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2016 DIGILAW 835 (GUJ)

State of Gujarat v. Shantilal Keshavbhai Patel

2016-04-14

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J 1. The appellant-State of Gujarat has preferred present appeal under Section 378(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 08/11/2006 passed by the learned Special Judge, Fast Track Court No. 3, Bharuch at Ankleshwar in Special Atrocity Case No. 23 of 2006, whereby, the learned trial Judge acquitted the original accused-the respondent herein, of the charges for the offence punishable under Section 323 and 504 of the Indian Penal Code and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. The brief facts of the prosecution case are that the complainant Naynaben-wife of Dahyabhai Amarbhai Parmar, resident of Kudadara Harijanvas, Taluka Hansot, District Bharuch lodged a complaint against present respondent alleging that the complainant was working as a labourer at the house of the accused Shantilal prior to four months from the date of incident and husband of the complainant also borrowed Rs. 250/- from the respondent-accused out of which Rs. 100/- was set off as labour charges and Rs. 150/- remained unpaid. It is further alleged that on 27/01/2006, at about 5:00 p.m. when the complainant had gone to the shop of accused Shantilal for purchasing household material, the accused demanded the outstanding amount. At that time, the complainant was not having money with her and therefore, she replied to return the money within a period of two days due to which respondent-accused got excited and gave filthy abuses to the complainant as well as slapped to the complainant. The respondent-accused has also given filthy abuses concerning her caste by using words like "sali dhedi" which insulted the complainant and thereby committed the offence punishable under Section 323 and 504 of the Indian Penal Code as well as under Section3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Therefore, the complainant had filed the complaint. Upon lodging the complaint, necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondent was arrested and, ultimately, charge-sheet was filed against him and submitted the same before the Judicial Magistrate, First Class, Hansot. Therefore, the complainant had filed the complaint. Upon lodging the complaint, necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondent was arrested and, ultimately, charge-sheet was filed against him and submitted the same before the Judicial Magistrate, First Class, Hansot. However, as the case being exclusively triable by the court of learned Special Judge, the same was committed before the learned Special Judge, Fast Track Court No. 3, Bharuch where the case was registered as Special Atrocity Case No. 23 of 2006. The trial was initiated against the respondent. 3. To prove the case against the present accused, the prosecution has examined twelve witnesses and also produced about eight documentary evidence. 4. At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 08/11/2006. 5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant-State has preferred the present appeal. 6. Heard Mr. Rutvij Oza, learned APP for the appellant-State. Though served, none appears for the respondent. 7. It was contended by learned APP that the judgment and order of the trial Court is against the provisions of law as 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. Learned APP has also taken this court through the oral as well as the entire documentary evidence. It is further submitted by learned APP that the judgment and order of acquittal passed by the learned Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also submitted by him that the learned Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting respondent for the alleged offence under Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which requires to be reverted as such and the accused is required to be convicted. Therefore, learned APP submits that the present appeal deserves to be allowed. 8. Therefore, learned APP submits that the present appeal deserves to be allowed. 8. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR., (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of the 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." 9. Further, in the case of CHANDRAPPA Vs. STATE OF KARNATAKA, reported in (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. 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. [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." 10. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views/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. 11. Even in the case of STATE OF GOA Vs. SANJAY THAKRAN & ANR., reported in (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. 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." 12. 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." 12. Similar principle has been laid down by the Apex Court in cases of STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS., 2007 A.I.R. S.C.W. 5553 and in GIRJA PRASAD (DEAD) BY L.Rs. VS. STATE OF M.P., 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 13. In the case of LUNA RAM VS. BHUPAT SINGH AND ORS., reported in (2009) SCC 749, the Apex Court in para 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." 14. Even in a recent decision of the Apex Court in the case of MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU, reported in 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. 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 reappreciate 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 vs. Sohan Lal and Others, (2004) 5 SCC 573 ]." 15. It is also a settled legal position that in acquittal appeals, 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 VS. 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." 16. In a recent decision, the Hon'ble Apex Court in SHIVASHARANAPPA & ORS. VS. In a recent decision, the Hon'ble Apex Court in SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA, JT 2013 (7) SC 66 has held as under; "That appellate Court is empowered to re-appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence." 17. 