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2024 DIGILAW 2048 (GUJ)

State Of Gujarat v. Sanjaykumar Kantilal Parmar

2024-11-21

HEMANT M.PRACHCHHAK

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JUDGMENT : (Hemant M. Prachchhak, J.) 1. The present appeal is filed by the appellant – State of Gujarat under Section 378(4) of the Code of Criminal Procedure, 1973 against the impugned judgment and order of acquittal dated 17.12.2011 passed by the learned 6th Additional Sessions Judge, Nadiad (hereinafter referred to as “the Trial Court”) in Criminal Appeal No.18 of 2011, whereby, the Trial Court has acquitted the original accused respondent herein for the offence punishable under Sections 279, 337 and 338 of the Indian Penal Code and under Sections 177, 184 and 134of the Motor Vehicle Act. 2. Brief facts of the present case, in nutshell, are as under:- 2.1 On the day of incident i.e., on 20.07.2005, the respondent-accused was playing Rickshaw bearing Registration No.GJ-7-2-Z-4897 loaded with passengers in a very rash and negligent manner. At that time, the respondent-accused dashed the said rickshaw to the complainant, as a result of which, he fell down and received injuries on his mouth. Thereby, the respondent-accused has committed alleged offences. 2.2 On the basis of the said incident, the FIR being C.R. No.I – 103/2005 came to be lodged with Mahudha Police Station for the offence punishable under Sections 279, 337 and 338 of the Indian Penal Code and under Sections 177, 184 and 134 of the Motor Vehicle Act against the accused and he was arrested. The Investigating Officer has recorded statements of the witnesses and collected necessary evidence against the accused. 2.3 After completion of investigation, as the sufficient evidence was found, the police has filed the charge-sheet against the accused before the Court of learned Judicial Magistrate, First Class, Mahudha wherein it has been registered as Criminal Case No.5283 of 2005 and thereafter it was numbered as Criminal Case No.259 of 2010. 2.4 The charge against the accused came to be framed by the Trial Court vide Exhibit 4 for the aforesaid offences against the accused and explained it to him, the accused has denied having committed any offence. The accused pleaded not guilty to the charge and pleaded for trial. 2.5 To prove the case, the prosecution has examined the following witnesses. The accused pleaded not guilty to the charge and pleaded for trial. 2.5 To prove the case, the prosecution has examined the following witnesses. 1 Manibhai Jenabhai Vaghri Exhibit-6 2 Somabhai Laxamanbhai Exhibit-8 3 Shankarbhai Jenabhai Exhibit-11 4 Dahyabhai Bhurabhai Panchal Exhibit-12 5 Jigarbhai Vaghjibhai Exhibit-15 6 Motibhai Udabhai Exhibit-16 2.6 In addition to this, the prosecution has also produced the following documentary evidence:- 1 Complaint Exhibit-7 2 Panchnama of Scene of Offence Exhibit-9 3 Medical Certificate of Injured Shankarbhai Exhibit-13 4 Order of Investigation Exhibit-17 5 Yadi given by Kathlal Hospital Exhibit-18 2.7 After closure of the evidence, further statements of the accused under Section 313 of the Criminal Procedure Code, 1973 have been recorded. After hearing both sides and considering the evidence on records, the Trial Court convicted the accused and imposed punishment for the offence punishable under Section 279 to undergo simple imprisonment of 1 month and fine of Rs.1000/- and in default to undergo sentence of 7 days and under Section 337 to undergo simple imprisonment of 1 month and to pay fine of Rs.500/- and in default to undergo sentence of 7 days and under Section 338 to undergo simple imprisonment of 1 month and fine of Rs.1000/- and in default to undergo sentence of 7 days. 2.8 Being aggrieved and dissatisfied with the impugned judgment and order of conviction the accused has preferred Criminal Appeal before the Sessions Court whereby the Sessions Court has acquitted the accused from the charges levelled against him and quashed and set aside the impugned judgment and order passed by the Judicial Magistrate First Class. 3. Being aggrieved by and dissatisfied with the aforesaid judgment and order of acquittal the appellant–State of Gujarat has preferred this Appeal. 4. Heard Ms. Megha Chitalia, learned Additional Public Prosecutor for the appellant–State of Gujarat and learned advocate Mr. Kaival Patel for learned advocate Mr. Jigar G. Gadhavi for the respondent at length. 