Gujarat High Court
The State Of Gujarat vs Pradeep Amarsinh @ Amubhai Parmar & on 31 January, 2017
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.J. Shastri
R/CR.A/1392/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1392 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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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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THE STATE OF GUJARAT....Appellant(s)
Versus
PRADEEP AMARSINH @ AMUBHAI PARMAR &
2....Opponent(s)/Respondent(s)
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Appearance:
MR LR POOJARI, APP for the Appellant(s) No. 1
MR ASHISH M DAGLI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 -
3
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : /01/2017
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R/CR.A/1392/2006 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. The present appeal is directed against the judgment and order dated 31st May, 2006 passed by the learned Additional Sessions Judge, Fast Track Court No.6, Junagadh, in Sessions Case No.77 of 2004 whereby present respondents-original accused were acquitted of the charges levelled against them.
2. The case of the prosecution in brief is that a complaint was filed by the complainant Ashwinbhai Babubhai alleging inter alia that on 28th July, 2004 at about 21.45 hours, accused persons in collusion with each other formed an unlawful assembly and committed murder of his brother by inflicting various blows with knife and iron rod on the body of the deceased. It was alleged that accused No.2 Pankaj Popat and accused No.1-Pradip were armed with knife. The deceased died as a result of grievous injuries sustained by him. The complaint was registered as C.R.No.I-146 of 2004 before Keshod Police Station for the offences punishable under section 302 read with section 34 of the Indian Penal Code (hereinafter referred to as "IPC" for Page 2 of 34 HC-NIC Page 2 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT short) along with section 135 of Bombay Police Act. The investigating officer thereafter carried out investigation and upon completion of investigation, a charge sheet came to be filed against the accused persons.
2.1 As the case was triable by the learned Sessions Judge, in exercise of power under section 209 of Cr.P.C., the case was committed to Court of Sessions where it was numbered as Sessions Case No.77 of 2004. The learned Sessions Judge framed charge against the accused for the alleged offences. The charge was read over and explained to the original accused to which, they pleaded not guilty and claimed to be tried.
2.2 To prove the guilt against the accused, prosecution examined following witnesses:
P.W. Name of witness Exhibit
No. No.
1 Dr. Janakkumar Odhavji Madhak 14
2 Dr. Mohan Karamshi Thummar 20
3 Hirabhai Khimabhai 29
4 Virabhai Amrabhai 31
5 Narendrabhai Karshanbhai 33
6 Sohil Abubhai Aarab 34
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7 Gafarsha Mahammadsha 36
8 Laxmanbhai Jivabhai 37
9 Nileshbhai Jivabhai 39
10 Natvarlal Meghjibhai 41
11 Ashwin Babu Chudasma 59
12 Jitendra Chudasma 61
13 Manoj Daya Chudasma 62
14 Reenaben Mukeshbhai 63
15 Subhashchandra Gunvantrai Raval 64
2.3 The prosecution also relied on following documentary evidence:
Description Exhibit
No.
Medical certificate of accused No.1 16
Medical certificate of accused No.3 19
P.M.Note 23
Medical certificate of accused No.2 26
Panchnama of muddamal seized from the dead 27 body of the deceased Panchnama of blood sample of accused 28 Inquest panchnama 30 Panchnama of scene of offence 32 Panchnama of surname of accused No.1 35 Panchnama of surname of accused No.2 38 Panchnama of surname of accused No.3 40 True copy of station dairy 65 Special report pertaining to offence 67 Marnotar form 68 Yadi to Executive Magistrate for inquest 69 Yadi to Medical Officer for post mortem 70 FSL mobile report 71 Page 4 of 34 HC-NIC Page 4 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT Forwarding note of muddamal to FSL 72 FSL report 75 Report of Forensic Department 77 Serological report 79 True copy of prohibition order 80 True copy of Keshod Police Station 81 C.R.No.146/04 2.4 On submission of closing pursis by the prosecution, learned Sessions Judge recorded further statements of the accused under Sec.313 of Code of Criminal Procedure qua incriminating evidence where they have denied to have committed any offence. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, the impugned judgment and order 31st May, 2006 was delivered by the learned Additional Sessions Judge, Fast Track Court No.6, Junagadh, in Sessions Case No.77 of 2004 whereby the present respondents-original accused persons were acquitted of the charges levelled against them. It is this judgment and order of acquittal which is giving rise to prefer the present appeal by the State. The appeal came to be admitted vide order dated 1.7.2008 and it has come up for final hearing before this Court.
