{"id":224406,"date":"2008-06-30T00:00:00","date_gmt":"2008-06-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vs-unknown-on-30-june-2008"},"modified":"2015-10-09T15:36:53","modified_gmt":"2015-10-09T10:06:53","slug":"vs-unknown-on-30-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vs-unknown-on-30-june-2008","title":{"rendered":"========================================== vs Unknown on 30 June, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
========================================== vs Unknown on 30 June, 2008<\/div>\n
Author: J.R.Vora,&Nbsp;Honourable Mr.Justice Shah,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/1483\/2006\t 12\/ 12\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 1483 of 2006\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE J.R.VORA\n \n\n  \nHONOURABLE\nMR.JUSTICE M.R. SHAH\n \n \n==========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n==========================================\n \n\nSTATE\nOF GUJARAT\n \n\nVersus\n \n\nRAVAL\nSURYAKANT KESHVALAL \n\n \n\n========================================== \nAppearance\n: \nMR MR MENGDEY APP\nfor Appellant \nNone for\nRespondent \n==========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE J.R.VORA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE M.R. SHAH\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 30\/06\/2008 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE J.R.VORA)<\/p>\n
[1]\t\tThe
\nabove referred appeal is preferred by the State of Gujarat under the
\nprovision of Section 378 of the Code of Criminal Procedure against
\nthe judgment and order delivered by the learned Sessions Judge,
\nSpecial Court, Patan on 04.03.2006 in Special Atrocity Case No.29 of
\n2004 whereby the present respondent being accused of the said Special
\nAtrocity Case came to be acquitted by the trial Court for the
\noffences punishable under Sections 354, 323, 504 and 506(2) of the
\nIndian Penal Code as well as for the offence punishable under Section
\n3(1)(10) of the Scheduled Castes and the Scheduled Tribes (Prevention
\nof Atrocities) Act, 1989. The State has also requested to grant leave
\nto appeal to the appellant ?  State against the judgment and order
\nof acquittal.\n<\/p>\n
[2]\t\tAccording
\nto the prosecution case, the incident occurred on 18.09.2002 at about
\n9.00 p.m. and the complaint has been offered by the complainant ?
\nPujiben Khetabhai Vankar, aged about 48 years before Police
\nInspector, at Sami Police Station on 19.09.2002. It is the
\nprosecution case that complainant –  Pujiben Khetabhai Vankar was
\nSurpanch at the relevant juncture of Village : Kanij. On the day of
\nthe incident i.e. on 18.09.2002 at about 7.00 p.m., she had been to
\nVillage : Khijadiyari to see her daughter and after taking dinner,
\nshe was coming back to Village : Kanij and reached at Kanij, at that
\ntime it was darkness. After getting down from the private vehicle at
\nVillage : Kanij, she went below the road to answer nature’s call and,
\nthereafter, she came on road and at that juncture, she noticed that
\none motorcycle came and halted beside her. She also noticed that
\nmotorcycle was  driven by the accused. After halting the motorcycle
\nnear the complainant, the accused threatened her that complainant had
\nbeen Surpanch and, therefore, she had become vainy,
\nbut he (accused) was capable to murder her and to send her to Jail.
\nComplainant requested the accused, who was serving as Talati of the
\nVillage, that why accused was threatening her. On accosting by the
\ncomplainant, the accused ?  Talati was excited  and started abusing
\nthe complainant and started beating her with kick and fist. The
\naccused insulted her by caste saying that accused wanted to
\nindecently behave with her.\n<\/p>\n
The complainant was caught by the accused and was thrown on the
\nground and her blouse  was torn by the accused. The complainant,
\ntherefore, raised shouts for help and on hearing the shouts,
\nwitnesses Thakore Bharmalbhai Lavjibhai, Suthar Rameshbhai Amthabhai
\nand Thakore Keshaji Parmaji came running down there and rescued the
\ncomplaint from the hands of the accused. The witnesses persuaded the
\naccused and, therefore, accused went away and threatened that on that
\nday, on account of these three witnesses she was rescued, but next
\ntime she would be done to death. According to the prosecution case,
\nthe motive of the assault was that accused had embezzled the amount
\nfrom Gram Panchayat allotted to Javahar Scheme and the complainant
\nbeing Surpanch had preferred complaints against the accused ?
