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2016 DIGILAW 585 (GUJ)

State of Gujarat v. Gopalji Nataji

2016-03-14

K.J.THAKER

body2016
JUDGMENT Kaushal Jayendra Thaker, J. 1. The present appeal, under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C."), is directed against the judgment and order of acquittal dated 06.10.2005 passed by the learned Presiding Officer, Fast Track Court No. 9, Palanpur in Special Case No. 33/2000, whereby the learned Trial Judge acquitted the original accused of the charges for the alleged offences. 2. The brief facts of the prosecution case are that the on 16.11.1999 in the afternoon at about 12 hours at village: Changa, the respondent accused has caught hold of victim Vijaben d/o. Dhanabhai Khengarbhai Harijan and taken her away from field and thereby committed offence against chastity of woman by taking benefit of her loneliness, therefore, victim shouted for help. In the meantime, prosecution witness Mansungbhai Amthabhai on hearing shouts, came to the spot of incident and on seeing them accused ran away from the place of incident. Therefore, complainant had gone to the house of accused and gave rebuke. The accused got enraged and gave filthy abuses to the complainant relating to his case by using abusive words mentioned in the memo of appeal and thereby committed offence. On these facts, the complaint was filed before the Thara Police Station for the alleged offences under Sections 354, 323, 504 of Indian Penal Code as well as Section 3(1)(10) of Prevention of Atrocity Act, vide C.R. No. I-122 of 1993. 3. At the time of trial, evidence was led before the trial Court. The documents were produced and oral evidence of the witnesses were also recorded by the learned Magistrate Court and as the offence committed by the accused person was exclusively triable by learned Sessions Court, the same committed to the Court of learned Presiding Officer, Fast Track Court No. 9, Banaskantha at Palanpur under Section 209 of Code of Criminal Procedure, 1973, which was numbered as Special Case No. 33 of 2000, where the respondent has not pleaded guilty to the charges levelled against him and claimed to be tried. Before the Trial Court, prosecution has examined complainant, Panch witnesses and other prosecution witnesses who were supporting the case of the prosecution. The prosecution has also relied upon the documentary evidence in support of oral evidence laid by prosecution before the trial Court. Before the Trial Court, prosecution has examined complainant, Panch witnesses and other prosecution witnesses who were supporting the case of the prosecution. The prosecution has also relied upon the documentary evidence in support of oral evidence laid by prosecution before the trial Court. At the end of the trial, the learned Judge after appreciating necessary evidence laid down by the prosecution was pleased to acquit the respondent by his judgment and order of acquittal dated 06.10.2005 for the offenses with which he was charged. 4. Being aggrieved by and dissatisfied with the aforesaid judgment and order of acquittal passed by the learned Presiding Officer, Fast Track Court No. 9, Banaskantha at Palanpur, the appellant-State has preferred the present Criminal Appeal. 5. It was contended by Mr. Rutvij Oza, learned APP for the appellant-State that the judgment and order of the learned District Judge is not proper, legal and it is erroneous. He also argued that the learned District Judge has not considered the evidence of the witnesses. He argued that the accused and his family members abused and caused injury to the victim and her uncle, the evidence is contradictory in nature. He further contended that therefore, Section 323 as it reads, cannot be made out. He submitted that the judgment and order of acquittal passed by the learned Judge contrary to law, evidence on record and principles of justice. He further submitted that the said judgment is based on interferences not warranted by facts of the case and also on presumption not permitted by law. He further contended that the learned Judge has not properly appreciated oral as well as documentary evidence on record of the case and thereby committed error by acquitting respondent for the offences under Sections 354, 323 and 504 of Indian Penal Code as well as Section 3(1)(10) of Prevention of Atrocity Act. He submitted that the learned Judge has not properly appreciated the evidence of complainant Dhanabnai at Exh. 19, but fully supported the complaint at Exh. 20 and stated the fact that prior to three to four years, while his daughter was grazing the cattle’s, the respondent accused has taken benefit of her loneliness and thereby committed offense against chastity of woman. 