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CR.MA/662/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 662 of 2010
In
CRIMINAL
APPEAL No. 133 of 2010
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
LAKHAMANBHAI
KUVARABHAI RAJPUT & 1 - Respondent(s)
=========================================================
Appearance :
MR
LB DABHI, ADDL.PUBLIC PROSECUTOR
for Applicant(s) : 1,
None
for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 14/07/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
By
means of filing this Application under Section 378 (1)(3) of the
Code of Criminal Procedure (“the Code” for short), the
Applicant – State of Gujarat has prayed to grant leave to file
Criminal Appeal No.133 of 2010, which is directed against the
judgment and order dated 06.07.2009 rendered in Special Case No.129
of 2008 by the learned Presiding Officer & Additional Sessions
Judge, 2nd Fast Track Court, Disa, Camp at Diyodar,
acquitting the Respondent – accused (“the accused”
for short) of the offences punishable under Sections 336, 427, 504
and 114 of the Indian Penal Code (“the Code for short”)
and Section 3(1)(X) of the Schedule Castes and Scheduled Tribes
(Prevention of Atrocities), Act 1989 (“the Atrocities Act”
for short).
The
prosecution case as disclosed in the FIR and unfolded during trial
was that;
2.1 Altercation
took place between the complainant Bhalabhai Kanjibhai Dalit and the
accused for sending someone to collect money and then the accused
used filthy language. Since complainant Bhalabhai Kanjibhai Dalit
asked for pardon, the accused got excited and started pelting stones
upon him and caused injury and, thereafter, threw the articles from
the cabin and caused damage of the cabin of complainant Bhalabhai to
the tune of Rs.500/-. Complainant Bhalabhai reported the incident to
police and his FIR was registered. During the course of
investigation, statements of material witnesses were recorded,
necessary panchamas came to be drawn by the Investigating Police
Officer in presence of panchas. After collecting required material
for the purpose of lodgment of chargesheet, chargesheet came to be
filed in the Court of learned JMFC, Diyodar. Since the offence under
the Atrocity Act is exclusively triable by the Special Court, the
learned JMFC, Diyodar committed the case to the Special Court, Disa
camp at Diyodar for trial.
2.2 Learned
Judge framed charge against the accused for the offences alleged
against them and the accused did not plead guilty and claimed to be
tried. Thereupon, the prosecution adduced oral and documentary
evidence. The prosecution examined 8 witnesses and relied upon 7
documents, detailed in paragraph 5 in the impugned judgment. After
the prosecution concluded its oral evidence, the learned trial Judge
recorded further statements of the accused under Section 313 of the
Code. The accused in their further statements denied generally all
the incriminating circumstances put to them by the trial Court and
stated that they have been falsely implicated in this case and
neither led any oral evidence nor examined any witness in support of
their defence.
2.4 At
the end of the trial, on appreciation, evaluation, analysis and
scrutiny of the evidence on record, the trial Court came to the
conclusion that the prosecution has failed to prove the charge
levelled against the accused and, therefore, complicity of the
accused was not established. On
the aforesaid finding, the trial Court acquitted the accused, giving
rise to this Application seeking leave to file the Appeal.
We
have considered the submissions advanced by Mr. L.B.Dabhi, learned
APP for the Applicant – State of Gujarat. We have perused the
impugned judgment and order and the set of evidence supplied by him
during the course of his submission, as also the R & P of
Special Case No.129 of 2008 which we had called for by order dated
29.06.2010. This Court has also undertaken a complete and
comprehensive appreciation of all vital features of the case and the
entire evidence on record with reference to broad and reasonable
probabilities of the case.
At
the outset, it may be noted that according to the trial Court the
entire prosecution case centres round the evidence of complainant
Bhalabhai Kanjibhai, examined at Exh.14. Appreciating the evidence
of the complainant, trial Court came to the conclusion that the
evidence was not such which would inspire confidence and there were
material contradictions in his evidence, which would go to the root
of the prosecution case. According to the complainant, as soon as
the accused came near his cabin, he ran away from the cabin, as some
verbal altercation took place. According to his evidence, Naga Prema
and Duda Aghra were present when the incident occurred. Prosecution
has examined only Naga Prema in this case and he was declared
hostile witness and did not support the case of the prosecution,
whereas the prosecution did not examine second witness Duda Aghra.
