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2020 DIGILAW 268 (GUJ)

Harishbhai Dadubhai Amin v. State of Gujarat

2020-02-10

A.C.RAO, BELA M.TRIVEDI

body2020
JUDGMENT : Bela M. Trivedi, J. 1. The present appeal has been filed by the appellant – original complainant under Section 372 of Cr.P.C. challenging the judgment and order dated 29.11.2019 passed by the 9th Additional District Judge, Vadodara (hereinafter referred to as 'the Sessions Court') in Sessions Case No. 29 of 2018, whereby the Sessions Court has acquitted the respondents – accused from the charges levelled against them for the offences under Section 395, 447, 452, 504, 506(2) and 427 of IPC. 2. The case of the prosecution in nutshell before the Sessions Court was that the complainant had lodged a complaint on 04.02.2017 before the Vadodara Taluka Police Station alleging inter alia that on 03.02.2017 at about 3:00 p.m., when he was at Sokhda Temple, he was informed by his Supervisor Rasikbhai Gordhanbhai Baria that some people had gathered at his farm namely Amin Ochard Farmhouse. He therefore went to his farmhouse at about 5:30 p.m., and saw that some people had gathered at his farmhouse. He further alleged that in the said crowd, one Samirkhan Salimkhan Pathan along with five other people were present, and Samirkhan had told their names to be Nasir Anwarkhan Sheikh, Mayur Babubhai Vaghela, Paresh Shankar Makwana, Vishal Rajendrasinh and Rahul Mangal Gohil. The complainant had further alleged that the said persons had told him that land of the farmhouse belonged to one Prakashbhai Pandya, and therefore he should vacate the farmhouse otherwise he would have to face the dire consequences. The said crowd thereafter had started damaging his farmhouse by illegally entering into the same. The Investigating Officer after carrying out investigation had submitted the chargesheet in the Court of 7th Additional Civil Judge and Judicial Magistrate First Class, Vadodara against the respondents-accused for the alleged offences. The said case being triable by the Court of Sessions, the same was committed to the Sessions Court under Section 209 of Cr.P.C., wherein it was registered as Sessions Case No. 29 of 2018. 3. The prosecution had examined 10 witnesses and adduced documentary evidence to prove the guilt of the accused. However, the Sessions Court after appreciating the evidence on record acquitted all the accused by giving them benefit of doubt vide the impugned judgment and order, against which, the present appeal has been filed by the appellant – original complainant. 4. It is sought to be submitted learned advocate Mr. However, the Sessions Court after appreciating the evidence on record acquitted all the accused by giving them benefit of doubt vide the impugned judgment and order, against which, the present appeal has been filed by the appellant – original complainant. 4. It is sought to be submitted learned advocate Mr. Virat Popat for the appellant that despite the sufficient evidence against the accused, the Sessions Court had committed error in giving them benefit of doubt, and in acquitting them from the charges levelled against them. According to him, merely because there were lapses in the investigation carried out by the Investigating Officer, the accused should not be given benefit of such lapses. He further submitted that the appellant–complainant had given the names of all the accused right in the beginning while lodging the complaint, and therefore, there was no question of disputing the identity of the accused, and who otherwise were very headstrong persons and the land grabbers. 5. Having regard to the submissions made by the learned advocate for the appellant and to the paper book submitted by him along with the judgment of the Sessions Court, it transpires that though the incident had taken place on 03.02.2017, the complaint was lodged by the complainant on 04.02.2017 in respect of the alleged incident which had taken place in the farmhouse of the complainant. It is pertinent to note that though the complainant – PW-1 i.e. the present appellant had stated in his deposition before the Court that all the accused were caught and arrested on the spot by the police, who had arrived at his farmhouse, in the cross-examination, he had admitted that he did not know any of the accused and was also not knowing about their names and addresses. It is further required to be noted that PW-9 PSI Niravkumar Bhupendrakumar Barot working at Vadodara Taluka Police Station had taken down the complaint of the complainant on 04.02.2017, however, he does not state anything about the arrest the accused on 03.02.2017. Similarly PW- 10 Afrojbanu Abdulrajak Khokhar who was handed over further investigation on 04.02.2017, has stated that she had arrested the accused after she was handed over investigation. There is nothing on record to show as to how the accused were arrested and when. Similarly PW- 10 Afrojbanu Abdulrajak Khokhar who was handed over further investigation on 04.02.2017, has stated that she had arrested the accused after she was handed over investigation. There is nothing on record to show as to how the accused were arrested and when. Thus, there are many contradictions which have surfaced in the depositions of the complainant as well as Investigating Officer as regards the arrest and identity of the accused. When the complainant did not know any of the accused except Samirkhan, and when there was no evidence to show that all the accused were caught and arrested at the farmhouse on 03.02.2017, it is difficult to connect the said accused with the alleged crime. 6. It is further required to be noted that the panchnama (Exh. 49) under Section 27 was drawn on 05.02.2017, wherein it has been stated inter alia that the DVR system shown at the instance of the accused No. 1 – Samirkhan was recovered and the same was identified by the complainant as having been installed at his farmhouse. However, PW-8 Naresbhai Danabhai examined at Exh. 52 had stated that the police had taken away DVR system from the farmhouse itself. Of course, the said DVR system was not sent to the FSL for examination and therefore was hardly relevant. As rightly observed by the Sessions Court, though the DVR and CCTV footages were recovered by the Investigating Officer, the same were not sent for scientific investigation. Under the circumstances, the identity of the respondent – accused being doubtful, and there being no other evidence much less cogent evidence to connect the accused with the alleged crime, the Sessions Court has acquitted all of them by giving benefit of doubt. Learned advocate Mr. Popat for the appellant has failed to point out as to how the findings recorded by the Sessions Court are erroneous or pervert. 7. It is needless to say that when two views are possible, normally the Appellate Court should not disturb the findings recorded by the trial Court. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed in para 6 as under: - “6. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed in para 6 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. 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. 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. 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." 8. In that view of the matter, the Court does not find any substance in the present appeal and the same is dismissed accordingly. The judgment and order of acquittal dated 29.11.2019 passed by the 9th Additional District Judge, Vadodara in Sessions Case No. 29 of 2018 is hereby confirmed.