K.S. Jhaveri, J.@mdashThe present appeal, under section 378 of 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. 38 of 2003 whereby the accused have been acquitted of the charges leveled against them by granting benefit of doubt.
2. The brief facts of the prosecution case are that on 24.11.2002 at around 06.50 p.m., all the accused with an intention to kill Mr. Hemant Babubhai Chavda, attacked him and tried to take life of the son of the complainant. A complaint was therefore lodged by the complainant and they charged under various sections, namely, 141 , 143 , 147 , 148 , 307 read with 149 of Indian Penal Code and Section 135(1) of Bombay Police Act. 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 following witnesses as oral evidence:
2.2 The prosecution also produced following documents as documentary evidence.
3. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge acquitted the respondents of all the charges leveled against them by granting them benefit of doubt 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.
4. Mr. J.K. Shah, learned APP appearing for the appellant-State has submitted that the trial court committed an error in releasing the respondents-accused. It was contended by Mr. Shah, 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/s.
5. Ms. Hetvi H. Sancheti, learned advocate appearing for the respondents supported the impugned judgement and order and submitted that the same having been passed in accordance with law does not call for any interference. She submitted that the prosecution has failed to prove the case against the respondents beyond reasonable doubt.
6. 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
"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."
6.1 Further, in the case of
"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 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."
6.2 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.
6.3 Even in a recent decision of the Apex Court in the case of
"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. 17."
6.4 Similar principle has been laid down by the Apex Court in the cases of
6.5 In the case of
"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."
6.6 Even in a recent decision of the Apex Court in the case of
"4. 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 under Section 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 file d 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 reappreciate 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
6.7 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 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
"& This court has observed in
6.8 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.
7. 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.
8. We find that the trial Court while considering the evidence on record, has very elaborately discussed the evidence on record. The trial court has granted benefit of doubt to the accused respondent. It shall not be out of place to mention that some of the witnesses have not supported the case of the prosecution. The trial court has discussed in detail the evidence in para 48 of the impugned judgement and order which reads as under:
"48. Trial Court has observed that when Hemant was taken to hospital, he was conscious. When he was admitted in ward, at that time, he was conscious. On 25.11.2002, when he was in Civil Hospital, Ahmedabad, he was conscious, though, it was shown that Hemant was unconscious. Trial Court further observed that no statement of Babubhai was taken by PSI, Jayendrsinh. The statement of Mr. Hemant was taken on 1.12.2002 by the police and it differed from the statement given vide Exh. 109. The trial Court also observed that this evidence of the complainant is not clear. The complainant has established that all these injuries have been there but it was not established that the same was on account of accused persons".
9. We are in complete agreement with the reasonings. 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.
10. 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 by granting them benefit of doubt 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.
11. In the result, appeal is hereby dismissed. The judgment and order dated 28.04.2006 passed by the Sessions Judge, Jamnagar in Sessions Case No. 38 of 2003 is confirmed qua the acquittal of the respondents. Bail bond, if any, shall stand cancelled. R & P, if lying with this Court, to be sent back forthwith.
