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2015 DIGILAW 1125 (GUJ)

State of Gujarat v. Dineshbhai Dhavjibhai Varali

2015-10-29

G.BSHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. Jhaveri, J. 1. Heard learned Additional Public Prosecutor Ms. C.M. Shah for the appellant - State and learned Advocate Mr. for the respondents No. 1 - 4 Mr. Adil R. Mirza. 2. The appeal qua respondent No. 5 - Natubhai Makanbhai Patel has abated pursuant to our order dated 27.10.2015. 3. By way of this Appeal, the Appellant - State has felt aggrieved by the judgment and order of acquittal dated 04.06.2005 of the learned Sessions Judge, Valsad in Sessions Case No. 591/2002 whereby the respondents herein were acquitted of the offences punishable under Sections 143, 147, 186, 332, 506(1) and 395 of the Indian Penal Code. 4. The case in brief and the incident which occurred on 06.02.2002 are as under:- 3.1. Complainant - Bhagubhai Laxmanbhai had filed a complaint on 07.02.2005 with Dharampur Police Station alleging that during the night patrolling on 06.02.2002, they had received intelligence tip that one tempo bearing registration No. GJ-15-X-1350 was coming from Fulwadi loaded with illegal sagwood and therefore, they arranged a watch for the said tempo. The tempo was spotted alongwith one motorcycle driven by the accused No. 2 - Vishram Naginbhai Patel. Upon giving a signal to halt, the tempo driver tried to escape, but anyhow, they halted the vehicle and found the sagwood in the tempo. At the time of the interrogation, the accused No. 2 came on the motorcycle and requested for release of the vehicle and when they were being to the Office, the other accused also came there and started altercation with the Forest Officer. It is further the case of the prosecution that these accused persons halted the tempo and dragged out the driver from the tempo and accused No. 3 - Mahendra started beating the driver and tearing his clothes. Upon intervention by the complainant, his clothes were also torn and accused No. 3 - Mahendra ran away with the tempo and accordingly, the complaint was lodged with Dharampur Police Station. 3.2. After collection of the evidence, the accused No. 1 to 3 were arrested on 17.06.2002 and remaining accused No. 4 and 5 were arrested on 04.07.2002 and after completion of the investigation, the chargesheet came to be filed before the competent Court. Since the offence was exclusively triable by the Court of Sessions, the same was committed to the Court of Sessions. Since the offence was exclusively triable by the Court of Sessions, the same was committed to the Court of Sessions. Plea of each of the respondents accused were recorded wherein the respondents accused pleaded not guilty and claimed to be tried. 3.3. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exhibit PW1 Hiteshbhai Pravinbhai Thakore 15 PW2 Bhagubhai Laxmanbhai 18 PW3 Bistubhai Sonkubhai 24 PW4 Maruben Bahilubhai 25 PW5 Rameshbhai Narsinhbhai Patel 26 PW6 Rameshbhai Dhanjibhai 27 PW7 Rameshbhai Chhaganbhai Chaudhary 30 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exhibit Complaint dated 07.02.2002 19 Panchnama of the scene of offence dated 07.02.2002 16 Panchnama dated 07.02.2002 of the clothes recovered from the complainant and the witness 17 Panchnama dated 12.02.2002 of Tempo No. GJ-15-AX-1350 20 Panchnama of the position of the body 21 – 22 Panchnama of the Motor Cycle No. GJ-15-5259 23 3.4. At the conclusion of the trial, the learned Sessions Judge, Valsad passed the above judgment and order acquitting the respondent accused of all the charges. 5. Learned Additional Public Prosecutor Ms. C.M. Shah has submitted that the learned Sessions Judge ought to have appreciated the version of prosecution witness No. 3 viz. Bistubhai Sonakubhai at Exhibit 24; this witness did not support the case of the prosecution at the time of the examination-in-chief and was declared hostile. However, during the course of cross examination conducted by the prosecution, he has admitted to have given a statement before the police that when the tempo was halted by them; accused No. 2 - Vishram came there and requested for releasing the tempo, the request of the accused was turned down by the concerned officer and they started the vehicle. At that time, the tempo was halted by the accused persons and the accused No. 3 - Mahendra caught this witness, dragged him out from the tempo and thereafter, started to flee away with the vehicle. This witness has further stated that in this scuffle, the shirts of the officers were torn. 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. 6. Learned Advocate for the respondents Mr. This witness has further stated that in this scuffle, the shirts of the officers were torn. 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. 6. Learned Advocate for the respondents Mr. Adil R. Mirza has relied on the various judgments of the Hon'ble Supreme Court which are detailed hereinbelow and has further submitted that looking to the well reasoned judgement and order of the learned Sessions Judge no interference is called for by this Court. 6.1. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006) 6 S.C.C. 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." 6.2. Further, in the case of Chandrappa Vs. State of Karnataka reported in (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." 6.3. 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. 6.4. Even in the case of State of Goa V. Sanjay Thakran & Anr. reported in (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." 6.5. 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 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of M.P. 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. 6.6. 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 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." 6.7. 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 SCC 321 , the Apex Court in para 4 has held as under:- "4. 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 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. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 ]." 6.8. It is also a settled legal position that in an 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. It is also a settled legal position that in an 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, reported in 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." 6.9. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors Vs. State of Karnataka, reported in JT 2013(7) SC 66. 7. 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 Sessions Judge, it is clearly held that even after an opportunity was given and after the complaint was lodged, the prosecution failed to prove the case in its favour. The learned Judge has rightly appreciated the evidence of the complainant and the statements of other witnesses which are not in consistence with the statement of the complainant. Hence, this Court is in full agreement with the reasons given and findings recorded by the Trial Court while acquitting the accused and also the benefit of doubt granted to the accused. Apart from that, the learned Additional Public Prosecutor Ms. C.M. Shah 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. 8. 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. 8. The Appeal is devoid of merits and stands dismissed. The judgment and order of acquittal dated 04.06.2005 of the learned Sessions Judge, Valsad in Sessions Case No. 591/2002 stands confirmed. Bail and bail bond, stands cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.