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2016 DIGILAW 595 (GUJ)

Najabhai Lakhubhai Kathi v. State of Gujarat

2016-03-15

G.B.SHAH, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. By way of these appeals original accused No. 1 as well as the State have challenged the judgement and order dated 31.03.2005 passed by the learned Additional Sessions Judge, Amreli in Sessions Case No. 75 of 2001 whereby the trial court has convicted original accused No. 1 under Section 326 of the Indian Penal Code and accordingly sentenced him to undergo rigorous imprisonment for five years and fine of Rs. 4000/- in default simple imprisonment for four months. Accused No. 1 was however acquitted under Section 307 r/w 114 IPC and also under Section 37(1) r/w Section 135 of B.P. Act. Original accused Nos. 2 & 3 were also acquitted of the offences punishable under Sections 307 and or 326 r/w 114 of IPC. 1.1 Criminal Appeal No. 159 of 2006 has been preferred by original accused No. 1 against his conviction whereas Criminal Appeal No. 1254 of 2005 has been preferred by the State for enhancement of sentence imposed upon accused No. 1 and Criminal Appeal No. 1255 of 2005 has been preferred by the State against the acquittal of original accused Nos. 2 & 3. 2. It is the case of the prosecution that on 14.08.1999, at about 08.00 pm the complainant received information that his son - P.W. 2 was assaulted by the accused persons and therefore he went to Rajula Government Hospital where he found his son unconscious. It is the case of the prosecution that the complainant was informed by an eye witness that at around 06.30 pm on the same day, his son - P.W. 2 was repairing tempo at the garage of Tidabhai situated opposite Rajula S.T. Bus stand, accused No. 1 and other unknown persons came there and assaulted P.W. 2 with iron pipe and ran away. P.W. 2 was taken from Rajula Hospital to Madhuram Hospital at Rajkot. It is the case of the prosecution that a year prior, some quarrel had taken place between P.W. 2 and accused No. 1 and both of them had assaulted each other. Thereafter, a compromise had taken place. It is the case of the prosecution that inspite of the compromise, accused No. 1 kept a grudge in his mind and therefore caused grievous injury on the head and hands of P.W. 2 by iron pipe. A complaint was accordingly lodged by the complainant. Thereafter, a compromise had taken place. It is the case of the prosecution that inspite of the compromise, accused No. 1 kept a grudge in his mind and therefore caused grievous injury on the head and hands of P.W. 2 by iron pipe. A complaint was accordingly lodged by the complainant. 2.1 The accused were apprehended and after investigation charge sheet was submitted. The case was committed to the Court of Sessions. The trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses whose evidences were read before us by learned advocates for both the sides. P.W. No. Name of Witness Exhibit No. 1 Nathabhai Danabhai 22 2 Gigabhai Nathabhai 24 3 Kalubhai Merubhai 25 4 Girdharbhai Kumbhar 28 5 Harsurbhai Bachubhai 29 6 Dr. Hemang Vasavada 33 7 Mansukhbhai Madhak 36 8 Dr. Popatbhai Bhaliya 85 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 Complaint 23 2 Medical certificate of injured 34 3 Declaration made by complainant 35 4 Panchnama of scene of offence 37 5 Panchnama of body condition of injured 38 6 Panchnama of seizure of muddamal weapon 39 7 Yadi by Medical Officer 40 8 Order handing over investigation to P.W. 7 41 9 Notification 42 10 Certified copy of deposition of P.W. 1 51 11 Copy of medical certificate issued by P.W. 1 qua injured 52 & 86 12 Case papers 87 2.3 At the end of the trial and after recording the statement of the accused under section313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted/acquitted the accused as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the accused and the State have preferred the present appeals. 3. Ms. Sadhana Sagar, learned advocate appearing for the accused has submitted that a year or two prior to the alleged incident, a quarrel had taken place between the injured and accused No. 1 which was later on compromised. She submitted that with a view to take revenge and harass accused No. 1, the present complaint was filed by the complainant. 3.1 Ms. She submitted that with a view to take revenge and harass accused No. 1, the present complaint was filed by the complainant. 3.1 Ms. Sagar submitted that the victim was discharged after six days and therefore it cannot be said that he was grievously hurt. She submitted that the trial court has not considered the opinion of first doctor who deposed that injury No. 1 could have been possible by any part of rickshaw. She submitted that in fact no history was recorded before the doctor at Rajula Government Hospital and therefore the case of the prosecution is doubtful. 