Gujarat High Court
The State Of Gujarat vs Imran @ Chinmay Fakir on 4 November, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, G.B.Shah
R/CR.A/341/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 341 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
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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 ?
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THE STATE OF GUJARAT....Appellant(s)
Versus
IMRAN @ CHINMAY FAKIR
MAHAMMADDIWAN....Opponent(s)/Respondent(s)
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Appearance:
MS CM SHAH, ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR. YOGENDRA THAKORE, ADVOCATE for the Opponent(s)/Respondent(s)
No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
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Date : 04/11/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgement and order dated 09.10.2006 passed by the Additional Sessions Judge, Fast Track Court No. 2, Bharuch in Sessions Case No. 131 of 2005 whereby the accused has been acquitted of the charges leveled against him.
2. The brief facts of the prosecution case are that on 16.03.2005, the deceased Shabanaben had received burn injuries and was therefore admitted at Palej Community Health Center and thereafter she was shifted to Bharuch Civil Hospital for further treatment. During that period i.e. on 24.03.2005, the deceased had stomach pain and she informed Firoz Khan Pathan that about five months prior to the incident when she was alone at her house, the respondent came there and forcefully committed rape on her and also threatened her that if she informed anybody about the incident she would be killed. Thereafter, she gave birth to a dead child. A complaint was therefore lodged by the complainant - deceaesed. The deceased however succumbed to the burn injuries. Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Court of Sessions.
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2.1 The trial Court framed charge against the accused. The
accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced the following witnesses as oral evidence whose evidence have been read out before us :
P.W. Name of Witness Exhibit
No. No.
1 Dr. Rajiv Nandankumar 16
2 Valibhai Aadambhai Patel 22
3 Dr. Dilip Patel 25
4 Sanjaybhai Lallubhai Vasava 29
5 Yakub Malek 32
6 Asif Malek 37
7 Dr. Avinav Sharma 41
8 G.S. Bariya 46
9 Dr. R.R. Jha 63
10 Mohanbhai Ranchhodbhai 69
11 Anandrao Narayan 73
2.3 The prosecution also relied upon the following
documents as documentary evidences which have been perused by us such as post mortem report at Ex. 20, Panchnama of scene of offence at Ex. 23, Cause of death certificate by Rangoon Hospital at Ex. 26, FSL Gandhinagar Report at Ex. 53, Dying declaration at Ex. 76, inquest panchnama at Ex. 79 etc. 2.4 At the end of the trial and after recording the further 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 acquitted the accused.
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Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the State has preferred the present appeal.
3. Ms. C.M. Shah, learned APP appearing for the appellant- State has submitted that the trial court committed an error in releasing the respondents-accused. It was contended by Ms. Shah that the judgement and order of the Sessions Court is against the provisions of law; 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 the present respondents. Learned APP has also taken this court through the oral as well as the entire documentary evidence.
4. Mr. Thakore, learned advocate appearing for the respondent supported the impugned judgement and order and submitted that the same having been passed in accordance with law does not call for any interference. It is submitted that the prosecution has failed to prove the case against the respondent beyond reasonable doubt.
5. 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 Page 4 of 11 HC-NIC Page 4 of 11 Created On Sat Nov 07 01:29:54 IST 2015 R/CR.A/341/2007 JUDGMENT 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."
5.1 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 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 Page 5 of 11 HC-NIC Page 5 of 11 Created On Sat Nov 07 01:29:54 IST 2015 R/CR.A/341/2007 JUDGMENT 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."
5.2 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.
5.3 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 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 Page 6 of 11 HC-NIC Page 6 of 11 Created On Sat Nov 07 01:29:54 IST 2015 R/CR.A/341/2007 JUDGMENT 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."
5.4 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.
5.5 In the case of Luna Ram Vs. Bhupat Singh and Ors. reported in (2009) SCC 749,the Apex Court in paras 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 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 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 a running condition.
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11. 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."
5.6 Even in a recent decision of the Apex Court in the case of Mookiah 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:
4.It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution anddefence, acquitted the accused in respect of th e 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 34of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Co urt has exceeded its jurisdiction in upsetting the order ofacquittal into conviction, let us analyze the scope and power of theHigh Court in an appeal file d against the order of acquittal.ThisCourt in a serie s of decisions has repeatedly laid down that as the first appellate court the High Court even while dealing with an appeal against acquittal,wasalso entitled,andobliged as well, to sc an through and if need be reappreciatethe entire evidence, though while choosing to interfere onlyth e court should find an absolute assurance of the gui lt on the basis of the evidence on record and not merely becausethe High Court could take one mo re possible or a differentview only. Except the abo ve, where the matter of the extentand depth of con sideration 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, Page 8 of 11 HC-NIC Page 8 of 11 Created On Sat Nov 07 01:29:54 IST 2015 R/CR.A/341/2007 JUDGMENT (2004) 5 SCC 573]"
5.7 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 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."
5.8 Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence at length is not necessary.
6. We have examined the matter carefully and gone through the evidence on record. We have appreciated, reappreciated and re-evaluated the evidence on the touchstone of latest decision of the Hon'ble Apex Court. We find that the trial Court while considering the evidence on record, has very elaborately discussed the evidence on record. The death of the deceased was after around 9 years of the alleged incident of burns and she had died due to septicemia. The cause of accident is reported by the victim herself at Ex. 77 and 80. The victim had not informed about the alleged incident of rape on her. It was only when the stomach pain Page 9 of 11 HC-NIC Page 9 of 11 Created On Sat Nov 07 01:29:54 IST 2015 R/CR.A/341/2007 JUDGMENT started, she informed that she was allegedly raped by the accused. It is required to be noted that the deceased - victim was more than 19 years old. It is borne out that there had been a love affair between the accused and the deceased and the deceased had entered into a physical relationship with the accused more than once. The version given by the deceased seems to be an afterthought. The prosecution has failed to adduce any evidence in this regard. The trial court has observed that the victim had consented to the sexual intercourse and in fact she had not informed her family members about the pregnancy. We find that the trial court has rightly and elaborately discussed the evidence which does not call for interference by this Court.
7. Further, 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 Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In above view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgement and order.
8. We are, therefore, of the considered opinion that the findings recorded by the trial Court in acquitting the accused of the charge levelled against him 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 and the findings arrived at by the trial Court. No interference is warranted with the judgement and order of the trial Court.
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9. Accordingly, appeal is hereby dismissed. The judgement and order dated 09.10.2006 passed by the Additional Sessions Judge, Fast Track Court No. 2, Bharuch in Sessions Case No. 131 of 2005 is confirmed qua the acquittal of the respondents. Bail bond, if any, shall stand cancelled. R & P, if lying with this court, to be sent back forthwith.
(K.S.JHAVERI, J.) (G.B.SHAH, J.) divya Page 11 of 11 HC-NIC Page 11 of 11 Created On Sat Nov 07 01:29:54 IST 2015