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CR.A/152/2009 14/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 152 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
-Yes.
2
To be
referred to the Reporter or not ?-No.
3
Whether
their Lordships wish to see the fair copy of the judgment ?-No.
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?-No.
5
Whether
it is to be circulated to the civil judge ?-No.
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
PARESHBHAI
RANABHAI PRAJAPATI & 3 - Opponent(s)
=========================================================
Appearance
:
PUBLIC
PROSECUTOR for
Appellant(s) : 1,
None for Opponent(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 12/05/2009
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE KS JHAVERI)
1) The
present appeal, under Section 378 of the Code of Criminal Procedure,
1973, is directed against the judgement and order of acquittal dated
6/12/2008 passed by the learned Sessions Judge, Principal District
Court, Anand in Sessions Case No.93 of 2007 whereby the accused were
acquitted of the charges leveled against them.
2) The
brief facts of the prosecution case are as under:
2.1) Complainant
Nimuben (victim) on the day of incident i.e. on 6/6/2004 had given
Janva Jog Entry before Anand Police which was later on i.e. on
20/6/2004 treated as complaint. Complainant filed the complaint to
the effect that one and half years before the filing of the
complaint, her marriage took place with the accused Pareshbhai.
Initially, the complainant was living in joint family at her
matrimonial house consisting of elder sister-in-law and
brother-in-law, mother-in-law and father-in-law and her husband.
2.2) It
is the case of the complainant that thereafter she along with her
husband started living separately. Before one year all her in-laws
were keeping her well and her married life was going smoothly. But
after sometime, following the say of his parents and other family
members, her husband started taunting her saying that she had not
brought anything from her parental house.
2.3) He
was asking the complainant to get TV, Bike and cash amount from
parental house and as the complainant did not pay any heed to demand
of the accused, he started beating up the complainant.
2.4) On
account of mental and physical torture, complainant fell ill and
therefore, she went to her parental house where her parents took care
of her and got her well and healthy. Before 15 days of incident,
brother of the complainant brought her at her matrimonial house where
all the complainant’s husband and her in-laws were residing.
2.5) A
TV was brought and brother asked the accused not to torture her.
However, after departure of brother of complainant, her in-laws again
started taunting her saying that as to why she did not come back with
motorbike and saying so they also gave fist and kick blows to the
complainant.
2.6) It
is also the case of the complainant that she had given complaint at
the hospital saying that she herself set her on fire and did so on
the compulsion by her husband. However, the fact was that on the day
of the incident when she was working in kitchen, her husband came
from her back side and sprinkled kerosene on her and set her on fire.
She fell down on the ground. Thereafter, he in-laws called maternal
uncle of complainant who came there and brought her to Anand Civil
Hospital in his jeep where she gave complaint to Anand Police but
under compulsion of her husband since her husband was saying the
complainant to give her version before the police in his and his
family members’ favour. Thus, on the day of accident i.e. on
6/6/2004 complaint falls within purview of Section 498(A) only and
thereafter on 20/6/2004 after getting recorded real version of the
complainant, as stated above, Section 307 of the Indian Penal Code
was added to the charge sheet prepared by the Investigating Officer
which was prepared after recording statements of the complainant, her
relatives, necessary witnesses and also after drawing necessary
panchnamas and collecting ample evidence against the accused.
2.7) Charge-sheet
was submitted against the respondents before the court of learned
JMFC, Anand.
2.8) Thereafter,
as the case was exclusively triable by the Sessions Court, the same
was committed to the Court of learned Sessions Judge, Anand under
Section 209 of Criminal Procedure Code. The case was numbered as
Sessions Case No.93 of 2007. The trial was initiated against the
respondents-accused.
2.9) To
prove the guilt against the accused the prosecution has examined the
following witnesses:
[1] Nimuben
Parshottambhai-complainant (Victim) – Exh.12
[2] Sanjaybhai
Parshottambhai Prajapati- brother of victim Exh.18
[3] Parshottambhai
Ravjibhai ? father of victim – Exh.19
[4] Kamleshbhai
Parshottambhai Prajapati ? brother of victim – Exh.28
[5] Dr.
Samir N. Raval- Exh.13
[6] Dr.
Arvindbhai J. Dalvadi ? Exh.23
[7] Dr.