3. Leaned Additional Public Prosecutor, Mr.L.R.Poojari, Page 5 of 34 HC-NIC Page 5 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT appearing for the State, has vehemently contended that there is a serious error committed by the learned trial Judge in passing the judgment and order of acquittal. Taking this Court through the evidence of Dr. Janakkumar Odhavji Madhak, who has been examined as P.W.No.1 at Exh.14 and who noted down the injuries sustained by the deceased as well as the evidence of Dr.Mohanbhai Karamshibhai Thummar, who has been examined as P.W.No.2 at Exh.20 and who has performed post mortem on the dead body of the deceased, Mr. Pujari has contended that the injuries sustained by the deceased have been proved through the evidence of these medical witnesses. He has further contended that the cause of death as opined by the doctor is as a result of haemorrhagic shock due to vital organ injuries sustained by the deceased. Drawing the attention of the Court towards the evidence of complainant, Ashwinbhai Babubhai Chudasma, who is brother of the deceased and who has been examined as P.W.No.11 at Exh.59, he has contended that the complaint has been duly proved by the prosecution beyond reasonable doubt. Taking the Court through the evidence of eye witnesses namely, P.W.No.12- Jitendra Arsibhai Chudasma at Exh.61 and P.W.No.13-Manoj Dayabhai Chudasma at Exh.62, who Page 6 of 34 HC-NIC Page 6 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT have seen the accused inflicting the injuries on the deceased, he has contended that injuries inflicted by the accused on the deceased have been proved by the prosecution beyond reasonable doubt. He has further contended that motive in the commission of offence has also been established by the prosecution through the evidence of Reenaben Mukeshbhai, P.W.No.14, who is daughter of the deceased and who has been examined at Exh.63. By referring to several other evidences appearing on record, he has contended that as the case against the accused has been proved by the prosecution beyond reasonable doubt, the findings arrived by the learned trial court are unjust and improper and, therefore, he has requested to allow the present appeal by quashing and setting aside the impugned judgment and order. In support of his contentions, he has relied on the following decisions of Hon'ble Apex Court:
i) Munshi Prasad and others Vs. State of Bihar reported in AIR 2001 Supreme Court 3031.
ii) Anil Kumar Vs. State of U.P. reported in (2004)13 Supreme Court Cases 257.
