Gujarat High Court
State Of Guj vs Kesarisinh G Jhala & ... on 25 August, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, G.B.Shah
R/CR.A/677/1994 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 677 of 1994
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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STATE OF GUJ....Appellant(s)
Versus
KESARISINH G JHALA & 2....Opponent(s)/Respondent(s)
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Appearance:
MS. C.M. SHAH, APP for the Appellant(s)
MR PRAVIN GONDALIYA, ADVOCATE for the Opponent(s)/Respondent(s)
No. 1 , 3
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 25/08/2015
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ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. By way of this appeal, the appellantState of Gujarat has challenged the judgment and order dated 02.04.1994 passed by the learned Assistant Sessions Judge, Mehsana, in Sessions Case No.231 of 1991, whereby the learned Trial Court has acquitted original accusedrespondents herein for the offence punishable under Sections 307 read with Section 34 of the Indian Penal Code (for short "the I.P. Code"), under Section 25(C) of the Arms Act and under Section 135 of the Bombay Police Act.
2. The case of the prosecution as disclosed during the trial is that on 9.10.1990 at about 4:30 pm., the complainant and his son namely Vikramsinh were harvesting the crop at their filed. At that time, the respondentsoriginal accused came there and asked the complainant as to why he executed the Will of Chanchalba and Kesarsinh Gabhuji in his favour and fired with local gun, but no injuries were caused to anybody. It is also alleged that the accused persons inflicted blows with scythe and stick to the complainant and when the son of the complainant tried to intervene they also inflicted blow to him. A complaint in respect of this incident was lodged by the complainant.
3. The investigation was taken up and after usual Page 2 of 13 HC-NIC Page 2 of 13 Created On Mon Sep 07 01:15:48 IST 2015 R/CR.A/677/1994 JUDGMENT investigation, chargesheet came to be filed against the accused persons. The offence committed by the accused were exclusively triable by the Court of Sessions. Therefore, the learned Magistrate committed the case to the Sessions Court at Mehsana under Section 209 of the Code, where it was registered as Sessions case No.231 of 1991. Charge vide Exhibit20 came to be framed against the accused person. They pleaded not guilty and claimed to be tried. 3.1. In order to bring home the charge against the respondents, the prosecution examined the following witnesses: Sl. No. Name of the Witness Ex. No. 1 Baldevji Shivaji 34 2 Vikramsinh Baldevji 37 3 Gafurji Jiluji 38 4 Chanchalba Abuji 50 5 Bhawansinh Vharvaji Zala 52 6 Dr. Harenkumar Punjabhai Vania 56 7 Keshuji Laxmanji 61 8 Prahladbhai Somabhai Patel 64 9 Dr. Chaturbhai Shavabhai Parmar 68 10 Balwantsinh Pruthvisinh 69 3.2. The prosecution also produced and relied upon the following documentary evidence during the course of the trial.
Page 3 of 13 HC-NIC Page 3 of 13 Created On Mon Sep 07 01:15:48 IST 2015 R/CR.A/677/1994 JUDGMENT Sl.No. Particulars Exh. No. 1 List of documents 32 2 Original complaint 35 3 Original Will 36 4 Panchnama of the place of offence 53 5 Medical Certificate of Baldevji Shivaji Zala 57 6 Medical Certificate of Vikrambhai 59 Baldevji Zala
4. After conclusion of the trial, further statement under section 313 of the Code of the accused came to be recorded. The defence in the further statement is of total denial. The learned trial Judge heard the arguments of learned APP and learned advocate for the accused and after appreciating the evidence, recorded the judgment and order of conviction against the accused, as aforesaid. Therefore, the present appeal.
