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2020 DIGILAW 144 (GUJ)

Ratnabhai Kumbhabhai Varan v. State of Gujarat

2020-01-23

A.C.RAO, BELA M.TRIVEDI

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JUDGMENT : Bela M. Trivedi, J. 1. The appellant–original complainant has preferred the present appeal under Section 372 of Cr. P.C., challenging the judgement and order dated 30.11.2019 passed by the Additional Special Judge, Sessions Court, Banaskantha at Tharad (hereinafter referred to as “the Sessions Court”) in Sessions Case No.90 of 2018 (Old Case No.105/2017), whereby the Sessions Court has acquitted respondents-original accused from the charges levelled against them for the offences under sections 450, 427, 504, 506(1) and 114 of the Indian Penal Code. 2. The case of the prosecution before the Sessions Court in nutshell was that the complainant was residing at village Chudmer, and on the date of incident i.e. on 29.05.2017 when the appellant-complainant was sleeping outside his house in the open space, all the accused came to his house at about 10.00 p.m. and started quarreling with the complainant that why he had taken side of his nephew Laxmanbhai, and also started giving threats to him. Hence, the appellant-complainant ran away from his house and went to his field to inform his sons. Thereafter, when he returned to his house, he saw that his house was burnt and all the accused had run away. He therefore lodged a complaint before the Tharad police station, which was registered as C.R. No.I84/2017. The Investigating Officer, after completing the investigation and collecting sufficient evidence against the accused had laid the charge-sheet before the Court of Judicial Magistrate First Class, Tharad. The offence being triable by the Court of Sessions, the said case was committed to the Sessions Court, Banaskantha at Tharad under Section 209 of Cr.P.C., where it was registered as Sessions Case No.90 of 2018 (Old Case No.105 of 2017). 3. The prosecution to prove the charges levelled against the respondents-accused had examined as many as 7 witnesses out of which the complainant-Rantabhai was examined at Exh.17, P.W.2 Mohanbhai Joddhabhai, who happened to be the Panchwitness in respect of the panchnama of the scene of offence was examined at Exh.21, P.W.3Chamnabhai Ratnabhai, son of the complainant was examined at Exh.22, P.W.4 laxmanbhai Joddhbhai, nephew of the complainant was examined at Exh.23, P.W.5PSO Jagdishbhai Chaturbhai was examined at Exh.27 and Investigating Officers Ravjibhai Rupsibhai Bhatt and Babubhai Ranchhodbhai Patel were examined at Exh.29 and Exh.47 respectively. 4. Learned Advocate Mr. 4. Learned Advocate Mr. R.D. Chauhan relying upon the said evidence adduced by the prosecution, more particularly of the complainant, submitted that the complainant had specifically made allegations against the accused that they had come to his house during night hours on the date of the incident and started quarreling and threatening the complainant and thereafter had burnt the house. According to to him, there was no reason to disbelieve his version. He also submitted that the said version of the complainant was corroborated by other witnesses, who happened to be his son and nephew. According to him, no independent witness had come forward to give their statements as transpiring from the evidence of the Investigating Officer and therefore, independent witness has not been examined nonetheless merely because the other witnesses happened to be relatives of the complainant their evidence could not be discarded. 5. Having regard to the submissions made by learned Advocate Mr.Chauhan for the appellant-complainant and to the evidence on record and considering the findings recorded by the Sessions Court, it appears that the prosecution had failed to examine any independent witness in support of version of the complainant. The only witnesses examined by the complainant are his son and his nephew. It is true that merely because the witnesses happened to be relatives of the complainant, their versions cannot be discarded, nonetheless as admitted by them, none had seen the accused burning the house of the complainant. Even the complainant in his cross-examination had admitted that when accused started quarreling with him, he had left his house and gone to his field, and that when he returned, all the accused had left and his house was burning. He himself had also not seen as to who had burnt his house. In absence of any clinching evidence in support of the evidence of the complainant, it is difficult to hold the respondents-accused guilty of the alleged offence. 6. The Sessions Court after appreciating the entire evidence adduced by the prosecution has rightly acquitted the accused giving them benefit of doubt. It is needless to say that when two views are possible, the view taken by the Trial Court should not be lightly interfered with by the Appellate Court in the appeal against acquittal. 6. The Sessions Court after appreciating the entire evidence adduced by the prosecution has rightly acquitted the accused giving them benefit of doubt. It is needless to say that when two views are possible, the view taken by the Trial Court should not be lightly interfered with by the Appellate Court in the appeal against acquittal. At this juncture, a very pertinent observations made by Supreme Court has observed in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be reproduced as under : “6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 : “8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808 , this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed : "27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition: "I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos." 28. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos." 28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793 , as is clear from the following observations: "Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations." 9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the non-interference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court." 7. In view of the aforestated legal position, the Court is of the opinion that the Sessions Court having rightly appreciated the evidence on record and acquitted the respondents-accused for the alleged offences, the judgment and order passed by the Sessions Court deserves to be confirmed. 8. In that view of the matter, the Court does not find any substance in the present appeal. The appeal is, therefore, dismissed. The judgement and order of acquittal passed by the Additional Special Judge, Banaskantha at Tharad on 30.11.2019 in Sessions Case No.90/2018 therefore deserves to be confirmed and is hereby confirmed.