Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 324 (GUJ)

State of Gujarat v. Rameshbhai Dhirubhai Vaja

2022-02-22

S.H.VORA, SANDEEP N.BHATT

body2022
JUDGMENT : S.H. Vora, J. 1. Feeling aggrieved and dissatisfied with the judgment and order dated 02.04.2021 passed by the learned 7th Additional Sessions Judge, Bhavnagar at Mahuva in Sessions Case No. 266 of 2015 (Old Sessions Case No. 180 of 2014), whereby, the respondents accused came to be acquitted from the charge of the offence under sections 307, 326, 324, 323, 143, 147, 148, 149 of Indian Penal Code (hereinafter referred as "IPC" for short) and 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 ("the Code" for short). 2. Briefly stated, it is the case of the prosecution that on 08.03.2014 at about 22.00 hours, one Mr. Bharatbhai Laxmanji who is visitor of Bagdana Guru Ashram Mandir had consumed liquor and accordingly, he was misbehaving at the main gate of Guru Ashram. Said Mr. Bharatbhai was scolded by prosecution witness - Shri Harvijaysinh and he further informed said Shri Bharatbhai to leave main gate of Guru Ashram Mandir along with his wife Ms. Ramilaben. Therefore, all the accused persons as well as absconding accused Shri Haresh @ Hariyo formed unlawful assembly and with iron pipe and other weapon caused injury to the prosecution witnesses viz. Shri Nareshbhai, Shri Ashokbhai, Shri Kiranbhai and Shri Harvijaysinh Parmar. It is the case of the prosecution that all the accused persons assaulted by giving kick and fist blows to the complainant and other witnesses and thus caused severe injury. It is also alleged that all the accused with clear intention to cause death of the complainant and prosecution witnesses, formed unlawful assembly and assaulted upon the complainant and thus committed aforesaid offence. Therefore, the complainant lodged complaint with regard to the incident before the Bagdana Police Station which was registered as C.R. No. I-5 of 2014 for the aforesaid offence. 3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant documentary evidence and drawn various panchnama 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, Mahuva. 3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant documentary evidence and drawn various panchnama 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, Mahuva. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Bhavnagar at Mahuva as provided under section 209 of the Code. 4. Upon committal of the case to the Sessions Court, Bhavnagar at Mahuva, learned Sessions Judge framed charge at Exh.11 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 32 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 6 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 his 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. C.M. Shah for the applicant State and have minutely examined the oral as well as documentary evidence provided to us during the course of hearing. 8. It appears that alleged incident took place at about 22.00 hours on 08.03.2014 at the gate of Guru Ashram. The occurrence of incident was on account of one Shri Bharatbhai who was accompanying with his wife Ms. Ramilaben, had consumed overdose of liquor. As said witness was scolded, the respondents accused formed unlawful assembly and done incriminating act to accomplish the common object of unlawful assembly. The occurrence of incident was on account of one Shri Bharatbhai who was accompanying with his wife Ms. Ramilaben, had consumed overdose of liquor. As said witness was scolded, the respondents accused formed unlawful assembly and done incriminating act to accomplish the common object of unlawful assembly. The first and foremost requirement of section 149 of IPC is such that accused persons who are member of unlawful assembly must have done incriminating act to accomplish common object of unlawful assembly and further it must be within the knowledge of the other members as one likely to be committed in prosecution of common object. In other words, if the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of common object, they would be liable for the same under section 149 of the penal code. To determine existence of common object, the Court is required to see circumstances in which incident took place and conduct of the members of unlawful assembly including weapon of offence they carried or used on the spot. The common object may form on the spur of moment. The prosecution is required to establish ingredients of offence under section 149 of the IPC. On our re-appreciation and re-analysis of evidence adduced before the learned Trial Court, we have found that two important witnesses viz. Shri Nareshbhai Joshi - complainant and injured Shri Ashokbhai have not supported the prosecution case, whereas, two injured witnesses viz. Shri Kiranbhai and Shri Harvijaysinh without disclosing any object and without knowing some of the accused persons, identified some of the accused persons in the Court so as to say that they have inflicted injury to them. It is a matter of fact that two injured witnesses viz. Shri Kiranbhai and Shri Harvijaysinh have not disclosed name of some of the accused persons though they were knowing prior to the incident. They were treated at two different hospitals and according to them, incident took place at about 22.00 hours on 08.03.2014, whereas, in the medical certificate time of incident is shown as 21.15 hours. No any explanation is coming for this discrepancy in timing of the incident. Apart from it, Executive Magistrate, before whom TI parade is arranged, is not examined by the prosecution. No any explanation is coming for this discrepancy in timing of the incident. Apart from it, Executive Magistrate, before whom TI parade is arranged, is not examined by the prosecution. The height of the matter is such that root cause of occurrence of incident was on account of consumption of liquor by one Shri Bharatbhai who was accompanied by his wife Ms. Ramilaben. Both of them are not examined by the prosecution. The root cause of incident was on account of overdose of consumption of liquor by said Shri Bharatbhai, who was present at the scene of offence along with his wife, none of them is examined. If this incident goes out of picture, then there is nothing on record to suggest as to for what purpose accused persons formed unlawful assembly to accomplish particular object. Though offence under section 149 of IPC was lodged against ten accused persons, the State has not challenged acquittal order qua accused nos. 3, 4, 6 and 10. No-doubt, once membership of unlawful assembly is established, it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. Mere membership of unlawful assembly is sufficient. In the present case, minimum requirement of presence does not stand proved in accordance with law and through cogent evidence because accused persons and injured witnesses are not known to each other and therefore, it was necessary that the prosecution proves presence of accused persons by leading proper evidence as to identity of accused through TI parade panchnama. Neither Executive Magistrate is examined nor panchas of TI parade have supported the prosecution case. The injured witnesses though identify some of the accused in the Court room, but does not disclose name of the accused persons before any of the treating Doctors. 9. 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. 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. 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. 11. 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." 12. 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." 12. 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. 13. 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. 14. In view of the above and for the reasons stated above, present application for leave to appeal being Criminal Misc. Application No. 17137 of 2021 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. 1371 of 2021 also deserves to be dismissed and is accordingly dismissed.