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2016 DIGILAW 558 (GUJ)

Kamlesh Bachubhai Vadher v. State of Gujarat

2016-03-10

G.B.SHAH, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. Present appeals are directed against the judgment and order dated 05/03/2003, passed by the learned Additional Sessions Judge & 6th Fast Track Court Judge, Junagadh, in Sessions Case No. 49 of 2002, whereby, while acquitting the accused from the charges levelled against them for the offences punishable under Sections 143, 147, 148, 149, 395, 397, 295(k), 336, 436 and 506(2) of the Indian Penal Code, 1860 (for brevity, 'the IPC') and Section 135 of the Bombay Police Act, the original accused No. 1 came to be convicted for the offence punishable under Section 324 of the IPC and sentenced to undergo imprisonment for one year and a fine of Rs. 500/- and in default of payment of fine, to undergo further simple imprisonment for fifteen days. Accordingly, Criminal Appeal No. 506 of 2003 has been filed by the appellant - original accused No. 1 against conviction, whereas, Criminal Appeal Nos. 1101 and 1102 of 2005 have been filed by the State for enhancement of sentence of original accused No. 1 and against acquittal of all the accused, respectively. 2. Brief facts of the prosecution case are that on 28/02/2002, at about 12:00 hours, all the accused, together with a mob of around 150 people, by forming unlawful assembly in furtherance of their common object with respect to Godhra carnage, went to the place of complainant situated at Husain Manzil, on Girnar Road, near Godhavav Pati, possessing deadly weapons, with a view to causing grievous hurt and damage the properties of the complainant, knocked the doors of the complainant by threatening him to open the doors and when the complainant opened the doors, the accused instigated other people by shouting to attack the complainant and on police having reached the spot, the accused and others fled away from there, however, the accused No. 1 allegedly looted the gold chain of the complainant. Moreover, the accused and other people of the mob, caused damage in the nearby cycle store worth Rs. 200/-, assaulted one Salim with knife on his abdomen and also damaged the roof of nearby Dargah. They also allegedly damaged one scooter, one rickshaw and the scrap material belonging to the different people, lying near the house of the complainant. Moreover, the accused and other people of the mob, caused damage in the nearby cycle store worth Rs. 200/-, assaulted one Salim with knife on his abdomen and also damaged the roof of nearby Dargah. They also allegedly damaged one scooter, one rickshaw and the scrap material belonging to the different people, lying near the house of the complainant. They also allegedly pelted stones at the house of the complainant and also threatened the people of minority community to kill them and thereby, they committed the offence alleged against them, for which a complaint came to be lodged for the offences punishable under Sections 143, 147, 148, 149, 395, 397, 295(k), 336, 436and 506(2) of the IPC and Section 135 of the Bombay Police Act. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court at Junagadh. 2.2 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. 2.3 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 PW-1 Dr. Hareshgiri Bhagwangiri Aparnathi 47 2 PW-2 Nurmahmadbhai Osmanbhai 64 3 PW-3 Hanifbhai Hajibhai 65 4 PW-4 Salimbhai Habibbhai 67 5 PW-5 Rahematben Majidbhai Padaya 68 6 PW-6 Majidbhai Hajibhai Padaya 70 7 PW-7 Ezaj Iqbal 71 8 PW-8 Mansukhlal Gaurishankar 74 9 PW-9 Bakulbhai Haribhai Gameti 78 10 PW-10 Vishnukumar Mukundray Vyas 83 11 PW-11 Bharatsinh Balvantsinh Gohil 84 DOCUMENTARY EVIDENCE S/n. Document Exh. 1 Yadi to FSL 33 2 Muddamal Despatch Note 34 3 Yadi of Medical Officer, Junagadh 35 4 Receipt of FSL 36 5 Forwarding letter of FSL 37 6 FSL Report 38 7 Receipt of FSL 39 8 Forwarding letter of FSL 40 9 FSL Report 41 10 Receipt of FSL 42 11 Forwarding letter of FSL 43 12 FSL Report 44 13 Serological Report 45 14 Copy of Notification of prohibition of weapons 46 15 Medical Certificate of Salim Habib 48 16 Complaint 66 17 Panchnama of clothes of injured Salim Habib 69 18 Panchnama of place of offence 72 19 Extract of Junagadh A Div. Police Station C.R. No. I-39/2002 75 20 Copy of extract of Station Diary of C.R. No. I-39/2002 76 21 Yadi of PSO to PI for investigation 77 22 Yadi of PI to FSL 79 23 FSL Mobile Report 80 24 Arrest Panchnama of accused – Kamlesh and Dinesh 81 25 Yadi of PI of Chief Judicial Magistrate for amendment in section 82 26 Panchnama as to collection of blood sample of injured Salim 73 2.4 At the end of the trial, Further Statements of the accused under Section 313 of Code of Criminal Procedure (for brevity, the Code') were recorded in which, they pleaded not guilty and stated that they have been falsely implicated in the crime. Thus, after recording above-referred Further Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge came to the aforesaid conclusion by impugned judgment and order. 2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the State as well as the accused No. 1 have preferred the present appeals, as aforesaid. 