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Gujarat High Court · body

2015 DIGILAW 978 (GUJ)

State of Gujarat v. Madhavsinh

2015-10-05

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. Jhaveri, J. 1. This appeal is directed against the judgment and order of acquittal dated 03.07.2006 passed by the learned Presiding Officer, Fast Track Court No. 3, Vadodara, in Sessions Case No. 19 of 2005 whereby the respondent-original accused was acquitted of the offences punishable under Sections 302, 504 of the Indian Penal Code and Section 135 of the Bombay Police Act. 2. The facts in brief giving rise to the filing of present appeal are as under: "2.1 The complainant lived in joint family with his younger brother Madhavsinh @ Tino- the accused. The accused was in habit of taking liquor, quarreling with family and was also stating that "Mane Lagan Karavi Do Nahitar Tamari Banne Bhai Ni Patni Mathi Mare Ek Rakhvani". It is further the case of the prosecution that on the day of the incident, the complainant went to cabin for getting Padiki where his nephew came and informed that accused gave a blow with axe on the head of his wife-Parvati, and thereafter, complainant went to his house where he saw that his wife was lying in bleeding condition and she was dead. Therefore, after his shouting, the accused ran away from the scene of offence with axe. Accordingly, the complaint was lodged before Police Inspector, Savli. After completion of investigation, charge sheet was filed against the accused in the Court of JMFC, Vadodara. However, as the case was triable by the Court of Sessions, learned JMFC committed the case to the Sessions Court as per the provisions of Section 209 of the Criminal Procedure Code. Thereafter, charge was framed against the accused for the offences punishable under Section 302, 504 of IPC and Section 135 of the Bombay Police Act. The accused pleaded not guilty and claimed to be tried. 2.2 During the trial, the prosecution had examined fourteen witnesses in support of its case. The prosecution has also and relied upon fourteen documents in support of its case. 2.3 At the end of trial, the Court below recorded further statement of accused person under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order of acquittal, which has led to the filing of present appeal." 3. The prosecution has also and relied upon fourteen documents in support of its case. 2.3 At the end of trial, the Court below recorded further statement of accused person under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order of acquittal, which has led to the filing of present appeal." 3. Learned APP has taken us through the evidence and contended that the trial Court has committed an error in acquitting the accused inspite of voluminous evidence against him and contended that the trial Court ought not to have acquitted the accused. He submitted that though the prosecution has examined 14 witnesses and also produced 14 documents in support of its case, the learned trial Judge has not properly appreciated it and acquitted the accused of the charges levelled against him. He submitted that the prosecution has successfully proved its case against the accused. He submitted that even the medical evidence supports the case of the prosecution. He also submitted that the investigating officer has also supported the case of the prosecution and the learned trial Judge has failed to appreciate the evidence on record in its proper perspective, therefore, the impugned judgment is required to be quashed and set aside by allowing present appeal. 4. On the other hand, Mr. Vipul Sundesha, learned counsel for the respondent-accused submitted that there is no infirmity in the impugned order. He submitted that the lower court has rightly appreciated the evidence on record and acquitted the respondent of the charges levelled against him. He submitted that the prosecution could not prove its case beyond reasonable doubt. He has contended that so far as acquittal appeals are concerned, the law is well settled and by taking us through the impugned judgment, he submitted that this Court may not interfere with the impugned judgment and the appeal may be dismissed. 5. We have heard learned APP for the appellant - State and learned advocate for the respondent. We have gone through the evidence on record. Looking to the charges framed against the respondent accused for the offence under Sections 302 and 504 of IPC, the prosecution has to prove its case beyond reasonable doubt. 5. We have heard learned APP for the appellant - State and learned advocate for the respondent. We have gone through the evidence on record. Looking to the charges framed against the respondent accused for the offence under Sections 302 and 504 of IPC, the prosecution has to prove its case beyond reasonable doubt. While passing the impugned judgment, learned Sessions Judge has given categorical finding that it is a case of culpable homicide, however, none of the prosecution witnesses, except panch witness and the investigating officer has supported the case of the prosecution. Therefore, it is clear that the prosecution has miserably failed in proving the case against the accused. It is also clear that the learned Judge has not committed any error while acquitting the accused of the charges levelled against him. It cannot be said that the learned Judge has committed any error while acquitting the accused as the prosecution could not prove its case beyond reasonable doubt. 6. 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. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr., (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of 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." 6.1 Further, in the case of Chandrappa v. State of Karnataka, (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. [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." 6.2 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. 6.3 Even in the case of State of Goa V. Sanjay Thakran & Another, (2007) 3 S.C.C. 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; "16. 6.3 Even in the case of State of Goa V. Sanjay Thakran & Another, (2007) 3 S.C.C. 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; "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." 6.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors, 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. 6.5 In the case of Luna Ram v. Bhupat Singh and Ors, (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 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." 6.6 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, 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 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 ]" 7. 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, 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." 7.1 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. 8. We have gone through the oral as well as documentary evidence on record and we are in agreement with the view taken by the lower Court. Moreover, learned APP is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude 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 material evidence while acquitting the accused. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting the respondent-accused of the charge levelled against him. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and, therefore, find no reasons to entertain this appeal. 9. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting the respondent-accused of the charge levelled against him. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and, therefore, find no reasons to entertain this appeal. 9. For the foregoing reasons, the appeal is dismissed and the impugned judgment and order dated 03.07.2006 passed by the learned Presiding Officer, Fast Track Court No. 3, Vadodara, in Sessions Case No. 19 of 2005 is hereby confirmed. Bail bond stand cancelled. Record and proceedings, if lying here, be sent to the Court below forthwith.