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2016 DIGILAW 722 (GUJ)

State of Gujarat v. Nansinh Khodabava

2016-04-01

G.B.SHAH, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. Qua respondent Nos. 1 and 4, the Appeal is abated. 2. Learned Advocate Mr. M.I. Merchant has not appeared in the matter and learned Advocate Mr. M.M. Tirmizi has represented the respondent Nos. 2-3. 3. By way of this Appeal, the Appellant - State has felt aggrieved by the judgment and order of acquittal dated 09.12.1993 of the learned Additional Sessions Judge, Nadiad in Sessions Case No. 61/1993 whereby the respondents herein were acquitted of the offences punishable under Sections 498(A), 302 read with Section 34 of the Indian Penal Code. 4. The case of the prosecution is as under:- "4.1. On 29.10.1992 at about 17.30 pm the residents of Village Sarol, Taluka Borsad, District Kheda are alleged to have gathered with a common intention of killing the deceased Manjula and therefore, she was dragged into the house, her body was sprinkled with kerosene and thus, serious injuries were caused. Manjula expired because of the injuries received. It is further alleged that the deceased Manjula was frequently tortured mentally and physically on routine household chores. Further, the accused are alleged to have destroyed the burnt clothes of the deceased. Hence, the accused were charged for the offences punishable under Sections 498(A), 201, 302 and 34 of the Indian Penal Code. 4.2. A complaint in this respect was lodged at the Bhardan Police Station and the investigation commenced. Charges were led against the accused in the Court of the learned Judicial Magistrate First Class, Borsad but since it was a Sessions triable case it was transferred to the Court of Sessions. The accused pleaded not guilty to the charges and claimed to be tried. 4.3. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exh. Dr. Natvarlal Parmar 12 Complainant Bhagvanbhai Raisinghbhai 15 Witness Lakshmanbhai Chhotabhai 17 Witness Arvindbhai Vasudev Pandya 18 Witness Bhagwansinh Somabhai Jadav 20 Witness Kokilaben Punjabhai 21 Witness Raisinghbhai Mangalbhai 22 Witness Kodhabhai Lallubhai (Revenue Circle Inspector) 23 PSI Lakhubhai Jammar (Investigating Officer) 26 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exh. Dr. Natvarlal Parmar 12 Complainant Bhagvanbhai Raisinghbhai 15 Witness Lakshmanbhai Chhotabhai 17 Witness Arvindbhai Vasudev Pandya 18 Witness Bhagwansinh Somabhai Jadav 20 Witness Kokilaben Punjabhai 21 Witness Raisinghbhai Mangalbhai 22 Witness Kodhabhai Lallubhai (Revenue Circle Inspector) 23 PSI Lakhubhai Jammar (Investigating Officer) 26 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exh. Complaint of the complainant 16 Inquest panchnama of the body of the deceased – Manguben alias Manjulaben 19 Panchnama of the scene of offence 10 Panchnama of the seizure of clothes and other articles from the deceased 11 Post Mortem of the deceased 14 Forwarding letter for the muddamal sent to the FSL 27 Map of the scene of offence 25 Yadi for preparation of the map of the scene of offence 24 NC Register No. 80/92 pertaining to the complaint of Bhadaran Police Station 28 4.4. 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 accused pleaded not guilty and stated that they have 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, as aforesaid." 5. Learned Additional Public Prosecutor Ms. C.M. Shah has submitted that the learned Judge has disbelieved the evidence of witness - Laxman who has stated that he heard Manjula screaming that she should not be burnt when he entered the house and all the accused were standing and had surrounded the deceased. It is further submitted that the evidence of Laxman get corroboration with the evidence of the complainant and the father of the deceased had also deposed about the ill treatment meted out to his daughter. It is also submitted that all the accused with a common intention had caused the death of the deceased. 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 be upturned qua the acquittal of the accused. 6. Learned Advocate for the respondent Nos. 2-3 Mr. 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 be upturned qua the acquittal of the accused. 6. Learned Advocate for the respondent Nos. 2-3 Mr. M.M. Tirmizi has relied on the various judgments of the Hon'ble Supreme Court which are detailed hereinbelow and has further submitted that the learned Judge has given cogent and convincing reasons to arrived at the acquittal of the accused. The various witnesses have not supported the case of the prosecution. Learned Advocate has also taken this Court to Paragraph 11 of the above judgment and order wherein the complainant has stated in his cross examination that initially the deceased had come to her parental home on account of some domestic squabble but later she had not come on account of any dispute. It is further submitted that the deceased had in the initial stages of her marriage complained of physical and mental torture but later on there were no complaints in this respect. Hence, it is submitted that the judgment and order of the learned Sessions Judge requires no interference by this Court. In the case of M.S. Narayana Menon @ Mani v. 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 v. 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. 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. [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. 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. 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 v. Ram Veer Singh & Ors reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs v. State of MP 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 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 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. v. 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. 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 v. 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 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." 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. 7. 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 medical evidence and the depositions of various witnesses do not support the case of the prosecution and especially Paragraph 11 of the said judgment and order is conclusive in terms of the cross-examination of the various witnesses. Hence, this Court is in full agreement with the reasons given and findings recorded by the Trial Court while acquitting the accused and adopting the said reasons as well as the reasons aforesaid, in our view, the impugned Judgment is just, legal and proper and requires no interference by this Court. 8. The Appeal is devoid of merits and is dismissed accordingly. The judgment and order of acquittal dated 09.12.1993 passed by the learned Additional Sessions Judge, Nadiad in Sessions Case No. 61/1993 is hereby confirmed. Bail bond, if any, shall stand cancelled. 8. The Appeal is devoid of merits and is dismissed accordingly. The judgment and order of acquittal dated 09.12.1993 passed by the learned Additional Sessions Judge, Nadiad in Sessions Case No. 61/1993 is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.