State of Gujarat vs Shailesh Jasubha Jadeja

K.S. Jhaveri, J.

1.0 By filing Criminal Appeal No. 722 of 2000 the appellant - State has challenged the Judgment and order dated 30.5.2000 passed by the learned Additional Sessions Judge, Gandhidham at Kutch in Sessions Case No. 301 of 1999 acquitting the respondent - accused from the commission of offence u/s 302, 509 I.P. Code; by filing Criminal Appeal No. 723 of 2000 the appellant - State has challenged the Judgment and Order dated 30.5.2000 passed by the learned Additional Sessions Judge, Gandhidham at Kutch in Sessions Case No. 301 of 1999 giving benefit of Section 4 and 6 of Probation of Offenders Act to the respondent - accused; by filing Criminal Revision Application No. 290 of 2000 the original complainant has prayed for quashing and setting aside the Judgment and order dated 30.5.2000 passed by the learned Additional Sessions Judge, Gandhidham, in Sessions Case No. 301 of 1999.

2.0 The brief facts of the prosecution case are as under:

2.1 It is the case of the prosecution that complainant Lakhiya Rudabhai Aher is serving as driver and is residing at Chakkivad Street, Galpadra village, Taluka Gandhidham. The eldest son of the complainant is also serving as driver and his 2nd elder son, namely, Ramji, is serving as cleaner. The daughter of complainant, namely, Laxmiben, also got married at village Galpadar and at the time of incident she came to the house of the complainant on the occasion of ''Ana'' ceremony. That on 4.5.1999 at about 8.00 p.m. accused came in the house of the complainant with knife and inflicted knife blow on the hand and on side of the body and other parts of the body of Narmadaben, wife of Devjibhai, in haphazard manner. Laxmiben, daughter of complainant, tried to intervene and so accused gave kick blows and she had fallen down. On raising shouts, wife of complainant, namely, Valibai, rushed and she snatched away the knife from the hand of the accused. On gathering other neighbours the accused ran away from the place. Injured was taken to the hospital, initially at Rambag Hospital and thereafter for further treatment in private hospital of Dr. Aiyyer. That on 14.5.1999 in the early morning at about 6.40 hrs. Narmadaben died during the treatment. Thereafter, an offence u/s 302, 509 I.P. Code was registered before the P.S.I. Shri Vaghela, who was present in the Hospital. P.S.I. registered the offence against the accused. On the basis of complaint, investigation was carried out, statements of witnesses were record, necessary panchnama was drawn and thereafter, after completing the formalities, since the investigating Officer found prima facie case against the respondent - accused, charge-sheet came to be filed against the accused before the learned J.M.F.C., Gandhidham. Since the offence alleged against the accused was exclusively triable by the Court of Sessions, the learned JMFC, Gandhidham, committed the case to the Court of Sessions, which came to be registered as Sessions Case No. 301 of 1999.

2.2 Thereafter the charge was framed against the accused - respondent. The accused pleaded not guilty to the charge and claimed to be tried. Thereafter, the trial was conducted against the respondent. The prosecution has examined the witnesses and also relied upon several documents to prove the case against the respondent - accused. Statement of the accused u/s 313 Cr.P.C. was also recorded in which also the accused denied the charges leveled against him. After considering the oral as well as documentary evidence and after hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge Gandhidham held the accused - respondent guilty for the offence punishable u/s 452, 323 and 324 I.P. Code, instead of Section 302 I.P. Code, and acquitted the accused from the offence punishable u/s 302 I.P. Code. Looking to the age of the accused - respondent and considering the circumstances of the accused- respondent the trial Court has, after obtaining the report from the concerned Probation Officer, under the Probation of Offenders Act, has acquitted the accused - respondent by granting benefit of probation under the Probation of Offenders Act. The learned trial Judge has also directed the accused to pay Rs. 10,000/- as compensation to the husband of deceased.

2.3 Being aggrieved by and dissatisfied with the Judgment and Order dated 30.05.2000 passed by the learned Additional Sessions Judge, Gandhidham (Kutch) in Sessions Case No. 301 of 1999, the appellant - State has filed two Appeals, viz. (i) against the acquittal of accused from the offence punishable u/s 302 I.P. Code, and (ii) for giving benefit of probation to the accused under the Probation of Offenders Act. The original complainant has also filed Criminal Revision Application No. 290 of 2000 against the aforesaid Judgment.

