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2016 DIGILAW 532 (GUJ)

State of Gujarat v. Ramanbhai Bhemabhai Raval

2016-03-04

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. The State of Gujarat, by way of filing both the appeals, before this Court has questioned the impugned judgment and order dated 17.02.2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Panchmahal at Godhra in Sessions Case No. 334 of 2003 whereby the original accused has been sentenced to rigorous imprisonment for five years and fine of Rs. 500/-, in default, simple imprisonment for one month for the offence under section 304(Part II) of Indian Penal Code. Criminal Appeal No. 778 of 2004 is filed for enhancement of the sentence awarded by the trial court whereas Criminal Appeal No. 2031 of 2004 is filed against the acquittal recorded under Section 302 of Indian Penal Code. 2. The prosecution case is that on 31.08.2003 the accused started abusing the complainant as she had tied cow on public way. The complainant thereafter tied the cow besides her house. It is the case of the prosecution that however, the accused extracted iron kosh which was buried in the soil for the purpose of tying the cow and again started altercation with the complainant. The husband of complainant - deceased intervened and he was given 2-3 blows by iron kosh on the chest. The deceased succumbed to the injuries. A complaint was lodged by the complainant. Investigation was initiated. 2.1 After completing the investigation, the prosecution filed the charge sheet. Learned Magistrate committed the case to Sessions Court and the accused was charged for the offences as per the charges framed. Trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses as oral evidence whose evidence have been read out before us: P.W. No. Name if Witness Exhibit No. 1 Dr. Lalbhai Vankar 7 2 Kalaben Raval 9 3 Raval Dhulabhai 13 4 Mansukhbhai Kuberbhai 15 5 Jabbarbhai Jalu 17 2.2 The prosecution also relied upon the following documents as documentary evidences which have been perused by us: Sr. Lalbhai Vankar 7 2 Kalaben Raval 9 3 Raval Dhulabhai 13 4 Mansukhbhai Kuberbhai 15 5 Jabbarbhai Jalu 17 2.2 The prosecution also relied upon the following documents as documentary evidences which have been perused by us: Sr. No. Name of Document Exhibit No. 1 P.M. Note 8 2 Complaint 10 3 Inquest panchnama 11 4 Panchnama of muddamal 12 5 Panchnama of scene of offence 14 6 Panchnama of muddamal 16 2.3 At the end of the trial and after recording the further statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted original accused as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the sessions Court, the present appeals have been preferred by the state. 3. Mr. H.S. Soni, learned advocate appearing for the State has submitted that the trial court erred in not properly appreciating the gravity of the offence committed by the accused while imposing the sentence and thereby committed grave error. He has drawn the attention of this Court to the provisions of Section 304 (Part II) of Indian Penal Code and submitted that this is a fit case wherein this Court may enhance the sentence imposed. He submitted that in fact the respondent - accused has accepted the conviction as no appeal has been filed by him against the conviction. 3.1 Mr. Soni submitted that the trial court committed an error in acquitting the respondent-accused under Section 302 IPC. It was Contended by Mr. Soni 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 evidence against the present respondent and therefore the trial court ought to have convicted the accused under Section 302 of Indian Penal Code. 4. Mr. Mrudul Barot, learned advocate appearing for the respondent - accused on legal aid has admitted that no appeal has been filed on behalf of the respondent - accused against the conviction. He submitted that, however, a lenient view may be taken in the matter. 5. 4. Mr. Mrudul Barot, learned advocate appearing for the respondent - accused on legal aid has admitted that no appeal has been filed on behalf of the respondent - accused against the conviction. He submitted that, however, a lenient view may be taken in the matter. 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 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." 5.1 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. [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. [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." 5.2 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. 5.3 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. 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." 5.4 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. 5.5 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 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." 5.6 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. 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 ]" 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 Apex Court in the case of State of Karnataka v. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under: "... 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." 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. It is an admitted position that no appeal has been filed by the respondent - accused against the conviction recorded by the trial judge. Therefore, there is no need to discuss the evidence in detail so far as the conviction is concerned. Having satisfied ourselves as to the correctness of the conviction of the respondent - accused by the trial court, we will now consider the question of sentence. The trial court imposed the punishment of sentence as noticed above. It is against this quantum of punishment, the appeal for enhancement is filed by the State. 6.1 It is well settled that a question of a sentence is a matter of discretion and when discretion has been properly exercised along accepted judicial lines, an appellate Court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment. In a matter of enhancement, there should not be interference when the sentence passed imposes substantial sentence. Interference is only called for when it is manifestly inadequate. 6.2 Considering the evidence on record, it is borne out that there erupted an altercation between the complainant and the accused and the deceased had tried to intervene in the fight as a result of which he was injured. The cause of death as per the post mortem report is intrathoracic haemorrhagic shock due to blunt injury to the chest. 6.2 Considering the evidence on record, it is borne out that there erupted an altercation between the complainant and the accused and the deceased had tried to intervene in the fight as a result of which he was injured. The cause of death as per the post mortem report is intrathoracic haemorrhagic shock due to blunt injury to the chest. It is borne out from the medical evidence that the deceased had sustained one injury on his chest as a result of which he died. We are of the view that the blow on the deceased was not premeditated and in a fit of rage, when the deceased intervened in the ensuing brawl between the accused and the complainant he sustained the blow. The trial court has rightly held that the intention of the accused was not to cause death of the deceased but due to the sudden provocation, the incident took place. We are of the view that the sentence imposed upon the accused is adequate and does not deserve to be enhanced. The trial court is also justified in convicting the accused under Section 304(Part II) of Indian Penal Code and not under Section 302 of Indian Penal Code. 7. 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. 8. We are, therefore, of the considered opinion that the findings recorded by the trial Court in acquitting the accused of the charge levelled against him 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. 9. Accordingly, appeals are hereby dismissed. The judgment and order dated 17.02.2004 passed by the Additional Sessions Judge, Fast Track Court No. 4, Panchmahal at Godhra in Sessions Case No. 334 of 2003 is confirmed. No interference is warranted with the judgment and order of the trial Court. 9. Accordingly, appeals are hereby dismissed. The judgment and order dated 17.02.2004 passed by the Additional Sessions Judge, Fast Track Court No. 4, Panchmahal at Godhra in Sessions Case No. 334 of 2003 is confirmed. The accused shall surrender within a period of twelve weeks from today to serve out the remaining period of sentence. The accused shall be given the benefit of set off for the period of sentence already undergone. Bail bond, if any, shall stand cancelled.