Gujarat High Court
The State Of Gujarat vs Popatbhai Bhalabhai Alias on 4 September, 2013
Bench: Ks Jhaveri, K.J.Thaker
THE STATE OF GUJARAT....Appellant(s)V/SPOPATBHAI BHALABHAI ALIAS BHARABHAI BHARWAD
R/CR.A/379/1993
JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 379
of 1993
FOR
APPROVAL AND SIGNATURE:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE K.J.THAKER
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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THE STATE OF
GUJARAT....Appellant(s)
Versus
POPATBHAI BHALABHAI ALIAS
BHARABHAI BHARWAD & Respondent(s)
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Appearance:
MR.
K.P. RAVAL, APP, for the Appellant(s) No. 1
MR
VM PANCHOLI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 3
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CORAM:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE K.J.THAKER
Date : 04/09/2013
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of the present appeal under Section 378 of the Code of Criminal Procedure, 1973, the appellant has challenged the judgement and order of acquittal dated 9.11.1992 passed by learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, in Sessions Case No. 28 of 1991 whereby the respondents-original accused were acquitted of the charges under Sections 366, 376(2)(J), 323, 34 and 114 of the Indian Penal Code.
2. The brief facts of the prosecution case are that on 28.6.1990 at about 10.30 p.m. the complainant victim while going to Jamalpur by autorickshaw, the respondents-original accused intercepted the autorickshaw. They assaulted the rickshaw driver and he ran away from the place. Thereafter, the accused took the complainant victim to lonely place with an intention to commit rape on her. The complainant resisted the accused and ultimately she resigned to them. Accused Nos. 1 and 2 committed rape on her whereas accused No. 3 abetted in the said offence. Therefore, a complaint in this regard was filed. On the basis of the complaint, investigation was carried by the police. After completion of investigation, chargesheet was filed. As the case was triable by the Court of Sessions, it was committed to the Court of Sessions.
2.1 The trial Court framed charges against the accused persons. It was read over and explained to the accused. The accused pleaded not guilty to the charges and claimed to be tried. Therefore, the prosecution produced evidence against the accused persons. Further statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The trial Court, after considering the evidence on record, acquitted the accused of the charges by the aforesaid judgement and order.
3. Learned APP Mr. Raval for the appellant has contended that in order to prove the case against the accused, the prosecution has examined the following witnesses:
1. Prosecutrix, PW-1 at Exh. 7
2. Dr. Digant Kalidas, PW-2, at Exh. 9
3. Rajnikant Ratilal, PW-3, at Exh. 12
4. Rasulbhai Ahmedhussain, PW-4 at Exh. 14
5. Narendrakumar Mohanlal, PW-5, at Exh. 16
6. Mohmmad Iqubal Mohmmadkarim, PW-6 at Exh. 18
7. Bhikhabhai Shivabhai, PW-7, at Exh. 20
8. Nikulsinh Mahipsinh, PW-8, at Exh. 22
9. Dr. Satish Madhusudhan Pandya, PW-9, at Exh. 24
10. Jaggannath Sitaram, PW-10, at Exh. 31 3.1 The prosecution has relied on the following documents:
1. Complaint at Exh. 8
2. Medical Certificate of victim at Exh. 10
3. Panchnama of place of incident at Exh. 13
4. Panchnama of recovery of cloths of victim at Exh. 15
5. Panchnama of physical condition of the accused at Exh. 17
6. Medical Certificate of victim at Exh. 25
7. Medical Certificate of accused No. 1 at Exh. 26
8. Report of accused No. 1 at Exh. 28
9. Medical Cerfificate of accused No. 2 at Exh. 29
10. Panchnama at Exh. 32
11. FSL Reports at Exhs. 36 & 37 3.2 Learned APP Mr. Raval for the appellant has submitted that the defence has also examined two defence witnesses, namely:
Abdulsattar Nurmahmmad, DW-1 at Exh. 38 and Satisbhai Mumanbhai, DW-2 at Exh. 39. He has further contended that the trial Court has committed error in not believing the evidence of the prosecutrix and discarding the evidence of the other witnesses and the medical evidence. He submitted that the trial Court ought to have considered that in case of rape, there cannot be any eye witness to such incident. The trial Court ought not to have believed the version of the defence witnesses. In that view of the matter, the judgement and order of the trial Court is required to be set aside.
4. Learned advocate for the respondents-accused Mr. Pancholi has supported the order of the trial Court and submitted that as per the medical evidence, no external injuries were seen on the body of the complainant victim. Therefore, the say of the complainant is unbelievable. He further submitted that even though the complainant came to know that her husband was at the house of his parents, there was need to go for search of her husband at late night hours. He further submitted that even the rickshaw driver in whose rickshaw the complainant had gone in search of her husband was not examined by the prosecution. In that view of the matter, learned counsel for the respondents-original accused submitted that the judgement and order of the trial Court is not required to be interfered with.
5. We have heard learned counsel for the parties. 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 S.C.C. 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:
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 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 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 thebasis 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 the case of State of Goa V. 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 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 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.
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 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 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 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 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 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 Mookkiah 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 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 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] 5.7.
It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite 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 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.
5.8 In the recent decision, the Hon ble Apex Court in SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA reported in JT 2013(7) SC 66 has held as under:
That appellate Court is empowered to re-appreciate 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.
5.9 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. The trial Court has given its findings for acquitting the accused that as per the medical certificate no injuries were found on the body of the complainant and the medical evidence does not corroborate with the version of the complainant. The trial Court has also observed that no marks of recent intercourse found during the medical examination of the complainant by Dr. Satish Pandya, PW-9. Even report of the Forensic Science Laboratory reveals absence of semen of the accused from the vaginal swab of the complainant. Therefore, the trial Court has observed that prosecution has failed to prove the case against the accused persons. Considering the evidence on record no case for abduction is made out. Even no case for offence under Section 323 of the Indian Penal Code is made out by the prosecution. In that view of the matter, we are of the opinion that the view taken by the trial Court in acquitting the accused of the charges levelled against them is just and proper and no no interference is called for with the same.
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 them 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. Hence, the appeal is dismissed. Bail bonds stand cancelled.
(K.S.JHAVERI, J.) (K.J.THAKER, J) (pkn) Page 11 of 11