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2022 DIGILAW 243 (GUJ)

State of Gujarat v. Naranbhai Ganeshbhai Patel

2022-02-09

RAJENDRA M.SAREEN

body2022
JUDGMENT : RAJENDRA M. SAREEN, J. 1. This Appeal is filed by the appellant-State of Gujarat under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the judgment and order dated 21.06.2007 passed by the learned Special Judge, Godhra in Special (Atrocity) Case No. 4 of 2007 acquitting the respondent nos. 1 to 4-original accused from the offence punishable under sections 506(2) and 114 of Indian Penal Code and under section 3(1)(10)(14) of the Scheduled Tribes (Prevention of Atrocities Act), 1989. 2. The case of the prosecution is that on 1.10.2006 the complainant Manilal Dhulabhai registered a complaint against the accused persons with Lunavada Police Station being CR. No. I-210/2006 for the offence under Sections 506(2) and 114 of the Indian Penal Code and under Section 3(1)(10)(14) of the Atrocity Act, stating therein that the complainant is residing at Vanivada Gorada, Taluka Lunavada in his village there were 15 houses of Vankar Community, 80 houses of Patel Community and houses of the other community were there. From 23.9.2006, Navratri Festival was started. In his village, boys and girls of Vankar Community came there for playing garba. On 26.9.2006 at about 10:00 p.m., complainant along with Pravinchandra, Ramjibhai, Manilal Dhulabhai, Vankar Jethabhai Shivabhai, Kamlesh Nathabhai his daughter Sharmistha, daughter of Pravinbhai Ramjibhai Hetal, daughter of Kalubhai Modhabhai Naynaben, wife of Punjabhai Valabhai Gangaben and wife of Pravinbhai Ramjibhai Vanita went there for playing Garba. At that time, Patel Narayanbhai Ganeshbhai, Rameshchandra Manilal Patel, Ambalal Mathurbhai Patel and Ramesh Kalubhai Patel switched off the light the venue where Navratri Festival was celebrated. Therefore, on 27.9.2006, at about 7:30 a.m. the persons of Vankar Community viz. Ramjibhai Kalubhai, Hirabhai Khatubhai, Mothabhai Dhulabhai and Mulabhai Lalabhai met the persons of Patel Community and informed them about the aforesaid incident. At that time, the aforesaid four persons who switched off the light were also present there. They gave filthy abuses to them in public by saying "Sala Dhedao Ahithi Chalya Jav Garbi To Suvarna Lokoni Chhe Tamare Ke Tamari Chhokrione Garbe 'Ramva Avvanu Nathi" and also threatened to the persons of the Vankar Community. Therefore, the said complaint was filed. Accordingly the offence was registered with Lunavada Police Station being CR. No. I-210/2006 against the accused persons for offences punishable under Section 506(2) and 114 of the Indian Penal Code and under sections 3(1)(10) (14) of the Atrocity Act, 1989. Therefore, the said complaint was filed. Accordingly the offence was registered with Lunavada Police Station being CR. No. I-210/2006 against the accused persons for offences punishable under Section 506(2) and 114 of the Indian Penal Code and under sections 3(1)(10) (14) of the Atrocity Act, 1989. After completion of the investigation chargesheet was filed against accused-respondents herein before JMFC, Godhra. However, as the case was triable by the Court of Sessions, the learned JMFC, Godhra, committed the said case to the Sessions Court as per the provisions of 209 of the Criminal Procedure Code. Thereafter, Charge was framed against the accused for the offences punishable under sections 506(2) and 114 of the Indian Penal Code read with section 3(1)(10)(14) of the Atrocity Act. The accused pleaded not guilty to the charges and claimed to be tried. The learned Special Judge, Godhra passed judgment and order in Special (Atrocity) Case No. 4/2007 dated 21.06.2007, acquitting the accused-respondents herein from the charges of offences against him punishable under Sections 506(2) and 114 of the Indian Penal Code read with Section 3(1)(10)(14) of the Atrocity Act, 1989. 