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2016 DIGILAW 1233 (GUJ)

Ashoksinh Khodaji Jadeja v. State of Gujarat

2016-07-04

G.B.SHAH

body2016
JUDGMENT : G.B. Shah, J. 1. As the common judgment and order is under challenge in the present appeals, they have been heard together and being decided by this common judgment and order. 2. Present appeals assail the judgment and order dated 08/02/1999, passed by the learned Additional Sessions Judge, Mahesana in Sessions Case No. 245 of 1996, whereby, while acquitting original accused Nos. 4, 5 and 6 of all the charges levelled against them and original accused Nos. 1, 2 and 3 from the charge for the offence punishable under Section 306 of the Indian Penal Code, 1860 (for brevity, 'the IPC'), the original accused Nos. 1, 2 and 3 came to be convicted for the offence punishable under Section 498-A r/w. 114 of the IPC and sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 500/- each and in default of payment of fine, to undergo further simple imprisonment for one month. Accordingly, Criminal Appeal No. 237 of 1999 has been filed by the original accused Nos. 1, 2 and 3 against conviction; Criminal Appeal Nos. 216 of 1999 has been filed by the State against original accused Nos. 1, 2 and 3 for enhancement of sentence awarded to them, whereas, Criminal Appeal No. 217 of 1999 has been filed by the State against all the accused against acquittal, as aforesaid. 3. Filtering the unnecessary details, facts of the prosecution case are that prior to about one year of the incident, marriage of the deceased daughter of the complainant and the original accused No. 1 was solemnized. They were residing in a joint family. It is alleged that after the marriage, the accused started demanding dowry and for that, taunting her, and in aid and abetment of each other, physically and mentally torturing her. When the same became unbearable, on 01/06/1996, at about 5:00 p.m. at her matrimonial, the deceased committed suicide by setting her ablaze by pouring kerosene. Thereby, the accused committed the alleged offence, for which a complaint for the offences punishable under Sections 498-A, 306 and 114 of the IPC came to be lodged against them. 3.1 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, camp at Mahesana. The trial Court framed charge against the accused. 3.1 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, camp at Mahesana. 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. In order to bring home the charge against the accused, the prosecution has examined as many as 12 witnesses and also produced several documentary evidence. At the end of the trial, Further Statements of the accused under Section 313 of Criminal Procedure Code, 1973 (for brevity, 'the Code) were recorded in which, they denied the evidence forthcoming on the record and stated that a false case has been filed against them. Thus, after recording above-referred Further Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge came to the aforesaid conclusion by impugned judgment and order being aggrieved and dissatisfied with the same, present appeals, as aforesaid, have been filed. 4. Heard Mr. Ashish M. Dagli for the original accused and Mr. K.L. Pandya, learned Additional Public Prosecutor, for the State in all these appeals. 5. Without making any submissions on merits, at the threshold, Mr. Dagli, the learned advocate for the original accused, submitted that the matter is amicably settled between the parties due to intervention of friends, relatives and community people and the compromise has arrived between them without any inducement and/or force and now there is no ill-will or grievance exists amongst them. To substantiate the same, he invited attention of the Court to the affidavit dated 08/03/2016, filed by Kanuji Baldevji Chavda, the original complainant and submitted that it is specifically mentioned in the same that a compromise has been arrived at between the complainant and the accused with the intervention of the friends, relatives and the community people. He further submitted that, even otherwise, so far as charge against all the accused for the offence punishable under Section 306 of the IPC is concerned, the prosecution has not proved the case against the accused beyond reasonable doubt and the trial Court has acquitted them of the said charge after due appreciation and evaluation of the evidence on record. He further submitted that, even otherwise, so far as charge against all the accused for the offence punishable under Section 306 of the IPC is concerned, the prosecution has not proved the case against the accused beyond reasonable doubt and the trial Court has acquitted them of the said charge after due appreciation and evaluation of the evidence on record. However, the learned trial Judge has erred in coming to the conclusion that charge against the original accused Nos. 1 to 3 for the offence punishable under Section 498-A of the IPC has been successfully proved by the prosecution and thereby, has erred in passing the impugned judgment and order of conviction for the said offence, which is clear from the evidence on record also. Under the circumstances, he requested that the appeal filed by the accused Nos. 1 to 3 may be allowed, more particularly, in view of the fact that the parties have arrived at an amicable settlement and also due to the fact that pending appeals, the accused have remained on bail and nothing adverse has been noticed against them till date, and also requested to dismiss the appeals filed by the State. 6. Whereas, Pandya, the learned Additional Public Prosecutor for the State, contended that the State has filed the appeals, respectively, for enhancement of sentence of original accused Nos. 1, 2 and 3 and against acquittal of all the accused from the charge for the offence punishable under Section 306 of the IPC and acquittal of original accused Nos. 4, 5 and 6 from all the charges levelled against them and the said offences are being non-compoundable and the State has a case on merits, he opposed the settlement. However, he fairly conceded that the offence appears to be a private in nature, between the parties and pending appeals, while on bail, nothing adverse has come on record against the accused and in the given circumstances, this Court may pass the appropriate orders. However, he requested the Court that considering the peculiar facts and circumstances of the case if the Court is inclined to accept the compromise, the same may not be treated as a precedent. 