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Gujarat High Court · body

2020 DIGILAW 26 (GUJ)

State of Gujarat v. Chimanbhai Lakhabhai Padhiyar

2020-01-08

V.P.PATEL

body2020
ORDER : 1. The appellant State of Gujarat has filed this appeal under Section 378(1) read with Section 378(3) of the Code of Criminal Procedure, 1973 (hereinafter referred as “the Code”), being aggrieved and dissatisfied with the acquittal order dated 31.03.2009 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Anand (hereinafter referred as “the learned Trial Court”) in Sessions Case No. 63 of 2008. 2. Heard learned APP Ms. Jirga Jhaveri for the appellant State and learned Advocate Mr. Harshad Patel for the respondent-accused. Order under Challenge: 3. Learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Anand passed an order dated 31.03.2009, acquitting the respondent – Original accused Nos. 1 to 3 under Section 235(1) of the Code for the offences punishable under Sections 325, 323, 504, 114 of the Indian Penal Code and under Sections 135 of the Bombay Police Act. Arguments of the Prosecution: 4.1 Learned APP has argued that order of acquittal passed by the learned Trial Court is contrary to law and evidence on record. That the learned Trial Court ought to have to see that the prosecution has proved the case beyond reasonable doubt by placing cogent and reliable evidence. That the learned Trial Court has not appreciated oral as well as documentary evidence in proper perspective. That the prosecution has proved incident with date, place and time. 4.2 It is further argued that the prosecution has proved the injuries inflicted by the accused to the complainant as well as injured witness by producing medical evidence. That the FIR is duly proved in the deposition of the complainant. That the learned Trial Court has wrongly believed that the eye witness has not supported. That injured witness Hirabha has supported the case of the prosecution. And version of the injured witness supported by the medical evidence. 4.3 It is also argued that ingredients for the offence punishable under Sections 323, 325, 501 and 114 of IPC are established by giving cogent evidence. That the Judgment and order passed by the learned Trial Court is illegal, invalid and improper and the same deserves to be quashed and set aside. Learned APP has requested to allow this appeal and convict the offender for the offence charged against them. Arguments of the defence: 5.1 Learned advocate Mr. That the Judgment and order passed by the learned Trial Court is illegal, invalid and improper and the same deserves to be quashed and set aside. Learned APP has requested to allow this appeal and convict the offender for the offence charged against them. Arguments of the defence: 5.1 Learned advocate Mr. Harshad Patel has argued that the judgment and order passed by the learned Trial Court is legal, valid in the eye of law as well as on facts. That the trial Court has rightly considered the oral as well as documentary evidence and acquitted the accused. 5.2 Learned advocate for the respondent further argued that the complainant has not stated as per the contents of the complaint therefore, complainant is rightly held not believable by the learned trial Court. That the learned trial Court has rightly considered the contradictions arise in the deposition of complainant Mr. Jagdishbhai. The eye witnesses have not supported the version of the prosecution. That the injured witnesses, Mr. Natubhai and Mr. Shambhubhai also have not supported the case of the prosecution. That the injured witness Hiraba has stated in her deposition that the Lakhabava has given blow at the left hand and the same has been contradicted in the cross examination of the defence and she has admitted that she has not dictated before police that the Lakhabhai has given blow on the left hand. Contradiction is proved. It is further argued that X-ray is not taken for the injury caused to the Hiraba. Learned advocate for the respondent has requested to dismiss the appeal. Facts of the Case: 6.1 The Complainant Jagdishbhai has filed a complaint before the Anklav Police Station, District: Anand on 26.11.2017. The said complaint was registered vide Crime Register No. II- 3070 of 2007 for the offence punishable under Sections 323 and 504 of the IPC and under Sections 135 of Bombay Police Act. 6.2 As per complaint the complainant’s farm is situated besides the accused Jayantibhai’s farm, which was cultivated by the accused persons. There are gorasamli trees on the boarder of these farms. On 26.11.2007 at about 8.00 hours at village Ambav in the sim of Bevadpura, the complainant was cutting some branches of the Gorasamli trees, which were on the boarder of his farm. On seeing that the accused got angry and gave filthy abuse to the complainant and witnesses. There are gorasamli trees on the boarder of these farms. On 26.11.2007 at about 8.00 hours at village Ambav in the sim of Bevadpura, the complainant was cutting some branches of the Gorasamli trees, which were on the boarder of his farm. On seeing that the accused got angry and gave filthy abuse to the complainant and witnesses. The accused No. 3 Kanubhai Lakhabhai inflicted stick blow on the shoulder and left hand of the complainant Jagdishbhai. The accused No. 1 Chimanbhai Lakhabhai inflicted stick blow on the elbow of right hand and right leg. In the said quarrel Shambhubhai brother of the complainant tried to calm the situation but accused Lakhabhai