2.4 Since both the Appeals as well as Criminal Revision Application arise from the same Judgment and appreciation of evidence of same set of facts and as well as documentary evidence, aforesaid two Appeals and Criminal Revision Application are being heard together and are disposed of by this common Judgment.

3.0 Heard learned APP Mr. Kodekar on behalf of appellant - State. 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 considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the ingredients of the commission of offence by leading evidence against the present respondent - accused. Learned APP has also taken this Court through the oral as well as the entire documentary evidence. Learned APP has contended that it is a fact that the accused has inflicted a blow on the deceased and due to that blow the deceased died and, therefore, the learned Judge has erred in not believing the case of prosecution and acquitting the accused from the offence punishable u/s 302 I.P. Code. He, therefore, contended that the learned trial Judge has also committed a grave error in giving benefit to the accused under the provision of Probation of Offenders Act.

4.0 We have gone through the Judgment of the trial Court. Before proceeding the matter on merit, the medical evidence, which was discussed by the trial Court, is that the victim has survived for 10 days and the patient was advised to take discharge on 13.5.1999, but, the relatives of deceased have insisted that they will take the patient on the next day i.e. on 14th May, 1999 and, therefore, the patient could not be discharged on 13th May, 1999 and at about 6.40 a.m. when the victim - deceased had gone to attend the natural call in toilet, there she received heart-attack and due to heart failure she died. Even after heart failure the treatment was given by way of cardiac massage but the victim could not be restored or recovered. In the cross examination of doctors they have opined that the couse of death is sudden failure of heart. Learned Counsel appearing on behalf of the complainant has pointed out that heart failure was because of embolism which has caused due to the injury which the deceased received. He has also produced the opinion from the medical expert. Learned Counsel for the complainant, therefore, contended that the heart attack and consequent heart failure of deceased was because of the injury received by her. We have also considered the reasons assigned by the learned Addl. Sessions Judge. We have also gone through the medical papers. It appears that no specific question was put to the medical expert. No evidence is pointed out to that effect. Assuming, if it is so, expert opinion has created a doubt that it was not an homicidal death and the victim has survived almost for 10 days. In that view of the matter, considering the over all documentary evidence, the trial Court has not believed the case of the prosecution that the accused has committed an offence u/s 302 I.P. Code and looking to the age of accused the trial Court has granted benefit to the accused under the provision of Probation of Offenders Act.

5.0 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.

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 AIR2007 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.

6.0 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 A.P.P. for the appellant as well as the submissions of learned Counsel appearing on behalf of original complainant. The trial court has clearly recorded a finding that the case against the accused under the provision of Section 302 I.P. Code is not established. The prosecution has failed to prove the motive to cause injury to the deceased. Therefore, the trial Court has held the accused guilty of the offence under the provision of Sections 324, 323, 452 I.P. Code and looking to the age of the accused and other circumstances the trial Court after obtaining the report from the concerned Probation Officer, gave the benefit under the provision of Probation of Offenders Act to the accused. The trial Court has also ordered the accused to pay Rs. 10,000/- as compensation to the husband of deceased.

7.0 In above view of the matter, we are of the considered opinion that the trial court was completely justified in passing the impugned Judgment and Order. 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 of the accused u/s 302 I.P. Code recorded by the court below and granting benefit under the provision of Probation of Offenders Act and hence we find no reasons to interfere with the same. Hence, both the appeals are hereby dismissed. So far as Criminal Revision Application is concerned, since we have held that impugned Judgment of the trial Court is absolutely just and legal, the Criminal Revn. Application, filed by the original complainant, also fails especially in light of settled legal position regarding exercise of revisional powers by the Appellate Court.

9.0 In view of above, both the above Appeals are dismissed. The judgment and order dated 30.05.2000 passed by the learned Additional Sessions Judge, Gadhidham (District Kutch), in Sessions Case No. 301 of 1999 acquitting the respondent-accused is hereby confirmed. Bail bonds, if any, shall stand cancelled.

As the Criminal Appeals are dismissed, Criminal Revision Application No. 290 of 2000, filed by the original complainant, is also dismissed.