Gujarat High Court
State Of Gujarat vs Thakor Kuberji Babaji & ... on 29 October, 2015
Author: K.S.Jhaveri
Bench: Ks Jhaveri, G.B.Shah
R/CR.A/553/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 553 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
============================================================
====
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 ?
==========================================================
STATE OF GUJARAT....Appellant(s)
Versus
THAKOR KUBERJI BABAJI & 7....Opponent(s)/Respondent(s)
==========================================================
Appearance:
MS. C.M. SHAH, APP for the Appellant(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s) No. 1-8
MR. YOGENDRA THAKORE, ADVOCATE for the
Opponent(s)/Respondent(s) No. 1 - 8
================================================================
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 29/10/2015
ORAL JUDGMENT
Page 1 of 13
HC-NIC Page 1 of 13 Created On Thu Nov 05 00:02:21 IST 2015 R/CR.A/553/2006 JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. By way of this appeal, the appellantState of Gujarat has challenged the judgment and order dated 27.01.2006, passed by the Additional Sessions Judge, Fast Track Court No.3, Patan, in Sessions Case No.312 of 2002, whereby the Trial Court has acquitted the respondents hereinoriginal accused for the offence punishable under Sections 147, 148, 149, 307, 324, 323, 337 and 506(2) of the Indian Penal Code (for short "the I.P. Code") and under Section 135 of the Bombay Police Act.
2. The case of the prosecution is that a complaint was filed by the complainantJayantibhai Chhaganbhai Patel, inter alia alleging that on 13.07.1998 at about 7:00 pm. when he was returning from G.E.B. on his bicycle, the accused persons came holding deadly weapons like scythe and stick with an intention to kill the complainant and started beating him. It is alleged in the complaint that original accused No.1 inflicted scythe blow on the head of the complainant. It is also alleged in the complaint that one Hargovanbhai HaribhaiP.W.1, who has returning from his village, was also beaten by the accused persons.
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 Page 2 of 13 HC-NIC Page 2 of 13 Created On Thu Nov 05 00:02:21 IST 2015 R/CR.A/553/2006 JUDGMENT triable by the Court of Sessions. Therefore, the learned Magistrate committed the case to the Sessions Court at Patan, under Section 209 of the Code of Criminal Procedure, 1973, where it was registered as Sessions case No.312 of 2002. Charge vide Exhibit21 came to be framed against the accused persons. They 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 Patel Jayantibhai Chaganbhai 39 2 Hargovanbhai Haribhai Patel 41 3 Yogesh Jayantilal Vyas 43 4 Hariprasad Devshankar Dave 53 5 Virambhai Vitthalbhai 56 6 Kantilal Jethidas 57 7 Dr. Bharatkumar Babulal Solanki 59 8 Virabhai Ghemarbhai Raval 64 9 Dr. Somabhai Hargovandas Patel 78 10 Narpatsinh Daulatsinh Jetavat 83 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 Original Complaint 40 Page 3 of 13 HC-NIC Page 3 of 13 Created On Thu Nov 05 00:02:21 IST 2015 R/CR.A/553/2006 JUDGMENT 2 Panchnama of place of offence 58 3 Forwarding letter 68 4 FSL report 69 5 Serological report 70 6 Medical certificate of Hargovanbhai 79 7 Medical certificate of complainant 80
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 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. Ms. Shah, learned APP for the appellantState has taken us to the evidence of the material witnesses as well as the medical evidence and submitted that the Trial Court has committed an error in acquitting the original accused persons. It is further submitted by Ms. Shah, learned APP for the appellantState that the trial Court has ignored the evidence of the medical officer wherein he categorically stated that the injuries sustained by the complainant was serious in nature. Therefore, she urged that this Court may allow this appeal and convict the original accusedrespondents herein.
Page 4 of 13
HC-NIC Page 4 of 13 Created On Thu Nov 05 00:02:21 IST 2015
R/CR.A/553/2006 JUDGMENT
6. On the other hand, Mr. Thakore, learned advocate appearing for the respondentsaccused supported the impugned judgment and order of the trial Court. Learned advocate for the respondentsaccused drew our attention to the observations of the trail Court and urged that this court may not interfere with the impugned judgment and order of the trial Court.
7. We have heard learned advocates appearing for the parties. 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 Page 5 of 13 HC-NIC Page 5 of 13 Created On Thu Nov 05 00:02:21 IST 2015 R/CR.A/553/2006 JUDGMENT 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 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 Page 6 of 13 HC-NIC Page 6 of 13 Created On Thu Nov 05 00:02:21 IST 2015 R/CR.A/553/2006 JUDGMENT "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
10. Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
11. Even in the case of State of Goa V. Sanjay Thakran & 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;
Page 7 of 13
HC-NIC Page 7 of 13 Created On Thu Nov 05 00:02:21 IST 2015
R/CR.A/553/2006 JUDGMENT
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."
11.1. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
11.2. In the case of Luna Ram Vs. Bhupat Singh and Ors, Page 8 of 13 HC-NIC Page 8 of 13 Created On Thu Nov 05 00:02:21 IST 2015 R/CR.A/553/2006 JUDGMENT reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under: "10. The High Court has noted that the prosecution version was not clearly believable. Some of the socalled eye witnesses stated that the deceased died because his anke was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.
11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."
11.3. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SC 321, the Apex Court in para 4 has held as under: "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, Page 9 of 13 HC-NIC Page 9 of 13 Created On Thu Nov 05 00:02:21 IST 2015 R/CR.A/553/2006 JUDGMENT reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellant very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]."
11.4. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981, SC 1417, wherein it is held as under: Page 10 of 13 HC-NIC Page 10 of 13 Created On Thu Nov 05 00:02:21 IST 2015 R/CR.A/553/2006 JUDGMENT "...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 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 accusedrespondents herein for the offence punishable under sections 147, 148, 149, 307, 324, 323, 337 and 506(2) of the IP Code and under Section 135 of the Bombay Police Act. Further, in the Page 11 of 13 HC-NIC Page 11 of 13 Created On Thu Nov 05 00:02:21 IST 2015 R/CR.A/553/2006 JUDGMENT present case most of the witnesses have turned hostile. The medical evidence and the FSL report do not support the prosecution case. The Trial Court in paragraph Nos. 15 to 18 has given cogent and convincing reasons for acquitting the original accused. We are in complete agreement with the findings recorded by the Trial Court. Therefore, we do not find any error in the impugned judgment and order of 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 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 sections 147, 148, 149, 307, 324, 323, 337 and 506(2) of the IP Code and under Section 135 of the Bombay Police Act. Hence, this appeal lacks of merit.
15. For the foregoing reasons, the present appeals are 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.
Page 12 of 13 HC-NIC Page 12 of 13 Created On Thu Nov 05 00:02:21 IST 2015 R/CR.A/553/2006 JUDGMENT (K.S.JHAVERI, J.) (G.B.SHAH, J.) pawan Page 13 of 13 HC-NIC Page 13 of 13 Created On Thu Nov 05 00:02:21 IST 2015