State of Gujarat vs Mer Jetha Giga and Others

K.S. Jhaveri, J.—Mr. K.J. Shethna, learned Counsel appearing for the respondent has produced on record the death certificate of the original accused No. 1-present respondent No. 1-Mer Jetha Giga who expired on 18.11.2005. This appeal, therefore, stands abated qua present respondent No. 1. Appeal stands disposed of accordingly qua present respondent No. 1.

As far as the other respondents are concerned, the matter is heard at length and the following order is passed.

This appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgement and order of acquittal dated 08.06.1987 passed by the Additional Sessions Judge, Jamnagar in Sessions Case No. 5 of 1987, whereby the accused have been acquitted of the charges leveled against them.

The brief facts of the prosecution case are as under:

4.1 As per the complainant, he has an orchard in the sim of the village Sankhala. On the day of the incident he had gone to a relief work started by the Government and while returning to his field at about 8.00 pm, he saw at a distance of about 10 feet bodies of Suka Sava and Hathia Sava lying. According to him Suka Sava was dead and Hathia Sava was groaning. He went home and informed his wife about the scene. His wife informed him that she had also heard some hue and cry. Then the complainant approached the Sarpanch of the village and apprised him.

4.2 Therefore a complaint with respect to the aforesaid offence was filed with the Bhanvad Police Station vide C.R. No. II-36/1986. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, it was borne out that Santok Sava had married accused No. 1 Jetha Giga and stayed at Porbandar for some time. Thereafter they returned to village Bhomiya-Vadar and then some dispute arose between them. It is the case of the prosecution that the accused No. 1 drove away his wife from his house and so she lodged application for maintenance against him. It is also the case of the prosecution that the accused No. 1 and others and earlier gone to abduct Santok Sava but her brothers being the deceased herein did not allow the same. Hence there was enmity between the parties prior to the incident.

4.3 After recording the statements of the witnesses, panchnama was prepared. The FSL and medical report was awaited. Thereafter the inquest panchnama was done and the post mortem report was prepared. The respondents were arrested and after the receipt of all the relevant reports including the medical and FSL report, ultimately, charge-sheet was filed against the accused. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court. The trial was initiated against the respondents and during the course of trial the trial court examined the following 20 witnesses as oral evidences:

Dr. Manharbala Madhusudhan Ex. 30

Kara Deva Ex. 31

Vejiben Kara Ex. 33

Jetiben Deva Ex. 34

Vira Malu Ex. 35

Alasi Pala Ex. 36

Bhikha Ranmal Ex. 37

Sava Bhima Ex. 39

Santokben Sava Ex. 40

Karsan Khima Ex. 41

H.B. Jadeja, PSO Bhanvad Ex. 42

Manji Khoda Ex. 46

Kala Sida Ex. 48

Jagannath Govinda Ex. 49

Ramsi Dosha Ex. 50

Natubha Chanubha Ex. 51

Jilubhai Murubha Ex. 52

Odhavji Naranji Ex. 53

V.V. Gohil Ex. 54

Jivan Giga Ex. 62

4.4 The prosecution has also examined the following documents as documentary evidences:

Muddamal List Ex. 6

D.E. List Ex. 7

Yadi dated 21.04.1986 Exs. 8 & 9

P.M Note of Mer Hathia Sava Ex. 10

P.M Mote of Mer Suka Sava Ex. 11

Inquest Panchnama Ex. 14

Analysis Report Ex. 21

Copy of Police Station Register Ex. 22

Medical Certificate Ex. 28

FIR Ex. 32

Injury Certificate Ex. 47

4.5 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 Sessions Judge acquitted the respondents of all the charges leveled against them by judgement and order dated 08.06.1987.

4.6 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant State has preferred the present appeal.

It was contended by Mr. Kodekar, learned APP that the judgement and order of the 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 respondents . Learned APP has also taken this Court through the oral as well as the entire documentary evidence.

5.1 Mr. Kodekar has submitted that the Sessions Court has erred in acquitting the respondents accused though there are ample and reliable evidence to connect the accused with the crime. He has submitted that the clothes of the accused are blood stained which lends corroboration to the prosecution story. It is also submitted that the accused No. 3 has received injury at the time of incident and that the Sessions Court has failed to prove that the accused No. 3 has acted for the right of self defence.

Mr. K.J. Shethna, learned Senior Counsel appearing with Mr. Adil Mehta has submitted that the Sessions Court has rightly acquitted the respondents. He has contended that the cross complaint on the basis of which the prosecution has based its case was not registered and in the statement u/s 313, the respondent No. 3 has categorically stated that he has not registered the so called complaint on which the prosecution has based its case.

6.1 Mr. Shethna has submitted that apart from the above, the Investigating Officer had admitted that he has not taken the blood samples of any of the accused and that merely because blood was found on the muddamal articles of the present accused, it cannot be said that the respondents are guilty.

6.2 Mr. Shethna has submitted that the case of the prosecution is based on circumstantial evidence. There is no eye witness and also no evidence on record to establish that the accused were found in the vicinity of the scene of offence.

6.3 Mr. Shethna has further submitted that in a case based upon circumstantial evidence, the prosecution is required to prove the chain of the circumstances completely and that has not been done in the instant case.

6.3 Mr. Shethna has also submitted that the case of the prosecution is purely based on surmises and conjectures and therefore even if evidence is reappreciated by this Court, the view taken by the Sessions Court is probable and requires to be accepted by this Court.

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.

7.1 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.

7.2 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.

7.3 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.

7.4 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.

7.5 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 reasonigns, 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.

7.6 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. The fact that the death was not a natural one but homicidal is not disputed by either side. In that view of the matter, considering the medical evidence and the post-mortem note, this Court accepts the death to be homicidal.

8.1 As a result of hearing and perusal of records, this Court is of the opinion that there is nothing on record to establish that there is any eye witness to support the case of the prosecution. The FIR is lodged after some time and that too on hear say evidence the prosecution has also conducted the investigation in a very suspicious manner. It is required to note that no attempt was made to establish that any of the accused was seen by any of the independent witnesses in the vicinity of the village. Even on close scrutiny of the evidence, nothing is coming on record to show that any of the accused was seen atleast on the date of the incident. The only reliance which has been placed is the so called complaint filed by the accused No. 3 which has been categorically denied by the accused No. 3 in his statement u/s 313.

It is also required to note that an attempt was made to cross examine the writer of the complaint being C.R. No. 36 of 1987 before Bhanvad Police Station that the complaint was not registered. Therefore even if it is assumed that the complaint was registered by the accused No. 3, merely on his admission in the FIR, conviction cannot be passed on so called conduct of the accused since there is no independent evidence or witness to corroborate the fact of the presence of the accused at the scene of offence.

9.1 As far as the contention regarding panchnama and other documentary evidence is concerned, nothing is brought on record to establish or substantiate the say of the prosecution. Even from the perusal of the medical evidence and FSL report, it is borne out that no blood sample of any of the accused was taken and the said fact has also been admitted by the Investigating Officer. In that view of the matter, it appears that the entire case of the prosecution is based on surmises and conjectures. It is a serious omission on the part of the prosecution since the accused were injured and the injury aspect was not explained by the prosecution in a plausible way.

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

The judgement and order dated 08.06.1987 passed by the Additional Sessions Judge, Jamnagar in Sessions Case No. 5 of 1987 acquitting the respondents-accused is hereby confirmed. Bail bonds, if any, shall stand cancelled.