[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the Judgment and order of acquittal dated 30.01.1993 passed by the learned Additional Sessions Judge, Palanpur, at Banaskantha, in Special Case No. 29 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 19.09.1990, when the complainant was at his house, Jagta Devshi (accused No.2) and Khana Devshi (accused No.1) were passing near the house of the complainant. At that time, the complainant came out from the house and told Jagta Devshi that they should not walk near his house, because he had illicit relation with the wife of his son Navi. It is alleged in the complaint that the complainant scolded the accused, saying that they should not come near his house. Thereupon, Jagta Devshi (accused No.2) and Khana Devshi (accused No.1) got excited and started abusing the complainant and accused No.2 – Jagta Devshi assaulted axe on the complainant by axe, the complainant got injured on his hand. The accused No.1 gave kick and fist blows to the complainant and he had also stick. It is alleged in the complaint that the complainant started shouting, and therefore Viha Bhudar, Nasa Bhala and Gaja Hada gathered there, and the accused ran away. Therefore, the complainant lodged complaint against the accused – respondents for the offences punishable under Sections 323, 324, 325, 452, 454, 506(2), and 114 of I.P. Code, under section 135 of the Bombay Police Act and under Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) 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 respondent – 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 Magistrate has acquitted the accused of all the charges levelled against them by Judgment and order dated 30.01.1993 in Criminal Case No.29 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.H. B. Punani on behalf of the appellant – State. I have also gone through the papers and also the Judgment and order of the trial Court. Learned APP has submitted that the learned Judge has discarded the evidence of witnesses considering the minor discrepancies in the evidence and acquitted the accused. She has contended that the learned Judge ought to have seen that the medical officer Dr.Vinod Baxi examined the complainant on the same day at about 12.45 p.m. He found four injuries. The doctor has stated that the injuries were caused by hard and blunt substance. She has contended that the learned Judge has failed to consider the fact that the witness Nasabhai Lilabhai failed to support the prosecution case. She has also contended that the learned Judge ought to have seen that the presence of witnesses at the relevant point of time was natural and the injured witness will not speak false when he received injury at the hands of the accused with deadly weapon. She has contended the learned Judge has wrongly observed that the prosecution has failed to prove its case. She has contended that the evidence of the complainant Bhalabhai Kasadabhai who is injured witness there was no reason to falsely implicate the accused with the crime. He has narrated whatever he has seen and he has also narrated how the accused played role at the time of the incident and how he received the injuries. 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.
[7] 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.”
[8] 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.”
[9] 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.
[10] 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.”
[11] 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.
[12] 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.”
[13] 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.
[14] 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 APP for the appellant.
[15] 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 lacunae in the evidence of the witnesses. Nothing is produced on record to rebut the concrete findings of the trial Court.
[16] 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. So far as oral version of the doctor is concerned, he tried to establish that the injury can be possible due to the assault made by some persons with axe and stick. As per the evidence of the complainant, he is injured witness and he disclosed that both the respondents gave blow with stick and axe and due to illicit relation with the wife of Meva, there was some dispute between the respondents and complainant and due to hot exchange both the accused assaulted upon the complainant and in the result, the complainant received injury. As far as evidence of the complainant is concerned, it is admitted by this witness that when he entered in the hospital, the doctor has informed the P.S.O and in that connection, P.S.O has registered the cognizable offence. This is also totally contrary version which creates doubt. It is also established by the P.S.O that he has registered the complaint at about 14.30 hours and prior to that he has received one telephone from the doctor and as per the telephonic talk with the doctor, he thought that some cognizable offence is made by the respondents and in result complaint is registered. In support of the prosecution case, the prosecution has examined the material witness Navi Mevabhai, who admitted in her cross-examination that she had no relation with any other person and even both the respondents are not known to her. She has also admitted that the accused never came to the place of offence. Looking to the overall facts and circumstances and depositions of the witnesses, it appears that the prosecution has failed to prove its case beyond reasonable doubt and even contrary evidence and facts of the case creates doubt.
[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.
[18] 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.
[19] 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 requires to be dismissed.
[20] In view of above the Appeal is dismissed. Bail bonds, if any, shall stand cancelled. Record & Proceeding may be sent back to the trial Court.
[ Z. K. SAIYED, J. ] (vijay)