5. Ms. Shah, learned APP for the appellantState submitted that the Trial Court has committed an error in acquitting the respondents herein. It is further submitted by the learned APP that the Trial Court has not properly appreciated the evidence of the prosecution witnesses. According to the learned APP, the Trial Court ought to have been convicted the original accusedrespondent herein at least for the offence under Sections 326, 324 or 323 of the I.P. Code. By making the above submissions, the learned APP or the appellant Page 4 of 13 HC-NIC Page 4 of 13 Created On Mon Sep 07 01:15:48 IST 2015 R/CR.A/677/1994 JUDGMENT State urged that this Court may allow this appeal.
6. On the other hand, Mr. Gondaliya, learned advocate for the original accusedrespondents herein has supported the impugned judgment and order of the Trial Court. He further submitted that the Trial court has rightly acquitted the original accusedrespondents herein as there are serious contradictions in the oral testimony of material witnesses. Therefore, he urged that this Court may not allow this appeal.
7. We have heard Ms. Shah, learned APP for the appellant State and Mr. Gondaliya, learned advocate for the original accused respondent herein. Learned advocates on either side have taken us through the documentary and oral evidence on record. We have independently and dispassionately applied our mind to this 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.
8. 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 Page 5 of 13 HC-NIC Page 5 of 13 Created On Mon Sep 07 01:15:48 IST 2015 R/CR.A/677/1994 JUDGMENT 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 wellsettled 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."
9. 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, 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
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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."
10. 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.
11. Even in the case of State of Goa V. Sanjay Thakran & Page 7 of 13 HC-NIC Page 7 of 13 Created On Mon Sep 07 01:15:48 IST 2015 R/CR.A/677/1994 JUDGMENT 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."
11.1. 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, Page 8 of 13 HC-NIC Page 8 of 13 Created On Mon Sep 07 01:15:48 IST 2015 R/CR.A/677/1994 JUDGMENT are well settled.
11.2. 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 socalled 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 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. 11.3. 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, Page 9 of 13 HC-NIC Page 9 of 13 Created On Mon Sep 07 01:15:48 IST 2015 R/CR.A/677/1994 JUDGMENT 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 appellant 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] 11.4. It is also a settled legal position that in acquittal appeal, 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, 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 Page 10 of 13 HC-NIC Page 10 of 13 Created On Mon Sep 07 01:15:48 IST 2015 R/CR.A/677/1994 JUDGMENT 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." 11.5. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors Vs. State of Karnataka, reported in JT 2013(7) SC 66.
12. 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.
13. We have perused the impugned judgment of the learned Trial Court. We have also perused the oral as well as documentary evidence led before the Trial Court and also considered the submissions made by learned advocates for both the parties and found that the prosecution has not been able to prove the case against the present respondentsoriginal accused and therefore, we are of the considered opinion that the trial Court has rightly acquitted the original accusedrespondents herein for the offence punishable under sections 307 read with Section 34 of the I.P. Code, under Section 25(C) of the Arms Act and under Section 135 of the Bombay Police Act. Further, we find that there are material omissions and contradictions in the oral testimony of eye witnesses and the medical evidence does not support the case of the prosecution. Apart from that, learned APP Page 11 of 13 HC-NIC Page 11 of 13 Created On Mon Sep 07 01:15:48 IST 2015 R/CR.A/677/1994 JUDGMENT for the appellantState is not in a position to show any evidence to take a contrary view in 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.
14. In that view of the matter, we are in complete agreement with the reasons recorded by the learned Trial Court in respect of acquitting the original accusedrespondent herein for the offence punishable under Sections 307 read with Section 34 of the IP Code, under Section 25(C) of the Arms Act and under Section 135 of the Bombay Police Act. Hence, this appeal lacks of merits.
15. For the foregoing reasons, the present appeal is dismissed. The impugned judgment and order dated 02.04.1994, passed by the learned Assistant Sessions Judge, Mehsana, in Sessions Case No.231 of 1991 is hereby confirmed. Bail bond, if any, stands discharged. Record & Proceedings, be sent back to the trial court concerned forthwith.
(K.S.JHAVERI, J.)
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(G.B.SHAH, J.)
pawan
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