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2017 DIGILAW 129 (GUJ)

State of Gujarat v. Ignasbhai Atmaram Mistry

2017-01-19

ABDULLAH GULAMAHMED URAIZEE

body2017
JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. By way of this appeal, the appellant-State has challenged the judgment and order of the learned Special Judge, Ahmedabad dated 29.12.2006 rendered in Atrocity Criminal Case No. 7 of 2006, whereby the learned trial Judge acquitted the original accused, the opponents herein of the charges for the offence punishable under Sections 294(B), 506(1) and 114 of the Indian Penal Code (for short IPC) and Section 3(1) (x) and 3(1)(xv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. The brief facts of the case of the prosecution, as set out before the learned Trial Court, read as under: "The case of the prosecution in nutshell is that the original complainant-Mulchandbhai Somabhai, who is a member of the Scheduled Caste, was residing at house No. 92 in Momainagar with his wife and children and that because of quarreling by the wife of the accused No. 1 with the wife of the complainant, the wife of the complainant committed suicide by pouring kerosene and setting herself ablaze. As the complainant lodged a complaint against the accused, the accused used to give threats to the complainant to settle the case and to sell his house. When the complainant went to his house viz. House No. 92 of Momainagar on 5th January 2005 at about 8.30 PM along with Maheshbhai and Narottambhai for cleaning the house and while they were doing so, at about 9 PM both the accused persons came to the house of the complainant and started using filthy language and abuses to the complainant. Therefore, the complainant had left the house and thereafter lodged the complaint against the accused persons with Odhav Police Station being C.R. No. III 3123 of 2005 for the offences punishable under sections 294, 506(1) read with section 114 of the IPC and sections 3(1)(x) and (xv) of the Atrocity Act." 3. After completion of the investigation, the charge-sheet was filed before the learned Chief Metropolitan Magistrate Court, Ahmedabad. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court, Ahmedabad under Section 209 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) committed the said case to the Court of Special Judge, Ahmedabad, which was, thereafter, numbered as Atrocity Criminal Case No. 7 of 2006. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court, Ahmedabad under Section 209 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) committed the said case to the Court of Special Judge, Ahmedabad, which was, thereafter, numbered as Atrocity Criminal Case No. 7 of 2006. Since the accused persons did not plead guilty and claimed to be tried, they were tried for the alleged offences. 4. At the end of the Trial and after recording the statement of the accused under Section 313 of Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the learned Special Judge, Ahmedabad acquitted the accused of all the charges leveled against them. On completion of the trial, the Sessions Court passed the judgment and order acquitting the opponents. 5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Court, the appellant-State has preferred the present Criminal Appeal. 6. Mr. K.L. Pandya, learned Additional Public Prosecutor vehemently, submitted that the learned Trial Judge ought to have considered the evidence of the complainant- Mulchandbhai Somabhai Parmar, who was examined at Exh.8. It is submitted that he belonged to the scheduled caste and he produced caste certificate to prove his caste. The learned APP, further, submitted that this Criminal Appeal is required to be allowed. 7. As against that, though the opponents are duly served, they have chosen not to remain present before this Court either in person or by engaging an advocate. 8. I have heard learned APP for the appellant State and the learned advocate for the opponents and perused the material on record with their assistance. 9. In view of the above, I have to appreciate the facts in this case from the touchstone of the decisions of the Hon'ble Apex Court laying down guidelines for having acquittal appeals. 10. 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 catena of decisions. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Another, (2006) 6 SCC 39 , the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Another, (2006) 6 SCC 39 , the Apex Court has narrated 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." 11. Further, in the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 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." 12. Thus, it is a settled principle that while exercising appellate powers, 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. 13. Even in the case of State of Goa v. Sanjay Thakran & Another, reported in (2007) 3 SCC 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." 14. 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." 14. Similar principle has been laid down by the Apex Court in cases of State of Uttar Pradesh v. Ram Veer Singh & Others, 2007 AIR SCW 5553 and in Girja Prasad (dead) by L.Rs v. State of MP, 2007 AIR SCW 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 15. In the case of Luna Ram v. Bhupat Singh and Others, (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." 16. Even in a recent decision of the Apex Court in the case of Mookkiah and Another 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. 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 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 )" 17. It is also a settled legal position that in acquittal appeals, 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." 18. In the recent decision, the Hon'ble Apex Court in Shivasharanappa & Others v. State of Karnataka, JT 2013 (7) SC 66 has held as under: "That appellate Court is empowered to re-appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence." 19. Having gone through the entire record and proceedings, the complainant has been examined at Exh.11 and the medical evidence does not support the case of the prosecution and therefore, looking to the totality of facts and circumstances of the case, this is not a case where it can be said that the learned Judge has given a perverse judgment. 20. I find that the Trial Court, while considering the evidence on record, has rightly acquitted the accused persons. The Trial Court has observed that there are various discrepancies and contradictions in the oral evidence of the complainant as regards delay in lodging the complaint. As per the complaint he lodged the written complaint after consulting advocate and did not go to police station immediately whereas in the oral evidence he states that he immediately went to police station for lodging the complaint, but the same was not accepted and thereafter he made many efforts but in vain. Therefore, he contacted the advocate who drafted the complaint which was lodged with the police station. Further, the incident alleged has taken place inside the house of the complainant and not in public view or public place. There are loopholes in the evidence and investigation which has been observed by the Trial Court. Moreover, the incident is of the year 2005 and I do not find any strong ground to reverse the decision of the Trial Court. In that view of the matter, the view taken by the Trial Court is not required to be disturbed. 21. I am, therefore, of the considered opinion that the findings recorded by the Trial Court in acquitting the accused of the charge leveled against them are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am in complete agreement with the reasonings given and the findings arrived at by the Trial Court. No interference is warranted with the judgment and order of the Trial Court. 22. I am in complete agreement with the reasonings given and the findings arrived at by the Trial Court. No interference is warranted with the judgment and order of the Trial Court. 22. In the result, the appeal fails and is dismissed. The judgment and order of the learned Special Judge, Ahmedabad dated 29.12.2006 rendered in Atrocity Criminal Case No. 7 of 2006 is hereby confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned trial Court, forthwith.