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2016 DIGILAW 751 (GUJ)

State of Gujarat v. Pravinbhai Purshottambhai

2016-04-06

BIREN VAISHNAV, 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 20.11.1993 passed by the learned Additional Sessions Judge, Navsari, Valsad in Sessions Case No. 12/1991 whereby the respondents were acquitted for the offences punishable under Sections 395,397, 452, 427 read with Section 114 of the Indian Penal Code. 2. The case of the prosecution is as under:-- "2.1. On 19.08.1990, all the accused with a common intention to cause harm to the complainant entered illegally the flour mill of the complainant - Sanjaybhai, armed with deadly weapons like iron pipe and sword and inflicted injuries on the complainant as well as Rajeshbhai. The accused are also alleged to have broken the cement roof of the flour mill premises and thereby, caused a loss of more than Rs. 50/= to the complainant. 2.2. On the basis of the complaint filed before the Valsad City Police Station which as numbered as I-C.R. No. 178/1990, the investigation commenced. Charges were led against all the original accused under Sections 452, 395, 397,427 read with Section 114 of the Indian Penal Code in the Court of the learned Judicial Magistrate First Class, Valsad. Since it was a Sessions triable case, the learned Judicial Magistrate First Class committed the case to the Court of Sessions. 2.3. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exh. Medical Officer Dr. Ramratan Himmatram Ramavat 11 Manbodhsinh Jagmohansinh Thakore 15 Gajrabhai Deendayalbhai Gupta 16 Panch Witness Jakir Alias Mehboobkhan Gulsherkhan Pathan 17 Salimbhai Ibrahimbhai 19 Rameshbhai Keshavbhai 20 Imtiyaz Abdul Latif 22 Gulam Museji Makrani 24 Complainant Sanjaybhai Murlidhar Tripathi 25 Investigating Officer and Police Inspector Harishbhai Sonubhai Patil 26 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exh. Panchnama of the position of body of the accused-Pravinbhai Parshottambhai 10 Medical Certificate of the complainant-Sanjaybhai 12 Medical Certificate of the Witness-Rajeshbhai 13 Medical Certificate of the accused Vasantbhai 14 Panchnama of the scene of offence 18 Panchnama of the bike used in the commission of the crime 21 Discovery panchnama of the muddamal clock given by the accused-Pravinbhai Parshottambhai 23 Complaint 27 Yadi written by the Police Inspector to the Medical Officer 28 Yadi written for examination of the accused-Vasanthai Ramjibhahi and for issuance of Medical Certificate thereafter 29 Yadi written by the Police Inspector to the Assistant Regional Vehicle Transport Officer, Valsad asking for information pertaining to car bearing Registration No.GB-9333 30 2.4. At the end of the trial, further statement of the accused under Section 313of the Code of Criminal Procedure was recorded in which the respondents 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 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 complainant - Sanjaybhai as also the other two independent witness - Manbodhsinh and Gajrabhai. It is submitted that though the panch witnesses have turned hostile, however, looking to medical evidence, the learned Judge ought to have awarded maximum punishment to the accused. It is further submitted that it ought to be appreciated that the deposition given by the injured witnesses have got much evidentiary value. It is further 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 respondents accused Mr. Joshi has stated that there are several discrepancies in the evidence led by the complainant inasmuch as the complainant did not know the name of the accused - Pravin till the evidence and no T.I. Parade was held qua the accused - Pravin. 4. On the other hand, learned Advocate appearing for the respondents accused Mr. Joshi has stated that there are several discrepancies in the evidence led by the complainant inasmuch as the complainant did not know the name of the accused - Pravin till the evidence and no T.I. Parade was held qua the accused - Pravin. It is further submitted that the investigating officer has also admitted that it was incumbent upon him to hold the T.I. Parade, if the name and description of the accused were not disclosed. It is also submitted that the complainant has been absolutely silent as far as the role of another accused - Vasantbhai is concerned and further, the independent witnesses have not supported the version of the complainant. It is also submitted that there is no proof that there was any damage of more than Rs. 50/= and also to the effect that the accused had broken the upper roof of the flour mill and had caused the damage as mentioned in the complaint. Therefore, in light of the above, it is submitted that this Court should not interfere in the well reasoned judgment and order of the learned Additional Sessions Judge. Learned Advocate Mr. Joshi has also placed reliance on the following decisions of the Hon'ble Apex 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. [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. 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 Investigating Officer did not hold the Test Identification Parade and the panch witnesses also turned hostile. Besides, several discrepancies appear in the version of the complainant and it is not proved as to what type of weapons were alleged used by the accused. We are of the view that the learned Judge has given cogent and convincing reasons to arrive at the acquittal of the accused. 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. 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 is dismissed accordingly. The judgment and order of acquittal dated 20.11.1993 passed by the learned Additional Sessions Judge, Navsari, Valsad in Sessions Case No. 12/1991 is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.