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2015 DIGILAW 840 (GUJ)

State of Gujarat v. Koli Hari Lakha

2015-08-28

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT : K.S. Jhaveri, J. Before proceeding with the matter, it would be relevant to mention that the original accused Nos. 6, 10, 11 and 19 have already been expired and vide orders dated 05.08.2008 and 21.08.2015 the present appeal has been abated qua them. 2. By way of this appeal, the appellant State of Gujarat has challenged the judgment and order dated 06.09.1993, passed by the learned Additional Sessions Judge, Bhavnagar, in Sessions Case No.136 of 1992, whereby the Trial Court has acquitted the original accused respondents herein for the offence punishable under Sections 143, 144, 147, 302 read with Section 149, 307 read with Section 149, 324 read with Section 149, 323 read with Section 149, 504 read with Section 149 of the Indian Penal Code (for short "the I.P. Code") and under Section 135 of the Bombay Police Act. 3. The case of the prosecution as disclosed during the trial is that on 20.03.1992 all the accused persons with common intention to kill the deceased Sidibhai Lakhabhai gathered in the street of Fasra village armed with deadly weapons and formed an unlawful assembly and in furtherance of their common intention, they took a quarrel with the deceased and committed murder of the deceased. It is alleged that the accused No.1 and 2 inflicted axe blows on the deceased and also caused injuries to one Dhoha Lakha and Ghela Lakha. A complaint in respect of this incident was lodged by the complainant. 4. The investigation was taken up and after usual investigation, charge sheet came to be filed against the accused persons. The offence committed by the accused persons were exclusively triable by the Court of Sessions. Therefore, the learned Magistrate committed the case to the Sessions Court at Bhavnagar under Section 209 of the Code, where it was registered as Sessions Case No.136 of 1992. Charge vide Exhibit 4 came to be framed against the accused persons. They pleaded not guilty and claimed to be tried. 4.1. In order to bring home the charge against the accused persons, the prosecution examined the following witnesses: Sl. No. Name of the Witness Ex. No. 1 Dr. Rameshgiri Ramjugiri Gosai 39 2 Dr. Charge vide Exhibit 4 came to be framed against the accused persons. They pleaded not guilty and claimed to be tried. 4.1. In order to bring home the charge against the accused persons, the prosecution examined the following witnesses: Sl. No. Name of the Witness Ex. No. 1 Dr. Rameshgiri Ramjugiri Gosai 39 2 Dr. Bharatkumar Hariram 42 3 Ghelabhai Lakhabhai 46 4 Gohabhai Lakhabhai 48 5 Devuben Ravjibhai 49 6 Sobhaben Gohabhai 50 7 Radhaben Madhabhai 51 8 Nitubha Nirmalsinh 56 9 Khumansinh Mansinh 57 10 Bharatbhai Boghabhai 59 11 Natubha Malubha Zala 60 12 Bhagwanbhai Kanjibhai 61 13 Ranubhai Nanubhai 66 14 Manvarmiya Badarmiya 68 15 Dilipbhai Jesingbhai 70 16 Dr. Nayankumar Natwarlal 74 17 Jaywantsinh Ravubha Waghela 76 4.2. The prosecution also produced and relied upon the following documentary evidence during the course of the trial: Sl. No. Particulars Exh. No. 1 Inquest Panchnama 32 2 Panchnama of place of offence 58 3 FSL report 35 4 Map of scene of offence 55 5 P.M. Note 74 6 Panchnama 29 5. After conclusion of the trial, further statement under Section 313 of the Code of the Criminal Procedure, 1973 of the accused came to be recorded. The defence in the further statement is of total denial. The learned trial Judge heard the arguments of learned APP and learned advocate for the accused and after appreciating the evidence, recorded the judgment and order of acquittal against the accused, as aforesaid. Therefore, the present appeal. 6. Mr. L.R. Pujari, learned APP for the appellant-State submitted that the Trial Court has committed error in passing the impugned judgment and order. It is further submitted by the learned APP that the Trial Court has not given cogent and convincing reasons for acquitting the accused persons. It is contended by the learned APP that in view of the evidence of the complainant as well as the injured witnesses, the present appeal is required to be allowed. Therefore, he urged that this Court may allow this appeal and quash and set aside the impugned judgment and order of the Trial Court. 7. On the other hand, learned advocate for the respondents-original accused supported the impugned judgment and order of the Trial Court. He submitted that the Trial Court has rightly acquitted the respondents herein as there is no corroborative piece of evidence to connect respondents herein with the crime. 7. On the other hand, learned advocate for the respondents-original accused supported the impugned judgment and order of the Trial Court. He submitted that the Trial Court has rightly acquitted the respondents herein as there is no corroborative piece of evidence to connect respondents herein with the crime. Therefore, he urged that this Court may not interfere with the impugned judgment and order of the Trial Court. 8. We have heard learned APP for the appellant-State and learned advocate for the respondents-original accused. Learned advocates on either side have taken us through the documentary and oral evidence on record. We have independently and dispassionately applied our mind to this evidence. 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. 9. In the case of M.S. Narayana Menon @ Mani v. 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." 10. Further, in the case of Chandrappa v. 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. 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. (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." 11. 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. 12. Even in the case of State of Goa v. Sanjay Thakran & Anr. reported in (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. 12. Even in the case of State of Goa v. Sanjay Thakran & Anr. reported in (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. 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." 12.1. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors. reported in 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. 12.2. In the case of Luna Ram v. 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 anke 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 anke 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. 12.3. 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, reported in 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 appellant 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 ]." 12.4. 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, reported in 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." 12.5. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors. v. State of Karnataka, reported in JT 2013(7) SC 66. 13. 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. 14. We have perused the impugned judgment and order of the learned Trial Court. We have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned advocates for both the parties and found that the prosecution has not been able to prove the case against the present respondents original accused and therefore, we are of the considered opinion that the Trial Court has rightly acquitted the original accused respondents herein for the offences punishable under Sections 143, 144, 147, 302 read with Section 149, 307 read with Section 149, 324 read with Section 149, 323 read with Section 149, 504 read with Section 149 of the I.P. Code and under Section 135 of the Bombay Police Act. The Trail Court while acquitting the original accused respondents herein observed that the incident in question occurred on 20.03.1992 and the complaint was lodged only on 22.03.1992. The clarification in respect of the delay in lodging the complaint has not been explained. The Trial Court further observed that P.W.7 Radhaben Madhabhai in her deposition before the Police categorically stated that at the time of incident there was a dark night and therefore she could not identify the accused persons and the weapons holding by them. It appears that the witnesses who have supported the case of the prosecution are the relatives of the deceased and there are contradictions in their evidence. Considering the aforesaid facts, we are in complete agreement with the findings recorded by the Trial Court in the impugned judgment and order. Apart from that, the learned APP 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. 15. In that view of the matter, we are in complete agreement with the reasons recorded by the learned Trial Court in respect of acquitting the original accused respondents herein for the offence under Sections 143, 144, 147, 302 read with Section 149, 307 read with Section 149, 324 read with Section 149, 323 read with Section 149, 504 read with Section 149 of the I.P. Code and under Section 135 of the Bombay Police Act. Hence, this appeal lacks of merits. 16. For the foregoing reasons, the present appeal is dismissed. The impugned judgment and order dated 06.09.1993, passed by the learned Sessions Judge, Bhavnagar, in Sessions Case No.136 of 1992 is hereby confirmed. Bail bond, if any, stands discharged. Record & Proceedings, be sent back to the trial court concerned forthwith. Appeal dismissed.