Gujarat High Court
State Of Gujarat vs Mukeshbhai Hirabhai ... on 29 October, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, G.B.Shah
R/CR.A/92/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 92 of 2006
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 GUJARAT....Appellant(s)
Versus
MUKESHBHAI HIRABHAI MAKWANA....Opponent(s)/Respondent(s)
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Appearance:
MS. C.M. SHAH, APP for the Appellant(s) No. 1
MR YATIN SONI, 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
Date : 29/10/2015
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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 31.05.2005, passed by the Additional Sessions Judge, Fast Track Court No.1, Bhavnagar, in Sessions Case No.19 of 2004, whereby the Trial Court has acquitted the respondent hereinoriginal accused for the offence punishable under Sections 363, 376, 302 of the Indian Penal Code (for short "the I.P. Code").
2. A complaint was filed by the complainantBaghabhai Lakhubhai, inter alia alleging that the respondentaccused was working as a servant in the house of the complainant. It is alleged in the complaint that on 12.10.2003, the mother of the complainant and his wife had gone out of station for social work. The complainant and other family members were working in the field. At about 2 pm. when the complaint came to his house for taking meal, he did not find his minor daughter and the respondentaccused and therefore, he started searching his daughter and the respondentaccused. On the next day, the dead body of minor daughter of the complainant was found in a naked condition. It is also alleged that there were injuries on the private parts of the deceased. Hence, the complaint was filed against the respondentaccused.
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3. The investigation was taken up and after usual investigation, chargesheet came to be filed against the accused person. The offence committed by the accused person were exclusively triable by the Court of Sessions. Therefore, the learned Magistrate committed the case to the Sessions Court at Bhavnagar, under Section 209 of the Code of Criminal Procedure, 1973, where it was registered as Sessions case No.19 of 2004. Charge vide Exhibit8 came to be framed against the accused. He pleaded not guilty and claimed to be tried.
3.1. In order to bring home the charge against the accused persons, the prosecution examined the following witnesses: Sl. No. Name of the Witness Ex. No. 1 Dr. Anil Moti Yadav 14 2 Bipinbhai Devshankarbhai Pandya 19 3 Vasantrai Ratilal 22 4 Anubha Danubha Gohil 31 5 Mamaiyabhai Sumarabhai 33 6 Vikrambhai Lakhubhai 35 7 Dadubhai Bhurabhai 36 8 Danubhai Sursangbhai 37 9 Ugabhai Visabhai 38 10 Ghughabhai Chhanabhai 39 11 Vikramsinh Bharatsinh 40 12 Prabhudas Vallabhdas 41 Page 3 of 13 HC-NIC Page 3 of 13 Created On Thu Nov 05 00:02:07 IST 2015 R/CR.A/92/2006 JUDGMENT 13 Vijuben Ghughabhai 42 14 T.N.Ashra 43 15 Baghabhai Lakhubhai 46 16 Ashaben Baghabhai 48 17 Lakhubhai Vajsurbhai 49 18 Dolubhai Lakhabhai 53 19 Girvansinh Laghuba Vala 54 20 Paragbhai Bharatbhai Chauhan 58 21 Balwantsinh Himmatsinh Chavda 59 22 Panchuben Hakubhai 60 23 Bhabhlubhai Raningbhai 68 24 Rajanbhai Kantilal Ladva 69 3.2. The prosecution also produced and relied upon the following documentary evidence during the course of the trial: Sl. No. Particulars Exh. No. 1 Map of scene of offence 17 2 Panchnama regarding seizure of muddamal 23 cloths 3 Arrest Panchanma 27 4 FSL report 74 5 Serological report 76
4. After conclusion of the trial, further statements under Section 313 of the Code of Criminal Procedure, 1973 of the accused came to be recorded. The defence in the further statement is of total Page 4 of 13 HC-NIC Page 4 of 13 Created On Thu Nov 05 00:02:07 IST 2015 R/CR.A/92/2006 JUDGMENT 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 acquittal against the accused, as aforesaid. Therefore, the present appeal.
5. Learned APP, Ms. Shah for the appellantState, submitted that the trial court has not properly appreciated oral as well as documentary evidence produced on record. It is further submitted that the Trial Court has committed error in acquitting the respondentaccused for the offence punishable Sections 363, 376 and 302 of the I.P. Code. Ms. Shah, learned APP further submitted that from the evidence of the material witnesses it is established that minor girl of the complainant has been kidnapped and raped by the accused. Therefore, she urged that this Court may allow this appeal and convict the respondent accused for the offence punishable under Sections 363, 376 and 302 of the I.P. Code.
6. On the other hand, Mr. Soni, learned advocate for the respondentaccused submitted that the trial court has rightly appreciated oral as well as documentary evidence produced on record and the reasons assigned by the trial Court are reasonable and justifiable. Therefore, he urged that this Court may not interfere with the impugned judgment and order of the trial Court.
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7. We have heard Ms. C.M.Shah, learned APP appearing for the appellantState and Mr. Soni, learned advocate appearing for the respondentoriginal accused. Learned advocates for the parties 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 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 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 Page 6 of 13 HC-NIC Page 6 of 13 Created On Thu Nov 05 00:02:07 IST 2015 R/CR.A/92/2006 JUDGMENT 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 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 Page 7 of 13 HC-NIC Page 7 of 13 Created On Thu Nov 05 00:02:07 IST 2015 R/CR.A/92/2006 JUDGMENT 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 & 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 Page 8 of 13 HC-NIC Page 8 of 13 Created On Thu Nov 05 00:02:07 IST 2015 R/CR.A/92/2006 JUDGMENT 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, 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 Page 9 of 13 HC-NIC Page 9 of 13 Created On Thu Nov 05 00:02:07 IST 2015 R/CR.A/92/2006 JUDGMENT 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, 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 Page 10 of 13 HC-NIC Page 10 of 13 Created On Thu Nov 05 00:02:07 IST 2015 R/CR.A/92/2006 JUDGMENT 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 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 Page 11 of 13 HC-NIC Page 11 of 13 Created On Thu Nov 05 00:02:07 IST 2015 R/CR.A/92/2006 JUDGMENT 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 and order 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 accusedrespondent herein for the offence punishable under Sections 363, 376 and 302 of the I.P. Code. Further, neither postmortem of the dead body was done nor any medical evidence on record to connect the respondentaccused with the crime in question. The Trial Court in paragraph Nos. 8 to 14 has given cogent and convincing reasons for acquitting the respondentaccused. We are in complete agreement with the findings recorded by the Trial Court. Apart from that, the learned APP 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 Page 12 of 13 HC-NIC Page 12 of 13 Created On Thu Nov 05 00:02:07 IST 2015 R/CR.A/92/2006 JUDGMENT 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 accusedrespondents herein for the offence under Sections 363, 376 and 302 of the I.P. Code. Hence, this appeal lacks of merit.
15. For the foregoing reasons, the present appeal is dismissed. The impugned judgment and order under challenge is hereby confirmed. Bail bond, if any, stands cancelled. Record & Proceedings, be sent back to the trial court concerned forthwith.
(K.S.JHAVERI, J.) (G.B.SHAH, J.) pawan Page 13 of 13 HC-NIC Page 13 of 13 Created On Thu Nov 05 00:02:07 IST 2015