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2009 DIGILAW 258 (GUJ)

STATE OF GUJARAT v. VASIBHAI KALUBHAI RABARI

2009-04-08

K.S.JHAVERI, Z.K.SAIYED

body2009
K. S. JHAVERI, J. ( 1 ) THE present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgement and order of acquittal dated 01. 02. 2008 passed by the Special Judge, Palanpur in Special Case No. 160 of 2006, whereby the accused have been acquitted from the charges leveled against them. ( 2 ) THE brief facts of the prosecution case are as under: 2. 1 On 21. 08. 2006, the complainant was travelling by auto rickshaw of one Parthibhai Kalubhai. The accused no. 1 was also in the same rickshaw. When the autho rickshaw reached the cross road of Vaghrol, the accused no. 1 jumped out of the rickshaw and ran towards the well. The complainant commented about the accused no. 1 falling from the rickshaw. Thereafter, while the complainant was sitting near the road, the accused came with the sticks and inflicted stick blows upon the complainant and ran away. 2. 2 Therefore a complaint with respect to the aforesaid offence was filed against the respondents with Gadh Police Station vide C. R. No. I- 117 of 2006. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondents were arrested and, ultimately, charge-sheet was filed against them. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court. 2. 3 The trial was initiated against the respondents and during the course of trial the prosecution examined 05 witnesses as oral evidences and 10 documents as documentary evidences. At the end of trial, after recording the statement of the accused under section 313 of Cr. P. C. , and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the respondents of all the charges leveled against them by judgement and order dated 01. 02. 2008. 2. 4 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant State has preferred the present appeal. ( 3 ) IT was contended by Mr. 02. 2008. 2. 4 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant State has preferred the present appeal. ( 3 ) IT was contended by Mr. Kodekar, learned APP that the judgement and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondents. Learned APP has also taken this court through the oral as well as the entire documentary evidence. ( 4 ) 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. In the case of M. S. Narayana Menon @ Mani Vs. State of Kerala and 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 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. ' 4. 1 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. 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 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. ' 4. 2 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. 4. 3 Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran and Anr. Reported in (2007)3 SCC 75, the 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. 4. 3 Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran and Anr. Reported in (2007)3 SCC 75, the 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 judgement 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 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. ' 4. 4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh and Ors, reported in 2007 AIR SCW 5553 and in 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. 4. 5 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write 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 Apex Court in the case of State of Karnataka Vs. 4. 5 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write 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 Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:"and 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. ' 4. 6 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. ( 5 ) WE have gone through the judgement and order passed by the trial court. We have also perused the oral as well as documentary evidence led by the trial court, more particularly the R and P received from the trial court and also considered the submissions made by learned Advocate for the appellant. 5. 1 The trial court while considering the evidences in detail has observed that the prosecution has failed to prove the case against the accused beyond reasonable doubt. The only oral evidence brought on record is the complainant. No other eye witness is examined relating to the alleged offence. No statement of any independent witness is taken even though the alleged incident is claimed to have taken place in a thickly populated area. 5. 2 On an appreciation of the evidence, the trial court has observed that there is a delay in lodging the complaint as well and the same has not been explained by the prosecution plausibly. Apart from that, the medical evidence which has come on record, it is borne out that no yadi was received by the medical officer. The treatment was taken by the complainant and thereafter the complaint was filed. 5. Apart from that, the medical evidence which has come on record, it is borne out that no yadi was received by the medical officer. The treatment was taken by the complainant and thereafter the complaint was filed. 5. 3 As a result of hearing and perusal of records, it is borne out that the injury which was received was minor in nature and the same could also possibly have been received by the complainant falling down from any vehicle. Moreover, even a perusal of Ex. 12 shows that the complainant has not stated the time of the alleged offence. All these aspects raise serious doubts against the allegations raised against the accused. 5. 4 Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Mr. Kodekar, learned APP is not in a position to show any evidence to take a contrary view of 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. ( 6 ) IN the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. 6. 1 We find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. 6. 2 We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed. ( 7 ) THE judgement and order dated 01. 02. 2008 passed by the Special Judge, Palanpur in Special Case No. 160 of 2006 acquitting the respondents-accused is hereby confirmed. Bail bonds, if any, shall stand cancelled. R and P to be sent back forthwith.