Gujarat High Court Case Information System
Print
CR.MA/573/2010 2/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 573 of 2010
with
CRIMINAL
APPEAL No. 114 of 2010
=========================================
STATE
OF GUJARAT - Applicant(s)
Versus
BAKULBHAI
PRABHULAL JOSHI & 6 - Respondent(s)
=========================================
Appearance :
MR.
R.C.KODEKAR, APP for Applicant(s) : 1,
None
for Respondent(s) : 1 - 7.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 14/07/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
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. 114 of 2010, which is directed against the judgment and
order dated 7.10.2009 rendered in Special Atrocity Case No. 1 of
2009 by the learned Special Judge and Presiding Officer, Fast Track
Court, Valsad, by which the Respondents accused ( the accused
persons for short) came to be acquitted of the offences
punishable under Sections 143, 147, 452, 427, 323, 504 and 506(2) of
the Indian Penal Code ( the Code for short) and under Section
3(1)(X) of the Prevention of Atrocities (Scheduled Castes and
Scheduled Tribes), Act ( the Atrocities Act for short).
The
facts of the case have been detailed in the impugned judgment and
order, and therefore, it is not necessary for us to repeat the same
verbatim and in detail in this judgment. However, the basic facts
as disclosed from FIR and unfolded during trial, which are necessary
to be discussed in this application, are as under:
2.1 The
accused persons with a view to achieve their common intention,
constituted an unlawful assembly, and by taking cause of making
application by the complainant before the Nagar Palika in relation
to water connection, by keeping grudge entered into the house of
complainant unlawfully, abused him, caused injuries and administered
threat of killing him as well as caused damage to the doors and
windows of the house and insulted the caste of complainant as well.
2.2 The
complaint for the aforesaid incident was lodged by the complainant
Sureshkumar Gulabhai Vadhia and the offence was registered against
the accused persons vide I-CR No. 14/2008 at Valsad Town Police
Station for the offences punishable under Sections 143, 147, 452,
427, 323, 504 and 506(2) of the Code and under Section 3(1)(X) of
the the Atrocities Act.
2.3 Pursuant
to the registration of the complaint, investigation was put into
motion. During the Course of investigation, statement of the
witnesses were recorded and the panchnama of the scene of the
offence was drawn.
2.4 As
sufficient incriminating evidence was found against the accused
persons, charge sheet came to be filed in the Court of learned Chief
Judicial Magistrate, Valsad. As the offence under the Atrocities
Act is exclusively triable by the Special Court, the learned Chief
Judicial Magistrate, Valsad committed the case to the Special Court,
Valsad.
2.5 The
learned Special Judge (for short the trial Court ), to whom the
case was made over for trial, framed necessary charges against the
accused persons. The accused persons pleaded not guilty to the
charge and claimed to be tried and therefore they were put to trail
and tried in Special Atrocity Case No. 1 of 2009.
2.6 To
prove the culpability of the accused, the prosecution has examined
as many as 8 witnesses and relied upon their oral testimony as well
as produced 7 documents, details of which have been narrated in
paragraphs 3 and 4 respectively of the impugned judgment and order.
2.7 After
recording of the evidence of the prosecution witnesses was over, the
trial Court explained to the accused persons, circumstances
appearing against them in deposition of the witnesses and recorded
further statement of the accused persons u/s 313 of the Code. In
their further statement also, they denied the prosecution case in
toto and reiterated that false case has been filed against them.
However, they did not lead any evidence nor examined themselves on
oath.
2.8 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 charges levelled against the
accused persons and therefore complicity of the accused persons was
not established. On the aforesaid finding, the trial Court
acquitted the accused persons, giving rise to this Application
seeking leave to file the Appeal.
We have
considered the submissions advanced by Mr. R.C.Kodekar, 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
which has been called for by this Court vide order dated 29.6.2010.
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.
To
prove the case against the accused persons, the prosecution has
mainly relied upon the evidence of PW-3 Sureshkumar Gulabbhai
Vadhia, who has inter alia, in his oral testimony stated before the
Court about the incident. However, his evidence is bristled with
lot of contradictions vis-a-vis the complaint filed by him. He has
not stated which accused has inflicted injuries to him. He has
stated that there was a mob of 30-35 persons and the incident has
taken place in the dark night. In his oral testimony the
complainant has stated that the incident has taken place at six o’
clock whereas in the complaint he has stated that the incident has
taken place in the dark night. Identification of the accused
persons itself is in dispute because he has not clarified as to
which witness has caused injury and which accused has participated
in the incident. The second injured person Savitaben the
mother of the complainant has not been examined. On reappraisal of
the evidence of PW-2 Dr. Arvindkumar Ishwarprasad Singh, it is
seen that the complainant has not given the history about the
alleged assault by the accused persons.
On
overall view of the matter, according to us, the prosecution has
failed to prove the allegations about forming of unlawful assembly
as well as using the abusive language of th caste of the complainant
by the accused persons. The prosecution has also not been able to
bring home the charge levelled against the accused persons and the
complicity of the accused persons for commission of the offence is
not established as there is no 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. 114 of 2010 is dismissed.
(A.M.
Kapadia, J.)
(J.C.Upadhyaya,
J.)
Jayanti*
Top