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2016 DIGILAW 171 (GUJ)

State of Gujarat v. Bharwad Ranchodbhai Devabhai

2016-01-22

K.S.JHAVERI, R.P.DHOLARIA

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Criminal Appeal No. 95 of 2006 preferred by the State of Gujarat is directed against the judgment and order of acquittal dated 28.10.2005 passed by the Principal Sessions Judge, Surendranagar in Sessions Case No. 46 of 2000, whereby the accused Nos. 1 to 10 & 12 & 13 have been acquitted of the charges leveled against them under Sections 147, 148, 149, 302, 307, 323, 324, 325, 326, 504 &506(2) of Indian Penal Code. Criminal Appeal No. 95 of 2006 shall stand abated qua original accused No. 11 in view of his death. 1.1 Similarly, the State has also preferred Criminal Appeal No. 497 of 2006 against the judgment and order of acquittal dated 28.10.2005 passed by the Principal Sessions Judge, Surendranagar in Sessions Case No. 47 of 2000 whereby the original accused Nos. 1 to 13 therein have been acquitted of the charges levelled against them under Sections 147, 148, 149, 307, 323, 324, 326, 504 & 506(2) of Indian Penal Code. 1.2 On the other hand Criminal Appeal No. 2369 of 2005 has been preferred by original accused No. 1 in Sessions Case No. 47 of 2000 against the judgment and order of acquittal dated 28.10.2005 passed by the Principal Sessions Judge, Surendranagar in Sessions Case No. 47 of 2000 whereby he has been convicted for the offence punishable under Sections 325 & 325 of Indian Penal Code and also under Section 25(1) (B)(A) of the Arms Act. He has been sentenced to rigorous imprisonment for two years & fine of Rs. 3000/- in default to undergo simple imprisonment for five months for offence under section 325 of Indian Penal Code and simple imprisonment for a period of one year & fine of Rs. 2000, in default to undergo simple imprisonment for three months for offence under section 324 of Indian Penal Code. The accused No. 1 is further ordered to undergo simple imprisonment for one year & fine of Rs. 2500/- in default to undergo simple imprisonment for three months for offence under section 25(1)(B)(A) of the Arms Act. 2. It is the case of the prosecution so far as Sessions Case No. 46 of 2000 is concerned, that on 07.12.1999 at about 06.00 am the complainant in Sessions Case No. 46 of 2000 was returning home after visiting Shivalaya. 2500/- in default to undergo simple imprisonment for three months for offence under section 25(1)(B)(A) of the Arms Act. 2. It is the case of the prosecution so far as Sessions Case No. 46 of 2000 is concerned, that on 07.12.1999 at about 06.00 am the complainant in Sessions Case No. 46 of 2000 was returning home after visiting Shivalaya. At that time Bharvad Ranchhod Deva armed with a gun, Gagji Deva armed with farsi, Narayan Deva with a gun and Vana Bachu and Magha Hari with sticks in their hands were standing near the Chabutara. It is the case of the prosecution that Ranchhod Deva caught hold of the complainant and all Bharvads started abusing the complainant. The complainant told them not to abuse him and therefore Vana Bachu inflicted a blow of stick on left leg of the complainant as a result of which the complainant fell down. It is the case of the prosecution that thereafter all the accused persons started beating the complainant. At that time, the brothers and relatives of the complainant came there and there ensued a free fight between both the sides. It is the case of the prosecution that when the complainant was trying to stand up, Gagji Deva gave a farsi blow on his head and second blow above the complainant's eye. 2.1 It is the case of the prosecution that Bharvad Narayan Deva fired a gun shot on the brother of the complainant Mobubhai and Mobubhai sustained injuries on his stomach and other parts of the body and he fell down in a bleeding condition. Thereafter, Bharvad Raghu Bhikha & Daya Deva fired in the air. It is the case of the prosecution that the accused also threw stones on the complainant, his brother and other relatives. They were later on taken to hospital in the tractor. 2.2 So far as the prosecution case in Sessions Case No. 47 of 2000 is concerned, as per the complaint, on 07.12.1999 at about 06.00 am when the complainant was at home, he heard shouts from the chowk and when he went there with a stick he saw the accused No. 1 of Sessions Case No. 47 of 2000 beating his cousin's son Magha and therefore he intervened and tried to rescue Magha. It is the case of the prosecution as per the complaint that the complainant tried to stop accused No. 1 with the help of his wooden stick but the accused assaulted the complainant. In the meantime, the brothers of the complainant and other people from his community reached there and a free fight ensued between the parties. It is the case of the prosecution that Mobubhai Rajput assaulted Bharvad Vanabhai by way of dhariya, Rajput Juvanbhai assaulted Shelabhai Devabhai with a sword and Fatehsinh Tarubhai assaulted Danabhai with stick. The injured persons were thereafter taken to hospital. 