State Of Gujarat vs Dhirubhai Ebhalbhai Mayada Ahir
2021 Latest Caselaw 16974 Guj

     R/CR.A/676/2008                                JUDGMENT DATED: 28/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 676 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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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                  No
      of the judgment ?

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

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                           STATE OF GUJARAT
                                 Versus
               DHIRUBHAI EBHALBHAI MAYADA AHIR & 3 other(s)
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Appearance:
MR NARENDRA L JAIN(5647) for the Appellant(s) No. 1
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR JM BAROT(143) for the Opponent(s)/Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                Date : 28/10/2021

                               ORAL JUDGMENT

1. Present appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 27.8.2007, passed in Special Atrocity Case No. 4 of 2004 by the learned Additional Sessions Judge, Fast Tract Court No.5, Bhavnagar, Camp at

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Mahuwa Presiding Officer, Fast Track Court No. 15, Vadodara, recording the acquittal of the Respondents (original accused persons).

2. The facts, in brief, are that the offence being C.R. No. I- 139/2003 came to be registered with Alang Police Station for the offence under Sections 323, 447, 504, 506 (2) and 114 of the Indian Penal Code and under Section 3(1)(10) of the Atrocity Act. The said complaint was addressed by the complainant to the District Superintendent of Police, Bhavnagar on 18.12.2003. It is disclosed in the complaint that the complainant and the accused persons are from the same village. The Respondent - Accused No.3 is the brother of the Sarpanch, the Respondent Accused No.1 is the brother of Vice Sarpanch and the Respondent - Accused No.4 is the cousin brother of the Sarpanch. It is further disclosed in the complaint that the son of the complainant got admission in the Ukharala Primary School, wherein the teacher viz. Maheshbhai beat his son. Hence, the complainant addressed an application to Anandiben Patel, Education Minister, Gandhinagar. Hence the Respondents - Accused persons got excited and on 18.12.2003 at about 11:30 hours came and started abusing the complainant and also threatened to withdraw the application addressed to the Education Minister. Thereafter, the Respondents - Accused persons started giving kick and fist blow to the complainant. On raising screams, the surrounding persons gathered there and hence the Respondents - Accused persons ran away from the place of offence.

3. On the basis of the complaint, the investigation started and the investigation was handed over to the Police Officer, SC / ST Cell, Bhavnagar. The Investigating Officer drew the scene of offence panchnama, arrested the accused persons, drew the

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body position panchnama of the accused persons, collected MLC certificate and the caste certificate of the complainant.

4. On conclusion of the investigation, on the basis of material collected against the Respondents - Accused persons, since the investigating Officer found a prima facie case against the Respondents - Accused persons, charge sheet came to be filed for the offence under Sections 323, 447, 504, 506(2) and 114 of the Indian Penal Code and under Section 3(1)(10) of the Atrocity Act.

5. Since the case registered against the Respondents - Accused persons was exclusively triable by the Court of Sessions, same was committed to the Court of Sessions under Section 209 of the Code of Criminal Procedure, which is numbered as Sessions Case No. 4 of 2004.

6. On committal, the case was transferred and placed for trial before the learned Additional Sessions Judge, Fast Track Court No.5, Bhavnagar Camp at Mahuwa, who had initially framed charge against the Respondents / Accused persons vide Exh.4. The charge was read and explained to the Respondents / Accused persons to which they pleaded not guilty to the charge and claimed to be tried.

7. In order to bring home the charge leveled against the Respondents - Accused persons, the prosecution has examined as many as 15 witnesses and relied upon their oral testimony and has also produced as many as 13 documentary evidence, and after completion of the investigation, Charge-sheet was filed against the accused persons for the offences in question. The learned trial Judge framed the Charge. Since the accused did not

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plead guilty, trial was proceeded against the accused persons. Vide impugned judgment and order dated 27.08.2007, the learned trial Judge acquitted the accused persons. Being aggrieved by the same, the State has preferred the present appeal.

8. Heard, learned APP Ms. Jirgha Jhaveri for the Appellant - State and learned Advocate Mr. J.M.Barot for the Respondents / Original Accused persons.

