[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 05.08.1992 passed by the learned Additional Sessions Judge, Palanpur, in Special Case No. 81 of 1991, whereby the learned Sessions Judge has acquitted the respondents – accused from the charges levelled against them.
[2] The brief facts of the case of prosecution is that on 06.06.1991 at 8.00 p.m., the complainant came at Village : Dhandha from his service and at about 8.30 p.m., he went to purchase tea-sugar from the cabin of one Shri Kantibhai and at that time, accused No.1 came with sharp iron weapon (Trishul) running to him and gave filthy abuses to him with respect to his sister and mother. At that time, accused No.1 tried to inflict blow on the complainant, but he saved himself from the blow. Thereupon, the accused No.2 also came running in the way of complainant and he also abused to him with respect to his sister and mother and threatened the complainant. As witnesses arrived at that time, the accused went away to their house. Therefore, the complainant lodged complaint against the accused – respondents for the offences punishable under Sections 352 and 114 Indian Penal Code and under Section 3(1)(i) of the Schedule Caste and Scheduled Tribe (Prevention of Atrocity) Act. Thereafter, after investigation, the Police filed charge-sheet against the accused in the Court of learned Magistrate.
[3] To prove the case against the present respondents – accused, the prosecution has examined the witnesses and also produced documentary evidence.
[4] At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Judge has acquitted the accused of all the charges levelled against them by Judgment and order dated 05.08.1992 in Criminal Case No.81 of 1991.
[5] Being aggrieved by and dissatisfied with the Judgment and order passed by the trial Court the appellant – State has preferred the present Appeal.
[6] I have heard learned A.P.P. Ms.Jirga Jhaveri on behalf of the appellant – State and learned advocate Mr.Chetan Pandya for learned senior advocate Mr.S. V. Raju for the respondents.
[7] Learned A.P.P has contended that the trial Court has not properly appreciated the evidence of Babubhai Karsanbhai, who was victim of the incident; the trial Court has also not properly considered the evidence of Dadimiya Mohamedkhan at Ex.10 who was present at the time of incident and who has seen the accused and the complainant grappling with each other. Learned A.P.P. has also contended that the trial Court has not properly considered the evidence of Kantibhai Sadabhai at Ex.11 and the evidence of Shankerbhai Kuberbhai at Ex.13 who were also present at the time of incident and their evidence ought to have been accepted because this evidence corroborated from the evidence of Babubhai Karshanbhai. Learned A.P.P has contended that trial Court ought to have accepted the evidence of Babubhai Karshanbhai who has clearly deposed that filthy abuses were given and, therefore, the offence under section 3(10(10) of the Atrocity Act was proved beyond reasonable doubt. She has further contended that the trial Court has not considered the fact that at the time of incident respondent No.1 was armed with sharp cutting instrument and respondent No.2 was also armed with stick. It has been contended by the learned APP that the Judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law, it is established that the prosecution has proved all the ingredients of the evidence against the present respondents. Learned APP has also taken this Court through the oral as well as the entire documentary evidence.
[8] Learned advocate Mr.Chetan Pandya for learned senior advocate Mr.S. V. Raju for the respondents has contended that it is the duty of the prosecution to prove the main ingredients and the alleged allegations but the prosecution has failed to prove the same. He has contended that looking to the evidence of complainant, it appears that he is interested witness and due to previous enmity with the respondents he has filed the complaint. He has contended that the trial Court has rightly observed that the evidence of the complainant is full of contradictions and commission with the complaint given by him. He has contended that the trial Court has not committed any error in acquitting the respondents from the charges levelled against them. He has, therefore, submitted that looking to the facts and circumstances of the case, the present appeal is required to be dismissed and the impugned judgment and order of the trial Court is required to be confirmed.
[9] I have also gone through the papers and also the Judgment and order of the trial Court. It is true that the learned A.P.P has argued that only the evidence of the complainant is sufficient to consider the case of the prosecution, but this is not sufficient evidence to consider the case of the prosecution, as some corroborative evidence is required to be produced in support of the evidence of the complainant. Looking to the evidence of P.W.2 and P.W.3, it appears that both were present at the time of incident and they are eye witnesses, but they were declared hostile. The learned Judge, after considering the entire evidence of both the sides and submissions, has observed that there is contradiction between deposition of the complainant and the complaint given by him. Even, the complainant has stated that he went to purchase tea-sugar from the shop of Kantibhai, and on the other hand, he has stated that he went to purchase vegetables and at that time, they had fallen at the place of incident, but that fact has not been proved. It is also observed by the learned trial Court that P.W.3 has not disclosed the facts regarding the complainant coming to his shop, in spite of that he has not supported the case of the complainant. Even, the deposition of Dadubhai and Shankarpuri is also not supported with the case of the prosecution.
[10] 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 SCC, 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 judgement 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.”
[11] Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 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, 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.”
[12] 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.
[13] Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & 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:
“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 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.”
[14] 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 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
[15] 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 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, reported in AIR 1981 SC 1417 wherein it is held as under:
“… This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) 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.”
[16] 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.
[17] I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned Advocate for the appellant.
[18] The trial court has, after appreciating the oral as well as documentary evidence, has found that the witnesses have not supported the case of prosecution. The trial Court has also found that there are serious lacuna in the evidence of the witnesses. Nothing is produced on record to rebut the concrete findings of the trial Court.
[19] Thus, the appellant could not bring home the charge against the respondent – accused in the present Appeal. The prosecution has miserably failed to prove the charge levelled against the respondent – accused. Thus, from the evidence itself it is established that the prosecution has not proved its case as alleged against the accused beyond reasonable doubt.
[20] 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.
[21] In above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. I 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.
[22] I am, 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 the appeal is hereby dismissed.
[23] In view of above the Appeal is dismissed. The judgment and order of acquittal dated 04.11.1993 passed by the learned JMFC, Kalavad, in Criminal Case No. 542 of 1992 acquitting the respondent – accused of the offences charged against him is hereby confirmed. Bail bonds, if any, shall stand cancelled. Record & Proceeding may be sent back to the trial Court.
[ Z. K. SAIYED, J. ] vijay