Rikhav D. Shah ? Exh.44
[8] Dipsinh
Arjubsinh Solanki – Exh.29
[9] Udesinh
Khatubhai Thakore – Exh.32
[10] Pratipalsinh
Ajitsinh Zhala – Exh.39
[11] Balabhai
Lalabhai Rathod ? Exh.-47
2.10) In
order to support the case, the prosecution has produced the following
documents:
[1] Original
complaint ? Exh.30
[2] Panchnama
of place of incident ? Exh.20
[3] FSL
report of mobile van officer ? Exh.48
[4] Investigation
order of Janva Jog No.61 of 2004 -Exh.49
[5] Utara
of Telephone Vardhi ? Exh.50
[6] Yadi
written to PSO ? Exh.51
[7] Public
report ? Exh.33
[8] Yadi
made to Executive Magistrate ? Exh.-52, 53
[9] Yadi
made by M. O., Anand Nagarpalika – Exh.24
[10] Certificate
of treatment of victim ? Exh.14
[11] Yadi
written by Dr. Samir Raval ? Exh.15
[12] Yadi
written to M. O., V. S. Hospital- Exh.-34
[13] Certificate
of injuries of victim ? Exh.45
[14] Yadi
written to M. O. – Exh.35
[15] Yadi
written to add Section 307 of IPC -Exh.36
[16] Note
of muddamal ravanagi ? Exh.37
[17] Receipt
of FSL ? Exh.38
[18] Forwarding
letter of FSL ? Exh.40
[19] Report
of FSL ? Exh.41
[20] Case
papers of treatment of victim Nimuben ? Exh.16
[21] Case
papers of treatment of victim Nimuben ? Exh.25,26
[22] Yadi
of reference to Karamsad Hospital of victim ? Exh.27
[23] Medical
Certificate of burn of victim ? Exh.46
2.11) At
the end of trial, after recording the statement of the accused under
Section 313 of Cr.P.C., and hearing arguments on behalf of
prosecution and the defence, the learned Sessions Judge, Anand
acquitted the respondents of all the charges leveled against them by
judgement and order dated 6/12/2008.
2.12) Being
aggrieved by and dissatisfied with the aforesaid judgement and order
passed by the Sessions Court, Anand, the appellant-State has
preferred the present appeal.
3) Though
served, the respondents-accused have not remained present.
4) Learned
APP contended that the judgement and order of the Sessions Court is
against the provisions of law; the Sessions Court has not properly
considered the evidence led by the prosecution and looking to the
provisions of law itself it is established that the prosecution has
proved the whole ingredients of the evidence against the present
respondents. Learned APP has also taken this court through the oral
as well as the entire documentary evidence. He submitted that the
prosecution witness had clearly deposed in his deposition that the
respondents-accused were found committing offence punishable under
Section 307, 498(A) and 114 of the Indian Penal Code. He further
submitted that there was no reason for the Sessions Judge to
disbelieve the prosecution case and to acquit the respondents-accused
persons.
5) 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 Vs. State of Kerala &
Anr, reported in (2006)6 SCC, 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:
?S54.
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
judgement 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.??
5.1) Further,
in the case of Chandrappa Vs. State of Karnataka, reported in
(2007)4 SCC 415 the Apex Court laid down the following
principles:
?S42. 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, reappreciate 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, ?Ssubstantial and compelling reasons??, ?Sgood
and sufficient grounds??, ?Svery strong circumstances??,
?Sdistorted conclusions??, ?Sglaring 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 ?Sflourishes 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.??
5.2) 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.
5.3) Even
in a recent decision of the Apex Court in the case of State of Goa
V. Sanjay Thakran & Anr. Reported in (2007) 3 SCC 75, the
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:
?S16. 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 judgement
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.??
5.4) Similar
principle has been laid down by the Apex Court in the cases of
State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in
2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state
of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this
Court may exercise against an order of acquittal are well settled.
5.5) It
is also a settled legal position that in acquittal appeal, the
appellate court is not required to re-write the judgement 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 Vs. Hemareddy, reported
in AIR 1981 SC 1417 wherein it is held as under:
?S? This
court has observed in Girija Nandini Devi V. Bigendra Nandini
Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty
of the appellate court when it agrees with the view of the trial
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.??
5.6) 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.
6) We
have gone through the judgement and order passed by the trial court.
We have also perused the oral as well as documentary evidence led by
the trial court and also considered the submissions made by learned
Advocate for the appellant.
6.1) While
appreciating the oral as well as documentary evidence, it is found
that there are many contradictions in oral version of witnesses. The
original complaint is not signed by the complainant. It is required
to be noted that there is gross delay in lodging the complaint. The
incident has happened on 6/6/2004 and the complaint was lodged on
20/6/2004. Medical evidence has also not supported the case of the
prosecution. The dying declaration is also contrary to medical
history which was given before the doctor about the incident.
Therefore the trial court has given the benefit of doubt to the
accused persons. The view taken by the Sessions Court is just and
proper and we do not find any reason to interfere with the said
finding.
6.2) From
the evidence itself it is established that the prosecution has not
proved its case beyond reasonable doubt. Learned APP is not in a
position to show any evidence to take a contrary view of 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.
7) In
the above view of the matter, we are of the considered opinion that
the trial court was completely justified in acquitting the
respondents-accused of the charges leveled against them.
8) We
find that the findings recorded by the trial court are absolutely
just and proper and in recording the said findings, no illegality or
infirmity has been committed by it.
9) We
are, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the court
below and hence find no reasons to interfere with the same. Hence the
appeal is hereby dismissed. Record and Proceedings to be sent back
forthwith.
(K.S.
JHAVERI, J.)
(Z.K.
SAIYED, J.)
(ila)
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