State Of Gujarat vs Kripalsinh Harbhamsinh Jadeja
2022 Latest Caselaw 1179 Guj

     R/CR.MA/2780/2022                                 ORDER DATED: 03/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 2780 of 2022
                                  In
                   R/CRIMINAL APPEAL NO. 300 of 2022
                                 With
                   R/CRIMINAL APPEAL NO. 300 of 2022

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                                STATE OF GUJARAT
                                      Versus
                         KRIPALSINH HARBHAMSINH JADEJA
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Appearance:
MS CHETNA M. SHAH, APP for the Applicant
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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 SANDEEP N. BHATT)

1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 07.10.2021 passed by the learned 4TH Additional Sessions Judge, Gondal in Sessions Case No.54 of 2011 for the offences under Sections 307, 120B, 114 and 201 of the Indian Penal Code, Sections 25(1), (1-A), (1-B) and A-27 of the Arms Act and Section 135 of the B.P. Act, 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. Brief facts of the prosecution case are that, on 22.04.2011 at about 01:15 hours at Village - Khareda, about

R/CR.MA/2780/2022 ORDER DATED: 03/02/2022

two months ago, there was a quarrel taken place between the father of the complainant and the accused regarding money and therefore, keeping grudge in their mind, accused persons went to the house of the complainant and knocked the door at about 01:15 hours at night. The door was opened by the complainant and he called his father outside the house, he came out and accused no.1 - present respondent No.1 fired with 'Tamancha' on his head. At that time, the father of the complainant tried to save himself and thereby he got injured on right hand. After hearing the noise of firing, other family members and neighbours came out of the house and the accused persons ran away from the incident. Thereafter, the Mitulsinh - complainant - son of the injured father (Bharatsinh) lodged complaint with regard to the incident before the Kotda- Sangani Police Station, District : Rajkot, which was registered as I - C.R. No.44 of 2011 for the offences as mentioned hereinabove.

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 Additional Chief Judicial Magistrate, Gondal. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Gondal as provided under section 209 of the Code.

4. Upon committal of the case to the Sessions Court, Gondal, learned Sessions Judge framed charge at Exh.19 against the respondent accused for the aforesaid offence. The

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respondent accused pleaded not guilty and claimed to be tried. It is noted that the original accused No.2 - Dharmendra Dobariya has expired during the trial and hence, the trial was abated qua him.

5. In order to bring home charge, the prosecution has examined 16 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 5 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 he is innocent and false case has been filed against him. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondent accused of the offences, for which he was tried, 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.

8.1 From the impugned judgment it transpires that, the complainant - Mitulsinh, who is a son of the injured, was not available during entire trial and therefore, he was not

R/CR.MA/2780/2022 ORDER DATED: 03/02/2022

examined by the prosecution. He was an eye-witness of the incident, as after knocking the door by the accused, complainant - Mitulsinh has opened the door and called his father - Bharatsinh to come out of the house. Therefore, he may be the prime witness of the incident. However, he was not examined by the prosecution at all. Therefore, the prosecution has failed to prove his case by examining the prime witness i.e. the complainant.

8.2 Further, there are contradictions in the complaint and the cross-examination of the injured Bharatsinh. In the complaint, the complainant has stated that when the accused person called Bharatsinh Pratapsinh Chudasama, the complainant also came out of the house, whereas in the cross-examination of the injured Bharatsinh, it is deposed that he alone came out of the house.

8.3 Further, there are contradictions in the deposition of the injured Bharatsinh that, he knows the difference between 'Tamancha' and 'Revolver'. Complainant Mitulsinh in his complaint has stated about the revolver, whereas during the recovery panchnama, the weapon recovered by the police is 'Tamancha'.

8.4 Further, there are also contradictions in the colour of the weapon. The complainant in his complaint has stated that the weapon used in the commission of offence is of silver colour, whereas the recovered weapon is of black colour.

8.5 Further, with regard to even the injury - Bharatsinh in his deposition at Exh.67 has stated that the weapon used in the

R/CR.MA/2780/2022 ORDER DATED: 03/02/2022

commission of offence is of brown colour.

8.6 Therefore, there are material contradictions regarding the type of weapon and the colour of weapon used in the commission of offence.

8.7 Looking to the medical evidence, there are major contradiction in the depositions of Dr.Rajendrakumar Laxmidas Virpara in his deposition at Exh.110 has stated regarding the injuries caused on the left hand of Bharatsinh by fire arms. Whereas the injured has deposed in his deposition before the trial Court that he got injury on his right hand. This is the major contradiction in the version of the injured himself and the medical evidence.

