State of Gujarat vs Paltan Raghuvir Gaun 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 20.12.1989 passed by the learned Additional Sessions Judge, Rajkot, in Sessions Case No. 35 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 on the day of incident i.e. on 19.5.1987 at about 7.45 a.m. when the deceased was going for his duty in the factory, viz. Dynamatic Forging India Ltd. at Aji Vasahat at Rajkot, the accused formed unlawful assembly and attacked the deceased with the help of knives, stones and other weapons. It is further alleged by the prosecution that the accused had common intention of causing death of deceased and, therefore, by forming unlawful assembly they attacked the deceased and caused him injury to which he succumbed. The complaint was filed against the accused for the offences under Sections 302, 147, 148, 149, 120-B, 34 of I.P. Code and u/s 135 of the Bombay Police Act.

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. 35 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 following witnesses:

(1) Dr. Svikant Kukabhai Damor, Exh.18;

(2) Mulvantrai Harsukhrai Mankodi, Exh.30;

(3) Ramnavalsing Banvarising, Exh.34;

(4) Ramkumar Avdhu, Exh. 35;

(5) Shravankumarsing Ramchandrasing, Exh.38;

(6) Motibhai Somabhai, Exh.41;

(7) Bahadursing Amarsinh, Exh.42;

(8) Raviram Trikamdas Gondaliya, Exh.43;

(9) Bhagvandas Shantilal, Exh.46;

(10) Bhupatbhai Popatbhai, Exh.48;

(11) Raydhan Kanabhai, Exh. 52;

(12) Pathubha Ravaji Jadeja, Exh.53;

(13) Veniram Laxmidas, Exh. 58;

(14) Nagindas Narbheram Anadkat, Exh.62;

(15) Suresh Bhagvandas, Exh.68;

(16) Haribhai Sorubhai Patil, Exh.86;

5.1 The prosecution has also relied upon following documents to prove its case:

(1) Post Mortem Note, Exh.19;

(2) Sample of blood group of deceased, Exh.20;

(3) Map of scene of offence, Exh.32;

(4) Panchnama of scene of offence, Exh. 45;

(5) Seizure panchnama of shirt from the house of accused Ramvilas Zarokhi, Exh. 47;

(6) Seizure panchnama of Chhari from the house of Premshanker Dhakurdin Pandit, Exh.49;

(7) Yadi for Complaint, Exh.54;

(8) Entry No. 10/87 of Police Station diary, Exh.55;

(9) Letter of handing over investigation to PI Shri Patil, Exh. 56;

(10) Copy of Entry No. 12/87, Exh.57;

(11) Copy of Register dtd.19.5.83 from Civil Hospital Police Chowky, Rajkot, Exh.60;

(12) Letter written by five workers, Exh.63;

(13) Inquest Panchnama, Exh.75;

(14) Arrest panchnama of accused Paltan Raghuvar and Shivnarayan, Exh.76

(15) Arrest Panchnama of accused Jangbahadur and Prabhunath Chauhan, Exh.77;

(16) Arrest panchnama of accused Ramvilas, Exh.78;

(17) Arrest panchnama of accused Rampritshah and Premshanker Pandit and Bankaray, Exh. 79;

(18) Arrest panchnama of accused Chothiprasad Sharma, Ramkishan, Rajkumar, Exh.80;

(19) Report/opinion about muddamal, Exh.82 & 83;

(20) Report/opinion about muddamal articles, Exh.85;

(21) Yadi to FLS, Exh. 87;

After appreciating the documentary as well as oral evidence the learned Additional Sessions Judge, Rajkot, has vide Judgment and order dated 20.12.1989, acquitted the respondents - accused from the charges levelled against them.

Being aggrieved and dissatisfied with the said Judgment and order dated 20.12.1989 passed by the learned Additional Sessions Judge, Rajkot, in Sessions case No. 35 of 1988, the appellant - State of Gujarat has preferred the above mentioned Criminal Appeal.

We have heard learned A.P.P. Mr. R.C. Kodekar, appearing on behalf of appellant - State of Gujarat and learned Counsel Mr. K.J.Panchal, appointed as amicus curiae, appearing on behalf of respondent - accused, We have also gone through the papers and the Judgment and order passed by the trial Court.

Learned A.P.P. Mr. R.C. Kodekar, 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. He 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. He 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. He, therefore, contended that the Judgment and order passed by the learned Judge is without appreciating the facts and evidence on record.

Learned Counsel Mr. Panchal 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 no interference is called for 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.

15 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 that there are material contradictions in the evidence of prosecution witnesses. The trial Court has also observed that the deceased and the accused belong to U.P. State and because of the fact that the accused were the members of Union and the deceased was not becoming the member of said Union the accused could not have attacked the deceased and, therefore, there is no motive of accused to commit murder of deceased. The learned Judge has also found that the prosecution has not examined any independent witness to prove its case beyond reasonable doubt. The learned Judge has also observed that the story put-forward by the prosecution is not believable. The trial Court has also found that there are serious lacunae in the evidence of the witnesses and the same is not supported by the medical evidence. Nothing is produced on record to rebut the concrete findings of the trial Court.

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.

Mr. Kodekar, 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 20.12.1989 passed by the learned Additional Sessions Judge, Rajkot, in Sessions Case No. 35 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.