Mahendrasinh Bhagwatsinh Jadeja vs State Of Gujarat
2021 Latest Caselaw 17489 Guj

     R/CR.A/603/2006                               JUDGMENT DATED: 22/11/2021




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/CRIMINAL APPEAL NO. 603 of 2006
                                With
                  R/CRIMINAL APPEAL NO. 604 of 2006

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
=======================================

      Whether Reporters of Local              Papers   may be
 1                                                                        NO
      allowed to see the judgment ?

 2 To be referred to the Reporter or not ?                               YES

      Whether their Lordships wish to see the fair copy
 3                                                                        NO
      of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution                    NO
   of India or any order made thereunder ?

=======================================
            MAHENDRASINH BHAGWATSINH JADEJA
                           Versus
               STATE OF GUJARAT & 1 other(s)
=======================================
Appearance:
MR JM BUDDHBHATTI(1239) for the Appellant(s) No. 1
MR BM MANGUKIYA(437) for the Opponent(s)/Respondent(s) No.
2
MS BELA A PRAJAPATI(1946) for the Opponent(s)/Respondent(s)
No. 2
MS MONALI BHATT, APP (2) for the Opponent(s)/Respondent(s)
No. 1
=======================================

 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                          Date : 22/11/2021

                           ORAL JUDGMENT

1. Present appeals have been filed by the appellant - original complainant under Section 378(4) of the Code of Criminal

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Procedure, 1973 challenging the judgments and orders dated 25.03.2004, passed in Criminal Case Nos. 844 and 845 of 1993 by the learned Judicial Magistrate First Class, Kalawad recording the acquittal.

2. The facts, in brief, are that complainant - Mahendrasinh Bhagwatsinh Jadeja filed two complaints before the learned Judicial Magistrate First Class, Kalawad, District: Jamnagar which were initially registered as M. Case Nos. 15 of 1993 and 16 of 1993 against the respondent/s for the offences punishable under Sections 323, 504, 506(1), 147, and 392 of the Indian Penal Code, 1860 respectively, stating therein that on 10.09.1993, when driver of the complainant namely Juvansinh Bhimsinh Sodha was coming from Junagadh to Jamnagar driving the Truck bearing GJ- 10-T-7031 belonging to the complainant, respondent No. 2 herein stopped the truck and took away the papers from the driver and detained the truck saying that the complainant is not paying heed to his demand. He also demanded Rs.400/- from the driver to which, the driver refused to give. On a call being made by the driver, the complainant firstly went to Jamnagar and then to Kalawad Police Station and thereafter, since the respondent No. 2 was on duty at Kalawad Bus-stand, they went there and talked with him. The respondent No. 2 demanded illegal gratification to which, since the complainant denied, he got furious and abused the complainant and thereafter, give a fist blow on the face, below the left eye of the complainant. The respondent No. 2 also took away gold chain worth Rs.8,000/- worn by the complainant, due to which, the complainant went away to Kalawad Police Station to lodge the complaint, where, while he was talking to PSO Shri Babubhai, the respondent No. 2 reached there and inflicted fist blows on the stomach of the complainant and also kicked him, due to which, the other police personnel relieved him

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and locked him up in the lock-up. Thereafter, PSI Patel and other police personnel ousted the complainant from the lock-up and beaten him up. On the nephew as well as the brother of the complainant reaching to the police station and inquiring about the complainant and asking not to beat the complainant, the aforesaid personnel also beaten up them and locked them up in the lock-up and registered a false case under Prohibition Act against them. Hence, the complainant lodged aforesaid two M.Cases, one for beating up and looting of gold chain and second for harassment and mistreating the complainant by respondents

- accused, before the learned Judicial Magistrate First Class. On such complaints being filed, the learned Magistrate, after making inquiry under Section 202 of the Code, ordered to register the criminal case against the respondent/s and accordingly, Criminal Case Nos. 844 and 845 of 1993, respectively came to be registered against the respondents.

2.1 Upon such cases being registered, summons were issued against the respondents - accused pursuant to which, they appeared before the Court. The learned trial Judge recorded the plea of the accused. Since the accused did not plead guilty, trial was proceeded against the accused. In support of the case, the complainant examined several witnesses and also produced some documentary evidence. Vide impugned judgments and orders dated 25.03.2004, the learned trial Judge acquitted the accused persons. Being aggrieved by the same, the original complainant has preferred the present appeals.

3. Heard, learned advocate Mr. J. M. Buddhbhatti for the appellant - original complainant, learned advocate Mr. B. M. Mangukiya for the for the respondent/s - original accused and learned APP Ms. Monali Bhatt for the respondent - State.

