Thursday, February 26, 2015

Trial court acquittal means double presumption of innocence


Trial court acquittal means double presumption of innocence in favour of accused. Hubby and family acquitted by sessions court / fast track court and confirmed by HC even when there is a dying declaration

 

"... Though evidence can be re appreciated by appellate court, … 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..."

 

"...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...."

 

Note: This is a 1994 suicide / case that is decide 21 years later at the HC !!

 

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

CRIMINAL APPEAL NO. 1959 of 2004

 

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE K.J.THAKER

 

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STATE OF GUJARAT....Appellant(s)

Versus

VALIBEN,W/O.VIJANAND AAHIR, & 1....Opponent(s)/Respondent(s)

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Appearance:

MS CM SHAH APP for the Appellant(s) No. 1

PARTY-IN-PERSON for the Opponent No. 2, absent though served

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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER

 

Date : 23/02/2015

 

R/CR.A/1959/2004   JUDGMENT

 

ORAL JUDGMENT

 

1. The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 29.7.2004, passed by the learned Second Fast Track Judge, Gondal in Sessions Case No. 202/1995, whereby, the learned trial Judge acquitted the original accused - the respondent s herein, of the charges for the offence punishable under Section 498-A, 306 read with section 114 of IPC.

 

2. The brief facts of the prosecution case are that deceased Ramaben Karshanbhai had married with accused no. 2 Karshanbhai Vijanand prior to one year from the date of incident and she was residing with accused persons. It is further the case of the prosecution that accused no. 1 is the mother-in-law of the deceased and she was also residing with deceased Ramaben. It is further the case of prosecution that after her marriage she was subjected to cruelty by the accused persons on petty matter with regards to household work. It is further the case of prosecution that her husband and her mother-in-law have also stopped to talk with deceased Ramaben and therefore she was feeling insulted by members of the house, not only that, accused no. 2 has also told not to go to the house of her relatives and thereby created terror upon the deceased by the respondents. It is further the case of the prosecution that as the ill-treatment and harassment from respondents was beyond the control of her tolerance, she had committed suicide on 17.2.1994 by pouring kerosene on her body. Therefore, the complaint was lodged. The statements of other witnesses are also recorded by police. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondents were arrested and, ultimately, charge-sheet was filed against them. The case was committed to the Court of Sessions, and numbered as Sessions Case No. 202/1995. The trial was initiated against the respondents.

 

3. To prove the case against the present accused, the prosecution has examined witnesses and also produced documentary evidence.

 

4. At the end of trial, 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 trial Judge acquitted the respondents of all the charges leveled against them by judgment and order dated 29.7.2004. http://evinayak.tumblr.com http://vinayak.wordpress.com http://fromvinayak.blogspot.com

 

5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court the appellant State has preferred the present appeal.

 

6. It was contended by learned APP Ms. Shah that the judgment and order of the trial Court is against the provisions of law; the trial 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 all the ingredients of alleged charges against the present respondents. Ms. Shah learned APP has strenuously urged that the dying declaration speaks about the specific allegations against the present accused. There were mental harassment meted out to the deceased and that she had taken the extreme step of committing suicide. Ms. Shah has taken this Court through the evidence and submitted that the finding of fact regarding dying declaration is against the principle annunciated by the Apex Court and the recent decision of the Apex Court, wherein, the Apex Court has held that the dying declaration is such on which reliance can be placed and conviction should be recorded. Learned APP has also taken this court through the oral as well as the entire documentary evidence and submitted that the present appeal deserves to be allowed.

 

7. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of "M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR", (2006) 6 S.C.C. 39, the Apex Court has narrated 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 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."

 

8. Further, in the case of "CHANDRAPPA Vs. STATE OF KARNATAKA", reported in (2007) 4 S.C.C. 415, 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, 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."

                          

9. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views / 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.

 

10. Even in the case of "STATE OF GOA Vs. SANJAY THAKRAN & ANR.", reported in (2007) 3 S.C.C. 75, 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;

 

"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 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."