9. The learned Additional Public Prosecutor has mainly contended that the learned trial Judge has erred in holding that the prosecution has failed to prove beyond reasonable doubt the prosecution case. The prosecution has also contended by taking various grounds that the testimony of PW-1 Jetabhai Virabhai Miyatra (Original Complainant) at Exh.12 was not properly appreciated by the learned Trial Judge and the learned Trial Court has committed serious mistake. It is also contended that the learned Trial Judge ought to have appreciated the version of PW-6

- Manjuben Malabhai at Exh. 22. She has deposed in her testimony that on the date of incident the respondent - accused beat the complainant and also abused him and threatened to kill him and supported the prosecution case. PW-7 Pavankumar Ramakant Chaudhary (Medical Officer) who is examined at Exh.24 has also supported the prosecution case. PW-9 Madhuben Tejabhai, wife of the the complainant is examined at Exh.30. PW- 10 Virabhai Danabhai who is examined at Exh.31 has stated that the Respondents / Accused persons abused the complainant and also beat him. It is also contended that the prosecution has examined PW-11 - Jasvantsinh Kanubhai Sarvaiya (P.S.O.) at Exh.32. He has taken the complaint and later on submitted the report to the superior officer, SC / ST Cell and also placed reliance

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on the version of PW 14 Ramjibhai Devjibhai Balat (Deputy Superintendent of Police) at Exh.49 who has submitted the charge sheet. The prosecution has also examined PW-15 Kiritkumar Ramjibhai Bhayani at Exh.65 who has submitted the caste certificate. The learned APP has taken this Court through the oral as well as the documentary evidence on record and submitted that though the prosecution has proved the case against the accused persons beyond reasonable doubt, the learned trial Judge has not properly appreciated the evidence on record and thereby, has committed an error in recording acquittal.

9.1 Thus, the learned APP has submitted that although cogent and material evidence has been produced by the prosecution and the case was proved beyond reasonable doubt, the trial Court has committed a grave error in acquitting the accused persons, and accordingly, the learned APP urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal. The learned APP has further heavily placed reliance upon the depositions of the complainant, wife of the complainant and also the deposition of the witnesses as mentioned in the memo of Appeal wherein the prosecution has successfully proved its case, but unfortunately, the learned Trial Court has failed to appreciate the evidence adduced by the prosecution. On such grounds, the learned Advocate for the Appellant has pointed out in nutshell that this court may interfere with the acquittal order and set aside the same and award the conviction to the Respondents - Accused persons.

10. Per contra, learned Advocate Mr. J.M.Barot for the Respondents - Accused persons has heavily contended that pursuant to the depositions of the witnesses, it transpires that

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the prosecution has failed to prove its case and therefore, there is no requirement to interfere with the order passed by the learned trial Court.

10.1 Learned Advocate Mr. Barot has taken this court to the evidence of the complainant - PW-1 Tejabhai Virabhai Miyatra and specially cross-examination therein. It is admitted by the complainant that since Jijibhai Dansingbhai, the father of the accused was Sarpanch for 40 years and he is the main person for such grievances and therefore he has also filed the complaint. He has also admitted that the Sarpanch has given agricultural land to his father as the father was illiterate and therefore he was not having the papers. Learned Advocate has also placed reliance on the hostile witness. He has also placed reliance upon the deposition of PW-12 Bhikhalal Jivrajbhai Pandya at Exh.46 wherein in cross-examination it is admitted that no teachers were present on the date of incident. Further, it is admitted by this witness that he was teacher at the relevant time. The complainant has taken the chair and throw upon the Accused No.1 and therefore the witness intervened and pull him down. He has also admitted that on the date of incident, till 1:30 PM Dhirubhai and Jaibhai were present in the school, they were not gone outside and therefore also learned Trial Court has rightly appreciated the deposition of the witness and rightly awarded the acquittal. Therefore, there is no illegality in the order passed by the learned trial Court. Learned Advocate Mr. Barot has also placed reliance upon the deposition of PW-13 Dhirubhai Valjibhai Solanki at Exh.47 wherein, in cross-examination it is admitted that he had not seen that any incident had occurred at the residence of Tejabhai. It is also contended by the learned Advocate Mr. Barot that PW-14 Ramjibhai Devjibhai Balat - Exh. 49 was Deputy Superintendent of Police at the relevant time and

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he has admitted that the place of occurrence is a private place and he has supported that PW- 13 Dhirubhai Valjibhai Solanki Exh. 47 has stated that Tejabhai tried to beat Sarpanch Dhirubhai with the help of chair, though no complaint was filed to that extent. Learned advocate Mr. Barot for the respondents - accused, while supporting the impugned judgment and order 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 all the accused persons, 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. and hence, the learned trial Judge has rightly acquitted the accused persons of the charges levelled against them, which do not require any interference at the hands of this Court. Eventually, it is urged that the present appeal may be dismissed.

