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CR.A/1483/2006 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1483 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.R.VORA
HONOURABLE
MR.JUSTICE M.R. SHAH
==========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
==========================================
STATE
OF GUJARAT
Versus
RAVAL
SURYAKANT KESHVALAL
==========================================
Appearance
:
MR MR MENGDEY APP
for Appellant
None for
Respondent
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA
and
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 30/06/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.R.VORA)
[1] The
above referred appeal is preferred by the State of Gujarat under the
provision of Section 378 of the Code of Criminal Procedure against
the judgment and order delivered by the learned Sessions Judge,
Special Court, Patan on 04.03.2006 in Special Atrocity Case No.29 of
2004 whereby the present respondent being accused of the said Special
Atrocity Case came to be acquitted by the trial Court for the
offences punishable under Sections 354, 323, 504 and 506(2) of the
Indian Penal Code as well as for the offence punishable under Section
3(1)(10) of the Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989. The State has also requested to grant leave
to appeal to the appellant ? State against the judgment and order
of acquittal.
[2] According
to the prosecution case, the incident occurred on 18.09.2002 at about
9.00 p.m. and the complaint has been offered by the complainant ?
Pujiben Khetabhai Vankar, aged about 48 years before Police
Inspector, at Sami Police Station on 19.09.2002. It is the
prosecution case that complainant – Pujiben Khetabhai Vankar was
Surpanch at the relevant juncture of Village : Kanij. On the day of
the incident i.e. on 18.09.2002 at about 7.00 p.m., she had been to
Village : Khijadiyari to see her daughter and after taking dinner,
she was coming back to Village : Kanij and reached at Kanij, at that
time it was darkness. After getting down from the private vehicle at
Village : Kanij, she went below the road to answer nature’s call and,
thereafter, she came on road and at that juncture, she noticed that
one motorcycle came and halted beside her. She also noticed that
motorcycle was driven by the accused. After halting the motorcycle
near the complainant, the accused threatened her that complainant had
been Surpanch and, therefore, she had become vainy,
but he (accused) was capable to murder her and to send her to Jail.
Complainant requested the accused, who was serving as Talati of the
Village, that why accused was threatening her. On accosting by the
complainant, the accused ? Talati was excited and started abusing
the complainant and started beating her with kick and fist. The
accused insulted her by caste saying that accused wanted to
indecently behave with her.
The complainant was caught by the accused and was thrown on the
ground and her blouse was torn by the accused. The complainant,
therefore, raised shouts for help and on hearing the shouts,
witnesses Thakore Bharmalbhai Lavjibhai, Suthar Rameshbhai Amthabhai
and Thakore Keshaji Parmaji came running down there and rescued the
complaint from the hands of the accused. The witnesses persuaded the
accused and, therefore, accused went away and threatened that on that
day, on account of these three witnesses she was rescued, but next
time she would be done to death. According to the prosecution case,
the motive of the assault was that accused had embezzled the amount
from Gram Panchayat allotted to Javahar Scheme and the complainant
being Surpanch had preferred complaints against the accused ?
Talati, Taluka Development Officer, Sami and District Development
Officer.
[3] The
crime came to be registered against the accused being C.R.No.121/2002
at Sami Police Station for the abovesaid offences and the
charge-sheet came to be filed in the Court of learned Judicial
Magistrate, First Class, at Sami and was committed to the Special
Court.
[4] Vide
Ex.10, charge came to be framed against the accused on 03.05.2005 by
the learned trial Judge and accused pleaded not guilty. Therefore,
the prosecution examined the following witnesses.
P.W.1
Pujiben Khetabhai
Vankar, Complainant
Ex.22
P.W.2
Bharmalji Lavjiji
Thakore, Eye Witness
Ex.23
P.W.3
Keshaji Parmaji
Thakore, Eye Witness
Ex.24
P.W.4
Dr.Dasharathbharti
Pashabharti Swami, Medical Officer, Community Health Centre,
Harij.
Ex.26
P.W.5
Velabhai Pujabhai
Nadoda – Patel, Panch of panchnamas at Ex.29 and 30.
Ex.28
P.W.6
Kantibhai Bhagabhai
Makvana, P.S.O. of Sami Police Station, who registered the
complaint of the complainant.
