Gujarat High Court
State Of Gujarat vs Arjun Kishannath Kamale on 21 January, 2025
Author: Samir J. Dave
Bench: A.Y. Kogje, Samir J. Dave
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R/CR.A/203/1995 JUDGMENT DATED: 21/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 203 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
ARJUN KISHANNATH KAMALE & ORS.
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Appearance:
MR LB DABHI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 3,4,5
MR VISHAL B MEHTA(5319) for the Opponent(s)/Respondent(s) No. 1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 21/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE)
1. This Appeal is filed under Section 378 of the Code of
Criminal Procedure against the judgment and order dated
06.09.1994 passed by the learned Additional Sessions Judge,
Ahmedabad City in Sessions Case No.308 of 1991 and Sessions
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Case No. 354 of 1993. By the impugned judgment and order,
the respondents were acquitted of the offence punishable
under Section 143, 147, 148, 307 read with Section 149
alternatively under Section 307 read with Section 34 of the
Indian Penal Code and Section 135(1) of the Bombay Police
Act.
2. The facts of the prosecution case in brief are as under:
2.1 That, on 29.03.1991 at about 20.00 to 20.45 o'clock,
when Virendrakumar Yadav standing nearby Shubhlaxmi flats
behind the paan parlour of Bharatlal Gupta in Bapunagar area
at that time, all the accused formed unlawful assembly and out
of which, accused no.3 and 4 and absconded accused caught
hold the witness Virendrakumar and thereby, the accused
no.1 and 2 gave knife blow to Virendrakumar and thereby, the
accused have committed the offence because of keeping
grudge of giving deposition by the witness against the accused
persons in one of the earlier case and pursuant to the incident,
the First Information Report, being C.R.No. I-87 of 1988 came
to be registered with Bapunagar Police Station, Dist
Ahmedabad , for the offence under sections 341, 342, 323,
114 of the Indian Penal code and Section 135(1) of the
Bombay Police Act.
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2.2 After registration of the complaint, investigation was
conducted, Panchnama was drawn, statements of the witnesses
were recorded and upon completion of the investigation as
sufficient evidence to link the accused with crime was
revealed, the accused persons were charged-sheeted for the
aforesaid offence vide Criminal Case No. 1435/1991 and
1548/1991 as well as Criminal Case No. 567/1993.
2.3 Thereafter, as the case was exclusively triable by the
Sessions Court the same was committed to the learned Sessions
Court under Section 209 of Cr.P.C. wherein while passing
order, both the Criminal Case No. 1435/1991 and 1548/1991
were numbers as Sessions Case No. 308 of 1991 and Criminal
Case No. 567/1993 was number as Sessions Case No.
354/1993 wherein trial was initiated against the respondents-
accused persons.
2.4 To prove the guilt against the accused persons the
prosecution has examined the witnesses mentioned in the
impugned order. Similarly, in order to support the case the
prosecution, the prosecution has produced the documents
mentioned in the aforesaid judgment.
2.5 At the end of trial, after recording the statement of the
accused persons under Section 313 of Cr.P.C and hearing
arguments on behalf of prosecution and the defence, the
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learned Additional Sessions Judge, Ahmedabad City by
judgment and order dated 06.09.1994 in Sessions case No.
308 of 1991 and 354 of 1993 acquitted the accused persons
for the offence levelled against them.
2.6 Being aggrieved and dissatisfied with the aforesaid
judgment and order passed by the Sessions Court, the State has
preferred the present appeal.
3. Learned APP for the appellant-State has submitted that
the learned Sessions Judge committed serious error by
acquitting the accused persons in Sessions case No. 308 of
1991 and 354 of 1993. That, the judgment and order of
acquittal is bad in law and against the evidence on record of
the case. That, the learned trial judge erred in applying the rule
of appreciation of evidence viz. Falsus in uno falsus in
ominibus. This rule is not a rule of universal application and
requires to be applied with great caution. On the contrary the
sound rule of appreciation of evidence is to separate grain
from the scuff. That, learned Trial Judge has not appreciated
the evidence on record in proper perspective and has arrived
at erroneous conclusion. That, the learned trial Judge erred in
doubting the identification of the accused persons. The
darkness and inadequacy of light were inferences and the
learned trial Judge supported by the facts on record. It was not
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revealed by the record that in the facts and circumstances in
which the incident took place, the identification of assailant
was in fact difficult. That, the learned judge should have
appreciated that when the prosecution case come forward with
a specific case of enmity and the fact of enmity having doubled
edged implications, ie., favouring prosecution and against it
the possibility that there were a number of persons with the
name Arjun was not material at all. That, learned trial Judge
should have appreciated that PW No.5 Tekchand was an
independent witness and should have believed him. That the
learned Judge should have appreciated the value of the
evidence of PW 11 Sarojdevi since evidence was relevant
under Section 6 of the Evidence Act. Ultimately it was
submitted by learned APP for the appellant to allow present
appeal.
