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CR.MA/2343/2010 5/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2343 of 2010
In
CRIMINAL
APPEAL No. 429 of 2010
=========================================
STATE
OF GUJARAT
Versus
NANJIBHAI
PREMJIBHAI PRAJAPATI & 4
=========================================
Appearance :
MR.
L.B.DABHI, APP for Applicant(s) : 1,
None
for Respondent(s) : 1 - 5.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 03/08/2010
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 Code for short), the Applicant
State of Gujarat has prayed to grant leave to file Criminal
Appeal No. 429 of 2010, which is directed against the judgment and
order dated 16.9.2009 rendered in Atrocity Sessions Case No. 65 of
2009 by the learned Additional Sessions Judge, Fast Track Court,
Palanpur, by which the Respondents accused ( the accused
persons for short) came to be acquitted of the offences
punishable under Sections 148, 149, 323, 504 and 506(2) of the
Indian Penal Code ( the Code for short) and Section 3(1)(X) of
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities), Act ( the Atrocity Act for short).
The
prosecution case as disclosed in the FIR and unfolded during trial
is that;
2.1 The
first informant Kuberbhai Karshanbhai Harijan was a resident of
village Manka and he had his agricultural land which was situated in
the outskirts of the said village. According to the prosecution
case, the first informant had his right of way through the
agricultural land bearing Survey Nos. 63 and 73 belonging to the
accused persons. It is alleged that the accused persons caused
obstruction to the first informant and his servants and agents to
pass through the disputed road. He instituted a Suit regarding the
same in the Mamlatdar’s Court. It is the prosecution case that on
6.9.2008 at about 11:30 am, Mamlatdar had made local inspection and
had visited the site. After he completed his work and he left, the
accused persons carrying deadly weapons assaulted upon the first
informant and his family members and the first informant
Karshanbhai and his brother PW-5 Ugrabhai sustained bodily
injuries. The accused persons uttered abusive language and
threatened the first informant of dire consequences. The accused
persons insulted the first informant Kashanbhai and his family
members in their caste name. On 18.9.2008, first informant
Karshanbhai reported the incident to police and his FIR was
registered. During the course of investigation, statements of
material witnesses were recorded, weapons were recovered from the
accused persons, the caste certificate of the first complainant was
collected. After collecting the required material for the purpose of
lodgment of charge sheet, charge sheet came to be filed in the Court
of learned Chief Judicial Magistrate, Palanpur. Since the offence
under Atrocity Act is exclusively triable by the Special Court, the
learned Chief Judicial Magistrate committed the case to the Special
Court, Palanpur, which was registered as Atrocity Sessions Case
No.65 of 2009 and the same was made over to the Court of learned
Additional Sessions Judge, Palanpur ( trial Court for short)
for trail.
2.2 The
trial Court framed charge against the accused persons, to which they
did not plead guilty and claimed to be tried. Thereupon, the
prosecution examined 10 witnesses and produced 10 documents,
detailed in paragraphs 5 and 6 respectively in the impugned judgment
and order. After the prosecution concluded its oral evidence, the
trial Court recorded further statements of the accused persons under
Section 313 of the Code, and the accused persons in their further
statements denied generally all the incriminating circumstances put
to them by the trial Court and stated that they were falsely
implicated in this case. After appreciating and analyzing the oral
and documentary evidence on record and considering the submissions
advanced on behalf of both the sides, the learned trial Judge came
to the conclusion that the prosecution failed to prove its case
beyond any reasonable doubt and ultimately recorded their acquittal,
which has given rise to this State 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 so also the record and proceedings of
Special Atrocity Sessions Case No.65 of 2009 called for by us vide
order dated 13.7.2010. 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 evidence on record, it transpires that the entire prosecution
case was based upon the testimonies of first informant PW-1
Karshanbhai examined at exh.11, PW-4 Laxmiben Karshanbhai sister
of the first informant examined at exh.20, PW-5 Ugrabhai
Karshanbhai the brother of the first informant – examined at
exh.21, PW-7 Babubhai Samatibhai – examined at exh.26 and PW-8
Dalabhai Netibhai Rabari examined at exh.27.
We
have re-examined the evidence of these witnesses and considered
their evidence. So far as PW-1 Karshanbhai and PW-5
Ugrabhai are concerned, they deposed that in the incident, all the
five accused persons were armed with deadly weapons and both of them
were beaten by the accused persons by those weapons. It transpired
that despite that fact that according to their evidence, they were
severely beaten by deadly weapons by the accused persons, no medical
evidence is adduced by the prosecution. Considering the evidence of
the injured witnesses, nothing transpires that they had ever
received any medical treatment.
Moreover,
the incident allegedly occurred on 6.9.12008 and the same came to be
reported before the police on 18.9.2008. During the course of
evidence, the first informant Karshanbhai tried to explain that
soon after the incident he had forwarded two letters to the police
wherein he had narrated the incident, but, no action was taken and
thereafter he lodged the FIR. Considering the evidence of
investigating police officer, nothing emerges that any such letter
stated by the first informant Karshanbhai in his instance was
received in the police station. The trial Court therefore rightly
came to the conclusion that the FIR was suspiciously delayed and no
satisfactory explanation was tendered explaining the delay.
Moreover,
the trial Court observed that about the dispute regarding the right
of way, proceedings before the Mamlatdar’s Court is pending.
According to the prosecution case, soon before the incident,
Mamlatdar has made local inspection to the site and at that time the
accused persons had gathered there. But after the Mamlatdar left
the place, the first informant was assaulted upon. The trial Court
observed that neither the first informant produced
any evidence showing the local inspection made by the Mamlatdar on
6.9.2008 nor during the course of investigation the investigating
officer collected any material from the office of the Mamlatdar.
The trial Court further observed that the independent witnesses were
present at the time of the alleged incident. Prosecution examined
in support of the evidence of first informant Karshanbbai his
brother and sister and no independent witnesses came to be examined
by the prosecution. Ultimately, the trial Court came to the
conclusion that the evidence adduced by the prosecution is
inconsistent, contradictory and unreliable and recorded the
acquittal of the accused persons.
On
overall view of the matter, according to us, the prosecution has
not been able to bring home the charge levelled against the accused
persons and their complicity for commission of the offence is not
established as there is 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. 429 of 2010 is dismissed.
(A.M.
Kapadia, J.)
(J.C.Upadhyaya,
J.)
Jayanti*
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