{"id":210006,"date":"2010-02-10T00:00:00","date_gmt":"2010-02-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bachubhai-vs-the-on-10-february-2010"},"modified":"2015-07-18T06:12:03","modified_gmt":"2015-07-18T00:42:03","slug":"bachubhai-vs-the-on-10-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bachubhai-vs-the-on-10-february-2010","title":{"rendered":"Bachubhai vs The on 10 February, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Bachubhai vs The on 10 February, 2010<\/div>\n
Author: Z.K.Saiyed,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/731\/2002\t 7\/ 10\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 731 of 2002\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=========================================\n\n\n \n\nBACHUBHAI\nJUMABHAI JAT - Appellant(s)\n \n\nVersus\n \n\nMOHANLAL\nSHANKARLAL PANCHAL (LATE)(AS PER EX.88 PURSIS & 4 - Opponent(s)\n \n\n=========================================\n \nAppearance\n: \nMR\nG RAMAKRISHNAN for Appellant(s) : 1, \nNone for Opponent(s) :\n1, \nNOTICE SERVED BY DS for Opponent(s) : 2 - 4. \nMR BB NAIK for\nOpponent(s) : 2 - 4. \nMR MAULIK NANAVATI ADDITIONAL PUBLIC\nPROSECUTOR for Opponent(s) :\n5, \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE Z.K.SAIYED\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 10\/02\/2010 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
1.\tThe
\npresent appeal, under section 378 of the Code of Criminal Procedure,
\n1973, is directed against the judgment and order of acquittal dated
\n17.4.2002 passed by the learned Judicial Magistrate, First Class,
\nModasa in Criminal Case No.3085 of 1994 (main and allied Criminal
\nCase No.3104 of 1995), whereby the accused have been acquitted from
\nthe charges leveled against them.\n<\/p>\n
2.\tThe
\nbrief facts of the prosecution case are as under:\n<\/p>\n
2.1\tThe
\ncomplainant   Bachubhai Jumabhai Jat had made complaint before the
\nlearned Judicial Magistrate, First Class, Modasa on 12.11.1994 that
\non 8.11.1994, he was on duty as chowkidar, rounding on horse and he
\ntalked with his brother-in-law. At that time, police mobile van came
\nthere just behind the complainant and the constables told that Sir
\nwas calling you i.e. complainant and the complainant went there and
\nthereafter, the complainant was taken in the mobile van to the police
\nstation and the accused had beaten the complainant in cruel manner.
\nThe incident was occurred only on the ground that the accused No.1
\nPolice Officer warned the complainant not to ride on a horseback in
\nfront of the concerned police station and the complainant had defied
\nhis such warning and as result of it, the complainant had faced such
\nirrational and egoistic blare. Therefore, the complaint was lodged
\nagainst the accused for the offences punishable under Section 323 and
\n114 of the Indian Penal Code.\n<\/p>\n
2.2\tTherefore,
\n Criminal Case No.3085 of 1994 with respect to the aforesaid offence
\nwas filed against the respondents   original accused Nos.1 to 3 and
\nsubsequently, Criminal Case No.3104 of 1995 was registered against
\nthe respondent – accused No.4 before the learned Judicial Magistrate,
\nFirst Class, Modasa. The said Criminal Case No.3104 of 1995 was later
\non consolidated with Criminal Case No.3085 of 1994 (main case).
\nNecessary investigation was carried out and statements of several
\nwitnesses were recorded. The trial was initiated against the
\nrespondents.\n<\/p>\n
2.3\tTo
\nprove the case against the present accused, the prosecution has
\nexamined, in all 4 witnesses  and also produced       documentary
\nevidence.\n<\/p>\n
2.4\tAt
\nthe end of trial, after recording the statement of the accused under
\nsection 313 of Cr.P.C.,  and hearing arguments on behalf of
\nprosecution and the defence, the learned trial Court acquitted the
\nrespondents of all the charges leveled against them by judgment and
\norder dated 17.4.2002.\n<\/p>\n
2.5\tBeing
\naggrieved by and dissatisfied with the aforesaid judgment and order
\npassed by the trial Court the appellant has preferred the present
\nappeal.\n<\/p>\n
3.\tIt
\nwas contended by learned counsel Mr. Ramakrishnan that the judgment
\nand order of the learned trial Court is against the provisions of
\nlaw; the learned trial Court has not properly considered the evidence
\nled by the complainant and looking to the provisions of law itself it
\nis established that the complainant has proved the whole ingredients
\nof the evidence against the present respondents. Learned counsel has
\nalso taken this court  through the oral as well  as the entire
\ndocumentary evidence. He has contended that the learned Judge has
\ncaused miscarriage of justice by releasing the accused person on
\nacquittal  on mere assumptions and presumptions and biased approach.
