State Of Gujarat vs Ashok Jaysukhlal Bhateliya
2022 Latest Caselaw 7269 Guj

     R/CR.A/1742/2012                                    JUDGMENT DATED: 23/08/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL APPEAL NO. 1742 of 2012


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 copyNo
      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
                           ASHOK JAYSUKHLAL BHATELIYA
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Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR PREMAL R JOSHI(1327) for the Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                   Date : 23/08/2022

                                  ORAL JUDGMENT

1. Heard learned APP Ms. Jirga Jhaveri for the appellant - State and learned advocate Mr. Premal Joshi for the respondent at length.

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2. The State has filed this acquittal appeal challenging the judgment and order dated 09.07.2012 passed by the learned Special Judge & Additional Judge, Khambhalia in Special (Atrocity) Case No. 03 of 2011 for the offences punishable under Sections 504 506 (2) and 114 of Indian Penal Code & Section 3 (1) (10) of Atrocity Act.

3. The brief facts of the case are that on 30/04/2007 at about 03:00 to 03:30 p.m., accused had abused complainant over telephone and thereby committed offence punishable under Section 504 of the IPC. It is also the case of prosecution that on 30/04/2007 at about 06:00 p.m., while the complainant was coming back from service, accused had come on motorcycle and administered threat of killing complainant and also insulted his caste in public place and thereby humiliated him. The original accused also insulted his caste. The complaint was lodged, investigation was carried out, Panchnama was drawn and statements of the witnesses were recorded. As sufficient evidence to link the accused with the crime were found, a charge sheet came to be filed against the respondent-accused for the aforesaid offences. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution led evidence and on the conclusion of the trial, the learned Special Judge & Additional Judge, Khambhalia passed the order of acquitted. Therefore, appellant State of Gujarat has preferred appeal under sec. 378(1)(3) of Criminal Procedure Code, 1973 against order of acquittal.

4. Learned APP Ms. Jirga Jhaveri for the State has taken this Court at different depositions as deposed by the witnesses and

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submitted that the learned Special Judge has committed error in appreciation of evidence and also contended that the learned Special Judge has not appreciated the oral and documentary evidence. Further it is contended that the learned Special Judge has not considered substantial evidence on record and not appreciated the evidence in accordance with the settled principle of law. Lastly, it is contended that the learned Special Judge has committed error in arriving at the acquittal of the accused persons and therefore appeal may be allowed and reversion be made to the extent the conviction of the accused persons.

5. Per contra, learned advocate Mr. Premal Joshi for the respondent has heavily contended that even if it is considered the material witness the deposition thereof wherein in cross examination, it is admitted that when the original complaint (Exh.17) was shown to the material witness at the time of the incident, it is admitted that it is not threatened so far as non- parliamentary word is concerned, it is also not threatened so far as the so called alleged talking on mobile phone. It is submitted that learned Special Judge has rightly given the benefit of doubt to the accused persons and therefore, there is no need of interference by this Court and the appeal may be dismissed.

6. Having heard the arguments advanced by learned advocates for the respective parties and considering the materials available on record, this Court would like to refer as under:

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6.1 Before adverting to the facts of the case, it would be worthwhile to refer to the scope of interference 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 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.

6.2 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.

6.3 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

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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 appellate Court, in such circumstances, to 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.

6.4 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 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".

6.5 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:

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"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 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.

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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 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

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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, 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

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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 & 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 reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons

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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 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

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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 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.

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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 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

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interfere in the interest of justice, lest the administration of justice be brought to ridicule."

(emphasis supplied)."

7. This Court has gone through the testimonies as deposed by the prosecution witnesses PW-1 Aliben Ranabhai (Exh.16), at the respective time she was Assistant Teacher in the N.D.H High school, she tried to deposed in accordance with the contents of complaint but subsequently in cross examination, she has admitted that when the complaint (Exh.17) was shown to her, wherein she has admitted that non parliamentary words are written down. It is admitted that it not threatened so far as on telephonic talk with accused on second and third day and on the next day, she regularly and routinely attended the school. Upon such premises, this Court is of the view this material witness who is complainant /first informant, has failed to prove its case for the charges levelled against him, therefore, the learned Special Judge has rightly arrived at the benefit of doubts and acquittal of accused persons. Prosecution has testified PW-2 Reshmikant (Exh.21), who appears to be Peon in the said school, but he has no knowledge of the so called incident, naturally the defence has not cross examined him. Prosecution has testified PW-3 Jayantilal Naranbhai Bambhariya (Exh.22), who appears to be Principal of the said school at the respective time. He has admitted in chief examination that at the respective time, was not on duty. Though, Aliben has informed the alleged offence at the same time, it is recorded the principle of law that the credibility of appreciation of evidence, so far as the witness is concerned, much reliance can not be placed. The prosecution has also

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testified PW-4 Bharatbhai Nathabhai Rathod (Exh.26), who appears to be Journalist at the respective time, he has stated in his chief examination that Ashokbhai and Aliben were having scuffle but simultaneously in his cross examination, he has admitted that there is one complaint against him under section 354 of the IPC and further the same was completed to compromise, he has stated that he has no knowledge, the captioned incident was published in the newspaper. He has admitted that one more case is filed by Devsinghbhai and in short and substance as discussed earlier when the material witness, Aliben has failed to prove its case, and on the basis of this witness, who is journalist but there are some cases against him and when the complainant / first informant has not independently stated the allegations levelled against the accused persons. On that basis, only on the deposition of this witness, the prosecution can not succeed to prove its case. The prosecution has testified PW-5 Jayantibhai (Exh.33) who appears to be Dy.SP at the respective time, he has tendered police yadi and he has also submitted the message forwarding letters (Exh.36 & 37), Yadi (Exh.38), copy of the FIR (Exh.41) and other evidences (Exh.43, 44 and 45 to 47) as per his official duty, but in cross examination he has fairly admitted that as such there is nothing on record regarding the explanation of delay in registration of FIR. Later on, it is stated that in view of the further statement, the same is made, but simultaneously it is admitted that so far as non parliamentary word is concerned, the same is not uttered. He has also admitted that though the place of occurrence is public place but he has not taken the statements of any persons from the public nor from any of the shops. On such grounds, it appears

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that pursuant to the depositions and pursuant to the judgment and order passed by the learned Special Judge, there is no requirement to interfere with the same. The learned Special Judge has rightly and meticulously appreciated the evidence of the prosecution witnesses and arrived at benefit of doubt to the accused for the charges levelled against him. The judgment and order passed by the learned Special Judge is neither perverse, nor capricious, nor illegality, nor any error of law.

8. Hence, in-fleri, prosecution failed to prove case upon the accused.

9. In view of the aforesaid discussion and observations, this Court is of the opinion that the judgment and order dated 09.07.2012 passed by the learned Special Judge & Additional Judge, Khambhalia in Special (Atrocity) Case No. 03 of 2011 is just and proper and there is no need of interference by this Court. Accordingly, this appeal stands dismissed and the judgment and order dated 09.07.2012 passed by the learned Special Judge & Additional Judge, Khambhalia in Special (Atrocity) Case No. 03 of 2011 is confirmed. Bail bond stands cancelled.

10. Record and Proceedings be sent back to the trial Court concerned.

(A. C. JOSHI,J) SALIM/114