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2016 DIGILAW 145 (GUJ)

State of Gujarat v. Vajirkhan Samsherkhan Pathan

2016-01-20

K.S.JHAVERI, R.P.DHOLARIA

body2016
JUDGMENT : K.S. Jhaveri, J. 1. All these appeals arise out of the same judgment, hence, they are disposed of by this common judgment. 2. Challenge is made to the judgment and order dated 5.2.1998 rendered by learned Additional Sessions Judge, Nadiad in Sessions Case No. 155 of 1992 in all these appeals whereby learned Sessions Judge has been pleased to convict accused Nos. 1, 2 and 4 and imposed the sentence upon them to undergo RI for two years and fine of Rs. 5000/- each, in default, 6 months rigorous imprisonment for the offence punishable under sections 304(2) of IPC, whereas accused No. 3 has been acquitted of the charges levelled against him under sections 302 and 34 of IPC. 3. At the outset, Mr. Lakhani, learned counsel has submitted that accused No. 1 - Vazirkhan Samsherkhan Pathan has expired on 10.12.2007. His death certificate is submitted which is ordered to be taken on record. Therefore, all the three appeals stand abated qua him. 4. The broad facts of the case are that complainant P.M. Chavda, Police Inspector lodged the complaint that on 23.6.1990, the accused were on duty around at 20 to 22 hours in the night at Matar Sub Jail. It is alleged that during the said period, Gandabhai Mangalbhai Bhoi - the deceased was shouting because of some pain and with an intention to kill him, the accused have beaten and inflicted stick blows on him and because of which, he succumbed to the injuries on 24.6.1990 at 11.45 hours. 5. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the accused. As the case was exclusively triable by the court of sessions, the same was committed to the Court of Sessions, Nadiad. The charge was framed against the accused vide Exh. 1. The accused pleaded not guilty to the charge and claimed to be tried. To prove the case against the accused, the prosecution has examined the following witnesses. Nos. Name of witness Exh. 1 Dr. Chandrakant Ratilal Raghwani 17 2 Natubhai D. Vasava 24 3 Govindbhai Gokalbhai 29 4 Kiritbhai Keshavbhai 30 5 Dr. Harivadan Mulshanker Joshi 32 6 Dy. Collector Manibhai B. Patel 35 7 Harishkumar Kantilal Thakkar 38 8 Mahipal Ramchandra 41 9 Jagdishbhai Bhagwandas 41 10 Dr. Ravindra Balasaheb Deshmukh 42 11 Ghanshyambhai Ramanbhai 49 12 Sekhu Patel Mehmudmiya Malek 50 13 Dy. Harivadan Mulshanker Joshi 32 6 Dy. Collector Manibhai B. Patel 35 7 Harishkumar Kantilal Thakkar 38 8 Mahipal Ramchandra 41 9 Jagdishbhai Bhagwandas 41 10 Dr. Ravindra Balasaheb Deshmukh 42 11 Ghanshyambhai Ramanbhai 49 12 Sekhu Patel Mehmudmiya Malek 50 13 Dy. Collector Gilbart Jerom Nejrech 52 14 Ramanbhai Hirabhai Vaghela 59 15 Bhalaji Nanjibhai 60 16 Popatji Masangji Chavda 65 17 Buddhgiri Punjgiri Goswami 73 5.1 The prosecution has also produced the as many as 18 documentary evidences viz., Original complaint of the complainant Exh. 6, Panchnama of scene of offence Exh. 81, Inquest Panchnama Exh. 36, PM Report Exh. 43, FSL Report Exh. 70 etc. 5.2 At the end of the trial, after recording the statement of the accused under section 313 of the Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the trial Court delivered the judgment and order, as stated above. 6. Being aggrieved by the same, the appellants - original accused as well as the State have preferred the aforesaid Criminal Appeals before this Court. 7. At the onset, it is submitted by Mr. Yogesh Lakhani, learned senior counsel for the appellants - original accused that the incident in question is dated 24.6.1990 and almost 25 and 1/2 years have passed. Mr. Lakhani, learned counsel for the appellants - original accused has fairly submitted that taking into consideration the time gap and condition of both the accused Nos. 2 and 4 who are present in the court, while deciding the matters on merits, the Court may take sympathetic view and hear the accused only on the question of sentence. Mr. Lakhani also submitted that in view of the decision rendered by the Honourable Supreme Court in Ankush Shivaji Gaikwad v. State of Maharashtra, 2013 (6) Scale 778, if reasonable compensation is awarded from each of the accused, they are prepared to pay which may be compensated to the heirs of the victim. 8. On the other hand, Mr. L.R. Pujari, learned APP has also agreed to the suggestion made by Mr. Lakhani, learned counsel for the appellants - original accused to pay the compensation to the victim as per the ratio laid down in Ankush Shivaji Gaiwad (supra) and ultimately requested to pass the appropriate order in these appeals. 9. We have heard Mr. Yogesh Lakhani, learned senior counsel for the appellants - original accused and Mr. Lakhani, learned counsel for the appellants - original accused to pay the compensation to the victim as per the ratio laid down in Ankush Shivaji Gaiwad (supra) and ultimately requested to pass the appropriate order in these appeals. 9. We have heard Mr. Yogesh Lakhani, learned senior counsel for the appellants - original accused and Mr. L.R. Pujari, learned APP for the State. 