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2016 DIGILAW 651 (GUJ)

State of Gujarat v. Ayubkhan

2016-03-22

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. This appeal is directed against the judgment and order of acquittal dated 07.01.1999 passed by learned Additional Sessions Judge, Morbi in Sessions Case No. 18 of 1990. By the impugned judgment, the accused was acquitted of the charge of offence punishable under Section 307 of the Indian Penal Code (for short, "IPC") and Sections 37 (1) and135 of the Bombay Police Act. 2. The facts in brief giving rise to the filing of present appeal are as under:- "2.1 On 18.5.1990, between 7.00 to 7.30 p.m., brother of the accused went to the field of the complainant for taking crop of groundnut. Since the complainant denied, brother of the accused went away. In this regard, on 18.5.1990 at about 8 p.m., when brother of the complainant was scolding the brother of the accused at the bus stop, at that time, the accused got angry and attacked the complainant. It is alleged that the accused attacked him with knife and caused injuries, which were serious in nature. With these allegations, complaint was given against the accused before the police. 2.2 Thereafter, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 2.3 In order to bring home the charges against the accused persons, prosecution has examined following witnesses. Sr. No. Name Exh. 1 Complainant-Raheman Saji. 4 2 Hasan Aamad. 5 3 Mamadhusen Raheman Serasiya. 6 4 Ibrahim Noormamad. 7 5 Aasiben wf/o. Mamad Serasiya. 8 6 Ramnik Devji. 12 7 Mamad Vali Serasiya. 13 8 Gaji Ahmad Serasiya. 15 9 Ayub Haji Pinjara. 17 10 Dr. Abumiya Jusabmiya Pinjara. 19 11 Dr. Nikhilkumar Pushkarray Buch. 21 12 Harun Husen. 35 13 Jaswantsinh Nathubha, PSO. 36 14 Dilubha Pathubha, PSO. 38 15 Noormamad Saji. 40 16 Chandrasinh Lachchhusinh Gurkha, PSI, IO. 42 2.4 The prosecution has also produced following documents in support of its case:- Sr. No. Description Exh. 1 Panchnama of the place of offence. 14 2 Panchnama of the physical condition of the accused and seizure of clothes of the accused. 16 3 Panchnama of seizure of muddamal knife. 40 16 Chandrasinh Lachchhusinh Gurkha, PSI, IO. 42 2.4 The prosecution has also produced following documents in support of its case:- Sr. No. Description Exh. 1 Panchnama of the place of offence. 14 2 Panchnama of the physical condition of the accused and seizure of clothes of the accused. 16 3 Panchnama of seizure of muddamal knife. 18 4 Medical certificate of the injury received by the complaint. 20 5 Case papers, x-ray, yadi, OPD case papers, certificate regarding treatment of the complainant. 22 to 34 6 Complaint given by brother of the complainant against the brother of the accused. 37 7 Station diary entry of the present offence registered against the accused. 39 8 Original complaint of the complainant given before PSI, Gurkha. 43 9 Panchnama of the search of house of the accused. 44 10 Copy of the letter written to the Revenue Circle Inspector for preparing map of the place of offence. 45 11 Copy of the Notification of the Additional District Magistrate, Rajkot District. 46 12 Receipt of the muddamal sent to FSL, Junagadh, Forwarding letter, report regarding muddamal etc. 47 to 51 2.5 Thereafter, after filing of closing purshis by the prosecution, further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused denied the case of the prosecution and submitted that a false case is filed against him." 3. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge passed the impugned Judgment. Being aggrieved by and dissatisfied with the said judgment and order dated 07.01.1999 passed by learned Additional Sessions Judge, Morbi in Sessions Case No. 18 of 1990 acquitting the respondent, the appellant-State has preferred present appeal before this Court. 4. Ms. C.M. Shah, learned APP has taken us through the evidence and contended that the trial Court has committed an error in acquitting the accused inspite of voluminous evidence against him and contended that the trial Court ought not to have acquitted the accused. She submitted that though the prosecution has examined 16 witnesses and also produced 12 documents in support of its case, the learned trial Judge has not properly appreciated them and acquitted the accused of the charges levelled against him. She submitted that the prosecution has successfully proved its case against the accused. She submitted that though the prosecution has examined 16 witnesses and also produced 12 documents in support of its case, the learned trial Judge has not properly appreciated them and acquitted the accused of the charges levelled against him. She submitted that the prosecution has successfully proved its case against the accused. She submitted that even the medical evidence supports the case of the prosecution. She also submitted that in view of the medical evidence and recovery of knife at the instance of the accused clearly established the guilt of the accused. She submitted that in his evidence before the Court, the complainant has supported the case of the prosecution. She submitted that since the complainant is an eye witness, there is no reason to dis-believe his deposition. She also submitted that the learned trial Judge has failed to appreciate the evidence on record in its proper perspective, therefore, the impugned judgment is required to be quashed and set aside by allowing present appeal. 