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2015 DIGILAW 1017 (GUJ)

State of Gujarat v. Odharji Vihaji Thakor

2015-10-09

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT : K.S. Jhaveri, J. 1. This appeal is directed against the judgment and order of acquittal dated 15.12.2005 passed by the learned Additional Sessions Judge, Deesa in Sessions Case No. 102 of 2002, whereby the respondent-original accused is acquitted of the charges under Sections 363, 366 and 376 of the Indian Penal Code. 2. The facts in brief giving rise to the filing of present appeal are as under: 2.1 That prior to one month from 27.4.2000, the daughter of the complainant was sent to the house of Savitaben on occasion of delivery. It is further the case of the prosecution that the victim was told by the respondent-accused that "your mother has been beaten by your uncle and therefore, she is admitted in hospital at Patan". Therefore, daughter of the complainant had gone with the accused but she did not return on same day. On the next day, one Balvantji Rupaji came at village-Kamboi and told that yesterday, the accused has taken away the victim at Patan by giving false excuse of hospitalization of her mother. Therefore, the complainant inquired at the house of relatives but no whereabouts were found. Therefore the complaint was filed regarding abduction of daughter of the complainant before Shihori Police Station which was registered at C.R. No. I-33/2000 for the alleged offences under Sections 363, 366 and 376 of IPC. 2.2 Investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the Court of learned Magistrate. However, since the offence was a sessions triable offence, the case was committed to Sessions Court and, ultimately, trial was initiated. Charges were framed against the accused, to which he pleaded not guilty and claimed to be tried. 2.3 In order to bring home the charges against the accused persons, prosecution has examined 14 witnesses. The prosecution has also produced several documents as evidence on record, including birth certificate of the victim and result of FSL examination. Thereafter, after filing closing purshis by the prosecution, further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused denied the case of the prosecution and submitted that a false case is filed against him. 3. Thereafter, after filing closing purshis by the prosecution, further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused denied the case of the prosecution and submitted that a false case is filed against him. 3. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondent. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 15.12.2005 passed by the learned Additional Sessions Judge, Deesa in Sessions Case No. 102 of 2002, the appellant-State has preferred the present appeal before this Court. 4. Mr. L.R. Pujari, learned APP appearing for the State has submitted that the trial Court has committed an error in not believing the case of the prosecution as admittedly the victim was less than 18 years of age at the time of the incident. He also submitted that birth in this regard register was produced on record and, therefore, the trial Court has committed an error in acquitting the accused of the charges levelled against him. He has taken us through the evidence and contended that the trial Court has committed an error in acquitting the accused inspite of voluminous evidence against him and contended that the trial Court ought not to have acquitted the accused. 5. On the other hand, learned counsel for the respondent-accused has contended that this is a case of love affair and even if the date of birth of the victim is taken as it is, she was more than 17 years of age at the time of the incident. The age of the victim as stated in the marriage certificate is 17 years on the date of incident and accused and the victim have also married, therefore, this appeal may be dismissed. He submitted that so far as acquittal appeals are concerned, the law is well settled and by taking us through the impugned judgment, he submitted that this Court may not interfere with the impugned judgment and the appeal may be dismissed. 6. We have heard learned APP appearing for the appellant-State as well as learned advocate for the respondents. We have also gone through the oral as well as documentary evidence on record. From the impugned judgment, it is clear that the accused and the prosecutrix went together and she was not abducted. 6. We have heard learned APP appearing for the appellant-State as well as learned advocate for the respondents. We have also gone through the oral as well as documentary evidence on record. From the impugned judgment, it is clear that the accused and the prosecutrix went together and she was not abducted. It is also clear that the accused and the victim have got married and the prosecution has failed to prove that she was below the age of age 18 years at the time of the incident, therefore, the trial Court has rightly acquitted the accused of the charges levelled against him. Not only that considering various decisions of Honourable Apex Court, when two views are possible, this Court should not interfere with the order of acquittal recorded by the trial Court. It is also 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., (2006) 6 S.C.C. 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." 6.1 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. 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. [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. 6.2 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. 6.3 Even in the case of State of Goa V. Sanjay Thakran & Another, (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; "16. 6.3 Even in the case of State of Goa V. Sanjay Thakran & Another, (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; "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 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." 6.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors., 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. 6.5 In the case of Luna Ram Vs. Bhupat Singh and Ors., (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 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 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." 6.6 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, 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. 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 re-appreciate 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 .]" 6.7 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, AIR 1981 SC 1417 , wherein it is held as under: ...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. 7. 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. It appears that trial Court, on an elaborate discussion of the entire oral and documentary evidence in true perspective has observed that complaint was lodged after about a month. The alleged demand of shop is subsequent creation introduced at the time of deposition by the complainant, his son and his brother and it is nothing but improvement since there is no reference of demand of shop in the complaint. Moreover, as the prosecution has failed to discharge its initial burden and hence it was not possible to raise a presumption as contemplated by Section 113-A and 113-B of the Indian Evidence Act. Moreover, learned APP is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude 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 material evidence while acquitting the accused persons. Moreover, learned APP is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude 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 material evidence while acquitting the accused persons. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting the respondents of the charge levelled against them. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and, therefore, find no reasons to entertain this appeal. 8. For the foregoing reasons, the appeal is dismissed and the impugned judgment and order 15.12.2005 passed by the learned Additional Sessions Judge, Deesa, District-Banaskantha in Sessions Case No. 102 of 2002 is confirmed. Bail bond of the accused stands cancelled. Record and proceedings, if lying here, be sent to the Court below forthwith.