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Judgment
K.S. Jhaveri, J.—The present application for leave to Appeal is directed against the judgment and order dated 16.10.2012 passed by the
learned 10th Addl. Sessions Judge, Vadodara, in Sessions Case No. 135/2010, whereby, the accused have been acquitted for the offence u/s
302 and 201 of IPC and u/s 135 of the Bombay Police Act.
The original accused No. 1--Shanabhai @ Chiko Chandubhai Parmar, who was alleged to be perpetrator of the offence, has expired, and
therefore, the appeal qua him stands abated. The brief facts of the prosecution case are that on 1.8.2009, at about 16.00 hours or prior thereto,
while the accused No. 1 and deceased was having illicit relationship and accused No. 1 had given Rs. 45,000/- cash to the deceased for the
marriage of her daughter. It is further the case of the prosecution that as she did not return back the money, the accused had decided to kill her,
and therefore, he called at the place of incident where he cut the head of deceased and buried her head near the canal of his residence. The
accused No. 2 had helped the accused No. 1 to reach the place of offence by using rickshaw bearing Registration No. GJ-17-U-5440. Therefore,
the complaint was lodged against the accused persons before the Waghodia Police Station. On the basis of the complaint, investigation was carried
out. After completion of investigation, charge-sheet was filed before the Court of learned Judicial Magistrate, (First Class) 3rd Court, Vadodara.
Since the office was triable by the Court of Sessions, it was committed to the Court of learned 10th Addl. Sessions Judge, Vadodara, which was
numbered as Sessions Case No. 135/2010.
To prove the case against the accused, the prosecution has examined the following witnesses.
Hansaben Sureshbhai Varia Ex. 11
Gajendrasingh Pravinsinh Chauhan Ex. 13
Vakhatsinh Kirvatsingh Chauhan Ex. 14
Pratapbhai Nanabhai Baria Ex. 17
Sureshbhai Ratansinh Chavda Ex. 25
Sanjaybhai Mangalbhai Baria Ex. 29
Ashokbhai Pratapsinh Chauhan Ex. 30
Shantilal Narayanbhai Rabari Ex. 35
Mayurbhai Sumanbhai Pancholi Ex. 39
Jaswantsinh Dipsinh Chauhan Ex. 40
Ranjitsinh Kesarisingh Parmar Ex. 41
Dalpatsinh Jamsingh Chauhan Ex. 43
Prakash Dalpatsinh Chauhan Ex. 45
Joshnaben Kamleshbhai Sodha Ex. 46
Kamleshsingh Girvatsingh Sodha Ex. 47
Vakhatsinh Ganpatsinh Chauhan Ex. 48
Yashminben Imtiyaz Vora Ex. 49
Juvansinh @ Lalo Shabhai Chauhan Ex. 53
Bahadursinh Ramansingh Chauhan Ex. 54
Kesharben Natvarsingh Chauhan Ex. 55
Harish Maganbhai Patel Ex. 56
Vinodkumar Jivabhai Patel Ex. 63
Dr. Prakashbhai S. Prajapati Ex. 69
Vaghajibhai Lallubhai Vasava Ex. 71
Dilipbhai Baliram Malusare Ex. 72
Jasubhai Keshavlal Patel Ex. 74
Vishnubhai Ishvarbhai Patel Ex. 75
Narvatsingh Dharabhai Baria Ex. 83
The prosecution has also relied on the following documentary evidences.
Complaint Ex. 42
Yadi to register the crime Ex. 84
Inquest panchnama Ex. 12
Panchnama of scene of offence Ex. 18
Panchnama of clothes of deceased Ex. 26
Panchnama of recovery of skull Ex. 64
Panchnama under sec. 27 Ex. 31
Panchnama of person of accused Ex. 36
Panchnama of person of accused Ex. 37
Panchnama of rickshaw Ex. 38
Muddamal dispatch note Ex. 85
Receipt of FSL Ex. 86
Yadi to FSL Ex. 87
Primary report of FSL Ex. 88
Mudammal dispatch note Ex. 89
PM Note Ex. 70
FSL Report Ex. 93
FSL Report Ex. 76
FSL Report Ex. 94
Serology report Ex. 95
Dog Call form Ex. 96
Yadi for DNA test of skull Ex. 80
The trial Court, after taking into consideration the evidences produced by the prosecution, acquitted the accused of the charges levelled against
them by the aforesaid judgment and order. Hence, the present application for leave to appeal.
Learned APP Mr. Soni for the State has submitted that the trial Court has committed error in not appreciating the evidence produced on
record. He further submitted that the trial Court erred in holding that though independent witnesses were available, none of them were examined by
the prosecution. The trial Court wrongly observed that there are contradictions in the evidences of the witnesses. In that view of the matter, the
judgment and order of acquittal is required to be quashed and set aside.
We have considered the judgment and the reasons recorded by the learned trial Judge. We have considered the record and proceedings. We
have heard learned APP for the State.
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.
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.
Even in a recent decision of the Apex Court in the case of State of Goa Vs. Sanjay Thakran and Another, 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.
Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh and Others, and in Girja
Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, 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 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.
In the case of Lunaram Vs. Bhupat Singh and Others, , the Apex Court in para 10 and 11 has held as under:
The High Court has noted that the prosecution version was not clearly believable. Some of the so-called eye witnesses stated that the
deceased died because his anke was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the
injured witnesses were thrown out of the bus. The doctor who conducted the post-mortem and examined the witnesses had categorically stated
that it was not possible that somebody would throw a person out of the bus when it was in running condition.
Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High
Court cannot be termed to be perverse and is a possible view on the evidence.
Even in a recent decision of the Apex Court in the case of Mookkiah and Another Vs. State rep. by the Inspector of Police, Tamil Nadu, the
Apex Court in para-4 has held as under:
It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led by the prosecution and defence, acquitted the
accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and
convicted the accused under Sec. 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much
emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power
of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first
appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if
need be re-appreciate the entire evidence, though while choosing to interfere only the Court should find an absolute assurance of the guilt on the
basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above,
where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in
dealing with an appeal as such merely because one was against conviction or the other against the acquittal. [Vide State of Rajasthan Vs. Sohan
Lal and Others,
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 of acquittal 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 there is no any evidence to convict the respondents. The prosecution has
miserably failed to prove the case against the accused beyond any reasonable doubt. Even in the present appeal, nothing is produced or pointed
out to rebut the conclusion of the trial Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond
reasonable doubt.
We have perused the evidence on record and the medical evidence. It emerges from the record that the no specific role is attributed to
accused No. 2, and therefore, we are not in a position to differ with a view taken by the learned trial Judge. Under the circumstances, if the learned
trial Judge has found that the prosecution has not proved the case beyond reasonable doubt, the same cannot be said to be erroneous.
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, there is no merits in the
appeal. In that view of the mater, the application for grant of leave to appeal deserves to be rejected. In the result, the application for grant of leave
to appeal is rejected. In view of dismissal of the application for leave to appeal, the appeal is dismissed. Bail and bail bonds stand discharged.