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CR.A/731/2002 7/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 731 of 2002
For
Approval and Signature:
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 ?
=========================================
BACHUBHAI
JUMABHAI JAT - Appellant(s)
Versus
MOHANLAL
SHANKARLAL PANCHAL (LATE)(AS PER EX.88 PURSIS & 4 - Opponent(s)
=========================================
Appearance
:
MR
G RAMAKRISHNAN for Appellant(s) : 1,
None for Opponent(s) :
1,
NOTICE SERVED BY DS for Opponent(s) : 2 - 4.
MR BB NAIK for
Opponent(s) : 2 - 4.
MR MAULIK NANAVATI ADDITIONAL PUBLIC
PROSECUTOR for Opponent(s) :
5,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 10/02/2010
ORAL
JUDGMENT
1. The
present appeal, under section 378 of the Code of Criminal Procedure,
1973, is directed against the judgment and order of acquittal dated
17.4.2002 passed by the learned Judicial Magistrate, First Class,
Modasa in Criminal Case No.3085 of 1994 (main and allied Criminal
Case No.3104 of 1995), whereby the accused have been acquitted from
the charges leveled against them.
2. The
brief facts of the prosecution case are as under:
2.1 The
complainant Bachubhai Jumabhai Jat had made complaint before the
learned Judicial Magistrate, First Class, Modasa on 12.11.1994 that
on 8.11.1994, he was on duty as chowkidar, rounding on horse and he
talked with his brother-in-law. At that time, police mobile van came
there just behind the complainant and the constables told that Sir
was calling you i.e. complainant and the complainant went there and
thereafter, the complainant was taken in the mobile van to the police
station and the accused had beaten the complainant in cruel manner.
The incident was occurred only on the ground that the accused No.1
Police Officer warned the complainant not to ride on a horseback in
front of the concerned police station and the complainant had defied
his such warning and as result of it, the complainant had faced such
irrational and egoistic blare. Therefore, the complaint was lodged
against the accused for the offences punishable under Section 323 and
114 of the Indian Penal Code.
2.2 Therefore,
Criminal Case No.3085 of 1994 with respect to the aforesaid offence
was filed against the respondents original accused Nos.1 to 3 and
subsequently, Criminal Case No.3104 of 1995 was registered against
the respondent – accused No.4 before the learned Judicial Magistrate,
First Class, Modasa. The said Criminal Case No.3104 of 1995 was later
on consolidated with Criminal Case No.3085 of 1994 (main case).
Necessary investigation was carried out and statements of several
witnesses were recorded. The trial was initiated against the
respondents.
2.3 To
prove the case against the present accused, the prosecution has
examined, in all 4 witnesses and also produced documentary
evidence.
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 trial Court acquitted the
respondents of all the charges leveled against them by judgment and
order dated 17.4.2002.
2.5 Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the trial Court the appellant has preferred the present
appeal.
3. It
was contended by learned counsel Mr. Ramakrishnan that the judgment
and order of the learned trial Court is against the provisions of
law; the learned trial Court has not properly considered the evidence
led by the complainant and looking to the provisions of law itself it
is established that the complainant has proved the whole ingredients
of the evidence against the present respondents. Learned counsel has
also taken this court through the oral as well as the entire
documentary evidence. He has contended that the learned Judge has
caused miscarriage of justice by releasing the accused person on
acquittal on mere assumptions and presumptions and biased approach.
He has also contended that the appellant was tortured by the accused
persons for the simple reason not to ride on a horseback.
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. I
have gone through the judgment and order passed by the trial court. I
have also perused the oral as well as documentary evidence led by the
trial court and also considered the submissions made by learned
counsel for the appellant.
6. Learned
counsel for the appellant has read the complaint, which was given in
oral version before the Judicial Officer, Modasa on 12.11.1994 and it
was considered by the Judicial Officer as complaint of criminal
offence. On 14.11.1994, process was issued against the present
respondents for the offences punishable under Section 323 and 114 of
the Indian Penal Code. During the trial, the accused No.1 PSI
Mohanlal Shankarlal Panchal expired and therefore, his name was
deleted. Learned counsel Mr. Ramakrishnan has also read the complaint
Exhibit 1 and argued that from the contents of the compliant also,
the complainant has proved the case before the learned Judicial
Magistrate, First Class, Modasa. He has also read oral evidence of
the complainant and that of the witnesses. He has vehemently argued
that tenderness is shown in medical certificate issued by the medical
expert P.W. 4 – Dr. Jinabhai Amathabhai Yadav and he was examined at
Exhibit 90 before the learned trial Court. He has admitted before the
trial Court the meaning of tenderness. He has also admitted that no
external injury was found on the body of the complainant and admitted
about only tenderness. From the facts narrated by the complainant, it
appears that he has a horse and he was fond of horse riding. It is
admitted by the Medical Officer that during the horse riding, the
injuries can be possibly caused. Therefore, the defence side has
established case before the learned trial Court. No doubt that the
complaint which was recorded by the learned Judicial Magistrate,
First Class, from the version of the complainant. I do not find any
substance in the complaint and I am of the opinion that the
ingredients of Sections 323 and 114 of the Indian Penal Code were
also covered by the oral version of the complainant. Learned Judicial
Magistrate has issued process for the offences under Sections 323 and
114 of the Indian Penal Code. There is a provision under Section 200
of the Code of Criminal Procedure but the learned Judicial
Magistrate, First Class was has not followed the said provisions. It
is prima facie established on record that the process issued by the
learned Judicial Magistrate, First Class is bad in law. But at this
stage, this Court is in total agreement with the reasons assigned by
the learned trial Court. Learned counsel is also unable to say that
as to type of error has been committed by the learned Magistrate.
Therefore, no question arises to entertain this appeal. Learned
counsel is unable to show that which provisions of law are followed
by the learned Magistrate and even in absence of any witness, such
allegations cannot be considered in the eye of law. Even the evidence
of the expert is also not helpful to the present appellant. Thus,
from the evidence itself it is established that the prosecution has
not proved its case beyond reasonable doubt.
7. Mr.
Ramakrishnan, learned counsel 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.
8. In
the above view of the matter, I am of the considered opinion that the
trial court was completely justified in acquitting the respondents of
the charges leveled against them.
9. I
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.
10. I
am, 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. Bail bond, if any, stands cancelled.
Record and proceedings to be sent back to trial Court, forthwith.
(Z.K.
SAIYED, J.)
ynvyas
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