AI Structured Summary
Not yet generated for this judgment
Judgment
K.S. Jhaveri, J.
1.0 The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 2.6.1988 passed by the learned Addl. Sessions Judge, City Civil & Sessions Court, Ahmedabad in Sessions Case No. 283/1987, whereby the accused have been acquitted of the charges u/s 302, 323 read with Section 34 of IPC, and Section 135 of BP Act, leveled against them.
2.0 The brief facts of the prosecution case are as under:
2.1 As per the case of the prosecution that on 23.10.1987, near the hut of the informant complainant in river bed at the back of old Municipal Quarters at Shahpur in the City of Ahmedabad, in the night of New Year''s day of last Diwali according to Vikram Samvat, at about 8.30pm, Hanifabibi had gone to take water in carbo from Municipal water tap near her hut. At that time, as she was under medical advice not to lift weight of carbo being filled in, she summoned Valimohmad to take carbo to the hut and it is alleged that at such time, the present two accused and Anvarbhai Husainbhai started giving abuses. It is alleged that accused No. 1 was armed with knife and deceased Anvarbhai was armed with a stick. It is also the case of the prosecution that the accused inquired from Vali Mohmad as to where was Rasul and thereafter they inquired from Hanifabibi by addressing her as ''Randi'' for whereabouts of Rasul. Both Vali Mohmad and Hanifabibi expressed ignorance about the whereabouts of Rasulmiya. It is alleged that thereupon the accused were enraged and Anvarbhai gave a stick blow on buttock of Hanifabibi and accused No. 1 Nek Mohmad inflicted knife blow on the chest of Vali Mohmad. As a result of blows Vali Mohmad fell down and practically died on the spot. It is also the case of the prosecution that when the incident started, Hanifabibi raised shouts and there upon Shakinabibi wife of Valim Mohmad and Mahebub alias Meblo Jusan who were sitting in the hut of Rasulmiya rushed to the scene of offence and thereafter the accused ran away with their weapons. Vali Mohmad was then shifted to Civil Hospital by Fatehmohmad and Mahebub. However, he was already dead.
2.2 Therefore, a complaint with respect to the aforesaid offence was filed against the respondents with the Dariyapur Police Station, Ahmedabad. 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 filed against them before the court of learned Metropolitan Magistrate, Ahmedabad. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court, which was numbered as Sessions Case No. 283/1987. The trial was initiated against the respondents.
2.3 To prove the case against the present accused, the prosecution has examined the following witnesses:
Dr. Shatish M. Pandya Ex. 10
Hanifabibi Rasulmiya Ex. 14
Somabhai Govindbhai Ex. 29
Sakina Vali Mohmad Ex. 33
Sundersing Ranjitsing Ex. 34
Mahebub Jusaf Ex. 38
Shambhubhai Varji Chavda Ex. 39
Dr. Nayan N. Parikh Ex. 41
P.I. Premsing Mahadevsing Ex. 43
To prove the case against the accused, the prosecution has also produced the following documentary evidence.
Complaint Ex. 44
Inquest panchnama Ex. 15
Panchnama of scene of offence Ex. 40
Panchnama of clothes of deceased Ex. 16
Panchnama of search of house of accused Ex. 17
PM Note Ex. 18
Medical certificate of Hanifabibi Ex. 11
Notificaiton of Police Commissioner, Ahmedabad Ex. 42
Copy of chapter case No. 14/87 Ex. 19
Copy of chapter case No. 15/87 Ex. 20
Copy of FIR Ex. 21
Copy of Ravangi Nondh sent to FSL Ex. 22
Receipt of muddamal sample Ex. 23
FSL Report Ex. 24
FSL Report of Biology Department Ex. 25
FSL Report of Serology department Ex. 26
Map of scene of offence Ex. 31
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 Sessions Judge acquitted the respondents of all the charges leveled against them by judgment and order dated 2.6.1988.
2.5 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the appellant State has preferred the present appeal.
3.0 It was contended by learned APP that the judgment 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 respondent. Learned APP has also taken this Court through the oral as well as the entire documentary evidence.
4.0 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 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.
4.1 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.
4.2 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.
4.3 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 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.
4.4 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 M.P. reported in AIR 2007 SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
4.5 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.
4.6 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.
5.0 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 by the trial court and also considered the submissions made by learned APP for the appellant-State. The trial court while considering the oral as well as documentary evidence has clearly observed that the prosecution has not examined any independent witnesses and examined the only interested witnesses. There are serious contradictions in the evidence of complainant and witnesses. Para-13 of the judgment reads as under:
Further the evidence of the prosecution against the accused No. 1 is about accused No. 1 having discovered Mudammal knife after making voluntary statement while in police custody. Panch witness examined in support of such discovery is PW-5 Sundersinh Ranjitsinh at Ex. 34. However, according to him no writing was made in police station before they started for the place. Then, according to him, knife was discovered from near one pit at the back of huts of Vaghris. During his cross-examination, he has deposed that his both signature in the panchnama were taken at the place of discovery at a time. Now the panchnama at mark 9/4 is in two parts. First part is stated to have been written in the police station before starting for going to the place of discovery and the second part is stated to have been made at the place of discovery. However, according to this panch witness all the writing was made at the place of discovery and his both the signatures were taken at such place. Thus, this panch witness does not support the panchnama in toto. Moreover, there is material contradiction about the spot of discovery because according to the panch witness it was discovered from near a pit at the back of huts of Vaghris while according to the I.O. Namely PSI of Dariapur Police Station PW-9, Premsinh Mahadevsinh Visen discovery was made from below boxing wall of a compound wall of Dudheswar cremation ground. As per the report of the Forensic Science Laboratory at ex. 24, no blood was at all found on the knife. Now, according to the case of the prosecution, this knife was used in giving as many as four to five serious knife blows to the deceased. If it was so, lot of blood can be expected on this knife. It can be expected that whole blade of the knife would be blood stained. However, according to this report, no blood at all was found on the blade. Therefore, this evidence of the prosecution is worthless. So, the position is that there is no trust-worthy evidence produced by the prosecution about involvement of the present accused or deceased Anvarbhai in the alleged.
The presence of the witnesses at the place of offence is not trustworthy. The medical evidence is also not supporting the case of the prosecution. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
6.0 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.
7.0 In the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him.
8.0 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.
9.0 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. R & P to be sent back to the trial Court, forthwith. Bail bond, if any, stands cancelled.