State of Gujarat vs Chandubhai Ranchhodbhai Gajera

Z.K. Saiyed, J.—The present appeal, u/s 378(1)(3) of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 13.03.2003 passed by the learned Judicial Magistrate, First Class, Junagadh, in Criminal Case No. 3579 of 1997, whereby the respondent - accused has been acquitted of the charges leveled against him.

The brief facts of the prosecution case are that on 4.6.1997 in the morning when the complainant was alone in her house the accused (respondent herein) came and made some illegal demand which was refused by the complainant. Thereafter, as the husband of the complainant was out of station from the previous day the complainant was alone at her house, at about 11.00 hours the accused came and took the complainant in his arm and demanded for sexual intercourse. However, the complainant escaped from the grip of accused. It is alleged that at that time the husband of the complainant came and intervened. The accused started beating the husband of the complainant and thereafter, after giving threats, he went away. Thereafter, the complaint for the offences under Sections 354, 448, 323 of I.P.C. Code has been lodged against the accused - respondent with Mendarda Police Station.

Thereafter, necessary investigation was carried out and statements of witnesses were recorded. During the course of investigation, respondent was arrested and, ultimately, charge-sheet was filed against him before the court and thereafter the trial was initiated against the respondent.

To prove the case against the present accused, the prosecution has examined the witnesses and also produced documentary evidence.

At the end of trial, after recording the statement of the accused u/s 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Magistrate acquitted the respondents - accused of all the charges leveled against them by judgment and order dated 13.03.2003.

Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court the appellant State has preferred present appeal.

Heard learned P.P. Mr. Jani, appearing on behalf of the appellant - State It has been contended by learned PP 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 PP has also taken this Court through the oral as well as the entire documentary evidence. Learned PP has also taken this Court through the entire oral as well as 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 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.

Further, in the case of Chandrappa and Others Vs. State of Karnataka, the Apex Court laid down the following principles:

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.

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, more particularly in para 16 of the said decision.

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 AIR 2007 SCW 5553 and in Girja Prasad (Dead) by LRs v. state of MP reported in AIR 2007 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 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 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 by the trial court and also considered the submissions made by learned PP for the appellant-State. From the deposition of the complainant it appears that the complainant has narrated different facts which is not stated in her complaint (Exh. 23). The alleged incident has occurred in a day time, but no neighbour or independent witness is examined by the prosecution.

The trial Court, after appreciating the oral as well as documentary evidence has found that in Medical Certificate (Exh.35) there is no mention about the injuries sustained by the witness. The trial Court also found that there is contradiction in the evidence of injured witness and the Medical Certificate. The trial Court has also found that the panch witness has not supported the case of prosecution and he was declared hostile. The trial Court has also found that no further statement of the complainant was recorded by the Police. The trial Court has also observed that the place of complainant where the alleged incident has occurred is on the road, but, the prosecution has not examined any neighbour as an independent witness to support its case. The trial Court has also found from the record that the complainant and her husband are going to do labour work at the place of accused and the accused is not paying money to them towards labour work. However, no notice for demanding their dues is issued to the accused or no witness has been examined to support the say of complainant. The trial Court has also found that there are serious lacunae in the evidence of witnesses. Nothing is produced on record to rebut the concert e findings of the trial Court.

Learned PP 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.

In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him.

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. The Judgment and order dated 13.03.2003 passed by the learned Magistrate, in Criminal Case No. 3579 of 1997 is hereby conformed. Bail bonds, if any, shall stand cancelled.