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2015 DIGILAW 1092 (GUJ)

State of Gujarat v. Bharatbhai Chhaganbhai

2015-10-21

G.B.SHAH, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. The present appeal is filed by the appellant-State being aggrieved and dissatisfied with the judgment and order dated 23-7-2004 passed by the learned Joint District Judge and 2nd Fast Track Court Judge, Gondal, in Sessions Case No.94 of 1997 whereby the respondents-original accused were acquitted of the charges levelled against them. 2. Short facts of the case of the prosecution are a complaint was filed by the complainant-wife of the deceased Gabhrubhai Matra alleging inter alia that on 11-5-1997 at about 1.00 p.m., near the house of Bharatbhai Chhaganbhai situated at Jetpur, when Bharatbhai Bhavu went for natural call, accused No.1 abused him and due to intervention of Gabhrubhai Matra, accused No.2 armed with iron pipe and accused No.1 with knife inflicted various blows on Gabhrubhai Matra while accused No.3 caused injury on finger of Bharatbhai Bavku. Gabhrubhai Matra succumbed to the injuries sustained by him. In pursuance of said complaint, investigation started and as there appeared prima facie case against the accused, a charge sheet was filed against them. Thereafter charge was framed against the accused. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. 2.1 To prove the guilt against the accused, prosecution examined following witnesses: P.W. No. Name of witness Exhibit No. 1 Damjibhai Gordhanbhai 13 2 Rajsibhai Abhabhai 15 3 Dhirubhai Bhanabhai Makwana 16 4 Complainant-Nirmalaben Gabhrubhai 17 5 Dr.Naginbhai Bhovanbhai Sarvaiya 19 6 Hussainbhai Hajibhai 30 7 Bharatbhai Bavakubhai 31 8 Gajraben Gabhrubhai 32 9 Arvindbhai Arjanbhai 33 10 Harunbhai Jusabbhai 40 11 PSO, Kantaben Nathabhai Panchal 41 12 Rajubhai Dilubhai 39 13 Head Constable Bipinchandra Durgashankar Raval 34 14 PSI, Maheshkumar Dilipsinh Jadeja 45 15 PSI, Shaktisinh Natvarsinh Zala 47 2.2 The prosecution also relied on following documentary evidence: Sr. No. Description Exhibit No. 1 Inquest panchnama 8 2 Panchnama of surname 9 3 Panchnama of clothes found on the body of the deceased 10 4 Panchnama of seizure of shirt of accused 11 5 Report for blood group 12 6 Panchnama of place of incident 14 7 Discovery panchnama 17 8 Original complaint 18 9 Marnotar Form 20 10 Police yadi 21 11 P.M.Note 22 12 Case papers 23 to 25 13 OPD case papers 26 14 Case papers 27 to 28 15 Order for investigation 35 16 Entry of Janvajog 36 17 Report with complaint 37 18 Entry of janvajog register 42 19 Order for investigation 43 20 Copy of NC Register 44 21 Forwarding of muddamal to FSL 48 22 FSL receipt of muddamal 49 23 Forwarding letter of FSL 50 24 Preliminary report of FSL 51 25 Serological report of FSL 52 2.3 After filing of closing pursis by the prosecution, further statement of accused under Section 313 of Cr.P.C. was recorded. On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, respondent-accused was acquitted of the charges levelled against him, giving rise to this appeal. 3. Heard learned Additional Public Prosecutor, Ms.C.M.Shah for the appellant-State of Gujarat and learned advocate, Ms.Nayana Panchal for the respondent-accused. 4. Learned APP, Ms.Shah for the appellant, submitted that though the evidence of P.W.No.1-Dhanji Gordhanbhai, who is the panch witness of the panchnama of place of incident and P.W.No.2-Rajsibhai, who is the panch witness of inquest panchnama, P.W.No.4-Nirmalaben, who is the complainant and wife of the victim and P.W.No.8-Gajraben Gabhrubhai, case against the accused has been proved by the prosecution beyond reasonable doubt. She further contended that the evidence of aforesaid witnesses get full support from the evidence of doctor, P.W.No.5-Naginbhai Sarvaiya, who performed post mortem on the dead body of the deceased, wherein he has deposed that death of the deceased was caused due to shock and hemorrhage caused on the vital parts. He has also deposed that injuries sustained by the deceased could be possible by the use of muddamal article No.8-knife. He has also deposed that injuries sustained by the deceased could be possible by the use of muddamal article No.8-knife. In view of the above, she contended that all the ingredients of the offences charged against the accused have been proved and therefore, the accused ought to have been convicted, however, the learned trial Judge has not properly appreciated oral as well as documentary evidence produced on record and has erred in holding that the prosecution has failed to prove the charge against the accused beyond reasonable doubt. She submitted that though the prosecution has examined several witnesses supporting the case of the prosecution, the learned trial Judge has not properly appreciated their evidence and therefore, the finding recorded by the learned trial Judge that the prosecution has failed to prove the charge against the accused by leading legal, reliable and impeachable evidence is contrary to the evidence available on record. 