Appreciating the evidence adduced by the prosecution on record, the
trial Court further came to the conclusion that despite the fact
that Naga Prema happens to be close relative of the complainant,
despite this, he did not support the prosecution case. The perusal
of impugned judgment and order rendered by the trial Court and
examining the record of the case, it further transpires that it has
come on evidence that there was enmity between the complainant and
the accused on account of Gram Panchayat election. The trial Court
further noted that as admitted by the complainant in his evidence,
at the time when the accused allegedly caused damage in his cabin,
he was not present. The star eyewitness Naga Prema did not support
the case. No medical evidence is produced by the prosecution in
support of its case. At the outset, it may be noted that no
independent eyewitness, who has seen the alleged incident of using
the abusive language in public place by the accused against the
complainant, has been examined.
In
the above view of the matter, the trial Court, therefore, came to
the conclusion that the prosecution failed to prove its case beyond
any reasonable doubt against the accused and the accused deserve
benefit of doubt. Thus, the prosecution has not been able to bring
home the charge levelled against the accused and the complicity of
the accused for commission of the offence is not established and
there is no evidence against the accused to connect them with the
alleged crime.
In
view of the unsatisfactory evidence led by the prosecution, we are
of the considered opinion that no illegality or infirmity has been
committed by the trial Court in acquitting the accused of the
offences with which they were charged. We find ourselves in complete
agreement with the ultimate conclusion and the resultant order of
acquittal, as, in our view, no other conclusion was possible except
the one reached by the trial Court.
This
is an acquittal appeal. The principles which would govern and
regulate the hearing of appeal by the High Court against an order of
acquittal passed by the Trial Court have been very succinctly
explained by the Supreme Court in the matter of AJIT SAVANT
MAJAGAVI VS. STATE OF KARNATAKA, reported in AIR 1997
p.3255.
(a)
In an appeal against an order of acquittal, the High Court possesses
all the powers, and nothing less than the powers it possesses while
hearing an appeal against an order of conviction.
(b)
The High Court has the power to reconsider the whole issue,
reappraise the evidence and come to its own conclusion and findings
in place of the findings recorded by trial court, if the said
findings are against the weight of the evidence on record, or in
other words, perverse.
(c)
Before reversing the finding of acquittal, the High Court has to
consider each ground on which the order of acquittal was based and
to record its own reasons for not accepting those grounds not
subscribing to the view expressed by the trial Court that the
accused is entitled to acquittal.
(d)
In reversing the finding of acquittal, the High Court has to keep in
view the fact that the presumption of innocence is still available
in favour of the accused and the same stands fortified and
strengthened by the order of acquittal passed in his favour by the
trial Court.
(e)
If the High Court, on a fresh scrutiny and reappraised of the
evidence and other material on record, is of the opinion that there
is another view which can be reasonably taken, then the view which
favours the accused should be adopted.
(f)
The High Court has also to keep in mind that the trial Court had the
advantage of looking at the demeanour of witnesses and observing
their conduct in the Court, especially in the witness box.
(g)
The High Court has also to keep in mind that even at that stage, the
accused was entitled to benefit of doubt. The doubt should be such
as a reasonable person would honestly and conscientiously entertain
as to the guilt of the accused.
In
ANOKH SINGH vs. STATE OF PUNJAB, reported in AIR 1992
SC p.598, Supreme Court has held that in an appeal against
acquittal, the High Court should attach greater weight to
appreciation of evidence by the Trial Judge who had the occasion to
watch the demeanour of the witnesses.
It
is a cardinal principle of criminal jurisprudence that in an
acquittal appeal if other view is possible then also appellate
Court cannot substitute its own view by reversing the acquittal into
conviction, unless the findings of the trial Court are
perverse, contrary to the material on record, palpably wrong,
manifestly erroneous or demonstrably unsustainable. (See Ramesh
Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the
instant case, the learned APP has not been able to point out to us
as to how the findings recorded by the trial Court are perverse,
contrary to material on record, palpably wrong, manifestly
erroneous or demonstrably unsustainable.
On
overall appreciation of evidence, this Court is satisfied that
there is no infirmity in the reasons assigned by the trial Court for
acquitting the accused. Suffice it to say that the trial Court has
given cogent and convincing reasons for acquitting the accused and
the learned A.P.P. has failed to dislodge the reasons given by the
trial Court and convince this Court to take a view contrary to the
one taken by the trial Court.
Seen
in the above context, we do not find any valid reason or
justifiable ground to interfere with the impugned judgment
and order acquitting the accused of the offences with which they
were charged.
For
the foregoing reasons, the application fails and accordingly it is
rejected. Resultantly, leave to appeal is refused, and as a
consequence thereof, Criminal Appeal No.133 of 2010 is dismissed.
(A.M.
Kapadia, J.)
(J.C.Upadhyaya,
J.)
(binoy)
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