1 Whether Reporters of Local Papers may be allowed to see the judgment ?
to the interpretation of the Constitution of India or any order made thereunder ?
================================================================ SIKANDARBHAI DAUDBHAI KANKROLIA....Applicant(s) Versus STATE OF GUJARAT & 5....Respondent(s) ================================================================ Appearance:
MR MA KHARADI, ADVOCATE for the Applicant(s) No. 1 MR BD KARIA, ADVOCATE for the Respondent(s) No. 2 - 6 MR K J PANCHAL, ADVOCATE for the Respondent(s) No. 2 - 6 MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Page 1 of 7 R/CR.RA/532/2003 CAV JUDGMENT Date : 10/04/2015 CAV JUDGMENT
1. Heard learned advocate Mr. J. A. Pathan for learned advocate Mr. M. A. Kharadi for the petitioner, learned advocate Mr. B. D. Karia for the respondent Nos. 2 to 6 and learned APP Ms. Jirga Jhaveri for respondent - State.
2. The petitioner herein is complainant, whereas respondent Nos. 2 to 6 are original accused and respondent No.1 is prosecuting agency before the Sessions Court, Sabarkantha, camp at Modasa in Sessions Case No. 6 of 2003, wherein impugned judgment and order dated 23.07.2003, the Sessions Court has acquitted all the accused from the charges leveled against them under Sections 147, 148, 149, 302 and 201 of the Indian Penal Code read with Section 135 of the Bombay Police Act.
3. The sum and substance of the charges leveled against the accused are to the effect that they all had conspired together after the unfortunate Godhara incident on 2/3 - 03 - 2002 and attacked on the deceased Daudbhai Rasulbhai Kankrelia and Sulemanbhai Rasulbhai Kankrelia with deadly weapons and threw them in well after killing them. Pursuant to such incident, Modasa (Rural) Police has investigated the offence and filed a charge - sheet, whereupon accused have charged and tried but acquitted by impugned judgment.
4. If we peruse the impugned judgment, unfortunately it becomes clear from the record that though initially there was a complaint regarding killing, most of the witnesses turned hostile Page 2 of 7 R/CR.RA/532/2003 CAV JUDGMENT and did not support the prosecution case, some of the witnesses have absolutely denied their involvement in investigation and even knowledge of such incident. In short, none of the witnesses confirm any act which involves any one of the accused in incident, as alleged in the charge - sheet, whereas even son of the victim Ahmedbhai also did not say anything about deadly weapon possessed by any of the accused and he also confirmed that he has not seen the accused throwing the dead bodies of his father and uncle in well, but he only came to know about the same only when Valabhai of Rampur has conveyed him. Though he has stated that he has seen the accused beating the victims by fit, he admits that he had not tried to save them or not even called anybody so as to stop any such incident. He further stated that he has filed an application because of death of his father and uncle but in none of such communication he has disclosed that his father and uncle have been killed by the accused. Therefore, the Sessions Court had rightly observed that the witness who is trying to disclosed about the incident, as eyewitness had not disclosed such fact in his application even after 6 weeks of incident and, therefore, witness has exaggerated his story in his oral deposition and, hence he could not be believed.
5. Whereas present petitioner has also failed to adduce cogent and reliable evidence without any doubt, so as to confirm the commission of offence as alleged in the charge - sheet when petitioner has adduced his oral evidence before the trial Court. It is true that petitioner has disclosed the nature of incident as per his complaint and as per charge -sheet. However though there is allegation that accused were having weapons with them, none of the weapons were found from the place of incident, whereas surprisingly in his cross - examination he has admitted that he had Page 3 of 7 R/CR.RA/532/2003 CAV JUDGMENT been conveyed by elder brother that death is because of police firing. Few other witnesses who were otherwise not eyewitnesses, also failed to corroborate the prosecution case with the complainant and other witnesses. On the contrary witness at exhibit 34 and 35 Arkhiben Sulemanbhai and Madinaben Daudbhai being widows of the victims have not only contradicted their deposition but specifically stated that accused have arrested only because of doubt, but there is no evidence so as to connect the accused with the crime.
6. In view of above facts and circumstances when there is no evidence to confirm the commission of crime by the accused, there is no reason to convict them.
7. Even otherwise this revision application is against the order of acquittal. Therefore, as per settled legal position, there is very limited scope to re-appreciated the evidence.
