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2015 DIGILAW 1131 (GUJ)

State of Gujarat v. Sayababhai Mohanbhai Khant

2015-10-30

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. Jhaveri, J. 1. Both these Criminal Appeals are preferred against judgment and order dated 14.07.2005 passed by the learned Additional Sessions Judge and Fast Track Judge, Modasa in Sessions Case No. 183 of 2003. By the said judgment, accused No. 2 was acquitted of the charges for offences under Sections 302, 354, 452, 504 and 114 of the Indian Penal Code, while accused No. 1 was convicted for offences punishable under Sections 304, Part-II, 354 and 452 of IPC. For offence punishable under Section 304, Part-II, accused No. 1 was ordered to undergo five years rigorous imprisonment and fine of Rs. 5,000/- was imposed on him and in default of payment of fine, accused No. 1 was ordered to undergo simple imprisonment of one year. For offence punishable under Section 354, accused No. 1 was ordered to undergo rigorous imprisonment for one year and fine of Rs. 300/- was imposed on him and in default of payment of fine, accused No. 1 was ordered to undergo simple imprisonment of two months. For offence punishable under Section 452, accused No. 1 was ordered to undergo rigorous imprisonment for one year and fine of Rs. 200/- was imposed on him and in default of payment of fine, accused No. 1 was ordered to undergo simple imprisonment of one month. Criminal Appeal No. 1522 of 2006 is preferred for enhancement of sentence imposed on accused No. 1 by the impugned judgment for offences punishable under Sections 304, Part-II, 354 and 452 of IPC, while Criminal Appeal No. 33 of 2006 is preferred by the State against acquittal of the accused from the charges of offence punishable under Section 302 of IPC. 2. Both these appeals are arising out of the same judgment and since they are arising out of the same incident and the evidence is common in both these appeals, the same are taken up for hearing together. 3. The case of the prosecution is that on 12.6.2003 at 8 p.m. the complainant was preparing food at her residence while her husband had gone to the flour mill for grinding of grains. At that time, the accused came to the house of the complainant and tried to outrage her modesty. Thereupon, she shouted for help and upon hearing the shouts, the deceased, who was the younger brother of husband of the complainant and his wife came to rescue her. At that time, the accused came to the house of the complainant and tried to outrage her modesty. Thereupon, she shouted for help and upon hearing the shouts, the deceased, who was the younger brother of husband of the complainant and his wife came to rescue her. At that time, the accused inflicted Katar blow on the back of the deceased and fled away from the scene of offence. Thereafter, the deceased was taken to Government dispensary. Thereafter, he was shifted to Ahmedabad Civil Hospital, where he succumbed to the injuries during treatment. In the meanwhile, the complainant filed a complaint with Modasa Town Police Station. As the complaint was filed during the treatment of the deceased and as the deceased succumbed to the injuries thereafter, Section 302 was added afterwards. Charge against accused No. 2 was that after infliction of injury to the deceased, original accused No. 2 came out and gave foul abuses to the complainant and others. 3.1. Thereafter, investigation was carried out and charge sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same committed to Sessions Court. Thereafter, charge was framed against the accused persons. The accused persons pleaded not guilty and claimed to be tried. 3.2. During the trial, the prosecution had examined following witnesses; Sr. No. Name Exh. 1 Ramabhai Nanabhai Khant 6 2 Chandubhai Nanabhai Khant 8 3 Kanubhai Dhanabhai Khant 9 4 Ramabhai Kalabhai Khant 11 5 Pujaji Jemaji Khant 12 6 Ramabhai Nanabhai Khant 14 7 Jalambhai Kalabhai 15 8 Harisinh Dispsinh Solanki, Retired Constable 16 9 Dr. Devdutt Damomal Shah, Medical Officer 19 10 Pradipsinh Madhusinh Rathod 21 11 Jitendrasinh Ranjitsinh Rathod 23 12 Doliben Shanabhat Khant 24 13 Manjulaben Laxmanji Khant 26 14 Shanabhai Kalabhai 27 15 Bhikhumiya Alimiya 28 16 Govindbhai Jakshibhai Desai 29 17 Lavjibhai Nanjibhai 36 18 Dr. Maheshbhai Narottamdas Chauhan 41 19 Yusufmiya Yasinmiya 45 20 Bhalaji Dhiraji 48 3.3. The prosecution has also produced and relied upon following documentary evidence:- Sr. No. Description Exh. Maheshbhai Narottamdas Chauhan 41 19 Yusufmiya Yasinmiya 45 20 Bhalaji Dhiraji 48 3.3. The prosecution has also produced and relied upon following documentary evidence:- Sr. No. Description Exh. 1 Panchnama of place of offence 7 2 Panchnama of seizure of clothes 10 3 Panchnama of position of body 13 4 FIR 17 5 Medical