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2016 DIGILAW 743 (GUJ)

State of Gujarat v. Bhikha Joitaram Patel

2016-04-05

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. The present appeal is filed by the appellant-State being aggrieved and dissatisfied with the judgment and order dated 6-11-1993 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur, in Sessions Case No. 9 of 1991 whereby the original accused were acquitted of the charges levelled against them. 2. Short facts leading to filing of the present appeal are that in the election of Ghatlodia Nagar Panchayat, the complainant's brother was contesting as a candidate for Janata Dal and accused No. 1 was contesting as a candidate for BJP. On 30-6-1990 at about 9.30 or 9.45 a.m. near Nutan High School, Ghatlodia, all the accused armed with deadly weapons like sticks, iron pipes and gupti formed an unlawful assembly with an intention to attack the complainant and others and in furtherance of the same, they attacked the complainant and witnesses. Accused No. 2 inflicted fatal blow with iron rod on the head of the deceased-Jagsibhai and he fell on the floor. When the witnesses intervened, they were also attacked causing them injuries. Jagsibhai succumbed to the injuries sustained by him. A complaint was therefore filed by the complainant against the accused. In pursuance of said complaint, investigation started and as there appeared prima facie case against the accused, a charge sheet was filed against them. Thereafter charge was framed against the accused which was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. P.W. No. Name of witness Exhibit No. 1 Ramsingbhai Ukabhai Bharvad 26 2 Baldevbhai Kanjibhai Rabari 33 3 Divabhai Ukabhai 34 4 Jayantibhai Naranbhai Bharvad 35 5 Paresh @ Shekhar Rameshchandra Panchal 36 6 Kanubhai Govabhai Patel 37 7 Natvarlal Bhikhabhai Patel 38 8 Nikeshkumar Rasiklal Shah 40 9 Piyushkumar Vastirampurohit 41 10 Dr. Jaychand Premchand Parmar 47 11 Sujitkumar Baliram Jha 50 12 Dr. Trupti Prabhudas Dalal 51 13 Jagdishchand Jayantilal Joshi 52 14 Laxmansinh Hirabhai Gohil 53 2.2 The prosecution also relied on following documentary evidence: Sr. Jaychand Premchand Parmar 47 11 Sujitkumar Baliram Jha 50 12 Dr. Trupti Prabhudas Dalal 51 13 Jagdishchand Jayantilal Joshi 52 14 Laxmansinh Hirabhai Gohil 53 2.2 The prosecution also relied on following documentary evidence: Sr. No. Description Exhibit No. 1 Muddamal Pavati 3 2 Panchnamas 27, 29, 43, 44 3 Inquest panchnama 28 4 Notification 29 5 Complaint 30 6 Slip 42 7 P.M. Note - 8 Ravana note 45 9 FSL Report 46 10 Medical certificate of Paresh Panchand 48 11 Medical certificate of Baldevbhai 49 2.3 After filing of closing pursis by the prosecution, further statements of accused under Sec.313 of Cr.P.C. were recorded. On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, respondents-accused were acquitted of the charges levelled against them, giving rise to this appeal." 3. Heard learned Additional Public Prosecutor, Ms. Shruti Pathak for the appellant-State of Gujarat and learned advocate, Mr. V.H. Patel for respondents-accused. 4. Learned APP, Ms. Pathak for the appellant, took us through the evidence of the complainant-Ramsingbhai Ukabhai Bharwad, medical evidence and other oral as well as documentary evidence and submitted that prosecution has successfully proved the case against the accused beyond reasonable doubt. She submitted that though almost all the witnesses have supported the case of the prosecution, the learned trial Judge has committed a grave error in disbelieving their evidence and in acquitting the respondents-accused and therefore, it is requested that the appeal deserves to be allowed by quashing and setting aside the impugned judgment and order of acquittal. 5. Learned advocate, Mr. V.H. Patel for the respondents-original accused, on the other hand, submitted that the trial court has rightly appreciated the evidence appearing on record and the reasons assigned for recording a finding of acquittal are reasonable and justifiable. He further submitted that the prosecution has not come up with true story and changed the scene of offence. True case was that as the complainant and the witnesses have caused damage on the property of the accused, the accused had thrown stone on the house of the complainant, however, the stone hit the deceased and he succumbed to the injuries. Hence, according to him, persons of the side of the deceased were the aggressors. True case was that as the complainant and the witnesses have caused damage on the property of the accused, the accused had thrown stone on the house of the complainant, however, the stone hit the deceased and he succumbed to the injuries. Hence, according to him, persons of the side of the deceased were the aggressors. He further submitted that there is no explanation coming forth from the evidence of the complainant about the injuries caused to accused Ratilal by the complainant and the witnesses and therefore, the evidences of the complainant and his witnesses were rightly disbelieved by the trial court as being doubtful and thereby the accused were acquitted. He further submitted that this being an appeal against the order of acquittal, the judgment and order delivered by the trial Court deserves to be upheld as proper, as plausible reasons for acquittal have been recorded. He ultimately urged to dismiss this appeal. 6. It is required to be noted that the principles governing and regulating the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very clearly explained by the Hon'ble Apex Court in number of decisions. 6.1 In the case of Dilawar Singh and Others v. State of Haryana reported in (2015)1 SCC 737 , it has been held by the Hon'ble Supreme Court in Paragraph 36 and 37 as under: "36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record. 37. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415 , the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under: "42.....(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. 37. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415 , the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under: "42.....(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." Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan v. Shera Ram (2012) 1 SCC 602 ." 6.2 In the case of State of Goa V. Sanjay Thakran & Anr. reported in (2007)3 SCC 75, it has been held by the Hon'ble Apex Court In para 16 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." 6.3 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 anke 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." 6.4 Even in the case of Mookkiah and Anr. v. State, rep. by the Inspector of Police, Tamil Nadu, reported in 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. 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 reappreciate 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 ]" 6.5 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, 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." 6.6 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. 6.7 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then elaborate discussion of evidence or assigning fresh reasons are not necessary. 7. We have considered the above referred rival submissions made by the learned advocates for the respective parties in light of the principles laid down in the aforesaid decisions. 8. On going through the judgment of the trial court, it appears that in the present case, the accused Ratilal also suffered injuries, however, there is no explanation coming forth from the side of the prosecution about those injuries. It appears that from the panchnama of scene of offence that the incident occurred in the house of the accused-Ratilal but said panchnama does not show any blood stain marks at the said place. In view of the above, it was held by the trial court that correct facts of the case have not been disclosed from the evidence of prosecution witnesses. It was, therefore, held by the trial court on going through the oral as well as documentary evidence that a doubt has been created in the mind of the court about actual happening of the incident in question and therefore, the accused were acquitted by giving them benefit of doubt. This Court is, therefore, of the opinion that the trial court was completely justified in acquitting the accused of the charges levelled against them. Therefore, the findings recorded by the trial court are absolutely just and proper and no illegality or infirmity has been committed by it in the said findings and therefore, we do not find it necessary to interfere with the same. 9. Learned Addl. Public Prosecutor is not in a position to show any evidence to take a view contrary to the view taken by the trial court 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. 10. Thus, the appeal is dismissed. The impugned judgment and order dated 6-11-1993 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur, in Sessions Case No. 9 of 1991 is hereby confirmed. Bail bond, if any, stands cancelled. Record and proceedings shall be sent back forthwith to the trial court.