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2015 DIGILAW 1157 (GUJ)

State of Gujarat v. Goslabhai Naykabhai Rathva

2015-11-03

G.B.SHAH, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. This appeal is directed against the judgment and order of acquittal dated 23.09.2005 passed by the learned Presiding Officer & Addl. Sessions Judge, Fast Track Court No.3, Chota Udepur in Sessions Case No.86 of 1999 whereby, the respondents herein original accused no.1 to 4, were acquitted of all the charges framed against them. 2. The facts in brief giving rise to the filing of present appeal are as under; On 22.07.1998 a complaint came to be filed by Surliben, wife of Khaparia Nankabhai Rathva, before Karali Police Station inter alia alleging that on 21.07.1998, at around 1800 hrs., while her husband was in the farm situated near their house, accused no.1, who happens to be the brother of Khaparia Rathva, came there and picked up a quarrel with her husband. Thereafter, at around 2300 hrs., while Khaparia Rathva was in his house, accused no.2 came there and asked him to come out. After Khaparia Rathva came out, accused no.2 caught hold of him by a rope. Thereafter, accused no.1 & 2 dragged Khaparia Rathva to a distant place. On hearing the shouts, the complainant and her daughter rushed to the place of incident. During that time, accused no.2 inflicted paliya blows to Khaparia Rathva. When the complainant intervened, accused no.3 & 4 came there and began to assault her. Thereafter, the accused fled the scene of offence. Khaparia Rathva sustained severe bodily injuries and ultimately, passed away. 2.1 Necessary investigation was done and the accused persons came to be arrested. At the end of investigation, charge-sheet was filed against the accused persons before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately, trial was initiated. 3. During the trial, the prosecution examined the following witnesses; Wt. No. Name of Witness Exhibit No. 1 Surliben Khaparia 17 2 Lilaben Khaparia 19 3 Nevsingbhai Khaparia 20 4 Dr. Biren Haribhai Patel 22 5 Vechatbhai Naikabhai 29 6 Bhagabhai Mohanbhai 32 7 Vrundavanbhai Bhimsingbhai Koli 33 8 Mohanbhai Budhiyabhai Kolcha 34 9 Chakubhai Valjibhai Nayak 36 10 Bachubhai Ramjibhai Nayak 38 11 Kishanbhai Radatiyad Rathva 39 12 Dr. Manoj Rameshchandra Kapur 44 13 Moyudin Sirajuddin Sheikh 48 4. Biren Haribhai Patel 22 5 Vechatbhai Naikabhai 29 6 Bhagabhai Mohanbhai 32 7 Vrundavanbhai Bhimsingbhai Koli 33 8 Mohanbhai Budhiyabhai Kolcha 34 9 Chakubhai Valjibhai Nayak 36 10 Bachubhai Ramjibhai Nayak 38 11 Kishanbhai Radatiyad Rathva 39 12 Dr. Manoj Rameshchandra Kapur 44 13 Moyudin Sirajuddin Sheikh 48 4. The prosecution had also produced and relied upon several documentary evidence, particularly, the complaint at Exh.50, Post mortem report at Exh.24, Medical Certificate of Surliben at Exh.26 & 45, Medical Certificate of Jagubhai Maniyabhai Rathva at Exh.28, discovery panchnama at Exh.3537 and FSL Report at Exh.53. 5. At the end of trial, the Court below recorded further statement of accused persons under section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order of acquittal against the respondents herein, which has led to the filing of present appeal. 6. Ms. C.M. Shah, learned APP, submitted that the Court below committed serious error in law and on facts in passing the impugned judgment. She submitted that the Court below has not appreciated the evidence on record in its proper perspective and was not justified in passing the impugned judgment and order of acquittal. 7. Ms. Kruti Shah, learned counsel for the accused, supported the impugned judgment and order and submitted that the Court below found the evidence on record to be unreliable and non-trustworthy. There were serious contradictions and omissions in the testimony of witnesses. Therefore, the Court below was completely justified in acquitting the accused and hence, this Court may not entertain this appeal. 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 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. 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 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. 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. 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. 755 , 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 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. 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 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. 8.5 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. 8.6 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. 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. 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 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 appellants 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. [Vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 9. 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 9. 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, 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." 9.1 Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and others v. State of Karnataka, JT 2013 (7) SC 66. 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. 10. We have gone through the oral as well as documentary evidence on record. We find that there are serious contradictions in the evidence of material witnesses, viz. PW1, PW2 and PW3. In the present case, the deceased and accused no.1 are close relatives. As per the prosecution case, the deceased was of the belief that wife of accused no.1 was a witch. The prosecution has not been able to prove that there was any motive behind the commission of alleged offence. The prosecution has not been able to prove the place of incident and no blood sample was collected by the Doctor who performed the postmortem. The complainant Surliben is said to have sustained injuries in the alleged incident. However, her clothes containing blood stains were not recovered by the prosecution. 10.1 Moreover, no rope alleged to have been used in the commission of crime was recovered by way of inquest panchnama or from the place of incident. As per the testimony of complainant, she had sustained dharia injuries. However, the medical evidence on record does not support her say. Further, no muddamal dharia was recovered. 10.1 Moreover, no rope alleged to have been used in the commission of crime was recovered by way of inquest panchnama or from the place of incident. As per the testimony of complainant, she had sustained dharia injuries. However, the medical evidence on record does not support her say. Further, no muddamal dharia was recovered. After considering the entire evidence on record, the Court below recorded the finding that both complainant Surliben and witness Lilaben were not present at the scene of offence. 11. 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-accused persons 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. 12. For the foregoing reasons, the appeal is dismissed and the impugned judgment and order is confirmed. Bail bonds stand discharged. Record and proceedings, if lying here, be sent to the Court below forthwith. Appeal Dismissed.