4. On the other side, learned advocate for the respondent
no.1 has submitted that there are contradiction regarding the
place of incident and that has been considered by learned trial
court which is proper. That learned trial court has rightly
appreciated the evidence adduced by the defence side and
rightly acquitted the accused persons. That, at the time of
concluding the case, learned trial court has considered all
chain of circumstances and thereafter, came to the conclusion
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of the case. That, learned trial court has not committed any
error in appreciation of evidence and rightly appreciated the
evidence adduced before him. Panch witness of seizing piece
of T shirt, blood stained sand and cloths of Virendra have not
supported the prosecution case and therefore, by giving benefit
of doubt, learned trial court has acquitted the accused persons.
That, in the conclusion part, learned trial court has rightly
observed that the fact has not been proved that the intention of
assault was of to commit murder as well as it is not proved that
Devendrasinh, Chandrakant, Shailesh and Mukesh were
involved in committing such injuries. Ultimately, it was
requested by learned advocate for the respondent no.1 to
dismiss present appeal.
5. 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 & Anr, reported in (2006) 6
SCC, 39, 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:
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"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."
5.1 Further, in the case of Chandrappa Vs. State of
Karnataka, reported in (2007) 4 SCC 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,
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.
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[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."
5.2 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.
5.3 Even in a recent decision of the Apex Court in the case
of State of Goa V. Sanjay Thakran & 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:
"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
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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."
5.4 Similar principle has been laid down by the Apex Court
in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors,
reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by
LRs Vs. 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.
5.5 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 reasoning, 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, reported in AIR 1981 SC 1417 wherein it is
held as under:
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".... & 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.
5.6 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.
6. 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 by the trial court and also
considered the submissions made by learned Advocate for the
appellant.
7.1 The trial Court, after appreciation of the evidence, found
that in this case, the statement of the witness Tekchand was
recorded after many days from the date of incident and he
gave the details about what act committed by which accused
by names but he was the independent witness then as to how
he can identify the accused and its any of the explanation has
not been made and his statement was recorded after five to six
days from the date of incident. The learned trial court has
found contradiction in the fact that Virendra says that present
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all the accused assaulted upon him and he knew all of them
the occasion was caused to identify his sister in law then the
question was arisen that as to why such facts were not
disclosed in the statement before the police.
7.2 The learned trial court has observed that panch witness of
panchnama of seizing piece of T shirt, blood stained sand as
well as seizing of cloths were examined but they have not
supported the case of the prosecution. The learned trial court
has observed that it is hard to believe that co-accused were
involved in the offence with the Accused Arjun and the court
has no trust about the fact that the injured is telling truth
before the court.
7.3 In this fact of situation, learned Sessions Judge has found
that there are serious lacunae in the prosecution case and the
prosecution has failed to establish the case against the
respondents. Therefore, the trial court has given the benefit of
doubt to the accused and we do not find any reason to interfere
with the said finding.
7.4 Thus, from the evidence itself it is established that the
prosecution has not proved its case beyond reasonable doubt.
Learned APP for the appellant 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
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illegality or that the decision is perverse or that the trial court
has ignored the material evidence on record.
8. In the above view of the matter, we are of the considered
opinion that the trial court was completely justified in
acquitting the respondents of the charges leveled against them.
We found 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.
9. We are, therefore, in complete agreement with the
findings, ultimate conclusion and the resultant order of
acquitting the respondents for the charges levelled against
them in Sessions case No. 308 of 1991 and 354 of 1993 and
hence find no reasons to interfere with the same. Hence the
appeal is hereby dismissed.
10. Record and Proceedings to be sent to the trial Court.
(A.Y. KOGJE, J)
(SAMIR J. DAVE,J)
K. S. DARJI