iii) Iqbal Moosa Patel Vs. State of Gujarat reported in (2011)2 Supreme Court Cases 198.Page 7 of 34
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4. To oppose the stand taken by the learned APP, learned advocate, Mr. Ashish Dagli appearing for the respondents accused, has submitted that incident in question has occurred long back and, therefore, on the basis of weak piece of evidence, now at this stage to hold the accused guilty would be coercion against the accused persons and for that Mr. Dagli has contended that on the basis of materials on record, there is a stiff contradiction amongst the versions of so-called eye witnesses. So far as motive is concerned, he has contended that the same has not been proved beyond reasonable doubt. To establish the motive beyond reasonable doubt, the prosecution has not examined independent witnesses and on the contrary, looking to the steps taken by the investigating officer, no link is established to connect the respondents accused with the crime so much so that Imran, who informed the entire incident in question has chosen not to be examined. Similarly, Chhagadawala, who took the victim to the hospital has also not been examined. He has further contended that surprisingly the knife which has been found at the scene of offence has also not been sent for FSL for further examination. He has further Page 8 of 34 HC-NIC Page 8 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT contended that Gopalbhai, who is said to have remained present at the time of occurrence has also not been examined and from the overall record, it appears that no independent witnesses have been examined and, therefore, by contending this, Mr. Dagli has requested the Court not to alter the order which has been passed on the basis of materials on record. He has further contended that the natural conduct of the eye witnesses is not emerging from the record looking to the versions given by them. He has further contended that there also appears to be no bloodstains found by the investigating authority which would substantiate the version of the prosecution. He has also contended that there may be a chance of more than one weapon having used in the commission of offence and even if this circumstances is co-related to the recovery which has been made, it is not satisfying the test of soundness of the prosecution. He has further contended that the panchas have become hostile and on the basis of the materials of the hostile witnesses, no order of conviction can be passed. Even the investigating officer is also not substantiating the panchamas where the panchas have become hostile and, therefore, when the case has not been proved beyond Page 9 of 34 HC-NIC Page 9 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT reasonable doubt, the findings of the learned trial Judge does not deserve to be disturbed in the interest of justice. By referring to such kind of situation, Mr. Dagli has requested the Court not to allow the appeal filed by the State. In this connection, Mr. Dagli has also relied upon following reported decisions:
i) State of Maharashtra Vs. Damu, S/o Gopinath Shinde and others, (2000)6 Supreme Court Cases 269.
ii) Bodhraj Alias Bodha and Others. Vs. State of Jammu and Kashmir, (2002)8 Supreme Court Cases 45.
iii) Hem Raj and another Vs. State of Punjab, (2003)12 Supreme Court Cases 241.
iv) State of Madhya Pradesh Vs. Dal Singh and Others, (2013)14 Supreme Court Cases 159.
v) Muralidhar Alias Gidda and Another Vs. State of Karnataka, (2014)5 Supreme Court Cases 730.
vi) Nallabothu Ramulu Alias Seetharamaiah and Others Vs. State of Andhra Pradesh, (2014)12 Supreme Court Cases 261.
vii) Putchalapalli Naresh Reddy Vs. State of Andhra Pradesh and others, (2014)12 Supreme Court Page 10 of 34 HC-NIC Page 10 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT Cases 457.
viii) Raj Singh Vs. State of Haryana and others, (2015)6 Supreme Court Cases 268.
ix) Jagdishsinh @ Munno Ranjitsinh @ Ranubha Jadeja Vs. State of Gujarat, 2016(3) G.L.H. 167.
5. Having heard the learned advocates appearing for the parties and having gone through the evidence on record and having also considered the reasons assigned by the learned trial Judge while passing the impugned judgment, following facts are emerging:
5.1 From the evidence of Ashwin Babu Chudasama, P.W.No.11 examined at Exh.59, it appears that he has narrated the entire episode but to establish the motive, he is referring to some incident which has taken place prior to five years and to prove that motive, even this witness is not establishing or offering any explanation on that count. On the contrary, this witness has observed that initially when the scuffle took place, he was not having any idea about the participation of persons in such scuffle. Even he has admitted that the knife which has been placed beside the dead body of brother has Page 11 of 34 HC-NIC Page 11 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT not been seen by him and, therefore, while going through the evidence of this witness, it appears that this witness has not actually seen occurrence or the role being played by the accused persons. In fact, this witness has admitted that at the place of incident, there was no street light.
5.2 Prosecution Witness No.12, Jitendra Chudasma, examined at Exh.61, is said to have identified the accused persons but if his version is looked into, it is revealed that when the incident took place, there was nobody and he along with Ashwin went to the place of incident on hearing the shouts. This witness is also trying to make an attempt to establish motive by referring to some grievance of marriage of Kanchanben, sister of Ashwin prior to 5- 6 years.
5.3 If the evidence of another witness, Manoj Chudasma, P.W.No.13 examined at Exh.62 is perused, it would appear that though the prosecution story is that the deceased was taken in Chhagdo with bloodstains, this witness has deposed that when they were sitting in Chhagdo rickshaw, he did not notice any bloodstain on the clothes. He has also admitted that Page 12 of 34 HC-NIC Page 12 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT he has not seen two persons scolding deceased Mukesh and one person giving blow. Thus, it appears that this witness has not actually witnessed occurrence of incident.
