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2022 DIGILAW 61 (GUJ)

State Of Gujarat v. Gandabhai Motibhai Rathod

2022-01-11

S.H.VORA, SANDEEP N.BHATT

body2022
ORDER : SANDEEP N. BHATT, J. 1. Feeling aggrieved and dissatisfied with the judgment and order dated 04.01.2021 passed by the 2nd Additional Sessions Judge, Morbi in Sessions Case No. 60 of 2016 whereby the respondent accused came to be acquitted for the offences punishable under sections 325, 326, 114, 504 of Indian Penal Code (hereinafter referred as ‘IPC’ for short), the applicant – State of Gujarat has preferred this application to grant leave to appeal under section 378(1)(3) of the Criminal Procedure Code (‘the Code’ for short). 2. The facts in nutshell which give rise to the present leave to appeal as well as appeal is as under:- 2.1 As per the case of the prosecution on 09.10.2009, at around 09:00 hours, the buffaloes of complainant were drinking water from the pond at Village Sapkada and the complainant was waiting there as the caretaker of the livestock. At that point of time, the accused person who is also the owner of the buffaloes was present there and his buffaloes also needed to drink water from the pond. The complainant told the accused person to wait till the buffaloes of the complainant are finished drinking water which enraged the accused person and the juvenile accused Mr. Bharatbhai Gandabhai Rathod who along with the accused person started giving filthy abuses to the complainant and also inflicted stick blows on the head of the complainant and thereby causing fracture to the complainant. 2.2 It is the case of the prosecution that the complainant Prabhubhai Maganbhai lodged complaint being C.R. I – 131 of 2009 before the Halvad Police Station for the alleged offence under sections 325, 326, 504, 114 of the IPC. In pursuant to the complaint lodged by the complainant, the Investigating Agency collected evidence in the form of statement of witnesses and documentary evidence and after having found material against the respondent – accused, chargesheet came to be filed in the Court of Judicial Magistrate First Class, Halvad. Since, the cross-case of the present offence was pending before the Sessions Court at Dangadhara, the Judicial Magistrate First Class Court, Halvad committed the case to the learned Additional Sessions Court, Dangadhara. 2.3 Upon committal of the case to the Sessions Court, Dangadhara, the Sessions Court registered the case being Sessions Case No. 40 of 2014. Since, the cross-case of the present offence was pending before the Sessions Court at Dangadhara, the Judicial Magistrate First Class Court, Halvad committed the case to the learned Additional Sessions Court, Dangadhara. 2.3 Upon committal of the case to the Sessions Court, Dangadhara, the Sessions Court registered the case being Sessions Case No. 40 of 2014. Thereafter, due to the bifurcation of the district the same case was transferred to Sessions Court, Morbi which came to be registered as Sessions Case No. 60 of 2016. The learned Sessions Court has framed the charge at Exh. 9 against the respondent accused for the aforesaid offence and the accused pleaded ‘not guilty’ by his statement recorded at Exh. 10 and claimed trial. 3. In order to bring home charge, the prosecution has examined 14 witnesses and also produced documentary evidence as under:- Sr.No. Particulars Exh. No. 1 Case Papers 15 2 M.L.C. Certificate 16 3 Panchnama 19 4 Panch Slips 20-21 5 Panchnama 23 6 Panch Slips 24 7 Panchnama 27 8 Original Complaint 29 9 Treatment Certificate 40 10 Case papers and X-ray 41 11 Yadi for obtaining D.D. 43 12 D.D. 44 13 Yadi of Muddamal along with certificate of the authorities 45 14 Opinion of F.S.L. 46-47 4. Upon conclusion of trial the respondent – accused was examined under the provisions of section 313 of the Code and in his further statement the respondent – accused denied his involvement in the crime and stated that false case is lodged against him. After hearing both the sides and after analysis of the evidence adduced by the prosecution before the learned trial Court the respondent – accused was acquitted from the charge of offence punishable under sections 325, 326, 114 and 504 of IPC. 5. We have minutely examined the oral as well as documentary evidence produced on the record by the prosecution before the learned trial Court and we have also heard the submissions of Ms. Chetna Shah, learned APP appearing for the State. On re-appreciation of evidence we have noticed that cross-case was filed by the present accused against the complainant and though the complainant has supported his version given in the FIR during the deposition, the other witnesses are not corroborating with the evidence of the complainant in any manner. Chetna Shah, learned APP appearing for the State. On re-appreciation of evidence we have noticed that cross-case was filed by the present accused against the complainant and though the complainant has supported his version given in the FIR during the deposition, the other witnesses are not corroborating with the evidence of the complainant in any manner. Hence, the learned trial Court has rightly acquitted the accused by observing that except the complainant, nobody is corroborating the alleged incident. 6. Before the evidence is scrutinized it is necessary to prove the case by the prosecution in criminal trial by establishing the case beyond reasonable doubt. It is also necessary to to prove the case by adducing the evidence which supports the complaint by the complainant himself as well as the other independent witnesses. We have also taken into consideration the oral evidence and all the prosecution witnesses more particularly evidence of Nagjibhai Laxmanbhai at exh. 32 and Medical Officer – Dr. Manthanbhai Naimeshbhai Patel at Exh. 39 along with the evidence of the complainant – Prabhubhai Maganbhai recorded at Exh. 28. We have found that the witnesses that deposed before the trial Court, except the complainant the deposition given by the other witnesses are not supporting the version given the complainant more particularly the witness – Nagjibhai Laxmanbhai turned hostile while deposing before the trial Court. 7. The learned APP submitted that the complainant and other witnesses supported the case of the prosecution. She has taken us through the deposition and examination-in-chief of the complainant and has also taken us through the crossexamination of the complainant where the complainant has by and large stuck to the version given in his complaint before the police and no material contradiction or omission is found from the deposition of the complainant. She has also submitted that the Medical Officer namely Dr. Ashwinbhai Ramniklal Adroja who is examined at Exh. 14 and other Medical Officer Dr. Manthanbhai Naimeshbhai Patel who is examined at Exh. 39 have supported the case of the prosecution. According to her, they have also given the details of the injuries received by the complainant from the alleged incident. Therefore, she has submitted that the offence is clearly made out under sections 325, 326, 114 and 504 of the IPC and the trial Court has erred in acquitting the accused person. 