8. The jurisdiction of the Court in such revision petitions is limited by the statute itself, thereby prima-facie, the Court has to look into the issue regarding irregularity or illegality, if any, committed by the trial Court while passing the impugned judgment and whether the impugned judgment has ultimately resulted into miscarriage of justice or absolute injustice to either of the litigants. Therefore, this being the first revision against the order of acquittal, though this Court is empowered to re-appreciate the evidence, to examine that whether appreciation of evidence by the trial Judge has resulted into miscarriage of justice or not, it is settled legal position that such re-appreciation of evidence has to be done with limited jurisdiction and authority so as to verify the irregularity and illegality only and evidence cannot be re- appreciated or dealt with, only because of different opinion of the Page 4 of 7 R/CR.RA/532/2003 CAV JUDGMENT Appellate Court. Thereby, the Appellate Court has to be careful while re-appreciating the evidence in case of acquittal and decision of acquittal can be interfered only and only if the appreciation of evidence by the trial Judge is absolutely unjust and illegal and without consideration of settled legal position and applicable law. Thereby, only because someone is able to take a different view from the same set of evidence, on such ground alone, the evidence cannot be re-appreciated so as to convert the decision of acquittal into that of conviction of accused. To that extent, the Apex Court has categorically stated that in case of acquittal appeal or revision, the accused have got double benefit in their favour viz. (1) a standard rule of criminal jurisprudence that no-one should be believed as an accused unless there is proper proof and evidence against him and (2) in such cases of acquittal, the judgment of acquittal, which is otherwise confirming either innocence or lack of evidence against such accused. Therefore, respondent before us though they were accused before the trial Court, they are having a clear verdict in their favour by the trial Court that either they are innocent or there is lack of evidence so as to convict them and, therefore, in such cases, the re-appreciation of evidence is to be done with great care and order of acquittal can be interfered only and only if there is absolute and clear evidence without any doubt regarding commission of offence by such respondent. Therefore, the smallest benefit of doubt would certainly tilt in favour of the respondents in criminal appeal or revision.
9. If we peruse the entire evidence in its totality and if we consider the appreciation of such evidence, though there may be difference of opinion, if we re-appreciate the evidence, it is crystal clear that one cannot come to the conclusion that there is any irregularity or illegality and that the learned trial Judge has failed to consider such evidence as cogent and reliable evidence against the present respondents for confirming their guilt. To that extent, Page 5 of 7 R/CR.RA/532/2003 CAV JUDGMENT there is no reason to disapprove the appreciation of such evidence so as to interfere the decision of acquittal either into the decision of conviction or for retrial of the entire case as argued by the petitioner before this Court.
10. It cannot be ignored that decision of acquittal cannot be converted into decision of conviction only because there is possibility of coming to different opinion or conclusion while appreciating the evidence on record by the Appellate Court.
11. Looking to the facts and circumstances and evidence on record as discussed herein above and more particularly as discussed by the learned trial Judge in the impugned judgment, having limited jurisdiction in revision application against order of acquittal, this Court is not convinced to interfere with the decision of acquittal merely because the victim prefers such revision, more particularly in absence of cogent and reliable evidence on record against the respondents. For coming to such conclusion, the reliance is placed upon the judgments of the Apex Court in Johar and Others Vs. Mangal Prasad and Anr. reported at (2008)3 SCC 423 and Sheetala Prasad and Ors. Vs.Sri Kant & Anr. reported at (2010)2 SCC 190, which makes it clear that interference with judgment of acquittal is not permissible unless impugned judgment is perverse. The revisional jurisdiction u/ss. 397 and 401 of the Cr.P.C. is limited, more particularly when it is arising from a judgment of acquittal and it is not permissible for the High Court to analyse the depositions of all the witnesses and to re-appreciate the whole evidence. There must be any error of law on the part of the trial Judge and unless any evidence has been left out of consideration by the trial Judge or any irrelevant material has been taken into consideration, then and then the High Court has to re-appreciate the evidence.
12. In view of discussion herein above on facts, evidence and law point, I do not find any error of law or irregularity or illegality or perverseness in the appreciation of evidence and decision by the trial Judge, which does not permit this Court to come to any different conclusion even if entire evidence is examined herein above to convert the decision of acquittal into that of conviction or to order the re-trial as prayed for by the petitioner. The result is there is no substance in the petition, which deserves to be dismissed and, hence, dismissed. Rule is discharged.
(S.G.SHAH, J.) drashti Page 7 of 7