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2022 DIGILAW 1572 (GUJ)

State Of Gujarat v. Karan Devdasbhai Chandarana

2022-11-15

RAJENDRA M.SAREEN, S.H.VORA

body2022
JUDGMENT : S.H.VORA, J. 1. Feeling aggrieved and dissatisfied with the judgment and order dated 16.09.2021 passed by the learned Additional Sessions Judge, Porbandar in Sessions Case No.6 of 2013, whereby, the respondents accused came to be acquitted for the offence under sections 307, 324, 504, 120(B) of Indian Penal Code and under section 135 of 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. 2. Briefly stated, it is the case of the prosecution that complainant came to know that respondents accused had beaten the relative of complainant and he was admitted in hospital. Therefore, on 06.08.2012 at about 00.30 hours, while the complainant was going to see his relatives in hospital, at that time, respondents met him on motor cycle and asked him to stop and while he was discussing about incident, the respondents accused got excited and gave filthy abuses and with clear intention to cause death of complainant, inflicted knife blows on stomach, chest, left hand and on head and thereby caused fatal injuries. It is also alleged that accused in continuation of earlier enmity, committed criminal conspiracy at the house of accused no.1 and with help of each other attempted to cause death of the complainant. Therefore, FIR came to be registered being C.R.No.I-39 of 2012 with Udhyognagar Police Station for the aforesaid offences. 3. In pursuance of the complaint lodged by the complainant, the investigating agency recorded statements of the witnesses, drawn panchnama of scene of offence, discovery and recovery of weapons and obtained FSL report for the purpose of proving the offence. After having found sufficient material against the respondents accused, charge-sheet came to be filed in the Court of learned JMFC. As said Court lacked jurisdiction to try the offence, it committed the case to the Sessions Court, Porbander as provided under section 209 of the Code. 4. Upon committal of the case to the Sessions Court, learned Sessions Judge framed charge at Exh.28 against the respondents accused for the aforesaid offence. All the respondents accused pleaded not guilty and claimed trial. 5. In order to bring home charge, the prosecution has examined 31 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 3 of the impugned judgment and order. 6. All the respondents accused pleaded not guilty and claimed trial. 5. In order to bring home charge, the prosecution has examined 31 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 3 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 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. 7. We have heard learned APP for the appellant – State, who has taken us through oral and documentary evidence. Learned APP took us through deposition of injured – PW-18 viz. Pratapbhai who is examined below Exh.93 and he went through entire deposition of said witness in order to suggest that accused Ravi @ Ramlo was accompanying with accused no.1 – Karan against whom Criminal Appeal is abated. Learned APP also further submitted that prior to subject incident, there was quarrel between the parties and at that time, he saw accused no.2 – Ravi and therefore, he could identify said accused before the Court. 8. At the outset, it is required to be noted that Criminal Appeal qua accused no.1 – Karan is abated. In order to appreciate submissions made at bar, we have found that prior to incident in question which occurred at night house of 06.08.2012, said witness viz. Pratapbhai was sleeping at his house and he was called by his friend Naresh Modi who informed that there was quarrel between respondents - original accused and Yogesh Modi and Jay Kudai and therefore, said witness left his home for seeing injured of the said incident. When he was on his way, he found both the accused with knife and when confronted as to why they have beaten his relative, both the accused inflicted knife blows on his chest. No-doubt, he deposed before the Court that he knew accused no.2 Ravi and he could recognize him. Meaning thereby, said witness was not knowing accused no.2 Ravi. Further in his deposition, he has disclosed that he identified accused no.2 – Ravi in TI parade arranged at Mamlatdar office. No-doubt, he deposed before the Court that he knew accused no.2 Ravi and he could recognize him. Meaning thereby, said witness was not knowing accused no.2 Ravi. Further in his deposition, he has disclosed that he identified accused no.2 – Ravi in TI parade arranged at Mamlatdar office. But in fact, no TI parade was arranged or held by Executive Magistrate at any place. It seems that said witness identified accused in the Court room after 3 years of occurrence of incident. Having regard to huge lapse of time, it is difficult to identify any accused in the Court that too in respect of incident which occurred in mid night on road. Apart from it, blood group of injured was “O”, whereas, at the scene of offence, blood group which is found is “A” group. One more fact that we have noticed and found is such that other party with whom dispute took place prior to incident in question, witness – Jay examined as PW- 22 did not refer name of the accused Ravi at all. It is also notice by us from the deposition of witness that there was political rivalry between the parties. 9. We have independently re-examined and re-assessed evidence and also findings recorded by the learned Trial Judge in the impugned judgment. On our careful re-appreciation or entire evidence, we do not find that there is any infirmity or irregularity in the findings of fact recorded by the learned trial judge. 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. 10. Except relying upon aforesaid evidence, no any other direct evidence either oral or documentary is pressed into service to interfere with the findings of the learned trial Court leading to acquittal of the respondents accused. When substantial evidence is lacking to connect the respondents accused with the crime or not brought on record sufficient evidence to establish the guilt, other corroborative evidence loses its significance or needs any consideration to upset the findings and therefore, there is no need to overburden the judgment anymore or needs any discussion of such evidence. 11. When substantial evidence is lacking to connect the respondents accused with the crime or not brought on record sufficient evidence to establish the guilt, other corroborative evidence loses its significance or needs any consideration to upset the findings and therefore, there is no need to overburden the judgment anymore or needs any discussion of such evidence. 11. 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. 12. 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." 13. 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." 13. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. 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. 14. 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. 15. In view of the above and for the reasons stated above, present application for leave to appeal being Criminal Misc. Application No.15450 of 2022 fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, Criminal Appeal No.1648 of 2022 also deserves to be dismissed and is accordingly dismissed.