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CR.MA/457/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 457 of 2010
In
CRIMINAL
APPEAL No. 104 of 2010
With
CRIMINAL
APPEAL No. 104 of 2010
=========================================================
STATE
OF GUJARAT – Applicant(s)
Versus
PARTHIBHAI
SHAMALBHAI PATEL & 3 – Respondent(s)
=========================================================
Appearance
:
MR
LB DABHI, APP for Applicant(s) : 1,
None for Respondent(s) : 1 –
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 15/07/2010
ORAL
COMMON 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 Cr.PC for short), the
Applicant State of Gujarat has prayed to grant leave to file
Criminal Appeal No. 104 of 2010, which is directed against the
judgment and order dated 25/9/2009 rendered in Special [Atrocity]
Case No. 67 of 2009 by the learned Sessions Judge, Banaskantha at
Palanpur, whereby the Respondents accused ( the accused for
short) came to be acquitted for the offences punishable under
Sections 324 read with section 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
Atrocity Act for short) as well as under section 135 of the
Bombay Police Act.
The
prosecution case, in nutshell, is that the complainant
Nathubhai Somabhai Chauhan lodged FIR against the respondents
accused before the PSI, Vadgam Police Station disclosing that on
14/1/2009 at about 8.00 hours in the morning, while the complainant
along with his daughters Kaliben and Gitaben, was doing agricultural
work in a field, respondent no. 1 [original accused no. 1]
Parthibhai Shamalbhai Patel came with Dhariya and used filthy
language and insulted him in his caste’s name and threatened the
complainant that he had some dispute with the original owner of the
field, yet why the complainant along with his family members was
doing the agricultural work in the field.
It
is further the prosecution case that at the time of the incident,
the respondent no. 1 Parthibhai Shamalbhai attempted to inflict
blow with Dhariya on complainant Nathubhai, but at that time
original owner of the field intervened and original owner of the
field named Gitaben received injury on forehead. It is further the
prosecution case that hearing the shouting, the remaining accused,
namely respondents nos. 2, 3 and 4 came there and they started to
give kick and fist blows to daughter of the complainant named
Kaliben. It is further the prosecution case that all the respondents
accused insulted the complainant and his daughters by their
caste’s name and abused them.
The
complaint for the aforesaid incident was registered and PSI Vadgam
Police Station commenced investigation. During the course of
investigation statements of material witnesses were recorded.
Required panchnamas were drawn in presence of panchas and Muddamal
weapon Dhariya came to be seized. After collecting required material
for the purpose of lodgement of the charge-sheet, charge-sheet came
to be filed in the Court of the Ld. Chief Judicial Magistrate,
Banaskantha at Palanpur. Since the offence punishable under section
3 [1][10] of the Atrocity Act is exclusively triable by the Special
Court, the Ld. Magistrate committed the case to the Special Court,
Banaskantha at Palanpur, which was numbered as Special [Atrocity]
Case No. 67/2009.
The
Ld. Special Judge framed charge against all the respondents
accused, to which they did not plead guilty and claimed to be tried.
The prosecution examined 11 witnesses and produced 13 documents as
detailed in para 6 of the impugned judgment. After the prosecution
concluded its oral evidence, Ld. Special Judge recorded further
statements of the respondents accused under section 313
of the Cr. PC and they denied all the incriminating circumstances
put to them by the Ld. Special Judge and stated that on account of
dispute regarding land, they were falsely implicated in this case.
After appreciating the evidence on record and the statements made on
behalf of both the sides, the Ld. Special Judge, by virtue of the
impugned judgment and order recorded conviction of the respondents
accused for the offences punishable under sections 323, 504 and
506[2] of the Code and for each of the offences, SI for 3 months and
fine of Rs.500/- each and in default of payment of fine, SI for 8
days was awarded to each of the respondents accused. However,
they were released on probation for the period of 3 years as
provided under section 360 of the Code. The Ld. Special Judge
recorded acquittal of all the respondents accused for the
offence punishable under section 324 read with sec. 114 of the Code
and section 3 [1] [10] of the Atrocity Act and section 135 of the
Bombay Police Act.
We have
considered the submissions advanced by Mr. R.C. Kodekar, Ld. APP for
the applicant State and we have perused the impugned judgment
and order and the set of evidence supplied by him during the course
of his submissions. We have also perused record and proceedings of
Special [Atrocity] Case No. 67/2009, which was called for vide order
dated 1/7/2010.
Perusing
the record and proceedings, it clearly transpires that the entire
prosecution case centres round the evidence of the complainant PW 2
Nathubhai Sonabhai examined at exh. 16, PW 3 Gitaben Rajput examined
at exh. 18, PW 4 Bhavarsinh Veniram examined at exh. 19 and PW 7
Kaliben Nathabhai examined at exh. 28. We have re-examined,
re-appreciated and re-scrutinized their testimonies and we are of
the considered opinion that the Ld. Special Judge rightly came to
the conclusion that their testimonies regarding the offence
punishable under section 3 [1][10] of the Atrocity Act are shaky. We
are in complete agreement with the observations made by the Ld.
Special Judge that there are
material inconsistencies and contradictions in their evidence. So
far as the acquittal in connection with offence punishable under
section 324 of the Code is concerned, though the witnesses alleged
that Dhariya was used to cause injury, evidence reveals that reverse
part of the Dhariya was inflicted for causing the injury. It further
transpires that the evidence clearly reveals that there was dispute
regarding the land between the respondents accused, who are
members of the same family and original owner of the land, namely PW
3 Gitaben Kesarsinh Rajput.
On
overall view of the matter, according to us, the prosecution has
not been able to bring home the charge levelled against the accused
for the offences for which the respondents accused came to be
acquitted. The complicity of the accused for commission of these
offences 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 these
offences. 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. 104 of 2010 is dismissed.
(A.M.
Kapadia, J.)
(
J.C. Upadhyaya, J.)
*
Pansala.
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