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Gujarat High Court · body

2016 DIGILAW 616 (GUJ)

State of Gujarat v. Mansukh

2016-03-17

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. The present appeal, under Section 378 of the Code of Criminal Procedure, 1973 (for brevity, the Code) is directed against the judgment and order dated 02.12.1995, passed by the learned Additional Sessions Judge, Bhavnagar, Camp: Mahuva, in Sessions Case No. 243 of 1994, whereby the respondent herein - original accused has been acquitted of the charges levelled against him for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (for brevity, the IPC). 2. Brief facts of the prosecution case are that on 17.08.1994 at about 12:00 p.m. when the minor daughter of complainant - Vamanbhai Nanjibhai, aged about 12 years, was returning to him after school, at that time, near Gandhibaugh in Mahuva, the respondent - accused, allegedly introducing him as a friend of her father, brought the victim in his bicycle illegally from the lawful guardianship of the complainant without his consent and thereby, abducted her and thereafter, took her in a field situated in the sim of village: Maliya and committed rape on her and for the said alleged offence, 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 and as the case was triable by the Court of Sessions, it was committed to the Sessions Court, Bhavnagar, Camp: Mahuva. 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. No. Name of Witness Exhibit 1. PW-1 Dr. Sunandaben Patel 8 2. PW-2 Vamanbhai Nanjibhai, complainant 15 3. PW-3 Mahendrabhai Govindram 16 4. PW-4 Kirtilal Girdharlal Vyas, Executive Magistrate 19 5. PW-5 Kirtikumar Jitendraray 34 6. PW-6 Ashokvan Himatbhai 46 7. PW-7 Ukabhai Naranbhai 48 8. PW-8 Shamjibhai Jethabhai 49 9. PW-9 Vinubhai Govindbhai 50 10. PW-10 Ramnikbhai Naranbhai 51 11. PW-11 Krunalbhai Vamanbhai, brother of the victim 52 12. PW-12 Ranjanben Vamanray, mother of the victim 53 13. PW-13 Pravinsinh Gohil, Head Constable 54 14. PW-14 Jashubha Veljibhai 56 15. PW-15 PSI Jadeja 58 16. PW-16 Victim 63 17. PW-7 Ukabhai Naranbhai 48 8. PW-8 Shamjibhai Jethabhai 49 9. PW-9 Vinubhai Govindbhai 50 10. PW-10 Ramnikbhai Naranbhai 51 11. PW-11 Krunalbhai Vamanbhai, brother of the victim 52 12. PW-12 Ranjanben Vamanray, mother of the victim 53 13. PW-13 Pravinsinh Gohil, Head Constable 54 14. PW-14 Jashubha Veljibhai 56 15. PW-15 PSI Jadeja 58 16. PW-16 Victim 63 17. PW-17 PSI Rajput, IO 64 DOCUMENTARY EVIDENCE DOCUMENTARY EVIDENCE S. No. Document Exhibit 1. Panchnama as to physical condition of the victim 23 2. Dog squad calling form 24 3. Samples produced by Mangalaben, Police Constable 25 4. Yadi as to forwarding samples to FSL, Junagadh 26 5. Panchnama as to physical condition of the accused 27 6. Panchnama of clothes produced by the accused 28 7. Samples produced by Jasvantbhai, Police Constable 29 8. School Leaving Certificate of victim 30 9. School Presence Sheet 31 10. Yadi to FSL, Junagadh 32 11. Receipt of FSL 33 12. Letter of FSL, Junagadh 34 13. FSL Report 35 14. Serological Report 36 15. Letter as to medical examination of the accused 13 16. Yadi as to collection of samples of the accused 14 17. Panchnama of place of offence 37 18. Dog Squad Panchnama 38 19. Panchnama as to seizure of shirt of the accused 39 20. Photographs of the accused with other woman 40 to 43 21. Dog Squad Vardhi 65 22. Report as to grave offence 66 2.4 At the end of the trial and after recording the Further Statement of the accused under Section 313 of Code and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the respondent of all the charges levelled against him by impugned judgment and order. 2.5 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. Shruti Pathak, the learned Additional Public Prosecutor, for the appellant-State and Mr. P.H. Buch, the learned advocate for the respondent-accused. 3.1 Ms. Pathak, the learned Additional Public Prosecutor appearing for the appellant- State, has submitted that the trial Court committed an error in acquitting the respondent- accused. 3. We have heard Ms. Shruti Pathak, the learned Additional Public Prosecutor, for the appellant-State and Mr. P.H. Buch, the learned advocate for the respondent-accused. 3.1 Ms. Pathak, the learned Additional Public Prosecutor appearing for the appellant- State, has submitted that the trial Court committed an error in acquitting the respondent- accused. It was contended by her 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 against the present respondent. The learned Additional Public Prosecutor also took this Court through the oral as well as the entire documentary evidence. She submitted that considering the evidence of the prosecution witnesses, more particularly, the deposition of PW-2 Vamanbhai Nanjibhai, the complainant and father of the victim, Exh. 15, the deposition of PW-11 - Krunalbhai Vamanbhai, the brother of the victim, exh. 52, the deposition of PW-9 - Vinubhai Govindbhai, from whom the accused had hired the so-called bicycle used in the crime, Exh. 50, the deposition of PW-10 - Ramnikbhai Naranbhai, Exh. 51 through whom, the accused had got repaired the bicycle used in the crime, it is proved bereft of doubt that the accused was very much present in the city on the date of incident and from the evidence of doctor viz. PW-1 - Dr. Sunandaben Patel, Exh. 8, it is clear that the victim was raped, however, she has fairly conceded that the FSL Serological Report at Exh. 36, does not support the case of the prosecution. However, she submitted that the prosecution witnesses have supported the case of the prosecution and the prosecution has successfully proved the case of the prosecution and for some minor discrepancy, the whole case of the prosecution cannot be discarded for such a heinous offence and eventually, requested this Court to interfere in the appeal and allow the same by upturning the impugned judgment and order. 