5. Ms. E. Shailaja, learned advocate appearing for the respondent-accused submitted that there is no infirmity in the impugned order. She submitted that the lower Court has rightly appreciated the evidence on record and acquitted the respondent of the charges levelled against him. She submitted that the prosecution could not prove its case beyond reasonable doubt. She further submitted that so far as acquittal appeals are concerned, the law is well settled and where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the trial Court. She, therefore, submitted that this Court may not interfere with the impugned judgment and the appeal may be dismissed. 6. We have heard Ms. C.M. Shah, learned APP for the appellant-State and Ms. E. Shailaja, learned advocate for the respondent-accused. We have gone through the evidence on record. Looking to the fact that the charge against the respondent-accused is for the offence under Sections 307 of IPC, the prosecution has to prove its case beyond reasonable doubt. Nurmohammed Saji, elder brother of the complainant, has stated in his evidence that he did not go to his field on 18.5.1990. He also admitted that he did not go to the field till the time of offence. Nurmohammed Saji, elder brother of the complainant, has stated in his evidence that he did not go to his field on 18.5.1990. He also admitted that he did not go to the field till the time of offence. He also stated that even the complainant did not go to the field on that day and no quarrel had taken place between the brother of the accused and the complainant. Therefore, the prosecution has failed to prove the motive for the incident. Not only that from the evidence of the eye witness, it appears that the accused himself had gone to take the groundnut from his field, while as per the complaint, brother of the accused went to the field. Dr. Abumiya Masakputra, PW-10, Exh.19, has deposed that at the time when the injured was brought for treatment, he had neither given name of the assailant nor deposed as to with which weapon he was attacked. It is also clear from the deposition of the doctor that the injuries sustained by the injured were not sufficient to cause death of the injured. It is also clear from his evidence that the injured was brought to the hospital at 8.35 p.m., and after the yadi being sent to PSI, the complaint was registered by the police. Therefore, it is not possible that the complaint would have been lodged at 8 p.m. It is also not proved that the blood which was found on the knife was of the injured-complainant. Therefore, it is clear that the prosecution has miserably failed in proving the case against the accused beyond reasonable doubt. In our view, the learned Judge has not committed any error while acquitting the accused of the charges levelled against him. 7. 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 Vs. State of Kerala & Anr., (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: "54. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr., (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of 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." 7.1 Further, in the case of Chandrappa Vs. State of Karnataka, (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. 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." 7.2 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. 7.3 Even in the case of State of Goa V. Sanjay Thakran & Another, (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. 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." 7.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors. 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs. Ram Veer Singh & Ors. 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. 7.5 In the case of Luna Ram Vs. Bhupat Singh and Ors, (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 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." 7.6 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, 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. 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. 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 vs. Sohan Lal and Others, (2004) 5 SCC 573 ]" 7.7 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 Vs. Hemareddy, 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." 7.8 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence is not necessary. 8. We have gone through the oral as well as documentary evidence on record and we are in agreement with the view taken by the lower Court. 8. We have gone through the oral as well as documentary evidence on record and we are in agreement with the view taken by the lower Court. Moreover, learned APP is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude 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 material evidence while acquitting the accused. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting the respondent-accused of the charge levelled against him. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and, therefore, find no reasons to entertain this appeal. 9. For the foregoing reasons, this Criminal Appeal is dismissed. The impugned judgment and order dated 07.01.1999 passed by learned Additional Sessions Judge, Morbi in Sessions Case No. 18 of 1990 is hereby confirmed. Bail bond, if any, stands cancelled. Registry to return the R&P to the concerned trial Court forthwith.