[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 905 of 2008 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] 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 [ACT] or any order made thereunder ? [ENTITY] Appellant(s) Versus [ENTITY] & 5 Opponent(s)/Respondent(s) Appearance: [ENTITY], ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1 [ENTITY], ADVOCATE for the Opponent(s)/Respondent(s) No. 1-6 CORAM: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 12/10/2015 Page 1 of 10 [CASE NUMBER] Page 1 of 10 Created On Thu Oct 15 01:22:09 IST 2015 [CASE NUMBER] [ENTITY]
(PER : HONOURABLE MR.JUSTICE [ENTITY])
1. The present appeal, under [SECTION] of the [ACT], is directed against the judgement and order dated 29.09.2007 passed by the Additional Sessions Judge & Presiding Officer, Chhota Udepur, Vadodara in [CASE NUMBER] whereby the accused have been acquitted of the charges leveled against them.
2. The brief facts of the prosecution case are that on 20.02.2007, while the complainant, her husband, her children, her sisters-in-law were present in the house of the complainant, the accused persons came there by holding arrows and small bamboo bow in their hands and then held the hair of [ENTITY] and dragged him and took him to the field of [ENTITY]. It is the case of the prosecution that while he was shouting, the complainant and her sisters-in-law and one [ENTITY] went there after chasing them where [ENTITY] released two arrows from his small bamboo bow on [ENTITY]. One arrow struck on his right side of chest and second struck on his inner part of abdomen below the navel. At that time, [ENTITY] released arrow from his small bamboo bow on [ENTITY] which struck on his right hand shoulder and thereafter all the persons ran away from there. It is the case of the prosecution that said [ENTITY] died in the said incident and therefore a complaint was lodged by the complainant.
[CASE NUMBER] Page 2 of 10 Created On Thu Oct 15 01:22:09 IST 2015 [CASE NUMBER]
2.1 Pursuant to the complaint, investigation was carried out. After investigation, chargesheet was filed and as the case was triable by the Court of Sessions, it was committed to the Court of Sessions, Ahmedabad.
2.2 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 17 witnesses oral evidence as well as 22 documents as documentary evidence. Further statements of the accused under [SECTION] of the [ACT] were recorded. The trial Court, after completion of trial, acquitted the accused of the charge levelled against them by the aforesaid judgement. Hence the present appeal.
3. Ms. [ENTITY], 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 Ms. [ENTITY], 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 respondent. Learned APP has also taken this court through the oral as well as the entire documentary evidence.
4. Mr. [ENTITY], learned advocate appearing for the respondents supported the impugned judgement and order and submitted that the same having been passed in [CASE NUMBER] Page 3 of 10 Created On Thu Oct 15 01:22:09 IST 2015 [CASE NUMBER] accordance with law does not call for any interference. Mr. [ENTITY] 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 of [PRECEDENT], 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."
5.1 Further, in the case of [PRECEDENT] 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:
[CASE NUMBER] Page 4 of 10 Created On Thu Oct 15 01:22:09 IST 2015 [CASE NUMBER] [1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The [ACT] 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."
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 [CASE NUMBER] Page 5 of 10 Created On Thu Oct 15 01:22:09 IST 2015 [CASE NUMBER] the trial court.
5.3 Even in a recent decision of the Apex Court in the case of [PRECEDENT]. Reported in [PRECEDENT], 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."
5.4 Similar principle has been laid down by the Apex Court in the cases of [PRECEDENT] and in [PRECEDENT]. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
[CASE NUMBER] Page 6 of 10 Created On Thu Oct 15 01:22:09 IST 2015 [CASE NUMBER]
5.5 In the case of [PRECEDENT] 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 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."
5.6 Even in a recent decision of the Apex Court in the case of [PRECEDENT], 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 under [SECTION] [ACT] 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 [CASE NUMBER] Page 7 of 10 Created On Thu Oct 15 01:22:09 IST 2015 [CASE NUMBER] 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.
[[PRECEDENT]]"
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 is laid down by the Apex Court in the case of [PRECEDENT] wherein it is held as under:
" This court has observed in [PRECEDENT] 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 [CASE NUMBER] Page 8 of 10 Created On Thu Oct 15 01:22:09 IST 2015 [CASE NUMBER] 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.
6.1 We find that the trial Court while considering the evidence on record, has rightly acquitted the accused on the ground that there is no satisfactory evidence to hold that the respondents had committed the alleged offence. The trial court has elaborately appreciated the evidence on record. The independent witnesses have not supported the case of the prosecution. The trial court in para 59 of the impugned judgement has discussed the reasons in detail. The trial court has observed that there are material contradictions in the evidence of witnesses. The trial court has further observed that the complainant, witness [ENTITY], witness [ENTITY] as well as witness [ENTITY] have not been satisfactorily able to explain as to how the arrow was struck by the accused persons upon the deceased and that taking into account the cross examination of P.W. 1 to P.W. 5, it is borne out that the accused persons have been roped in for the previous enmity between the complainant's family and the accused's family. We are of the opinion that the view taken by the trial Court is not required to be disturbed.
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 [CASE NUMBER] Page 9 of 10 Created On Thu Oct 15 01:22:09 IST 2015 [CASE NUMBER] 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 andorder.
8. We are, therefore, of the considered opinion that the findings recorded by the trial Court in acquitting the accused of the charge levelled against them 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.
9. Accordingly, appeal is hereby dismissed. The judgement and order dated 29.09.2007 passed by the Additional Sessions Judge, Chhota Udepur, Vadodara in [CASE NUMBER] is confirmed qua the acquittal of the respondents. Bail bond, if any, shall stand cancelled.
([ENTITY], J.) ([ENTITY], J.) divya [CASE NUMBER] Page 10 of 10 Created On Thu Oct 15 01:22:09 IST 2015