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2016 DIGILAW 846 (GUJ)

State of Gujarat v. Durgesh Mansukhlal Irenpuriya

2016-04-19

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. This is an appeal of acquittal preferred by the State of Gujarat under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 22.2.2005, recorded by the Special Judge (Atrocity), Gandhinagar in Special (Atrocity) Case No. 49 of 2004. 2. It is the case of the prosecution that the complainant-Maheshbhai was working as a constable. While discharging his duty as court duty constable, he was required to serve the summons and to keep watch over the Court's proceedings as well as keeping the Government officials' present in the Court and to receive the necessary correspondence. The complainant has alleged that on 7.5.2004 in the District Court at Gandhinagar, Shri H.K. Patel, Investigating Officer could not remain present for the Court's proceedings and he had received the said information through message from the ACB control room at about 11.25 a.m. and therefore, in order to intimate the aforesaid information, he went to the office of the Government Pleader. However, as he could not find the Government Pleader, therefore, he directly informed the Hon'ble Court through a message. It is further the case of the prosecution that the said act irked the accused and the accused behaved with him roughly and abused him and the accused uttered derogatory words concerning his caste. The accused had also threatened him to get him out of his job and thereby prevented from discharging his lawful duty and therefore, the complainant has lodged a complaint for the offences punishable under Sections 332, 342, 506(1) of the Indian Penal Code read with Section 3(1)(10) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. In pursuance of the aforesaid complaint, the Police recorded statement and after completion of investigation, filed charge-sheet which came to be committed to the learned trial Court. After conclusion of trial and hearing, the learned trial Court acquitted the accused from all the charges levelled against him. Therefore, the present appeal. 4. Heard Mr. Rutvij Oza, learned APP for the appellant-State and Mr. Adil Mehta, learned advocate for the respondent. 5. Mr. Rutvij Oza, learned APP has reiterated the grounds urged in the memo of appeal and he has urged that the learned trial Court failed to appreciate the evidence on record in its proper perspective and has wrongly recorded the order of acquittal. Rutvij Oza, learned APP for the appellant-State and Mr. Adil Mehta, learned advocate for the respondent. 5. Mr. Rutvij Oza, learned APP has reiterated the grounds urged in the memo of appeal and he has urged that the learned trial Court failed to appreciate the evidence on record in its proper perspective and has wrongly recorded the order of acquittal. He has further urged that though the complainant has deposed verbatim fact narrated in the complaint, however, for want of other corroborative evidence, the learned trial Court has wrongfully acquitted him and it requires to be reversed as such. 6. Per contra, Mr. Adil Mehta, learned advocate for the respondent-accused has submitted that the learned trial court has elaborately dealt with the evidence on record and recorded the finding of acquittal which calls for no interference by this Court and he has supported the judgment rendered by the trial Court. Mr. Adil Mehta, learned advocate for the respondent-accused has further argued that as the accused as well as complainant were working with the Government Department and both of them have settled the matter outside the Court and compromise pursis has also been tendered before the learned trial Court at Exh.7 and as all the offences alleged to have committed by the accused was not compoundable, therefore, trial took place. In view of settlement between the parties, this Court may not interfere at this stage. 7. Mr. Adil Mehta, learned advocate for the respondent-accused has also argued that on the date of incident in the morning hours as the complainant misbehaved with the accused in that view of the matter, the accused complained regarding his unusual behavior and even threatened him for implicating him in atrocity case. Thereafter, in the evening hours at about 6.30 p.m., the complainant had lodged the aforesaid complaint which is in the nature of counter blast against the Government Pleader. 8. This Court has gone through the paper book, impugned judgment and order passed by the learned Special Judge (Atrocity), Gandhinagar, deposition of various witnesses as well as the compromise entered into between the parties at Exh.7 and on going through the evidence of the complainant, it is noticed that whatever he has stated in the complaint, he has deposed the same thing before the learned trial Court. It is also noticed that the accused has made a complaint before the Government pleader regarding misbehavior of the complainant as well as the fact that the complainant has threatened the accused of implicating him in the atrocity case. 9. 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. 9.1 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. 9.2 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. 9.3 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 Apex 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. 9.4 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 M.P. 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. 9.5 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. 9.6 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. 9.6 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. 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 ]. 10. 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 ]. 10. 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. Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 10.1 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. 11. On overall appreciation of the evidence on record, it is clearly emerging out that as there was a dispute as regard to the functioning of present complainant in his duty and due to which a complaint came to be made by the accused to the learned Government Pleader on 7.5.2004. Therefore, keeping a grudge, he lodged the aforesaid First Information Report in the evening at about 6:30 p.m. invoking the provisions of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act as well as other provisions of Indian Penal Code for which settlement has already been taken place and the same is on record. While appreciating the evidence on record and reviewing the same, there appears no evidence on record to link and connect the accused with the alleged crime. In that view of the matter, the learned trial Court has rightly recorded the finding as regard to the acquittal of the accused. 12. While appreciating the evidence on record and reviewing the same, there appears no evidence on record to link and connect the accused with the alleged crime. In that view of the matter, the learned trial Court has rightly recorded the finding as regard to the acquittal of the accused. 12. For the reasons recorded above, the present appeal being devoid of any merits deserve dismissal and accordingly stands dismissed and the impugned judgment and order is confirmed. Bail bonds stand cancelled. No order as to costs. The Registry is directed to return the R & P, if any, forthwith to the lower Court.