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Judgment
K.S. Jhaveri, J.—The applicant has by way of this application prayed for grant of leave to appeal. By way of appeal, the appellant State has challenged the judgment and order of acquittal dated 30.3.2013 passed by learned Addl. District and Sessions Judge, Ahmedabad (Rural) at Mirzapur in Special Atrocity Case No. 33 of 2010 whereby the present respondent was acquitted of the charges levelled against him.
Brief facts of the prosecution case are that the accused person gave filthy abuses relating to caste of the complainant with a view to insult him in public. It is also the case of the prosecution that the accused inflicted stick blow to the complainant Nareshbhai and also gave threat to his life. Therefore, the complainant lodged complaint before the Sarkhej 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, Mirzapur. Since the offence was triable by the Court of Sessions, it was committed to the Court of Sessions, Ahmedabad (Rural), Ahmedabad.
2.1 To prove the case against the accused, the prosecution has examined the following witnesses:
Complainant Nareshbhai Kishanbhai Rathod at Exh. 6
Alpeshbhai Vinodchandra Patel at Exh. 9
Naineshbhai Mansukhlal Soni at Exh. 11
Dashrathbhai Bhimaji Thakor at Exh. 13
Maulik Ishwarbhai Patel at Exh. 15
Hitesh Prajapati at Exh. 16
Girishbhai Shivabhai Leuva at Exh. 19
Rajendrasinh Sajjansinh Rana at Exh. 23
2.2 The prosecution has also relied on the following documentary evidences:
Complaint at Exh. 7
Certificate of caste at Exh. 8
Injury certificate of complainant at Exh. 10
Recovery panchnama of muddamal at Exh. 12
Panchnama of spot of incident at Exh. 14
Suchipatra at Exh. 21
Copy of FIR at Exh. 22
2.3 The trial Court, after taking into consideration the evidences produced by the prosecution, acquitted the accused of the charges levelled against him by the aforesaid judgment and order. Hence the present appeal.
Learned counsel for the appellant Mr. Soni 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.
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 the case of State of Goa Vs. Sanjay Thakran and Another, , the Apex 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 reappreciate 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 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.
4.5. In the case of Lunaram Vs. Bhupat Singh and Others, 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 postmortem 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.
4.6. 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 in 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 u/s 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 reappreciate 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 an acquittal. [Vide State of Rajasthan Vs. Sohan Lal and Others,
4.7. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite 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 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.
4.8 In the recent decision, the Hon''ble Apex Court in Shivasharanappa and Others Vs. State of Karnataka, has held as under:
That appellate Court is empowered to re-appreciate the entire evidence, though certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence.
4.9 Thus, in case the appellate court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence at length is not necessary.
4.10 The Hon''ble Apex Court in the case of K. Ramachandran Vs. V.N. Rajan and Another, dismissed leave to appeal on the ground of delay.
We have heard learned APP Mr. Soni for the appellant. We have examined the matter carefully and gone through the evidence on record. We have appreciated, reappreciated and re-evaluated the evidence on the touchstone of latest decision of the Hon''ble Apex Court. We have perused record and proceedings called for from the trial Court by order dated 30.9.2013. We have noticed that in the medical history, no name is disclosed. Apart from that, there are serious contradictions in the evidences of the so-called eye witnesses. Moreover, there is delay in filing FIR. In that view of the matter, the prosecution has miserably failed to prove the case against the accused. There is no merit in the appeal. In that view of the matter, the application for grant of leave to appeal deserves to be rejected.
Further, 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 Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In above view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order. We are, therefore, of the considered opinion that the findings recorded by the trial Court in acquitting the accused of the charges levelled against him are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. In that view of the matter, 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 bond granted by the trial Court stands cancelled.