State of Gujarat vs Harsurbhai R. Kathi and Another

Z.K. Saiyed, J.—The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgement and order of acquittal dated 25/1/1994 passed by the learned Chief Judicial Magistrate, Amreli in Criminal Case No. 1117 of 1991 whereby the accused were acquitted of the charges leveled against them.

The brief facts of the prosecution case are as under:

2.1. In the present case, on 31/5/1991 when complainant Madhubhai Sukhabhai with witness Merubhai Mohanbhai went to accused persons for taking bullocks as per commitment, accused persons have not given them bullocks and suggested them that they have demanded money of bullocks from complainant''s brother and therefore they can compensate accordingly and thereby abused them and beaten them with Axe and threatened them to kill them and thereby committed offence punishable under Sections 324, 323, 504, 506(2) and 114 of the Indian Penal Code. Therefore the complainant has filed complaint against the accused persons before the Jesingpura Police Station, District-Amreli. Necessary investigation was carried out and statements of witnesses were recorded. Ultimately charge sheet was filed before the learned Chief Judicial Magistrate, Amreli against the accused persons which was numbered as Criminal Case No. 1117 of 1991. The trial was initiated against the accused persons accordingly.

2.2. To prove the guilt against the accused persons the prosecution has examined thirteen witnesses and in order to support the case, the prosecution has produced several documentary evidences.

2.3. At the end of trial, after recording the statement of the accused person u/s 313 of the Criminal Procedure Code and after hearing arguments on behalf of prosecution and the defence, the learned Chief Judicial Magistrate has acquitted the accused of all the charges leveled against them by judgement and order dated 25/1/1994 which is impugned in the present appeal.

I have heard learned APP Mr. A.J. Desai on behalf of the appellant-State. I have gone through the papers of the case and also the judgment and order of the Trial Court. It is contended by the learned APP that the judgment and order of the learned Chief Judicial Magistrate is not proper, legal and it is erroneous. He has also contended that the judgment impugned 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, it is established that the prosecution has proved all the ingredients of the evidence against the present respondents-accused. Learned APP has also taken this Court through the oral as well as the entire documentary evidence. He submitted that from the complaint and judgment of the Trial Court, it is clearly established that the accused persons were found committing offence punishable under Sections 324, 323, 504, 506(2) and 114 of the Indian Penal Code. He further submitted that there was no reason for the learned Chief Judicial Magistrate to disbelieve the prosecution case and to acquit the accused persons.

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 judgement 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, 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.

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 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 judgement 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 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.

4.5. It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgement 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.

I have gone through the judgement and order passed by the Chief Judicial Magistrate, Amreli. I 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.

5.1. The entire prosecution case rests on prosecution witnesses and oral as well as documentary evidences. From the charge it appears that against present respondents-accused the charge was framed for the offence punishable under Sections 324, 323, 504, 506(2) read with Section 114 of the Indian Penal Code. It is the duty of the prosecution to prove the case through oral as well as documentary evidences but in the present case no doubt the prosecution has examined thirteen witnesses but from the perusal of the oral evidences of these witnesses no case is made out against the respondents-accused. Therefore I have not found any reason to interfere with the matter. The prosecution has failed to prove the case against the present accused persons. Even from the oral evidence of the defence witness concerned, it was proved beyond reasonable doubt before the learned Chief Judicial Magistrate that the accused have not committed offence punishable as alleged against them and therefore it appears that there is serious lacuna in the prosecution case and the prosecution has failed to establish the case against the accused persons. Therefore the Trial Court has acquitted the accused persons and I do not find any reason to interfere with the said finding of the Trial.

5.2. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. 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.

In the above view of the matter, I am of the considered opinion that the Trial Court was completely justified in acquitting the accused persons of the charges leveled 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.