\nTalati, Taluka Development Officer, Sami and District Development
\nOfficer.\n<\/p>\n
[3]\t\tThe
\ncrime came to be registered against the accused being C.R.No.121\/2002
\nat Sami Police Station for the abovesaid offences and the
\ncharge-sheet came to be filed in the Court of learned Judicial
\nMagistrate, First Class, at Sami and was committed to the Special
\nCourt.\n<\/p>\n
[4]\t\tVide
\nEx.10, charge came to be framed against the accused on 03.05.2005 by
\nthe learned trial Judge and accused pleaded not guilty. Therefore,
\nthe prosecution examined the following witnesses.\n<\/p>\n
P.W.1<\/p>\n
Pujiben Khetabhai
\n\t\t\t\tVankar, Complainant<\/p>\n
Ex.22<\/p>\n
P.W.2<\/p>\n
Bharmalji Lavjiji
\n\t\t\t\tThakore, Eye Witness<\/p>\n
Ex.23<\/p>\n
P.W.3<\/p>\n
Keshaji Parmaji
\n\t\t\t\tThakore, Eye Witness<\/p>\n
Ex.24<\/p>\n
P.W.4<\/p>\n
Dr.Dasharathbharti
\n\t\t\t\tPashabharti Swami, Medical Officer, Community Health Centre,
\n\t\t\t\tHarij.\n<\/p>\n
Ex.26<\/p>\n
P.W.5<\/p>\n
Velabhai Pujabhai
\n\t\t\t\tNadoda – Patel, Panch of panchnamas at Ex.29 and 30.\n<\/p>\n
Ex.28<\/p>\n
P.W.6<\/p>\n
Kantibhai Bhagabhai
\n\t\t\t\tMakvana, P.S.O. of Sami Police Station, who registered the
\n\t\t\t\tcomplaint of the complainant.\n<\/p>\n
Ex.31<\/p>\n
P.W.7<\/p>\n
Rameshbhai Kantilal
\n\t\t\t\tPatel, Investigating Officer (P.S.I., Sami Police Station)<\/p>\n
Ex.34<\/p>\n
P.W.8<\/p>\n
Girdharlal Chhogmal
\n\t\t\t\tJoshi, Investigating Officer (P.S.I., Sami Police Station)<\/p>\n
Ex.35<\/p>\n
P.W.9<\/p>\n
Amaratbhai Halabhai
\n\t\t\t\tRabari, Investigating Officer (P.S.I., Sami Police Station)<\/p>\n
Ex.37<\/p>\n
P.W.10<\/p>\n
Narendrakumar
\n\t\t\t\tNaginbhai Chaudhari, Investigating Officer (Deputy Superintendent
\n\t\t\t\tof Police , Radhanpur)<\/p>\n
Ex.39<\/p>\n
[5]\t\tThe
\nprosecution also produced on record the following documentary
\nevidence.\n<\/p>\n
1.<\/p>\n
Certificate of the
\n\t\t\t\tmedical treatment of the complainant.\n<\/p>\n
Ex.27<\/p>\n
2.<\/p>\n
Panchnama of scene
\n\t\t\t\tof offence.\n<\/p>\n
Ex.29<\/p>\n
3.<\/p>\n
Recovery panchnama
\n\t\t\t\tof the blouse worn by the complainant.\n<\/p>\n
Ex.30<\/p>\n
4.<\/p>\n
Complaint offered by
\n\t\t\t\tVankar Pujiben Khetabhai.\n<\/p>\n
Ex.32<\/p>\n
5.<\/p>\n
Depute order<\/p>\n
Ex.33<\/p>\n
6.<\/p>\n
Certified copy of
\n\t\t\t\tthe Caste Certificate<\/p>\n
Ex.38<\/p>\n
[6]\t\tThereafter,
\nthe prosecution declared the evidence to be over and hence, the
\nlearned trial Judge recorded the statement of the accused under
\nSection 313 of the Code of Criminal Procedure wherein the case of the
\naccused was of total denial. Thereafter, learned trial Judge heard
\nthe prosecution and defence at length and came to the above
\nconclusion to acquit the accused and hence, this present appeal by
\nthe State.\n<\/p>\n
[7]\t\tWe
\nhave summoned Record & Proceedings from the trial Court and we
\nhave heard learned APP Mr.M.R. Mengdey for the appellant ?  State in
\nrespect of this appeal at length.\n<\/p>\n
[8]\t\tWe
\nhave gone through the Record & Proceedings carefully and we have
\nscanned and re-appreciated the evidence, even at this juncture. We
\nhave scrutinized the reasons assigned by the learned trial Judge for
\nacquittal. We have also considered the reasonable probabilities
\narising out of circumstances which we have evaluated in this case. We
\nhave considered the contentions raised on behalf of the appellant ?