inflicted stick blow to him. Accused No. 3 Khumanbhai also inflicted stick blow on the left hand of Hiraba and caused frecture of her left hand. Thereby all the accused persons, with the help of each other committed offence punishable under Sections 323, 325, 504 and 114 if IPC and under Section 135 of BP Act. 6.3 After completing the investigation, the IO has filed a chargesheet, the said was registered vide Criminal Case No. 606 of 2008. It is to be noted that the another complaint was filed against the present complainant and witnesses for the offence punishable under Section 302 of IPC. This case being a cross case of Sessions Case no. 23 of 2008, the learned Chief Judicial Magistrate First Class has committed this case under Section 209 of the Code on 09.05.2008. After committal of the case, the same is registered as Sessions Case No. 63 of 2008. The learned Trial Court has framed the charge of the offence punishable under Section 228 of the Code for the offence punishable under Sections 323, 325, 504 read with Section 114 of the IPC and for the offence punishable under Section 135 of the Bombay Police Act on 07.06.2008 vide Exh. No. 3. 6.4 The prosecution has examined 11 witnesses including complainant, Medical Officer, Panch witnesses, eye witnesses, injured witnesses and Police officers. The prosecution has also produced 08 documentary evidence. The learned trail Court has recorded further statement under Section 313 of the Code and heard the arguments of the prosecution and defence. The learned Trial Court has passed the impugned judgment and order dated 31.03.2009. General principles – Power of Appellate Court: 7. The prosecution has also produced 08 documentary evidence. The learned trail Court has recorded further statement under Section 313 of the Code and heard the arguments of the prosecution and defence. The learned Trial Court has passed the impugned judgment and order dated 31.03.2009. General principles – Power of Appellate Court: 7. This Court has came across the cases in which Apex Court has summarised the general principles regarding the power of Appellate Courts which read as under: 7.1 The Hon’ble Apex Court has in the case of Mohinder Sing Vs. State of Punjab reported in AIR 2018 (SC) 3798 held as under:- “15. In an appeal against acquittal, the High Court will not interfere unless there are substantial and compelling reasons to reverse the order of acquittal. The mere fact that on reappreciation of evidence the appellate court is inclined to arrive at a conclusion which is at variance with the trial court, the same cannot be the reason for interference with the order of acquittal. After referring to various judgments in Chandrappa and others v. State of Karnataka (2007) 4 SCC 415 , this Court summarised the general principles regarding the powers of the appellate court while dealing with an appeal against the order of acquittal and held as under:- “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 curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise 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. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise 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.” The same principles were reiterated in number of judgments viz. Jugendra Singh v. State of Uttar Pradesh (2012) 6 SCC 297 , State of Uttar Pradesh v. Ram Sajivan and Others (2010) 1 SCC 529 , Bhaskar Ramappa Madar and others v. State of Karnataka (2009) 11 SCC 690 , Chandrappa and others v. State of Karnataka (2007) 4 SCC 415 and other judgments. 7.2 In the case of Kallu alias Masih and others v. State of M.P., (2006) 10 SCC 313 , this Court held as under:- “8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court.” Merits of the Case: 8. The prosecution has examined PW No. 2 the complainant Mr. Jagdishbhai at Exh. No. 20, wherein it is stated that he do not know the accused Chimanbhai, Khumanbhai, Dineshbhai, Lakhabhai Gavanbhai. It is further stated that accused no. 2 Dinesh Lakhabhai has came with an Axe and given blow to him on the back side. That Lakhabhai Bhavanbhai had given stick blow to his mother on the right hand. Learned advocate for the defence has cross examined the complainant, he stated in cross examination that it is not true that Shambhubhai and Chimanbhai have abused him. It is also admitted in the cross examination that Lakhabhai Bhavanbhai had not inflicted stick blow to her mother on the right hand. It is true that his mother was fell down in farm and she injured on hand. Though the prosecution examined the prosecution witness No. 10 Ashwinbhai Dhirubhai who has recorded the complaint, but contradiction is not proved in his deposition. The FIR is exhibited during the deposition of the complaint and given Exh. No. 21. On perusing the deposition of the complaint Jagdishbhai and the contents of FIR, there is no statement made in the complaint as regards the injury caused to the complainant by the Dineshbhai- accused No. 2 by the Axe. It is further revealed that there is nothing stated as regards the blow inflicted by the Bhuvan Lakhabhai with a stick to the mother on right hand. Whatever the version and allegations made in the chief examination is not proved according to law. 9. The Prosecution has examined witness No. 8 Hiraben Padhiyar at Exh. No. 31, she is injured witness, she has stated that Lakhabhai has inflicted blow on her left hand side and accused no. 1 Chimanbhai has inflicted blow on the back side. For these two allegations the cross examination is done by the defence. 