Ex.31
P.W.7
Rameshbhai Kantilal
Patel, Investigating Officer (P.S.I., Sami Police Station)
Ex.34
P.W.8
Girdharlal Chhogmal
Joshi, Investigating Officer (P.S.I., Sami Police Station)
Ex.35
P.W.9
Amaratbhai Halabhai
Rabari, Investigating Officer (P.S.I., Sami Police Station)
Ex.37
P.W.10
Narendrakumar
Naginbhai Chaudhari, Investigating Officer (Deputy Superintendent
of Police , Radhanpur)
Ex.39
[5] The
prosecution also produced on record the following documentary
evidence.
1.
Certificate of the
medical treatment of the complainant.
Ex.27
2.
Panchnama of scene
of offence.
Ex.29
3.
Recovery panchnama
of the blouse worn by the complainant.
Ex.30
4.
Complaint offered by
Vankar Pujiben Khetabhai.
Ex.32
5.
Depute order
Ex.33
6.
Certified copy of
the Caste Certificate
Ex.38
[6] Thereafter,
the prosecution declared the evidence to be over and hence, the
learned trial Judge recorded the statement of the accused under
Section 313 of the Code of Criminal Procedure wherein the case of the
accused was of total denial. Thereafter, learned trial Judge heard
the prosecution and defence at length and came to the above
conclusion to acquit the accused and hence, this present appeal by
the State.
[7] We
have summoned Record & Proceedings from the trial Court and we
have heard learned APP Mr.M.R. Mengdey for the appellant ? State in
respect of this appeal at length.
[8] We
have gone through the Record & Proceedings carefully and we have
scanned and re-appreciated the evidence, even at this juncture. We
have scrutinized the reasons assigned by the learned trial Judge for
acquittal. We have also considered the reasonable probabilities
arising out of circumstances which we have evaluated in this case. We
have considered the contentions raised on behalf of the appellant ?
State against the judgment and order of acquittal.
[9] On
going through the record, it appears that though the complainant
examined at Ex.22, eye witness Bharmalji Lavjiji Thakore examined at
Ex.23 and eye witness Keshaji Parmaji Thakore examined at Ex.24
attempts to support the prosecution case. Medical Officer
Dr.Dasharathbhari Pashabharti Swami examined at Ex.26, who also
deposed that on 20.09.2002, he had examined the complainant at
Community Health Centre, who had come with police yadi and
accordingly, the complainant had tenderness over the left side face
and there were no external mark of injury. Remaining witnesses are
panch witnesses and police witnesses. Witness Velabhai Pujabhai
Nadoda examined at Ex.28 as the panch of panchnama at Ex.29 of the
scene of offence and panchnama at Ex.30 by which torn blouse of the
complainant on presenting the complainant was seized by the police.
Both the panchnamas are proved. Remaining Police witnesses are;
Kantibhai Bhagabhai Makvana at Ex.31 who recorded the complaint and
entrusted the investigation to the concerned Investigating Officer
P.W. Rameshbhai Kantilal Patel examined at Ex.34, P.W. ? Girdharlal
Chhogmal Joshi examined at Ex.35, P.W.9 ? Amaratbhai Halabhai
Rabari examined at Ex.37 and P.W.10 – Narendrakumar
Naginbhai Chaudhari, examined at Ex.39, are the Investigating
Officers who have in stages investigated the offence.
[10] On re-appreciating and going through the reasons assigned by
the learned trial Judge for acquittal, it is noticed that there is an
enmity between the complainant – Surpanch and accused – Talati about
the Panchayat work. The complaint was filed on the next day which was
got typed by complainant in the Court premises and her husband P.W.
? Keshaji Parmaji Thakore had been to Police Station with her to
offer the complaint. P.W. ? Bharmalji Lavjiji Thakore could not
identify the accused in the Court and he stated that his eye sight
was very weak. Therefore, he could not identify the accused. P.W. –
Keshaji Parmaji Thakore, husband of the complainant deposed that on
hearing shouts, he reached at the scene of offence and noticed that
accused and the complainant were standing and accused was giving
abuses to the complainant, at that time, complainant was requesting
the Talati. Now re-appreciating the evidence, it clearly comes out
from the evidence that all the witnesses have deposed in
contradiction to each other which goes to the root of the case. The
complaint has been filed late on the next day and that too after due
consideration. Bharmalji Lavjiji Thakore, the witness stated that
his eye sight was very weak and in all probability he must not have
seen the incident as he was not able to identify the accused in the
Court. While P.W. – Keshaji Parmaji Thakore, husband of the
complainant deposed that complainant and Talati, both were standing
together and accused was giving abuses to the complainant and
complainant was requesting the accused. In his deposition, he stated
that the complainant had conveyed him that Talati had attempted
indecent assault upon her. While Medical Officer Dr.Dasharathbharti
Pashabharti Swami categorically stated that she had only complained
of pain on her left side of the face. But none of any of the witness
stated that the complainant was beaten on left side of the face.
