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2017 DIGILAW 229 (GUJ)

State of Gujarat v. Sushilaben Ishwarbhai Panchal

2017-01-30

ABDULLAH GULAMAHMED URAIZEE

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JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. This Appeal under section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for short) is preferred to challenge the judgment and order of acquittal dated 12.1.2007 passed by Special Judge (Atrocity), Mehsana in Sessions Case 26/2006 whereby the respondents are acquitted for the offences punishable under sections 323, 504, 114 of the Indian Penal Code and 3(1) (X) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act instituted by the present appellant. 2. The brief facts of the prosecution case are that the complainant Santokben Kamabai Chamar, residing at Becharjiwala lodged a complaint on 28.8.2004 inter alia stating that on 27.8.2004 in the morning when her husband went to Ahmedabad for getting treatment to her son Ramesh for fracture in his leg at that time complainant stopped accused No. 1 to drop water in front of her house. At that time accused No. 2 came to her with abusive language and threatened her with dire consequences. Thereafter, a case was registered against the accused persons for the aforesaid offences and on completion of the investigation, the police authority submitted the charge sheet before the Magistrate and the case was triable by the sessions Judge under the provisions of 209 of Criminal Procedure Code hence the case was committed to the sessions court. 3. Charges were framed under sections 323, 504, 114 of the Indian Penal Code and 3(1) (X) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and read over and explained to the respondent. They pleaded not guilty and claimed to be tried. In order to bring home the prosecution case, the following witnesses came to be examined :- Oral evidence 1. Santokben Kamabai Complainant Exh. 9 2. Himmatsinh Raisinh witness Exh.10 3. Amarsinh Sursinh panch Exh.11 4. Chandulal witness Exh.13 5. Balkrishna witness Exh.15 Documentary evidence 1. Exh. 12 Panchnama of scene of offence 2. Exh.14 order of deputation 3. Exh.16 copy of caste certificate of Sushilaben accused 4. Exh.17 copy of caste certificate of Iswarbhai accused 5. Exh.18 copy of caste certificate of Laxmanbhai accused 6. Exh. 19 complaint of complainant 7. Exh.20 Caste certificate of complainant 4. The learned Special Judge (Atrocity) vide judgment and order dated 12.1.2007 acquitted the accused. Hence, the present appeal. 5. I have heard Ms. Exh.17 copy of caste certificate of Iswarbhai accused 5. Exh.18 copy of caste certificate of Laxmanbhai accused 6. Exh. 19 complaint of complainant 7. Exh.20 Caste certificate of complainant 4. The learned Special Judge (Atrocity) vide judgment and order dated 12.1.2007 acquitted the accused. Hence, the present appeal. 5. I have heard Ms. Reeta Chandarana, learned APP for the appellant State, Mr. Yogesh Thakore, learned advocate for the respondents is absent. I have also perused the record and proceedings of the trial court. 6. Ms. Chandarana, learned APP submits that the original complainant PW 1 Santokben in her evidence is fully supported by Himmatsinh PW2. It is her further submission that the learned trial judge has committed error in acquitting the respondents on the basis of inconsequential minor contradictions in the oral evidence. She further urges that the appeal may be allowed and the respondents may be convicted. On perusal of the evidence of original complainant PW 1 and PW2 reveals that there are material contradictions in their evidence and moreover these evidences do not attribute specific role to the respondents accused. Moreover, who spoke the offending words as regards caste of the complainant is also not clear from the evidence of the witnesses. There is no iota of evidence that the complainant was beaten by the respondents. The learned trial judge has considered the documentary and oral evidence in detail and has recorded the finding that the evidence does not inspire confidence as there are material contradictions oral and documentary evidence produced by the prosecution. The view taken by the learned trial judge is plausible which cannot be substituted by another view in the appeal. 7. The scope of the acquittal appeal under Section 378(1)(3) of the Code is limited. The Supreme Court in the case of Sadhu Saran Sing v. State of Uttar Pradesh, (2016) 4 SCC 357 , have explained this court of acquittal appeal in paragraph 20 as under : "20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration for the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal in Sambasivan v. State of Kerala, (1998) 5 SCC 412 has held: "7. The principles with regard to the scope of the powers of the appellate Court in an appeal against acquittal, are well settled. The powers of the appellate Court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate Court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate Court can interfere with the order of acquittal." This court will have to examine the evidence adduced by the prosecution and the evaluations of the evidence done by the learned Trial Judge keeping in mind. The aforesaid proposition of law, as regards the scope of the acquittal appeal. 8. It emerges from the evidence that the offending words are not attributed to any one of the respondents and therefore who spoke of the offending words is not established on record. Moreover, it further reveals that PW 2 Himmatsinh Raisinh who is the independent witness deposes about the offending words couched differently. Even the complainant Santokben Kamabhai does not state in her oral evidence that she was beaten by any of the respondents. She only stated that there was scuffle between her and the respondents but nowhere states that she had suffered any injury in this scuffle. Even the complainant Santokben Kamabhai does not state in her oral evidence that she was beaten by any of the respondents. She only stated that there was scuffle between her and the respondents but nowhere states that she had suffered any injury in this scuffle. Under the circumstances, the view adopted by the learned trial judge to acquit the respondent is plausible view and does not warrant any interference in this appeal. 9. I am therefore, of the view that the reasons and findings recorded by the learned Trial Judge to acquit the respondent cannot be said to be perverse or illegal. As a result, the learned impugned judgment of acquittal does not warrant any interference in this appeal. 10. For the foregoing reasons, the appeal fails and is hereby dismissed, judgment and order of acquittal dated 12.1.2007 recorded by the learned Special Judge (Atrocity), Mehsana in Sessions Case No. 26 of 2006 is hereby confirmed. 11. R & P is ordered to be remitted to the trial Court forthwith.