5.4 Investigating officer, Subhashchandra Gunvantrai Raval, who has been examined as P.W.No.15 at Exh.64, has conducted the entire investigation and taken steps but he has also not noticed any bloodstain on the clothes of any witness who took the deceased to the hospital. On the contrary, he has deposed that no names are inquired rather not revealed as to who took the deceased to the hospital. This investigating officer has admitted that not only he has not taken further statements of witnesses during investigation but has drawn panchnama of scene of offence almost after 12 hours from the declaration of offence. He has further found during investigation that there was no allegation against accused persons with respect to trouble to Kanchanben and, therefore, when such circumstance has not revealed, there hardly appears to be any establishment of motive and, therefore, on the basis of this evidence of investigating officer, motive is not getting substantiated. In addition thereto, at Page 13 of 34 HC-NIC Page 13 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT the time when accused persons were arrested, there were no injuries of any nature found on the body and it has also been revealed that though the incident in question occurred on public road, he has not reported whether street light was on or not. This investigating officer has filed the charge sheet but then has not taken statements of any other independent witnesses about alleged misbehaviour with Kanchanben and, therefore, from the overall evidence of this investigating officer, it appears that nothing further has come out.
5.5 Now considering the aforesaid position prevailing on the evidence of witnesses on record, there is a specific finding by the learned trial Judge that the prosecution has not proved beyond reasonable doubt the case against the accused persons. It was also found by the learned trial Judge that during the course of investigation, police has recovered two weapons but at the time when incident was reported, there was presence of a weapon with the dead body of the victim which was neither recovered nor sent to FSL. On account of any independent witnesses not having been examined and on account of the old so-
called motive tried to be pressed into service by Page 14 of 34 HC-NIC Page 14 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT the prosecution, there was no enough material recovered to prove the motive. However, then, about such episode which might have taken place prior to five years, statement of Kanchanben was taken but she was not cited nor examined as witness and, therefore, motive has not at all been established by the prosecution on the basis of prevailing materials.
5.6 Important witnesses namely, Hardasbhai(pan shop owner), Kanchanben, Imran, Bharat Becharbhai and Police Constable-Jivabhai Ramabhai have not been examined by the prosecution in the present case. Had these witnesses been examined, they would have thrown some light about happening of the incident and, therefore, from the overall material on record, the learned trial Judge has specifically concluded that the case against the accused persons has not been established beyond reasonable doubt.
6. Having gone through the findings of the learned trial Judge in the context of overall material available on record, we are of the considered opinion that there appears to be no extra-ordinary circumstance which can permit us to take a different Page 15 of 34 HC-NIC Page 15 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT view than what has been taken by the learned trial Judge. The case has not been found to have been proved beyond reasonable doubt and, therefore, on the basis of the very same material, we are not in a position to take a different view and, therefore, the present acquittal appeal filed by the State has to be ultimately dealt with in the context of law laid down on the issue of power of interference in acquittal appeal by the Hon'ble Apex Court. Following are some of the relevant decisions which are relevant to be quoted to arrive at the present conclusion:
6.1 In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr., (2006) 6 SCC 39, the Apex Court has narrated the powers of 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."Page 16 of 34
HC-NIC Page 16 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT 6.2 Further, in the case of Chandrappa Vs. State of Karnataka, (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 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.Page 17 of 34
HC-NIC Page 17 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT [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."
6.3 In another decision delivered by the Supreme Court in case of Sureshkumar V/s. State of Haryana, reported in (2013) 16 SCC 353, it was observed that if two views are possible, the High Court should hold in favour of the accused and should not interfere with an order of acquittal. The relevant observations of the decision are reflected in Para.55, 56 and 57 which read as under :
"55. The second contention is that the High Court ought not to have interfered in the acquittal by the Trial Court. It was submitted that if two views are possible, the High Court should lean in favour of the accused and should not interfere with an acquittal.
