Gujarat High Court
State vs Jignesh on 18 March, 2009
Author: K.S.Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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CR.A/2217/2008 1/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2217 of 2008
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
JIGNESH
@ JIGO CHETANBHAI SOLANKI & 2 - Opponent(s)
=========================================================
Appearance
:
MR.
RC KODEKAR APP for
Appellant(s) : 1,
None for Opponent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 18/03/2009
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE KS JHAVERI) The present appeal, under section 378 of the Code of the Criminal Procedure, 1973 is directed against the judgment and order of acquittal dated 05.6.2008 passed by the Additional Sessions Judge, Fast Track Court No.4, Vadodara in Sessions Case No. 122 of 2007, whereby the accused has been acquitted of the charges leveled against him.
2.0 The brief facts of the prosecution case are as under:
2.1 The complainant's husband has expired 14 years prior to incident and she is having two sons and one daughter viz., Daksha. Nimisha had married at Surat and residing in her matrimonial house and having two sons viz., Anil and Satish. Said Satish was residing with the brother of the complainant viz., Dahabhai at Mumbai and doing job. On 7.5.2005, he returned from Mumbai. Satish had love affair with Sangita, who is wife of Naresh and when the said fact came to the knowledge of Naresh, he started residing at the residence of his in-laws along with Sangita and Childern. On 8.5.2007, when Satish had gone to meet Sangita the respondent- accused beaten him.
On the day of incident, the complainant was informed by Satish that the respondents- accused had threatened him to beat him and ,hence, he consumed some tablets. Hence, he was taken to S.S.G. Hospital, Vadodara, where he died.
Therefore a complaint with respect to the aforesaid offence was filed against the respondent with the Karelibaug Police Station which was registered as C.R. I. No. 131/2005. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondent was arrested and, ultimately, chargesheet was filed against him before the court of learned JMFC, Vadodara.
Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court, which was numbered as Sessions Case No.122 of 2007. The trial was initiated against the respondent. To prove the case against accused, prosecution had examined nine witnesses and produced seven documentary evidence and at the end of trial, after recording the statement of the accused under section 313 of Cr. P.C., and hearing arguments on behalf of prosecution and defence, the learned Sessions Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 05.6.2008.
Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the appellant State has preferred the present appeal It was contended by learned APP that the judgment 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 respondent. Learned APP has also taken this court through the oral as well as the entire documentary evidence.
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:
?S54. 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 trial Court below.??
4.1 Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court laid down the following principles:
?S42. 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 ?Ssubstantial and compelling reasons??,?Sgood and sufficient grounds??, ?Svery strong circumstances??, ?Sdistorted conclusions??, ?Sglaring 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 ?Sflourishes 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 mid 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.??
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.
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:
?S16. 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 view 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.??
Similar principle has been laid down by the Apex Court in the Case 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.
It is also a settled legal provision 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 V.s Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
?S......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 expressions of general agreements with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.??
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.
We have gone through the judgment 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.
While considering the Oral as well as documentary evidence in para 8 to 15, the trial court has clearly recorded a finding that the prosecution has failed to prove the involvement of any of the accused in the offence.
While considering the Medical Certificate, the trial court found that Medical Certificate is not supported the documentary evidence.
Even the panchmana has not been proved. It was contended by the prosecution that the Drug was administered forcefully , but from the evidence of P.M. note it was found that there was no mark or injury on the dead body. Nothing was found in medical history regarding the story put forward by the prosecution.
The Sessions Court has considered the evidence in depth in para 14 and has come to a conclusion that no case is made out against the present accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
Mr. Kodekar learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of a 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 the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him.
We find that the findings recorded by the trial court are absolutely just and proper and in recording the said finding, 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 is hereby dismissed.
(K.S.Jhaveri,J.) (Z.K.Saiyed,J.) *Himanshu/-
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