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2016 DIGILAW 792 (GUJ)

State of Gujarat v. Dilipbhai Jayrambhai

2016-04-11

BIREN VAISHNAV, K.S.JHAVERI

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JUDGMENT K.S. Jhaveri, J. 1. By way of this appeal, the appellant-State has challenged the impugned judgment and order of acquittal dated 03.09.1994, passed by the learned Sessions Judge, Surat, in Sessions Case No. 76/1994 whereby, the respondent-original accused, have been acquitted for charges u/s. 302 of the I.P.C. 2. The facts of the case in brief are as under; "2.1 It is the case of the prosecution, that on 02.02.1994, at about 01:00 p.m, in drunken condition the accused-respondent (husband of the deceased) quarrelled with his deceased wife-Chhayaben. On the same day, at about 7:30 in the evening, the deceased wife inquired from her husband (respondent herein), as to why he was going out. Being angry at this, the respondent (husband), poured kerosene at the deceased-Chhayaben and set her ablaze. Therefore, he was charged u/s. 302 of the I.P.C. 2.2 A complaint in respect of the aforesaid incident was lodged with Umra Police Station, Surat City. Necessary investigation was done and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the trial Court. However, since it was a sessions triable offence, 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." 3. During the trial, the prosecution examined the following witnesses: 4. The prosecution had produced and relied upon several documentary evidences, particularly, the panchnama of scene of offence at Exh. 14, panchnama regarding physical condition and arrest of accused at Exh. 15, Inquest panchnama at Exh. 16, Death Certificate issued by Mahavir Hospital at Exh. 17, Dispatch note of Muddamal sent to the FSL at Exh. 18, FSL Report at Exhs'.19 & 20, map of place of offence at Exh. 21, Certificate issued by Maskati Hospital at Exh. 23, Complaint at Exh. 25 and P.M Note at Exh. 27. 5. At the end of trial, the Court below recorded further statement of accused u/s. 313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeal. 6. 21, Certificate issued by Maskati Hospital at Exh. 23, Complaint at Exh. 25 and P.M Note at Exh. 27. 5. At the end of trial, the Court below recorded further statement of accused u/s. 313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeal. 6. At the outset, 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. 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." 6.1 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. [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." 6.2 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. 6.3 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. 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." 6.4 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. 6.5 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." 6.6 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. 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. 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. 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." 7.1 Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and others v. State of Karnataka, JT 2013 (7) SC 66. 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 heard learned counsel for both the sides and perused the documents on record. The trial Court has rightly observed in its judgment at paragraph 13 that the deceased was brought to the hospital at 09:05 p.m during night hours, whereas Dr. Ameeben has attended her at 10:00 hrs. In this regard, deposition of Dr. P K Patel, is of great importance. Dr. Patel, submits that such a burnt victim can't stay conscious and fit. Deposition of deceased father is also noteworthy in this regard, who submits that, his daughter was unconscious and was unable to speak, when he reached the hospital. Further the trial Court has held in paragraph 14 of its judgment that, the Dying Declaration at Exhibit 13, given to the Executive Magistrate reveals that the deceased while giving her Dying Declaration was conscious or not and as to whether she was mentally and physically fit to give Dying Declaration, such an endorsement was not being taken from the Doctor by the Executive Magistrate. The said fact is important because according to deposition of Rohidas Khandu Mahere, Exhibit-9, and Mayaben Shankardayal, Exhibit-8, the deceased was unable to speak anything. The only word she could speak was 'Divo' 'Divo'. The trial Court has further observed that Dr. P K Patel, in his deposition says that, normally a person can't speak in such burnt condition. But, looking to the complaint at Exh. 25, raises suspicion as to whether such a burnt person can give a detailed 2 page complaint. As per the say of Dr. P K Patel, there was no possibility of taking thumb impression of the deceased on the Dying Declaration (Exh. 13) by the Executive Magistrate. Accordingly, the Dying Declaration at Exhibit 13, becomes suspicious. Not only that, but while giving Dying Declaration, whether the deceased was conscious or not, fact regarding the same is not coming on the record of the case. Under the above circumstances, the trial Court has given the benefit of doubt to the respondent herein and exonerated him of the charges u/s. 302 of I.P.C. In view of the above, we are in complete agreement with the findings and observation of the trial Court. 9. 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 persons. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting the respondents-accused persons of the charge levelled against them. 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. 10. For the foregoing reasons, the appeal is dismissed and the impugned judgment and order is confirmed. Bail bonds, if any, stand cancelled. Record and proceedings, if lying here, be sent to the Court below forthwith.