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2015 DIGILAW 1271 (GUJ)

Mahesh Virchand Pattani v. State of Gujarat

2015-12-10

K.S.JHAVERI, R.P.DHOLARIA

body2015
JUDGMENT : K.S. Jhaveri, J. 1. Both these Criminal Appeals are preferred against judgment and order dated 27.1.1999 passed by learned Additional Sessions Judge, Court No. 10, Ahmedabad in Sessions Case No. 119 of 1998. By the impugned judgment, accused No. 1 is convicted for the offence under Section 323 of the Indian Penal Code (for short, "IPC"), while accused No. 1 was acquitted of the charges for the offence punishable under Sections 302, 201, 34 and Section 120-B of IPC. Being aggrieved by the impugned judgment, accused No. 1 has preferred Criminal Appeal No. 228 of 1999, while Criminal Appeal No. 365 of 1999 is preferred by the State against acquittal of accused No. 1 from the charges of offences punishable under Sections 302, 201, 34 and Section 120-B of IPC. 2. As these appeals are arising out of the same judgment rendered in connection with the same incident and the evidence is also common in all these appeals, the same are taken up for hearing together. 3. The case of the prosecution is that father of accused No. 1 had borrowed Rs. 50,000/- from Zinabhai Nathabhai Pattani and as they were relatives no writing was obtained. It is alleged that father of the complainant demanded money back but it was not returned. It is further alleged that on 21.10.1997 at about 7 p.m. the appellant herein-accused No. 1 came to the house of the complainant and asked complainant's father to come with him to settle the accounts. Therefore, his father went with the accused in a rickshaw. He was taken near Chamunda Bridge and there he was beaten. At about 7.30 p.m., the deceased was brought back in drunken condition and it was told he is in this condition as he has consumed liquor. Thus, the accused misled the family members of the deceased. At that time, the deceased was dead and therefore they went to the police station, however, the police did not respond to them. After receipt of postmortem report, a Special Criminal Application was filed before this High Court and as per the direction of this Court, a complaint was filed in the Metropolitan Magistrate Court. Said complaint was sent for investigation. 3.1 Thereafter, investigation was carried out and two accused persons were arrested in connection with the present case. Thereafter, charge sheet was submitted against the accused persons in the Court of learned Magistrate. Said complaint was sent for investigation. 3.1 Thereafter, investigation was carried out and two accused persons were arrested in connection with the present case. Thereafter, charge sheet was submitted against the accused persons 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 Exhibit 1 Dr. Chandrakant Ramanlal Darji 12 2 Arvindkumar Zinabhai 15 3 Geetaben Punambhai 26 4 Veniben Zinabhai 27 5 Champaklal Mohanlal Darji 28 6 Radhaben Mashaji 32 7 Parsottam Somabhai Parmar 33 3.3 The prosecution has also produced and relied upon following documentary evidence:- Sr. No. Description Exh. 1 Report of accidental death 18 2 Inquest panchnama 19 3 Postmortem Note 13 4 Opinion given by Dr. Darji 14 5 Panchnamas 20, 21, 22, 34, 39 6 Original complaint 16 7 Forwarding letter to send muddamal for examination to FSL 23 8 Receipt of aforesaid letter 24 9 Report of FSL 25 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. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court. 4. Mr. MHM Shaikh, learned advocate for accused No. 1-appellant of Criminal Appeal No. 228 of 1998 has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellant. It is also submitted that the prosecution has not proved the chain of circumstances and as this is a case based on circumstantial evidence, the trial Court has committed an error in convicting the accused for offence punishable under Section 323 of IPC. It is submitted that the first complaint was given on the second day of the incident, however, no motive was mentioned in such complaint and it was also not mentioned that an amount of Rs. 50,000/- was to be recovered from the deceased. For the first time such story is mentioned in the complaint given before the Metropolitan Magistrate Court and names of four accused persons were given. 50,000/- was to be recovered from the deceased. For the first time such story is mentioned in the complaint given before the Metropolitan Magistrate Court and names of four accused persons were given. He also submitted that in view of order passed in Special Criminal Application No. 38 of 1998 on 1.7.1998 by this Court, learned Metropolitan Magistrate was directed to order further investigation into the offence under Section 173 (viii) of the Code of Criminal Procedure. He also submitted that the evidence on record is not sufficient to convict accused No. 1 for offence punishable under Section 323 of IPC, therefore, benefit of doubt should have been given to him. He also submitted that there was no eye witness to the incident, therefore also the learned trial Judge committed an error in convicting accused No. 1. He further submitted that two witnesses have turned hostile, while other witnesses on whose evidence reliance is placed are relatives of the complainant and they can be said to be interested witnesses. He submitted that on the basis of evidence of such witnesses, present appellant could not have been convicted by the trial Court. He also contended that there is no cogent or reliable evidence to convict accused no1. In view of this, he submitted that this appeal may be allowed by acquitting accused No. 1. 5. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against accused No. 1 is just and proper and she has supported the conviction recorded by impugned judgment. So far as Criminal Appeal No. 365 of 1999 is concerned, which is preferred against acquittal of accused No. 1 from charges of offence under Sections 302, 201, 34 and 120-B of IPC, he has taken us through the evidence and contended that the trial Court has committed an error in acquitting accused No. 1 inspite of voluminous evidence against him and contended that the trial Court ought not to have acquitted him from the charges levelled against him. She submitted that the learned trial Judge has not properly appreciated the evidence on record and acquitted accused No. 1. She also submitted that learned trial Judge has not properly appreciated the evidence of Dr. Darji, Exh. She submitted that the learned trial Judge has not properly appreciated the evidence on record and acquitted accused No. 1. She also submitted that learned trial Judge has not properly appreciated the evidence of Dr. Darji, Exh. 12, wherein it is clearly stated that there were three external injuries, two abrasions and one contusion at the left lumber region near axillary line of the deceased. There were internal injuries also and spleen of the deceased was ruptured. She also submitted that the doctor opined that such injuries were not caused because of fall. She, therefore, submitted that it can be said that accused No. 1 is also guilty of offence under Sections 302, 201, 34 and Section 120-B of IPC. She also submitted that the trial Court has committed an error in not believing the statements of the witnesses and considering the evidence on record, accused No. 1 should have been convicted for the offences, as alleged. She submitted that this is a fit case for reversing the acquittal of accused No. 1 under Sections 302, 201, 34 and 120-B of IPC. She also submitted that since chain of circumstances is established, the accused No. 1 should be held guilty for offence punishable under Section 302 of IPC. Therefore, she submitted that Criminal Appeal No. 365 of 1999 may be allowed and accused No. 1 should be convicted for the offences, as alleged. 6. We have heard learned advocate Mr. MHM Shaikh for the accused and learned APP, Ms. Shah for the State. We have also gone through the impugned judgment as well as evidence on record. From the evidence on record, it is clear that no one had seen the accused beating the deceased. However, the strong factor which is going against the accused is that he had taken the deceased along with him at 7 p.m. on the day of the incident and when they returned back at 7.30 p.m. the deceased had succumbed to the injuries. The accused has not explained anything with regard to this and he has failed to put forward his defence as to how the deceased sustained injuries. So far as injuries are concerned, as per the evidence of Dr. Darji, Exh.12, it is clear that there were three external injuries, two abrasions and one contusion at the left lumber region near axillary line of the deceased. So far as injuries are concerned, as per the evidence of Dr. Darji, Exh.12, it is clear that there were three external injuries, two abrasions and one contusion at the left lumber region near axillary line of the deceased. There were internal injuries also and spleen of the deceased was ruptured. However, in his cross examination, Dr. Chandrakant Darji, Exh.12, has stated that if a person fall from the height of 4 to 5 ft. and bladder is ruptured it is likely that there may be blood clot around the blood. It is also stated that if the pressure is on the spleen, it may also rupture if a person fall from the height of 4 to 5 ft. He also stated that if there is sudden failure of respiratory system, there may be oozing from mouth and a person may have stool pass. Taking into consideration the above evidence, it is rightly held by the trial Court that though the injuries were caused by accused No. 1, those injuries were simple in nature. Therefore, the prosecution has failed to prove under Sections 302, 201, 34 and 120-B of IPC against present appellant-accused No. 1 and he is rightly convicted for offence under Section 323 of IPC. Therefore, both these appeals are required to be dismissed. 7. So far as Criminal Appeal No. 365 of 2009 filed by the State against acquittal of accused No. 1 for offences under Sections 302, 201, 34 and 120-B of IPC is concerned, 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." 7.1 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." 7.2 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. 7.3 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. 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." 7.4 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. 7.5 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." 7.6 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 leveled 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 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 v. Sohan Lal and Others, (2004) 5 SCC 573 ]" 7.7 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. [Vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 ]" 7.7 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 v. 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." 7.8 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. Therefore, we find that accused No. 1 is rightly acquitted by the learned trial Judge for the charge of offence punishable under Sections under Sections 302, 201, 34 and 120-B 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. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting accused No. 1 from the charge of offences under Sections 302, 201, 34 and 120-B of IPC. 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 appeal of the State and this appeal is also required to be dismissed. 8. In view of above, both these Criminal Appeals are dismissed. 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 appeal of the State and this appeal is also required to be dismissed. 8. In view of above, both these Criminal Appeals are dismissed. Impugned judgment and order dated 27.1.1999 passed by learned Additional Sessions Judge, Court No. 10, Ahmedabad in Sessions Case No. 119 of 1998 convicting accused No. 1-appellant herein for the offence under Section 323 of IPC is confirmed. Bail bond, if any, of the accused stands cancelled. Since accused No. 1 is on bail, he shall surrender before the jail authorities within a period of ten weeks from today to serve out the remaining period of sentence. The period of imprisonment already undergone by the accused No. 1 shall be given set off. Record and proceedings, if lying here, be sent to the Court below forthwith.