5. Learned advocate, Ms.Nayana Panchal for the respondents-original accused, on the other hand, submitted that the trial court has rightly appreciated the evidence appearing on record and the reasons assigned for recording a finding of acquittal are reasonable and justifiable. According to her, there are nothing on record to connect the accused with the crime and therefore, the respondents accused were rightly acquitted by the trial court. She further submitted that this being an appeal against the order of acquittal, the judgment and order delivered by the trial Court deserves to be upheld as proper, as plausible reasons for acquittal have been recorded. He ultimately urged to dismiss this appeal. 6. It is required to be noted that the principles governing and regulating the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very clearly explained by the Hon'ble Apex Court in number of decisions. 6.1 In the case of Dilawar Singh and Others v. State of Haryana reported in (2015)1 SCC 737 , it has been held by the Hon'ble Supreme Court in Paragaph 36 and 37 as under: "36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. 6.1 In the case of Dilawar Singh and Others v. State of Haryana reported in (2015)1 SCC 737 , it has been held by the Hon'ble Supreme Court in Paragaph 36 and 37 as under: "36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record. 37. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415 , the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under: "42..(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." Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan v. Shera Ram (2012) 1 SCC 602 ." 6.2 In the case of State of Goa v. Sanjay Thakran & Anr. reported in (2007)3 SCC 755 , it has been held by the Hon'ble Apex Court In para 16 as under: "16. It has been so stated in State of Rajasthan v. Shera Ram (2012) 1 SCC 602 ." 6.2 In the case of State of Goa v. Sanjay Thakran & Anr. reported in (2007)3 SCC 755 , it has been held by the Hon'ble Apex Court In para 16 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 characterised 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." 6.3 In the case of Luna Ram v. 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 judgment of acquittal, we are not inclined to interfere in this appeal. 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." 6.4 Even in the case of Mookkiah and Anr. v. 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 levelled 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 appellant very much emphasised that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyse 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. 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 ]" 6.5 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, reported in AIR 1981 SC 1417 , wherein it is held as under:"... "This Court has observed in Girija Nandini Devi v. Bigendra Nandini Choudhary 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." 6.6 Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors v. State of Karnataka, reported in JT 2013(7) SC 66. 6.7 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then elaborate discussion of evidence or assigning fresh reasons are not necessary. 7. We have considered the above referred rival submissions made by the learned advocates for the respective parties in light of the principles laid down in the aforesaid decisions. 8. It appears from the medical evidence and injuries referred in Column No.17 of the post mortem note and cause of death that the deceased died due to shock and hemorrhage. As per column No.17 of the post mortem note, there were several injuries sustained by the deceased on the vital organs. Thus, it is a case of culpable homicide. 8. It appears from the medical evidence and injuries referred in Column No.17 of the post mortem note and cause of death that the deceased died due to shock and hemorrhage. As per column No.17 of the post mortem note, there were several injuries sustained by the deceased on the vital organs. Thus, it is a case of culpable homicide. However, the trial court has observed in paras 10 to 14 of the impugned judgment that though the deceased died due to grievous injuries inflicted on the vital organs, prosecution could not prove through the evidence of any of the witnesses that the accused are liable for causing the death of the deceased. Therefore, though the unfortunate incident of causing death of the deceased took place, no evidence could be put forward by prosecution for proving the case against the accused beyond reasonable doubt and therefore, the trial court, on an elaborate discussion of the entire oral and documentary evidence in true perspective, has acquitted the accused. This Court is, therefore, of the opinion that the trial court was completely justified in acquitting the accused of the charges levelled against them. Therefore, the findings recorded by the trial court are absolutely just and proper and no illegality or infirmity has been committed by it in the said findings and therefore, we do not find it necessary to interfere with the same. 9. Learned Addl. Public Prosecutor is not in a position to show any evidence to take a view contrary to the view taken by the trial court 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. 10. In the result, the appeal stands dismissed. The impugned judgment and order dated 23-7-2004 passed by the learned Joint District Judge and 2nd Fast Track Court Judge, Gondal, in Sessions Case No.94 of 1997 is hereby confirmed. Bail bond, if any, stands cancelled. Record and proceedings, if any, shall be sent back forthwith to the trial court. Appeal Dismissed.