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CR.A/913/1987 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 913 of 1987
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 ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
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 ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
GHANCHI
AHMED MUSA & 2 - Opponent(s)
=========================================================
Appearance
:
PMS
MANISHA LAVKUMAR SHAH Ld. APP for Appellant(s) : 1,
MR HRIDAY BUCH
for Opponent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 22/06/2009
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE KS JHAVERI)
1.0 The
present appeal, under section 378 of the Code of Criminal Procedure,
1973, is directed against the judgement and order of acquittal dated
7.10.1987 passed by the learned Addl. Sessions Judge, Junagadh in
Sessions Case No. 29/1986, whereby, the accused have been acquitted
from the charges under sec. 302 and 201 read with sec. 34 of IPC
leveled against them.
2.0 The
brief facts of the prosecution case are as under:
2.1 That
as per the case of prosecution, the complainant, who is residing at
Mangrol, has got married his daughter Fatma with accused no. 2 –
Ghanchi Mahmad Hussein Adam, about 6 to 7 months prior to the
incident. Initially, both, accused no. 2 and Fatma were living
peacefully. Thereafter, some quarrels took place between Fatma and
accused persons on the ground of home work and Fatma went to her
parental home. Since Fatma was not liking accused persons, and
therefore, they planned to kill her. On 27.10.1985 between 12.00noon
to 8.00pm to 28.10.1985, Bai Fatma was killed by the accused persons
by strangulating by a stick and dead-body of deceased Fatma was
thrown into the well and accused persons have not informed about the
same to the parents of deceased Fatma. But on inquiry, the dead body
of deceased Fatma was found from the well situated in the field in
the evening of 28.10.1985. The accused persons have tried to
establish that it is a case of suicide.
2.2 Therefore,
a complaint with respect to the aforesaid offence was filed against
the respondent with the Mangrol Police Station. Necessary
investigation was carried out and statements of several witnesses
were recorded. During the course of investigation, respondents were
arrested and, ultimately, charge-sheet was filed against them before
the court of learned JMFC, Mangrol. Thereafter, as the case was
exclusively triable by the Sessions Court, the same was committed to
the Sessions Court, which was numbered as Sessions Case No. 29/1986.
The trial was initiated against the respondents.
2.3 To
prove the case against the present accused, the prosecution has
examined the following witnesses:
PW-1
Dr.Krishnakant Chunilal Ex. 13
PW-2
Kasam Hussain Ex. 15
PW-3
Noorbai Mahmad Hussain Ex. 16
PW-4
Jagu Hajara Ex. 17
PW-5
Satarkhanbhai Ex. 19
PW-6
Ajabsinh Ramsinh Ex. 21
PW-7
Manaji Jivaji Damor Ex. 23
To
prove the case, the prosecution has produced the following
documentary evidence.
Statement
of the accused Ex. 4
Statement
of Mahmad Hussain Adam Ex. 5
Statement
of Rabiya Hasan Ex. 6
PM
Note Ex. 14
Police
report Ex. 18
Panchnama
Ex. 20
Original
complaint Ex. 22
2.4 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 acquitted
the respondents of all the charges leveled against them by judgement
and order dated 7.10.1987.
2.5 Being
aggrieved by and dissatisfied with the aforesaid judgement and order
passed by the Sessions Court the appellant State has preferred the
present appeal.
3.0 It
was contended by learned APP 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 respondent. Learned APP has also taken this court
through the oral as well as the entire documentary evidence.
4.0 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:
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
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.
4.1 Further,
in the case of Chandrappa Vs. State of Karnataka, reported in
(2007)4 SCC 415 the Apex Court laid down the following
principles:
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, 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, 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.
4.2 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.
4.3 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:
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 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.
4.4 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.
4.5 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 reasonigns, 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:
&
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.
4.6 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.
5.0 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
APP for the appellant-State. The prosecution has examined complainant
PW-2 Kasam Husain Ex. 15 and cousin sister-in-law of deceased PW-3
Noorbai Mahmad Husain Ex. 16 and tried to establish that between
27.10.1985 12.00noon to 28.10.1985 at about 8.00pm, deceased was
killed by the present accused persons and her dead-body was thrown
into the well. However, on close scrutiny of the evidence, it is
revealed that the prosecution has failed to prove that;
Any
witness has seen the accused persons along with the deceased between
27.10.1985 to 28.10.1985.
In
the panchnama of scene of offence, nothing is shown to establish
that the deceased was attacked or killed by the accused persons.
The
case of prosecution is a case based on circumstantial evidence and
complete chain of circumstantial evidence is not established. There
are infirmities which are fatal to the prosecution case. No doubt,
the doctor has stated that it is not a case of suicide, the
prosecution has miserably failed to prove the role of each accused.
In that view of the matter, it would not be appropriate to reverse
the findings recorded by the trial Court which has appreciated the
evidence. It is also required to be noted that the trial Court has
also considered the theory of the deceased falling down to the well
where a water motor is installed. Thus, from the evidence itself it
is established that the prosecution has not proved its case beyond
reasonable doubt.
6.0 Ms.
Manisha Lavkumar Shah 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.
6.0 In
the above view of the matter, we are of the considered opinion that
the trial court was completely justified in acquitting the
respondents of the charges leveled against him.
7.0 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.
8.0 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.
(K.S.
JHAVERI, J.)
(Z.K.
SAIYED, J.)
mandora/
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