2.3 Thereafter, offence was registered against the present accused with Limbdi Police Station and after their arrest and necessary investigation, chargesheet was submitted against the accused. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court. 2.4 The trial was initiated against the accused and during the course of trial the prosecution examined various witnesses whose evidences were read before us by learned advocates for both the sides. The prosecution also exhibited certain documents which have been perused by us during the course of hearing. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Principal Sessions Judge convicted/acquitted accused in both the Sessions Case as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the accused and the State have preferred the present appeals. 3. Mr. L.R. Poojari, learned APP appearing for the State in both the acquittal appeals submitted that the judgment and order of the Sessions Court is against the provisions of law and that the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondents. Learned APP has also taken this court through the oral as well as the entire documentary evidence. 3.1 Mr. Poojari, however, submitted that the trial court has given cogent reasons for sustaining the conviction of accused No. 1 of Sessions Case No. 47 of 2000 under sections 325 & 324 of Indian Penal Code and this court may not interfere in Criminal Appeal No. 2369 of 2005. 3.1 Mr. Poojari, however, submitted that the trial court has given cogent reasons for sustaining the conviction of accused No. 1 of Sessions Case No. 47 of 2000 under sections 325 & 324 of Indian Penal Code and this court may not interfere in Criminal Appeal No. 2369 of 2005. He stated that the trial court has based the conviction not only on the statements of the eye witnesses but also considered entire circumstances of the case and the facts which are proved by cogent evidence. He has drawn the attention of this Court to the statements of eye witnesses, medical evidence and the panchnamas. 4. Mr. Yogesh Lakhani, learned Senior Counsel appearing for the accused in Sessions Case No. 47 of 2000 contended that so far as Criminal Appeal No. 497 of 2006 is concerned, the trial court has rightly acquitted the accused. He submitted that the trial court having gone into the evidence in detail is justified in acquitting the accused when no case is made out against them. 4.1 Mr. Lakhani submitted that so far as Criminal Appeal No. 2369 of 2005 is concerned, the case against accused No. 1 in Sessions Case No. 47 of 2000 cannot be said to have been proved inasmuch as there is no sufficient evidence found against him. He submitted that it may be considered that for the alleged incident two cross complaints are filed as the complainant and his relatives committed murder of brother of the accused. He submitted that in fact none of the injured witnesses who went for treatment to the hospital gave any history about the alleged incident or the name of accused. 5. Mr. J.M. Panchal, learned advocate appearing for the accused in Sessions Case No. 46 of 2000 (Criminal Appeal No. 95 of 2006) submitted that the trial court has rightly acquitted the accused and therefore this Court may not interfere in the same. 6. We have perused the records of the case. We have gone through the medical evidence on record. It is required to be seen that a cross complaint had also been filed against the accused in both the matters. In view of the aforesaid facts, the entire episode seems to be a work of free fight. A free fight is when both sides mean to fight from the start, go out to fight and there is pitched battle. It is required to be seen that a cross complaint had also been filed against the accused in both the matters. In view of the aforesaid facts, the entire episode seems to be a work of free fight. A free fight is when both sides mean to fight from the start, go out to fight and there is pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders. Parties of both the sides sustained injuries as is clear from the records. It appears that the assault was made by both the sides in order to defend their family members. However, the fact remains that the offence is said to have been committed and original accused No. 1 of Sessions Case No. 47 of 2000 (Criminal Appeal No. 2369 of 2005) appears to have been driven by a grave and sudden provocation after the confrontation with the complainant and his family members which resulted into a free fight where members of both the sides were injured. 