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CR.MA/1612/2010 4/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1612 of 2010
In
CRIMINAL
APPEAL No. 297 of 2010
=========================================
STATE
OF GUJARAT
Versus
JAGUBHA
NAVUBHA @ NAVALSINH JADEJA & 2
=========================================
Appearance :
MR.
L.B.DABHI, APP for Applicant(s) : 1,
None
for Respondent(s) : 1 - 3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 28/07/2010
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. 297 of 2009, which is directed against the judgment and
order dated 17.11.2009 rendered in Sessions Case No. 24 of 2007 by
the learned Presiding Officer, Fast Track Court No.3, Morbi,
recording acquittal of the Respondents accused of the offences
punishable under Sections 323, 504, 506(2) read with Section 114 of
the Indian Penal Code ( the Code for short) and Section
3(1)(10)(15) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act ( Atrocity Act for short).
The
prosecution case as disclosed in the FIR and unfolded during trial
was that;
2.1 The
first informant Hansdevbhai Ramjibhai lodged FIR against the
Respondents accused to the effect that on 16.4.2007, the
Respondents accused Nos.1 and 2, namely Jagubha Navubha and
Kuldeepsinh Kishorsinh Jadeja respectively came near his house and
they threatened the complainant on the issue of agricultural labour
work and was beaten by those two accused. It is further alleged
that on 29.4.2007, again those two accused along with Respondent No.
3 Sahdevsinh Navalsinh Jadeja came near his house and he was
abused and beaten by kick and fist blows and he was threatened as
well as he was insulted in his caste name. On 30.5.2007, the
complainant lodged the FIR regarding the incident.
2.2 During
the course of investigation, statements of material witnesses were
recorded, necessary panchnamas were drawn in presence of panchas,
Respondents accused came to be arrested, required documents like
caste certificate of the complainant, etc. were collected. After
the police collected required material for the purpose of lodgment
of charge sheet, charge sheet came to be filed in the Court of
learned Judicial Magistrate First Class, Maliya. Since the offence
under the Atrocity Act is exclusively triable by the Special Court,
the learned JMFC committed the case to the Special Court, Morbi at
Rajkot, which was registered as Special (Atrocity) Case No.24 of
2007.
2.3 The
trial Court framed charge against the three accused to which they
did not plead guilty and claimed to be tried. Thereupon, the
prosecution examined 9 witnesses and produced 10 documents detailed
in paragraphs 5 and 6 respectively in the impugned judgment and
order. After the prosecution concluded its evidence, the trial
Court recorded further statements of the three accused persons under
Section 313 of the Code and the accused in their further statements
denied generally all the incriminating circumstances brought to
their notice by the trial Court and stated that they were falsely
implicated in this case. After appreciating, analyzing and
scrutinizing the oral and documentary evidence on record and the
submissions made on behalf of both the sides, the trial Court came
to be conclusion that the prosecution failed to prove its case
beyond reasonable doubt and recorded the acquittal of the
Respondents accused.
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 so also the record and proceedings of
Special (Atrocity) Case No. 24 of 2007 called for by us from the
trial Court vide order dated 7.7.2010. 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.
Considering
the oral and documentary evidence adduced by the prosecution in this
case, it is clear that the complainant alleged two different
incidents, namely the incident dated 16.4.2007 wherein, according to
him he was threatened and was abused and beaten by Respondent
Accused Nos. 1 and 2. The second incident as alleged is dated
29.4.2007 and according to the complainant, at that time he was
beaten by all the three Respondents accused and that he was
insulted in his caste name. The complainant did not lodge any FIR
soon after the first incident or soon after the second incident,
but, clubbing both the incidents together, he lodged the FIR on
30.5.2007. Thus, the FIR was suspiciously belated, neither in the
FIR nor in the evidence of first informant Hansdevbhai Ramjibhai
PW-1 recorded at exh.6, he explained the delay in lodgment of
the FIR. The trial Court further observed that despite the fact
that the complainant alleged that he was beaten by the Respondents
accused, no medical treatment was taken by him and there was no
medical evidence on record. About the caste certificate, the trial
Court observed that the prosecution failed to prove the caste
certificate of the complainant. The trial Court further observed
that assuming that the caste certificate is proved, yet, the
evidence of first informant Hansdevbhai Ramjibhai and the
evidence of other witnesses examined by the prosecution in support
of the evidence of the first informant was not such which would
inspire confidence in the mind of the Court. The evidence was found
to be of material improvements, omissions and contradictory in
material particulars. One of the witnesses turned hostile. The
complainant alleged that because of the threat administered to him
by the Respondents accused, he had to leave the village and had
to stay in Morbi. About such allegation, the evidence revealed that
son of the complainant was serving at Morbi and therefore the
complainant went to Morbi to stay with his son. The trial Court, in
the impugned judgment, analyzing the evidence on record, further
observed that the investigation was not carried on by the competent
officer as provided in the statute.
On
overall view of the matter, the trial Court ultimately came to the
conclusion that the prosecution failed to prove its case beyond any
reasonable doubt. The prosecution has not been able to bring home
the charge levelled against the accused persons and their complicity
cannot be said to have been established as there was no cogent and
convincing evidence against the accused persons 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 persons 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 persons. Suffice it to say that the
trial Court has given cogent and convincing reasons for
acquitting the accused persons 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 persons 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. 297 of 2010 is dismissed.
(A.M.
Kapadia, J.)
(J.C.Upadhyaya,
J.)
Jayanti*
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