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2016 DIGILAW 607 (GUJ)

State of Gujarat v. Koli Manji Vihaji

2016-03-16

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 30-9-1993 passed by the learned Additional Sessions Judge, Palanpur, in Sessions Case No. 3 of 1993 whereby the respondent-original accused was acquitted of the charges levelled against him. 2. Short facts of the case of the prosecution are that on 17-10-1990 at about 6 p.m., in Village Odhav, Taluka Deesa, District Banaskantha, the accused, committing breach of peace, attacked on Koli Vasaji Ladhaji with scissors on his head and on left eye with an intention to kill him and Koli Vasaji Ladhaji succumbed to the injuries sustained by him. The accused also caused injuries on injured Dariyaben on the back with hard and blunt substance. A complaint was, therefore, filed against the accused. 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 Premjibhai Mahadevbhai Bhati 8 2 Versi Trikama 10 3 Punmaji Hakmaji Bhati 12 4 Laduben Vasaji 16 5 Dariyaben Vasaji 17 6 Rameshbhai Vasaji Koli 18 7 Jagtidan Govinddan Charan 21 8 Lilaji Pithaji 23 9 Danabhai Magha 26 10 Surendrasing Umedsing Jadeja 30 2.3 The prosecution also relied on following documentary evidence: Sr. No. Description Exhibit No. 1 Map of scene of offence 9 2 Complaint 11 3 P.M. Note 14 4 Panchnama of seizure of clothes of the deceased 19 5 Inquest panchnama 20 6 Panchnama of weapons 24 7 Panchnama of scene of offence 27 8 FSL report 31 2.1 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. Shruti Pathak for the appellant-State of Gujarat and learned advocate, Mr. Nirav Pathiyar for the respondent-accused. 4. Learned APP, Ms. Pathak for the appellant, taking us through the evidence of P.W. No. 3-Punmaji Hakmaji Bhati at Exh. 12, the doctor who treated the injured and performed postmortem on the dead body of the deceased, submitted that following injuries were noted in column No. 17 of the post mortem note of the deceased: "1) Incised wound 4 cm x 1/2 cm x 5 cm on the left parietal region of the skull. Clotted blood surrounding the wound. 2) Incised wound 5 cm x 1/2 cm x 1/2 cm on the left half of the forehead, just above from the left eyebrow. Clotted blood in the surrounding wound over the nose and neck." In view of the above, she submitted that death of the deceased was homicidal. She further submitted that the doctor has noted following injuries on the injured Dariyaben: "1) Abrasion 2 cm x 1 cm in the middle of the left half of the back of the trunk. 2) A tender diffused swelling of 3 cm x 10 cm surrounding the injury No. 1." According to her, said injuries on the injured Dariyaben were possible with stick. Taking us through the evidence of widow of the deceased-Laduben Vasaji at Exh. 16, daughter of the deceased-Dariyaben at Exh. 17 and son of the deceased-Ramesh at Exh. 18, she submitted that although these witnesses have supported the case of the prosecution, the learned trial Judge has not properly appreciated their evidence and 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 has lost his life due to negligence of the accused. It is, therefore, requested that the appeal deserves to be allowed. 5. Learned advocate, Mr. She also further submitted that the learned Judge has not appreciated the seriousness of the offences wherein the victim has lost his life due to negligence of the accused. It is, therefore, requested that the appeal deserves to be allowed. 5. Learned advocate, Mr. Nirav Pathiyar for the respondent-original accused, on the other hand, taking us through oral as well as documentary 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. It is to be noted that the trial court has not taken into consideration the evidence of widow of the deceased-Laduben Vasaji at Exh. 16 and son of the deceased-Ramesh at Exh. 18 on the ground that their presence at the place of incident was doubtful. As per the evidence of son of the deceased, he reached at the place of offence first in point of time and before any other persons could reach, the deceased had died. It appears that widow of the deceased was also not present at the time of occurrence of the incident and she appeared to have filed the complaint based on the information gathered from others and therefore, their evidences were disbelieved by the trial court being close relatives and interested witnesses. Taking into consideration the 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 30-9-1993 passed by the learned Additional Sessions Judge, Palanpur, in Sessions Case No. 3 of 1993 is hereby confirmed. Bail bond, if any, stands cancelled. 10. In the result, the appeal stands dismissed. The impugned judgment and order dated 30-9-1993 passed by the learned Additional Sessions Judge, Palanpur, in Sessions Case No. 3 of 1993 is hereby confirmed. Bail bond, if any, stands cancelled. Record and proceedings shall be sent back forthwith to the trial court.