State of Gujarat vs Induben and Another

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 31.12.1999 passed by the learned Judicial Magistrate, First Class, Vadodara in Criminal Case No. 2190 of 1989, whereby the accused have been acquitted from the charges leveled against them.

The brief facts of the prosecution case are as under:

2.1 As per the case of the complainant, there were five tenants residing in his house and out of those five, one was accused No. 1. The accused No. 1 was paying Rs.350/- towards the rent to the complainant. On 13.7.1989, the complainant was at his house and at that time, the accused No. 1 along with accused No. 2 came there and told that they will not pay any rent or arrears for the same. Therefore, some altercation took place and the accused person had beaten the complainant and due to beating up the complainant, some injuries caused to the complainant, he had to take medical treatment. Thereafter, the complainant lodged the complainant before the accused persons under Sections 324, 325, 323, 504, 114 of the Indian Penal Code.

2.2 Therefore, a complaint with respect to the aforesaid offence was filed against the respondents with the Vadi Police Station, Vadodara which was registered as C.R.I. No. 224/1989. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondents were arrested and, ultimately, chargesheet was filed against them before the court of learned JMFC. The trial was initiated against the respondents.

2.3 To prove the case against the present accused, the prosecution has examined, in all 5 witnesses and also produced documentary evidence.

2.4 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 trial Judge acquitted the respondents of all the charges leveled against them by judgment and order dated 31.12.1999.

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

It was contended by learned APP 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 evidence against the present respondent. Learned APP has also taken this Court through the oral as well as the entire documentary evidence. She has contended that the learned trial Court has not properly appreciated the evidence on record in true perspective and learned trial Judge has erred in holding that no independent witness has been examined by the prosecution. Even the learned Judge has believed that the complaint has been filed by the complainant at belated stage and also while acquitting the accused, the learned trial Judge has wrongly appreciated the evidence in improper manner. Therefore, the order requires to be quashed and set aside.

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.

4.1 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.

4.2 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.

4.3 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.

4.4 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 APP for the appellant-State.

It appears from the evidence of the complainant Mukeshbhai at Exhibit 21 and wife of the complainant Diptiben at Exhibit 34. One of the witness Ashokbhai Rasiklal, against whom the summons was issued, but he had vacated the house since last so many years. One another witness Pravinbhai Somabhai Patani at Exhibit 65 has been examined before the learned trial Court and he stated that he had no knowledge about the dispute. There no evidence of medical officer before the learned trial Court. There is no any independent witness has been examined before learned trial Court and the witnesses, who have been examined are formal witnesses and interested witnesses. The learned trial Judge has also observed the material aspect that the complaint was lodge on next day and the complainant, if he sustained any injury, firstly he would have to go to the hospital, but he went to the police station for lodging the complaint. Therefore, the learned trial Court has rightly held that there is no evidence against the accused and prosecution has totally failed to prove the case against the accused, therefore, the accused have been acquitted by the learned trial Court. I am in total agreement with the reasons assigned by the learned trial Court and I do not want any interference with the said judgment and order.

Ms. Mini Nair, 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 respondents 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 I find no reasons to interfere with the same. Hence the appeal is hereby dismissed. Bail bond, if any, stands cancelled. Record and proceedings to be sent back to trial Court, forthwith.