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2022 DIGILAW 226 (GUJ)

State of Gujarat v. Ashok Mansurbhai Dangar

2022-02-08

RAJENDRA M.SAREEN

body2022
JUDGMENT : RAJENDRA M. SAREEN, J. 1. This Appeal is filed by the appellant-State of Gujarat under Section 378(3) of the Criminal Procedure Code, 1973 against the judgment and order dated 19.07.2007 passed by the learned 4th Joint Civil Judge and Judicial Magistrate, First Class, Rajkot in Criminal Case No. 3005 of 1997 acquitting the respondent nos. 1 to 9-original accused from the offence punishable under sections 143, 147 and 427 of Indian Penal Code and under section 3 of Prevention of Damage to Public Property Act, Act 1984. 2. The case of the prosecution case is that the complainant Udaysinh Babubhai, Security Officer in Rajkot Municipality Office, registered compliant against present accused persons with Bhakti Nagar Police Station, Rajkot for the offences punishable under Sections 143, 147 and 427 of Indian Penal Code & Section 3 of Prevention of Damage to Public Property Act, 1984. That on 3/5/1997, accused persons gave an application to Deputy Municipal Commissioner about water crisis in backward areas, and thereafter, the accused persons, by forming unlawful assembly, entered into the cabin of Mayor and Chairman of the Standing Committee and caused damage to chair, Board and windows and also caused damaged of Rs. 20,000/- to Government Property. On the basis of the said complaint, investigation was initiated and after thorough investigation, as there was sufficient evidence against the present respondents-accused persons, Charge-sheet was filed against them before the learned Chief Judicial Magistrate, Rajkot and the case was transferred for trial to the learned 4th Joint Civil Judge and Judicial Magistrate, First Class, Rajkot, and the case was numbered as Criminal Case No. 3005 of 1997. Thereafter, Charge was framed against them for the offence punishable under Sections 143, 147 and 427 of Indian Penal Code & Section 3 of Prevention of Damage to Public Property Act, 1984. The accused persons pleaded not guilty to the charges and claimed to be tried. The prosecution, therefore, laid evidence. The Prosecution adduced oral as well as documentary evidences on the record of the case. At the conclusion of the trial, learned 4th Joint Civil Judge and Judicial Magistrate, First Class, Rajkot, was pleased to acquit all the accused persons from the offences punishable under section 143, 147 and 427 of the Indian Penal Code and under section 3 of the Prevention of Damage to Public Property Act, 1984. 2.1. At the conclusion of the trial, learned 4th Joint Civil Judge and Judicial Magistrate, First Class, Rajkot, was pleased to acquit all the accused persons from the offences punishable under section 143, 147 and 427 of the Indian Penal Code and under section 3 of the Prevention of Damage to Public Property Act, 1984. 2.1. Being aggrieved by and dissatisfied with the aforesaid judgment and order of acquittal, present appeal has been filed by the appellant-State. 3. Learned APP Mr. R.C. Kodekar for the appellant State has vehemently argued that the Magistrate has committed a grave error in not believing the deposition of the witnesses examined by the prosecution and evidence adduced by the prosecution. He has further submitted that the Magistrate has erred in acquitting the respondents-accused from the charges levelled against them. He has further argued that the prosecution has proved that the respondents have committed offence under section 143, 147 and 427 of the Indian Penal Code and under section 3 of the Prevention of Damage to Public Property Act, 1984. He has further argued that Sessions Court has acquitted the respondents accused merely on some minor contradictions and omissions in the evidence of the witnesses. He has further argued that the trial court has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. He has further argued that the offence punishable under section 143, 147 and 427 of the Indian Penal Code and under section 3 of the Prevention of Damage to Public Property Act, 1984, is made out, however, the same is not believed by the learned Magistrate. He has further argued that though the prosecution witness has supported the case of the prosecution, the trial court erroneously not believed their evidence and acquitted the accused by giving benefit of doubt. He has further argued that the trial court has erroneously held that the prosecution has failed to prove the case beyond reasonable doubt. He has further argued that the learned trial court erred in not believing the evidence of the complainant Udaysinh Babubhai Ex. 17 who has supported the case of the prosecution. He has further argued that the learned trial court has given undue importance to the evidence of panchas who were declared hostile. Making above submissions, he has requested to allow the present appeal. 