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2016 DIGILAW 620 (GUJ)

State of Gujarat v. Mansukhbhai Madhabhai Gohel

2016-03-17

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. By way of this Appeal, the Appellant - State has felt aggrieved by the judgment and order of acquittal dated 30.09.1995 passed by the learned Additional Sessions Judge, Nadiad in Sessions Case No. 261/1994 whereby the respondent was acquitted for the offences punishable under Section 302 of the Indian Penal Code. 2. The case of the prosecution is as under:- "2.1. On 27.08.1994, the deceased - Kanubhai Bachubhai Gohel was reading a religious book and at that juncture, the accused who happens to be real uncle of the deceased came there and there were some verbal exchanges between the two. The deceased is stated to have said to rebuked his uncle about his loitering, unemployment, liquor and gambling activities. The accused got angry on account of this rebuke and gave a knife blow on the chest of the deceased. The deceased gave shouts for help and hence, the deceased's father - the complainant - Bachubhai Madhabhai came out of the house. The wife of the deceased was also present. Thereafter, the accused ran away from the scene of offence. The deceased lost his consciousness and he was carried inside the house. The complainant went in search of a vehicle to take the deceased to a hospital but as no vehicle was available, he returned back. The deceased expired by then and the same was informed to the complainant by the deceased's brother. 2.2. The complainant lodged a complaint and the investigation commenced. Charges were led against the accused under in the Court of the learned Judicial Magistrate First Class, Petlad. Since it was a Sessions triable case, the learned Judicial Magistrate First Class committed the case to the Court of Sessions. The charges were read over to the accused but he denied the same and therefore, the trial commenced. 2.3. At the time of the prosecution examined the witnesses:- Particulars Exh. Medical Officer Dr. Since it was a Sessions triable case, the learned Judicial Magistrate First Class committed the case to the Court of Sessions. The charges were read over to the accused but he denied the same and therefore, the trial commenced. 2.3. At the time of the prosecution examined the witnesses:- Particulars Exh. Medical Officer Dr. Ashokkumar Jain 6 Complainant Bachubhai Madhabhai 9 Witness Meenaben Kanubhai 10 Panch Witness Shivabhai Maganbhai 11 Panch Witness Fatesinh Ramanbhai 12 Panch Witness Amarsinh Bhupatsinh 14 Jagdishbhai Bhaijibhai 15 Panch Witness Maheshbhai Gordhanbhai 19 Panch Witness Udaisinh Chhotabhai 21 Panch Witness Rakesh Ambalal 22 Panch Witness Bhupendra Chaturbhai 23 Panch witness Gangaben Bachubhai 25 Witness Somabhai Bachubhai 26 Witness Arjanbhai Chhotabhai 27 Investigating Officer PSI Arvindbhai Khoral 28 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exh. Yadi by the PSI, Polra to the Medical Officer for conducting the post mortem of the deceased 7 Note for conducting the post mortem of the deceased 8 Inquest panchnama of the deceased 16 Panchnama of the scene of offence 13 Map of the scene of offence 17 Panchnama of the clothes of the deceased 18 Panchnama of the position of the body of the accused 20 Panchnama of the seizure of shirt of the deceased 24 Discovery panchnama and subsequent seizure of the muddamal knife 30 Panchnama of the seizure of loincloth (lungi) of the accused 31 Forwarding letter for the muddamal sent to FSL 32 Receipt for the muddamal received by the FSL 33 Forwarding letter of the FSL 34 Investigation Report of the FSL 35 Seriological Report 36 Notification of the District Magistrate regarding prohibition of weapons 37 The complaint of the complainant 29 2.4. At the end of the trial, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which the respondent pleaded not guilty and stated that he has been falsely implicated in the offence. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present Appeal has been filed by the State, as aforesaid." 3. Learned Additional Public Prosecutor Ms. C.M. Shah for the appellant - State has taken this Court to the evidence led by the Medical Officer Dr. Being aggrieved by the same, the present Appeal has been filed by the State, as aforesaid." 3. Learned Additional Public Prosecutor Ms. C.M. Shah for the appellant - State has taken this Court to the evidence led by the Medical Officer Dr. Ashokkumar Jain and has submitted that the presence of the accused is proved in the commission of the crime. She has further submitted that the injuries were inflicted on a vital part of the body and therefore, this amounts to culpable homicide leading to murder. Learned Additional Public Prosecutor Ms. C.M. Shah has also taken this Court to the injuries as noted especially at Column No. 17 and the cause of death as certified by the Medical Hospital, S.S. Hospital, Petlad. It is further submitted that learned Judge has erred in discarding the evidence of the complainant who is the father of the deceased and brother of the accused, though he has later turned hostile. It is further submitted that it surfaces on record that the deceased was with his wife who had seen the accused inflicting a knife blow upon the deceased. It is also submitted that the prosecution has successfully proved its case beyond reasonable doubt. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge qua the acquittal of the respondents should be upturned by this Court. 4. On the other hand, learned Advocate appearing for the respondent accused Mr. Ekant G. Ahuja has taken this Court to the evidence of Meenaben, the wife of the deceased and has stated that there were no eye witnesses to the alleged murder. It is further stated by Meenaben that she was inside the house and when she came out, she saw her husband lying in an unconscious stated. It is further submitted that the evidence adduced does not support the case of the prosecution and therefore, this Court should not interfere in the well reasoned judgment and order of the learned Additional Sessions Judge. To strengthen his submissions, learned Advocate for the respondent has relied on the following decisions of the Apex Court :- "In the case of M.S. Narayana Menon @ Mani Vs. To strengthen his submissions, learned Advocate for the respondent has relied on the following decisions of the Apex Court :- "In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr., reported in (2006) 6 S.C.C. 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." Further, in the case of Chandrappa Vs. State of Karnataka reported in (2007) 4 S.C.C. 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. [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. [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." 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. Even in the case of State of Goa V. Sanjay Thakran & Anr. reported in (2007) 3 S.C.C. 75, the Apex 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." Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors. reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs. Vs. State of M.P. reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. In the case of Luna Ram Vs. 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 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 running condition. 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." Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SCC 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. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SCC 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 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 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 vs. Sohan Lal and Others, (2004) 5 SCC 573 ]." 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 Vs. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. 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." Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors. Vs. State of Karnataka, reported in JT 2013 (7) SC 66. 5. We have heard learned Advocates for the parties and perused the records of the case. While going through the well reasoned judgment and order of the learned Sessions Judge, it is clearly held that the prosecution has miserably failed to prove the case qua the accused. It also surfaces on record that the father of the deceased himself turned hostile. Apart from that, the learned Additional Public Prosecutor Ms. C.M. Shah for the appellant - State is not in a position to show any evidence to take a contrary view in the matter 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. In that view of the matter, we are in complete agreement with the reasons recorded by the learned trial court and in our view, the impugned Judgment is just, legal and proper and requires no interference by this Court. 6. The Appeal is devoid of merits and stands dismissed. The judgment and order of acquittal dated 30.09.1995 passed by the learned Additional Sessions Judge, Nadiad in Sessions Case No. 261/1994 stands confirmed. Record and proceedings be sent to the concerned Trial court forthwith.