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2016 DIGILAW 793 (GUJ)

State of Gujarat v. Mansukh Chinubhai

2016-04-11

BIREN VAISHNAV, K.S.JHAVERI

body2016
JUDGMENT K.S. Jhaveri, J. 1. Upon instructions of the original accused No.1 - Mansukh Chinubhai who happens to be the brother of the original accused No. 4 - Pravinkumar alias Pavlo Chinubhai, learned Advocate for the respondents states that the original accused No. 3 - Natvar Ratnaji and original accused No. 4 - Pravinkumar alias Pavlo Chinubhai have expired. Therefore, the appeal qua the original accused No. 3 and 4 abates. 2. By way of this Appeal, the Appellant - State has felt aggrieved by the judgment and order of acquittal dated 08.04.1994 passed by the learned Additional Sessions Judge, Court No. 7, City Sessions Court, Ahmedabad in Sessions Case No. 78/1991 whereby the respondents were acquitted for the offences punishable under Sections 302, 452 read with Section 34 of the Indian Penal Code. 3. The case of the prosecution is as under:-- "3.1. The accused No. 1, 2 and 4 and the complainant - Bachubhai Bhogiyabhai Dataniya were neighbours. There was a dispute between the two parties regarding a particular parcel of land which was in between the two respective residences. Keeping this animosity in mind, it is alleged that in the morning hours on 01.10.1990, all the accused forcibly entered the complainant's house (when the complainant was not there), poured kerosene on the daughter of the complainant - Janki aged 16 years, lit a matchstick and thereby caused her death because of the severe burn injuries received. 3.2. On the basis of the complaint filed, the investigation commenced. Charges were led against all the accused in the Court of the learned Judicial Magistrate First Class but as it was a Sessions triable case, the learned Judicial Magistrate First Class committed the case to the Court of Sessions. 3.3. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exh. Complainant Bachubhai Bhogiyabhai Dataniya 13 Gopiben Popatlal 21 Dr. Rathindra Balasaheb Deshmukh 22 Panch Witness Ranjitbhai Vittalbhai 24 Police Constable Govindlal Somchand 28 PSI Dhansinh Shambhubhai Bagora 30 Police Inspector Narendrasinh Prathuba Raijada 32 The prosecution also relied upon various documentary evidences. 3.4. 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 respondents pleaded not guilty and stated that they have been falsely implicated in the offence. 3.4. 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 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." 4. Learned Additional Public Prosecutor Ms. C.M. Shah for the appellant - State has taken this Court to the medical evidence and has submitted that the cause of death is on account of 95% burn injuries suffered by the deceased. It is further submitted that learned Judge has erred in discarding the evidence of the complainant whose evidence gets corroboration from the First Information Report which was lodged after the accident. It is also submitted that considering the post mortem report, this would amount to culpable homicide leading to murder. 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 qua the acquittal of the respondents No.1 and 2. 5. On the other hand, learned Advocate appearing for the respondents accused has stated that there are several discrepancies in the evidence led by the complainant. It is further submitted that the medical evidence adduced also does not support the case of the prosecution. It is also submitted that there are no independent witnesses and considering the evidence led by the Police Inspector, the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, this Court should not interfere in the well reasoned judgment and order of the learned Additional Sessions Judge. Qua acquittal, learned Advocate for the respondent 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. 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. 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." 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 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. 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. [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. 6. We have heard learned Advocates for the parties and perused the records of the case. While going through the judgment and order of the learned Sessions Judge, the benefit of doubt has been granted to the accused inasmuch as the incident occurred in the complainant's house. There are no independent witnesses to corroborate the version of the complainant and the learned Judge has pointed out the serious contradictions of the witnesses. 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. 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. 7. The Appeal is devoid of merits and is dismissed accordingly. 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. 7. The Appeal is devoid of merits and is dismissed accordingly. The judgment and order of acquittal dated 08.04.1994 passed by the learned Additional Sessions Judge, Court No. 7, City Sessions Court, Ahmedabad in Sessions Case No. 78/1991 is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.