State of Gujarat vs Koli Gordhan Mohan and Others

K.S. Jhaveri, J.—The appellant - State of Gujarat has preferred this Appeal u/s 378 of the Code of Criminal Procedure against the Judgment and order of acquittal dated 30.11.1988 passed by the learned Additional Sessions Judge, Surendranagar, in Sessions Case No. 05 of 1988, whereby the learned Judge has acquitted the respondents - accused of the charges levelled against them.

The short facts of the prosecution case is that the respondents - accused were working in relief work at Sumera lake in the sim of village Kidi in Dhragandhra Taluka of District Surendranagar. It is alleged that there was some sort of quarrel between the accused persons on one hand and the complainant side on the other and due to the said rivalry the police protection was also provided in the village. It is alleged that on 20.9.1987 at 9.00 A.M. the prosecution witnesses came there for settlement of their dispute. At that time the accused took up their guns and fired at the witnesses and as a result of which the witnesses sustained serious injuries and died. Other persons also sustained serious injuries. It is alleged that the accused had formed unlawful assembly with a common object to cause murder of Ghela Punja and Guga Veral and also attempted to commit murder of prosecution witnesses. Thereafter the complaint was lodged before the Police against the accused. The offence was registered against the accused.

Thereafter, investigation was carried out and on conclusion of investigation, on the basis of material collected against the respondents - accused, since the Investigating Officer found prima facie case against the respondents - accused, he filed charge sheet before the Court of learned Magistrate. As the offences were absolutely triable by a Court of Sessions, the learned Magistrate, has committed the said case to the Court of Sessions, which was registered as Sessions Case No. 05 of 1988.

Thereafter, the charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.

To prove the case against the accused the prosecution has examined the witnesses and relied upon several documents.

After appreciating the documentary as well as oral evidence the learned Additional Sessions Judge, Surendranagar, has vide Judgment and order dated 30.11.1988, acquitted the respondents - accused from the charges levelled against them.

Being aggrieved and dissatisfied with the said Judgment and order dated 30.11.1988 passed by the learned Additional Sessions Judge, Surendranagar, in Sessions case No. 05 of 1988, the appellant - State of Gujarat has preferred the above mentioned Criminal Appeal.

We have heard learned A.P.P. Mrs. Manisha Lavkumar Shah, appearing on behalf of appellant - State of Gujarat and learned Counsel Mr. Anandjiwala, appearing on behalf of respondents - accused. We have also gone through the papers and the Judgment and order passed by the trial Court.

Learned A.P.P. Mrs. Manisha Lavkumar Shah, for the appellant - State has taken us through the evidence of prosecution witnesses and the documentary evidence and submitted that from the above evidence it is established that the prosecution has successfully proved its case beyond reasonable doubt. She has contended that the witnesses have supported the case of the prosecution and the learned Judge has committed grave error in disbelieving and discarding the evidence of witnesses. She also contended that the learned Judge has not properly appreciated the overall facts and circumstances of the case and also the evidence available on the record of the case which is sufficient to prove that the respondent has committed the offence as alleged against him. She, therefore, contended that the Judgment and order passed by the learned Judge is without appreciating the facts and evidence on record.

Learned Counsel Mr. Anandjiwala has supported the Judgment and order of acquittal passed by the trial Court. He contended that the learned Judge has properly considered the facts and circumstances of the case and, therefore, the Appeal filed by the State requires to be dismissed.

We have gone through the Judgment of the trial Court. We have also perused the reasons assigned by the learned Sessions Judge.

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.

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 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.

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 M.P. reported in AIR 2007 SCW 5589. 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 reasoning, 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.

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 before the trial court and also considered the submissions made by learned Advocate for the appellant.

The trial court has, after appreciating the oral as well as documentary evidence, has observed in Para - 96 & 97, as under:

Para - 96 In aforesaid fact and circumstances, it is not believable that the prosecution witnesses did not possess weapons and consequently, when they rushed with their weapons towards the accused persons and when the accused persons left on the spot of their work and tried to run away on northern side of lake and even then the prosecution witnesses chased them and they could overtake them at a distance of 150'' then that story appears to be probable in view of the fact that the incident has admittedly taken place at that spot, which is at about 150'' from the place where relief work was going on.

Para - 97 - In view of aforesaid position, it appears to be probable that the prosecution witnesses had started quarrel and they actually rushed to the accused persons with their weapons. In that case, it appears to be probable that when the accused persons tried to run away but could not chase the prosecution witnesses overtook them at distance of 150'' there was no alternative for the accused persons but to defend themselves. It is a fact that three of the accused persons had sustained injuries. As against this, six persons have sustained injury from the prosecution side. Looking to the fact that the accused persons had not alternative but to defend themsevles. It is probable that they fired and also dealt some injuries on persons of the prosecution witnesses. It is a fact that none of the accused had dealt more than one blow or one shot towards act of the prosecution witnesses. So, it appears that each such accused attempted one blow either with weapon with him or with gun and after dealing one blow or one shot each accused persons ran away. This appears to be probable because they had stayed over there for a longer time then they would have dealt more blows on the prosecution witnesses and each prosecution witness would have sustained more number of injuries than the injuries sustained by them as a matter of fact. Considering the fact that each witness and each accused had sustained one injury, it clearly suggests that accused persons dealt only one blow and they ran away.

Thus, the appellant could not bring home the charge against the respondent - accused in the present Appeal. The prosecution has miserably failed to prove the case against the appellant - accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.

Mrs. Manisha Lavkumar Shah, learned APP is not in a position to show any evidence to take a contrary view in 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 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. Hence the appeal is hereby dismissed.

In view of above the Appeal is dismissed. The judgment and order dated 30.11.1989 passed by the learned Additional Sessions Judge, Surendranagar, in Sessions Case No. 05 of 1988 acquitting the respondents-accused is hereby confirmed. Bail bonds, if any, shall stand cancelled.

Record & Proceeding may be sent back to the trial Court.