State of Gujarat vs Patel Kamlesh Naranbhai

K.S. Jhaveri, J.—All these appeals arise out of the common judgment and order dated 22.04.1997 passed by the learned Additional Sessions Judge, Mehsana Camp Patan, in Sessions Case No. 171/1994, whereby, original accused No. 3 has been convicted for the offences punishable u/s. 304 part II of the Indian Penal Code and accused Nos. 1, 2 and 4 have been acquitted of all the charges levelled against them. Criminal Appeal No. 406 of 1997 has been preferred by the original accused No. 3 against the impugned judgment and order, convicting him for the offence punishable u/s. 304 part-II of the IPC and has been sentenced to undergo rigorous imprisonment for a period of five years and fine of Rs. 500/-, in default of payment of fine, simple imprisonment for a further period of six months.

1.1. Criminal Appeal No. 627/1997 has been preferred by the State for enhancement of the sentence imposed on original accused No. 3 for conviction u/s. 304 part II of the IPC.

1.2. Criminal Appeal No. 628 of 1997 has been preferred by the State against the acquittal of original accused Nos. 1, 2 and 4 of all the charges levelled against them.

1.3. Since all these appeals arise out of the impugned judgment and order, they are disposed of by this common judgment.

The facts in brief, giving rise to filing of the present appeals are that on 01.06.1994 at about 8:30 pm. the accused had quarreled with one Arvindji Darshrathji regarding flowing of water in agriculture land and suddenly original accused No. 3 had inflicted knife blow on the back side of said Arvindji Darshrathji. Thereafter, said Arvindji was taken to nearby hospital, where he lodged the complaint against the accused persons. He, subsequently, died. In connection with the above incident, a complaint was filed by the complainant.

2.1. After completing necessary procedure, the accused were arrested and after completion of investigation, charge sheet was filed before the competent Magisterial Court. As it was a sessions triable case, the learned Magistrate committed the same to the Sessions Court, Patan. The appellants pleaded not guilty and therefore, the charge was framed and the trial was initiated.

2.2. To prove the case against the present appellant, the prosecution had examined following witnesses:- 2.3. The persecution had also relied upon several documentary evidences, more particularly the inquest Panchanama at Exh. 40, Post mortem Note at Exh. 70, Police Yadi at Exhibit 28, Panchanama of the scene of offence at Exhibit-32, Panchanama of the Muddamal weapon at Exhibit-33, Recovery Panchanama at Exhibit-45 and the original complaint. The trial Court after considering the evidence on record and after hearing the parties passed the impugned judgment and order as stated hereinabove. Being aggrieved by the same, the present appeals has been preferred.

Heard learned counsel for the respective parties and considered the documents forming part of the appeals as well as original record summoned from the trial Court.

So far as the appeal preferred by the appellant-State being Criminal Appeal No. 428 of 1997, is concerned, it seems that necessary party i.e. original accused Nos. 1, 2 and 4 are not joined as party respondents by the State, therefore, we are of the opinion that it will not be appropriate to allow the State to join the original accused Nos. 1, 2 and 4, at this stage. Even otherwise, 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 judgment 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.

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, re-appreciate 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.

5.1. 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.

5.2. Even in the case of State of Goa Vs. Sanjay Thakran and Another, , the Apex 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 judgment 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.

5.3. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh and Others, and in Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, . Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

5.4. In the case of Lunaram Vs. Bhupat Singh and Others, , the Apex Court in para 10 and 11 has held as under:-

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 anke 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 running condition.

Considering the parameters of appeal against the judgment 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.

5.5. Even in a recent decision of the Apex Court in the case of Mookkiah and Another Vs. State rep. by the Inspector of Police, Tamil Nadu, , the Apex Court in para 4 has held as under:-

It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused u/s 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration 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, ]

5.6. 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 reasonings, 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 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.

5.7. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Others Vs. State of Karnataka, .

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.

We have gone through the judgment and order passed by the trial Court. We have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned APP appearing for the appellant. We are of the considered opinion that the trial Court has rightly acquitted the original accused Nos. 1, 2 and 4. 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 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 above view of the matter, we are of the considered opinion that the Trial Court was completely justified in acquitting the original accused Nos. 1, 2 and 4 of all the charges levelled again them.

