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2016 DIGILAW 491 (GUJ)

State of Gujarat v. Rajghar Tukaram

2016-03-01

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT K.S. Jhaveri, J. 1. The present appeal is filed by the appellant-State being aggrieved and dissatisfied with the judgment and order dated 7-6-1994 passed by the learned Sessions Judge, Surat, in Sessions Case No. 4 of 1994 whereby the respondent-original accused was acquitted of the charges levelled against him. 2. Short facts of the case of the prosecution are that the accused upon going to the place of the deceased, who is physically incapacitated, demanded money for taking liquor. When the deceased asked the accused whether he had no shame in asking for money from a physically unchallenged person, the accused got excited and gave a kick blow on the stomach and as the accused had a heart attack, he died. A complaint was, therefore, filed against the accused for the offence punishable under section 302 of IPC. In pursuance of said complaint, investigation started and as there appeared prima facie case against the accused, a charge sheet was filed against him. 2.1 As the offence was triable exclusively by Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. Thereafter charge was framed against the accused which was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 2.2 To prove the guilt against the accused, prosecution examined following witnesses: P.W.No. Name of Witness Exhibit No. 1 Imalben Tarachand 10 2 Lalita Goutambhai 11 3 Gautam Tarachand 12 4 Vijay Tarachand 13 5 Babu Manilal 14 6 Pandit Tulsiram Shinde 15 7 Dhansukhbhai Parbubhai Vaidh 16 8 Ibrahimali Abdul Rasulsaifi 17 9 Shantilal Dhansukhbhai 19 10 Ghondu Damu 22 11 Shantaben Manilal 23 12 Gandalal Ghelabhai Desai 27 2.3 The prosecution also relied on following documentary evidence: Sr. No. Description Exhibit No. 1 Inquest Panchnama 6 2 Panchnama of clothes wore by the deceased 7 3 Letter Producing pants of the deceased 8 4 Panchnama of seizure of clothes of the deceased 9 5 Histo pathological report 18 6 Map of scene of offence 21 7 Panchnama of body position of the accused 24 8 Certificate Keeping the cause of death of the deceased pending 25 9 Final opinion about cause of death of the deceased 26 10 Complaint 28 11 Special Report on the complaint 29 12 Post mortem note of the deceased 30 13 Panchnama of scene of offence 32 2.4 After filing of closing pursis by the prosecution, further statement of accused under Sec. 313 of Cr.P.C. was recorded. On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, the impugned judgment and order was delivered by the trial court giving rise to the present appeal by the State. 3. Heard learned Additional Public Prosecutor, Ms. C.M. Shah for the appellant-State of Gujarat and learned advocate, Mr. D.J. Bhatt for respondent-accused. 4. Learned APP, Ms. Shah for the appellant, taking us through the evidence of daughter-in-law and wife of the deceased and other medical evidence submitted that the learned trial Judge has not properly appreciated their evidence and has erred in holding that the prosecution has failed to prove the charge against the accused beyond reasonable doubt. She submitted that though the prosecution has examined several witnesses supporting the case of the prosecution, the learned trial Judge has not properly appreciated their evidence and therefore, the finding recorded by the learned trial Judge that the prosecution has failed to prove the charge against the accused by leading legal, reliable and impeachable evidence is contrary to the evidence available on record. She also further submitted that the learned Judge has not appreciated the seriousness of the offences wherein the victim, who is his real brother, has lost his life due to negligence of the accused. She further submitted that though almost all the witnesses have supported the case of the prosecution, the learned trial Judge has committed a grave error in disbelieving their evidence and in acquitting the respondent-accused and therefore, it is requested that the appeal deserves to be allowed. 5. Learned advocate, Mr. She further submitted that though almost all the witnesses have supported the case of the prosecution, the learned trial Judge has committed a grave error in disbelieving their evidence and in acquitting the respondent-accused and therefore, it is requested that the appeal deserves to be allowed. 5. Learned advocate, Mr. Bhatt for the respondent-original accused, on the other hand, taking us through the final opinion about cause of death certificate as well as the medical evidence and other evidence, submitted that the trial court has rightly appreciated the evidence appearing on record and the reasons assigned for recording a finding of acquittal are reasonable and justifiable. According to him, there are glaring and major contradictions and material improvements without any satisfactory explanation in the depositions of prosecution witnesses and therefore, the respondent accused was rightly acquitted by the trial court. He further submitted that this being an appeal against the order of acquittal, the judgment and order delivered by the trial Court deserves to be upheld as proper, as plausible reasons for acquittal have been recorded. He ultimately urged to dismiss this appeal. 6. It is required to be noted that the principles governing and regulating the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very clearly explained by the Hon'ble Apex Court in number of decisions. 6.1 In the case of Dilawar Singh and Others v. State of Haryana reported in (2015)1 SCC 737 , it has been held by the Hon'ble Supreme Court in Paragraph 36 and 37 as under: "36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record. 37. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415 , the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under: "42. 37. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415 , the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under: "42. ...(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." Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan v. Shera Ram: (2012) 1 SCC 602 ." 6.2 In the case of State of Goa V. Sanjay Thakran & Anr. reported in (2007)3 SCC 75, it has been held by the Hon'ble Apex Court In para 16 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. 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." 6.3 In the case of Luna Ram v. Bhupat Singh and Ors, reported in (2009) SCC 749, the Apex Court in para 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." 6.4 Even 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. 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. 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 appellant 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 ]" 6.5 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, 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." 6.6 Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors. v. State of Karnataka, reported in JT 2013(7) SC 66. v. State of Karnataka, reported in JT 2013(7) SC 66. 6.7 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then elaborate discussion of evidence or assigning fresh reasons are not necessary. 7. We have considered the above referred rival submissions made by the learned advocates for the respective parties in light of the principles laid down in the aforesaid decisions. 8. Taking into account the medical evidence as well as the opinion about cause of death given by Dr. Rajiv Mehta and Dr. Ilyen Shaikh at Exh. 26 of Department of Forensic Medicine, Government Medical College, Surat, and also taking into entire oral and documentary evidence, the trial court has held that prosecution could not prove the case against the accused beyond reasonable doubt and acquitted the accused. This Court is, therefore, of the opinion that the trial court was completely justified in acquitting the accused of the charges levelled against him. Therefore, the findings recorded by the trial court are absolutely just and proper and no illegality or infirmity has been committed by it in the said findings and therefore, we do not find it necessary to interfere with the same. 9. Learned Addl. Public Prosecutor is not in a position to show any evidence to take a view contrary to the view taken by the trial court or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record. 10. In the result, the appeal stands dismissed. The impugned judgment and order dated 7-6-1994 passed by the learned Sessions Judge, Surat, in Sessions Case No. 4 of 1994 is hereby confirmed. Bail bond, if any, stands cancelled. Record and proceedings shall be sent back forthwith to the trial court.