State Of Gujarat vs Mustak Gulam Umarji Lallu Vo. ...
2021 Latest Caselaw 17789 Guj

    R/CR.A/731/2008                               JUDGMENT DATED: 26/11/2021



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 731 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SAMIR J. DAVE                        Sd/-

====================================================

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

2    To be referred to the Reporter or not ?                           No

3    Whether their Lordships wish to see the fair copy of              No
     the judgment ?

4    Whether this case involves a substantial question of              No
     law as to the interpretation of the Constitution of
     India or any order made thereunder ?

====================================================
                    STATE OF GUJARAT
                            Versus
          MUSTAK GULAM UMARJI LALLU VO. PATEL
====================================================
Appearance:
MR DHARMESH DEVNANI, APP for the Appellant(s) No. 1
MR AV PRAJAPATI(672) for the Opponent(s)/Respondent(s) No. 1
====================================================

CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                              Date : 26/11/2021
                              ORAL JUDGMENT

1 The present appeal, under Section 378 (1) (3) of the Code of Criminal Procedure, 1973, is directed against the judgement and order of acquittal dated 14.08.2007 passed by the learned

R/CR.A/731/2008 JUDGMENT DATED: 26/11/2021

Additonal Sessions Judge, Fast Track Court No.3, Bharuch, in Atrocity Case No. 23 of 2007 whereby the accused was acquitted of the charges leveled against him.

2 The facts of the prosecution case in brief are as under:

2.1 On 26.06.2006 at about 14:15 hours the present respondent-accused came to the shop of Siraj Ahmeda Gaji where the complainant- Umedbhai Ambubhai Vasava and witness- Shantibhai Shankerbhai Vasava were working at that time the accused- Akib Mustab Lallu Vo. Patel, who was minor and case against him was registered before the Juvenile Court also came and made some conversation with Shantilal and thereafter Akib started to give foul abuses to Shantilal and in the meantime accused Mustak had also come and both accused gave kick and fist blows to Shantilal and on intervention made by the complainant with a view to separate them, accused- respondent- Akib gave stick blow on the head of the complainant and thereby injured him, so also, abused him in public place. It is alleged that during the said incident, witness- Zaverbhai Jesangbhai came and asked as to why they were beating his son. The accused persons told that "sala Naida, Bhildao, bahu mota sheth thai gaya choo". As the witness Zaverbhai asked not to give abuses, the accused respondent- Akib also gave stick blow in his head and thereby injured him. The complainant was lodged, investigation was conducted, Panchnama was drawn, statements of the witnesses were recorded and upon completion of the investigation as sufficient evidence to link the accused with crime was revealed, the accused person was charged-sheeted for the aforesaid offence. Therefore, a complaint was lodged against the accused before Bharuch Rural, Police Station for the offence

R/CR.A/731/2008 JUDGMENT DATED: 26/11/2021

punishable under Sections 323, 324 and 504 of the Indian Penal Code and Section 3(1)(10) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The complaint was registered as C.R. No. I-70 of 2006.

2.2 Necessary investigation was carried out and statements of witnesses were recorded. Ultimately, charge-sheet was filed before the Court of learned Chief Judicial Magistrate, Bharuch.

2.3 Thereafter, as the case was exclusively triable by the Sessions Court the same was committed to the Court of learned Additional Sessions Judge, Fast Track Court No.3, Bharuch under Section 209 of Cr.P.C. The case was numbered as Atrocity Case No.23 of 2007. The trial was initiated against the respondents-accused.

2.4 To prove the guilt against the accused the prosecution has examined the following witnesses:

P.W.1 Umedbhai Ambubhai Vasava-Exh. 08

P.W.2 Tulsibhai Gordhanbhai Vasava-Exh. 11

P.W.3 Dr. Vijay Motiram Baviskar-Exh. 13

P.W.4 Gulabbhai Becharbhai Dodiya -Exh. 16

P.W.5 Shantilal Shankarbhai Vasava-Exh. 20

P.W.6 Zaverbhai Jesangbhai Vasava -Exh. 21

P.W.7 Jashubhai Khodabhai Vasava-Exh. 22

P.W.8 Ashokbhai Bhavabhai Vasava-Exh. 23

P.W.9 Siraj Ahmad Ismail Gaji -Exh. 24

P.W.10 Bhagvanbhai Govindbhai Chauhan -Exh.25

P.W.11 Kiritbhai Gamabhai Parmar -Exh. 28

R/CR.A/731/2008 JUDGMENT DATED: 26/11/2021

2.5 In order to support the case the prosecution has produced the following documents:

    1)     Complaint at Exh. 9

    2)     Caste Certificate of the complainant at Exh. 10

    3)     Panchnama of scene of offence-Exh.12

    4)     Medical certificate issued by the Medical Officer to
            complainant at Exh.14

    5)     Medical certificate issued by the Medical Officer to witnees-
            Zaverbhai Jesangbhai at Exh.15

    6)     Copy of page no.335 of the Register regarding certificate of
            Scheduled Caste at Exh.17.