\nHe has also contended that the appellant was tortured by the accused
\npersons for the simple reason not to ride on a horseback.\n<\/p>\n
4.\tAt
\nthe outset it is required to be noted that the principles which would
\ngovern and regulate the hearing of appeal by this Court against an
\norder of acquittal passed by the trial Court have been very
\nsuccinctly explained by the Apex Court in a catena of decisions. In
\nthe case of
\nM.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in
\n(2006)6 SCC, 39,
\nthe Apex Court has narrated about the powers of the High Court in
\nappeal against the order of acquittal. In para 54 of the decision,
\nthe Apex Court has observed as under:\n<\/p>\n
 54.
\n In any event the High Court entertained an appeal treating to be an
\nappeal against acquittal, it was in fact exercising the revisional
\njurisdiction. Even while exercising an appellate power against a
\njudgement of acquittal, the High Court should have borne in mind the
\nwell-settled principles of law that where two view are possible, the
\nappellate court should not interfere with the finding of acquittal
\nrecorded by the court below.\n<\/p>\n
4.1\tFurther,
\nin the case of Chandrappa
\nVs. State of Karnataka, reported in (2007)4 SCC 415
\nthe Apex Court laid down the following
\nprinciples:\n<\/p>\n
 42.\tFrom
\nthe above decisions, in our considered view, the following general
\nprinciples regarding powers of the appellate court while dealing with
\nan appeal against an order of acquittal emerge:\n<\/p>\n
[1]\tAn
\nappellate court has full power to review, reappreciate and reconsider
\nthe evidence upon which the order of acquittal is founded.\n<\/p>\n
[2]\tThe
\nCode of Criminal Procedure, 1973 puts no limitation, restriction or
\ncondition on exercise of such power and an appellate court on the
\nevidence before it may reach its own conclusion, both on questions of
\nfact and of law.\n<\/p>\n
[3]\tVarious
\nexpressions, such as,  substantial and compelling reasons ,  good
\nand sufficient grounds ,  very strong circumstances ,
\n distorted conclusions ,  glaring mistakes , etc. are not
\nintended to curtain extensive powers of an appellate court in an
\nappeal against acquittal. Such phraseologies are more in the nature
\nof  flourishes of language  to emphasis the reluctance of an
\nappellate court to interfere with acquittal than to curtail the power
\nof the court to review the evidence and to come to its own
\nconclusion.\n<\/p>\n
[4]\tAn
\nappellate court, however, must bear in mind that in case of acquittal
\nthere is double presumption in favour of the accused. Firstly, the
\npresumption of innocence is available to him under the fundamental
\nprinciple of criminal jurisprudence that every person shall be
\npresumed to be innocent unless he is proved guilty by a competent
\ncourt of law. Secondly, the accused having secured his acquittal, the
\npresumption of his innocence is further reinforced, reaffirmed and
\nstrengthened by the trial court.\n<\/p>\n
[5]\tIf
\ntwo reasonable conclusions are possible on the basis of the evidence
\non record, the appellate court should not disturb the finding of
\nacquittal recorded by the trial court.\n<\/p>\n
4.2\tThus,
\nit is a settled principle that while exercising appellate power, even
\nif two reasonable conclusions are possible on the basis of the
\nevidence on record, the appellate court should not disturb the
\nfinding  of acquittal recorded by the trial court.\n<\/p>\n
4.3\tEven
\nin a recent decision of the Apex Court in the case of State
\nof Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75,
\nthe  Court has reiterated the powers of the High Court in such cases.
\nIn para 16 of the said decision the Court has observed as under:\n<\/p>\n
 16.\tFrom
\nthe aforesaid decisions, it is apparent that while exercising the
\npowers in appeal against the order of acquittal the Court of appeal
\nwould not ordinarily interfere with the order of acquittal unless the
\napproach of the lower Court is vitiated by some manifest illegality
\nand the conclusion arrived at would not be arrived at by any
\nreasonable person and, therefore, the decision is to be characterized
\nas perverse. Merely because two views are possible, the Court of
\nappeal would not take the view which would upset the judgement
\ndelivered by the  Court below. However, the appellate court has a
\npower to review the evidence if it is of the view that the conclusion
\narrived at by the Court below is perverse and the Court has committed
\na manifest error of law and ignored the material evidence on record.
\nA duty is cast upon the appellate court, in such circumstances, to
\nre-appreciate the evidence to arrive to a just decision on the basis
\nof material placed on record to find out whether any of the accused
\nis connected with the commission of the crime he is charged with.\n<\/p>\n
4.4\tSimilar
\nprinciple has been laid down by the Apex  Court  in the cases of
\nState
\nof Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR
\nSCW 5553
\nand in Girja
\nPrasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589.
