State Of Gujarat vs Lalabhai Hebabhai Chauhan ...
2022 Latest Caselaw 1178 Guj

     R/CR.MA/5956/2021                                ORDER DATED: 03/02/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 5956 of 2021

                    In R/CRIMINAL APPEAL NO. 448 of 2021

                                        With

                         R/CRIMINAL APPEAL NO. 448 of 2021
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                            STATE OF GUJARAT
                                  Versus
                   LALABHAI HEBABHAI CHAUHAN (ADIVASI)
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Appearance:
MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the Applicant(s) No. 1
NOTICE UNSERVED for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 03/02/2022

                                   ORAL ORDER

(PER : HONOURABLE MR. JUSTICE S.H.VORA)

1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 30.1.2020 passed by the learned 7 th Addl. Sessions Judge, Banaskantha @ Palanpur in Sessions Case No.27 of 2019, whereby the respondent accused came to be acquitted from the charge of offences under section 307 of IPC, the applicant - State of Gujarat has preferred this application to grant leave to appeal as provided under section 378(1)(3) of the Code of Criminal Procedure, 1973 ("the Code" for short) inter alia challenging the judgment and order of acquittal in favour of the respondent accused.

2. According to the prosecution case, on 12.7.2018, at about 21:00 hrs., at village Vagdadi, present respondent accused

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Lalabhai due to suspicious nature, got enraged and gave filthy abuses to the prosecution witness Kasnabhai and asked why did you come to the house of your widow maternal aunt and thereby, inflicted blow of stick with iron ring on the head of the prosecution witness kasnabhai as well as on the fact and ear and thereby, caused fatal injuries. Thus, the respondent accused has committed breach of notification issued by the District Magistrate under the Gujarat Police Act. Therefore, complainant Champaben Bumbadiya lodged the complaint with regard to the incident before Palanpur Taluka Police Station, which was registered as I - C.R. No.81/2018 for the offences under sections 307, 323, 294(b) of IPC and also u/s 135 of the G.P. Act. At the end of trial, the respondent accused came to be acquitted from the charges of offence u/s 307 of the IPC, but he came to be sentenced for 30 months for the offence u/s 325 of the IPC r/w section 135 of the G.P. Act.

3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence in form of medical evidence and drawn various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the respondent accused, charge-sheet came to be filed in the Court of learned JMFC, Palanpur. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Palanpur as provided under section 209 of the Code.

4. Upon committal of the case to the Sessions Court, Palanpur, learned Sessions Judge framed charge at Exh.6 against the respondent accused for the aforesaid offence. The respondent accused pleaded not guilty and claimed to be tried.

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5. In order to bring home charge, the prosecution has examined 15 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 4 of the impugned judgment and order.

6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the respondent accused denied all incriminating circumstances appearing against him as false and further stated that there was a dispute with the injured Kasnabhai with regard to right of way and as said Kasnabhai fell down, he sustained injury and on account of previous enmity, false case is filed against him and falsely framed him in the present offence. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondent accused from the offence of section 307 of the IPC as the prosecution failed to prove the case beyond reasonable doubt.

7. We have heard learned APP Ms. Shah appearing for the applicant State and have minutely examined the documentary evidence provided to us by learned APP during the course of hearing.

8. It appears that there was a dispute between the respondent accused and injured witness Kasnabhai with regard to right of way and the parties were negotiating for the settlement. It also transpires that as there were quarrels two to three times prior to the incident dated 12.7.2018 at the relevant time, the matter

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was settled. However, present FIR is filed after a delay of 6 days to snatch money and to settle the previous enmity. It also surfaces on record that the injured gave his dying declaration before the Executive Magistrate at Exh.60. The injured in terms disclosed before the Executive Magistrate that he suffered injury on account of he being fell down on the ground. Such statement is made by the injured when he was conscious and bearing in mind the background facts of the alleged offence, we are required to reassess and reanalyze the evidence adduced before the learned trial Court. For the offence u/s 307 of the IPC, the injured is a star witness and he is the person who received injury at the time of occurrence of the offence. According to the own version of injured Kasnabhai, when he was sitting with one Jamnaben, the respondent accused came and inflicted injuries with stick on his head, teeth, ear and right eye. He has further deposed that he remained unconscious for 72 hours. He has further deposed before the Court that he has not described with regard to injuries on teeth, right eye and also right ear. From the evidence of Dr. Umangbhai Vaishnav examined at Exh.31, he has admitted in cross-examination that on the 2 nd day of the incident i.e. 13.7.2018, the Executive Magistrate took the dying declaration of the injured and at that time, the injured was conscious. Except this evidence, the prosecution did not examine any other available independent witnesses including Jamnaben, with whom the injured was sitting at the relevant point of time of occurrence of the offence. So meaning thereby, it can be inferred that injured witness Kasnabhai suffered some injuries in the incident. In view of the aforesaid evidence both, oral and documentary, it appears that the respondent accused did not continue to beat the injured till he was prevented by the people of nearby residence. As per the prosecution case, the

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respondent accused gave some injuries on the body of Kasnabhai and thereafter, the respondent accused ran away from the scene of offence. Bearing in mind all these vital aspects of the case and evidence adduced before the learned trial Court and enmity existing between the parties prior to the incident in question and explanation forwarded by the respondent accused in his further statement read with statement made by injured Kasnabhai in his dying declaration at Exh.60, the learned trial judge has rightly found and noticed that present case lacks essential ingredients of offence punishable u/s 307 of the IPC, namely, intention and knowledge. Under the circumstances, the learned trial Judge has rightly acquitted the respondent accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal.

9. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

10. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:

"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own

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conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."

11. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.

12. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.

13. In view of the above and for the reasons stated above, present application for leave to appeal fails and same deserves to

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be dismissed and is accordingly dismissed. Notice discharged.

14. In view of dismissal of the application for leave to appeal, captioned Criminal Appeal also deserves to be dismissed and is accordingly dismissed.

(S.H.VORA, J)

(SANDEEP N. BHATT,J) SHEKHAR P. BARVE