Gujarat High Court
State Of Gujarat vs Nilkanth @ Navin Atmaram Nanda on 2 March, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1163
Author: A.C. Rao
Bench: Bela M. Trivedi, A.C. Rao
R/CR.A/358/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 358 of 2020
With
R/CRIMINAL MISC.APPLICATION NO. 4443 of 2020
In
CRIMINAL APPEAL NO. 358 of 2020
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STATE OF GUJARAT
Versus
NILKANTH @ NAVIN ATMARAM NANDA
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Appearance:
MS MAITHILI MEHTA APP for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
and
HONOURABLE MR.JUSTICE A.C. RAO
Date : 02/03/2020
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE A.C. RAO)
1. The appellant - State has challenged the judgment and order of acquittal qua respondent herein - original accused no.1 passed by the learned Additional Sessions Judge, Jamnagar dated 20.09.2019 in Sessions Case No.171 of 2015.
2. The respondent herein (original accused no.1) and the original accused no.2 were charged for the offences punishable under Sections 302, 201, 120(B), 506(2) and 114 of the Indian Penal Code. At the end of the trial, the learned Sessions Judge has acquitted both the accused from the alleged offences, against which the appellant - State has preferred an appeal against the acquittal of original accused no.1 - respondent herein.
3. The case of the prosecution before the Sessions Court in Page 1 of 9 Downloaded on : Sat Jun 13 23:27:39 IST 2020 R/CR.A/358/2020 ORDER nutshell was that earlier the accused no.1 (present respondent) had purchased large quantities of English liquor illegally and given to Bhimsang Jadeja (now deceased) for keeping the same in his Wadi at Village Sarmat, Taluka Jamnagar. Thereafter, the accused no.1 was arrested in connection with some other case and the deceased destroyed the liquor of the accused on his own. When the accused no.1 was released from the custody, he demanded the liquor from the deceased which was given to him, however the deceased informed the accused that it was already destroyed. The deceased also refused to pay any money to the accused for the said liquor. Hence, both the accused alongwith one juvenile accused Ankit hatched criminal conspiracy and went to the Wadi of the deceased, armed with knife and pipe and killed the deceased Bhimsang during night hours by giving him blows with the knife and the pipe. They also tried to destroy the evidence. The complaint in respect of the incident was registered being IC.R.No.194 of 2015 with Panch 'B' DV. Police Station, Jamnagar for the alleged offences. The Investigating Officer, after completing the investigation, had filed chargesheet before Additional Chief Judicial Magistrate, who committed the case to the Sessions Court for trial.
4. The prosecution to prove the charges levelled against the accused had examined 37 witnesses and produced 72 documents. The case of the prosecution hinges upon Prosecution Witness No.15 and Prosecution Witness No.17. The complainant Mahavirsinh Bhimsinh Jadeja had given deposition as Prosecution Witness No.15 at Exh.52, Prosecution Witness No.16 had given deposition at Exh.56 and Prosecution Witness No.17 had given his deposition Page 2 of 9 Downloaded on : Sat Jun 13 23:27:39 IST 2020 R/CR.A/358/2020 ORDER at Exh.61 and Prosecution Witness No.20 had given his deposition at Exh.62. However, they are not eye witnesses in the incident. The Prosecution Witness No.17 namely Sardarsinh Jatubha Zala, whose deposition was at Exh.58, is claimed to be an only eye witness, however, he had turned hostile. So only evidence against the respondent herein - original accused was that of the clothes of the accused and knife allegedly recovered from the accused no.1. The blood stains in the car have the same group as that of the victim. Thus, the only evidence against the respondent herein - original accused no.1 was the muddamal clothes recovered and allegedly had blood stains of the victim. All panchas and the only eye witness had turned hostile. Surprisingly, blood of accused has remained undecided. There is no evidence about conspiracy hatched by accused. The owner of the car is one Ramdev Bhikubhai Soda, however, he is not examined as witness. It is pertinent to note that when the prosecution had failed to bring on record the substantive or reliable evidence, the conviction could not be based on the evidence of FSL, more particularly in such serious offences. Under the circumstances, we are of the view that evidence produced before the trial Court is not sufficient to hold guilty the respondent with the crime.
5. So far as the acquittal appeal is concerned, 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 catena of decisions.
Page 3 of 9 Downloaded on : Sat Jun 13 23:27:39 IST 2020R/CR.A/358/2020 ORDER 5.1 In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006)6 SCC, 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the wellsettled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below."
5.2 Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court laid down the following principles:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail Page 4 of 9 Downloaded on : Sat Jun 13 23:27:39 IST 2020 R/CR.A/358/2020 ORDER the power of the court to review the evidence and to come to its own conclusion.
[4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
5.3 Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
5.4 Even in a decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Apex 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 judgement delivered by the Page 5 of 9 Downloaded on : Sat Jun 13 23:27:39 IST 2020 R/CR.A/358/2020 ORDER 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."
5.5 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
5.6 In the case of Luna Ram Vs. Bhupat Singh and Ors. reported in (2009) SCC 749,the Apex Court in paras 10 and 11 has held as under:
"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the 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 a running condition.
11. Considering the parameters of appeal against the judgement of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."Page 6 of 9 Downloaded on : Sat Jun 13 23:27:39 IST 2020
R/CR.A/358/2020 ORDER 5.7 Even in a decision of the Apex Court in the case of Mookiah and Anr. Vs. State rep. By the Inspector of Police, Tamil Nadu reported in AIR 2013 SC 321, the Apex Court in para 4 has held as under:
"4.It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution anddefence, acquitted the accused in respect of th e charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Co urt has exceeded its jurisdiction in upsetting the order ofacquittal into conviction, let us analyze the scope and power of theHigh Court in an appeal file d against the order of acquittal.ThisCourt in a serie s of decisions has repeatedly laid down that as the first appellate court the High Court even while dealing with an appeal against acquittal,wasalso entitled,andobliged as well, to sc an through and if need be reappreciatethe entire evidence, though while choosing to interfere onlyth e court should find an absolute assurance of the gui lt on the basis of the evidence on record and not merely becausethe High Court could take one mo re possible or a differentview only. Except the abo ve, where the matter of the extentand depth of con sideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]"
6. It is also a settled legal position that in acquittal appeal, the appellate court is not required to rewrite the judgement 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 Page 7 of 9 Downloaded on : Sat Jun 13 23:27:39 IST 2020 R/CR.A/358/2020 ORDER Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
"... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."
7. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence at length is not necessary.
8. The trial Court while considering the evidence on record, has very elaborately discussed the evidence on record. The only eye witness of the case has turned hostile. The guilt against the accused has not been established beyond reasonable doubt.
9. Further, learned APP is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record.
10. In above view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order. The trial court has granted benefit of doubt to the accused which is not being interfered with in absence of substantial proof.
Page 8 of 9 Downloaded on : Sat Jun 13 23:27:39 IST 2020R/CR.A/358/2020 ORDER 11. Accordingly, acquittal of respondent herein - original
accused no.1 is confirmed. The judgment and order dated 20.09.2019 is confirmed. Criminal Appeal No. 358 of 2020 is dismissed accordingly. R & P to be sent back forthwith.
12. Since the main appeal is dismissed, the Leave to Appeal does not survive and it is dismissed accordingly.
(BELA M. TRIVEDI, J) (A. C. RAO, J) MISHRA AMIT V. Page 9 of 9 Downloaded on : Sat Jun 13 23:27:39 IST 2020