Certificate of Laxmanbhai Kalabhai Khant 20 6 Panchnama regarding recovery of weapon 22 7 Complaint given by the complaint 25 8 Yadi written by P.S.I. Malpur to Medical Officer Modasa for getting medical certificate 30 9 Report of addition of Section 302 of IPC 31 10 Yadi written by P.S.I. Malpur to Revenue Circle Officer for preparing map of place of offence 32 11 Yadi written by P.S.I. Malpur to Executive Magistrate for getting copy of dyeing declaration 33 12 Forwarding report 34 13 Documents of Janvajog Entry of Shahibaug Police Station 37 14 Copy of Vardhi 38 15 Letter of permission to fill up inquest panchnama of Shahibaug Police Station addressed to Executive Magistrate 39 16 Yadi written by Shahibaug Police Station to Civil Hospital regarding handing over the body of the deceased to his relative 40 17 Postmortem report 42 18 Medical Certificate 43 19 Panchnama of production of Shal 46 20 Panchnama of position of body 47 21 Inquest panchnama 57 22 Letter of Law Assistant Biology Lab. 58 23 FSL report 59 24 Serological report of FSL 60 3.4. At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid, and also acquitting the accused persons of some of the charges levelled against them. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court. 4. Mr. L.R. Pujari, learned APP appearing for the State has submitted that the order of conviction recorded against accused No. 1 is just and proper. So far as Criminal Appeal No. 1522 of 2006 is concerned, which is preferred for enhancement of sentence imposed on accused No. 1, he has taken us through the evidence and contended that the trial Court has committed an error in imposing the sentence upon accused No. 1 inspite of voluminous evidence against him and contended that the trial Court ought not to have imposed such a lesser punishment. He also submitted that without appreciating the documentary as well as oral evidence available on the record of the case in its proper perspective, learned Judge has erred in imposing lesser punishment upon accused No. 1. He submitted that without appreciating those documentary as well as oral evidence available on the record of the case in its proper perspective the learned Judge has erred in imposing lesser punishment upon accused No. 1 for offences punishable under Sections 304, Part-II, 354 and 452 of IPC. He submitted that the reason put forth on behalf of the accused is not sufficient and reasonable for imposing lesser sentence on the accused. Therefore also, as the sentence imposed by the learned Judge is not sufficient and reasonable the same deserves to be enhanced by this Hon'ble Court he also submitted that from the available material and from facts and circumstances of the case, it is clear that the accused No. 1 deserve maximum sentence as provided under the aforesaid provisions of the Code. It is a fit case wherein the sentence imposed on accused No. 1 deserves to be enhanced by this Hon'ble Court. He further submitted that the learned Judge has failed to appreciate that there is no any mitigating circumstance to impose lesser sentence and it is very clear from the facts and circumstances of the case available on the record of the case that there is aggravating circumstances in which Hon'ble Judge ought to have imposed the maximum sentence as provided under the law. He also submitted that the learned trial Judge has committed an error in taking lenient view while imposing sentence on accused No. 1 and, therefore, the sentence imposed is required to be enhanced. Therefore, he submitted that Criminal Appeal No. 1522 of 2006 may be allowed and the sentence imposed by the trial Court may be enhanced. 5. On the other hand, Mr. Kritidev Dave, learned advocate for accused No. 1 submitted that the sentence imposed upon the accused No. 1 is just and proper and this Court may not interfere with the sentence. He submitted that the learned trial Court has after appreciating the evidence on record in its proper perspective imposed the sentence, therefore, it may not be enhanced. He also submitted looking to the offence in question, the sentence imposed may not be enhanced and this appeal may be dismissed. 6. He submitted that the learned trial Court has after appreciating the evidence on record in its proper perspective imposed the sentence, therefore, it may not be enhanced. He also submitted looking to the offence in question, the sentence imposed may not be enhanced and this appeal may be dismissed. 