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Judgment
Z.K. Saiyed, J.—The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 17.4.2002 passed by the learned Judicial Magistrate, First Class, Modasa in Criminal Case No. 3085 of 1994 (main and allied Criminal Case No. 3104 of 1995), whereby the accused have been acquitted from the charges leveled against them.
The brief facts of the prosecution case are as under:
2.1 The complainant - Bachubhai Jumabhai Jat had made complaint before the learned Judicial Magistrate, First Class, Modasa on 12.11.1994 that on 8.11.1994, he was on duty as chowkidar, rounding on horse and he talked with his brother-in-law. At that time, police mobile van came there just behind the complainant and the constables told that Sir was calling you i.e. complainant and the complainant went there and thereafter, the complainant was taken in the mobile van to the police station and the accused had beaten the complainant in cruel manner. The incident was occurred only on the ground that the accused No. 1 - Police Officer warned the complainant not to ride on a horseback in front of the concerned police station and the complainant had defied his such warning and as result of it, the complainant had faced such irrational and egoistic blare. Therefore, the complaint was lodged against the accused for the offences punishable u/s 323 and 114 of the Indian Penal Code.
2.2 Therefore, Criminal Case No. 3085 of 1994 with respect to the aforesaid offence was filed against the respondents - original accused Nos. 1 to 3 and subsequently, Criminal Case No. 3104 of 1995 was registered against the respondent - accused No. 4 before the learned Judicial Magistrate, First Class, Modasa. The said Criminal Case No. 3104 of 1995 was later on consolidated with Criminal Case No. 3085 of 1994 (main case). Necessary investigation was carried out and statements of several witnesses were recorded. The trial was initiated against the respondents.
2.3 To prove the case against the present accused, the prosecution has examined, in all 4 witnesses and also produced documentary evidence.
2.4 At the end of trial, after recording the statement of the accused u/s 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned trial Court acquitted the respondents of all the charges leveled against them by judgment and order dated 17.4.2002.
2.5 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court the appellant has preferred the present appeal.
It was contended by learned Counsel Mr. Ramakrishnan that the judgment and order of the learned trial Court is against the provisions of law; the learned trial Court has not properly considered the evidence led by the complainant and looking to the provisions of law itself it is established that the complainant has proved the whole ingredients of the evidence against the present respondents. Learned Counsel has also taken this Court through the oral as well as the entire documentary evidence. He has contended that the learned Judge has caused miscarriage of justice by releasing the accused person on acquittal on mere assumptions and presumptions and biased approach. He has also contended that the appellant was tortured by the accused persons for the simple reason not to ride on a horseback.
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 and Another, , 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:
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.
4.1 Further, in the case of Chandrappa and Others Vs. State of Karnataka, the Apex Court laid down the following principles:
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.
4.2 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.
4.3 Even in a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran and 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:
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.
4.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh and Ors reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs v. 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.
4.5 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 State of Karnataka Vs. Hemareddy Alias Vemareddy and Another, wherein it is held as under:
This Court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, 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.
4.6 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.
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 by the trial court and also considered the submissions made by learned Counsel for the appellant.
Learned Counsel for the appellant has read the complaint, which was given in oral version before the Judicial Officer, Modasa on 12.11.1994 and it was considered by the Judicial Officer as complaint of criminal offence. On 14.11.1994, process was issued against the present respondents for the offences punishable u/s 323 and 114 of the Indian Penal Code. During the trial, the accused No. 1 - PSI - Mohanlal Shankarlal Panchal expired and therefore, his name was deleted. Learned Counsel Mr. Ramakrishnan has also read the complaint Exhibit 1 and argued that from the contents of the compliant also, the complainant has proved the case before the learned Judicial Magistrate, First Class, Modasa. He has also read oral evidence of the complainant and that of the witnesses. He has vehemently argued that tenderness is shown in medical certificate issued by the medical expert P.W. 4 - Dr. Jinabhai Amathabhai Yadav and he was examined at Exhibit 90 before the learned trial Court. He has admitted before the trial Court the meaning of tenderness. He has also admitted that no external injury was found on the body of the complainant and admitted about only tenderness. From the facts narrated by the complainant, it appears that he has a horse and he was fond of horse riding. It is admitted by the Medical Officer that during the horse riding, the injuries can be possibly caused. Therefore, the defence side has established case before the learned trial Court. No doubt that the complaint which was recorded by the learned Judicial Magistrate, First Class, from the version of the complainant. I do not find any substance in the complaint and I am of the opinion that the ingredients of Sections 323 and 114 of the Indian Penal Code were also covered by the oral version of the complainant. Learned Judicial Magistrate has issued process for the offences under Sections 323 and 114 of the Indian Penal Code. There is a provision u/s 200 of the Code of Criminal Procedure but the learned Judicial Magistrate, First Class was has not followed the said provisions. It is prima facie established on record that the process issued by the learned Judicial Magistrate, First Class is bad in law. But at this stage, this Court is in total agreement with the reasons assigned by the learned trial Court. Learned Counsel is also unable to say that as to type of error has been committed by the learned Magistrate. Therefore, no question arises to entertain this appeal. Learned Counsel is unable to show that which provisions of law are followed by the learned Magistrate and even in absence of any witness, such allegations cannot be considered in the eye of law. Even the evidence of the expert is also not helpful to the present appellant. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
Mr. Ramakrishnan, learned Counsel 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.
In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them.
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.
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. Bail bond, if any, stands cancelled. Record and proceedings to be sent back to trial Court, forthwith.