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Gujarat High Court · body

2016 DIGILAW 809 (GUJ)

State of Gujara v. Mulsinh Parbatsinh Chauhan

2016-04-12

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. This is an appeal of acquittal preferred by the State of Gujarat under Section 378(3) of the Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 29.10.2004, recorded by the Additional Sessions Judge, Fast Track Court, Sabarkantha at Himmiatnagar, in Atrocity Case No. 20 of 2004. 2. It is the case of the prosecution that on 26.06.2003, the complainant went to participate in a general meeting of Gadhda Shamalji Milk Mandal, wherein common question arose for new committee as the earlier members elected their wives as a member of committee members. Therefore, the complainant alongwith others raised his voice against the same. The accused was the Secretary of Mandali who suddenly stood up and asked the complainant to go out of the meeting in abusive language i.e. "Tu Bahar Nikal, Tane Bolvano Adhikar Nathi." In turn, the complainant also told the accused that he has also no right to speak. The complainant also told the accused to speak in a manner like human being. Further, the Chairman also warned the Secretary i.e. the accused to behave properly. However, the accused did not pay any heed to instruction of Chiarman and started again speaking in bad manner i.e. "Sala tu Bahar Nikli Ja, nahitar Joya Jevi Thase". Therefore, the complainant again asked the accused to talk properly. However, accused in turn added "Sala Dheda jaldi Bahar Nikli Ja, Nahitar Jan thi Mari Nakhish". Thus, the complainant in general was humiliated by the accused for his caste. Therefore, he filed the complaint against the accused with Khedbramha Police Station. Upon filing of the complaint with Khedbramha Police Station, the investigation was carried out by the Investigating Officer, who after completion of the investigation and after drawing the necessary panchnamas as per legal procedures, as per Section 173(2)of the code of Criminal Procedure, submitted chargesheet against the present respondent-accused before the court of the learned Judicial Magistrate First class, Khedbramha. However, as the case was exclusively Sessions triable, as per Section 209 of the code of Criminal Procedure, the learned Judicial Magistrate First Class, Khedbramha committed the said case to the Sessions Court, Himmatnagar which in turn transferred the case to the present Court i.e. the learned Additional Sessions Judge, 4th Fast Track Court, Himmatnagar for final disposal. However, as the case was exclusively Sessions triable, as per Section 209 of the code of Criminal Procedure, the learned Judicial Magistrate First Class, Khedbramha committed the said case to the Sessions Court, Himmatnagar which in turn transferred the case to the present Court i.e. the learned Additional Sessions Judge, 4th Fast Track Court, Himmatnagar for final disposal. The learned trial Court framed charges against the accused-respondent to which he filed plea denying his involvement in the offence in toto and pleaded for trial. After going through the submission referred to by the learned advocates for the parties, the learned Judge vide order dated 29.10.2004 acquitted the present accused-respondent of the offences with which he was charged. Therefore, the present appeal. 3. Mr. Rutviz Oza, learned APP vehemently submitted that the judgment and order of the learned Additional Sessions Judge is against the provisions of law that the Trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved all the ingredients of alleged charges against the present respondent-accused. Learned APP has also taken this Court through the oral as well as the entire documentary evidence and submitted that the present appeal deserves to be allowed. 4. Against the said argument, Ms. Archana Patel, learned advocate for Mr. J.V. Japee, learned advocate for the respondent supported the judgment and order of the Trial Court submitting that the same was passed after appreciating the evidence adduced on record by the prosecution. She has further argued that the complainant has no locus standi as he was not member of committee though his mother was a member of Managing Society. He came to participate and the same was objected by the Secretary which was his duty cast upon him. In that eventuality, the complainant, by misusing the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, filed the present complaint against the accused which is nothing bu an abuse of process of law. She further argued that while the accused was working as a Secretary, he had filed certain civil suits against the old management and witnesses in the present case. Consequently therefore, having grudge against the present accused, they have deposed against the present accused involving him with crime in question. 5. Heard Mr. She further argued that while the accused was working as a Secretary, he had filed certain civil suits against the old management and witnesses in the present case. Consequently therefore, having grudge against the present accused, they have deposed against the present accused involving him with crime in question. 5. Heard Mr. Rutviz Oza, learned APP for the State and Ms. Archana Patel, learned advocate for Mr. J.V. Japee, learned advocate for the respondent. 6. At the outset, it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr., (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: 54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below. 