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2016 DIGILAW 517 (GUJ)

State of Gujarat v. Kanubhai Bababhai Desai

2016-03-03

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT: K.S. Jhaveri, J. 1. Present appeal, under section 378(1)(3) of the Code of Criminal Procedure, 1973 (for brevity, 'the Code') is directed against the judgment and order 18/12/2004, passed by the learned Additional Sessions Judge and Fast Track Court Judge, Gandhinagar in Special Atrocity Case No. 15 of 2004, whereby the respondents herein - original accused have been acquitted of the charges levelled against them for the offences punishable under Sections 363, 366, 376 and 114 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity, 'the Atrocity Act'). 2. Facts in nutshell of the prosecution case are that on 22/07/2003 after about 18:00 hours, from Raipur bus-stand, the respondent No. 1 herein - original accused No. 1, by giving some temptation, abducted the victim, the daughter of complainant, from the lawful guardianship of her parents, with a view to commit illicit intercourse, knowingfully well that the victim was belonged to the reserved class and brought her to Indore, where they stayed up to 25/07/2003 and committed rape on her and in committing such a crime, the respondent No. 2 - original accused No. 2 aided and abetted the respondent No. 1 - accused No. 1. Thus, the accused committed the offence, alleged against them, for which, a complaint came to be lodged against the accused for the aforesaid offences. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed. 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. 2.2 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under: ORAL EVIDENCE S/n. Name of Witness Exh. 1 Kalpeshbhai Bhaishanker Jaspara 11 2 Kantilal Ranchoddas Patel 15 3 Dr.Sandhyabhen Dalpatsinh Rathod 19 4 Pravinbhai Nanjibhai Rathod 24 5 Victim 27 6 Bhartiben Ishwarbhai Vaghela 31 7 Hareshkumar Popatlal Jogi 36 8 Sitaram Vishvanath Mourya 38 9 Govandsinh Pratapsinh Bhati 44 Documentary Evidence S/n. Document Exh. 1 Kalpeshbhai Bhaishanker Jaspara 11 2 Kantilal Ranchoddas Patel 15 3 Dr.Sandhyabhen Dalpatsinh Rathod 19 4 Pravinbhai Nanjibhai Rathod 24 5 Victim 27 6 Bhartiben Ishwarbhai Vaghela 31 7 Hareshkumar Popatlal Jogi 36 8 Sitaram Vishvanath Mourya 38 9 Govandsinh Pratapsinh Bhati 44 Documentary Evidence S/n. Document Exh. 1 Certificate of CHC Dahegam of the medical treatment of the accused 12 2 Despetch Note of sending the sample of the accused  to the FSL 14 3 Certificate of Medical treatment to the victim 16 4 Complaint and Complainant – Pravinbhai Nanjibhai Rathod 25 5 Panchnama of Physical condition of the victim 31 6 Panchnama of Physical condition of the accused 37 7 School Living Certificate of the victim 30 8 Certificate of CHC Dahegam of the medical treatment of the victim 20 9 Despatch Note of sending of muddamal to FSL 39 10 Letter to FSL to the PSI Dahegam 41 11 FSL Report sent to the PSI Dahegam 42 12 Serological Report 43 2.3 At the end of the trial, after recording the Further Statements of the accused under Section 313 of Code and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the respondents of all the charges levelled against them by impugned judgment and order. 2.4 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant - State has preferred the present appeal. 3. We have heard Ms. C.M. Shah, learned Additional Public Prosecutor for the appellant - State and Mr. J.S. Parikh, learned advocate, for Mr. Niral Mehta, learned advocate for the respondent No. 2 - original accused No. 2 and Mr. Vikram Thakor, learned advocate for the respondent No. 1 - original accused No. 1. 3.1 Ms. Shah, the learned Additional Public Prosecutor appearing for the appellant - State, has submitted that the trial Court has committed an error in acquitting the respondents - accused from the charges levelled against them. It was contended by Ms. Shah, the learned Additional Public Prosecutor that the judgment and order of the Sessions Court is against the provisions of law; 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 offence, alleged against the present respondents, beyond reasonable doubt. The learned Additional Public Prosecutor took this Court through the oral as well as the documentary evidence on record, more particularly, the evidence of the victim at exh. 27, evidence of complainant & father of the victim - Pravinbhai Nanjibhai Rathod at exh. 24 and the medical evidence and contended that though, by the evidence on record, the prosecution has successfully proved the case against the respondents beyond reasonable doubt, the learned Sessions Judge has acquitted the respondents - accused of the charges levelled against them by giving benefit of doubt. She submitted that the age of the victim was less than 18 years when the incident in question had occurred and the said fact was substantiated by the documentary evidence on record, however, the learned trial Judge has failed to appreciate the same in its proper perspective and thereby, has committed a grave error. Eventually, she requested this Court to interfere in appeal by allowing the same. 4. On the other hand, the learned advocates appearing for the respective respondents - original accused, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has failed to prove the case against the respondents - accused beyond reasonable doubt and accordingly, the trial Court has rightly granted the benefit of doubt to the present respondents -accused. It is submitted, without prejudice to the rights and contentions of the respondents - accused, that, in any case, the victim had gone with the accused No. 1 on her own volition and there is nothing on record to show that the accused No. 1 had forcibly committed rape on her. In the circumstances, in the submission of the learned advocates for the respondents - accused, the view taken by the learned trial Judge being just and proper and this being an appeal against acquittal, this Court may not interfere in the impugned judgment and order. 5. 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 Hon'ble Apex Court in catena of decisions. 5. 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 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 judgement 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." 5.1 Further, in the case of Chandrappa v. State of Karnataka, reported in: (2007) 4 SCC 415 the Hon'ble Apex Court has 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. [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. [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." 5.2 Thus, it is a settled principle that while exercising appellate powers, 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. 5.3 Even in a recent decision of the Hon'ble Apex Court in the case of State of Goa V. anjay 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 judgement 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." 5.4 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. 5.5 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 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 judgement 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." 5.6 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. 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)]" 5.7 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." 5.8 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. 6. We have examined the matter carefully and gone through the evidence on record. We have re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Hon'ble Apex Court. Taking into consideration the oral as well as documentary evidence forthcoming on record, we find no error, apparent on the record of the case, committed by the learned trial Judge. Moreover, the trial Court, while considering the evidence on record, has very elaborately discussed the evidence adduced before it. Besides, the learned Additional Public Prosecutor 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 that view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order. 6.1 We are, therefore, of the considered opinion that the findings recorded by the trial Court in acquitting the accused of the charge levelled 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. 7. In view of the aforesaid discussion, present appeal fails and is dismissed accordingly. 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. 7. In view of the aforesaid discussion, present appeal fails and is dismissed accordingly. The impugned judgment and order dated 18/12/2004, passed by the learned Additional Sessions Judge and Fast Track Court Judge, Gandhinagar in Special Atrocity Case No. 15 of 2004 is hereby confirmed. Bail bonds, if any, shall stand cancelled. Registry to return the R&P to the trial Court forthwith.