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Judgment
K.J. Thaker, J.—The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 16.4.1993 passed by the learned Addl. Sessions Judge, Nadiad in Sessions Case No. 184/1991, whereby the accused have been acquitted of the charges leveled against them. The brief facts of the prosecution case are as under:
1.1 That on 10.6.1991, at about 3.00 am to 3.30 am in the early morning, the respondents have entered the house of complainant and kidnapped Thakorbhai Fakirbhai - husband of complainant and tied him with tree. Thereafter, the accused No. 1 had given blow of wooden log on the head of the deceased, accused No. 2 and 3 had given stick blow and accused No. 4 had given pipe blows and thereby committed murder of deceased Thakorbhai Fakirbhai.
1.2 Therefore, a complaint with respect to the aforesaid offence was filed against the respondents with the Anklav Police Station. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondents were arrested and, ultimately, charge-sheet was laid against them before the court of learned JMFC, Borsad, which was numbered as Sessions Case No. 184/1991. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 184/1991.
1.3 To prove the case against the present respondents-accused, the prosecution has examined witnesses and also produced documentary evidence.
1.4 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 16.4.1993.
1.5 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the 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 respondents. Learned APP has also taken this court through the oral as well as the entire 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 Border 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 Vs. Sanjay Thakran and Another, 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 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.
Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh and Others, and in Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, 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, 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.
In the case of Lunaram Vs. Bhupat Singh and Others, the Apex Court in para 10 and 11 has held as under:
The High Court has noted that the prosecution version was not clearly believable. Some of the so-called eye witnesses stated that the deceased died because his anke was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the post-mortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.
Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence.
Even in a recent decision of the Apex Court in the case of Mookkiah and Another Vs. State rep. by the Inspector of Police, Tamil Nadu, the Apex Court in para-4 has held as under:
It is not in dispute that the trial Court, on appreciation I of oral and documentary evidence led by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Sec. 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the Court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against the acquittal. [Vide State of Rajasthan Vs. Sohan Lal and Others,
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 are convinced by the submissions made by the learned advocate Mr. Yogendra Thakor appointed by the Legal Aid Service Committee that the judgment and order of acquittal is just and proper and no interference is called for. We are not persuaded by the submissions made by the learned APP Ms Shah that the judgment is perverse and requires interference. There is no overt-act of accused No. 2 and 3 and accused No. 3 at young age has suffered paralysis. Accused No. 2 is present before this court and has conveyed orally that accused No. 3 is not present because he has suffered paralysis and he is present because of the order dated 7.10.2013 passed by this Court.
We have gone through the judgment and order of acquittal 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 APP for the appellant-State. The learned trial Judge has categorically held that there is no independent eye witnesses. Though the police has recorded the statements of neighbours namely Gajraben, Punjiben and Chandubhai Shanabhai but they have not been examined by the prosecution. No error in the said decision is pointed out by the learned APP and we are convinced that the impugned judgment and order of acquittal is just and proper. There was no overt act on the part of the respondents and therefore, it cannot be said that there was any common object to do away with the deceased and, therefore, no case is made out against the respondents and the acquittal recorded by the learned trial Judge cannot be interfered with. The trial court while considering the oral as well as documentary evidence has clearly observed that there is no any evidence to convict the respondents. The prosecution has miserably failed to prove the case against the accused beyond any reasonable doubt. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
Ms. C.M. Shah 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 u/s 302 IPC 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. Hence, this appeal requires to be dismissed. In the result, this appeal is dismissed. The impugned judgment and order of acquittal dated 16.4.1993 passed by the learned Addl. Sessions Judge, Nadiad in Sessions Case No. 184/1991, is confirmed. The bail and bail bonds are cancelled.
R & P to be sent back to the trial Court, forthwith.