56. A few years ago, the law on the subject was culled out from a large number of decisions and summed up in Ghurey Lal v. State of U.P., (2008) 10 SCC 450 : (AIR 2009 SC (Supp) 1318 : 2008 AIR SCW 6598) as follows:
"1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial Page 18 of 34 HC-NIC Page 18 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
A number of instances arise in which the
appellate court would have "very
substantial and compelling reasons" to
discard the trial court's decision. "Very
substantial and compelling reasons" exist
when:
(i) The trial court's conclusion with regard to the facts is palpably wrong;
(ii) The trial court's decision was based on an erroneous view of law;
(iii)The trial court's judgment is likely to result in "grave miscarriage of justice";
(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
(vii)This list is intended to be Page 19 of 34 HC-NIC Page 19 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT illustrative, not exhaustive."
57. Learned counsel for Suresh Kumar referred to S. Anil Kumar v. State of Karnataka, (2013) 7 SCC 219 : (2013 AIR SCW 6180) particularly paragraph 14 of the Report wherein reliance was placed on Rohtash v. State of Haryana, (2012) 6 SCC 589 : (AIR 2012 SC 2297 : 2012 AIR SCW 3318) to conclude that it is "only in exceptional cases where there are compelling circumstances and where the judgment in appeal is found to be perverse, can the High Court interfere with the order of acquittal." In Rohtash it was further observed:
"The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan v. Talevar, (2011) 11 SCC 666 : (AIR 2011 SC 2271 : 2011 AIR SCW 3889) Govindaraju v. State (2012) 4 SCC 722 : (AIR 2012 SC 1292 : 2012 AIR SCW 1994)."
6.4 The principle laid down in Chandrappa (supra) has been reiterated by Hon'ble Apex Court in case of Basappa Vs. State of Karnataka, reported in 2014(2) SCC (Cri)497. It has been held in paragraph 15 of the said decision as under:
"(15). In this context, yet another caution struck by this Court in Chandrappa and others Vs. State of Karnataka, (2007) 4 SCC 415 would also be relevant.
"42. From the above decisions, in our considered view, the following general principles regarding powers of the Page 20 of 34 HC-NIC Page 20 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT 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 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 Page 21 of 34 HC-NIC Page 21 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT disturb the finding of acquittal recorded by the trial Court."
6.5 The principle in Chandrappa (supra) has further been reiterated by Hon'ble Apex Court in the case of C.K.Dasegowda & Ors. Vs. State of Karnataka, reported in 2014(8) Scale 557 wherein it has been held in paragraph No.17 as under:
"(17). In the case of Chandrappa and others Vs. State of Karnataka, (2007) 4 SCC 415, it has been held by this Court as under:
"39. In Harijana Thirupala v. Public Prosecutor, High Court of A.P. (AIR 2002 SC 2821 : 2002 AIR SCW 3199), this Court said:
12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to Page 22 of 34 HC-NIC Page 22 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT make such an exercise the judgment will suffer from serious infirmity.
40. In Ramanand Yadav v. Prabhunat Jha (AIR 2004 SC 1053 : 2003 AIR SCW 6731) this Court observed;
"21. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not".
41. Recently, in Kallu v. State of M.P. (AIR 2006 SC 831 : 2006 AIR SCW 177), this Court stated;
"8. While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence.Page 23 of 34
HC-NIC Page 23 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court".
(Emphasis supplied) 6.6 In yet another decision in the case of Ramaiah @ Rama Vs. State of Karnataka, 2014(9) SCC 365, it has been held by Hon'ble Apex Court that if two views are possible on the evidence adduced and the one favourable to the accused has been taken by the trial court, it should not be disturbed. It has been observed in paragraph Nos.30 and 31 as under:
"30. This very principle of law was formulated by the Court in M. Madhusudhan Rao (supra) in the following manner:
"13. There is no embargo on the appellate court to review, reappreciate or reconsider the evidence upon which the order of acquittal is founded. Yet, generally, the order of acquittal is not interfered with because the presumption of innocence, which is otherwise available to an accused under the fundamental principles of criminal Page 24 of 34 HC-NIC Page 24 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a court of law, gets further reinforced and strengthened by his acquittal. It is also trite that if two views are possible on the evidence adduced in the case and the one favourable to the accused has been taken by the trial court, it should not be disturbed. Nevertheless, where the approach of the lower court in considering the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to the characterised as perverse, then, to prevent miscarriage of justice, the appellate court is obliged to interfere.
