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CR.MA/5436/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 5436 of 2010
In
CRIMINAL
APPEAL No. 857 of 2010
With
CRIMINAL
APPEAL No. 857 of 2010
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
BABU
MANDA MAKVANA (AHIR) - Respondent(s)
=========================================================
Appearance
:
MR
LB DABHI, APP for Applicant(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 27/08/2010
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 Cr. P C” for short),
the Applicant – State of Gujarat has prayed to grant leave to
file Criminal Appeal No. 857 of 2010, which is directed against the
judgment and order dated 26/2/2010 rendered in Special [Atrocity]
Case No. 2 of 2009 by the learned Addl. Sessions Judge [Special
Judge], Kutch at Gandhidham, recording acquittal of the Respondent
– accused (“the accused” for short) for the
offences punishable under Sections 504 and 506[2] 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).
The
prosecution case, as unfolded in the FIR and unwrapped during the
course of trial, is that –
2.1.
Ganeshabhai Merabhai Parmar lodged his FIR in Bhimasar Police
Station on 14/6/2008 stating that on 11/6/2008 at about 4.00 p.m.,
while he was in Adesar bus stop, respondent – accused came
near him and abused him and threatened him of dire consequences. It
is the prosecution case that daughter of the first informant
Ganeshabhai, named Hansaben PW 8 had earlier filed FIR against the
respondent accused regarding the offence of rape and, therefore, it
is alleged that respondent accused threatened the first informant
Ganeshabhai to withdraw the said complaint of rape. The FIR lodged
by first informant Ganeshabhai came to be registered. During the
course of investigation statements of material witnesses were
recorded. Necessary documents like caste certificate, etc., came to
be collected. Necessary panchnamas were drawn in presence of
panchas. 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. Judicial Magistrate First Class, Rapar. Since the
offence is exclusively triable by the Special Court [Sessions
Court], the Ld. Magistrate committed the case to the Special Court
[Sessions Court], which was registered as Special [Atrocity] Case
No. 2/2009.
3. The
trial Court framed charge against respondent accused, to which he
did not plead guilty and claimed to be tried. Thereupon the
prosecution examined 12 witnesses and produced relevant documents as
detailed in para 4 of the impugned judgment. After the prosecution
concluded its oral evidence, the trial Court recorded further
statement of the respondent – accused under section 313
of the Cr. PC and the respondent – accused in his further statement
denied generally all the incriminating circumstances brought to his
notice by the trial Court and stated that he was falsely implicated
in this case. After appreciating the oral and documentary evidence
on record and considering the submissions made on behalf of both
the sides, the trial Court came to the conclusion that the
prosecution failed to prove its case beyond any reasonable doubt and
that the respondent – accused is entitled to the benefit of
doubt and ultimately, recorded his acquittal, which has given rise
to instant State appeal.
4. We have
considered the submissions advanced by Mr. L.B. Dabhi, Ld. APP for
the applicant – State and we have examined the record and
proceedings of Special [Atrocity] Case No. 2/2009, which was
called for vide order dated 13/8/2010. 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.
5. Re-examining
and re-appreciating the oral evidence adduced by the prosecution, it
clearly transpires that the entire prosecution case centers round
the oral evidence of PW 6 Ganeshabhai Merabhai, first informant, PW
7 Gauriben Gameshabhai, wife of the first informant Ganeshabhai, PW
8 Hansaben Ganeshabhai,
daughter of first informant Ganeshabhai and PW 9 Ramesh Ganeshabhai,
son of first informant Ganeshabhai. Examining their evidence, it
transpires that the evidence of witnesses Gauriben, Hansaben and
Rameshbhai is hearsay evidence as admitted by these three witnesses
that at the time of incident, they were not present. Re-examining
and re-appreciating the evidence of PW 6 Ganeshabhai, it clearly
transpires that his evidence suffers from material omissions and
material improvements which go to the root of prosecution case. The
trial Court, analyzing the evidence of first informant Ganeshabhai
together with his FIR, rightly observed that there are
inconsistencies and contradictions not only about the time of the
incident, but even regarding the words allegedly used by the
respondent accused while insulting him in his caste name. The trial
Court further came to the conclusion that the motive attributed to
the respondent accused for commission of the offence
is that in past, Hansaben, daughter of first informant Ganeshabhai,
had lodged an FIR against respondent accused regarding offence of
rape and that according to the prosecution case, at the time of the
incident, the respondent accused threatened Ganeshabhai to withdraw
said criminal case of rape. However, examining the evidence on
record, the trial Court came to the conclusion that on the day of
the incident, the oral evidence of Hansaben in the rape case was
already over. The trial Court further observed that as per the
prosecution case, the incident
occurred on 11/6/2008, but the FIR came to be lodged on 14/6/2008
and the first informant Ganeshabhai neither in his FIR nor in his
testimony explained the delay in lodgement of FIR. The trial Court,
therefore, observed that the FIR was suspiciously belated. The trial
Court, therefore, observed that as emerged from the evidence of
first informant Ganeshabhai, the alleged incident occurred at a bus
stand where there was availability of other witnesses, yet the
prosecution examined only the first informant Ganeshabhai in
connection with this incident and no other independent witnesses
came to be examined by the prosecution. Ultimately, considering the
overall evidence on record, the trial Court came to the conclusion
that the prosecution failed to prove its case beyond any reasonable
doubt against respondent – accused and the respondent accused
was entitled to the benefit of doubt and resultantly, recorded the
acquittal of the respondent – accused.
6. 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 respondent – 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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 he was
charged.
13. 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. 857 of 2010 is dismissed.
Rule
made absolute.
(A.M.
Kapadia, J.)
(
J.C. Upadhyaya, J.)
*
Pansala.
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