5. Ms. Chitalia, learned APP has submitted the same facts which are narrated in the memo of appeal and has submitted that the impugned judgment and order passed by the First Appellate Court is bad in law and not sustainable in the eyes of law and the impugned judgment and order of conviction passed by the learned Judicial Magistrate deserves to be confirmed. She has submitted that the prosecution has proved the case beyond reasonable doubt against the accused by examining the witnesses. She has submitted that the First Appellate Court has not considered oral as well as documentary evidence produced before the Court and thereby committed serious error of law and facts in passing the impugned judgment and order of acquittal. She has submitted that the First Appellate Court has committed an error while coming to the conclusion that the prosecution has failed to establish the case beyond reasonable doubt and there is no link established between the crime and offender. She has submitted that the prosecution has examined complainant, eye witness and other witnesses in support of the case and produced ample material in the form of documentary evidence, however, the trial Court has not considered the same. She has submitted that the First Appellate Court ought to have relied upon the evidence of victim at Exhibit-11 who is injured witness and this witness has supported the case of the prosecution. She has submitted that there is a direct evidence connecting the accused with the crime in question and there is no question of reversing the impugned judgment and order of conviction into acquittal. She has submitted that the First Appellate Court has not assigned any cogent and convincing reasons while passing the impugned judgment and order of acquittal. She has submitted that the injured witness has sustained injuries and was taken to the hospital where the Doctor has issued Injury Certificate which has been proved by the prosecution. She has submitted that it is settled legal position that the evidence of a single witness is sufficient for conviction if the same is reliable and trustworthy. In the present case, though the evidence of all the witnesses are reliable and trustworthy without any cogent reason the First Appellate Court has disbelieved and discarded the evidence of the said witnesses. She has submitted that the First Appellate Court has not assigned any cogent and convincing reasons while reversing the judgment and order of conviction and sentence and misinterpreted the findings recorded by the trial Court. She has submitted that the impugned judgment and order of acquittal deserves to be quashed and set aide and the appeal deserves to be allowed. 6. Mr. Kaival Patel, learned advocate for Mr. She has submitted that the impugned judgment and order of acquittal deserves to be quashed and set aide and the appeal deserves to be allowed. 6. Mr. Kaival Patel, learned advocate for Mr. Jigar Gadhavi, learned advocate appearing for the respondent – accused has supported the impugned judgment and order of acquittal and has submitted that the First Appellate Court has not committed any error of law and facts in acquitting the accused from the charges levelled against him while referring to the evidence and impugned judgment and order of acquittal, he has supported the impugned judgment and order of acquittal and has stated that the First Appellate Court has properly appreciated the evidence on record and there is no any illegality or infirmity in the judgment and order and it is required to be confirmed by this Court. He has prayed to confirm the impugned judgment and order of acquittal and dismiss the present appeal. 7. This Court has perused the judgment and order of acquittal rendered by the First Appellate Court and carefully considered the rival contentions, evidence and material placed on record. 8. Now, on perusal of the entire evidence on record, it transpires that there is no iota of evidence in connecting the present accused with the alleged offences. 9. Before parting with the reasoning, the Court has verified the relevant evidence and examined the record of the trial Court and gone through the evidence of the witnesses and investigation papers and considered the submissions canvassed by the learned counsel appearing for the respective parties. 10. In view of the settled principles of law that when two views are possible and if the trial court has adopted the view which is in favour of the accused under normal circumstances, it may not be disturbed by the appellate court while exercising jurisdiction under Section 378 of Cr.P.C. The scope and principles are enunciated by the Hon’ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415 , more particularly paragraphs 42 and 43, which was subsequently re-affirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State of Karnataka reported in (2007) 4 SCC 415 , more particularly paragraphs 42 and 43, which was subsequently re-affirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State of Bihar and another, reported in [2022] 3 SCC 471, wherein, the Hon’ble Apex Court has enunciated the general principles in case of acquittal, more particularly in paragraph 26 the general principles are set out by the Hon’ble Apex Court based upon various decisions of the Hon’ble Apex Court. Hence, I am in complete agreement with the findings recorded by the trial court. 11. It is also worthwhile to refer to the decision of the Hon’ble Supreme Court in the case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149 wherein the Hon’ble Supreme Court has held and observed in paras – 37 to 40 as under:- “37. This Court in the case of Rajesh Prasad v. State of Bihar and Another, (2022) 3 SCC 471 encapsulated the legal position covering the field after considering various earlier judgments and held as below: - "29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [ Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] " 42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption 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 reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: - "8.1.The acquittal of the accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible." 39. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible." 39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:- (a) That the judgment of acquittal suffers from patent perversity; (b) That the same is based on a misreading/omission to consider material evidence on record; (c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. 40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.” 12. It appears that one Shankarbhai Jenabhai Devipujak was sitting in auto-rickshaw bearing registration No. GJ-7- Z-4897. The present respondent was driving the offending vehicle and said Shankarbhai was travelling in the rickshaw on 28.07.2015 at about 4.00 ‘O’ clock. On account of jerk in rickshaw, he was fallen down from the auto-rickshaw and sustained serious injuries and for that brother of the injured namely Manibhai Jenabhai Devipujak has registered an FIR before the Mahudha Police Station. 13. During the course of recording the evidence, the brother of the injured and informant have not supported the case of the prosecution. Of-course the injured has sustained the injury because of falling down from the auto-rickshaw. But, it was not due to rash and negligence driving on the part of the respondent. However, the learned trial Court has while interpreting the oral as well as documentary evidence and considering the facts recorded the findings and convicted the present respondent. Whereas, First Appellate Court has considered the said evidence and also after perusing the documents and the deposition of the concerned witnesses has recorded the findings in para-19. 14. However, the learned trial Court has while interpreting the oral as well as documentary evidence and considering the facts recorded the findings and convicted the present respondent. Whereas, First Appellate Court has considered the said evidence and also after perusing the documents and the deposition of the concerned witnesses has recorded the findings in para-19. 14. The appellate Court was justified in passing the impugned judgment and order that the prosecution was failed to establish the case against the present respondent, and therefore, in my opinion, the present appeal is devoid of any merits. It is relevant to note herein that this appeal is under section 378 against the order of acquittal, therefore, considering the judgment of Hon’ble Court and the ratio laid down by the Hon’ble Apex Court while interfering the appeal under the provision of 378 is required to be bare in mind. That the appellate Court has all power to re-examine, revisit the evidence and review and in case any perversity or any irregularity was found in the judgment, the Court can certainly interfere with the order of acquittal passed either by the trial Court or by the First Appellate Court. In the present case, after going through the record and proceedings and after considering the deposition of the witnesses and after going through the evidence in details, I am of the opinion that there is no any infirmity or any irregularity or any perversity worth the name in the impugned judgment and order of the First Appellate Court while reversing the findings of the conviction, and therefore, the present appeal is failed. 15. From the evidence of the concerned witnesses, it appears that the prosecution has unable to prove its case beyond reasonable doubt against the accused for the offence punishable under Sections 279 and 337 of the Indina Penal Code and Sections 177, 184 and 134 of the Motor Vehicle Act. So far as the allegations against the accused are concerned, the prosecution has failed to prove the charge levelled against the accused for the alleged commission of offence. Now, on perusal of the impugned judgment and order, it appears that while scrutinizing the entire evidence on record, the First Appellate Court has specifically considered that there is no iota of evidence in connecting the present accused with the alleged offences. Now, on perusal of the impugned judgment and order, it appears that while scrutinizing the entire evidence on record, the First Appellate Court has specifically considered that there is no iota of evidence in connecting the present accused with the alleged offences. It also appears that the Trial Court has properly considered the entire evidence on record in its proper perspective and its finding is proper one and when there is acquittal appeal and from the entire evidence, no evidence connecting the accused for the alleged offence is emerged, the impugned judgment and order of acquittal does not warrant interference by this Court. 16. In view of the above, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, the appeal is dismissed. The impugned judgment and order of acquittal passed by the First Appellate Court is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.