[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 41 of 2004 With CRIMINAL APPEAL NO. 1166 of 2005 With CRIMINAL APPEAL NO. 1167 of 2005 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] & 1 Appellant(s) Versus [ENTITY] Opponent(s)/Respondent(s) Appearance: MR [ENTITY], ADVOCATE for the Appellant(s) No. 1 - 2 NOTICE SERVED BY DS for the Appellant(s) No. 1 - 2 [ENTITY], ADDL PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1 Page 1 of 11 HC-NIC Page 1 of 11 Created On Sat Jan 09 00:34:12 IST 2016 [CASE NUMBER] CORAM: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 05/01/2016 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE [ENTITY])
1. By way of these appeals original accused no. 1 & 2 as well as the State have challenged the judgement and order dated 19.11.2003 passed by the learned Additional Sessions Judge, Third Fast Track Court, Kheda - Nadiad in [CASE NUMBER] whereby the trial court has convicted and sentenced the accused as under. [CASE NUMBER] has been preferred by original accused nos. 1 & 2 against their conviction whereas [CASE NUMBER] has been preferred by the State for enhancement of sentence imposed upon accused no. 1 & 2 and [CASE NUMBER] has been preferred by the State against the acquittal of original accused nos. 1 to 4 recorded under [SECTION] of [ACT].
CRIMINAL SECTIONS SENTENCE APPEAL NO UNDER WHICH 41/2004. CONVICTED 304 of [ACT] for three years Code and fine of Rs. 100/-, I.D. S.I for Original Accused three months No. 1 & 2 [SECTION] of [ACT] for one year Code and fine of Rs. 100/-, I.D. S.I for one month HC-NIC Page 2 of 11 Created On Sat Jan 09 00:34:12 IST 2016 [CASE NUMBER] [SECTION] of [ACT] of [ACT] No separate sentence
2. It is the case of the prosecution that the complainant used to cultivate half of her aunt's agricultural land with her family for last 7 years from the date of incident whereas the remaining half used to be cultivated by original accused no. 1. It is the case of the prosecution that on 10.09.1999, while the complainant and her husband were fetching water in the said land, accused no. 1 came there holding a dharia in his hand along with accused nos. 2 to 4 and started abusing the complainant. It is the case of the prosecution that accused no. 1 gave a dharia blow on the head of the husband of complainant and when accused no. 2 was giving a spade blow, the complainant interfered and she sustained injury on her left and right arms. It is the case of the prosecution that accused no. 3 also gave spade blow on the shoulder of the complainant whereas accused no. 4 had caught hold of the complainant and her husband. The complainant started shouting and therefore the accused ran away from the scene of offence. The complainant's husband was taken to hospital but he succumbed to injuries after around 10 days.
2.1 The accused were apprehended and after investigation charge sheet was submitted. The case was committed to the Court of Sessions. The trial was initiated against the accused and during the course of trial the prosecution examined various witnesses whose evidences were read before us by learned advocates for both the sides. The prosecution also exhibited certain documents which have been perused by us HC-NIC Page 3 of 11 Created On Sat Jan 09 00:34:12 IST 2016 [CASE NUMBER] during the course of hearing.
2.2 At the end of the trial and after recording the statement of the accused under [SECTION] of [ACT], and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the accused nos. 1 & 2 as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the accused and the State have preferred the present appeals.
3. Mr. [ENTITY], learned advocate appearing for the accused has stated that considering the fact that considerable period of time has lapsed, this Court may take a considerate view in the matter. He submitted that the accused are remorseful and are ready and willing to pay appropriate amount as compensation to the victim and his family members.
4. Ms. [ENTITY], learned APP appearing for the respondent State has supported the order of the trial court and has submitted that the trial court has gone into the evidence in detail and has come to the conclusion that the accused are guilty of the offence so convicted of. She also submitted that the sentence imposed upon the accused is just and proper and does not deserve to be reduced or quashed.
4.1 Ms. [ENTITY] submitted that the judgement and order of the Sessions Court is against the provisions of law and that the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it HC-NIC Page 4 of 11 Created On Sat Jan 09 00:34:12 IST 2016 [CASE NUMBER] 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.
6. It is well settled that a question of a sentence is a matter of discretion and when discretion has been properly exercised along accepted judicial lines, an appellate Court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment. In a matter of enhancement, there should not be interference when the sentence passed imposes substantial sentence. Interference is only called for when it is manifestly inadequate.
