IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 391 of 1987 With CRIMINAL APPEAL NO. 427 of 1987 With CRIMINAL APPEAL NO. 428 of 1987 With CRIMINAL APPEAL NO. 412 of 1987 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ===========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ LAXMANJI NATHAJI & 1 Appellant(s) Versus STATE OF GUJARAT Opponent(s)/Respondent(s) ================================================================
Appearance in Cr. A. No.391 of 1987 AND CR.A. NO.412 of 1987: ABATED for the Appellant(s) No. 1
DHARMESH D NANAVATY, ADVOCATE for the Appellant(s) No. 2 MS. C.M. SHAH, LEARNED APP for the Opponent(s)/Respondent(s) No. 1
Appearance in Cr. A. No.427 of 1987 and 428 of 1987: MS. C.M. SHAH, LEARNED APP for the Appellant.
DHARMESH D NANAVATY, ADVOCATE for the Appellant(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 26/09/2013 COMMON ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. Before we proceed with the matters, it would be relevant to state that as per the Jail report, original accused No.1Laxmanji Nathaji, appellant No.1 in Criminal Appeal No.391 of 1987 and Criminal Appeal No.412 of 1987, has expired. Therefore, the above two appeals stand abated qua appellant No.1Laxmanji Nathaji.
2. All these appeals arise out of the common judgment and order dated 18.04.1987 passed by the learned Additional Sessions Judge, Narol in Sessions Case No.31/1986, whereby, original accused nos.1 and 2 have been convicted for the offences punishable u/s. 304 part I and 324 of the Indian Penal Code and accused Nos. 3 to 7 have been acquitted of all the charges.
3. Criminal Appeal No. 391 of 1987 and Criminal Appeal No.412 of 1987 have been preferred by the original accused nos.1 and 2 against the impugned judgment and order convicting them for the offences punishable u/s. 304 partI and 324 of the IPC. For conviction u/s.304 partI of the IPC, they have been sentenced to undergo rigorous imprisonment for a period of four years and fine of Rs.1,000/ each and indefault of payment of fine, simple imprisonment for a further period of six months. For conviction u/s.324 of the IPC, they have been sentenced to undergo rigorous imprisonment for one year and fine of Rs.500/ each and in default of payment of fine, simple imprisonment for a further period of four months. Both the sentences were ordered to run concurrently.
3.1. Criminal Appeal No.427/1987 has been preferred by the State for enhancement of the sentence imposed on original accused Nos. 1 and 2 for conviction u/s. u/s. 304 part I and 324 of the IPC.
3.2. Criminal Appeal No. 428 of 1987 has been preferred by the State against the acquittal of original accused nos. 3 to 7 of all the charges levelled against them.
3.3. Since all these appeals arise out of the impugned judgment and order, they are disposed of by this common judgment.
4. The facts in brief, giving rise to filing of the present appeals are that a complaint was filed by the complainant Umarbhai Hajibhai, who happened to be the nephew of Adambhaideceased. It was alleged in the complaint that on 22.11.1985 at about 7:30 pm. when the complainant went to his house, he saw that original accused No. 1 armed with scythe and knife, original accused No.2 armed with scythe, original accused Nos. 3 to 7 armed with sticks and scissors came near the chowk of Gugni Mataji and started abusing his uncle. Thereafter, his uncle told them not to abuse him and in that course, some altercations took place between them and suddenly the accused persons had attacked on him. Thereafter, the brother of his uncle namely Noormohmad, Darveshbhai, Ismailbhai and Kajibhai came to rescue him. In the said incident, Noormohmad Daudbhai, Ismailbhai and Darveshbhai and Adambhai sustained injuries, while Adambhai succumbed to the said injuries. In connection with the above incident, a complaint was filed by the complainant.
4.1. After completing necessary procedure the accused were arrested and after completion of investigation, charge sheet was filed before the competent Magisterial Court. As it was a sessions triable case, the learned Magistrate committed the same to the Sessions Court, Narol. The appellants pleaded not guilty and therefore, the charge was framed and the trial was initiated.
4.2. To prove the case against the present appellant, the prosecution had examined following witnesses:
4.3. The persecution had also relied upon several documentary evidences, more particularly the inquest Panchanama at Exh.15, Post mortem Note at Exh.19, Panchanama at Exhibit17, Map of the scene of the offence at Exhibit24, FSL report at Exh.29, Serological report at Exhibit 30 and the complaint. The trial Court after considering the evidence on record and after hearing the parties passed the impugned judgment and order as stated hereinabove. Being aggrieved by the same, the present appeals has been preferred.