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 Special Judge 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 Special Judge 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 sections 506(2) and 114 of the Indian Penal Code read with section 3(1)(10) (14) of the Atrocity Act. He has further argued that Special Judge has acquitted the respondents accused merely on some minor contradictions and omissions in the evidence of the witnesses. He has further argued that the Special Judge 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 sections 506(2) and 114 of the Indian Penal Code read with section 3(1)(10)(14) of the Atrocity Act, is made out, however, the same is not believed by the Special Judge. He has further argued that the offence punishable under sections 506(2) and 114 of the Indian Penal Code read with section 3(1)(10)(14) of the Atrocity Act, is made out, however, the same is not believed by the Special Judge. He has further argued that though the prosecution witness has supported the case of the prosecution, the Special Judge erroneously not believed their evidence and acquitted the accused. He has further argued that the trial court has erroneously held that the prosecution has failed to prove the case beyond reasonable doubt. Making above submissions, he has requested to allow the present appeal. 4. Mr. Nirad D. Buch, learned advocate appearing for Mr. Y.S. Joshi, learned advocate appearing on behalf of the respondents-original accused 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. 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. It is pertinent to note that the present appeal has been abated qua respondent No. 3 on account of death of the respondent No. 3. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court. 7. It is pertinent to note that the present appeal has been abated qua respondent No. 3 on account of death of the respondent No. 3. On re-appreciation of evidence on record, it is clear that the complainant has mentioned two incidents in the complaint. The first incident is alleged to have occurred on 26/9/2006 at 10 O'clock at night when there was Garba festival and second incident occurred when the persons of Vankar community had gone to the accused for making complaint and it is alleged that at that time, the accused told the word Dhedha and threatened. So far as the first incident of 26/9/2006 alleged to have occurred at 10 O'clock is concerned, the complainant has stated in the complaint that wives and girls of Vankar community had gone to the Ranchhodji's temple for playing Garba and has also made mention about the name of Vankar Pravin Chandu, Ramjibhai Manilal, Dhulabhai Tej Vankar, Jethabhai Shivabhai, Kamleshbhai Nathabhai etc. However, in the deposition of the complainant at Ex. 11, the complainant has mentioned that only wives and girls had gone for playing Garba and at that time boys or male of Vankar community had not gone at the place of Garba festival and they were not present. Thus, in the examination in chief, the complainant has stated that Hetalben, Naynaben, Gangaben etc. had gone for playing Garba. The complainant has no personal knowledge what happened on 26/9/2006 at Ranchhodji temple at 10 O'clock at night. 8. In the examination-in-chief, the complainant has made mentioned of two incident, one of 26/9/2006 and another of 27/9/2006, however in the complaint there is no mention of incident of 27/9/2006. Sharmishthaben and Vanitaben also do not state about the incident of 27/9/2006 and hence the incident of 27/9/2006 cannot be believed. 9. Sharmishthaben, who happens to be the daughter of the complainant has stated in her deposition that on 26/9/2006 at 10 O'clock at night, she, Hetal and Vinita had gone to Ranchhodji Temple for playing Garba. Sharmishthaben has stated in her deposition that as she had gone for playing Garba, accused had switched off the light and the accused said that "Sali Dhethay ahithi Chalya Jav aa Patel na garba chhe". Sharmishthaben has stated in her deposition that as she had gone for playing Garba, accused had switched off the light and the accused said that "Sali Dhethay ahithi Chalya Jav aa Patel na garba chhe". Witness Vanita has stated in her deposition that Hetal, Sharmishtha and Nayna etc. had gone for playing Garba and hence the accused had switched off the lights. The lights were done off to see that the persons of Vankar community cannot play Garba. Witness Vinitaben has deposed that as the lights were closed, they had gone home but from the deposition of Vanitaben it has not come out that the accused told the females that "Sala Dhedhao ahithi jata raho." If the complaint of the complaint is perused, the complainant has not stated that on 26/9/2006 the accused uttered the word "Dhedha". Even Sharmishthaben has not stated in her statement that the accused told that "Sals Dhedha ahithi chalya jav.". The said contradiction is proved through the cross-examination of the investigating officer. 10. It is not believable that the accused told to Sharmishthben, Hetalben, Vanitaben etc. "sala dhedha", because Vanitaben has not stated anything and Sharmishthaben says so in her deposition, but she has not stated such fact in her statement. 