In that above view of the matter, we are of the considered opinion 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. We are in complete agreement with the reasonings given by and the findings arrived at by the Trial Court and hence find no reasons to interfere with the same.

Insofar as the appeal preferred by the original accused No. 3 being Criminal Appeal No. 406 of 1997, is concerned, from the testimony of P.W-3-Dr. Pratik Ravjibhai Patel, who has been examined vide Exhibit-69, it is proved that the deceased died a homicidal death. This witness has categorically stated that death was caused due to shock and hemorrhage on account of injury on right lung. In column Nos. 17 of the post mortem report, the injuries described as under:-

17.1. Surgically stitched wound on left ant axillary line on 5th rib region transverse of 4 cm. length. Skin edges of wound are red inflame and edematous sharply cut.

2.5. cm. long surgically stitched. Wound with read inflamed edematous sharply cut edges obliquely downward to right L.I. Plane just right to mid plane.

6 cm. long S.C. tissue deep incised wound 5 cm. of right nipple and 1 cm. below it nearly transverse.

Stab wound 1 cm. long by 0.8 cm. wide on back of trunk above iliac. Crest about 10 cm. left to mid plane transverse lateral angel broad and bruised medial angle (illegible) margin sharp. Wound on jt. 5th intercostal space is sharp edged with front angle acute and back angle broad and bruised.

This witness further stated that the injury sustained by the deceased is possible with sharp edged penetrating instrument. He further stated that the injuries sustained by the deceased was sufficient to cause death in ordinary course.

We have perused the dying declaration given by the deceased. The deceased in his dying declaration had categorically stated that on the day of incident when he was standing near the Mahadev temple, the accused persons came there and some altercations took place between them regarding flowing of water in the agriculture land. Thereafter, suddenly the accused original accused No. 3 had inflicted knife blow on the back side of the deceased. This witness further stated that other accused persons had also beaten him. Considering these aspects, we find that the presence and involvement of the original accused No. 3 in the offence, in question, has been proved by the prosecution beyond reasonable doubt. However, on perusal of the evidence of the witnesses, more particularly the dying declaration given by the deceased, it appears that the incident, in question had happened on the spur of the moment. It is also borne out that before the incident in question there were some altercations took place between the parties, which led to commission of the offence. Further, the appellant could not be said to have taken any undue advantage or acted in a cruel manner. Considering the above aspects, we are of the considered opinion that the trial Court has rightly convicted the present appellant u/s. 304 Part-II of the IPC. Further, considering the principle laid down by the Apex Court in Budhi Lal Vs. State of Uttarakhand, , the original accused No. 3 cannot be said to have committed the offence of murder. In the cited case, the Apex Court has discussed the distinction between bodily injury likely to cause death and bodily injury sufficient to cause death.

Considering the evidence on record as also considering the principle laid down by the Apex Court in the case of Budhi Lal (supra), we are of the considered opinion that the trial Court has rightly convicted the original accused No. 3 u/s. 304 part II of the IPC. We are in complete agreement with the reasonings given and the findings arrived at by the Trial Court and hence find no reason to interfere with the same. However, looking to the financial condition of the family of the accused, as also looking to the fact that incident in question, had happened in the year 1994 and we are in the year 2013, we are of the opinion that some lenient view should be taken by this Court. For the foregoing reasons, following order is passed:-

(i) The appeal preferred by Kamleshbhai Naranbhai Patel, being Criminal Appeal No. 406 of 1997 is partly allowed. The impugned judgment and order stands modified and altered to the extent that the period already undergone by the appellant is ordered to be treated as sufficient sentence u/s 304 part II of the IPC. The appellant shall deposit an amount of Rs. 10,000/- (Rupees ten thousand only) as fine before the trial Court within a period of twelve weeks from today. Since the appellant is on bail, it is held that if the appellant deposits the fine, as aforesaid, he is not required to surrender, if he is not required in connection with any other case. If the appellant does not deposit the fine as aforesaid, in default he shall have to undergo two years imprisonment.

(ii) Insofar as the appeals preferred by the State being Criminal Appeal Nos. 427 of 1997 and 428 of 1997 are concerned, the same are dismissed. R & P be sent back forthwith.

(iii) It is clarified that this judgment is passed on the basis of peculiar facts and circumstances of this case, therefore, this will not be treated as precedent.