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2015 DIGILAW 853 (GUJ)

State of Gujarat v. Dilipkumar Jethalal Tanna

2015-09-02

G.B.SHAH, K.S.JHAVERI

body2015
Judgment K.S. Jhaveri, J. 1. These appeals, under sections 377 and 378 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code'), are directed against the judgment and order dated 24/07/1998 passed by the learned Additional Sessions Judge, Gondal in Sessions Case No. 15 of 1996, by which, the learned trial Judge was pleased to convict the original accused No. 2 for the offence punishable under Section 324 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and sentence to undergo rigorous imprisonment for one year and a fine of Rs. 500/- and in default of payment of fine, further to undergo rigorous imprisonment for 15 days, whereas, acquitted all the accused for the offence punishable under Sections 452, 307, 506(2), 302, 34 and 114 of the IPC and Section 135 of the Bombay Police Act. 2. The brief facts of the prosecution case are that on 26/09/1995 at about 2:30 p.m. when complainant - Jaykrushna Popatlal Lohana was there at his residence, original accused Nos. 1 and 2 along with other two persons, came there on scooter and called the complainant out and hence, the complainant opened the door and stood at the doorstep, at that time, the accused assaulted the complainant with knife. The accused No. 2 gave a knife blow near the stomach on the left side and hence, the complainant shouted due to which, the daughter, the wife and the maid of the complainant came out. The accused then, threatened to kill the complainant if the complainant would not vacate his premises and then, all the four accused persons went away from there and while leaving, they threatened the complainant that they would go to their factory and kill the son of the complainant. Thereafter, the complainant went to the hospital where his statement was recorded by the Executive Magistrate and was treated by the doctor, at that time, dead-body of son of the complainant namely Parag in bleeding condition was brought there. Accordingly, complaint came to be lodged against the accused for the offence alleged against them. 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, Gondal. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 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, Gondal. 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 respondents - original accused, the prosecution has examined as many as 25 witnesses and also produced several documentary evidence. 2.4 At the end of the trial and after recording the Further Statements of the accused under Section 313 of Code and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the accused Nos. 1, 3 and 4 of all the charges levelled against them, whereas, convicted the accused No. 2, 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 appellant - State has preferred the present appeals. 3. We have heard Ms. C.M. Shah, learned Additional Public Prosecutor for the appellant - State and Mr. Yogesh Lakhani, learned senior advocate for the respondent - original accused. 3.1 Ms. Shah, learned Additional Public Prosecutor for the appellant - State, took us to the evidence of Dr. Rashmibhai Durlabhjibhai Shukla, whose deposition is recorded at exh. 77, who had given treatment to Jaykrushna, the injured complainant and had also performed the Post Mortem of deceased - Paragbhai. She also took us to the evidence of complainant - Jaykrushna, recorded at exh. 66, evidence of Manjuben Jaykrushna, the wife of the complainant, recorded at exh. 67, evidence of Jagrutiben, the daughter of the complainant, recorded at exh. 69, evidence of Rajesh Jaykrushna, the son of the complainant, recorded at exh. 71 and the evidence of Zahidaben Iqbalbhai, the maid of the complainant, recorded at exh. 66, evidence of Manjuben Jaykrushna, the wife of the complainant, recorded at exh. 67, evidence of Jagrutiben, the daughter of the complainant, recorded at exh. 69, evidence of Rajesh Jaykrushna, the son of the complainant, recorded at exh. 71 and the evidence of Zahidaben Iqbalbhai, the maid of the complainant, recorded at exh. 68 and contended that, from the evidence of all these witnesses it is clearly proved that the accused wanted to get vacated the rented premises and hence, they attacked the complainant and his son by firstly entering in their house and attacking the complainant and then, they went to the factory where, the sons of the complainant were there and assaulted them, in which, deceased son of the complainant -Parag sustained serious injuries and ultimately, succumbed to the injuries. The cause of death of the deceased as per the medical evidence is shown to be 'Shock due to injury to the vital organ like Liver and Kidney due to injury'. In view of the above, she submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge has committed a grave error acquitting the accused as well as awarding less punishment to the accused No. 2. Making above submissions, she requested to allow the present appeals. 4. Whereas, Mr. Lakhani, learned senior advocate for the respondent - original accused, also took us to the evidence on record and contended that majority of independent witnesses have turned hostile and nothing has come on record to show that the accused entered the factory premises of the deceased and assaulted the deceased and thereby, committed the offence alleged against them and accordingly, the prosecution has miserably failed to prove the involvement of the accused, more particularly, the second incident occurred at the factory premises of the deceased and accordingly, when the prosecution has failed to prove beyond reasonable doubt the charge levelled against the accused and when the learned trial Judge has dealt with each and every aspect of the matter, he requested that this Court may not interfere in the appeal. 5. 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. 5. 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 v. State of Kerala & Anr., reported in (2006) 6 SCC 39 , 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." 5.1 Further, in the case of Chandrappa v. 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. [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." 5.2 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. 5.3 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. 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." 5.4 Similar principle has been laid down by the Hon'ble Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors., reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs v. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled. 5.5 In the case of Luna Ram v. 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 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." 5.6 Even in a recent decision of the Hon'ble Apex Court in the case of Mookiah and Anr. v. 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. v. 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)]" 5.7 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 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 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." 5.8 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. 6. 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. 6.1 We find that the trial Court while considering the evidence on record, has very elaborately discussed the evidence adduced before it. It is true that the accused have entered the house of the complainant on the day of the incident and assaulted the complainant. Looking to the fact that the injury sustained by the complainant was not on the vital part of the body and the complainant was required to be treated as an outdoor patient, in our opinion, offence punishable under Section 307 could not be attracted. So far as, second incident i.e. assault on the deceased son of the complainant and thereby, allegedly committing his murder is concerned, the prosecution is not in a position to establish the involvement of the accused in the second incident, more particularly, there is nothing on record to substantiate the said fact. In the circumstances, when the prosecution has failed to prove the offence beyond reasonable doubt, we are of the opinion that this is not a fit case to interfere in the appeal. In the circumstances, when the prosecution has failed to prove the offence beyond reasonable doubt, we are of the opinion that this is not a fit case to interfere in the appeal. The learned Additional Public Prosecutor 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. 7. We are, therefore, of the considered opinion that the findings recorded by the trial Court are 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. No interference is warranted with the judgment and order of the trial Court. 8. In view of the aforesaid discussion, present appeals fail and are dismissed accordingly. The impugned judgment and order dated 24/07/1998 passed by the learned Additional Sessions Judge, Gondal in Sessions Case No. 15 of 1996 is confirmed. Bail bonds shall stand cancelled. Registry to return the R&P to the trial Court forthwith. Appeal Dismissed.