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3.1 The learned advocate for the appellant has mainly contended that the learned trial Judge has erred in holding that the complainant has failed to prove it case beyond reasonable doubt. He submitted that the impugned judgments of the trial Court is based on presumptions and inferences and thereby, they are against the facts and the evidence on record. The learned advocate for the appellant further submitted that the learned trial Judge has failed to appreciate the evidence on record in its true and proper perspective and thereby, has erred in recording the acquittal of the respondents - accused.

3.2 The learned advocate for the appellant further contended that the learned trial Judge has failed to appreciate the evidence of complainant - Mahendrasinh Bhagwatsinh Jadeja who has supported his case in toto. It is submitted that the evidence of the complainant is clear, cogent and consistent. Moreover, as soon as the incident in question had occurred, the complainant had moved the police station and accordingly, there was no reason for the learned trial Judge to disbelieve such a crucial evidence on record. The learned advocate for the appellant submitted that the learned trial Judge has taken a very hyper- technical view in the matter saying that the complainant has exaggerated the version regarding his beating up by the respondents - accused.

3.3 The learned advocate for the appellant further submitted that the case put forward by the complainant was also supported by the driver namely Juvansinh Bhimsinh, however, the learned trial Judge has failed to consider this aspect of the matter. Further, from the material on record, though there was sufficient material against the accused, the learned trial Judge has failed to appreciate the same and has thereby erred in acquitting the

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accused of the charges levelled against them.

3.4 The learned advocate for the appellant has further submitted that the learned trial Judge has materially erred in observing that the evidence of the complainant is contrary to the medical evidence inasmuch as the complainant was examined by the doctor after 24 hours and he had also given history.

3.5 The learned advocate for the appellant further submitted that the learned trial Judge has wrongly relied on the fact that the complainant was arrested in other cases and also in observing that the evidence of the complainant is not sufficient.

3.6 The learned advocate for the appellant, taking this Court through the oral as well as the documentary evidence on record, submitted that though the complainant has proved the case against the accused beyond reasonable doubt, the learned trial Judge has not properly appreciated the evidence on record and thereby, has committed an error in recording acquittal. He submitted that though all the ingredients of the offence alleged had been proved beyond reasonable doubt, the learned trial Judge did not believe the same and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and evidence on record.

3.7 Thus, the learned advocate for the appellant has submitted although cogent and material evidence had been produced by the complainant and the case was proved beyond reasonable doubt, the trial Court has committed a grave error in acquitting the accused and accordingly, he urged that present appeals may be allowed by quashing and setting aside the impugned judgments and orders of acquittal.

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4. Per contra, learned advocate Mr. B. M. Mangukiya for the respondents - original accused, while supporting the impugned judgments and orders of the trial Court, submitted that the learned trial Judge has, after due and proper appreciation and evaluation of the evidence on record, has come to such a conclusion and has acquitted the accused, which is just and proper. He submitted that it is trite law that if two views 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. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality.

4.1 The learned advocate for the respondents - accused submitted that the ingredients of the offence alleged against the accused are not proved by the complainant beyond reasonable doubt and therefore, the learned trial Judge has rightly acquitted the accused of the charges levelled against them.

4.2 The learned advocate for the respondents - accused further submitted that the respondents - accused are the police personnel and only with a view to down their moral, false cases have been filed against them. It is submitted that the complaints have been filed after a delay of almost 18 days from the date of incident in question, which itself is suggestive of the ill-intention of the complainant. Further, he submitted that the respondents - accused are the police personnel and as per the provisions of Section 197 of the Code, when any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or

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purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Government. The learned advocate for the respondents - accused submitted that indisputably, in the case on hand, the respondents - accused were on duty and discharging their duties as public servant and under the circumstances, bar of Section 197 of the Code is very much available to them. He submitted that in the case on hand, no such sanction has been availed from the Government.

4.3 Further, it is submitted that initially, the so-called incident had occurred in bus-stand i.e. a public place, however, no independent witnesses have been examined by the complainant and only the witnesses which are relatives of the complainant, have been examined, which creates serious doubt in the version and case of the complainant and hence, the learned trial Judge has rightly acquitted the accused as the complainant failed to bring home the charge against the accused. Accordingly, it is requested that no interference is required at the hands of this Court and eventually, it is urged that the present appeals may be dismissed.

5. Heard the learned advocates for the respective parties and gone through the impugned judgments and orders of the trial Court as well as the material on record. 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 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

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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.

5.1 Further, 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. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.

5.2 Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the the appellate Court, in such circumstances, re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.

