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CR.A/352/2009 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 352 of 2009
===============================================
STATE
OF GUJARAT - Appellant(s)
Versus
JUVANSINH
JILUBHA VAGHELA & 2 - Opponent(s)
===============================================
Appearance :
MR. DC SEJPAL
APP for Appellant(s) : 1,
None for
Opponent(s) : 1 - 3.
===============================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 12/05/2009
ORAL
ORDER
(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
06.12.2008 passed by the learned Special Judge, Gandhidham-Kutchch in
Special Case No.39 of 2006 whereby the accused were acquitted of the
charges leveled against them.
2.0 The
brief facts of the prosecution case are as under:
2.1 On
05.03.2006 at about 20.00 hrs., at Village: Gedi while complainant
Bhoja Joga was sitting at the chawk of Pirna Otlavala for watching
play the respondents-accused came there and told him Ahithi Uthi
Jav Amare Ahi Besvu Chhe. . The respondents-accused also gave
filthy abuses to the complainant against her mother and sister and
also against his Caste. The respondent-accused Jivubhai inflicted
Dhariya blow on him and caused injuries to him. Thus the
respondents-accused with the abettment of each other had quarreled
with the complainant and other witnesses. Therefore, a complaint was
lodged befreo Rapar Police Station, and same is registered as
I-C.R.No. 22 of 2006 against the accused for the offence punishable
under Sections 323,324 and 504 of the Indian Penal Code read with
Section 3(1)(10) of the Schedule Caste and Schedule Tribe (Prevention
of Atrocity) Act, 1989 (hereinafter referred to as the ‘Atrocity
Act’).
2.2 Necessary
investigation was carried out and statements of witnesses were
recorded. Ultimately, chargesheet was filed against the respondents
before the court of learned Judicial Magistrate First Class, Rapar.
2.3 Thereafter,
as the case was exclusively triable by the Sessions Court, the
same was committed to the Court of learned Special Judge,
Gandhidham-Kutchch under section 209 of Cr.P.C. The case was numbered
as Special Case No. 39 of 2006. The trial was initiated against the
respondents.
2.4 To
prove the guilt against the accused the prosecution has examined the
following witnesses:
P.W.1
Nagabhai Raghabhai Harijan Exh.16
P.W.2
Pachan Aanadabhai Parmar-Exh. 18
P.W.3 Hari
Jakhara Manka-Exh. 19
P.W.4 Vardhaji
Ravatji Luhar- Exh. 31
P.W.5 Dipak
Revashankar Sharma-Exh. 32
P.W.
6 Anilkumar Jentilal Joshi-Exh. 34
P.W.7 Dr.
Jonwal Chhoteram Chhangaram-Exh. 39
P.W.8 Jayantilal
Shantilal Parmar- Exh. 41
P.W.
9 Bhoja Joga-Exh.43
P.W.10 Khimji
Meghji Chauhan-Exh. 47
P.W.
11 Mohan Hajabhai Parmar-Exh. 50
P.W.12 Devshi
Haribhai Parmar-Exh. 51
P.W.13 Naransinh
Mansinh Barad-Exh. 53
2.5 In
order to support the case, the prosecution has produced the following
documents:
[1] Complaint
Exh.33
[2] Panchnama
of the place of incident Exh.17
[3] Arrest
Panchnama Exh.20
[4] Telephone
Message Exh.34
[5] Medical
Certificate Exh.40
[6] Caste
certificate-Exh.83
2.6 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 Special Judge acquitted the
respondents of all the charges leveled against them by judgement and
order dated 06.12.2008.
2.7 Being
aggrieved by and dissatisfied with the aforesaid judgement and order
passed by the learned Special Judge the appellant State has preferred
the present appeal.
3.0 Mr.
D.C. Sejpal, learned APP contended that the judgement and order of
the Special Judge is against the provisions of law; the Special Judge
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.
3.1 Learned
APP has also taken this court through the oral as well as the entire
documentary evidence. He submitted that the complainant and
prosecution witnesses were beaten and they were also given filthy
abuses against their caste. Prosecution Witness No.12 Devshi Haribhai
Parmar at Exh.51 has fully supported the case of the prosecution as
narrated by the complainant in the complaint. He deposed that there
was quarrel between the complainant and the respondents-accused. The
complainant and Mohan Hajabhai Parmar were given Dhariya blow. They
were taken to Rambaug Hospital for treatment. There were eight
stitches in the head of the complainant. Learned APP further
submitted that there was no reason for the learned Judge to
disbelieve the prosecution case and to acquit the respondents.
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 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:
&
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
Advocate for the appellant.
5.1 The
trial court after appreciation of the evidence found that the
Prosecution Witness No. 11-Mohan Hajabhai Parmar did not support the
case of the prosecution. In his cross-examination he stated that
there was no occurrence of incident in his presence. Thus the
statement of above mentioned witness is not trustworthy. Prosecution
Witness No. 12-Devshi Haribhai Parmar at Exh. 51 in his
cross-examination deposed that blow was not given to the complainant.
It is also not true that respondents-accused were not given any
filthy abuses. There is contradiction in the deposition of
complainant and Devshibhai regarding the time of play. Prosecution
Witness No.2 Panchan Aanandbhai Parmar at Exh.18, Prosecution Witness
No.3-Hari Jakhara Manka at Exh. 19 and Prosecution Witness No.
4-Vardhaji Ravtaji Luhar at Exh. 31 are the panch witnesses but they
did not support the panchnama. They had only admitted their
signatures in the panchnama. The also deposed that panchnama was not
prepared in their presence. The trial Court also found that no
independent witnesses were examined.
5.2 In
this fact situation the Special Court has found that there are
serious lacuna and contradictions in the prosecution case and the
prosecution has failed to establish the case against the respondents.
Therefore the trial court has given the benefit of doubt to the
accused and we do not find any reason to interfere with the said
finding.
5.3 Thus,
from the evidence itself it is established that the prosecution has
not proved its case beyond reasonable doubt. Mr.Sejpal, 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 them.
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.
9.0 Record
and Proceedings to be sent back to the trial Court.
(K.S.
JHAVERI, J.) (Z.K.SAIYED, J.)
niru*
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