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. 18. This Court has gone through the judgment and order passed by the trial court. This Court has also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned APP for the appellant-State. It is the case of the prosecution that this corroborative evidence has not been considered by the learned trial Judge. It goes without saying that the learned trial Judge has relied on authoritative pronouncement and held that just because the present complainant belongs to a particular community, no offence is committed by the accused. The learned trial Judge has relied on the rules and section which is mandatory that the investigation must be done by the officer not below the rank of Dy. S.P. and has relied on the decision of the Apex Court in the case of Ramalinga Reddy vs. State of A.P., reported in 1992 (2) Crimes p. 343. No ingredients of Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, are made out. Learned APP has taken this Court through the detailed judgment of the trial Court, however, finding recorded by the learned trial Judge in the judgment will not permit this Court to take a different view then that taken by the learned trial Judge. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Even looking to the medical evidence, learned APP is not able to bring home the charge levelled against the accused and persuaded this Court to take a different view than that taken by the learned trial Judge. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. 19. Even looking to the medical evidence, learned APP is not able to bring home the charge levelled against the accused and persuaded this Court to take a different view than that taken by the learned trial Judge. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. 19. This Court has perused the impugned judgment as well as paper-book and also gone through the record and proceedings of learned trial court and perused the record available with the Court. As per the prosecution case, on 27/01/2006 while the complainant had gone to purchase house hold material from the shop of the respondent-accused, the accused demanded the outstanding amount from the complainant for which the complainant replied that she has not able repay the same and as and when she will be in position to pay the same, she will return the same due to which the respondent-accused got exited and talked in abusive language concerning her caste and committed offence under Section 323 and 504 of the Indian Penal Code and Section 3(1)(10) of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 20. This Court has minutely perused the oral as well as documentary evidence available on record and has gone through the judgment and order impugned passed by the trial court. This Court has also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned APP for the appellant-State. As per the prosecution case, PW-1 Sureshbhai, PW-2 Bhanabhai Kesurbhai, PW-3 Kamlaben Bhanabhai, PW-7 Ramilaben Ravjibhai and PW-10 complainant Naynaben are cited as eye witnesses to the incident. On going through the evidence of aforesaid witnesses, though the above mentioned witnesses are also eye witnesses, they have not supported the case of the prosecution and they have been declared hostile in toto as such. The evidence of the complainant has been analysed by the learned Special Judge in its own manner. As the amount was outstanding, consequently therefore, the respondent-accused demanded for repayment as such, due to which some altercation took place which resulted in filing of the complaint. In her cross examination before the court and in the further statement before the police, the complainant has stated that many persons gathered at the time of incident. As the amount was outstanding, consequently therefore, the respondent-accused demanded for repayment as such, due to which some altercation took place which resulted in filing of the complaint. In her cross examination before the court and in the further statement before the police, the complainant has stated that many persons gathered at the time of incident. When the incident occurred in presence of many persons and they were cited as eye witnesses though they did not support the case of the prosecution. No injury was found upon the complainant. In that view of the matter, learned Special Judge has narrated that the aforesaid incident occurred as lawful due amount was demanded by the respondent-accused from the complainant and as a counter blast, the complainant has lodged the complaint as such. As many as five witnesses were examined as eye witnesses to the incident, who did not support the case of the prosecution, therefore, it becomes highly doubtful to believe the evidence of the complainant in absence of any other corroborative or direct evidence on record. This Court has also gone through the record and proceedings. Learned APP has taken this Court through entire material evidence led before the learned Special Judge. On reading the same, nothing has emerged to revert the findings recorded by the learned Special Judge. Even otherwise also the learned Special Judge has recorded its own finding giving adequate reasons. This Court is also in agreement with the findings recorded by the learned Special Judge. In that view of the matter, no interference is required to be called for. The appeal is devoid of any merits and deserves to be dismissed. 21. In the above view of the matter, this Court is of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. This Court finds that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, 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. 22. In the result, the present appeal is hereby dismissed. R & P to be sent back to the trial Court, forthwith. Bail bond and bail, if any, stands cancelled. 22. In the result, the present appeal is hereby dismissed. R & P to be sent back to the trial Court, forthwith. Bail bond and bail, if any, stands cancelled. Surety also, if any given, stands discharged.