5.3 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, "The presumption of innocence which is attached to every accused

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gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".

5.4 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:

"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable.

The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap

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v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42)

"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 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

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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."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286,

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para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:

"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath &

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Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v.

CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC

636)." (emphasis supplied)

9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:

"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on re- appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p.

233)

"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by

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the learned trial court and held the accused guilty on re- appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court.

While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416)

"8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in

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the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."

31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 80910) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own

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conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."

(emphasis supplied)."

6. Now, if the facts of the cases on hand are glanced at, they are in three parts. The original complainant has alleged that respondent No. 2 herein intercepted the truck belonging to the complainant which was being driven by his driver and asked for illegal gratification and then took away the papers and hence, the driver called the complainant. On complainant's arriving and meeting with respondent No. 2 and since did not succumb to the

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demand of the respondent No. 2, he was allegedly abused and beaten up and his gold chain was also taken away by the respondent No. 2. The first part ends here. Thereafter, the complainant went to the Kalawad Police Station, where, allegedly, the respondent No. 2 also reached and again beaten him up and hence, other police person namely one Jorubha locked the complainant in the lock-up. Thereafter, PSI Patel and other respondents ousted him and also beaten up, during which, the nephew and the brother of the complainant reached there, who requested not to beat up the complainant, to which, the respondents - accused also beaten up them. They were then locked up in the lock-up and subsequently, booked for the offence under the Prohibition Act and the offences under the IPC respectively. The second part ends there. The third and the last part starts after almost 18 days, when one fine morning, the complainant thinks of lodging the complaint of alleged mistreatment, harassment, beating up and looting of gold chain belonging to the complainant by the respondents - accused. For the aforesaid alleged acts of the respondents - accused, two separate cases had been filed by the complainant, one for beating up and looting of gold chain and second for harassment and mistreating the complainant by respondents - accused.

6.1 In the aforesaid backdrop, first of all, if the deposition of witness Shri Damjibhai Devshibhai Parmar, Exhs. 117 & 80 in Criminal Case Nos. 844 and 845 of 1993 respectively, who has produced the medical case papers of the complainant are referred to, this witness has clearly stated on perusing the medical cases papers that the injuries sustained by the complainant were simple in nature and they were possible by falling down on a rocky place. Further, the said witness has admitted that he had not examined the complainant personally.

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Now, if the evidence of complainant - Mahendrasinh Bhagwatsinh Jadeja, Exh. 46 and 27 in Criminal Case Nos. 844 and 845 of 1993 respectively is referred to, he has stated that when he approached the respondent No. 2 at Kalawad Bus-stand and asked for the papers related to goods, the respondent No. 2 allegedly demanded Rs.400/- to which, the complainant denied to give and hence, the respondent No. 2 abused the complainant and on complainant's resistance to such behaviour, the respondent No. 2 gave him a fist blow on the face below the left eye. It is further deposed that the respondent No. 2 again inflicted two blows to the complainant and took away his gold chain. The said incident was witnessed by many people available there. Again, at the police station, in the lock-up also, the complainant was beaten up and there was bleeding from the back side of his left ear, and accordingly, the injuries ought to have been severe in nature, however, as per the deposition of the medical officer, the injuries were in simple in nature. Thus, the version of the complainant does not match with the medical evidence and is not matching with the gravity as is projected by the complainant and accordingly, there appears material contradictions.

6.2 It may be noted at this stage that in the aforesaid two depositions of the complainant himself, there appears contradictions inasmuch as at Exh. 27 in Criminal Case No. 845 of 1993, he states that his gold chain was taken away by the respondent No. 2 herein, wherein, in Exh. 46 in Criminal Case No. 844 of 1993, no such case is put forward by the complainant. Further, at one place (deposition at Exh. 46 in Criminal Case No. 844 of 1993, which was recorded subsequently to the deposition Exh. 27 in Criminal Case No. 845 of 19936), he states that he was ousted by two constables namely Pravinsinh and Mahavirsinh and

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thereafter, was tied in reverse position with a Neem Tree and beaten up with a wooden stick on his back and ear. Subsequently, he was again locked up in the lock-up and there was bleeding behind his left ear. However, no such case was projected in his deposition at Exh. 27 in Criminal Case No. 845 of 1993. He has also deposed to state in his deposition at Exh,. 46 in Criminal Case No. 844 of 1993 that he was having Rs.14,000/- in his pocket and while his search, the same was taken away by Head Constable Jorubha, which was returned by PSI Patel afterwards, however, no such case is put forward in his deposition at Exh. 27 in Criminal Case No. 845 of 1993. Thus, there appears material improvements in the depositions of the complainant himself. Thus, in the considered opinion of this Court the learned trial Judge has rightly observed that there are exaggeration in the version of the complainant.