4. Ms. 17 who has supported the case of the prosecution. He has further argued that the learned trial court has given undue importance to the evidence of panchas who were declared hostile. Making above submissions, he has requested to allow the present appeal. 4. Ms. Amrita Ajmera learned advocate for the surviving respondents (appeal qua respondent No. 7 is abated due to his death) has submitted that there is hardly any substance in the submissions of learned APP. There is no admissible evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses. The prosecution has not proved the case beyond reasonable doubt. All the panchas were turned hostile. The complainant was sitting in his chamber and he had no personal knowledge. None of the witness has stated in his deposition that any of the accused has damaged the public property. Investigating officer has no personal knowledge about the incident and he has merely investigated the offence. No identification parade was conducted. Since there was no evidence, no error or illegality has been committed by the trial court in acquitting the respondents accused by giving benefit of doubt. Making above submissions, he has requested to dismiss the present appeal. 5. Heard the learned advocates for the respective parties and perused the impugned judgment and order of acquittal and re-appreciated the entire evidence on record. 6. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice 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 reaffirmed and strengthened by the trial Court. 7. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court. 7. On re-appreciation of evidence on record, it cannot be denied as per the Panchnama, there is damage to the Chambers of the Chairman and Mayor but the question is whether the respondents accused are involved in the said damage and they have committed the damage, as alleged. In all the prosecution in this case has examined 12 witnesses, out of which 2 witnesses are panch witnesses who have not supported the case of the prosecution and have turned hostile. The main witness who have been examined by the prosecution is the complainant and the police personnel who were in the Bandobast when the incident had occurred. 8. The complainant Udesinh who has been examined at Ex. 17, is the security officer of the Municipal Office. As per the case of the complainant, on the day of commission of the alleged offence, the accused persons gave application to the Deputy Municipal Commissioner about water crisis in the backward area and as a precautionary measure, Bandobast was kept at the office. 30% of the persons had come to give memorandum and they damaged the office of the Mayor for which he had given complaint, in which accused persons were present and there was damage of Rs. 20,000/-. The complainant identified the accused nos. 1 and 4 in the Court. The complainant admitted in the cross examination that after giving memorandum to the Deputy Commissioner the crowd had disbursed and the complainant was in the chamber of Dy. Commissioner which is about 300 ft. away from the place of incident. He has also admitted that who had done the damage is not known to him and as accused nos. 1 and 4 are Congress Party Members and on and often comes to the office, he knows them. He admitted that he has not seen the accused causing the damage and he has not seen the persons whose names he has given. From the deposition of the complainant, it is clear that he has not stated anything regarding damage of the chamber of the Mayor, as alleged. Thus, the evidence of the complainant is of no help to the complainant. 9. In the same way, witness Ratanji Kanji Ex. From the deposition of the complainant, it is clear that he has not stated anything regarding damage of the chamber of the Mayor, as alleged. Thus, the evidence of the complainant is of no help to the complainant. 9. In the same way, witness Ratanji Kanji Ex. 20 has also not seen anybody damaging the chamber or the office, as alleged. He has not seen the incident happening with his own eyes. He was informed about the incident by the complainant. His evidence is hearsay evidence. 10. Witness Balu Devji Ex. 21 has also not seen any of the accused damaging to the property, as alleged. He was also present as police personnel in the Bandobast. When he went to the office of Mayor, nobody was there. He has not supported the case of the prosecution. 11. Likewise, witness Ajit Natubha also is not supporting the case of the prosecution. He has stated that he was on Bandobast when the incident occurred. Though he has identified the accused in the court, he has admitted in the cross examination that the place where he was standing in the Bandobast is 150 to 200 feet away from the place of incident. He has not seen the spot and he has not seen who has caused the damage to the property. He admitted that he knows accused Ashok as he was Mayor of the City and is Member of Congress Party. 