    7)     Caste certificate issued to witness Zaverbhai Jesangbhai at
            Exh.18.

    8)     Caste certificate issued to witness Shantilal Shankarbhai at
            Exh.19.

    9)     Yadi to register complaint to Head Constable at Exh.26.

10) Copy of note Station Diary No.GU.Reg.No.I-70/2006 at Exh.27.

11) Letter addressed to Deputy Commissioner of Police, S. C. S. T.

Cell for inquiry at Exh.29.

12) Arrest memo at Exh.30-31.

13) Wireless message at Exh.32.

2.6 At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions

R/CR.A/731/2008 JUDGMENT DATED: 26/11/2021

Judge acquitted the respondent of all the charges leveled against him by judgement and order dated 14.08.2007.

2.7 Being aggrieved and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant-State has preferred the present appeal.

3 Mr. Dharmesh Devnani, learned APP submitted that the judgement and order of the Additional Sessions Judge is against the provisions of law; the Additional Sessions Judge has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondents. Learned APP has also taken this Court through the oral as well as the entire documentary evidence. He submitted that P.W.1-complainant-injured witness Umedbhai Ambubhai Vasava who was examined at Exh.9 has fully supported the case of the prosecution as narrated in the complaint. The complainant clearly mentioned how the incident has occurred and what the accused did at the time of incident. P.W.6 Zaverbhai Jesangbhai Vasava who was examined at Exh.21, Shantilal Shankarbhai Vasava at Exh. 20 are the injured witnesses. It is also submitted that medical evidence gets corroboration with the depositions of the complainant and other witnesses to whom treatment was given. Learned APP submitted that there was no reason for the Sessions Judge to disbelieve the prosecution case and to acquit the respondents.

4 At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of

R/CR.A/731/2008 JUDGMENT DATED: 26/11/2021

decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006) 6 SCC 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below."

5 Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007) 4 SCC 415 the Apex Court laid down the following principles:

"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 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 curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate court

R/CR.A/731/2008 JUDGMENT DATED: 26/11/2021

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."

6 Thus, it is a settled principle that while exercising appellate power, even 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.

7 Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007) 3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:

"16. From the aforesaid decisions, it is apparent that 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 arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. However, the appellate court has a power to review

R/CR.A/731/2008 JUDGMENT DATED: 26/11/2021

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. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

8 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.

9 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgement or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:

".... & This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.

10 Thus, in case the appellate court agrees with the reasons and the opinion given by the Trial court, then the discussion of evidence is not necessary.

11 This Court has gone through the judgement and order passed by

R/CR.A/731/2008 JUDGMENT DATED: 26/11/2021

the trial court. This Court has also perused record and proceedings and oral as well as documentary evidence led by the trial court and also considered the submissions made by learned Advocate for the appellant.

12 The trial Court after appreciation of the evidence found that after considering the deposition of the complainant that it cannot be proved that the accused has beaten the Shantilal Shankarbhai and Zaverbhai Jesangbhai with the wooden stick, the only fact can be established is that the accused has held both the witnesses. There is also discrepancy about the version of complainant regarding description of wooden stick as well the one produced in muddamal. From the medical evidence it is not established that complainant as well as other witnesses have sustained injuries by wooden stick. Thus medical evidence did not support the case of the prosecution. Tulsibhai Gordhanbhai Vasava is the panch witnesses. These witnesses did not support the case of the prosecution and he turned hostile. The trial Court observed that independent witnesses were not examined by the prosecution. There are contradictory statements of the witnesses. The injuries which were sustained by the complainant and other witnesses were not proved. There was no bloodstain on the muddamal weapons which was recovered. The role of the accused is not established. It is also not proved that the accused uttered humiliating words against the caste of the complainant.

13 In this fact situation the learned Special Judge has found that there are serious lacunae in the prosecution case and the prosecution has failed to establish the case against the respondent. There are contradictory statements in the complaint and the witnesses. Therefore, the trial court has given the benefit of doubt to the

R/CR.A/731/2008 JUDGMENT DATED: 26/11/2021

accused and this Court does not find any reason to interfere with the said finding.

14 Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Mr.Devnani, learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.

15 In the above view of the matter, this Court is of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. This Court finds that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it

16 This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed.

17 Record and Proceedings to be sent to the trial Court.

Sd/-

(SAMIR J. DAVE,J) MEHUL