3.2 Ms. Sagar submitted that there are contradictions and variations in the evidence of witnesses. She submitted that two panch witnesses have turned hostile. She further submitted that the statement of victim was recorded after a period of 8 days. She submitted that the prosecution has not proved the case against the accused beyond reasonable doubt. She submitted that so far as enhancement and acquittal appeals are concerned, the same deserve to be dismissed. 4. Ms. C.M. Shah, learned APP has appearing for the State has supported the order of the trial court and has submitted that the trial court has gone into the evidence in detail and has come to the conclusion that accused No. 1 is guilty of the offence so convicted of. She also submitted that the sentence imposed upon the accused does not deserve to be reduced or quashed. She submitted that on the other hand, considering the gravity of offence and the nature of injuries sustained by the victim, the trial court ought to have convicted the accused under Section 307 of IPC. She submitted that the sentence imposed by the trial court under Section 326 of Indian Penal Code is on lower side and requires to be enhanced. 4.1 Ms. Shah submitted that so far as the acquittal of the accused is concerned, the judgement 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 accused. Learned APP has also taken this court through the oral as well as the entire documentary evidence. 5. Learned APP has also taken this court through the oral as well as the entire documentary evidence. 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 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 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. 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 judgement delivered by the Court below. 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." 5.4 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 L.Rs. v. state of M.P., 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 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 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 adherence, 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 34of 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 judgement or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. [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 judgement 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." 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. 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 decisions of the Apex Court we find that the finding of facts as far as the conviction of the original accused No. 1 under Section 326 of Indian Penal Code is concerned, the same is just and proper. The evidence of injured witness Giga Najabhai - P.W. 2 clearly shows that accused No. 1 gave pipe blow on his head and because of the same he fell down and became unconscious. He ha identified the accused in the court. The said evidence of injured witness is also supported by other eye witnesses. P.W. 3 - Kalubhai who is an eye witness to the alleged incident has supported the case of the prosecution. He has been extensively cross examined by the defence but he has withstood the same. The medical evidence also supports the case of the prosecution. The injured was treated for six days in the hospital. The prosecution has proved the case against accused No. 1 beyond reasonable doubt. The conviction appeal filed by accused No. 1 is therefore required to be dismissed. 7. The medical evidence also supports the case of the prosecution. The injured was treated for six days in the hospital. The prosecution has proved the case against accused No. 1 beyond reasonable doubt. The conviction appeal filed by accused No. 1 is therefore required to be dismissed. 7. So far as enhancement appeal is concerned, 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. We are of the view that considering the nature of injuries and the number of days of hospitalisation, the sentence imposed upon the accused is just and proper. Therefore, enhancement appeal filed by the State is also required to be dismissed. 8. Even the acquittal of the accused is just and proper. 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 judgement and order. 9. We are, therefore, of the considered opinion that the findings recorded by the trial Court in convicting/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 judgement and order of the trial Court. 10. Accordingly, appeals are hereby dismissed. The judgement and order dated 31.03.2005 passed by the learned Additional Sessions Judge, Amreli in Sessions Case No. 75 of 2001 is confirmed. Original accused No. 1 shall surrender within a period of twelve weeks from today to serve out the remaining period of sentence. 10. Accordingly, appeals are hereby dismissed. The judgement and order dated 31.03.2005 passed by the learned Additional Sessions Judge, Amreli in Sessions Case No. 75 of 2001 is confirmed. Original accused No. 1 shall surrender within a period of twelve weeks from today to serve out the remaining period of sentence. The accused No. 1 shall be given benefit of set off for the period of sentence already undergone. Bail bond, if any, shall stand cancelled. R & P, if lying with this Court to be sent back forthwith to the trial court.