39 have supported the case of the prosecution. According to her, they have also given the details of the injuries received by the complainant from the alleged incident. Therefore, she has submitted that the offence is clearly made out under sections 325, 326, 114 and 504 of the IPC and the trial Court has erred in acquitting the accused person. Learned APP has further submitted that the prosecution has established the involvement of the accused in the offence by leading cogent and convincing evidence and therefore also the trial Court has committed error in acquitting the accused person. 8. We have considered the submissions made by the learned APP at length. Since the learned trial Court has recorded detailed findings for acquitting the accused as prosecution has failed to establish by convincing evidence about the essential ingredients of section 325, 326, 114 and 504 of the IPC for which the accused was charged and tried. We have also perused the record produced by the learned APP and after considering the evidence adduced by the Dr. Ashwinbhai Ramniklal Adroja at Exh. 14 we find that in the history given before the Dr. Adroja by the complainant Prabhubhai Maganbhai, it reveals from the chief examination itself that though the complainant was knowing the accused very well in the history he has stated that some unknown person has beaten him with stick on 09.10.2009. Hence, nothing comes out from the examination-in-chief or crossexamination about the involvement of the present accused. 9. If we peruse the deposition of Nagjibhai Laxmanbhai at Exh. 33, who ultimately turned hostile and even in his cross-examination, the prosecution could not establish anything about his personal knowledge about the involvement of the accused in the alleged incident. Moreover, if we peruse the deposition of other witnesses at Exh. 34 – Hareshbhai Dalabhai Chavda, who has also said that the complainant has not stated anything to him about the involvement of the accused in the said offence. In the same way, other witness Chamanbahi Maganbhai Kanjaraiya who was exmained at Exh. 35 has also in turn said that he has not seen offence since he was not present and that he has no personal knowledge about the incident. The other witness Keshabhai Chaturbhai Chavda, in whose rickshaw the complainant was taken to the hospital was examined at Exh. 35 has also in turn said that he has not seen offence since he was not present and that he has no personal knowledge about the incident. The other witness Keshabhai Chaturbhai Chavda, in whose rickshaw the complainant was taken to the hospital was examined at Exh. 37 and he has also stated that he has not seen the offence as he was not present at the scene of offence. The other witness Mr. Rameshbhai Kanjibhai Chavda was examined at Exh. 38, who is nephew of the complainant has submitted that his uncle was beaten by blow of stick and he has received fracture in ribs and he has in his crossexamination, he has admitted he has not seen the offence as he was not present at the scene of offence. Dr. Manthanbhai Patel was also examined at Exh. 39 has specifically deposed in his examination-in-chief, that without naming the accused, Prabhubhai has informed through his relatives that some third person had beaten the complainant. From the perusal of the entire evidence available on record, except complainant himself, nobody is corroborating the version of the complainant which is given in the complaint. All the witnesses are not able to support the say of the complainant and accordingly the trial Court has considered the evidence and has given specific findings about the non-corroboration of the evidence given by the complainant by any of the witnesses. 10. It was also found in the judgment of the trial Court that looking to the evidence recorded in Special Atrocity Case No. 40 of 2016 which was conducted with the trial of the present case, where the present accused is examined at Exh. 76 and where he has submitted that he was at his home at the time of the alleged incident and therefore also the trial Court has considered that there is suspicion created about the timing of the offence and the presence of the accused at the place of the incident. Hence, the trial Court has rightly found that the prosecution has miserably failed to establish the case and has rightly acquitted the accused from the charges punishable under sections 325, 326, 114 and 504 of the IPC. Hence, the trial Court has rightly found that the prosecution has miserably failed to establish the case and has rightly acquitted the accused from the charges punishable under sections 325, 326, 114 and 504 of the IPC. Thus, on our own analysis and re-appreciation of evidence we do not find any compelling reasons or infirmity to interfere with the order of acquittal recorded by the trial Court nor have we found any illegality or perversity in the acquittal order recorded by the trial Court. Therefore, we confirm the order passed by the learned trial Court for acquittal of accused for offence under sections 325, 326, 114 and 504 of the IPC. 11. It is a cardinal principal 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. 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. In the very recent judgment reported in 2021 (15) SCALE Pg. 184 in the case of Mohan @ Srinivas @ Seena @ Tailor Seena V/s. State of Karnataka, the hon’ble Apex Court has observed the scope of section 378 of the Code as under:- “Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial Court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal. 21. Every case has its own journey towards the truth and it is the Court’s role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial Court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial Court decides a case on its own merits despite its sensitivity. 22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.” 15. 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. 16. In view of the above and for the reasons stated above, present application for leave to appeal being Criminal Misc. Application No. 20264 of 2021 fails and same deserves to be dismissed and is accordingly dismissed. 16. In view of the above and for the reasons stated above, present application for leave to appeal being Criminal Misc. Application No. 20264 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. 1720 of 2021 also deserves to be dismissed and is accordingly dismissed.