12. Witness Natvarsinh Khengarsinh has not supported the case of the prosecution and he is declared as hostile. He has stated that the accused had come to give memorandum and after giving the memorandum, they were disbursed. Thereafter, there was some noise and when he reached at the Lobby, he saw that Boards of the Mayor and Chairman were damaged but he has not seen anybody causing damage. 13. Pravinchandra Kalyanji Ex. 29, Superintending Engineer of the Municipal Corporation. He has also narrated same thing that the accused had come to give memorandum and they were representative of Ward Nos. 6, 7 and 8 and after giving memorandum they had gone and thereafter there was noise but he does not know anything about the incident. In the cross examination he has admitted that at the time of incident, he was in the chamber and he is ignorant about the incident. 14. Witness Chamansha Jumasha Ex. 6, 7 and 8 and after giving memorandum they had gone and thereafter there was noise but he does not know anything about the incident. In the cross examination he has admitted that at the time of incident, he was in the chamber and he is ignorant about the incident. 14. Witness Chamansha Jumasha Ex. 30 has identified the accused but in the cross examination he has submitted that 30 to 35 persons had come and after giving memorandum they had gone. He has admitted that the distance between the office of the Dy. Commissioner and Mayor is 200 ft and there is curvature between the two offices. He has also admitted that he has not given any specific name of any of the accused. 15. Witness Ajitsinh Gulabsinh Zala Ex. 31 has also stated same version as per other witnesses. He has also identified the accused persons. In the cross examination, he has admitted that at the time of incident, he was in the lobby of the chamber of the Deputy Mayor. The distance the between the office of the Dy. Municipal Commissioner and Commissioner is about 50 feet. The office of the Deputy Mayor is situated after 15 offices and each office is admeasuring 8 to 10 feet. Thus, this witness was standing 150 to 200 feet away from the place of incident. He has admitted that from the office of the Deputy Mayor Office, where he was standing, he would not be able to see the place of incident. Moreover, as the accused party worker of Congress party, he knows them. 16. Witness Thakardas Kashiram, PSI Ex. 31 has also identified the accused persons. He has admitted in the cross examination that at the time of incident, he was in the office of the Deputy Mayor. The office of Dy. Commissioner and Dy. Engineer are at the different ends and there is 300 to 400 feet distance between both the offices and between both the offices there is curvature. Moreover, as all the accused persons are workers of Congress Party, they are known to him. He admitted that he has no personal knowledge about the incident. 17. Witness Dineshchandra Hiralal, investigating officer who has investigated the offence and has filed the charge-sheet. He has also no personal knowledge. He has not undertaken any Test Identification Parade of any of the accused. 18. He admitted that he has no personal knowledge about the incident. 17. Witness Dineshchandra Hiralal, investigating officer who has investigated the offence and has filed the charge-sheet. He has also no personal knowledge. He has not undertaken any Test Identification Parade of any of the accused. 18. Considering the entire evidence on record it is an admitted fact that the accused had gone to the office of the Municipal Commissioner give memorandum for water crisis in the backward area of Rajkot and after they were disbursed, the incident occurred. However, none of the witness has seen the accused breaking the glass of the window or damaging the property or chamber of the Mayor. It is also clear that the witnesses from where they were sitting, they cannot see the place of incident. As the accused persons are reputed workers of Congress Party and one of them was ex-Mayor of the Corporation, it is natural that they are known. The prosecution has not clearly proved that the accused has caused the damage. Thus, the prosecution has not proved the case against the accused beyond reasonable doubt. 19. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan v. Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed 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. 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. 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 noninterference 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 Arulvelu and another v. State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under: "36. In Arulvelu and another v. State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under: "36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law." 20. In that view of the matter, the Criminal Appeal being devoid of merits is dismissed.