[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the Judgment and order of acquittal dated 05.01.1995 passed by the learned Special Judge, Kheda at Nadiad, in Special Atrocity Case (Atrocity) No. 47 of 1993, whereby the learned Judge has acquitted the respondent – original accused from the charges levelled against him.
[2] The brief facts of the case are that on 12.05.1993 at about 6.00 p.m, when the complainant went to his field at Village : Dharoda, at that time, in his field, the buffaloes were grazing standing crop and the accused was standing there. The complainant told the accused about the same. Thereupon, the accused was excited and gave abuses to the complainant and also threatened to beat him. Thereafter, the complainant filed complaint against the respondent – accused for the offences punishable under Sections 504 and 506(2) of the Indian Penal Code and under Section 3(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, before Dharoda Police Station.
[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 Special Judge has acquitted the accused of all the charges levelled against him by Judgment and order dated 05.01.1995 in Special Case (Atrocity) No.47 of 1993.
[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] Heard learned APP Ms.Hansa Punani for the appellant – State.
The otherside is served, but not present.
[7] Learned APP Ms.Hansa Punani for the appellant – State has read the charge and contended that looking to the place of offence, which is shown in the panchnama at Ex.9, it is a public place and it can be said that at public place the accused has committed the said offence. It is contended that the case is investigated by the Investigating Officer, P.W. - 4, who examined at Ex.14, who was P.S.I. but it is not fatal prosecution case. She has contended that it is true that the case is to be investigated by not below the rank of Dy.S.P. She has further contended that the learned Judge has not considered oral version of the witnesses and wrongly acquitted the present respondent – accused. She has contended that P.W.2 and P.W.3 are not the chance witnesses or concocted witnesses. The P.W.3 is a public servant and even in his cross-examination, the defence could not be able to prove that they are concocted witnesses. She further contended that it is true that the complaint is filed on the next day of the incident, but it is not fatal prosecution case. Therefore, she submitted that the present appeal is required to be allowed and the judgment and order of acquittal passed by the learned Special Judge is required to be quashed and set aside.
[8] 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.”
[9] 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 curtail 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.”
[10] 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.
[11] 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.
[12] 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.
[13] 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.
[14] 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.
[15] 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. I have also gone through the decisions cited by the learned APP for the appellant. In the facts of the case, in my opinion, the said decision would not be applicable to the facts of the present case.
[16] I have heard learned APP for the appellant – State and perused the oral as well as documentary evidence. It is true that in this case, as per the evidence of the P.W.4, he has investigated the case and filed charge-sheet against the accused. It is also an admitted fact that such type of atrocity cases are to be investigated by the officer not below the rank of Dy.S.P. Here in this case, the investigation was carried out by the P.S.I. It is also appeared that the name of P.W.2 and P.W.3 are not shown in the complaint (Ex.8). It also appears from the oral version of the Investigating Officer and from his case diary, which is produced on record, that how the name of both the witnesses are shown as eye witnesses, but the Investigating Officer could not explain how it was collected. Even from the oral version of the complainant, the place which is shown in the complaint, is also not public place. Looking to the evidence of P.W. 2 and 3, the learned Judge has considered that both the witnesses are concocted witnesses and they are chance witnesses. The prosecution has failed to explain the same that how P.W.2 and P.W.3 are shown as eye witnesses and from where their names are collected by the Investigating Officer and from whose evidence. As per the evidence, it is explained by this officer that both names of witnesses are collected from the statement of the complainant. Looking to the facts of the case, I am of the opinion that the learned Judge has rightly observed that the prosecution has not proved its case beyond reasonable doubt.
[17] 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.
[18] Learned advocate for the appellant 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.
[19] 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.
[20] 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.
[21] In view of above the Appeal is dismissed. The judgment and order dated 05.01.1995 passed by the learned Special Judge, Kheda at Nadiad, in Special Case (Atrocity) No.47 of 1993 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.
vijay [ Z. K. SAIYED, J. ]