There was no other visible mark and injury on the body of the
complainant. It has been proved that the say of the complainant is
not corroborated by the medical evidence and contradicted by the
evidence of other two witnesses. It has been admitted by the
complainant that between the complainant and accused being Surpanch
and Talati, the dispute was going on about the withdrawing of the
money of the Panchayat which was in the Bank and, therefore, there
was established enmity. The independent witness Parmabhai Khemabhai
was residing near the scene of offence, has not been examined by the
prosecution and, therefore, it could safely be said that the
prosecution has failed to prove the case against the accused beyond
reasonable doubt. We have gone through the reasons assigned by the
trial Court for acquittal and we find that the learned trial Judge
acquitted the accused because on account of contradiction and in
absence of medical evidence and on account of enmity. None of the
witnesses inspired any confidence. We, therefore, are of the humble
view that the conclusions arrived at by the trial Judge, are not so
perverse as to warrant any interference in this appeal against the
acquittal. Though the trial Court also discussed the breach of Rule-7
framed under the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989,
as according to the trial Court the crime was, initially, not
investigated by the officer of the rank of the Deputy Superintendent
of Police and trial was vitiated. We do not dwell upon this issue as
even otherwise on facts, the prosecution has failed to establish its
case and benefit of doubt, must go to the accused and it must result
in acquittal.
[11] In view of the
unsatisfactory evidence led by the prosecution, we are of the
considered opinion that no illegality is committed by the learned
Sessions Judge in acquitting the accused of the offences with which
he was charged and 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.
[12] 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 VS. 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
Court are perverse, contrary to material on record, palpably wrong,
manifestly erroneous or demonstrably unsustainable.
[13] In the case of
Ram Kumar Vs. State of Haryana, reported in AIR 1995 SC
280, the Supreme Court has held as under:
?SThe powers of the
High Court in an appeal from order of acquittal to reassess the
evidence and reach its own conclusions under Sections 378 and 379,
Cr.P.C. are as extensive as in any appeal against the order of
conviction. But as a rule of prudence, it is desirable that the High
Court should give proper weight and consideration to the view of the
Trial Court with regard to the credibility of the witness, the
presumption of innocence in favour of the accused, the right of the
accused to the benefit of any doubt and the slowness of appellate
Court in justifying a finding of fact arrived at by a Judge who had
the advantage of seeing the witness. It is settled law that if the
main grounds on which the lower Court has based its order acquitting
the accused are reasonable and plausible, and the same cannot
entirely and effectively be dislodged or demolished, the High Court
should not disturb the order of acquittal.??
[14] It may be noted
that this is an acquittal appeal in which Court would be slow to
interfere with the order of acquittal. Infirmities in the prosecution
case go to the root of the matter and strike a vital blow on the
prosecution case. In such a case, it would not be safe to set aside
the order of acquittal, more particularly, when the evidence has not
inspired confidence of the learned trial Judge. As this Court is in
general agreement with the view expressed by the learned trial Judge,
it is not necessary for this Court either to reiterate the evidence
of the prosecution witnesses or to restate reasons given by the
learned trial Judge for acquittal and in our view, expression of
general agreement with the view taken by the learned trial Judge
would be sufficient in the facts of the present case for not
interfering with the judgment of the learned trial Judge and this is
so, in view of the decisions rendered by the Hon’ble Supreme Court in
the case of Girja Nandini Devi and Others Vs. Bijendra Narain
Chaudhari, AIR 1967 SC 1124 and State of Karnata Vs.
Hema Reddy and Another, AIR 1981 SC 1417.
[15] 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 APP 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 Judge.
[16] 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. Hence, leave to appeal
deserves to be refused by dismissing the appeal in limine.
[17] For the reasons
stated hereinabove, leave to appeal is refused. The appeal is
dismissed at the threshold.
[[J. R. VORA,J.]
[M. R. SHAH,J.]
vijay
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