\nState against the judgment and order of acquittal.\n<\/p>\n
[9]\t\tOn
\ngoing through the record, it appears that though the complainant
\nexamined at Ex.22, eye witness Bharmalji Lavjiji Thakore examined at
\nEx.23 and eye witness Keshaji Parmaji Thakore examined at Ex.24
\nattempts to support the prosecution case. Medical Officer
\nDr.Dasharathbhari Pashabharti Swami examined at Ex.26, who also
\ndeposed that on 20.09.2002, he had examined the complainant at
\nCommunity Health Centre, who had come with police yadi and
\naccordingly, the complainant had tenderness over the left side face
\nand there were no external mark of injury. Remaining witnesses are
\npanch witnesses and police witnesses. Witness Velabhai Pujabhai
\nNadoda examined at Ex.28 as the panch of panchnama at Ex.29 of the
\nscene of offence and panchnama at Ex.30 by which torn blouse of the
\ncomplainant on presenting the complainant was seized by the police.
\nBoth the panchnamas are proved. Remaining Police witnesses are;
\nKantibhai Bhagabhai Makvana at Ex.31 who recorded the complaint and
\nentrusted the investigation to the concerned Investigating Officer
\nP.W. Rameshbhai Kantilal Patel examined at Ex.34, P.W. ?  Girdharlal
\nChhogmal Joshi examined at Ex.35, P.W.9 ?  Amaratbhai Halabhai
\nRabari examined at Ex.37 and P.W.10 – Narendrakumar
\nNaginbhai Chaudhari, examined at Ex.39, are the Investigating
\nOfficers who have in stages investigated the offence.\n<\/p>\n
[10]\t\tOn re-appreciating and going through the reasons assigned by
\nthe learned trial Judge for acquittal, it is noticed that there is an
\nenmity between the complainant – Surpanch and accused – Talati about
\nthe Panchayat work. The complaint was filed on the next day which was
\ngot typed by complainant in the Court premises and her husband P.W.
\n?  Keshaji Parmaji Thakore had been to Police Station with her to
\noffer the complaint. P.W. ?  Bharmalji Lavjiji Thakore could not
\nidentify the accused in the Court and he stated that his eye sight
\nwas very weak. Therefore, he could not identify the accused. P.W. –
\nKeshaji Parmaji Thakore, husband of the complainant deposed that on
\nhearing shouts, he reached at the scene of offence and noticed that
\naccused and the complainant were standing and accused was giving
\nabuses to the complainant, at that time, complainant was requesting
\nthe Talati. Now re-appreciating the evidence, it clearly comes out
\nfrom the evidence that all the witnesses have deposed in
\ncontradiction to each other which goes to the root of the case. The
\ncomplaint has been filed late on the next day and that too after due
\nconsideration.  Bharmalji Lavjiji Thakore, the witness stated that
\nhis eye sight was very weak and in  all  probability he must not have
\nseen the incident as he was not able to identify the accused in the
\nCourt. While P.W. –  Keshaji Parmaji Thakore, husband of the
\ncomplainant deposed that complainant and Talati, both were standing
\ntogether and accused was giving abuses to the complainant and
\ncomplainant was requesting the accused. In his deposition, he stated
\nthat the complainant had conveyed him that Talati had attempted
\nindecent assault upon her. While Medical Officer  Dr.Dasharathbharti
\nPashabharti Swami categorically  stated that  she had only complained
\nof pain on her left side of the face. But none of any of the witness
\nstated that the complainant was beaten on left side of the face.
\nThere was no other visible mark and injury on the body of the
\ncomplainant. It has been proved that the say of the complainant is
\nnot corroborated by the medical evidence and contradicted by the
\nevidence of other two witnesses. It has been admitted by the
\ncomplainant that between the complainant and accused being Surpanch
\nand Talati, the dispute was going on about the withdrawing of the
\nmoney of the Panchayat which was in the Bank and, therefore, there
\nwas established enmity. The independent witness Parmabhai Khemabhai
\nwas residing near the scene of offence, has not been examined by the
\nprosecution and, therefore, it could safely be said that the
\nprosecution has failed to prove the case against the accused beyond
\nreasonable doubt. We have gone through the reasons assigned by the
\ntrial Court for acquittal and we find that the learned trial Judge
\nacquitted the accused because on account of contradiction and in
\nabsence of medical evidence and on account of enmity. None of the
\nwitnesses inspired any confidence. We, therefore, are of the humble
\nview that the conclusions arrived at by the trial Judge, are not so
\nperverse as to warrant any interference in this appeal against the
\nacquittal. Though the trial Court also discussed the breach of Rule-7
\nframed under the  Scheduled
\nCastes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989,
\nas according to the trial Court the crime was, initially, not
\ninvestigated by the officer of the rank of the Deputy Superintendent
\nof Police and trial was vitiated. We do not dwell upon this issue as
\neven otherwise on facts, the prosecution has failed to establish its