3. We have heard Mr. Hriday Buch, learned advocate for the accused and Mr. J.M. Panchal, learned Special Public Prosecutor for the State. 3.1 Mr. Buch, the learned advocate for the accused, at the outset, stated that the accused No. 1 has already undergone the sentence of imprisonment of one year, as has been imposed upon him by the trial Court, and therefore, the appeal filed by the accused No. 1 against conviction, has, now, become academic and hence, he requested to consider the appeals, more particularly, the appeals filed by the State against acquittal and for enhancement of sentence of accused No. 1, respectively. Taking into consideration the aforesaid fact, the appeals filed by the State against acquittal and for enhancement of sentence of accused No. 1, respectively, have been heard and considered. 4. Mr. Taking into consideration the aforesaid fact, the appeals filed by the State against acquittal and for enhancement of sentence of accused No. 1, respectively, have been heard and considered. 4. Mr. Panchal, the learned Special Public Prosecutor, for the State while supporting the judgment and order so far as conviction to the accused No. 1 is concerned, contended that when the offence is already proved by the prosecution against the said accused beyond reasonable doubt, the trial Court has committed an error in imposing lesser punishment to the accused No. 1, more particularly, looking to the provisions of the law qua sentence for such an offence and that too, without assigning any cogent and sufficient reasons by the trial Court. Moreover, he contended that from the evidence on record, the guilt of the accused has clearly been established and accordingly, in his submission, when the offence is proved beyond reasonable doubt and conviction is imposed, this Court may interfere in appeal and impose adequate punishment. 4.1 So far as the appeal challenging the impugned judgment and order of acquittal is concerned, the learned Special Public Prosecutor for the State submitted that the trial Court has committed a grave error in acquitting the accused from the charges levelled against them. It was contended by him 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 before it and looking to the provisions of law itself, it is established that the prosecution has successfully proved the whole ingredients of the offence, alleged against the accused. He also took this Court through the oral as well as the entire documentary evidence and contended that though the prosecution has successfully proved the case against the accused beyond reasonable doubt, the learned trial Court has, by misreading and misinterpreting the evidence on record, acquitted them of the charges levelled against them and thereby, has committed a serious error of law and evidence on record and eventually, he requested this Court to interfere in appeal. 5. We have heard the learned advocates for the parties, 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. 5. We have heard the learned advocates for the parties, 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. We have also gone through the impugned judgment and order, more particularly, para 22 onwards of the same and found that the learned trial Judge has taken all pains and considered each and every aspects of the matter minutely and thereafter, has come to such a conclusion. Moreover, the learned Special 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. 5.1 So far as the appeal against the acquittal 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 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." 5.2 Further, in the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415 the Hon'ble 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." 5.3 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. 5.4 Even in a recent decision of the Hon'ble 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. 5.4 Even in a recent decision of the Hon'ble 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 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. 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." 5.5 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. 5.6 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 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." 5.7 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. 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)]" 5.8 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." 5.9 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. 5.10 In the aforesaid backdrop, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order and we are in complete agreement with the reasonings given and the findings arrived at by the trial Court and therefore, we are not inclined to disturb the same. 6. In view of the aforesaid discussion, present appeals fail and are dismissed accordingly. The impugned judgment and order dated 05/03/2003, passed by the learned Additional Sessions Judge & 6th Fast Track Court Judge, Junagadh, in Sessions Case No.49 of 2002, is hereby confirmed. The bail bonds of the accused shall stand cancelled. Registry to return the R&P to the trial Court forthwith.