4. On the other hand, the learned advocate appearing for the respondent 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 respondent beyond reasonable doubt. 4. On the other hand, the learned advocate appearing for the respondent 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 respondent beyond reasonable doubt. It is also submitted that the prosecution case is based on the circumstantial evidence and there are material contradictions and discrepancies in the prosecution case and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper. It is submitted that the Test Identification Parade of the accused is doubtful and is conducted after two days of the arrest of the accused. Moreover, the conduct of the brother of the victim, who is a crucial witness, is doubtful, besides while Test Identification Parade, he has not identified the accused. Moreover, the Serological Report, Exh. 36, does not corroborate the case of the prosecution and under the circumstances, the prosecution story does not inspire any confidence. Moreover, he submitted that when the learned trial Judge, after duly appreciating the oral as well as documentary evidence produced before him, has acquitted the accused and it is requested that this Court should not interfere in appeal. 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 vs. State of Kerala & Another, (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. 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 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 vs. State of Karnataka, (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, 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. 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 vs. Sanjay Thakran & Another, (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. 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 vs. Ram Veer Singh & Others, 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs vs. State of Madhya Pradesh, 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 vs. Bhupat Singh and Others, (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 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 Hon'ble Apex Court in the case of Mookiah and Another vs. State Rep. by the Inspector of Police, Tamil Nadu, 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. by the Inspector of Police, Tamil Nadu, 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 Section302 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. State of Rajasthan vs. 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 vs. Hemareddy, AIR 1981 SC 1417 wherein it is held as under: "This court has observed in Girija Nandini Devi vs. 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. We have also gone through the impugned judgment and order. On going through the medical evidence, the fact of commission of rape upon the victim cannot be denied, however, referring the evidence of the victim herself, Exh. 63 and the evidence of the brother of the victim - Krunal Vamanray, Exh. 52 and the aspect of Test Identification Parade, the same creates doubt. The Test Identification Parade, undoubtedly was conducted two days after the accused was arrested. Moreover, while the accused was in police custody, as per the evidence of victim herself, the police after calling her and showing different persons to her, asked her to identify the accused. Thus, it appears that no due care while Test Identification Parade was taken care. Moreover, the for muddamal ticket, no other witness is examined except, PSI, Jadeja, Exh. 58. Moreover, as to the seizure of the tickets from the accused, no panchnama is carried out. Further, the FSL Serological Report, Exh. 36, does not support the case of the prosecution. Thus, considering the overall aspects of the matter, we find that there are serious lapses in the prosecution case and the prosecution has failed to prove the case against the accused beyond reasonable. Moreover, the trial Court while considering the evidence on record, has very elaborately discussed the evidence adduced before it. Thus, considering the overall aspects of the matter, we find that there are serious lapses in the prosecution case and the prosecution has failed to prove the case against the accused beyond reasonable. Moreover, the trial Court while considering the evidence on record, has very elaborately discussed the evidence adduced before it. Further, 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. 7. 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. 8. In view of the aforesaid discussion, present appeal fails and is dismissed accordingly. The impugned judgment and order dated 02.12.1995, passed by the learned Additional Sessions Judge, Bhavnagar, Camp: Mahuva, in Sessions Case No. 243 of 1994 is hereby confirmed. Bail bond shall stand cancelled. Registry to return the R&P to the trial Court forthwith.