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Judgment
K.S. Jhaveri, J.—The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 16/10/2008 passed by the learned Additional Sessions Judge, Fast Track Court, Navsari in Sessions Case No. 40 of 2008 whereby the accused was acquitted of the charges leveled against him.
The brief facts of the prosecution case are as under:
2.1. Complainant Lataben, wife of Kailashbhai Gondubhai Bhoye was residing with her family at Gadhavi village, and doing labour work and her husband is doing service in Forest Department as Rojamdar. The complainant is having two sons and one daughter. On 11/6/2008 at about 8:00 hours, in the morning, one phone call was received from complainant''s mother and asked the complainant to bring seeds of Vas and Kand. Therefore, on that day, at about 9:00 hours, in the morning, the complainant went to Gundvahal village by jeep car and she was waiting for bus on the way to Saputara. At that time at about 4:00 hours, in the evening, the accused Kiranbhai Ulasbhai Pavar, residing at village Gadhavi came there and offered lift and complainant went with the accused on his motorcycle. At about 6:00 o'' clock in the evening, the accused went to Surgana village road instead of Gundvahal village. The accused forcefully taken her with him and also threatened her that she would be killed if she shouted and stopped his bike at Manmodi village near the bank of river. Then, accused forcefully dragged her and committed sexual intercourse against her will and consent. Thereafter, the complainant informed about the incident to her husband and brother-in-law. Pursuant to that, complaint was filed before Saputara Police Station being CR No. I-19 of 2008 for the offences punishable u/s 376 and 506(2) of the Indian Penal Code.
2.2. Necessary investigation was carried out and statements of witnesses were recorded. Ultimately, chargesheet was filed against the respondent before the court of learned JMFC, Navsari.
2.3. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Court of learned Additional Sessions Judge, FTC, Navsari u/s 209 of Criminal Procedure Code. The case was numbered as Sessions Case No. 40 of 2008. The trial was initiated against the respondent-accused.
2.4. To prove the guilt against the accused the prosecution has examined the following witnesses:
[1] Dr. Sureshbhai Chhanabhai Pavar (Medical Officer) who examined the accused - Exh.-5
[2] Devrambhai Ziparbhai Pavar - Exh.-8
[3] Manubhai Kalubhai Pavar - Exh.10
[4] Gamjyabhai Robtubhai Pavar - Exh.-11
[5] Jayvantbhai Masubhai Pavar - Exh.-13
[6] Dr. Ajaykumar Jaykishorbhai Thakur (Medical Officer who examined the applicant-convict) - Exh.-14
[7] Bansyabhai Bhavdubhai Dalvi - Exh.-17
[8] Lataben Kailashbhai Bhoye (convict) - Exh.-19
[9] Saileshbhai Devidasbhai Gavit- Exh.-23
[10] Devrambhai Bayajibhai Gavali - Exh.-24
[11] Rakhamben Devrambhai Gavali - Exh.-25
[12] Kailashbhai Gondubhai Bhoye - Exh.-26
[13] Rajubhai Sahebrav Chaudhary - Exh.-27
[14] Arjunbhai Tulsiram Borse - Exh.-28
[15] Balubhai Poslabhai Chaudhary - Exh.29
2.5. In order to support the case, the prosecution has produced the following documents:
[1] Medical certificate of accused - Exh.-6
[2] Police Yadi - Exh.-7
[3] Panchnama of body of accused - Exh.-9
[4] Panchnama of cloths and muddamal of accused - Exh.-12
[5] Medical certificate of convict - Exh.-15
[6] Police yadi - Exh.-16
[7] Panchnama of cloths of complainant - Exh.-18
[8] Original complaint - Exh.-20
[9] Panchnama of place of offence - Exh.-22
[10] Sending note - Exh.30
[11] Sending note of doctor about Visera - Exh.-31
[12] Receipt of Muddamal received - Exh.-32
[13] FSL Report - Exh.-33
[14] Serological Report - Exh.34
2.6. 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 Additional Sessions Judge acquitted the respondent of all the charges leveled against him by judgement and order dated 16/10/2008.
2.7. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Additional Sessions Court, FTC, Navasari, the appellant-State has preferred the present appeal.
Though served, the respondent-accused has not remained present.
Mr. H.L. Jani, learned APP contended that the judgement and order of the Additional Sessions Court is against the provisions of law; the Sessions 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. He submitted that the prosecution witness had clearly deposed in his deposition that the respondent-accused was found committing offence u/s 376 and 506(2) of the Indian Penal Code. He further submitted that there was no reason for the Sessions Judge to disbelieve the prosecution case and to acquit the respondent-accused.
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.
5.1. 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.
5.2. 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.
5.3. 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.
5.4. 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 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.
5.5. 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.
5.6. 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 judgement 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.
6.1. While appreciating the oral as well as documentary evidence, the Trial Court has found that there are contradiction in the version of prosecution witness and from the record, it seems that victim has voluntarily gone with the accused and she is more than 18 years. Therefore, no offence is made u/s 376 of the Indian Penal Code. The prosecution has failed to establish the case against the respondent-accused. Therefore, we do not find any reason to interfere with the said finding.
6.2. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Mr. Jani, 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 respondent-accused of the charges leveled against him. 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 the appeal is hereby dismissed. Record and Proceedings to be sent back forthwith.