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2013 DIGILAW 352 (GUJ)

State of Gujarat v. Khumaji Sivaji

2013-07-01

K.J.Thaker, K.S.Jhaveri

body2013
Judgment K.S. Jhaveri, J.—By way of this appeal under Section 378 of the Code of Criminal Procedure, the appellant State has challenged the judgement and order of acquittal dated 16.9.1992 passed by learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 156 of 1991 whereby learned trial Judge has given benefit of doubt to the accused and acquitted them of the charges under Sections 302, 337, 506(2) read with Section 34 of the Indian Penal Code as also under Section 135 of the Bombay Police Act. 1. The facts of the case, in a nutshell, is that the accused and deceased Mafaji Shivaji are real brothers. The complainant of this case is father of the accused and deceased person. An enmity was going on among the brothers for a long time. In the past, deceased Mafaji Shivaji had chopped off hand of accused No. 2. On 19.8.1991 in the morning at 10 O’clock there was a quarrel between the accused and deceased Mafaji Shivaji and thereafter both the accused persons gathered and formed an intention to commit murder of the deceased. Accused No. 1 inflicted three to four fatal blows on Mafaji Shivaji with scythe due to which he had died on the spot. At the same time, accused No. 2 caused injuries on the deceased by hitting him with stone. A complaint in that regard was filed. Thereafter, investigation was carried out on the basis of the complaint. After completion of investigation, chargesheet was filed in the Court of learned Judicial Magistrate. As the case was triable by Sessions Court, it was committed to the Sessions Court. 3. The trial Court framed charges against the accused persons. The accused persons pleaded not guilty to the charges and claimed to be tried. Therefore, the prosecution produced evidence. Further statements of the accused persons were recorded. The trial Court, after completion of trial, acquitted the accused of the charges levelled against them by the aforesaid judgement. Hence the present appeal. 4. To prove the case against the accused, the prosecution has examined the following witnesses: 1. Complainant, Shivaji Nathaji at Exh. 25 2. Bhikhaji Fataji at Exh. 27 3. Bhavansinh Shivsinh at Exh. 28 4. Police Constable Vikramsinh at Exh. 30 5. Dr. Vikram Kantibhai at Exh. 34 6. Jalamsinh Pujaji at Exh. 36 7. Melaji Pratapji at Exh. 37 8. Amarsinh Udaji at Exh. 38 9. Complainant, Shivaji Nathaji at Exh. 25 2. Bhikhaji Fataji at Exh. 27 3. Bhavansinh Shivsinh at Exh. 28 4. Police Constable Vikramsinh at Exh. 30 5. Dr. Vikram Kantibhai at Exh. 34 6. Jalamsinh Pujaji at Exh. 36 7. Melaji Pratapji at Exh. 37 8. Amarsinh Udaji at Exh. 38 9. Galabji Dhulaji at Exh. 39 10. Galabji Bhavanji at Exh. 40 11. Shivaji Fataji at Exh. 41 4.1 According to the prosecution, all the witnesses are eye witnesses. Deposition of Investigating Officer P.I. Ahir has been recorded at Exh. 42. 4.2 The prosecution has relied on the following documentary evidences: 1 Panchnamas at Exhs. 10, 12, 13, 17, 18 & 29 2. F.S.L. Report of Exhibit-11 produced at Exh. 26 3. Postmortem report at Exh. 35 4. Dispatch note at Exh. 18 4.3 Learned APP Ms. Shah, appearing for the appellant- State has submitted that the trial Court has committed error in acquitting the respondents-original accused of the offences punishable under Sections 302, 337, 506(2) read with Section 34 of the Indian Penal Code and Section 135 of the Bombay Police Act. She further submitted that the trial Court has failed to appreciate that the evidences of the eye witnesses get corroboration with the medical evidence. In that view of the matter, she submitted that the order of acquittal is required to be set aside and the accused are required to be convicted. 5. 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 & 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: “In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. In para 54 of the decision, the Apex Court has observed as under: “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.” 5.1. 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. [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 thebasis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.” 5.2. 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 thebasis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.” 5.2. 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. 5.3. Even in the case of State of Goa vs. 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 Court has observed as under: “16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it 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.” 5.4. 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 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. 5.5. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 5.5. In the case of Luna Ram vs. Bhupat Singh and Ors, reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under: “10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his 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 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.” 5.6. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. vs. State, rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SC 321 , the Apex Court in para 4 has held as under: “4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance 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 ] 5.7. 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 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 vs. 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.” 5.8 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. 6. We have heard learned counsel for the parties and perused the judgement of the trial Court. 6. We have heard learned counsel for the parties and perused the judgement of the trial Court. The trial Court while considering the evidence, has not believed the prosecution case, more particularly, on the ground that PW-6, PW-7 and PW-8 have turned hostile and not supported the case of the prosecution. That apart, in the present case, the main culprit accused No. 1 has expired and the role played by accused No. 2 is not proved by the prosecution beyond reasonable doubt. In that view of the matter, we are of the opinion that the decision taken by the trial Court is not required to be disturbed. 7. 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. In above view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgement and order. 8. We are, therefore, of the considered opinion that the findings recorded by the trial Court acquitting the accused of the charges levelled against them are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are in complete agreement with the reasonings given and the findings arrived at by the trial Court. No interference is warranted with the judgement and order of the trial Court. Hence, the appeal is devoid of any merit and is dismissed.