6.1. Further, in the case of Chandrappa v. State of Karnataka, (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles; 42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: [1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. [3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 6.2. Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 6.3. Even in the case of State of Goa V. Sanjay Thakran & Another, (2007) 3 S.C.C. 75, the Apex 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. 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. 6.4. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors., 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs. v. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal are well settled. 6.5. In the case of Luna Ram v. Bhupat Singh and Ors., (2009) SCC 749, the Apex Court in paras-10 and 11 has held as under: 10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. 11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence. 6.6. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. v. State, rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SC 321 , the Apex Court in para 4 has held as under: 4. 6.6. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. v. State, rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SC 321 , the Apex Court in para 4 has held as under: 4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 ]. 7. It is also 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 reasons assigned by the Court below are found to be just and proper. [Vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 ]. 7. It is also 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 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, AIR 1981 SC 1417 , wherein it is held as under: ...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary ( (1967) 1 SCR 93 : AIR 1967 SC 1124 ) that it is not the duty of the Appellate 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. 7.1. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and others v. State of Karnataka, JT 2013 (7) SC 66. 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. 8. As per the prosecution case, the present respondent uttered insulting words with intention to humiliate the accused in the general meeting of the aforesaid society and further it is the case of the prosecution that at the time of uttering aforesaid words, the accused has also threatened to kill him as such. In order to prove the aforesaid case, the prosecution has examined 8 witnesses as well as placed on record, the complaint and panchanama of scene of incident and the caste certificate of the complainant. 9. On going through the impugned judgment as well as depositions of PW-1-complainant Dhirubhai, PW-3-Jasvantsinh Vadansinh Chauhan, PW-4-Lalsinh Bhemsinh Chauhan and PW-5-Alususinh Bhemsinh Chauhan, it is noticed that the accused objected to the fact that the complainant-Dhirubhai was speaking in the meeting though he was not a member of the society and he has no locus standi to speak in the meeting. He was discharging his duty as a Secretary and as the atmosphere was becoming hot, he got angry and uttered insulting word concerning the caste of the complainant. He was discharging his duty as a Secretary and as the atmosphere was becoming hot, he got angry and uttered insulting word concerning the caste of the complainant. This piece of evidence is supported by three witnesses, but while appreciating the evidence, the learned Judge, after recording demeanor on the conduct of the meeting as well as the incident which took place between the parties to the proceedings, recorded that the aforesaid witnesses as well as complainant deposed due to previous rivalry against the accused, in view of the fact that the accused being a Secretary initiated civil proceedings against the witnesses as well as old office bearers of the society. Hence, keeping grudge, they have deposed against the accused. Therefore, the learned Judge has not believed the evidence of the aforesaid witnesses. The learned Judge has also recorded that over and above aforesaid witnesses and complainant, some other persons like Kesarsinh Motisinh Dholaksinh Somasinh and Gobarbahi were also present in the aforesaid meeting and the statement were also recorded by the Police during the course of investigation. In the depositions of Investigating Officer, Udansinh Khatubhai, the defence has brought on record that the aforesaid witnesses who were present in the meeting have clearly and categorically stated that the respondent-accused has not uttered any word to insult the complainant and has not intimidated to kill the complainant. On the contrary, they have stated in their statements that the accused being Secretary has performed his duty of constituting a new committee and he has restrained the complainant from participating in the meeting as he was not a member. In that view, the complainant became angry and threw paper upon the accused and while leaving the place, he threatened the accused of taking revenge. 10. On overall appreciation of the evidence on record, the findings recorded by the learned Additional Sessions Judge is in accordance with law which calls for no interference by this Court. In view of the above, the present appeal being devoid of any merits deserve dismissal and accordingly stands dismissed and the impugned judgment and order is confirmed. Bail bond stand cancelled. No order as to costs. The Registry is directed to return the R. & P., if any, forthwith to the lower Court.