14. All these principles have been succinctly culled out by one of us (C.K. Thakker, J.) in Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415 : (AIR 2007 SC (Supp) 111 : 2007 AIR SCW 1850)".
31. In Chandrappa (supra), which was followed in the aforesaid case, the Court had observed:
"44. In our view, if in the light of above circumstances, the trial court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of the appellate court are as wide as that of the trial court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be Page 25 of 34 HC-NIC Page 25 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT said that the other view was equally possible. But it is well established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court. In this case, a possible view on the evidence of prosecution had been taken by the trial court which ought not to have been disturbed by the appellate court. The decision of the appellate court (the High Court), therefore, is liable to be set aside"."
6.7 In the case of Upendra Pradhan Vs. State of Orissa, 2015(5) Scale 634, it has been held by Hon'ble Apex Court that when there are two views culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. Paragraph No.10 of the said decision reads thus:
"10. Taking the First question for consideration, we are of the view that in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. It has been recognized as a human right by this Court. In Narendra Singh and another v. State of M.P., (2004) 10 SCC 699 : (AIR 2004 SC 3249), this Court has recognized presumption of innocence as a human right and has gone on to say that:
"30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may be' and 'must be'.Page 26 of 34
HC-NIC Page 26 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT
31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court.
Xxx xxx xxx xxx xxx
33. We, thus, having regard to the post- mortem report, are of the opinion that the cause of death of Bimla Bai although is shrouded in mistery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld."
6.8 The Supreme Court in case of Golbar Hussain & Ors.
V/s. State of Assam & Anr., reported in (2015) 11 SCC 242, has held in Para.6, 7 and 8 as under :
"6. The present case involves consideration on two issues. First being the powers of appellate Court while dealing with an appeal against an order of acquittal. Second, being the sufficiency of the testimonies of PW-4 and PW-5 to convict the accused persons without any corroboration from an independent witness and the relevancy of the statement of a hostile witness involving appreciation of the statement of PW-8 who turned hostile.
7. On the first issue, the legal principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal, have been reiterated by this Court in Page 27 of 34 HC-NIC Page 27 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT a catena of cases. This Court culled down five general principles in Chandrappa and Ors. vs. State of Karnataka, (2007) 4 SCC 415, as follows:
"(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 curtail 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 Page 28 of 34 HC-NIC Page 28 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(Emphasis supplied)
8. The Court referred to Kallu alias Masih and Ors. vs. State of M.P., (2006) 10 SCC 313, in the above-mentioned judgment, where it held that;
"While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial Court'."
6.9 Yet in another decision in case of Upendra Pradhan V/s. State of Orissa, reported in (2015) 11 SCC 124, the Supreme Court while dealing with an order of the High Court in acquitting appeal, has observed as under :
"14. Taking the First question for Page 29 of 34 HC-NIC Page 29 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT consideration, we are of the view that in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. It has been recognized as a human right by this Court. In Narendra Singh and another v. State of M.P., (2004) 10 SCC 699 : (AIR 2004 SC 3249), this Court has recognized presumption of innocence as a human right and has gone on to say that:
"30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may be' and 'must be'.
31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court.
xxx xxx xxx xxx xxx
33. We, thus, having regard to the post- mortem report, are of the opinion that the cause of death of Bimla Bai although is shrouded in mistery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld."