10. Taking into consideration the entire facts of the case, more particularly the fact that 25 and 1/2 years have passed from the date of incident in question coupled with the request made by Mr. Lakhani, learned counsel for the appellants - original accused, it would be in the fitness of things and ends of justice would be met if the reasonable compensation is awarded to the victim. 11. 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., reported in (2006)6 SCC 39 , the 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 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." 11.1 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, 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." 11.2 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. 11.3 Even in a recent decision of the 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. 11.3 Even in a recent decision of the 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 reappreciate 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." 11.4 Similar principle has been laid down by the 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. 11.5 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 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." 11.6 Even in a recent decision of the 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 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 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 file d 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 ]" 11.7 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 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." 12. 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. 13. We have examined the matter carefully and gone through the evidence on record. We have appreciated, reappreciated and re-evaluated the evidence on the touchstone of latest decision of the Hon'ble Apex Court. We find that the trial Court while considering the evidence on record, has very elaborately discussed the evidence on record. We find that the trial court has rightly and elaborately discussed the evidence which does not call for interference by this Court. 14. Further, learned APP 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 above view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order. 15. In above view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order. 15. We are, therefore, of the considered opinion that the findings recorded by the trial Court in acquitting the accused of the charge under section 302 of IPC levelled against them, as stated above, for want of sufficient evidence against them 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 so far as conviction as well as acquittal part is concerned. 16. Considering the principle rendered by Apex Court in Ankush Shivaji Gaikwad (supra) and the request made by learned counsel Mr. Lakhani that the accused are ready to pay a sum of Rs. 25,000/- each to the victim under the provisions of Section 357 Cr.P.C., we do not find any reasons in the facts and circumstances of the case for denying the said benefit in favour of the accused. 17. In this view of the matter, keeping in mind the long period and evidence on record, though this is a fit case where this Court could have allowed any of the appeal preferred by the State either enhancement appeal of acquittal appeal, but looking to the time gap, we are not entertaining these appeals on merits of the case, but we have heard only on the quantum of sentence. Even otherwise, as per the medical evidence, it is clear that it is a case of murder but without any intention to cause death. 18. In view of the above, Criminal Appeal No. 488 of 1998 and Criminal Appeal No. 489 of 1998 stand dismissed. Criminal Appeal No. 133 of 1998 stands partly allowed. Accordingly, while granting benefit of the judgment rendered in Ankush Shivaji Gaikwad's case (supra) to the original accused, it is directed that if the accused deposit a sum of Rs. 18. In view of the above, Criminal Appeal No. 488 of 1998 and Criminal Appeal No. 489 of 1998 stand dismissed. Criminal Appeal No. 133 of 1998 stands partly allowed. Accordingly, while granting benefit of the judgment rendered in Ankush Shivaji Gaikwad's case (supra) to the original accused, it is directed that if the accused deposit a sum of Rs. 25,000/- each before the Registry of the concerned Sessions Court, within a period of TEN WEEKS from today, which, in turn, shall be paid as compensation to the victim, then the accused are not required to undergo remainder sentence imposed upon them, which has been modified by this Court, as aforesaid. On such deposit being made, the Registry of concerned Sessions Court shall pay the entire amount to the victim after due verification. It is clarified that if any one or all the accused persons fail to deposit the amount as aforesaid, they shall surrender to custody on expiry of the aforesaid period failing which the investigating agency shall take necessary steps for sending them to jail custody. If the amount of compensation, as aforesaid, is not claimed by any person, the said amount be transmitted to any public authority for utility services preferably sanitation. The impugned judgment and order stands modified accordingly. Record and Proceedings, if lying here, be sent to the court below forthwith.