Gujarat High Court
State Of Gujarat vs Manabhai Shivabhai ... on 16 September, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri
R/CR.A/493/1992 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 493 of 1992
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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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STATE OF GUJARAT....Appellant(s)
Versus
MANABHAI SHIVABHAI BHANGI....Opponent(s)/Respondent(s)
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Appearance:
MS NISHA THAKORE, ADDL PUBLIC PROSECUTOR for the Appellant(s) No.
1
MR MJ DAGLI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
Page 1 of 11
R/CR.A/493/1992 JUDGMENT
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 16/09/2014
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 18.04.1992 passed by the Additional Sessions Judge, Mehsana in Sessions Case No. 219 of 1991 whereby the accused has been acquitted of the charges leveled against him by granting him benefit of doubt.
2. The brief facts of the prosecution case are that on the date of incident when the deceased came home after work and made tea for her husband - accused, he told her to earn more and bring more money in the house. The deceased and the accused had an argument over this and thereafter, in a fit of rage, the accused poured kerosene over the deceased and set her on fire. 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, Mehsana.
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 oral as well as documentary evidence. To prove the case against the accused, the prosecution has examined the following witnesses:
Page 2 of 11R/CR.A/493/1992 JUDGMENT (i) P.W. 1 Mustafa Chauhan Ex. 12 (ii) P.W. 2 Anwarbhai Chauhan Ex. 14 (iii) P.W. 3 Hasmukhbhai Shah Ex. 15 (iv) P.W. 4 Kantibhai Solanki Ex. 17 (v) P.W. 5 Hiraben Shankarbhai Ex. 18 (vi) P.W. 6 Bhanuben Rameshbhai Ex. 19 (vii) P.W. 7 Taraben Dahyabhai Ex. 21 (viii) P.W. 8 Chhotabhai Solanki Ex. 22 (ix) P.W. 9 Mangabhai Prajapati Ex. 25 (x) P.W. 10 Dr. Haresh Devchand Palekar Ex. 27 (xi) P.W. 11 Govindlal Parmar Ex. 29 (xii) P.W. 12 Dr. Sunil Chauhan Ex. 33 (xiii) P.W. 13 Amin Sval Kasiri Ex. 36 2.2 The prosecution has also relied upon the following documentary evidences: (i) Inquest Panchnama Ex. 8 (ii) Post Mortem report Ex. 28 (iii) FSL Report Ex. 23 (iv) Map of scene of offence Ex. 26 (v) Scene of offence panhnama Ex. 13 (vi) Panchnama of clothes of accused Ex. 16 2.3 At the end of the trial and after recording the 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 respondent of all the charges leveled against him by impugned judgement and order. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court Page 3 of 11 R/CR.A/493/1992 JUDGMENT the appellant State has preferred the present appeal.
3. Ms. Thakore, learned APP appearing for the appellant- State has submitted that the trial court committed an error in releasing the respondent-accused. It was contended by Ms. Thakore, 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 respondent. Learned APP has also taken this court through the oral as well as the entire documentary evidence.
4. Mr. Khan, learned advocate appearing for Mr. Dagli 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. He submitted that the prosecution has failed to prove the case against the respondent beyond reasonable doubt. He submitted that there are variations in the evidence of witnesses.
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 R/CR.A/493/1992 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 R/CR.A/493/1992 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 R/CR.A/493/1992 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.Page 7 of 11
R/CR.A/493/1992 JUDGMENT
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 R/CR.A/493/1992 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 reasonigns, 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.
6.1 We find that the trial Court while considering the evidence on record, has very elaborately discussed the dying declaration, the history recorded before the doctor, Panchnama and the medical evidence on record. The medical evidence has been extensively dealt with by the learned trial judge. The trial court has granted benefit of doubt to the Page 9 of 11 R/CR.A/493/1992 JUDGMENT accused - respondent. It shall not be out of place to mention that the courts have to be on guard to see that the dying declaration is not the result of either tutoring or prompting or a product of imagination and that due care and caution must be exercised in considering weight to be given to the dying declaration.
6.2 In the case of Somabhai Ganeshbhai Parmar vs. State of Gujarat reported in 2012 (3) GLR 2444, this Court has held that when dying declaration is doubtful of being voluntary and truthful, conviction cannot be based on same without corroboration and that the court cannot in all cases presume that dying person would not make a false statement.
6.3 Similarly in the case of Sheikh Meheboob alias Hetak and others vs. State of Maharashtra reported in AIR 2005 SC 1805, the Apex Court has held that when there are circumstances raising serious doubts as to the implicit credibility of dying declaration, the same cannot be reliable.
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. Even otherwise, the incident is of the year 1991 and we are not inclined to disturb the position which has been prevailing for these many years.
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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 by granting him benefit of doubt 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.
9. Accordingly, appeal is hereby dismissed. The judgement and order dated 18.04.1992 passed by the Addl. Sessions Judge, Mehsana in Sessions Case No. 219 of 1991 is confirmed qua the acquittal of the respondent under sections 302 of Indian Penal Code. Bail bond, if any, shall stand cancelled.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) divya Page 11 of 11