11. Heard the learned advocates for the respective parties and gone through the impugned judgment and order 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.

11.1 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.

11.2 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.

11.3 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".

11.4 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."

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

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does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in 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.

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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 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)."

12. This Court has gone through the testimony of PW-1 - Tejabhai Virabhai Miyatra at Exh.12, wherein in chief examination he has stated as per the version of the complaint but in cross examination he has admitted that Dhiribhai was doing the work of filling the lintel in the school. He has admitted that he was not

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called after the registration of complaint at the police station. He has also admitted that his application before the Deputy Collector was disallowed. Further, it was admitted that since Jijibhai Dansinghbhai Rajput , whose father was Sarpanch for 40 years, he was doing all such activities and therefore he has filed case of atrocity.

13. This court has gone through the testimony of PW-14 Ramjibhai Devjibhai Balat (Deputy Superintendent of Police) at Exh.49. During cross-examination it is admitted that it is not disclosed in the complaint that the incident had occurred in the open place (osari) of the complainant. It is also admitted that the place of occurrence is a private place and therefore pursuant to the provisions under Section 3(1)(10) of the Atrocity Act this court believes that the prosecution fails to prove the case on this aspect and pursuant to the judgment and order by the learned Special Judge, there is no requirement to interfere with the judgment and order passed by the learned Special Judge. It is pertinent to note that there is some dispute regarding the land for which the complainant has also filed the application before the Deputy Collector and also filed the case of Atrocity upon the concerned Sarpanch. Therefore when there is a past history of complainant coupled with litigation; both at revenue and criminal side, at that juncture, this court is required to go through the examination of deposition of the witnesses with caution. Not only that but this court is fully conscious that only on the basis of single witness either complainant or whosoever may be, court may convict the accused persons. But in the present case, corroboration of the witnesses is sine qua non. As discussed earlier, as per the case of the prosecution, when the witness of prosecution has admitted, specially the investigating agency that the place of occurrence is a private place, upon such premises no

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case is made out under Section 3(1)(10) of the Atrocity Act also when the rest of the witnesses have not supported the case of the prosecution. On the contrary the teacher who is an independent witness has not supported the case of the prosecution. On the contrary it has come on record that two accused persons were in the school. Therefore also it creates doubt upon the story of the prosecution and whenever there are two views are possible, this court is required to consider the view which is in favour of the accused. Therefore also there is no requirement to interfere in the reasoned order passed by the learned Special Judge.

14. Thus, on re-appreciation and reevaluation of the ocular and the documentary evidence on record, it transpires that the prosecution has failed to prove the case against the accused beyond reasonable doubt. The Court has gone through in detail the impugned judgment and order and found that the learned trial Judge has meticulously considered the depositions of all the witnesses and came to the conclusion that the prosecution has failed to prove the case against the accused persons beyond reasonable doubt, and therefore, 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 this Court. This Court is in complete agreement with such finding of the learned Special Judge.

15. In view of the aforesaid discussions and observations, in the considered opinion of this Court, the prosecution has failed to bring home the charge against accused for want of sufficient material. The findings recorded by the learned Special Judge do not call for any interference. Resultantly, in fleri, the appeal fails and is dismissed accordingly. Impugned judgment and order

R/CR.A/676/2008 JUDGMENT DATED: 28/10/2021

dated 27.8.2007, passed in Special Atrocity Case No. 4 of 2004 by the learned Additional Sessions Judge, Fast Track Court No.5, Bhavnagar, Camp at Mahuwa, recording the acquittal is confirmed. Bail bond, if any, shall stand cancelled. R&P be transmitted back forthwith.

(A. C. JOSHI,J) J.N.W