Gujarat High CourtState Of Gujarat vs Hirabhai Vastabhai ... on 30 October, 2015Author:Ks JhaveriBench:Ks Jhaveri,G.B.ShahR/CR.A/1579/2006                                             JUDGMENT




                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                               CRIMINAL APPEAL NO. 1579 of 2006



         FOR APPROVAL AND SIGNATURE:


         HONOURABLE MR.JUSTICE KS JHAVERI
         and
         HONOURABLE MR.JUSTICE G.B.SHAH
         ==========================================================

         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 or any order made thereunder ?

         ==========================================================
                           STATE OF GUJARAT....Appellant(s)
                                      Versus
                HIRABHAI VASTABHAI BORICHA....Opponent(s)/Respondent(s)
         ==========================================================
         Appearance:
         MR LR PUJARI, ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1
         MR MANRAJ A BAROT, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
         ==========================================================

                   CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
                          and
                          HONOURABLE MR.JUSTICE G.B.SHAH

                                       Date : 30/10/2015


                                       ORAL JUDGMENT(PER : HONOURABLE MR.JUSTICE KS JHAVERI)Page 1 of 11HC-NIC                                   Page 1 of 11     Created On Tue Nov 03 01:49:16 IST 2015
                  R/CR.A/1579/2006                                            JUDGMENT1.     The present appeal, undersection 378of the Code of
         Criminal Procedure, 1973, is directed against the judgement
         and order dated 28.04.2006 passed by the Sessions Judge,
         Jamnagar in Sessions Case No. 84 of 2005 whereby the
         accused has been acquitted of the charges leveled against
         him.2.     The brief facts of the prosecution case are that on
         03.05.2005 while the complainant returned after visiting his
         brother who had met with an accident, he was informed by his
         wife that when the prosecutrix had gone the shop of the
         respondent, she had returned crying. When the prosecutrix
         was asked the reason, she informed that while she had gone
         to the shop, the respondent called her inside and thereafter
         committed rape on her. It is the case of the prosecution that
         the prosecutrix started shouting and therefore the respondent
         spared her.          A complaint was therefore lodged by the
         complainant.         Pursuant to the complaint, investigation was
         carried out. After investigation, charge-sheet was filed and as
         the case was triable by the Court of Sessions, it was
         committed to the Court of Sessions.2.1    The trial Court framed charge against the accused. The
         accused pleaded not guilty to the charge and claimed to be
         tried. Therefore, the prosecution produced the following
         witnesses as oral evidence whose evidence have been read
         out before us :P.W.       Name of Witness                                                   Exhibit
         No.                                                                          No.Page 2 of 11HC-NIC                                 Page 2 of 11     Created On Tue Nov 03 01:49:16 IST 2015
                 R/CR.A/1579/2006                                               JUDGMENT1         Dr. Tusharbhai Shah                                                  82         Dr. Navin Dubey                                                      113         Bhupat Teja                                                          144         Raghubhai Hemabhai                                                   155         Kanjibhai Nathubhai                                                  166         Mahipatbhai Virbhai                                                  177         Mahesh Desurbhai                                                     188         Victim                                                               229         Lalabhai Bhagabhai                                                   2310        Rameshbhai Devayatbhai                                               2411        Jagdishchandra Acharya                                               2812        Savitaben Valjibhai                                                  3013        Gulmohammad Sojat                                                    3614        Hiralal Vaghela                                                      3915        Devdanbhai Dangar                                                    462.2     The      prosecution     also         relied     upon       the      followingdocuments as documentary evidences which have been
         perused by us as complaint at Ex. 37, Medical case papers of
         victim at Ex. 9, Medical certificate of accused at Ex. 12,
         Panchnama of local scene at Ex. 40, Panchnama of clothes of
         victim at Ex. 42, FSL report at Ex. 53, Serological report at
         Ex. 56 etc.


         2.3   At the end of the trial and after recording the statement
         of the accused undersection 313of Cr.P.C.,                           and hearing
         arguments on behalf of prosecution and the defence, the
         learned Presiding Officer acquitted the respondent of all the
         charges leveled against him vide impugned judgement and
         order. Being aggrieved by and dissatisfied with the aforesaid
         judgement and order passed by the Sessions Court the
         appellant State has preferred the present appeal.Page 3 of 11HC-NIC                                  Page 3 of 11      Created On Tue Nov 03 01:49:16 IST 2015
                 R/CR.A/1579/2006                                                 JUDGMENT3.   Mr. Pujari, learned APP appearing for the appellant-
         State has submitted that the trial court committed an error in
         releasing the respondent-accused.                  It was contended by Mr.
         Pujari, that the judgement and order of the Sessions Court is
         against the provisions of law; the Sessions Court has not
         properly considered the evidence led by the prosecution and
         looking to the provisions of law itself it is established that the
         prosecution has proved the whole 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.     He submitted that the age of victim was less than
         14 and therefore this is a fit case where the accused is
         required to be convicted.4.   Mr.      Barot,      learned       advocate           appearing            for      the
         respondent supported the impugned judgement and order and
         submitted that the same having been passed in accordance
         with law does not call for any interference. He submitted that
         the prosecution has failed to prove the case against the
         respondents beyond reasonable doubt.5.   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 ofM.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 CourtPage 4 of 11HC-NIC                                  Page 4 of 11        Created On Tue Nov 03 01:49:16 IST 2015
                 R/CR.A/1579/2006                                           JUDGMENT



