State Of Gujarat vs Thakor Kumbhabhai Bhemabhai
2021 Latest Caselaw 448 Guj

         R/CR.MA/192/2021                                            ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 192 of 2021
                   In R/CRIMINAL APPEAL NO. 19 of 2021
                                  With
                    R/CRIMINAL APPEAL NO. 19 of 2021
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                          STATE OF GUJARAT
                                Versus
                     THAKOR KUMBHABHAI BHEMABHAI
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Appearance:
MS. C.M. SHAH, APP, (2) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2
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 CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI

                               Date : 13/01/2021

                                ORAL ORDER

1. Heard the learned APP Ms. C.M. Shah for the applicant.

2. The applicant - State has filed the present application seeking Leave to Appeal under Section 378(1) read with 378(3) of Cr.P.C. against the judgment and order of acquittal dated 27.02.2020 passed by the Special Judge, Additional Sessions Judge, Patan (hereinafter referred to as 'the trial Court') in Special POCSO Case No. 36 of 2017 (Old Special Atro. Case No. 16 of 2015), whereby the trial Court has acquitted the opponent No. 1 for the offences punishable under Section 323, 354 of the IPC and Section 7 and 8 of the POCSO Act as well as Section 3(1)(xi) of the Scheduled Caste

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and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

3. As per the case of the prosecution, the daughter of complainant namely Bhartiben Babubhai Makwana aged about 13 years was sleeping in open varandah in front of her house and her parents were also sleeping on the nearby cot. At that time, the accused Thakor Kumbhabhai Khemabhai came near the cot of the victim and caught hold of her hair and tried to pull her away. She therefore shouted for the help, however, the accused gave her 2-3 slaps. Hearing the shouts, the parents of the victim also got up, however, the accused ran away. The complaint with regard to the said incident was lodged by the complainant on 03.07.2013 before the Police Inspector, Radhanpur Police Station which was registered as I-C.R. No. 88 of 2013 for the alleged offence. After the completion of investigation, the chargesheet was submitted before the Special Court, which tried the case and acquitted the accused from the charges levelled against him.

4. The learned APP for the applicant - State submitted that the age of the victim was hardly about 13 years and the accused had tried to molest her in the night hours and such cases should be viewed very seriously, more particularly when the victim belonged to the

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Scheduled Caste. According to her, the trial court had failed to appreciate the evidence in the right perspective and had believed the defence of the accused with regard to the enmity between the complainant and the accused.

5. At the outset, 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 versus 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

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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

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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 non-interference 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."

6. Keeping in mind the aforesaid legal position, if the facts of the present case are appreciated, it appears that though the age of the victim was proved by the prosecution to be of about 13 years, the prosecution had failed to prove beyond reasonable doubt the occurrence of the incident in question. The accused during

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the course of cross-examination of the witnesses of the prosecution had successfully brought on record that there was an enmity between the accused and the complainant, and that the possibility of the father of victim Babubhai having falsely implicated the accused, could not be ruled out. The trial Court has also noted number of contradictions appearing in the evidence of the victim and her parents. The prosecution had also failed to examine any independent witness to support the case of the prosecution.

7. Considering the overall evidence, the trial Court has acquitted the accused which order does not suffer from any legal infirmity. In that view of the matter the application seeking Leave to Appeal is rejected. As a result thereof, the Criminal Appeal is also dismissed.

(BELA M. TRIVEDI, J) AMAR SINGH