7. I have examined the matter carefully and gone through the evidence on record. I have also gone through the impugned judgment and order minutely. However, he requested the Court that considering the peculiar facts and circumstances of the case if the Court is inclined to accept the compromise, the same may not be treated as a precedent. 7. I have examined the matter carefully and gone through the evidence on record. I have also gone through the impugned judgment and order minutely. So far as the appeal against the acquittal, as aforesaid, is concerned, having gone through the evidence on record and after re-evaluation and re-appreciation of the same, the Court is of the opinion that while coming to such a conclusion, the learned Court below has minutely consider each and every aspect of the matter with the strength of evidence on record and no illegality and/or perversity is found to interfere in such a conclusion arrived at by the learned trial Judge. Moreover, 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." 7.1 Further, in the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415 the Hon'ble 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, reappreciate 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, 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. 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." 7.2 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. 7.3 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. 7.3 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. 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." 7.4 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. 7.5 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 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 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." 7.6 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. 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)]" 7.7 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." 7.8 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. 7.9 In that view of the matter, I am of the considered opinion that the Court below was completely justified in passing impugned judgment and order so far as acquittal is concerned and I am in complete agreement with the reasonings given and the findings arrived at by the trial Court and therefore, I am not inclined to disturb the same. 7.10 Now, so far as appeal against conviction filed by the accused Nos. 1, 2 and 3 and the appeal for enhancement of sentence of these accused persons filed by the State are concerned, as submitted by the learned advocate for the accused Nos. 1, 2 and 3, an amicable settlement has been arrived at between the parties. 7.10 Now, so far as appeal against conviction filed by the accused Nos. 1, 2 and 3 and the appeal for enhancement of sentence of these accused persons filed by the State are concerned, as submitted by the learned advocate for the accused Nos. 1, 2 and 3, an amicable settlement has been arrived at between the parties. In this regard, I have gone through the affidavit filed by original complainant - Kanuji Baldevji Chavda, a bare perusal of which, reveals that with the intervention of the friends, relatives and the community people, the parties have arrived at an amicable settlement and now, there is no grievance between them. Moreover, it is also a fact that during bail, nothing adverse has been reported against the accused persons. The Court is also conscious about the fact that the offence punishable under Section 498-A of the IPC is non-compoundable, however, it is also a fact that the incidence is of 1996 and much time has elapsed thereafter. The accused have remained on bail althroughout and nothing adverse has been reported against them. Moreover, the parties have arrived at a compromise willingly, without any inducement or force. Under these circumstances, the Court is of the opinion that in the peculiar facts and circumstances of the case, in the interest of justice, it will be in the fitness of things if the compromise arrived at between the parties is accepted and accordingly, reduce the sentence of the accused Nos. 1, 2 and 3 to the period they have already undergone. 8. In view of the aforesaid discussion, Criminal Appeal No. 237 of 1999, filed by the original accused Nos. 1, 2 and 3 against conviction, succeeds in part and the impugned judgment and order dated 08/02/1999, passed by the learned Additional Sessions Judge, Mahesana in Sessions Case No. 245 of 1996, is modified to the aforesaid extent and it is held that the sentence of imprisonment of the original accused Nos. 1, 2 and 3 is reduced to the period they have already undergone. The Criminal Appeal Nos. 216 of 1999 and 217 of 1999, filed by the State for enhancement and against acquittal, respectively, are dismissed. The bail bonds of the accused shall stand cancelled. The accused Nos. 1, 2 and 3 are on bail and they need not to surrender to custody, except so is required in other case. The Criminal Appeal Nos. 216 of 1999 and 217 of 1999, filed by the State for enhancement and against acquittal, respectively, are dismissed. The bail bonds of the accused shall stand cancelled. The accused Nos. 1, 2 and 3 are on bail and they need not to surrender to custody, except so is required in other case. The rest of the impugned judgment and order shall remain unaltered. Registry to return the R&P to the trial Court forthwith. It is clarified that the aforesaid order is passed in the peculiar facts and circumstances of the case and shall not be treated as a precedent.