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2015 DIGILAW 826 (GUJ)

Chhatrasinh B. Patel v. State of Gujarat

2015-08-24

G.B.SHAH, K.S.JHAVERI

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Judgment K.S. Jhaveri, J. 1. These Criminal Appeals, filed by the State as well as the original accused Nos. 1, 2 and 4, have been directed against the judgment and order dated 17/09/1994 passed by the learned Additional Sessions Judge, Panchmahals, camp: Dahod in Sessions Case No. 199 of 1992 whereby, the learned Sessions Judge was pleased to convict all the accused for the offence punishable under Sections 452, 304(II) and 114 of the Indian Penal Code, 1860 ('the IPC' for brevity). Besides, the accused No. 4 was also convicted for the offence punishable under Section 323 of the IPC. Accordingly, for the offence punishable under Section 452 of the IPC, the learned trial Judge awarded the accused Nos. 1, 2 and 4 three years' rigorous imprisonment and fine of Rs. 200/- and in default of payment of fine, further simple imprisonment for a period of 10 days, whereas, for the offence punishable under Section 304(II) r/w. Section 114 of the IPC awarded five years' rigorous imprisonment and fine of Rs. 200/- and in default of payment of fine, further imprisonment for a period of 10 days. The accused No. 3 was convicted for the sentence he had undergone as an under trial prisoner and fine of Rs. 200/- for each offence totalling to Rs. 400/- and in default of payment of fine, to further undergo the simple imprisonment for 10 days. For the offence punishable under Section323 of the IPC, the accused No. 4 was awarded imprisonment for simple imprisonment for a period of one month and fine of Rs. 200/- and in default of payment of fine, to further undergo the simple imprisonment for 07 days. Accordingly, the accused Nos. 1, 2 and 4 have preferred the Criminal Appeal being No. 1003 of 1994 against conviction whereas, the State has preferred the Criminal Appeals being Nos. 1099 and 1100 of 1994 respectively against acquittal as well as for enhancement of sentence. 2. Accordingly, the accused Nos. 1, 2 and 4 have preferred the Criminal Appeal being No. 1003 of 1994 against conviction whereas, the State has preferred the Criminal Appeals being Nos. 1099 and 1100 of 1994 respectively against acquittal as well as for enhancement of sentence. 2. Brief facts of the prosecution case are that on 08/04/1992 when complainant - deceased - Shanabhai Dalabhai resident of Paniya, Tal.: Limkheda, was on duty at a glass factory, the deceased said not to cut and take away Mahuda tree and wires from the factory to the original accused No. 2 - Bhagabhai Navalabhai Patel and keeping grudge of the same, the accused persons went to the place of the deceased on the same day at about 9:30 p.m. and giving filthy abuses, assaulted the deceased with kick and fist blows. On hearing the shouts of the deceased, Dholiben, her wife, came out and intervened and hence, she was also assaulted with stone and hence, she also shouted and hence, the other persons, namely Saliyabhai, Gopisinh Shanabhai and Bai Somaliben Gopisinh reached the spot. The accused, then, went their home. So as to see that the deceased could not go to the police station at Limkheda to lodge the complaint, the accused also obstruct their way. Hence, on the next day i.e. on 09/04/1992 at about 8:00 a.m., the deceased and other injured lodged complaint with Limkheda Police Station for the offence punishable under Sections 323, 504 and 114 of the IPC. The deceased and the other injured were referred to the Primary Health Center where they took preliminary treatment, however, the deceased was referred to the hospital at Godhra, where, at about 11:45 a.m., the deceased succumbed to the injuries and accordingly, offence punishable under Sections 302 of the IPC came to be added. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court, Panchmahals camp: Dahod. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.3 In order to bring home the charge against the accused, the prosecution has examined as many as 07 witnesses and also produced several documentary evidence. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.3 In order to bring home the charge against the accused, the prosecution has examined as many as 07 witnesses and also produced several documentary evidence. 2.4 At the end of the trial and after recording Further Statements of the accused under Section 313 of Criminal Procedure Code, 1973 ('the Code' for brevity) and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused as aforesaid by impugned judgment and order. 2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the State as well as the original accused Nos. 1, 2 and 4 have preferred the present appeals. 3. We have heard Ms. Pujari, learned Additional Public Prosecutor, for the appellant - State in Criminal Appeal No. 1099 and 1100 of 1994 and Mr. Sunil Joshi, learned advocate appearing for the original accused Nos. 1, 2 and 4, appellants in Criminal Appeal No. 1003 of 1994. 4. At the outset, Mr. Joshi, learned advocate for the appellants in Criminal Appeal No. 1003 of 1994 - original accused Nos. 1, 2 and 4, submitted that since the accused have already undergone the sentence imposed upon them, he does not press the appeal. Accordingly, Criminal Appeal No. 1003 of 1994 stands disposed of as not pressed. 