6. We have heard Mr. L.R. Pujari, learned APP for the State and Mr. Kirtidev Dave, learned advocate for the respondent. We have also gone through the evidence on record. Considering the evidence of the complainant and other witnesses, it is clear that presence of the accused at the place of offence is proved beyond reasonable doubt. However, considering the evidence of PW-9 and PW-18 it is clear that the injury caused was only one. Therefore, while considering the case against accused, the trial Court has rightly convicted accused No. 1 for offence punishable under Sections 304, part-II, 354and 452 of IPC and considering the overall evidence on record, the discretion exercised by the trial Court is just and proper while imposing punishment, as aforesaid. Therefore, enhancement appeal preferred by the State against conviction of accused No. 1 deserves to be dismissed. 7. So far as Criminal Appeal No. 33 of 2006 is concerned, which is preferred against acquittal of accused No. 1 from the charges of offence punishable under Section 302 of the Indian Penal Code, it is submitted by learned APP that the impugned judgment and order of acquittal is against law and evidence on record. He submitted that the learned Judge has erred in appreciating the evidence of the prosecution witnesses wherein the prosecution has established that the respondent-accused was guilty of the offence under Section 302 of IPC. He submitted that the learned Judge has committed grave error apparent on the record of the case by not properly appreciating the material available on the record of the case. He also submitted that the learned Judge has not properly appreciated the over all facts and circumstances of the case and also the evidence available on the record of the case which is sufficient to prove that the accused has committed the offence punishable under Section 302 of IPC. Therefore, the learned Judge ought to have convicted the accused persons for the aforesaid offence. Therefore, the learned Judge ought to have convicted the accused persons for the aforesaid offence. He submitted that the learned Judge has committed grave error in discarding and disbelieving the prosecution version while coming to the conclusion that prosecution has failed to prove beyond reasonable doubt that the accused has committed offence. Therefore, the impugned judgment and order passed by the learned Judge deserves to be quashed and set aside by this Hon'ble Court. He, therefore, submitted that by allowing Criminal Appeal No. 33 of 2011, impugned judgment acquitting the respondent-accused of charge of offence punishable under Section 302 may be set aside. 8. At the outset, it is 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." 8.1. 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. [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. [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. 8.2. 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. 8.3. 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." 8.4. 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. 8.5. 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 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." 8.6. 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. 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 ]". 8.7. 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. 8.7. 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. 8.8. 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. 9. We have gone through the oral as well as documentary evidence on record. It is observed by the trial Court that there was no intention on the part of the accused to commit murder of the deceased and therefore, he was rightly not convicted for the offence under Section 302 of IPC and the prosecution also could not prove its case beyond reasonable doubt for alleged offence of murder against the accused. Therefore, we find that the accused is rightly acquitted by the learned trial Judge for the charge of offence under Section 302 of IPC. From the above, it is clear that the learned Judge has not committed any error while acquitting the accused from the charge of offence under Section 302 of IPC. 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 accused of the charge of offence punishable under Sections 302 of the Indian Penal Code. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting the accused of the charge of offence punishable under Sections 302 of the Indian Penal Code. 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 and this appeal is also required to be dismissed. 10. In view of the aforesaid discussion, both these Criminal Appeals are dismissed. The impugned judgment and order dated 14.07.2005 passed by the learned Additional Sessions Judge and Fast Track Judge, Modasa in Sessions Case No. 183 of 2003 is hereby confirmed so far as accused No. 1 is concerned. If the accused has not served out the sentence, he shall surrender before the jail authorities within a period of ten weeks from today to serve out the remaining period of sentence. Bail bond, if any, shall stand cancelled. Registry to return the R & P, if lying here, to the trial Court forthwith.