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 4
MR CB DASTOOR, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 15/03/2017
ORAL JUDGMENT
1. By way of this appeal, the appellantState has challenged the judgment and order of the learned 4th Fast Tract Court, Palanpur dated 29.09.2007 rendered in Special Case No.30 of 2007, whereby the learned trial Judge acquitted the original accused, the opponents herein of the Page 1 of 10 HC-NIC Page 1 of 10 Created On Mon Aug 14 10:54:09 IST 2017 R/CR.A/71/2008 JUDGMENT charges for the offence punishable under Sections 323, 504, 506(2) read with Section 114 of the Indian Penal Code and under Section 3.1(10) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.
2. The brief facts of the case of the prosecution, as set out before the learned Trial Court, read as under:
3. The complainant Rameshbhai Makwana has filed a complain against respondents before PSO Chhapi Police Station stating the fact as under: 3.1 According to complainant, it is the case of prosecution that complainant is resident of village Basu, Taluka Vadgam, Dist. Banaskantha and he belongs Valmiki Community. According to say of complainant, as there was a General Meeting of Panchayat on 5.1.2006, the complainant Rameshbhai has gone in said meeting and given an application to Sarpanch, Bhagwatiben and Talati Cum Mantri Karshanbhai Bhutadiya. On receipt of said application, the Sarpanch as well as Talati Cum Mantri, got excited and gave filthy abuses to the complainant relating to this caste with clear intention to insult the complainant in public at large, more particularly using words like "Olagana and Bhangiya". It is further the case of prosecution that accused persons have also told Page 2 of 10 HC-NIC Page 2 of 10 Created On Mon Aug 14 10:54:09 IST 2017 R/CR.A/71/2008 JUDGMENT the complainant that these Bhangiyas are habituated to give false application. At that time, complainant has replied that this is not a false application, the accused persons gave filthy abuses and pushed him away and application was given to village people for reading purpose and thereby instigated the village people. It is further the case of prosecution that at the time of incident, acdcused Maufik Rahim Chaudhari has given filthy abuses to the complainant and accused Mohmed Rahim Palasara has pushed the neck of complainant, therefore, prosecution witness Raiben Heduji intervened and save the complainant from further beating. Therefore, complainant has filed a complaint before Chhapi Police Station, which was registered at CR No. II3001/2006 for the alleged offences under Sec. 323, 504, 506(2) r.w.s. 114 of IPC and sec. 3(1)(10) of Prevention of Atrocity Act (Prevention of Scheduled Caste and Scheduled Tribe Act).
4. After completion of the Investigation, the charge sheet was filed before the Court of learned Magistrate. The offence committed by the accused person was exclusively triable by the Court of learned Additional Sessions Judge, Fast Track Court No.4, Palanpur, which was, thereafter, numbered as Special Case No.30/2007, wherein the respondents have not pleaded guilty Page 3 of 10 HC-NIC Page 3 of 10 Created On Mon Aug 14 10:54:09 IST 2017 R/CR.A/71/2008 JUDGMENT to the charges levelled against them and claimed to be tried.
5. At the end of the Trial and after recording the statement of the accused under Section 313 of Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the learned Special Judge, Palanpur acquitted the accused of all the charges leveled against them. On completion of the trial, the Sessions Court passed the judgment and order acquitting the opponents.
6. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Court, the appellantState has preferred the present Criminal Appeal.
7. Ms. Monali H. Bhatt, learned Additional Public Prosecutor vehemently, submitted that the learned Trial Judge ought to have considered the evidence of the complainantRameshbhai Bhikhabhai Makwana. It is submitted that he belonged to the scheduled caste and he produced caste certificate to prove his caste. The learned APP, further, submitted that this Criminal Appeal is required to be allowed.
8. I have heard learned APP for the appellant State and the learned advocate for the opponents and perused the material on record with their Page 4 of 10 HC-NIC Page 4 of 10 Created On Mon Aug 14 10:54:09 IST 2017 R/CR.A/71/2008 JUDGMENT assistance.
9. In view of the above, I have to appreciate the facts in this case from the touchstone of the decisions of the Honble Apex Court laying down guidelines for having acquittal appeals.
10. The principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the Trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In Para54 of the decision, the Apex Court has observed as under;
54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below.
11. 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 Page 5 of 10 HC-NIC Page 5 of 10 Created On Mon Aug 14 10:54:09 IST 2017 R/CR.A/71/2008 JUDGMENT 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.
12. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court.
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13. Even in the case of STATE OF GOA Vs. SANJAY THAKRAN & ANR. reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In Para16 of the said 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 reappreciate 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.
14. Similar principle has been laid down by the Apex Court in cases of STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS. (2007 A.I.R. S.C.W. 5553) and in GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP (2007 A.I.R. S.C.W. 5589). Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
15. In the case of LUNA RAM VS. BHUPAT SINGH AND ORS. ((2009) SCC 749), the Apex Court in Paras10 and 11 has held as under;
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10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.
11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence.
16. Even in a recent decision of the Apex Court in the case of MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU (AIR 2013 SC 321), the Apex Court in Para4 has held as under:
4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration Page 8 of 10 HC-NIC Page 8 of 10 Created On Mon Aug 14 10:54:09 IST 2017 R/CR.A/71/2008 JUDGMENT 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]
17. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of STATE OF KARNATAKA VS. HEMAREDDY (AIR 1981 SC 1417), wherein it is held as under:
...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.
18. In the recent decision, the Honble Apex Court in Shivasharanappa & ors. v/s. State of Karnataka (JT 2013 (7) SC 66) has held as under:
That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence.
19. The learned trial Judge has recorded acquittal on several grounds. It emerges from the evidence of the complainant and the witnesses that there is a political rivalry between the Page 9 of 10 HC-NIC Page 9 of 10 Created On Mon Aug 14 10:54:09 IST 2017 R/CR.A/71/2008 JUDGMENT complainant and the accused person. It further appears that the independent witnesses,, though, available have not been examined. The evidence of the complainant reveals that he is habit of filing a false complaints under the Atrocities Act. The possibility of filing of false complaint against the respondent to settle political scores cannot be ruled out.
20. I am, therefore, of the considered opinion that the findings recorded by the Trial Court in acquitting the accused of the charge leveled against them are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am in complete agreement with the reasonings given and the findings arrived at by the Trial Court. No interference is warranted with the judgment and order of the Trial Court.
21. For the foregoing reasons, the appeal fails and is hereby dismissed.
22. Record and Proceedings be sent back to the concerned trial Court, forthwith.
(A.G.URAIZEE,J) Manoj Page 10 of 10 HC-NIC Page 10 of 10 Created On Mon Aug 14 10:54:09 IST 2017