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2015 DIGILAW 1070 (GUJ)

State of Gujarat v. Balwantsang Fatesang Patel

2015-10-19

G.B.SHAH, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. This appeal is directed against the judgment and order of acquittal dated 21/11/2005 passed by the learned Presiding Judge, Fast Track Court No. 2, Bharuch in Special Atrocity Case No. 17 of 2005, whereby the respondents-original accused were acquitted of the charges under Sections 376, 452, 325, 323, 354 read with Section 114 of the Indian Penal Code and Section 3 [1] [10] of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (For short, "Atrocity Act"). 2. The facts in brief giving rise to the filing of present appeal are as under: 2.1 Victim is the wife of Nareshbhai Ranchhodbhai. She is the complainant. As per the complaint, on 13.1.2005, the complainant and her niece Ramilaben Prahladbhai Rathod and Ranjanben Mansukhbhai Rathod had gone in the field to collect wood near IPCL. At that time, the accused No. 1 came there and tried to molest her. However, because of presence of Ranjanben and Ramilaben, he left the place. She informed about the incident to the mother of accused No. 1 in the evening. On the next day, she had gone to wash her clothes near the water tank at about 11 O' clock. At that time, the wife of accused No. 1 and other accused came to fetch water. Accused No. 2 rebuked the complainant and abused her and insulted her. Other accused persons also joined and abused the complainant. On the same day, at about 2.30 hours, the opponent accused came at the house of the complainant when she was preparing food. The accused forcibly committed rape on her. At that time, niece of the complainant came there and started shouting, therefore, Mansukhbhai came there and a scuffle took place. With these allegations, the complaint was filed against the respondents. 2.2 Thereafter, investigation was carried out and the accused persons came to be arrested. Investigation was carried out and the accused persons came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 2.3 In order to bring home the charges against the accused persons, prosecution has examined following witnesses. Sr. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 2.3 In order to bring home the charges against the accused persons, prosecution has examined following witnesses. Sr. No. Name Exhibit 1 Complainant, Victim 16 2 Mansukhbhai Dahyabhai Rathod 18 3 Ranjanben Mansukhbhai Rathod 19 4 Dr. Ravishankar Rajendraprasad, Medical Officer, Civil Hospital, Bharuch 20 5 Ramilaben Prabhatbhai 32 6 G.D. Palisana, Police Sub Inspector Dahej Police Station 36 7 V.B. Joshi, Dy. S.P. 37 2.4 The prosecution has also produced following documents in support of its case:- Sr. No. Description Exhibit 1 Original complaint of the complainant 17 2 Certificate regarding physical condition complainant given by Dr. R.R. Jha 26 3 Panchnama of the place of offence 27 4 Panchnama of seizure of clothes of the complainant 28 5 Panchnama of seizure of motor cycle 29 6 Panchnama of seizure of clothes of the accused 30 7 Caste certificate of the complainant 31 8 Original report of FSL 32 2.5 Thereafter, after filing of closing purshis by the prosecution, further statements of the accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused denied the case of the prosecution and submitted that a false case is filed against them. 3. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondents. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 21/11/2005 passed by the learned Presiding Judge, Fast Track Court No. 2, Bharuch in Special Atrocity Case No. 17 of 2005, the appellant-State has preferred the present appeal before this Court. 4. Ms. C.M. Shah, learned APP appearing for the State 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 them and contended that the trial Court ought not to have acquitted the accused. She submitted that the trial Court has committed an error in appreciating the evidence of PW-1, PW-2 and PW-3. She also submitted that the medical history given by the victim is not believed by the trial Court. She submitted that the trial Court has committed an error in appreciating the evidence of PW-1, PW-2 and PW-3. She also submitted that the medical history given by the victim is not believed by the trial Court. She, therefore, prays that this appeal may be allowed by setting aside the impugned judgment. 5. On the other hand, learned counsel for the respondents-accused has contended that the trial Court has rightly appreciated the evidence on record and acquitted the accused persons of the charges levelled against them. It is also 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 evidence record, it is clear that the victim has turned hostile and she herself has not supported the case of the prosecution. It is also clear that PW-2, PW-3 and PW-5 also could not clearly state about the incident in question, therefore, their evidence also cannot be relied to convict the accused. From the evidence of these witnesses, it cannot be said that the incident in question has taken place or the accused persons are guilty of the offence, as alleged. Even from the medical evidence, it is clear that the prosecution could not prove its case beyond reasonable doubt against the respondents-accused. Not only that a compromise purshis is produced on record, wherein it is stated that there is no dispute between the parties and there was some misunderstanding between the parties, which now no longer survives. Therefore, it cannot be said that the prosecution has proved its case beyond reasonable doubt against the accused persons. In our view, there is no substantial piece of evidence to prove that the accused have committed the offence alleged against them. Therefore, the trial Court has rightly acquitted the accused persons of the charges levelled against them. In view of this and 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. Therefore, the trial Court has rightly acquitted the accused persons of the charges levelled against them. In view of this and 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 v. 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 v. 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. [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. [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. 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. 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 v. Ram Veer Singh & Ors, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs v. 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 v. 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 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. v. State, rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SC 321 , the Apex Court in para 4 has held as under: "4. v. 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 v. 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. [Vide State of Rajasthan v. 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 v. 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." 6.8 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. 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. 7. In view of the aforesaid discussion, this Criminal Appeal is dismissed. The impugned judgment and order dated 21/11/2005 passed by the learned Presiding Judge, Fast Track Court No. 2, Bharuch in Special Atrocity Case No. 17 of 2005 is hereby confirmed. Bail bond, if any, shall stand cancelled. Registry to return the R&P, if lying here, to the concerned trial Court forthwith.