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Judgment
K.S. Jhaveri, J.—The present appeal, u/s 378(1)(3) of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 30.12.2008 passed by the learned Special Judge, Fast Track Court, Patan, in Special Atrocity Case No. 43 of 2008, whereby the respondents - accused have been acquitted of the charges leveled against them.
The brief facts of the prosecution case are as under:
2.1 It is the case of the prosecution that the complainant is having 5.5 Bighas of agricultural land in his joint account in village Honsapur and near the aforesaid land, accused persons were constructing the house. It is alleged that the accused persons were putting doors and windows towards the land of the complainant and, therefore, the complainant has requested not to put the doors and the windows towards his land. Thereupon the accused persons got excited and gave filthy abuses relating to the caste of the complainant, more particularly, by using words like ''Dheda''. It is also alleged that the accused have also gave filthy abuses to the complainant and administered threats to cause death. Therefore, the complainant filed complaint before Patan City Police Station. The complaint was registered vide CR No. II-63/2008.
2.2 The police recorded the statement of witnesses, drew the panchnama of place of incident, and after thorough investigation, as there was sufficient evidence connecting the respondents with the alleged offence, charge-sheet was filed against the accused before the Court of learned Chief Judicial Magistrate, Patan, for the offence punishable under Sections 504, 506(2), 114, I.P. Code and u/s 3(1)(10) of Atrocity Act. As the offence alleged against the respondents was exclusively triable by a Court of Sessions, the learned Chief Judicial Magistrate, committed the case to the Court of learned Special Judge, which was numbered as Special Atrocity Case No. 43 of 2008.
2.3 Thereafter the charge was framed against the accused - respondents by the learned Special Judge, Fast Track Court, Patan. The accused pleaded not guilty to the charge and claimed to be tried. Thereafter, the trial was conducted against the accused - respondents.
2.4 To prove the case against the respondents - accused, the prosecution has examined in all 09 witnesses and relied upon in all 09 documents.
2.6 Thereafter, the statement of the accused u/s 313 Cr. P. C. was recorded in which also the accused denied the charges leveled against them and stated that they have been falsely involved in the commission of offence. After considering the oral as well as documentary evidence and after hearing arguments on behalf of prosecution and the defence, the learned Special Judge, Fast Track Court, Patan, has acquitted the accused of the offences alleged against them by Judgment and order dated 30.12.2008.
2.7 Being aggrieved by and dissatisfied with the Judgment and Order dated 30.12.2008 passed by the learned Special Judge, Fast Track, Patan, in Special Atrocity Case No. 43 of 2008, the appellants - State has filed this Appeal.
Heard learned APP Mr. Kodekar on behalf of appellant - State. We have also gone through the papers produced before us. It was contended by learned APP that the judgment and order of the learned trial Judge is against the provisions of law; the learned Judge has not properly appreciated oral as well as documentary evidence available on the record of the case in its true and proper perspective. He has also contended that there are direct and indirect evidence connecting the respondents with crime. He, therefore, contended that the Judgment of learned Judge is erroneous and bad in eye of law.
We have gone through the Judgment of the trial Court. We have also gone through the record & proceedings. We have also perused the reasons assigned by the learned Additional Sessions Judge. We have also gone through the papers produced before us. Learned APP has taken us through the evidence of the prosecution witnesses.
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.
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 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.
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.
On overall consideration of the matter, we are of the view that the prosecution has not proved its case beyond reasonable doubt.
6.1 The trial Court has observed that the witnesses are the relatives of the complainant and there are serious contradiction in their evidence. The prosecution has not examined any independent witness.
6.2 The trial Court has found that the Panch witnesses Ishwarbhai Lalubhai (Exh. 18) and Jivanbhai Popatbhai Patni (Exh. 20), who are the panchas of panchnama (Exh. 19) of seizure of stick have not supported the case of prosecution and they were declared hostile.
6.3 While considering the oral as well as documentary evidence the trial Court has clearly found that panch witnesses did not support the case of the prosecution. There are serious contradictions and omissions in the evidence of the complainant. There is no evidence on record that the accused have given threat to the complainant and the witnesses. The learned Judge has also clearly observed that the so called incident has occurred in the field of the complainant which is not a public place and, therefore, Section 3(1)(10) of the Atrocities Act will not attract to the facts of this case.
6.4 Looking to the above evidence, the trial Court has rightly not believed the case of prosecution and acquitted the respondents - accused from the charges levelled against them.
6.5 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 findings of the trial Court suffers from any manifest illegality or that the decision is perverse or that the trial Court has ignored the material evidence on record. In that view of the matter the view taken by the trial Court is just and proper.
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 levelled 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.
7.1 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 30.12.2008 passed by the learned Special Judge, Fast Track Court, Patan, in Special Case No. 43 of 2008, acquitting the respondents-accused is hereby confirmed. Bail bonds, if any, shall stand cancelled.
R & P to be sent back forthwith.