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CR.A/2081/2004 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2081 of 2004
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 ?
=========================================
STATE
OF GUJARAT
Versus
DIPAKBHAI
NARESHBHAI PATEL & 3
=========================================
Appearance
:
MR AJ DESAI ADDL. PUBLIC
PROSECUTOR for Appellant
MR MC BAROT for Respondent Nos. 1 - 4.
MR
TEJAS M BAROT for Respondent Nos. 1 -
4.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 18/02/2010
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
19.08.2004 passed by the learned 3rd Joint Judicial
Magistrate, First Class, Anand, in Criminal Case No.4069 of 1999,
whereby the accused has been acquitted of the charges leveled against
them.
[2] The
brief facts of the prosecution case are that at about 10.30 hours on
07.06.1999, the accused had constructed a wall opposite the house of
the complainant and witness No.7. At that time the witness Nos.9, 10
and 11 and the complainant have asked the accused as to why they
constructed a wall in their premises. Thereupon, the accused No.1 had
given abuses and the accused No.2, 3 and 4 were called by the accused
No.1. The accused No.2, 3 and 4 had come with the sticks and the
accused No.1 had instigated the accused No.2, 3 and 4 to kill the
complainant. The accused No.1 had thrown the bricks due to which the
witness No.10 Kokilaben was injured. The accused No.2, 3 and 4 had
beaten the complainant and the witness No.9, 10 and 11 by giving
blows of sticks, the left hand of witness No.9 was injured. The
accused No.3 and 4 had given a kick and fist blows on hands and legs
of the witness No.10. Due to which, the injury had been caused on
right leg and left hand of witness No.10. The accused No.2, 3 and 4
had given stick blows on complainant and witnesses on the back and
the accused No.1, 2 and 4 had given the abuses to the complainant and
threatened to kill and thus, the accused have committed the offences
punishable under Sections 325, 337, 323, 504, 506(2) and 114 of the
Indian Penal Code.
[3] Therefore,
a complaint with respect to the aforesaid offence was filed against
the respondents with the Vidhyanagar Police Station, District: Anand
which was registered as C.R. I No. 81/1999. 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 him before the court of
learned Judicial Magistrate, First Class, Anand.
[4] To
prove the case against the present accused, the prosecution has
examined, in all nine witnesses and also produced documentary
evidence.
[5] 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 Judge acquitted the
respondents of all the charges leveled against him by judgment and
order dated 19.08.2004.
[6] Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the trial Court the appellant State has preferred the
present appeal.
[7] It
was contended by Mr.A. J. Desai, learned APP that the judgment and
order of the trial Court is against the provisions of law; the trial
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 offence
against the present respondents. Learned APP was contended that the
trial Court has committed an error in coming to the conclusion that
the prosecution has not proved the offences punishable under Sections
325, 337, 323, 504, 506(2) and 114 of the Indian Penal Code and,
therefore, the prosecution has failed in proving the charges leveled
against the acucsed. Learned APP has also taken this court through
the oral as well as the entire documentary evidence.
[8] 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
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 court below.
[9] 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.
[10] 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.
[11] 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 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.
[12] 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.
[13] It
is also a settled legal position 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 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.
[14] 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.
[15] 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 APP
for the appellant-State. The trial court has clearly recorded a
finding that Kokilaben and Navinbhai who are the the main witnesses
are not examined by the prosecution. Even the Medical Officer, who
examined the injured persons, is also not examined by the
prosecution. Thus, from the evidence itself it is established that
the prosecution has not proved its case beyond reasonable doubt.
[16] Mr.A.
J. Desai, 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.
[17] 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.
[18] 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.
[19] I,
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 bonds, if any, stands cancelled. In
case, R & P is received by this Court, Registry to transmit back
to the trial Court, immediately.
[
Z. K. SAIYED,J. ]
(vijay)
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