9. The Prosecution has examined witness No. 8 Hiraben Padhiyar at Exh. No. 31, she is injured witness, she has stated that Lakhabhai has inflicted blow on her left hand side and accused no. 1 Chimanbhai has inflicted blow on the back side. For these two allegations the cross examination is done by the defence. It is admitted that she has not stated before the police that Chimanbhai has inflicted stick blow to her on the back side of her body. It is further admitted that it is true that she has not stated before the Police that Lakhabhai has given blow to her on the left side. Therefore, considering allegations in Chief-examination and contradiction in the cross – examination, this witness is not believable. 10. The prosecution has examined PW no. 4 Jivabhai Kalabhai Padhiyar, as well as PW No. 3 Chandubhai Madhabhai Rathod and PW No. 4 Babubhai Parmar as panch witnesses but they turned hostile. 11. The prosecution has examined eye witness Natubhai Nathabhai Parmar i.e. PW No. 6. He also has not supported prosecution case and turned hostile. Learned APP has cross examined these witnesses but nothing fruitful is came on record from their cross examination. 12. The prosecution has examined injured witness Shambhubhai Nathabhai Padhiyar at Exh. 33, PW No. 7 he has supported the case of the prosecution up to some extent but injured witness and considering the contradiction in the deposition this witness is not believable. The prosecution has examined Gokalbhai at Exh. 38, as an eye witness. He has not supported the version of the prosecution but he turned hostile. Learned APP has examine him but nothing revealed which supporting the prosecution case. 13. The prosecution has examined medical officer Girishbhai Thakkar at Exh No. 10 and Dr. Ashaben Gupta at Exh. 29. They have supported the case of the prosecution. Considering the evidence of complainant who is injured witnesses as well as considering the deposition of eye injured witnesses, the value of the evidence of the medical witnesses will remain formal, being corroborative piece of evidence. 14. The prosecution has produced 08 documentary evidences, out of which 03 are the injury certificates. Injury certificate of Gokalbhai Nathabhai is at Exh No. 12, injury certificate of Shambhubhai Nathabhai is at Exh. No. 13 and injury certificate of Hiraben is at Exh. No. 14 and injury certificate of Hiraben Nathabhai is at Exh. 14. The prosecution has produced 08 documentary evidences, out of which 03 are the injury certificates. Injury certificate of Gokalbhai Nathabhai is at Exh No. 12, injury certificate of Shambhubhai Nathabhai is at Exh. No. 13 and injury certificate of Hiraben is at Exh. No. 14 and injury certificate of Hiraben Nathabhai is at Exh. No. 30. All these documentary evidences are proved in the deposition of medical witness. Considering the facts of the case, all these documentary evidences as well as medical evidence i.e. deposition of Doctor as regards to the injury certificate can be considered as corroborative piece of evidence. The prosecution has not established the injury caused to the injured witnesses. Hence, the documentary evidence can been treated as formal evidence. The prosecution has produced panchnama of scene of offence at Exh. No. 22. Recovery Panchnama of the weapon produced by the accused at Exh. No. 26. These panchanamas have been exhibited during the deposition of the panch witnesses. The panch witnesses are turned hostile therefore, it cannot be considered as substantive piece of evidence to convict the accused. 15. In view of the evidence discussed hereinabove, the prosecution has failed to establish voluntarily causes of hurt, or voluntarily causes of grievous hurt to the witnesses. It is further failed to establish that the accused intentionally insult and thereby give provocation to any of the witnesses, intending and knowingly it to be likely that such provocation will cause the witness to break the public peace or commit any other offence. The prosecution has also failed to establish any abetment for committing offence. The prosecution has not led any evidence as regards to the publication of notification under Section 37 of the Bombay Police Act. Thus, prosecution has not established the ingredients of offence punishable under Sections 323, 325, 504 and 114 of the IPC and under Section 135 of the Bombay Police Act. 16. Considering the contents of memo of appeal, the arguments advanced by the learned APP and the learned advocate for the respondent, oral as well as documentary evidence as discussed above, facts and circumstances of the case, this Court is of the view that there is no perversity, illegality and impropriety in the impugned judgment. The prosecution has failed to prove the charges levelled against the accused. The trail Court has rightly acquitted the accused for the offences alleged. The prosecution has failed to prove the charges levelled against the accused. The trail Court has rightly acquitted the accused for the offences alleged. The present appeal deserves to be dismissed, hence, the following order is passed. FINAL ORDER (i) For the reasons recorded here-in-above, the present appeal fails and being devoid of merit is hereby dismissed. (ii) Bail bond be discharged. (iii) The Registry is directed to send copy of this judgment to the concerned court for certification under Section 388 of the Code. (iv) R & P be sent back to the trial Court forthwith.