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2015 DIGILAW 877 (GUJ)

State of Gujarat v. Ramansinh Khumansinh Chavda

2015-09-07

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT : K.S. Jhaveri, J. The present appeal is filed by the appellant-State being aggrieved and dissatisfied with the judgment and order dated 24-5-1993 passed by the learned Additional Sessions Judge, Vadodara, in Sessions Case No. 31 of 1993 whereby the respondents-original accused were acquitted of the charges levelled against them. 2. Short facts of the case are that a complaint was filed by the complainant-Ashoksinh before Karjan Police Station for the offence punishable under Sections 504, 323, 302 and 114 of Indian Penal Code and also under section 135 of Bombay Police Act alleging inter alia that brother of the complainant Mahendrasinh Ajabsinh had given Rs. 300/- to the accused No. 1 about 20 days prior to incident in question. On 18-1-1993 at about 9.15 p.m., the accused No. 1 keeping grudge in mind for the recovery came with deadly weapons along with accused Nos. 2,3 and 4. It was alleged that accused No. 2, 3 and 4 attacked the deceased Mahendrasinh with knife. Accused Nos. 2 and 4 caught hold the deceased and accused No. 1 gave knife blow on him. When the complainant tried to intervene, the accused No. 1 injured the complainant and thereby committed offence punishable under section 324 of IPC. The accused also committed offence punishable under sections 504, 114 of IPC and section 135 of Bombay Police Act. As the deceased succumbed to the injuries, section 302 of IPC was also included. In pursuance of said complaint, investigation started and as there appeared prima facie case against the accused persons, a charge sheet was filed against them. Thereafter, charge was framed against the accused. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. 2.1 To prove the guilt against the accused, prosecution examined as many as five witnesses namely, complainant-Ashoksinh Ajabsinh at Exh.9, Dr. Jagdish chandra Shantilal at Exh.12, Burhanuddin Rasulmiya Kazi at Exh.15, Gitaben Mahendrasinh Rana at Exhj.17, Pradip Bhikhubhai at Exh.27 and Investigating Officer, Shri Himmatsinh Gamabhai Baria at Exh.29. The prosecution has also relied on several documentary evidence such as complaint, panchnama of scene of offence, inquest panchnama, Post mortem report etc. After filing of closing pursis by the prosecution, further statements of accused under Section 313 of Cr.P.C. were recorded. The prosecution has also relied on several documentary evidence such as complaint, panchnama of scene of offence, inquest panchnama, Post mortem report etc. After filing of closing pursis by the prosecution, further statements of accused under Section 313 of Cr.P.C. were recorded. On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, respondents-accused were acquitted of the charges levelled against them, giving rise to this appeal. 3. Heard learned Additional Public Prosecutor, Mr. L.R. Pujari for the appellant-State of Gujarat and learned advocate, Mr. S.P. Hasurkar for respondents-accused. 4. Learned APP, Mr. Pujari for the appellant took us through the evidence of eye witnesses and medical evidence and submitted that the learned trial Judge has not properly appreciated oral as well as documentary evidence produced on record and has erred in holding that the prosecution has failed to prove the charge against the accused beyond reasonable doubt. He further submitted that though the prosecution has examined several witnesses supporting the case of the prosecution, the learned trial Judge has not properly appreciated their evidence and therefore, the finding recorded by the learned trial Judge that the prosecution has failed to prove the charge against the accused by leading legal, reliable and impeachable evidence is contrary to the evidence available on record. He further submitted that injuries sustained by the deceased are sufficient to prove the guilt of the accused. He also further submitted that the learned Judge has not appreciated the seriousness of the offences wherein a person has lost his life at the hands of the accused. He further submitted that though almost all the witnesses have supported the case of the prosecution, the learned trial Judge has committed a grave error in disbelieving their evidence on the ground that they are relatives of the deceased and in acquitting the respondents-accused and therefore, it is requested that the appeal deserves to be allowed. 5. Learned advocate, Mr. Hasurkar for Mr. Yogendra Thakore for the respondents-original accused, on the other hand, submitted that the trial court has rightly appreciated the evidence appearing on record and the reasons assigned for recording a finding of acquittal are reasonable and justifiable. According to him, there are glaring and major contradictions and material improvements without any satisfactory explanation in the depositions of prosecution witnesses and therefore, the respondents accused were rightly acquitted by the trial court. According to him, there are glaring and major contradictions and material improvements without any satisfactory explanation in the depositions of prosecution witnesses and therefore, the respondents accused were rightly acquitted by the trial court. He further submitted that this being an appeal against the order of acquittal, the judgment and order delivered by the trial Court deserves to be upheld as proper, as plausible reasons for acquittal have been recorded. He ultimately urged to dismiss this appeal. 6. It is required to be noted that the principles governing and regulating the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very clearly explained by the Hon'ble Apex Court in number of decisions. 6.1 In the case of Dilawar Singh and others v. State of Haryana reported in (2015) 1 SCC 737 , it has been held by the Hon'ble Supreme Court in Paragaph 36 and 37 as under: "36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record. 37. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415 , the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under: "42…..(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.” Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan v. Shera Ram (2012) 1 SCC 602 .” 6.2 In the case of State of Goa v. Sanjay Thakran and anr. reported in (2007)3 SCC 75, it has been held by the Hon'ble Apex Court in para 16 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.” 6.3 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. 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." 6.4 Even 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 ]" 6.5 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.” 6.6 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. 6.7 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then elaborate discussion of evidence or assigning fresh reasons are not necessary. 7. We have considered the above referred rival submissions made by the learned advocates for the respective parties in light of the principles laid down in the aforesaid decisions. 8. In the present case, two crucial witnesses are the injured complainant-Ashoksinh Ajabsinh and Gitaben, Widow of Mahendrasinh. The trial court while discussing their evidence in detail has observed that in the cross-examination, the complainant has admitted that he has not given name of the accused at the Police Station and straightaway, they have gone to the hospital and though police was present, he has not given the complaint nor name of accused. Investigating Officer, Mr. Baria in his cross-examination has admitted that the complainant has not seen the offence personally. He was not sure about the role of each of the accused. Investigating Officer, Mr. Baria in his cross-examination has admitted that the complainant has not seen the offence personally. He was not sure about the role of each of the accused. He has also admitted that when the incident occurred, there was darkness and no light was available and when he came out shouting, he saw his brother lying on the floor. The complainant also admitted that he has not seen any of the accused. Though he was also injured, he did not know as to who caused those injuries. There are serious contradictions in the evidence of witnesses. Though police has reached at the scene of offence, names of the accused are not given. Moreover, though the incident took place at 9.30 p.m., the complaint was subsequently given at 11 p.m. in the hospital. No doubt, the offence charged against the accused was under section 302 of IPC. However, the trial court while appreciating the oral as well as documentary evidence has not believed the evidence of aforesaid witnesses. Therefore, the trial court, on an elaborate discussion of the entire oral and documentary evidence in true perspective, has acquitted the accused. This Court is, therefore, of the opinion that the trial court was completely justified in acquitting the accused of the charges levelled against them. Therefore, the findings recorded by the trial court are absolutely just and proper and no illegality or infirmity has been committed by it in the said findings and therefore, we do not find it necessary to interfere with the same. 9. Learned Addl. Public Prosecutor is not in a position to show any evidence to take a view contrary to the view taken by the trial court 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. 10. In view of the above, this appeal is dismissed. The judgment and order dated 24-5-1993 passed by the learned Additional Sessions Judge, Vadodara, in Sessions Case No. 31 of 1993 is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings shall be sent back forthwith to the trial court. Appeal dismissed.