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2015 DIGILAW 1117 (GUJ)

State of Gujarat v. Sunil Prabhunath Mishra

2015-10-28

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. JHAVERI, J. 1. Heard learned Additional Public Prosecutor Mr. L.R. Pujari for the appellant-State and learned Advocate Mr. Amit N. Patel for the respondents No. 1-3. 2. By way of this Appeal, the Appellant-State has felt aggrieved by the judgment and order of acquittal dated 30.11.2005 of the learned Presiding Officer, 2nd Fast Track Court, Valsad in Sessions Case No. 67 of 2005 whereby the respondents herein were acquitted of the offences punishable under Section 376 and 201 of the Indian Penal Code. 3. The case in brief is as under:- 3.1. It is the case of the prosecution that the complainant is serving as a Watchman in a Uniflex Co. since the last one and half years and he has three sons and three daughters in the family. Out of the aforesaid children, the victim aged 7 years was studying in Standard II. It is further the case of the prosecution that since there was an annual function in the school, the complainant alongwith his daughters - Puja and the victim had gone to watch the programme. During the programme at about 9.00 pm, there was a power failure and therefore, the parents of the children started searching for their children, the complainant also did so and during the search one daughter - Puja was found but the victim was not found. Thereafter, after a period of 10 minutes, three persons informed the complainant that his daughter was crying in an open ground near the school. Thereafter, when power recurred, the complainant found that his daughter was bleeding from the legs and her clothes were also stained with blood. Someone had also washed the underwear and the footwear of the victim in the water tank of the school and thrown the same in the compound. It is the case of the prosecution that the victim was enticed by some unknown person with an ice-cream and thereby the above offence was committed on her. 3.2. It is further the case of the prosecution that the organizers of the programme had advised that the victim be taken to the hospital. The victim was taken to the hospital of one - Dr. Thakkar who refused to give treatment and told instead that a police complaint should be lodged. 3.2. It is further the case of the prosecution that the organizers of the programme had advised that the victim be taken to the hospital. The victim was taken to the hospital of one - Dr. Thakkar who refused to give treatment and told instead that a police complaint should be lodged. The three organizers took the victim alongwith the younger brother of the complainant to Umargaon Mamta Hospital, wherein it is alleged that the accused persons stated that no treatment would be given if any police case is filed and it is alleged that the accused had stated that a declaration should be given that no case would be filed. However, the Doctor at this hospital also refused to give treatment. On advice of the organizers, the victim was taken to Daheri hospital, where again the victim was refused treatment. The victim was then taken to Bhilad Hospital where on refusal to give treatment, she was shifted to Selvas Government Hospital, where the doctor was not present, the nurses refused to give treatment and ultimately, the victim was shifted to Asharam Krupa Hospital, Vapi and the treatment commenced. The complaint was filed before the Umargaon Police Station stating the above facts. It is stated that since the accused persons compelled the complainant not to file the complaint before the police, they had indirectly abated in the above cited offences. 3.3. On complaint being filed, investigation was carried out. The charge-sheet was submitted in the Court of the learned Magistrate which was committed to the learned Sessions Court. The respondents accused pleaded not guilty and claimed to be tried. At the end of trial, the learned Presiding Officer, Fast Track Court No. 2, Valsad in Sessions Case No. 67 of 2005 acquitted the accused of the above charges. 3.4. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exhibit Complainant – Mohansinh Motisinh 12 Witness Tushar Narendrabhai Dixit 15 Witness Narendrabhai Biharilal 17 Bhagwatiprasad Mittal 19 Investigating Officer Laljibhai Shankarbhai 25 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exhibit Original complaint 14 Certificate of the Doctor 16, 18 & 22 Panchnama of the clothes of the prosecutrix 21 Letter of the FSL 23 Forwarding from regarding muddamal of the Police Sub Inspector, Umargam 24 4. Learned Additional Public Prosecutor Mr. Learned Additional Public Prosecutor Mr. L.R. Pujari has submitted that the learned Judge has not properly appreciated the evidence of Dr. Tushar Narendrabhai Dixit at Exhibit 15, wherein he has admitted the fact that on 20.9.2005, the victim was produced before him for treatment, and the history was given with regard to commission of rape by one unknown person. The doctor has further stated that looking to the reputation of the school, the complainant was prevented by the trustees of the school not to file complaint before the police authorities. Further, it is submitted that the victim was shifted to various hospitals, yet the victim was not provided treatment at these hospitals presumably under the pressure or influence of the trustees/respondents. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge be upturned. 5. Learned Advocate for the respondents No. 1-3 Mr. Amit N. Patel has relied on the various judgments of the Hon'ble Supreme Court which are detailed herein-below and has further submitted that the learned Presiding Officer has given cogent and convincing reasons to arrive at the acquittal of the accused. Hence, it is submitted that the judgment and order of the learned Judge requires no interference by this Court:- 5.1. In the case of M.S. Narayana Menon @ Mani vs. State of Kerala and Another, (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 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." 5.2. Further, in the case of Chandrappa vs. State of Karnataka, (2007) 4 SCC 415 , the Apex Court laid down the following principles: 42. Further, in the case of Chandrappa vs. State of Karnataka, (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, 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." 5.3. 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. 5.4. Even in the case of State of Goa vs. Sanjay Thakran & Another, (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. 5.4. Even in the case of State of Goa vs. Sanjay Thakran & Another, (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 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." 5.5. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh vs. Ram Veer Singh & Others, 2007 SCW (AIR) 5553 and Girja Prasad (Dead) by LRs vs. State of Madhya Pradesh, 2007 SCW (AIR) 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 5.6. In the case of Luna Ram vs. Bhupat Singh and Others, (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 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 post-mortem 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. 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." 5.7. Even in a recent decision of the Apex Court in the case of Mookkiah and Another vs. State, rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SCC 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 appellant 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. State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 ." 5.8. 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 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." 5.9. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Others vs. State of Karnataka, JT 2013 (7) SC 66. 6. We have heard learned Advocates for the parties and perused the records of the case. While going through the well reasoned judgment and order of the learned Judge, the learned Judge has in Paragraphs 7 to 13 clearly held that nothing surfaces on record to establish the case of the prosecution that the respondents were instrumental in restraining the complainant from filing a police complaint. Hence, this Court is in full agreement with the reasons given and findings recorded by the Trial Court while acquitting the accused and adopting the said reasons. Apart from that, the learned Additional Public Prosecutor Mr. L.R. Pujari for the appellant - State is not in a position to show any evidence to take a contrary view in 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. L.R. Pujari for the appellant - State is not in a position to show any evidence to take a contrary view in 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. In that view of the matter, we are in complete agreement with the reasons recorded by the learned trial court and in our view, the impugned Judgment is just, legal and proper and requires no interference by this Court. 7. The Appeal is devoid of merits and stands dismissed. The judgment and order of acquittal dated 30.11.2005 of the learned Presiding Officer, 2nd Fast Track Court, Valsad in Sessions Case No. 67 of 2005 stands confirmed. Bail and bail bond, stands cancelled. Record and proceedings be sent to the concerned Trial Court forthwith. Appeal Dismissed.