11. Another aspect which arises, is whether the accused had stopped Sharmishthaben, Hetalben, Naynaben etc. from playing Garba or not?. Sharmishthaben has stated in her deposition that in earlier years also, they had gone for playing Garba and they returned after playing one round of Garba. Thus, in earlier year, the female of Vankar community were not stopped from playing Garba. Further, it has also not come on record that the Garba was managed by the accused. Though the incident is alleged to have occurred on 26/9/2006, the complaint is filed on 1/10/2006 and thus, there is delay and the delay is not explained. From the deposition of Sharmishthaben it has come on record that there are houses situated at adjacent and they switched on their lights and the said light is available at the place of Garba. From the deposition of Sharmishthaben it has no separate arrangement for light on the place of Garba. As per the complainant, the lights were taken from the temple of Ranchhodji, however, there is no specific evidence that who switched off the light from the temple. From the deposition of Sharmishthaben it has no separate arrangement for light on the place of Garba. As per the complainant, the lights were taken from the temple of Ranchhodji, however, there is no specific evidence that who switched off the light from the temple. There were many people of Vankar community, however, no other persons were examined with respect to the fact who switched off the light. Sharmishthaben and Vanitaben have not stated in their deposition how the lights were switched off. Witness Sharmishthaben and Vanitaben have stated that accused switched off the light. It is not believable that all the four accused gone and all four switched off the lights. 12. It has also come on record that witness Vanitaben had filed a complaint against one Kanubhai wherein the accused Kanubhai came to be acquitted by the competent court. 13. On perusal of the deposition of the complainant, it is clear that all the villagers met together and given authority to the complainant to make complaint and also instructed the complainant not to make compromise. The said agreement/power was given in presence of Ex-President of Lunawada Nagarpalika namely Mr. Natvarlal Gandhi. Thus, authority was given for making complaint of atrocity on behalf of many people. Thus, the complainant is well aware about the atrocity act and as to how to make the complaint. The incident is of 26/9/2006 and complaint is lodged on 1/10/2006 and there is no explanation for the delay. 14. As per the complainant, in the second incident occurred on 27/9/2006, and in the examination-in-chief, he has stated that the accused gave abuses and uttered words against his caste. However, he has not specifically stated which words against his case were used and which filthy abuse were used by the accused. 15. Further, as per the complainant, on 27/9/2006, the complainant and others had gone to the persons of Patel community, however no specific names are given to whom they had gone to meet. Even there is no mention that at that time who were present. 16. Considering the overall evidence on record, the evidence of Sharmishthaben and Vanitaben that the accused said Dhedha cannot be believed. As stated above, there is no evidence beyond reasonable doubt to prove that with an intention to see that Sharmishthaben, Vanitaben and Hetalben do not play the Garba, the lights were switched off. 17. 16. Considering the overall evidence on record, the evidence of Sharmishthaben and Vanitaben that the accused said Dhedha cannot be believed. As stated above, there is no evidence beyond reasonable doubt to prove that with an intention to see that Sharmishthaben, Vanitaben and Hetalben do not play the Garba, the lights were switched off. 17. Thus, the offence under section 3(1)(10) of Atrocity Act, alleged to have occurred on 27/9/2006 is not proved beyond reasonable doubt. Further in the examination-in-chief, the complainant has not stated that the accused threatened him to kill. Therefore, offence under section 506(2) of Indian Penal Code is also not proved beyond reasonable doubt. Considering the overall evidence on record, the Special Judge has rightly acquitted the accused. 18. 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. 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. 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. 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." 19. In that view of the matter, the Criminal Appeal being devoid of merits is dismissed.