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2022 DIGILAW 113 (GUJ)

State of Gujarat v. Charmish Govindbhai

2022-01-19

S.H.VORA, SANDEEP N.BHATT

body2022
JUDGMENT : S.H. Vora, J. 1. Feeling aggrieved and dissatisfied with the judgment and order dated 1.1.2020 passed by the learned 5th Addl. Sessions Judge, Vadodara in Sessions Case No. 70 of 2015 for the offences under sections 307, 326, 114 of IPC and also u/s. 135 of the G.P. Act, the applicant-State of Gujarat has preferred this application to grant leave to appeal as provided under section 378(1)(3) of the Code of Criminal Procedure, 1973 ("the Code" for short) inter alia challenging the judgment and order of acquittal in favour of the respondents accused. 2. Briefly stated, it is the case of the prosecution that on 26.9.2014, at about 4:15 hrs., the complainant received telephonic message that while son of the complainant was going on his motorcycle and passing through M.G. Road, near Ambe Mata Temple, Vadodara city, he has received injuries on head and he is admitted in hospital at Panigate. Therefore, the complainant along with members of his moholla had gone at the place of incident and from there, they had gone at Siddiki Hospital, near Panigate three Rasta and seen that son of the complainant was severely injured on head and blood was flowing and he was not able to speak and found unconscious. Therefore, preliminary treatment was given and referred to Wins Hospital for better treatment. Upon inquiry from the shops situated near the place of incident, the complainant came to know that his son is beaten by present respondent No. 1 and two to three other persons and thereby caused injuries. Thereafter, the complainant lodged the complaint with regard to the incident before Vadodara City Police Station, which was registered as I-C.R. No. 227 of 2014 for the offences under sections 307, 326, 114 of IPC and also u/s. 135 of the G.P. Act. 3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, drawn various Panchnamas and other relevant evidence and recovered muddamal for the purpose of proving the offence. After having found material against the respondents accused, charge-sheet came to be filed in the Court of learned JMFC, Vadodara. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Vadodara as provided under section 209 of the Code. 4. Upon committal of the case to the Sessions Court, Vadodara, learned Sessions Judge framed charge at Exh. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Vadodara as provided under section 209 of the Code. 4. Upon committal of the case to the Sessions Court, Vadodara, learned Sessions Judge framed charge at Exh. 10 against the respondents accused for the aforesaid offence. The respondents accused pleaded not guilty and claimed to be tried. 5. In order to bring home charge, the prosecution has examined 15 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 4 of the impugned judgment and order. 6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondents accused so as to obtain their explanation/answer as provided u/s. 313 of the Code. In the further statement, the respondents accused denied all incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondents accused of the offences, for which they were tried, as the prosecution failed to prove the case beyond reasonable doubt. 7. We have heard learned APP Ms. Bhatt appearing for the applicant State and have minutely examined the documentary evidence provided to us by learned APP during the course of hearing so also perused record and proceedings of Sessions Case No. 70 of 2015. 8. It is evidently clear that the injured and the respondents accused are not knowing each other and immediately after the injury on head received by the injured near Ambe Mata Temple, M.G. Road, Vadodara City, he was taken to Siddiki Hospital near Panigate Three Rasta and there from, he was shifted to Wins Hospital for better treatment. It is the case of the injured in his deposition that he remained unconscious for 4 to 5 days. The injured is a star witness and as per the prosecution case, there is one eye witness, namely, Mr. Hanif Abubakar Memon, who examined at Exh. 59. The injured has not disclosed before the police that he could identify the person, who inflicted injury on his head. However, the injured was able to identify the accused persons in TI parade arranged after two months of the incident. Hanif Abubakar Memon, who examined at Exh. 59. The injured has not disclosed before the police that he could identify the person, who inflicted injury on his head. However, the injured was able to identify the accused persons in TI parade arranged after two months of the incident. In any case, there is no whisper as to any specific role attributed to any of the accused persons as to which accused inflicted head injury. The eye witness Mr. Hanif Memon is not knowing injured victim nor he has met at any time in past. He only disclosed that he showed that one Muslim person is beaten. No evidence as to who has that injured Muslim person which he showed at the relevant time of the incident. No any investigation in this regard has been carried out. Therefore, the prosecution is not able to pinpoint any evidence as to how the accused No. 1 Mr. Charmish Kahar is involved in the offence. On the other hand, it is the case of the complainant that he came to know from the nearby shop owners at the place of the incident that accused Charmish has beaten his son. But no any specific name is given or provided as to which shop owners disclosed the name of accused person nor there is any investigation in this regard. No name is disclosed before the doctor nor it is found in the medical certificates at Exhs. 82 and 83. The learned trial judge assessed all the evidence; both oral and documentary in this regard and ultimately, he found and noticed that the identity of the accused is not established with the help of cogent, reliable and truthful evidence. Normally, identity of accused can easily be established through evidence of injured person. But, in case on hand, the injured person has never met or seen the accused persons prior to the incident not they were knowing to each other at any point of time. Since, the injured tried to involve the accused persons in the offence in his deposition, which in Court's opinion, is nothing but an improvement over his version put before the police authority. Since, the injured tried to involve the accused persons in the offence in his deposition, which in Court's opinion, is nothing but an improvement over his version put before the police authority. At the first version, he has disclosed before the police that he could not identify the accused persons and despite such situation, he could identify the accused persons in TI parade held after two months, but no any specific role is attributed to any of the accused persons, more particularly, the accused who inflicted injury on his head. Under the circumstances, the learned trial Judge has rightly acquitted the respondents accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal. 9. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225 ). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 10. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280 , Supreme Court has held as under: "The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal." 11. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others v. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another v. State of Madhya Pradesh reported in (2011) 6 SCC 394 , while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view. 12. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal. 13. In view of the above and for the reasons stated above, present application for leave to appeal fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, captioned Criminal Appeal also deserves to be dismissed and is accordingly dismissed.