\nThus, the powers which this Court may exercise against an order of
\nacquittal are well settled.\n<\/p>\n
4.5\tIt
\nis also a settled legal position that in acquittal appeal, the
\nappellate court is not required to re-write the judgement or to give
\nfresh reasonigns, when the reasons assigned by the Court below are
\nfound to be just and proper. Such principle is laid down by the Apex
\nCourt in the  case of State
\nof Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417
\nwherein it is held as under:\n<\/p>\n
 &
\nThis court
\nhas observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary
\n(1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the
\nappellate court when it agrees with the view of the trial court on
\nthe evidence to repeat the narration of the evidence or to reiterate
\nthe reasons given by the trial court expression of general agreement
\nwith the reasons given by the Court the decision of which is under
\nappeal, will ordinarily suffice.\n<\/p>\n
4.6\tThus,
\nin case the  appellate court agrees with the reasons and the opinion
\ngiven by the lower court, then the discussion of evidence is not
\nnecessary.\n<\/p>\n
5.\tI
\nhave gone through the judgment and order passed by the trial court. I
\nhave also perused the oral as well as documentary evidence led by the
\ntrial court and also considered the submissions made by learned
\ncounsel for the appellant.\n<\/p>\n
6.\tLearned
\ncounsel for the appellant has read the complaint, which was given in
\noral version before the Judicial Officer, Modasa on 12.11.1994 and it
\nwas considered by the Judicial Officer as complaint of criminal
\noffence. On 14.11.1994, process was issued against the present
\nrespondents for the offences punishable under Section 323 and 114 of
\nthe Indian Penal Code. During the trial, the accused No.1   PSI
\nMohanlal Shankarlal Panchal expired and therefore, his name was
\ndeleted. Learned counsel Mr. Ramakrishnan has also read the complaint
\nExhibit 1 and argued that from the contents of the compliant also,
\nthe complainant has proved the case before the learned Judicial
\nMagistrate, First Class, Modasa. He has also read oral evidence of
\nthe complainant and that of the witnesses. He has vehemently argued
\nthat tenderness is shown in medical certificate issued by the medical
\nexpert P.W. 4 – Dr. Jinabhai Amathabhai Yadav and he was examined at
\nExhibit 90 before the learned trial Court. He has admitted before the
\ntrial Court the meaning of tenderness. He has also admitted that no
\nexternal injury was found on the body of the complainant and admitted
\nabout only tenderness. From the facts narrated by the complainant, it
\nappears that he has a horse and he was fond of horse riding. It is
\nadmitted by the Medical Officer that during the horse riding, the
\ninjuries can be possibly caused. Therefore, the defence side has
\nestablished case before the learned trial Court. No doubt that the
\ncomplaint which was recorded by the learned Judicial Magistrate,
\nFirst Class, from the version of the complainant. I do not find any
\nsubstance in the complaint and I am of the opinion that the
\ningredients of Sections 323 and 114 of the Indian Penal Code were
\nalso covered by the oral version of the complainant. Learned Judicial
\nMagistrate has issued process for the offences under Sections 323 and
\n114 of the Indian Penal Code. There is a provision under Section 200
\nof the Code of Criminal Procedure but the learned Judicial
\nMagistrate, First Class was has not followed the said provisions. It
\nis prima facie established on record that the process issued by the
\nlearned Judicial Magistrate, First Class is bad in law. But at this
\nstage, this Court is in total agreement with the reasons assigned by
\nthe learned trial Court. Learned counsel is also unable to say that
\nas to type of error has been committed by the learned Magistrate.
\nTherefore, no question  arises to entertain this appeal. Learned
\ncounsel is unable to show that which provisions of law are followed
\nby the learned Magistrate and even in absence of any witness, such
\nallegations cannot be considered in the eye of law. Even the evidence
\nof the expert is also not helpful to the present appellant. Thus,
\nfrom the evidence itself it is established that the prosecution has
\nnot proved its case beyond reasonable doubt.\n<\/p>\n
7.\tMr.\n<\/p>\n
Ramakrishnan, learned counsel is not in a position to show any
\nevidence to take a contrary view of the matter or that the approach
\nof the trial court is vitiated by some manifest illegality or that
\nthe decision is perverse or that the trial court has ignored the
\nmaterial evidence on record.\n<\/p>\n
8.\tIn
\nthe above view of the matter, I am of the considered opinion that the
\ntrial court was completely justified in acquitting the respondents of
\nthe charges leveled against them.\n<\/p>\n
9.\tI
\nfind that the findings recorded by the trial court are absolutely
\njust and proper and in recording the said findings, no illegality or
\ninfirmity has been committed by it.\n<\/p>\n
10.\tI
\nam, therefore, in complete agreement with the findings, ultimate
\nconclusion and the resultant order of acquittal recorded by the court
\nbelow and hence find no reasons to interfere with the same. Hence the
\nappeal is hereby dismissed. Bail bond, if any, stands cancelled.
\nRecord and proceedings to be sent back to trial Court, forthwith.\n<\/p>\n
(Z.K.\n<\/p>\n
SAIYED, J.)<\/p>\n
ynvyas<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Bachubhai vs The on 10 February, 2010 Author: Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-210006","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nBachubhai vs The on 10 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bachubhai-vs-the-on-10-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bachubhai vs The on 10 February, 2010 - 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