State of Gujarat vs Ali Daud Majothi and Others

Z.K. Saiyed, J.—The appellant-State of Gujarat, has preferred this Appeal u/s 378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 06th March 1993 passed by the learned Assistant Sessions Judge, Jamnagar in Sessions Case No. 55 of 1989, whereby the learned Judge has acquitted the respondents-accused of the charges levelled against them.

The short facts of the prosecution case is that on 28th July 1989 the Head Constable Indasinh Jethwa was In-charge Police Station Officer of Police Station from 20:00 hours. At that time, at 20:10 hours, Medical Officer of Khambhaliya Samuhik Arogya Kendra telephoned him and told that Savtara Manji Karshan, residing at Belavadi, Khambhaliya, was beaten. It is also the case of the prosecution that the said fact was noted in the Station Diary. It is the case of the prosecution that at that point of time, father of injured Manji Karshan came in the police station to lodge the complaint. As per the case of Karshan Rana, father of injured Manji Rana, on 28th July 1989 in the evening at 19:00 hours, he along with his one son and wife, was at home. His other son is out to feed the cattle and his third son was in the field. It is also the case of the prosecution that at that time, buffalos came in the field, Manji went to Dawood Ali to ask him to take his buffalos from his field. Hearing this, three sons of Dawood Ali abused Manji. The Youngest son of Dawood Ali gave an axe blow on the head of Manji. When Manji shouted why he was beaten, they ran away. It is also the case of the prosecution that when father of Manji and Madhavji went there, Manji was bleeding and told that younger brother of Abla had given him axe blow. Manji was taken to hospital for necessary treatment and thereafter, Karshan Rana, father of Manji, went to police station to lodge complaint. Therefore, for the said offences, the complainant had filed the complainant against the accused. The accused were charge-sheeted in the court of learned Judicial Magistrate, Jamnagar.

Thereafter the trial was conducted before the learned Magistrate. To prove the case of the prosecution, prosecution has produced oral as well as documentary evidence. After considering the oral as well as documentary evidence, the learned Judge has acquitted the respondents-accused from the charges alleged against them by the judgment and order dated 06th March 1993.

Being aggrieved and dissatisfied with the said judgment and order dated 06th March 1993 passed by the learned Assistant Sessions Judge, Jamnagar in Sessions Case No. 55 of 1989, the appellant-State of Gujarat, has preferred the above mentioned Criminal Appeal.

I have heard Mr. M.G. Nanavati, learned Additional Public Prosecutor, appearing on behalf of the appellant-State and learned advocate, appearing on behalf of respondents-accused. I have also gone through the papers and the judgment and order passed by the Trial Court.

Mr. M.G. Nanavati, learned Additional Public Prosecutor for the appellant, has taken me through the evidence of prosecution witnesses and the documentary evidence and submitted that from the above evidence it is established that the prosecution has successfully proved its case beyond reasonable doubt. He has contended that the witnesses have supported the case of the prosecution and the learned Magistrate has committed grave error in disbelieving and discarding the evidence of witnesses. He has contended that the injured witness Manjibhai has clearly identified the accused. He has also contended that evidence of eye-witness gets corroboration from the medical evidence. He, therefore, contended that the judgment and order passed by the learned Magistrate is without appreciating the facts and evidence on record.

Learned advocate for the respondents-accused has supported the judgment and order of the Trial Court and contended that the prosecution has failed to establish prima-facie case against the accused.

I have gone through the judgment of the Trial Court. I have also perused the reasons assigned by the learned Magistrate.

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 and Another, 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:

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.

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 and 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:

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 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 cases of State of Uttar Pradesh v. Ram Veer Singh and Ors. reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs v. 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 position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, 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 Alias Vemareddy and Another,

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.

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 before the Trial Court and also considered the submissions made by learned Advocate for the appellant.

The Trial Court has, after appreciating the oral as well as documentary evidence, found that prosecution has failed to examine important witnesses in the matter. It is also observed that as the complainant and his wife are the interested witnesses and their statement cannot be taken into consideration. It is also observed that there are contradictions in the statements given by the complainant and his wife. It is also observed that in original F.I.R., name of original accused No. 1, who gave an axe blow, was not mentioned. It is also observed that since the incident in question is taken place at 19:00 hours in monsoon season and since the complainant and his wife are aged about 62 and 52 years respectively, it cannot be assumed that complainant and his wife identified the accused persons. To identify the accused, no Identification Parade was held. It is also observed that the prosecution has also failed to examine independent witnesses. From the evidence, the Trial Court has observed that the complainant and his wife were unable to identify the accused persons. Though the complainant and Dawood Ali were neighbours, the complainant was not having any knowledge about the family members of Dawood Ali. The complainant also did not know names of Dawood Ali''s sons. The Trial Court has also observed that there are serious lacunae in the oral as well as documentary evidence of prosecution. Nothing is produced on record of this appeal to rebut the concrete findings of the Trial Court.

Thus, the appellant could not bring home the charges against the respondents-accused in the present appeal. The prosecution has miserably failed to prove the case against the respondents-accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.

Learned Additional Public Prosecutor is not in a position to show any evidence to take a contrary view in 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.

In above view of the matter, I am of the considered opinion that the Trial Court was completely justified in acquitting the respondents-accused of the charges levelled against them. 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.

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. Record and Proceedings to be sent back to the Trial Court, forthwith. Bail bonds, if any, shall stands cancelled.