6.1 Having considered minutely the evidence on record, oral as well as documentary, which we have appreciated, re- appreciated and reconsidered in light of the latest decisions of the Apex Court we find that the finding of facts as far as the conviction of the original accused nos. 1 & 2 under [SECTION], [SECTION], [SECTION] of [ACT] of [ACT] is concerned, the same is just and proper.
6.2 Having satisfied ourselves as to the correctness of the conviction of the respondent - accused by the trial court, we will now consider the question of sentence. The trial court imposed the punishment of sentence as noticed above. It is against this quantum of punishment, the appeal for enhancement is filed by the State. We find that the learned Judge of the trial Court in fact has committed a serious error in imposing the sentence upon the accused under [SECTION] Page 5 of 11 Created On Sat Jan 09 00:34:12 IST 2016 [CASE NUMBER] of [ACT]. We are of the view that accused nos. 1 & 2 ought to have been imposed upon imprisonment for a period of five years under [SECTION] of [ACT]. The enhancement appeal filed by the state therefore requires to be allowed.
6.3 However on the peculiar facts and circumstances of this case, we are of the considered opinion that the recent decision of the Apex Court in the case of [PRECEDENT] will squarely apply to the facts of the present case, inasmuch as the incident appears to have happened in a spur of moment and considering the financial condition of the accused, we have felt it appropriate that when the Apex Court has shown concern that [SECTION] of [ACT] be implemented in its proper perspective this is a fit case where we feel that the same requires to be adopted.
7. So far as acquittal appeals are concerned, 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.
HC-NIC Page 6 of 11 Created On Sat Jan 09 00:34:12 IST 2016 [CASE NUMBER]
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."
7.1 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:
[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 HC-NIC Page 7 of 11 Created On Sat Jan 09 00:34:12 IST 2016 [CASE NUMBER] 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."
7.2 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.
7.3 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 HC-NIC Page 8 of 11 Created On Sat Jan 09 00:34:12 IST 2016 [CASE NUMBER] 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."
7.4 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.
7.5 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 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."
7.6 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. from the evidence itself it is established that the prosecution has not proved its HC-NIC Page 9 of 11 Created On Sat Jan 09 00:34:12 IST 2016 [CASE NUMBER] case beyond reasonable doubt. Ms. [ENTITY], learned APP is not in a position to show any evidence to take a contrary view of 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.
8. Considering the facts and circumstances of the case coupled with the ocular as well as the documentary evidence, and considering the fact that accused persons are aged now and their financial stability is not good, we think it fit to pass the following order:
9. In the result, the impugned judgment and order of conviction and sentence dated 19.11.2003 passed by the learned Additional Sessions Judge, Third Fast Track Court, Kheda - Nadiad in [CASE NUMBER] is modified as under:
(i) The conviction imposed upon the accused no. 1 & 2 is confirmed. The acquittal of original accused nos. 1 to 4 under [SECTION] of [ACT] is also confirmed.
(ii) The sentence imposed upon original accused nos. 1 & 2 under [SECTION] of [ACT] is enhanced to R.I for five years and fine of Rs. 100/- i.d. S.I for three months.
(iii) However, in the event the accused nos. 1 & 2 pay an amount of Rs. 50,000/- each by way of compensation to the complainant under [SECTION] of [ACT] over and above the amount of fine imposed by the trial court, they HC-NIC Page 10 of 11 Created On Sat Jan 09 00:34:12 IST 2016 [CASE NUMBER] shall not be required to undergo the remaining part of sentence and the sentence they have already undergone shall be considered sufficient to meet the ends of justice.
(iv) The amount of compensation/fine shall be paid by accused nos. 1 & 2 within a period of six months from today. If the accused do not pay the amount as ordered hereinabove in time, the sentence awarded hereinabove shall stand revived and it shall be open to the concerned authorities to take accused into custody and they shall be liable to serve the remaining part of the sentence.
(v)Bail bond shall stand continued till the accused pay the amount of fine and compensation or till the expiry of six months' period whichever is earlier and the same shall stand cancelled if the accused have paid the amount of fine and compensation.
(vi) [CASE NUMBER] are allowed to the aforesaid extent.
(vii) [CASE NUMBER] stands dismissed accordingly.
(viii) The sentence awarded by the court below stands altered accordingly. R & P to be sent back to the trial court forthwith.
([ENTITY], J.) ([ENTITY],J.) divya HC-NIC Page 11 of 11 Created On Sat Jan 09 00:34:12 IST 2016