State of Gujarat vs Harijan Babu Rana and Another

K.S. Jhaveri, J.—This two appeals arise out of the impugned judgment and order and hence, they are disposed of by this common judgment.

1.1 Criminal Appeal No. 1045 of 2004 is directed against the judgment and order of acquittal dated 26.03.2004 passed by the learned Additional Sessions Judge, 5th Fast Track Court, Junagadh, in Sessions Case No. 22 of 1995, whereby, the accused has been acquitted from the charges leveled against them, whereas, Criminal Appeal No. 1046 of 2004 has been preferred by the State for enhancement of the sentence imposed on respondents-accused for the offence u/s 324, 114 IPC.

The brief facts of the prosecution case are as under:

2.1 On 08.11.1994, at about 2000 hours, while the complainant along with his friends Jaysukhgiri Jivangiri, Jayendrasinh and Nirmalsinh were sitting near the cabin of one Mr. Ramesh Patel situated at the main road, at that time the respondents-accused arrived at the place of occurrence and the complainant reprimanded about the incident of the earlier day. Thereafter another respondent-accused hold caught of the complainant and gave knife blow over the abdomen of the complainant. The respondents-accused thereafter fled the scene of offence.

2.2 Therefore a complaint with respect to the aforesaid offence was filed against the respondents with Keshod Police Station, which was registered as C.R. I-No. 204 of 1994. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, as sufficient material was found against the respondents, they were arrested and, ultimately, charge-sheet was filed against them before the competent Court. As the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court, Junagadh and it was numbered as Sessions Case No. 25 of 1995.

2.3 On production of the respondents, charge was framed but as the accused pleaded not guilty to the charge levelled against them, trial was initiated against the respondents. During the course of trial, the prosecution has examined fifteen witnesses viz. PW-1 Dr. Dineshkumar Mohanlal Dadhaniya at Exhibit-13, PW-2 Devshibhai Mohanbhai at Exhibit-16, PW-3 Bhupendrabhai Haribhai at Exhibit-18, PW-4 Mukeshbhai Maganlal Vyas at Exhibit-20, PW-5 Upendrasinh Chandrasinh at Exhibit-21, PW-6 Rameshbhai Limbabhai at Exhibit-23, PW-7 Jayendrasinh Nirbha Raijada at Exhibit-24, PW-8 Nirmalsinh Vikramsinh Raijada at Exhibit-25, PW-9 Dr. Jayantilal Joshi at Exhibit-27, PW-10 Hirjibhai Sagar at Exhibit-30, PW-11 Sureshbhai Thumar at Exhibit-32, PW-12 Bhikubhai Nazbhai at Exhibit-33, PW-13 Jausukhgiri Jivangiri at Exhibit-38, PW-14 Chunilal Ramjibhai Vandarvala at Exhibit-39 and PW-15 Hirjibhai Bodaat at Exhibit-42.

2.4 The prosecution had placed reliance upon several documentary evidence, more particularly, the panchnama at Exhibits-17, 19 & 31, the complaint at Exhibit-22, FIR of CR No. 203 of 1994 at Exhibit-34, FSL report at Exhibit-47, At the end of trial and after recording the statement of the accused u/s 313 of Cr.P.C., the learned Sessions Judge acquitted the respondents of all the charges leveled against them, by impugned judgment and order dated 26.03.2004.

2.4 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant - State has preferred the present appeal.

It was contended by learned APP that the judgment and order of the Court below is against the provisions of law; the Court below has not properly considered the evidence led by the prosecution and that looking to the provisions of law itself, it is established that the prosecution has proved the ingredients of the offence against the present respondents. Learned APP has also taken this Court through the oral as well as the documentary evidence available on record.

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.

4.1 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, re-appreciate 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 in the case of State of Goa v. Sanjay Thakran and Anr. reported in (2007) 3 S.C.C. 75, the Apex 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 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 v. Ram Veer Singh and Ors. reported in AIR 2007 S.C.W. 5553 and in Girja Prasad (Dead) by LRs v. State of M.P. reported in AIR 2007 S.C.W. 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 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, wherein, it is held as under;

This Court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, 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.

We have gone through the judgment 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. The trial Court has recorded a finding that the accused person out of a sudden provocation gave the knife blow and that the injuries caused to the complainant are not following within the purview of the Sections 319 and 320 IPC. In other words the injuries caused are not in the category of grievous hurt. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.

5.1 Mr. Kodekar, 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.

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. 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. 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.

6.1 As stated herein, the prosecution has been able to prove the guilt of the accused beyond reasonable doubt. They are proved guilty of voluntarily causing hurt by dangerous weapon to the complainant and in our opinion, the sentence of imprisonment imposed by the Court below is just and proper. Apart from that the incident is of the year 1994, it is not proper to disturb the situation which is prevailing for almost fifteen years. Thus, we do not find it proper to enhance the same.

In view of the above, the appeals are, accordingly, dismissed. Bail bonds, if any, shall stand cancelled. R & P be sent back to the trial Court concerned forthwith.