5. Mr. Pujari, learned Additional Public Prosecutor for the appellant - State, submitted that in view of the medical evidence of Dr. V.N. Jain, recorded at exh. 15, the death of the deceased was due to 'Cardiac arrest due to Myocardial infarction'. He also took us to the deposition of Dr. Savjibhai Gavjibhai Bhabhor, recorded at exh. 12, as per whom, following injuries were found to be sustained by the deceased: i) severe pain in chest and problem in inhaling; ii) pain in left thigh; iii) heartbeats could not be heard properly; iv) Pulse was slow; v) Blood pressure could not be measured. 5.1 Moreover, following injuries were found to be sustained by Dholiben, the wife of the deceased: i) cut wound in the middle part of the head measuring 1x1/2 cm. 5.1 Moreover, following injuries were found to be sustained by Dholiben, the wife of the deceased: i) cut wound in the middle part of the head measuring 1x1/2 cm. x 1/3 cm.; ii) swelling and pain in right hand; iii) swelling near the injury shown at serial No. 1. 5.2 The learned Additional Public Prosecutor submitted that the learned trial Judge has convicted the accused for the offence punishable under Section 452, 304(II), 323 and 114 of the IPC respectively, as aforesaid, only, however, the accused ought to have convicted for the other offence also in view of the oral and documentary evidence on record, in view of the fact that the death of the deceased was caused due to the injuries sustained by him alleged to have been inflicted by the accused. Moreover, he submitted that the learned trial Judge has committed a grave error in imposing lesser sentence to the original accused Nos. 1, 2 and 4 and so far as the original accused No. 3 is concerned, for the period he had already undergone and requested to enhance the sentence. Making above submissions, he requested to allow the present appeals. 6. We have heard the learned advocates for the respective parties. 6.1 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 Hon'ble Apex Court in catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr., reported in (2006) 6 SCC 309, the Hon'ble 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 Hon'ble 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. 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 SCC 415 the Hon'ble Apex Court has 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, reappreciate 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." 6.3 Thus, it is a settled principle that while exercising appellate powers, 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 a recent decision of the Hon'ble Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007) 3 SCC 75, the 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." 6.5 Similar principle has been laid down by the Hon'ble Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors., reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of M.P., reported in 2007 AIR SCW 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 Hon'ble 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 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 a 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." 6.7 Even in a recent decision of the Hon'ble Apex Court in the case of Mookiah and Anr. Vs. State rep. by the Inspector of Police, Tamil Nadu reported in AIR 2013 SC 321 , the Hon'ble 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 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 : ( AIR 2004 SC 4520 : 2004 AIR SCW 4321)]" 6.8 It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write 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 Hon'ble 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 Chaudhary ( (1967)1 SCR 93 : AIR 1967 SC 1124 ) that it is not the duty of the appellate court when it agrees with the view of the trial 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 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence at length is not necessary. 7. We have examined the matter carefully and gone through the evidence on record. We have appreciated, re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Hon'ble Apex Court. We find that the trial Court while considering the evidence on record, has very elaborately discussed the evidence adduced before it. Further, the learned Additional Public Prosecutor for the State in these appeals is not in a position to show any evidence to take a contrary view in the matter or 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 the material evidence on record. In that view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order. In that view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order. We are, therefore, of the considered opinion that the findings recorded by the trial Court in passing the impugned judgment and order which is absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are in complete agreement with the reasonings given and the findings arrived at by the trial Court. 8. In view of the aforesaid discussion, present appeals having found without any substance, fail and are dismissed accordingly. The impugned judgment and order dated 17/09/1994 passed by the learned Additional Sessions Judge, Panchmahals camp: Dahod in Sessions Case No. 199 of 1992 is confirmed. Bail bonds, if any, shall stand cancelled. Registry to return the record and proceedings to the trial Court forthwith. Appeal Dismissed.