19, but fully supported the complaint at Exh. 20 and stated the fact that prior to three to four years, while his daughter was grazing the cattle’s, the respondent accused has taken benefit of her loneliness and thereby committed offense against chastity of woman. Therefore, on receipt of information, complainant has gone to the house of respondent and gave rebuke, the accused person had got enraged and gave filthy abuses to the complainant relating to his caste by using words mentioned in the memo of appeal. He further submitted that the learned Judge has not properly appreciated the evidence of victim at Exh. 25, wherein, she has deposed that the same kind of incident had also happened prior to three to four years also. She has further deposed that when she shouted for help, prosecution witness on hearing shorts came to the spot of incident and the accused person ran away. Therefore, victim has fully supported the prosecution case and therefore, the learned Judge has no reason to acquit the respondent. He further contended that the learned Judge has not properly appreciated the evidence of PW-Mansungbhai Amthabhai at Exh. 21, wherein he has also stated the fact that on hearing shouts from victim Vijyaben, he has gone to the place of incident, the accused person has caught hold of victim and on seeing them, he ran away from the sport of the incident and thus, the learned Judge has not properly appreciated the facts of the case that respondent accused has caught hold of victim and thereby by taking benefit of her loneliness, committed offense against chastity of woman. He lastly submitted that therefore, the judgment and order passed by the District Judge requires to be quashed and set aside and the present criminal appeal is required to be allowed. 6. As against that, Mr. Vaghela, learned advocate for respondent-original accused supported the judgment and order of the learned Additional Sessions Judge, submitting that the same was passed after appreciating the evidence adduced on record by the prosecution and hence, no interference is called for with the same at the hands of this Court. He, therefore, requested that the present criminal appeal is required to be dismissed and the impugned judgment and order passed by the learned District Judge is required to be confirmed. 7. He, therefore, requested that the present criminal appeal is required to be dismissed and the impugned judgment and order passed by the learned District Judge is required to be confirmed. 7. I have heard the learned counsel for the respective parties and perused the material on record. 8. It is a settled legal position that in acquittal appeal, the Appellate Court is not required to rewrite the judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the accused and adopting the said reasons and for the reasons aforesaid, in my view, the impugned judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this appeal requires to be dismissed. 9. Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007) 3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under: "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 10. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 10. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs v. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled. 11. It is also a settled legal position that in acquittal appeal, the Appellate Court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka v. Hemareddy, reported in AIR 1981 SC 1417 , wherein, it is held as under: "... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93 : ( AIR 1967 SC 1124 ) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." 12. Thus, in case the Appellate Court agrees with the reasons and the opinion given by the Lower Court, then the discussion of evidence is not necessary. 13. I have gone through the judgment and order passed by the court below. I have also perused the oral as well as documentary evidence led by the courts below. It appears from minute study of the available evidence that no person from the nearby vicinity has ever heard the filthy or abusive words as alleged and no one has testified witness i.e. the uncle of the victim. The prosecution has failed to prove its case beyond reasonable doubt. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the Sessions Court. The prosecution has failed to prove its case beyond reasonable doubt. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the Sessions Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt and hence, this Court is unable to take a different view as taken by the trial Court as far as Section 310 of the Atrocity Act is concerned. Therefore, the criminal appeal requires to be dismissed. 14. Learned APP for the State is not in a position to show any evidence to take a contrary view of the matter or that the approach of the learned District Judge is vitiated by some manifest illegality or that the decision is perverse or that the District Judge has ignored the material evidence on record. 15. In the above view of the matter, I am of the considered opinion that the learned Presiding Officer was completely justified in acquitting the accused of the charges leveled against him. 16. I find that the findings recorded by the learned Presiding Officer are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. 17. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence, the appeal is hereby dismissed. R & P to be sent back to the trial court, forthwith. Bail bond, if any, stands cancelled.