         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."5.1   Further, in the case ofChandrappa 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] TheCode 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.Page 5 of 11HC-NIC                               Page 5 of 11     Created On Tue Nov 03 01:49:16 IST 2015
                 R/CR.A/1579/2006                                           JUDGMENT[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."5.2   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.5.3   Even in a recent decision of the Apex Court in the case
         ofState of Goa V. Sanjay Thakran & Anr. Reportedin
         (2007)3 SCC 75, the Court has reiterated the powers of the
         High Court in such cases. In para 16 ofthe said decisionthe
         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 twoPage 6 of 11HC-NIC                               Page 6 of 11     Created On Tue Nov 03 01:49:16 IST 2015
                 R/CR.A/1579/2006                                           JUDGMENT



                      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."5.4   Similar principle has beenlaid down bythe Apex Court
         in the cases ofState 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.5.5   In the case of Luna Ram Vs. Bhupat Singh and Ors.
         reported in (2009) SCC 749,the Apex Court in paras 10 and
         11 has held as under:"10. The High Court has noted that the
                      prosecution version was not clearly believable.
                      Some of the so-called eye witnesses stated that the
                      deceased died because his ankle 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 post-mortem 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 a running condition.11. Considering the parameters of appeal against
                      the judgement of acquittal, we are not inclined toPage 7 of 11HC-NIC                               Page 7 of 11     Created On Tue Nov 03 01:49:16 IST 2015
                 R/CR.A/1579/2006                                            JUDGMENT



                      interfere in this appeal. The view of the High
                      Court cannot be termed to be perverse and is a
                      possible view on the evidence."5.6   Even in a recent decision of the Apex Court in the case
         of Mookiah 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
                      anddefence, acquitted the accused in respect of th
                      e charges leveled against them. On             appeal
                      by           the           State,         the      High
                       Court, by impugned order, reversed         the    said
                       decision and convicted the accused underSection
                      302read withSection 34ofIPC and awarded
                      RI     for     life.    Since     counsel     for    the
                      appellants very much emphasized that the High Co
                      urt has exceeded its jurisdiction in upsetting the
                      order ofacquittal into conviction, let us analyze the
                      scope and power of theHigh Court in an appeal file
                      d against the order of acquittal.ThisCourt in a serie
                      s of decisions has repeatedly laid down that as
                      the first appellate court the High                Court
                      even while dealing with an appeal            against
                      acquittal,wasalso entitled,andobliged as well, to sc
                      an through and if need be reappreciatethe entire
                      evidence, though while choosing to interfere onlyth
                      e court should find an absolute assurance of the gui
                      lt on the basis of the evidence on record and not
                      merely becausethe High Court could take one mo
                      re possible or a differentview only. Except the abo
                      ve, where the matter of the extentand depth of con
                      sideration 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]"Page 8 of 11HC-NIC                                Page 8 of 11     Created On Tue Nov 03 01:49:16 IST 2015
                 R/CR.A/1579/2006                                              JUDGMENT




         5.7   It is also a settled legal position that in acquittal appeal,
         the appellate court is not required to re-write the judgement
         or to give fresh reasonigns, when the reasons assigned by the
         Court below are found to be just and proper. Such principle islaid down bythe Apex Court in the                          case ofState 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."5.8   Thus, in case the           appellate court agrees with the
         reasons and the opinion given by the lower court, then the
         discussion of evidence at length is not necessary.6.            We have examined the matter carefully and gone
         through     the     evidence    on     record. We            have appreciated,
         reappreciated         and   re-evaluated         the       evidence           on      the
         touchstone of latest decision of the Hon'ble Apex Court. We
         find that the trial Court while considering the evidence on
         record, has very elaborately discussed the evidence on record.
         The complaint does not seem to be genuine inasmuch as the
         same seems to be a counteblast against the theft complaint
         filed by the respondent against the complainant. The story of
         the prosecution is not supported by the panchnama as the
         panchnama of scene of offence clearly reveals that the shop isPage 9 of 11HC-NIC                                  Page 9 of 11     Created On Tue Nov 03 01:49:16 IST 2015
                 R/CR.A/1579/2006                                                 JUDGMENT



         so small that there is no space for a cot to be put in. In fact
         there is     no mention of cot in the panchnama. Even the
         medical      evidence     does      not      support          the      case       of     the
         prosecution. No cogent evidence has been produced on record
         by the prosecution to convict the accused.                         We find that the
         trial court has rightly and elaborately discussed the evidence
         which does not call for interference by this Court.7.   Further, 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 Court below is vitiated by some manifest
         illegality or that the decision is perverse or that the Court
         below has ignored the material evidence on record. In above
         view of the matter, we are of the considered opinion that the
         Court below was completely justified in passing impugned
         judgement and order.         We are, therefore, of the considered
         opinion that the findings recorded by the trial Court in
         acquitting the accused of the charge levelled against him 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 and the
         findings arrived at by the trial Court. No interference is
         warranted with the judgement and order of the trial Court.8.   Accordingly, appeal is hereby dismissed. The judgement
         and order dated 28.04.2006 passed by the Sessions Judge,
         Jamnagar in Sessions Case No. 84 of 2005 is confirmed qua
         the acquittal of the respondent. Bail bond, if any, shall stand
         cancelled.      R & P, if lying with this court, to be sent back
         forthwith.Page 10 of 11HC-NIC                                    Page 10 of 11     Created On Tue Nov 03 01:49:16 IST 2015
                  R/CR.A/1579/2006                                          JUDGMENT




                                             (K.S.JHAVERI, J.)              (G.B.SHAH, J.)
         divyaPage 11 of 11HC-NIC                              Page 11 of 11     Created On Tue Nov 03 01:49:16 IST 2015