7. Having considered minutely the evidence on record, oral as well as documentary, which we have appreciated, re-appreciated and reconsidered in light of the latest decision of the Apex Court we find that the finding of facts as far as the conviction of the original accused No. 1 under section 324 cannot be found any fault with. It is required to be noted that the injured witness was in hospital for seven days. In the present case, we have come to the irresistible conclusion that the role of original accused No. 1 of Sessions Case No. 47 of 2000 is clear from the records. However, the point which has also weighed with this court is that the injured witness was hospitalized for seven days and the entire episode seemed to have been an incident of free fight where the accused persons and their family members also got injured. The brother of original accused No. 1 was killed in the free fight whereas the injury inflicted by original accused No. 1 was on the fingertip of the injured witness which required hospitalization of seven days. No arms were recovered from original accused No. 1 or at his instance. The brother of original accused No. 1 was killed in the free fight whereas the injury inflicted by original accused No. 1 was on the fingertip of the injured witness which required hospitalization of seven days. No arms were recovered from original accused No. 1 or at his instance. In that view of the matter, we think it fit to alter the conviction of original accused No. 1 of Sessions Case No. 47 of 2000 (Criminal Appeal No. 2369 of 2005) from Section 325 of Indian Penal Code to one under Section 324 of Indian Penal Code and accordingly fine of Rs. 5000/- is imposed upon original accused No. 1 thereunder. He is not required to undergo imprisonment under Section 324 IPC. Original accused No. 1 is required to be acquitted under section 25(1)(B)(A) of the Arms Act by granting him benefit of doubt in view of the fact that the prosecution has failed to prove that there was recovery of any arm from accused No. 1. If the accused has already paid the amount of fine of Rs. 5000/- he shall not be required to pay again. 8. As far as the acquittal of rest of the accused is concerned, 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." 8.1 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, 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." 8.2 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. 8.3 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. 8.3 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 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." 8.4 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. 8.5 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." 8.6 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 sc an 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 ]" 8.7 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." 8.8 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. We find that the reasonings adopted and findings arrived at by the trial court with regard to the role of acquitted accused in both the appeals are not required to be interfered with. The appeals filed by respondent - State do not have any merits and are required to be dismissed. 9. For the foregoing reasons, Criminal Appeals No. 95 and 497 of 2006 stand dismissed. The judgment and order dated 28.10.2005 passed in Sessions Case No. 46 of 2000 is confirmed. Criminal Appeal No. 2369 of 2005 is partly allowed. The conviction of original accused No. 1 of Sessions Case No. 47 of 2000 - Rajput Tarubhai Vanubhai under Section 325 is altered to one under Section 324 of Indian Penal Code. Original accused No. 1 of Sessions Case No. 47 of 2000 - Rajput Tarubhai Vanubhai is imposed fine of Rs. 5000/- under Section 324 of IPC. The conviction of original accused No. 1 of Sessions Case No. 47 of 2000 - Rajput Tarubhai Vanubhai under Section 325 is altered to one under Section 324 of Indian Penal Code. Original accused No. 1 of Sessions Case No. 47 of 2000 - Rajput Tarubhai Vanubhai is imposed fine of Rs. 5000/- under Section 324 of IPC. He is not required to undergo imprisonment under Section324 IPC. If he has already paid the amount of fine of Rs. 5000/- he need not pay the same again. Original accused No. 1 is granted benefit of doubt under Section 25(1)(B)(A) of the Arms Act. Judgment and order dated 28.10.2005 passed in Sessions Case No. 47 of 2000 is modified accordingly. R & P to be sent back to the trial court forthwith.