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CR.A/2264/2008 1/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2264 of 2008
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
LAXMIBEN
KACHABHAI RATHOD & 3 - Opponent(s)
=========================================================
Appearance
:
MR. RC
KODEKAR APP for
Appellant(s) : 1,
None for Opponent(s) : 1 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 18/03/2009
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE KS JHAVERI)
The present appeal,
under section 378 of the Code of the Criminal Procedure, 1973 is
directed against the judgment and order of acquittal dated 26.6.2008
passed by the learned Presiding Officer,5th Fast Track
Court, Surat in Sessions Case No. 294 of 2007, whereby the accused
has been acquitted of the charges leveled against him.
2.0
The brief facts of the prosecution case are as under:
2.1
On the date of incident i.e. 7-3-2007, the respondents- accused
Laxmiben K. Rathod, Ashif Shekh Munir, Somo Prakash Govachamal and
Mukesh Ravibhai Thakure with the help of each other abducted the
complainant Aarifa @ Mala Dineshbhai Ravat in an auto rickshaw and
after sprinkling kerosene over her body, caused burn injuries and
thereby tried to kill her.
Therefore a complaint
with respect to the aforesaid offence was filed against the
respondent with the Varachha Police Station which was registered as
C.R. I. No. 79/2007. Necessary investigation was carried out and
statements of several witnesses were recorded. During the course
of investigation, respondent was arrested and, ultimately,
chargesheet was filed against him before the court of learned JMFC,
Surat.
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.122 of 2007. The trial was initiated against the
respondent. To prove the case against accused, prosecution had
examined thirteen witnesses and produced twelve documentary
evidence and 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 defence, the learned Sessions Judge
acquitted the respondent of all the charges leveled against him by
judgment and order dated 26.6.2008.
Being aggrieved by
and dissatisfied with the aforesaid judgment and order passed by
the Sessions Court the appellant State has preferred the present
appeal
It was contended by
learned APP that the judgment 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.
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
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 trial 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:
?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, 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 ?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 mid 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.??
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.
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 view 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.??
Similar principle has
been laid down by the Apex Court in the Case 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.
It is also a settled
legal provision that in acquittal appeal, the appellate court is
not required to re-write 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.s 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 expressions of
general agreements with the reasons given by the Court the
decision of which is under appeal, will ordinarily suffice.??
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.
We have gone through
the judgment 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.
In para 7 & 8 the
trial court has discussed the evidence in detail and found that
there was serious doubt about the conduct of the Victim. Trial
Court has also found that it was a suicide and not a murder and
nothing is pointed out to take a different view of the matter.
Even otherwise the
Panchnama has also not been proved, and the scene of offence was
also not established.
The Trial Court
while considering the Medical evidence has found that medical
evidence is also not supported the oral evidence. There were
Various contradictions in the statement made by her. In that view
of the matter it will be not appropriate for this Court to take
other view.
6.0 The Sessions
Court has considered the evidence in
depth in para
8-10 and has come to a conclusion that no
case is made
out against the present accused. Thus, from
the evidence
itself it is established that the prosecution
has not proved
its case beyond reasonable doubt.
Mr. Kodekar learned
APP is not in a position to show any evidence to take a contrary
view of the matter or that the approach of a 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.
In the above view
of the matter, we are of the considered opinion that the trial
court was completely justified in acquitting the respondent of the
charges leveled against him.
We find that the
findings recorded by the trial court are absolutely just and proper
and in recording the said finding, 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.
(K.S.Jhaveri,J.)
(Z.K.Saiyed,J.)
*Himanshu/-
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