5. Heard learned counsel for the respective parties and considered the documents forming part of the appeals as well as original record summoned from the trial Court. From the testimony of P.W3Dr. Dr. Sujataben Maheshbhai Desai, who has been examined vide Exhibit34, it is proved that the deceased died a homicidal death. This witness has categorically stated that death was caused due to intracrnial hemorrhage. In column Nos.17 of the post mortem report, the injuries described as under: “17. (i) Incised wound over right chest of 3 cm. x 1 cm. x 1 cm.
(ii) CLW over right frontal region of 2 cm. x 1 cm. x 1 cm.. 5 cm. above right eye brow.
(iii) CLW over right perinatal region of 3 cm x 1 cm. x 1 cm.
(iv) CLW over left frontal region near mid line 3 cm. x 1 cm x 1 cm.
(v) CLW over right elbow 1 cm. x 1 cm. x 1 cm.
(vi) CLW over left region. 5 cm. x 1 cm. x 1 cm.
(vii) CLW over occipital region in mid line 2 cm. x 1 cm. x 1 cm..
(viii) Small abrasions on right hand.
(ix) There is old well headed operated scar on right skull region.”
6. This witness further stated that injury No. 1 is possible by sharp edged weapon like scythe. Injury Nos. 2 to 7 are possible by blunt edged weapon like lathi or blunt side of the scythe. Injury No.8 is possible by hard and blunt substance.
7. On perusal of the FIR, it appears that at the relevant point of time the accused No.1 was holding knife and scythe, accused No.2 was holding scythe and accused Nos. 3 to 7 were holding sticks and scissors respectively. Further, it has come on record that accused Nos. 1 and 2 had inflicted scythe blows on the head of the deceased and thereafter accused No.1 had inflicted knife blow on the cheek of the deceased. The said fact is also corroborated by the evidence of P.W6Noormuhammad Daudbhai, who has been examined vide Exhibit50. Considering the above facts, coupled with the testimony of the medical officer, who performed the post mortem on the dead body, it is crystal clear that the deceased had died on account of head injuries caused by accused Nos. 1 and 2. Therefore, there is no doubt in our mind about the guilt of the original accused Nos. 1 and 2.
8. Considering the above aspects of the matter, we find that the presence and involvement of the original accused Nos. 1 and 2 in the offence in question has been proved by the prosecution beyond reasonable doubt. However, on perusal of the evidence of the witnesses, it appears that the incident in question had happened on the spur of the moment. It is also borne out that before the incident in question there were some altercations between the parties, which led to commission of the offence. Further, the appellant could not be said to have taken any undue advantage or acted in a cruel manner. Considering the above aspects, we are of the considered opinion that the trial Court has rightly convicted the present appellant u/s. 304 Part I of the IPC. Further, considering the principle laid down by the Apex Court in Budhi Lal v. State of Uttarakhand, AIR 2009 SC 87, the original accused Nos. 1 and 2 cannot be said to have committed the offence of murder. In the cited case, the Apex Court has discussed the distinction between bodily injury likely to cause death and bodily injury sufficient to cause death.
9. So far as the conviction under Section 324 of the IPC is concerned, considering the facts of the case, we find that the prosecution has been able to prove that the ingredients of offence punishable under sections 324 of the IPC are present in this case. We are of the considered opinion that the trial Court has rightly convicted the original accused Nos. 1 and 2 under section 324 of the IPC.
10. Considering the evidence on record as also considering the principle laid down by the Apex Court in the case of Budhi Lal(supra),we are of the considered opinion that the trial Court has rightly convicted the original accused Nos. 1 and 2 u/s. 304 part I and 324 of the IPC. We are in complete agreement with the reasonings given by and the findings arrived at by the Trial Court and hence find no reasons to interfere with the same.
11. At this stage, Mr. Nanavaty, learned advocate for the appellants submitted that looking to the physical condition of the original accused No.2, appellant No.2 herein, this Court may take lenient view in the matter. He relied upon the decision of the Apex Court in the case of Ankush Shivaji Gaikwad Vs. State of Maharashtra, reported in 2013 (6) SCALE 778 and requested that this Court to grant same and similar benefit to the accused No.2 herein.
12. It is pertinent to note that pursuant to the non bailable warrant issued by this Court, the original accused No.2 had appeared and placed on record the medical reports. We have gone through the said medical reports, which show that the health of the accused is deteriorating. Considering the above aspect and also considering the decision in Ankush Shivaji Gaikwad (supra) relied upon by learned advocate for the appellant, we are inclined to grant the benefit of the provisions of Section 357 of the Code of Criminal Procedure to the accused No.2 in this case.