8.8 Further, in cross-examination of the Dr. Rajendrakumar (Exh.110), he has stated that the injury can be caused by hard substance. He has also stated that there was no swallow mark on the hand, and that the skin was also not got black and that there was no bullet mark. He has clearly stated in his cross- examination that if there is fire, there would a bullet mark, there would swallow on the body part and there would be chances of getting skin black. He has also stated that such type of injury which the injured got may be caused due to sudden fall from the motorcycle. Thus, the medical evidence and/or deposition of the doctor does not support the case of the prosecution.

8.9 Further, there are material contradictions in the deposition of the doctors as well as injured. Dr.Ramprasad Rasiklal Agrawal in his deposition at Exh.97 has stated that,

R/CR.MA/2780/2022 ORDER DATED: 03/02/2022

there is an injury on the right hand. Whereas Dr. Rajendrakumar Laxmidas Virpara in his deposition at Exh.110 has stated that there is an injury on the left hand. Injured Bharatsinh has stated in his deposition before the Court that there is an injury on the right hand. Further, the deposition at Exh.110 speaks about 'L' shaped 4x1 cm bruised injury at lower part of the left elbow (left hand) and medical papers at Exh.112 support the same. Whereas the deposition at Exh.97 speaks about 3 cm injury at fore-arm of right hand, which is a stitched wound and medical certificate at Exh.98 supports the same.

8.10 Thus, there are major and material contradictions in the depositions of both the doctors regarding the injury sustained by the injured.

8.11 It is pertinent to note here that, both the doctors have not stated in their depositions that there are bullet marks or the skin got black and there is swallow on the injured part. Thus, according to the medical jurisprudence, both the medical experts have not supported the case of the prosecution regarding the injury done by the fire arm.

8.12 As per injured, the root cause of the quarrel is that injured Bharatsinh has lent Rs.30,000/- to one Ghanshyambhai Dobariya. Bharatsinh has stated in his cross-examination about the same. However, there is no evidence regarding the same produced by injured Bharatsinh. Therefore, this is a mere allegation which cannot be believed unless proved by leading evidence.

       R/CR.MA/2780/2022                        ORDER DATED: 03/02/2022




8.13             The incident happened at about 01:15 hours at

night. The accused have come to the house of the injured. There was quarrel between them earlier. There was no complaint regarding the same. The prosecution has not examined the family members of the injured in its support.

8.14 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 pertinent to note that the prosecution is required to prove the intention or knowledge of the accused persons, however, it is necessary that the prosecution is required to prove the intention or knowledge of the accused persons and it is not necessary that injury capable of causing death should have been inflicted by the accused persons. What is material to attract offense under section 307 of the IPC is the intention or knowledge with which all the acts are done irrespective of its results. In order to attract the offence under section 307 of IPC, we have minutely examined oral evidence and all the prosecution witnesses, we found that nothing is disclosed with regard to intention or knowledge so as to constitute that there is anything on the part of the respondents - accused persons to commit act or attempt to commit murder. In the present case the prosecution has failed to discharge its duty to prove its case beyond reasonable doubt and the Trial Court has rightly acquitted the accused persons by giving benefit of doubt as the case is not proved beyond reasonable doubt.

10. In view of above and on our own analysis and re-

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appreciation of the evidence, we do not find any infirmity or compelling reasons to interfere with the order of acquittal recorded by the trial Court. We have also perused the judgment and findings given by the trial Court and find that the same are in accordance with law.

11. 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.

12. 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 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."

13. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in

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(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.

14. In the very recent judgment reported in 2021 (15) SCALE 184 in the case of Mohan @ Srinivas @ Seena @ Tailor Seena V/s. State of Karnataka, the hon'ble Apex Court has observed the scope of section 378 of the Code in Para : 20 to 22 as under :-

"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial Court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.

21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial Court to act in a particular way depending upon the sensitivity of the case.

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Rather it should be appreciated if a trial Court decides a case on its own merits despite its sensitivity.

22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark."

15. 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.

16. In view of the above and for the reasons stated above, present Criminal Misc. Application No.2780 of 2022 for leave to appeal fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, captioned Criminal Appeal No.300 of 2022 also deserves to be dismissed and is accordingly dismissed.

(S.H.VORA, J)

(SANDEEP N. BHATT,J) M.H. DAVE