(Emphasis Supplied)
15. The decision taken by this Court in the aforementioned case, has been further reiterated Page 30 of 34 HC-NIC Page 30 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 : (AIR 2003 SC 3601), wherein this Court observed thus:
"7. Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. (see Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference."(Emphasis Supplied).
16. Therefore, the argument of the learned counsel for the appellant that the High Court has erred in reversing the acquittal of accused appellant, stands good. The Additional Sessions Judge was right in granting him benefit of doubt. The view which favours the accused/appellant has to be considered and we discard the opposite view which indicates his guilt.
17. We are also of the view that the High Court Page 31 of 34 HC-NIC Page 31 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT should not have interfered with the decision taken by the Additional Session Judge, as the judgment passed was not manifestly illegal, perverse, and did not cause miscarriage of justice. On the scope of High Court's revisional jurisdiction, this Court has held in Bindeshwari Prasad Singh v. State of Bihar, (2002) 6 SCC 650 : (AIR 2002 SC 2907), "that in absence of any manifest illegality, perversity and miscarriage of justice, High Court would not be justified interfering with the concurrent finding of acquittal of the accused merely because on re- appreciation of evidence it found the testimony of PWs. to be reliable whereas the trial Court had taken an opposite view." This happens to be the situation in the matter before us and we are of the view that the High Court was wrong in interfering with the order of acquittal of Upendra Pradhan passed by the Additional Sessions Judge.
18. The Second ground pleaded before us by the counsel for the accused appellant, that the testimonies of P.W. 1 and P.W.7 should not have been considered, as they were interested witnesses, holds no teeth. We are of the opinion that the testimonies of interested witnesses are of great importance and weightage. No man would be willing to spare the real culprit and frame an innocent person. This view has been supplemented by the decision of this Court in Mohd. Ishaque v. State of West Bengal, (2013) 14 SCC 581.
* * *
22. Therefore, in the light of the above discussion, we allow this appeal and set aside the impugned judgment and order passed by the High Court. The appellant has been released on bail vide this Court's order dated 15.04.2014. His bail bonds are discharged."
7. We have also gone through the judgments which have been cited by the learned advocates appearing for Page 32 of 34 HC-NIC Page 32 of 34 Created On Thu Feb 02 05:42:22 IST 2017 R/CR.A/1392/2006 CAV JUDGMENT the parties referred to above and have examined the same in the context of present facts situation of the case on hand. There cannot be any dispute regarding the principles laid down by Hon'ble Apex Court in the decisions relied on by the learned advocates appearing for the respective parties. However, we are mindful of the fact that if there is a slight change in the facts, the same would make a world of difference in applying the principle by way of precedent and, therefore, we found a distinguishable facts of the present case as compared to those cases which have been cited and, therefore, without elaborating the same in detail to avoid burden of this judgment and after considering those decisions also, we found that the evidence on record of this case is such which would not permit us to apply those principles as a strait-jacket formula. Thus, we are of the considered opinion that the appeal filed by the State and the contentions raised to substantiate the appeal are not sufficient enough to permit us to take a different view and accordingly, by observing this, we have found that no case appears to have been made out to interfere with the findings recorded by the learned trial Judge.
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8. Considering the overall materials on record and upon examination of the reasons assigned by the learned trial Judge and even on re-appreciation of evidence also, we found nothing extra-ordinary which would compel us to substitute our findings and accordingly, considering aforesaid proposition of law laid down on the issue of power of interference in acquittal appeal by the Hon'ble Apex Court, we hereby refrain ourselves from interfering in the judgment and order passed by the learned trial Judge and accordingly, the appeal being found meritless is hereby dismissed. The judgment and order of acquittal dated 31st May, 2006 passed by the learned Additional Sessions Judge, Fast Track Court No.6, Junagadh, in Sessions Case No.77 of 2004 is hereby confirmed. Record and proceedings shall be sent back forthwith to the trial court.
(S.R.BRAHMBHATT, J.) (A.J. SHASTRI, J.) RADHAN Page 34 of 34 HC-NIC Page 34 of 34 Created On Thu Feb 02 05:42:22 IST 2017