\ncase and benefit of doubt, must go to the accused and it must result
\nin acquittal.\n<\/p>\n
[11]\t\tIn view of the
\nunsatisfactory evidence led by the prosecution, we are of the
\nconsidered opinion that no illegality is committed by the learned
\nSessions Judge in acquitting the accused of the offences with which
\nhe was charged and we are in complete agreement with the findings,
\nultimate conclusion and resultant order of acquittal recorded by the
\nlearned trial Judge, as, in our view, no other conclusion is possible
\nexcept the one reached by the learned trial Judge.\n<\/p>\n
[12]\t\tIt is a cardinal
\nprinciple of criminal jurisprudence that in an acquittal appeal if
\nother view is possible then also appellate Court cannot substitute
\nits own view by reversing the acquittal into conviction, unless the
\nfindings of the trial Court are perverse, contrary to the material on
\nrecord, palpably wrong, manifestly erroneous or demonstrably
\nunsustainable. (See RAMESH BABULAL DOSHI VS. STATE OF GUJARAT, (1996)
\n9 SCC 225). In the instant case, the learned APP has not been able to
\npoint out to us as to how the findings recorded by the learned trial
\nCourt are perverse, contrary to material on record, palpably wrong,
\nmanifestly erroneous or demonstrably unsustainable.\n<\/p>\n
[13]\t\tIn the case of
\nRam Kumar Vs. State of Haryana, reported in AIR 1995 SC
\n280, the Supreme Court has held as under:\n<\/p>\n
?SThe powers of the
\nHigh Court in an appeal from order of acquittal to reassess the
\nevidence and reach its own conclusions under Sections 378 and 379,
\nCr.P.C. are as extensive as in any appeal against the order of
\nconviction. But as a rule of prudence, it is desirable that the High
\nCourt should give proper weight and consideration to the view of the
\nTrial Court with regard to the credibility of the witness, the
\npresumption of innocence in favour of the accused, the right of the
\naccused to the benefit of any doubt and the slowness of appellate
\nCourt in justifying a finding of fact arrived at by a Judge who had
\nthe advantage of seeing the witness. It is settled law that if the
\nmain grounds on which the lower Court has based its order acquitting
\nthe accused are reasonable and plausible, and the same cannot
\nentirely and effectively be dislodged or demolished, the High Court
\nshould not disturb the order of acquittal.??\n<\/p>\n
[14]\t\tIt may be noted
\nthat this is an acquittal appeal in which Court would be slow to
\ninterfere with the order of acquittal. Infirmities in the prosecution
\ncase go to the root of the matter and strike a vital blow on the
\nprosecution case. In such a case, it would not be safe to set aside
\nthe order of acquittal, more particularly, when the evidence has not
\ninspired confidence of the learned trial Judge.  As this Court is in
\ngeneral agreement with the view expressed by the learned trial Judge,
\nit is not necessary for this Court either to reiterate the evidence
\nof the prosecution witnesses or to restate reasons given by the
\nlearned trial Judge for acquittal and in our view, expression of
\ngeneral agreement with the view taken by the learned trial Judge
\nwould be sufficient in the facts of the present case for not
\ninterfering with the judgment of the learned trial Judge and this is
\nso, in view of the decisions rendered by the Hon’ble Supreme Court in
\nthe case of Girja Nandini Devi and Others Vs. Bijendra Narain
\nChaudhari, AIR 1967 SC 1124 and State of Karnata Vs.
\nHema Reddy and Another, AIR 1981 SC 1417.\n<\/p>\n
[15]\t\tOn overall
\nappreciation of evidence, this Court is satisfied that there is no
\ninfirmity in the reasons assigned by the learned trial Judge for
\nacquitting the accused. Suffice it to say that the learned trial
\nJudge has given cogent and convincing reasons for acquitting the
\naccused and the learned APP has failed to dislodge the reasons given
\nby the learned trial Judge and convince this Court to take a view
\ncontrary to the one taken by the learned Judge.\n<\/p>\n
[16]\tSeen in the above
\ncontext, we do not find any valid reason or justifiable ground to
\ninterfere with the impugned judgment and order acquitting the accused
\nof the offences with which they were charged. Hence, leave to appeal
\ndeserves to be refused by dismissing the appeal in limine.\n<\/p>\n
[17]\t\tFor the reasons
\nstated hereinabove, leave to appeal is refused. The appeal is
\ndismissed at the threshold.\n<\/p>\n
[[J. R. VORA,J.]
\n         [M. R. SHAH,J.]<\/p>\n
vijay<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court ========================================== vs Unknown on 30 June, 2008 Author: J.R.Vora,&Nbsp;Honourable Mr.Justice Shah,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-224406","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\n========================================== vs Unknown on 30 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vs-unknown-on-30-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"========================================== vs Unknown on 30 June, 2008 - 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