13. So far as Criminal Appeal 428 of 1987 preferred by the appellantState is concerned, 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 & Anr, reported in (2006) 6 S.C.C. 39, 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: “54. 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 wellsettled 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.”
14. Further, in the case of Chandrappa Vs. State of Karnataka reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;
“42. 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, re appreciate 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.”
14.1. 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.
14.2. Even in the case of State of Goa V. Sanjay Thakran & Anr. reported in (2007) 3 S.C.C. 75, 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;
“16. 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.”
14.3. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
14.4. In the case of Luna Ram Vs. Bhupat Singh and Ors, reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under: “10. The High Court has noted that the prosecution version was not clearly believable. Some of the socalled 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.
11. 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.
14.5. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SC 321, the Apex Court in para 4 has held as under: 4. 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 under Section 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, (2004) 5 SCC 573]
14.6. 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, reported in AIR 1981, SC 1417, wherein it is held as under: “...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) 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.”
14.7. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors Vs. State of Karnataka, reported in JT 2013(7) SC 66.
15. 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.
16. 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 before the the trial Court and also considered the submissions made by learned APP appearing for the appellant. We are of the considered opinion that the trial Court has rightly acquitted the original accused Nos. 3 to 7. Under the circumstances, we are of the opinion that the Trial Court has rightly acquitted the respondentsaccused of all the charges.
17. 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 Trial Court is vitiated by some manifest illegality or that the decision is perverse or that the Trial Court has ignored the material evidence on record. In above view of the matter, we are of the considered opinion that the Trial Court was completely justified in acquitting the original accused Nos. 3 to 7 of all the charges.
18. In that above view of the matter, we are of the considered opinion 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 in complete agreement with the reasonings given by and the findings arrived at by the Trial Court and hence find no reasons to interfere with the same.
19. For the reasons recorded in the judgment pronounced today, following order is passed:
(i) Criminal Appeal Nos.391 of 1987 and 412 of 1987 stand abated insofar as appellant No1Laxmanji Nathaji is concerned since he has already expired.
(ii) Criminal Appeal Nos. 412 of 1987 and 391 of 1987 are partly allowed qua appellant No.2Pradhanji Nathaji. The judgment and order of conviction and sentence under challenge is confirmed qua appellant No.2Pradhanji Nathaji. However, looking to the peculiar facts of the case and also considering the decision of the Apex Court in the case of Ankush Shivaji Gaikwad (supra) the appellant No.2 herein is directed to pay an amount of Rs.1,00,000/ [Rupees one Lakh only] towards compensation under Section 357 of the Code of Criminal Procedure to the heirs of the deceased by way of “Account Payee Cheque”, after due verification, within a period of twelve weeks from today. If the appellant No.2 herein pays the aforesaid amount within the stipulated time as fixed by this Court, the period of imprisonment already undergone by him is ordered to be treated as sufficient sentence for conviction and he shall be not be required to surrender, if he is not required in connection with any other case;
(iii) Since the appellant No.2 is on bail, the bail and bail bond shall remain in operation only for a period of twelve weeks from today. It is made clear that if the appellant No.2, fails to deposit the amount of compensation of Rs.1,00,000/(Rupees one lac only), within the stipulated period, he shall have to undergo remaining period of sentence. If the appellant No.2 does not make payment of compensation as aforesaid and also fails to surrender within the above period, the investigating agency shall be at liberty to take necessary action against him in accordance with law. Rest of the part of the impugned judgment and order stands confirmed. It is clarified that the appellant No.2 herein shall be given the benefit of set off and may be granted the benefit of remission under Section 428 of the Cr. P.C. The rest of the part of the judgment and award remains unaltered.
(iv) Insofar as the Appeal preferred by the State being Criminal Appeal No.427 of 1987 is concerned, the same is hereby dismissed. The judgment and order of conviction and sentence under challenge is confirmed.
(v) Insofar as the Appeal preferred by the State being Criminal Appeal No.428 of 1987 is concerned, the same is hereby dismissed. The judgment and order of conviction and sentence under challenge is confirmed.
(vi) Nonbailable warrant issued by this Court stands cancelled. The bail and bail bonds of other accused namely Kaluju @ Diluji Ramsangji and Virchand Hiralal stand discharged. R & P be sent back forthwith.
(K.S.JHAVERI, J.) (K.J.THAKER, J) pawan