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CR.A/261420/2008 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2614 of 2008
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
JETUBHAI
MERAMBHAI VALA & 1 - Opponent(s)
=========================================================
Appearance
:
MR
HL JANI, ADDL PUBLIC PROSECUTOR for
Appellant(s) : 1,
None for Opponent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 04/02/2009
ORAL
ORDER
(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
05.07.2008 passed by the Special Judge, Amreli in Special Atrocity
Case No. 45 of 2007, whereby the accused has been acquitted from the
charges leveled against them.
2. The
brief facts of the prosecution case are as under:
2.1 On
28.05.2007, at about 9.00 pm, the complainant after having dinner was
on his way to the shop of one Abdulbhai Karimbhai. At that time, the
original accused no.1 and another person came on bike in a drunken
condition and asked the complainant to call the daughter-in-law of
Vagha but the complainant said that he did not know her. It is
alleged that the accused abused the complainant and gave a blow with
iron rod on the right hand palm and another blow on the back side of
the complainant. The shop owner intervened and separated them.
2.2 Therefore
a complaint with respect to the aforesaid offence was filed against
the respondents with the Vadia Police Station vide C.R. No.
I-27/2007. 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. Thereafter, as the case was exclusively triable by the
Sessions Court, the same was committed to the Sessions Court.
2.3 The
trial was initiated against the respondents and during the course of
trial the trial court examined 12 witnesses as oral evidences and
also examined 9 documentary evidences. 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 05.07.2008.
2.4 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. It
was contended by Mr. Jani, 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 respondents . Learned APP has also taken this
court through the oral as well as the entire documentary evidence.
4. 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. 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. The trial court in its judgement and
order has gone into the evidence in detail and made relevant
observations in para 21. The trial court has observed that the
documentary evidence do not support the say of the witnesses.
Moreover, neither of the oral witnesses have supported the say of the
complainant. It also appears that medical evidence also does not
suport the case of the complainant. In that view of the matter, we
are not inclined to admit the present appeal.
5.1 Thus,
from the evidence itself it is established that the prosecution has
not proved its case beyond reasonable doubt. Mr. Jani, 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. 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 them. 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. 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.
7. The
judgement and order dated 05.07.2008 passed by the Special Judge,
Amreli in Special Atrocity Case No. 45 of 2007 acquitting the
respondents-accused is hereby confirmed. Bail bonds, if any, shall
stand cancelled.
(K.S. JHAVERI, J.)
(Z.K.
SAIYED, J.)
Divya//
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