 

11. Similar principle has been laid down by the Apex Court in cases of "STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS.", 2007 A.I.R. S.C.W. 5553 and in "GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP", 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

 

12. In the case of "LUNA RAM VS. BHUPAT SINGH AND ORS.", reported in (2009) SCC 749, the Apex Court in para 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 postmortem 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.

 

11. 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."

 

13. Even in a recent decision of the Apex Court in the case of "MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU", reported in AIR 2013 SC 321, 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 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 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 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 State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC573]"

 

14. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite 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", AIR 1981, SC 1417, wherein it is held as under;

 

"...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) 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."

 

15. In a recent decision, the Hon'ble Apex Court in "SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA", JT 2013 (7) SC 66 has held as under;

 

"That appellate Court is empowered to re- appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."

 

16. 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.

 

17. 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 APP for the appellant-State. On going through the entire evidence, it cannot be said that the provisions of section 498A and 306 of IPC can be attracted in the facts of this case. I do not find any infirmity in the order passed by the learned trial Judge so as to interfere in this case. The judgment and order of acquittal passed by the learned trial Judge is just and proper. The testimony of the prosecution witnesses do not establish that there was any harassment meted out to the deceased. Learned APP Ms. Shah has tried to convince this Court that at least accused no. 1 has been named by the deceased in her dying declaration and the so-called complaint Exh. 64 was also very specific that her husband and mother-in-law both were threatening her. Her mother-in-law was taunting her time and again. Her mother-in-law and her husband had stopped talking with her and therefore she had felt so much grieved that she set herself ablaze. Even while perusing Exh. 67, it is very clear that her husband never give her any threat. Even her dying declaration did not point out anything about the dowry or harassment and hence, I am unable to accept the submission of Ms. Shah learned APP that this is a case where I would like to up-turn the judgment of the learned trial Judge which is a well reasoned judgment, and there is no perversity in the same. The evidence of the witnesses also will not permit this Court to take a different view than the one taken by the trial Court. Even if dying declaration is believed, this is not a case where the deceased has imparted cruelty on the husband and mother- in-law, and therefore, even believing the dying declaration to be true and truthful, this Court cannot accept the submission of Ms. Shah learned APP. The finding of fact on the touch-stone of the decision of the Apex Court will not permit this court to upturn the judgment of the trial Court. Even apart from the dying declaration, the prosecution has not proved that there was any cruelty which leading to abetment of committing suicide by wife. In the case of Mangat Ram vs. State of Haryana, reported in (2014) 12 SCC 595, the Apex Court has defined he term cruelty, and therefore, in this case, the evidence nowhere goes to show that there was cruelty to abetment of suicide of the deceased. I have appreciated the evidence on record and the view of the trial court cannot be said to be so perverse that this court requires to convict the accused. The alleged cruelty did not lead to any household work which led to committing suicide by the deceased. There was no alleged cruelty established, and therefore, when the prosecution has not succeeded in establishing the offence under section 498A and 306 of IPC, this Court cannot upturn the judgment of the trial court and taking into consideration all aspects of the matter, the prosecution has not succeeded in establishing the offences under Section 498A and 306 IPC against the respondents-accused. However, on the touch-stone of the dying declaration, I do not think that the judgment of the trial court is perverse. I am further supported in my view by the decision of the Apex Court in the case of Kuldeep Kaur v. State of Uttarakhand, reported in (2014) 10 SCC 584, and therefore, the acquittal cannot be interfered with and the present appeal requires to be dismissed. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Even looking to the evidence on record, ld. APP is not able to bring home the charge levelled against the accused and persuaded this Court to take a different view than that taken by the learned trial Judge in view of the catena of decisions of the Apex Court and the latest decision of the Apex Court in the case of State of Punjab v. Madan Mohan Lal Verma, reported in (2013) 14 SCC 153. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. http://evinayak.tumblr.com http://vinayak.wordpress.com http://fromvinayak.blogspot.com

 

18. 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.

 

19. In the result, the present appeal is hereby dismissed. R & P to be sent back to the trial Court. Bail and bail bond, if any, stands cancelled. Surety also, if any given, stands discharged.

 

(K.J.THAKER, J)

 

mandora

 

 

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist