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CR.A/251/2006 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 251 of 2006
=========================================================
THE
STATE OF GUJARAT - Appellant(s)
Versus
BHURABHAI
BHANJIBHAI BRAHMAN & 3 - Opponent(s)
=========================================================
Appearance
:
MR KC SHAH, APP for
Appellant(s) : 1,
MR PS CHAUDHARY for Opponent(s) : 1 - 2,
4,
ABATED for Opponent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 11/08/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
Challenge
in the instant Appeal, filed under Section 378(1)(3)of the Code of
Criminal Procedure (for short ?Sthe Code??) is to the correctness
of the Judgment and Order dated 7.4.2005 rendered in Special Case
No. 168 of 2001 by the learned Additional Sessions Judge, 9th
Fast Track Court, Palanpur, by which the respondent ? accused came
to acquitted of the offences punishable under Sections 323, 504,
506(2), 114 Indian Penal Code (for short ?SIP Code??) and Section
135 of the Bombay Police Act and Section 3(1)(10) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
(for short ?SAtrocities Act??).
As
per the case of the complainant he was discharging his duty at
Tharad Police Station and on the date of incident i.e. On 22.3.2000
he received the messages that he is required to remain with his
father, therefore, he came to his village Bhatasana. When he reached
home his wife Khemiben and his sister-in-law (Bhabhi) Jadiben
started crying informing him that their pat dog is at the house of
the opponent ? accused No.1. On demanding pat dog from accused
No.1, he replied that they would not get the bitch. The accused
abused and threatened to burn them. The incident took place on
22.3.2000 in the evening. On 23.3.2000 at about 9 O’clock in the
night they went to his house and rebuked the opponents ? accused.
At that time the opponents ? accused came with sticks and
threatened the complainant to kill him and they insulted him by
caste.
On
registration of complaint the investigation was moved. During the
course of investigation Panchnama of scene of offfence, panchnama of
muddamal Articles, were drawn, statement of witnesses were recorded.
At
the end of the investigation, as sufficient incriminating evidence
was found against the accused for the commission of offence, the
accused was charge- sheeted in the Court of learned JMFC. As the
offence under Section 3(1)(10) of the Atrocities Act is exclusively
triable by the Court of Sessions, the learned JMFC committed the
case to the Court of Sessions.
The
learned Additional Sessions Judge, 9th Fast Track Court,
Palanpur (for short ?Sthe trial Court??) framed charge against the
accused. The accused pleaded not guilty to the charge and claimed to
be tried. Therefore, he was put to trial and tried.
To
prove the culpability of the accused, the prosecution has examined
the witnesses i.e. Complainant, other eye witnesses, panch
witnesses, and the Investigating Officer. The prosecution has also
produced number of documents to prove its case against the accused.
After
recording the evidence of the prosecution witnesses was over, the
learned trial Judge explained to the accused the circumstances
appearing against him in the evidence of the prosecution witnesses
and recorded the further statement under Section 313 of the Code. In
their further statement the accused denied the prosecution case in
toto. However, they did not produce any evidence nor examined any
witness to support their defence.
On
appreciation, evaluation, analysis and scrutiny of the evidence on
record the learned trial Judge held that the prosecution has failed
to prove the charge levelled against the accused and acquitted the
accused of the offence with which they were was charged. Against the
said Judgment and order of acquittal the State of Gujarat has filed
this present Appeal.
We
have considered the submissions advanced by Mr. K.C.Shah, learned
APP for the applicant ? appellant ? State. We have also perused
the impugned Judgment and Order. We have also undertaken a complete
and comprehensive appreciation of all vital features of the case and
the entire evidence on record which have been referred to by the
learned trial Judge in his Judgment with reference to broad and
reasonable probabilities of the case. We have also perused the
Records & proceeding which have been called for from the trial
Court.
On
thread bare examination of the evidence of the prosecution witnesses
and on re-appreciation of evidence, oral as well as documentary, it
is seen that there was dispute with regard to pat dog. All the
witnesses are family members and no independent witnesses have been
examined. In cross examination of the complainant it is seen that
the accused have dragged the complainant upto the out-skirt of
village. If that be so then the village people must have seen this
incident. But, the statement of no independent witnesses have been
record nor they are examined.
In
view of the unsatisfactory evidence led by the prosecution,
according to us, the findings recorded by the learned trial judge
are absolutely just and proper and no illegality is committed by the
learned trial Judge in acquitting the accused of the offence with
which they were charged as well as we are in complete agreement with
the findings, ultimate conclusion and resultant order of acquittal
recorded by the learned trial Judge, as, in our view, no other
conclusion is possible except the one reached by the learned trial
Judge.
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 SC
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 reappraisal 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
case of ANOKH SINGH vs. STATE OF PUNJAB, reported in
AIR 1992 SC p.598, the Hon’ble 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 learned trial Judge 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 learned trial
Judge for acquitting the accused. Suffice it to say that the
learned trial Judge 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 learned trial Judge and convince this
Court to take a view contrary to the one taken by the learned
trial Judge.
Seen
in the above context, we do not find any valid and cogent reason
or justifiable ground to interfere with the impugned judgment
and order acquitting the accused of the offence with which they were
charged.
For
the forgoing reasons, Leave to Appeal is refused and Accordingly
this Appeal is dismissed in limine.
(A.M.KAPADIA,J.)
(Z.K.SAIYED,
J.)
sas
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