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2015 DIGILAW 915 (GUJ)

State of Gujarat v. Bhupatsinh Navalsinh

2015-09-16

K.J.THAKER, M.R.SHAH

body2015
Judgment Kaushal Jayendra Thaker, J. 1. By way of this appeal the State is challenging the judgment and order dated 26.07.1995 passed by the learned Additional Sessions Judge, Panchmahals at Godhra acquitting the accused who was arraigned for commission of offence under sections 302, 201 and 498-A of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"). 2. The prosecution was put into motion by the accused himself who had gone to the police station and given the complaint dated 16.09.1994 declaring that his wife had committed suicide. However, on investigation the police had submitted the charge-sheet which was for the offences punishable under sections 302, 201, 498-A of the IPC. The investigation having been completed, charge-sheet being led before the competent Court, the learned Magistrate committed the case to the Court of Sessions as it was a sessions triable offence. 2.1 The learned Sessions Judge made over the matter to the learned Additional Sessions Judge, Panchmahals at Godhra who led the charge against the accused and examined the following witnesses as the accused pleaded not guilty. PW No. Name of witness Exh. No. 1 Bijal Sayba 12 2 Subodhkumar Jagannathprasad – M.O. 13 3 Navalsinh Subarbhai 15 4 Ambalal Maganbhai 16 5 Nansingh Sayba 17 6 Mahendrasinh Ratansinh Rathod 20 The prosecution examined in all 6 witnesses and substantiated the same by documentary evidences. However, at the end of the trial, the accused was given the benefit of doubt as it was a case of circumstantial evidence where the chain of circumstantial evidence was not complete. 2.2 On closure of the evidence of the prosecution, further statement of the accused under section 313 of the Code of Criminal Procedure, 1973 came to be recorded. The accused denied having committed any offence as alleged more particularly sections 302, 201 and 498-A of the IPC. The original accused in his further statement specifically denied that there was any physical or mental torture upon the deceased. Therefore, it was requested to acquit them. 2.3 That on appreciation of evidence, by impugned judgment and order the learned trial Judge has acquitted the accused for the offences for which he came to be tried. On appreciation of evidence the learned trial Judge has specifically observed and held that the prosecution has miserably failed to prove by leading cogent evidence that it was the accused who killed the deceased. On appreciation of evidence the learned trial Judge has specifically observed and held that the prosecution has miserably failed to prove by leading cogent evidence that it was the accused who killed the deceased. On appreciation of the evidence the learned trial Judge has also held that the accused has not committed offence as alleged under section 201 of the IPC as the accused had waited for his in-laws to come and thereafter only the dead body was recovered from the well and when the dead body was disposed of, the complainant and his family members were present. The learned trial Judge has also acquitted the accused for the offence punishable under section 498-A of the IPC observing that the accused has never caused any physical or mental torture upon the deceased and/or demanded dowry from the deceased. The learned trial Judge has also acquitted the accused for the offence punishable under section 302 of the IPC by observing that the chain of circumstantial evidence is not completed by the prosecution. Having recorded the aforesaid findings, by impugned judgment and order the learned trial Judge has acquitted the accused for the offences punishable under sections 302, 201 and 498-A of the IPC. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal the State has preferred the present Criminal Appeal. 3. Heard Shri Himanshu K. Patel, learned APP appearing on behalf of the State. Shri Patel, learned APP has taken us to the entire evidence on record oral as well as documentary, however he is not in a position to point out how the finding recorded by the learned trial Judge can be said to be perverse and/or contrary to the evidence on record. We have re-appreciated the entire evidence on record. At the outset it is required to be noted that this is an appeal against the order of acquittal passed by the learned trial Judge. The scope and ambit and/or jurisdiction of the appellate Court while considering the appeal against the acquittal is well settled. 3.1 The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr. 3.1 The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the 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 Apex Court has narrated 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." Further, in the case of Chandrappa v. State of Karnataka reported in (2007)4 SCC 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. [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." Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views/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. Even in the case of State of Goa v. Sanjay Thakran & Anr. reported in (2007)3 SCC 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; "6. 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." Similar principle has been laid down by the Apex Court in 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 M.P. reported in 2007 AIR SCW 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. In the case of Luna Ram v. Bhupat Singh and Ors. reported in (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." 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 leveled against them. 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 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 Section34 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 reappreciate 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 ]" It is also a settled legal position that in acquittal appeals, 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 ]" It is also a settled legal position that in acquittal appeals, 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 (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." In a recent decision, the Hon'ble Apex Court in Shivasharanappa & Ors. v. State of Karnataka reported in JT 2013 (7) SC 66 has held as under; "That appellate Court is empowered to re-appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence." 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. 