6.3 Another, material thing which has emerged from the record is that, as per the complainant, when he was being beaten up at the Kalawad Bus-stand, many people were available there, however, for the best reason known to the complainant, not a single independent witness has been examined by the complainant to substantiate his version. At this juncture, it may be observed that it is a cardinal principle of criminal justice system that when there is a satisfactory explanation for non- examination of independent witnesses, conviction can be based solely on the testimony of official witnesses if the evidence of such official witnesses inspires confidence. Other wise, the same should be tested with caution and corroboration becomes material. In the case on hand, no such explanation is coming forward. Further, as said earlier, in the deposition of the crucial witness i.e. the complainant, there appears several contradictions and improvements and hence, his evidence is required to be

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evaluated with caution.

6.4 Further, the witnesses, who have been examined by the complainant appear to be the interested witnesses inasmuch as the complainant has examined one Sukhdevsinh Bhagwatsinh Jadeja at Exh. 73 in Criminal Case No. 845 of 1993 and at Exh. 100 in Criminal Case no. 844 of 1993, who happens to be the brother of the complainant and another witness is Juvansinh Bhimsinh Sodha, Exh. 130 (in Criminal Case No. 844 of 1993), who was the driver of the complainant. If the depositions of Sukhdevsinh Bhagwatsinh Jadeja are perused, there appears improvement in the same inasmuch as, he has narrated in his deposition at Exh. 73 in Criminal Case No. 845 of 1993 the story with regard to the gold chain of the complainant, however, such is not the case in the another deposition which at Exh. 100 in Criminal Case No. 844 of 1993, which was recorded prior in point of time. Further, as emerges from the record, against aforesaid witness namely Sukhdevsinh Bhagwatsinh Jadeja, case under Prohibition Act came to be registered since he was found to be in inebriated condition. In the circumstances, when one witness was found to be in inebriated condition and also happened to be the brother of the complainant and another being driver of the complainant, meaning thereby, they are interested witnesses, the evidentiary value of their evidence becomes very lame, more particularly, for want of any other corroborative evidence. Further, the complainant has not examined Manharsinh Ajitsinh Jadeja, who is the nephew of the complainant and witnessed the so-called happenings at the Kalawad Police Station, nonetheless, he is also a relative and an interested witness.

6.5 Further, from a perusal of the documents on record, it is revealed that against the complainant, a case for the offences

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punishable under Sections 504, 506(2), 332, 186, 114, 225 and 353 IPC had been registered on the same day i.e. on 10.09.1993 at the behest of the respondent No. 2 only. It is further revealed that the respondent No. 2 had also sustained injuries, allegedly inflicted by the complainant, for which, a medical certificate, Exh. 111 (in Criminal Case No. 845 of 1993) has been produced on record.

6.6 Indisputably, the complainant had filed the M. Cases in question, after almost 18 days of the incident in question and no sufficient and plausible explanation for the delay is coming forward for the same, which is doubtful.

6.7 It also emerges from the record that the complainant had filed a defamation suit being Regular Civil Suit No. 452 of 2015 claiming compensation in the sum of Rs.3 lakh before the learned 4th Additional Senior Civil Judge, Jamnagar, against the respondent No. 2 herein, which came to be rejected with cost by judgment and order dated 24.08.2021.

6.8 Thus, on re-appreciation and reevaluation of the oral and the documentary evidence on record, it transpires that the complainant has failed to prove the case against the accused beyond reasonable doubt inasmuch as the ingredients of the offence alleged are not fulfilled. The Court has gone through in detail the impugned judgments and orders and found that the learned trial Judge has meticulously considered the depositions of all the witnesses and came to the conclusion that the complainant has failed to prove the case against the accused beyond reasonable doubt and in the considered opinion of this Court, the learned trial Judge has rightly come to such a conclusion, which do not call for any interference at the hands of

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this Court.

7. In view of the aforesaid discussion and observations, in the considered opinion of this Court, the complainant has failed to bring home the charge against accused for want of sufficient material. The findings recorded by the learned trial Judge do not call for any interference. Resultantly, in fleri, the appeals fail and are dismissed accordingly. The impugned judgments and orders dated 25.03.2004, passed in Criminal Case Nos. 844 and 845 of 1993 respectively, by the learned Judicial Magistrate First Class, Kalawad, recording the acquittal, are confirmed. Bail bonds, if any, shall stand cancelled. R&P, if received, be transmitted back forthwith.

[ A. C. Joshi, J. ] hiren