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Gujarat High Court · body

2016 DIGILAW 737 (GUJ)

State of Gujarat v. Bhagwanbhai Vithalbhai

2016-04-05

G.B.SHAH, K.S.JHAVERI

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JUDGMENT K.S. Jhaveri, J. 1. This appeal is directed against the judgment and order of acquittal dated 30.11.1994 passed by learned Additional Sessions Judge, Bhavnagar, in Sessions Case No. 74 of 1992. By the impugned judgment, the accused was acquitted from the charge of offence punishable under Sections 302 of the Indian Penal Code (for short, "IPC") and Section 135 of the Bombay Police Act. 2. The facts in brief giving rise to the filing of present appeal is as under:-- 2.1 Deceased, Chaturbhai Karshanbhai, was the brother-in-law of the accused. Since the accused was not keeping good relations with his wife, his wife went to the house of the deceased. Inspite of request from the side of the accused, the deceased was not sending his sister to the house of the accused. Therefore, on 1.12.1991, in the morning at about 6 a.m. the accused went to the house of the deceased and attacked him with knife and caused severe injuries. It is also alleged that because of these injuries, the deceased died. With these allegations, a complaint was lodged against the accused before police. 2.2 After filing of the complaint, 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. Sureshkumar Durlabhjibhai 9 2. Kalu Nandlal Vasani 11 3. Abdul Karim Amibhai 14 4. Shankarbhai Rambhai 17 5. Khushaldas Parshottamdas 19 6. Rahemanbhai Alibhai 21 7. Nathabhai Devrajbhai 23 8. Kantaben Bachubhai 27 9. Hansaben Bhagvanbhai 28 10. Manubhai Laldasbhai 29 11. Haresh Chaturbhai 30 12. Prabhayshankar Mohanlal Joshi 32 13. Dilipsinh Amarsinh Gohil 36 14. Dr. Arsi Ramabhai Kathad 49 2.4 The prosecution has also produced following documents in support of its case:-- Sr. No. Description Exh. 1. Panchnama of physical condition of the accused 10 2. Inquest panchnama 12 3. Panchnama of the place of offence 13 4. Haresh Chaturbhai 30 12. Prabhayshankar Mohanlal Joshi 32 13. Dilipsinh Amarsinh Gohil 36 14. Dr. Arsi Ramabhai Kathad 49 2.4 The prosecution has also produced following documents in support of its case:-- Sr. No. Description Exh. 1. Panchnama of physical condition of the accused 10 2. Inquest panchnama 12 3. Panchnama of the place of offence 13 4. PM Note 50 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 30.11.1994 passed by learned Additional Sessions Judge, Bhavnagar, in Sessions Case No. 74 of 1992 acquitting the respondent, the appellant-State has preferred present appeal before this Court. 4. Ms. Shruti Pathak, 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 14 witnesses and also produced several 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 has taken us through the postmortem report of the deceased and submitted that there were as many as nine injuries on the body of the deceased, out of which six injuries were stab wounds. She submitted that, therefore, this is a case of murder and the trial Court has committed an error in acquitting the accused. She has taken us through the evidence of Kantaben, widow of the deceased, PW-8, Haresh Chaturbhai, son of the deceased, PW-11 and submitted that these witnesses have supported the case of the prosecution and narrated the manner in which the incident had taken place. She has taken us through the evidence of Kantaben, widow of the deceased, PW-8, Haresh Chaturbhai, son of the deceased, PW-11 and submitted that these witnesses have supported the case of the prosecution and narrated the manner in which the incident had taken place. She submitted that in view of this, it is clear that the accused is guilty of offence punishable under Section 302 of IPC and learned trial Judge has committed an error in acquitting him. 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. Mr. Yogendra Thakore, learned advocate appearing for the respondent-accused submitted that there is no infirmity in the impugned order. He submitted that the lower Court has rightly appreciated the evidence on record and acquitted the respondent of the charges levelled against him. He submitted that the prosecution could not prove its case beyond reasonable doubt. He has contended that so far as acquittal appeals are concerned, the law is well settled that where two views are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below. By taking us through the impugned judgment, he submitted that this Court may not interfere with the impugned judgment and the appeal may be dismissed. 6. We have heard Ms. Shruti Pathak, learned APP for the appellant-State and Mr. Thakore, 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 punishable Sections 302 of IPC, the prosecution has to prove its case beyond reasonable doubt. We find that there are contradictions in the evidence of Haresh, son of the deceased and it seems that he is a got up witness. In her chief examination, Kantaben, widow of the deceased has stated that in the morning she woke up at 6 a.m. and while brushing her teeth she went out of the house by opening the door and at that time the accused entered her house. However, in her cross-examination, she has stated that she was brushing her teeth in the bathroom and at that time she heard the shouts of her husband and when she rushed there, she had seen the accused. However, in her cross-examination, she has stated that she was brushing her teeth in the bathroom and at that time she heard the shouts of her husband and when she rushed there, she had seen the accused. Therefore, there is contradiction in her deposition also. In her statement before the police, Kantaben has not stated as to how many knife blows were given to the deceased by the accused and on which part of the body. In her statement before the police, Kantaben has not mentioned even about the presence of his son at the time of the incident. However, in her statement before the Court, she has deposed that her son had also shouted upon seeing the incident and clothes of her son had also got blood stains in the incident. We also find that there were not blood stains on the clothes of the accused. We also find that though there were blood stains on the clothes of Kantaben, Manubhai and son of the deceased, no proof in support of this fact has come on record. Therefore, it is clear that the prosecution has miserably failed in proving the case against the accused. It is also clear that the learned Judge has not committed any error while acquitting the accused of the charges levelled against him. It cannot be said that the learned Judge has committed any error while acquitting the accused as the prosecution could not prove its case beyond reasonable doubt. 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 v. 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. 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 v. 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. 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 v. Ram Veer Singh & Ors, 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. 7.5 In the case of Luna Ram v. 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. v. 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. v. 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. 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 ]" 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. [Vide State of Rajasthan v. 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 v. 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. 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 30.11.1994 passed by learned Additional Sessions Judge, Bhavnagar, in Sessions Case No. 74 of 1992 is hereby confirmed. Bail bond, if any, stands cancelled. Registry to return the R&P to the concerned trial Court forthwith.