3.2 Considering the aforesaid proposition of law laid down by the Hon'ble Supreme Court, present Criminal Appeal against the order of acquittal is required to be considered. On re-appreciation of evidence on record it emerges that the first information of the unfortunate incident was given by the accused himself and the prosecution was set into motion. It has also come on record that at the time of funeral the father of the deceased and other relatives were also present. At that time no grievance was made. It has also come on record that it was the accused -husband who went to the police station and informed the police that his dead body of his deceased wife was lying in the well but they did not take out the dead body out from the well and after calling neighbors, the accused approached the police station. It has also come on record that it was the accused -husband who went to the police station and informed the police that his dead body of his deceased wife was lying in the well but they did not take out the dead body out from the well and after calling neighbors, the accused approached the police station. From the deposition of the prosecution witnesses examined by the prosecution more particularly deposition of Bijalbhai Saibabhai Bariya - father of the deceased - father in law of the accused was examined as PW-1 at Exh. 12 shows that this was the third marriage of his daughter. In his examination-in-chief he has stated that after the marriage, accused told him that the deceased is not giving him water and is also not washing his clothes. No further allegations are there whatsoever with respect to dowry death. Under the circumstances, the trial Court has rightly held the accused not guilty for the offence punishable under section 498-A of the IPC. 3.3 It is pertinent to note that the chain of circumstantial evidence is totally broken. The death though is homicidal cannot be attributed to the accused. This finding of fact is substantiated by the evidence on record and therefore, though the doubt is created by Mr. Patel, learned APP as the appellant was last seen together with t he deceased, it was accused and accused who had perpetrated the murder. The learned trial Judge while considering all these aspects more particularly in para 20 has observed that though deceased died due to asphyxia but it is not coming out from the evidence on record that the accused strangulated the deceased. The learned trial Judge has observed that the prosecution has failed to prove beyond reasonable doubt that the accused has killed the deceased and that when the offence is to be established merely on the basis of circumstantial evidence, in that circumstances, the prosecution must establish its case beyond reasonable doubt. The learned trial Judge has further observed that there is evidence which points to the fact that accused has committed offence but the said evidence is not such which can establish that only the accused and none else has committed the said offence. The learned trial Judge has further observed that there is evidence which points to the fact that accused has committed offence but the said evidence is not such which can establish that only the accused and none else has committed the said offence. The learned trial Judge has therefore submitted that in such circumstances when the Court is having a doubt with regard to the prosecution case then the benefit of such a doubt goes to the accused and when there are two possibilities viz. (1) one possibility leading the Court to a conclusion that accused has committed the offence and (2) another leading the Court to a conclusion that accused has not committed the offence then, the accused shall be acquitted by giving benefit of doubt. The learned trial Judge has rightly held that it was a homicidal death but can it be said that the homicidal death of the deceased in absence of the chain being completed was committed by the accused alone. The answer is in negative. The recent decision of the Hon'ble Apex Court will not permit us to reverse the well-reasoned finding of the learned trial Judge. There is no cogent evidence which completes the chain viz. (1) that the accused and the accused was the only person who had committed the murder; (2) there is nothing on record which could connect the accused with the asphyxiating of the deceased and/or there are no other evidences which prove that the accused had throttled the deceased. There is no cogent evidence which completes the chain viz. (1) that the accused and the accused was the only person who had committed the murder; (2) there is nothing on record which could connect the accused with the asphyxiating of the deceased and/or there are no other evidences which prove that the accused had throttled the deceased. The Hon'ble Apex Court in the case of State of Goa v. Sanjay Thakran and Another reported in (2007)3 SCC 755 has held that when the case rests on circumstantial evidence, such evidence must satisfy that (1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (2) though circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and the evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. This Court cannot accept the submission of learned Counsel appearing on behalf of the State that the accidental death information being No. 13/1994 before the Morva Police Station was absolutely false, concocted and to see that the police is driven on wrong pat. It is submitted by Mr. Patel, learned APP that it was the accused who had left the string and other utensils near the well and he was the one who had perpetrated the murder of the deceased. However, in absence of the chain being completed and there being no perversity in the judgment of the learned trial Judge and in view of the proposition of law laid down by the Hon'ble Supreme Court in the case of Sanjay Thakran (Supra), we are unable to take a different view than that taken by the learned trial Judge. Thus, the learned trial Judge has rightly held the accused not guilty of the offence punishable under section 302 of the IPC. It cannot be said that the judgment is so perverse that it requires interference of this Court. Thus, the learned trial Judge has rightly held the accused not guilty of the offence punishable under section 302 of the IPC. It cannot be said that the judgment is so perverse that it requires interference of this Court. 3.4 Considering the evidences on record, it is coming out that there were no earlier incidents whereby the accused had demanded any dowry. The evidence of Bijalbhai Saibabhai Bariya, father of the deceased (PW-1, Exh. 12) and Nansingbhai Saibabhai Bariya, uncle of the deceased (PW-5, Exh. 17) also do not bring out that there was any harassment to the deceased with regard to demand of dowry by the accused and therefore, the learned trial Judge has rightly acquitted the accused for the offence punishable under section 498-A of the IPC. 3.5 This takes this Court to the allegation of offence under section 201 of the IPC. The question which is required to be considered for the present offence is, can it be said that the accused committed offence under the provision of 201 of the IPC. On re-appreciating the entire evidence it emerges that the accused waited for his in-laws to come and thereafter only the dead body of the deceased wife was taken out from the well and therefore, it cannot be said that the accused has committed the offence under section 201 of the IPC. This finding of fact cannot be found fault with as it cannot be said to be either perverse or such which requires interference by this Court. 3.6 Considering the aforesaid facts and circumstances, it cannot be said that the finding recorded by the learned trial Judge is perverse which warrants upsetting and/or reversing the order of acquittal. Under the circumstances and considering the law laid down by the Hon'ble Supreme Court as observed hereinabove, we see no reason to interfere with the impugned judgment and order of acquittal passed by the learned trial Judge. 4. In view of the above and for the reasons stated above, present Criminal Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. Impugned judgment and order dated 26.07.1995 passed by the learned Additional Sessions Judge, at Godhra, District Panchmahal in Sessions Case No. 7/1995 acquitting the accused for the offence punishable under sections 302, 498-A, 201 and 114 of the IPC is hereby confirmed. Bail bond stands cancelled. Appeal Dismissed.