Gujarat High Court
State Of Gujarat vs Bipinchandra Prabhudas Champanaria & on 31 March, 2016
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/877/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 877 of 2004
FOR APPROVAL AND SIGNATURE:
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 or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
BIPINCHANDRA PRABHUDAS CHAMPANARIA &
1....Opponent(s)/Respondent(s)
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Appearance:
MR AR RINDANI, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR MM TIRMIZI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 31/03/2016
ORAL JUDGMENT
1. By way of this appeal, the State has felt aggrieved by the acquittal of the original accused recorded by the First Appellate Court being 4th District and Special Judge, Fact Track Court No.4, Rajpipla, in Criminal Appeal No. 28 of 2002 by order dated 20.10.2003, whereby, it upturned the judgment and order of the learned Page 1 of 12 HC-NIC Page 1 of 12 Created On Wed Apr 06 01:17:44 IST 2016 R/CR.A/877/2004 JUDGMENT JMFC of conviction and acquitted both the accused, who were facing the trial for the commission of offence under Section 452, 325, 504, 506(2)and 114 of the IPC and under Sections 3 and 7 of the Protection of Civil Rights.
2. The brief facts of the case are that the alleged incident occurred on 03.09.1988 at about 04:00 p.m., at the place known as Vadiya Palace compound, where the accused No.1 and the complainant were residing opposite to each other. It is alleged that both the accused entered the premises of the complainant and started quarreling with the complainant, saying that as to why did you give banana to daughter of accused No.1. The accused also issued threats to the complainant of dire consequences and also hurled abuses at him about his caste. The accused No.1 was aided by accused No.2 in beating the complainant with stick and that is how the fracture injury was caused to the complainant. Hence, the complainant lodged the complaint.
3. After the complaint was lodged and the accused were arrested, they were produced before the court of the learned JMFC, as the case was triable by him. The accused were charged with the offence, as per Exhibit-5. However, they did not plead guilty. The prosecution examined as many Page 2 of 12 HC-NIC Page 2 of 12 Created On Wed Apr 06 01:17:44 IST 2016 R/CR.A/877/2004 JUDGMENT as nine witnesses and also produced documentary evidences, four in numbers.
4. The learned Magistrate framed four issues for determination and he held all the four issues against the accused persons. However, on appeal being preferred by the accused against the same, the First Appellate Court hold all the aforesaid four issues in favour of the accused persons and acquitted them by giving them benefit of doubt.
5. Mr. Rindani, learned APP, submitted that the first appellate Court committed a grave error in allowing the appeal being Criminal Appeal No. 28 of 2002 vide impugned order dated 20.10.2003. He submitted that the learned Magistrate had appreciated the oral as well as documentary evidences, more particularly, the deposition of Karsanbhai Kanjibhai Rohit vide Exhibit-75, who was an eye-witness, and that the First Appellate Court wrongly took into account the minor discrepancies in his evidence, while upturning the judgment of the learned Magistrate. He submitted that the injury certificate showed that the injured had sustained fracture injury, and therefore, the First Appellate Court could not have disbelieved the same on the basis that as there are varying certificates issued by the Page 3 of 12 HC-NIC Page 3 of 12 Created On Wed Apr 06 01:17:44 IST 2016 R/CR.A/877/2004 JUDGMENT doctors vide Exhibits-84 and 87, and that no x- ray report was produced, though, the doctor had deposed that the x-ray was taken. The son of the complainant had also deposed against the accused persons and the First Appellate Court could not have brushed aside his evidence. He, therefore, prayed to allow the present appeal.
6. On the other hand, Mr. Tirmizi, learned Advocate for the original accused, submitted that the learned First Appellate Court has given cogent reasons in Paragraph-13 of the impugned judgment and order, while upturning the order of the Magistrate by relying on a catena of decisions of the Apex Court as well as of this Court, wherein, it has been laid down that the evidence of the close relatives is to be scrutinized minutely. He submitted that in this case, FIR is silent about availability of any independent witness, though, the evidence which emerges from the record, indicates that there were independent persons present, who were residing nearby and despite that the prosecution has examined only interested witnesses, viz. The complainant, himself, his son and Karsanbhai Kanjibhai Rohit, who also belonged to the same community and was the close friend of the complainant. In view of the above, we have to look into the matter from the touchstone of the Page 4 of 12 HC-NIC Page 4 of 12 Created On Wed Apr 06 01:17:44 IST 2016 R/CR.A/877/2004 JUDGMENT decisions of the Hon'ble Apex Court right from 1991 to 2014.
7. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of "M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR", (2006) 6 S.C.C. 39, the Apex Court has narrated 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 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."
8. 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 ourconsidered view, the following general principles regarding powers of the appellate Court while dealing with an Page 5 of 12 HC-NIC Page 5 of 12 Created On Wed Apr 06 01:17:44 IST 2016 R/CR.A/877/2004 JUDGMENT 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 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.
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[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."
9. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views / 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. Even in the case of "STATE OF GOA Vs. 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 Page 7 of 12 HC-NIC Page 7 of 12 Created On Wed Apr 06 01:17:44 IST 2016 R/CR.A/877/2004 JUDGMENT 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."
11. Similar principle has been laid down by the Apex Court in cases of "STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS.", 2007 A.I.R. S.C.W. 5553 and in "GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP", 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
12. 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 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 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 Page 8 of 12 HC-NIC Page 8 of 12 Created On Wed Apr 06 01:17:44 IST 2016 R/CR.A/877/2004 JUDGMENT 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."
13. 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 Page 9 of 12 HC-NIC Page 9 of 12 Created On Wed Apr 06 01:17:44 IST 2016 R/CR.A/877/2004 JUDGMENT 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]."
14. It is also a settled legal position that in acquittal appeals, 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", 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."
15. In a recent decision, the Hon'ble Apex Court in "SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA", JT 2013 (7) SC 66 has held as under;
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"That appellate Court is empowered to reappreciate 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."
16. Further, in the case of "STATE OF PUNJAB VS. MADAN MOHAN LAL VERMA", (2013) 14 SCC 153, the Apex Court held as under;
" The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by brining on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all Page 11 of 12 HC-NIC Page 11 of 12 Created On Wed Apr 06 01:17:44 IST 2016 R/CR.A/877/2004 JUDGMENT reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convincing the accused person."
17. In view of the above discussion, I am of the opinion that the First Appellate Court committed no error in passing the impugned judgment and order acquitting the original accused-opponent Nos. 1 and 2, herein, and hence, the present appeal deserves to be dismissed.
18. In the result, this appeal fails and is DISMISSED. The judgment and order of the first appellate Court, Dated : 20.10.2003, stands CONFIRMED. Bail bonds of the accused, if any, on bail, stands discharged. R&P be sent back to the concerned trial Court, forthwith.
(K.J.THAKER, J) UMESH Page 12 of 12 HC-NIC Page 12 of 12 Created On Wed Apr 06 01:17:44 IST 2016