The State Of Gujarat vs Rajput Rohitbhai Manubha
2022 Latest Caselaw 1429 Guj

    R/CR.A/2115/2006                                  CAV JUDGMENT DATED: 08/02/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 2115 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== THE STATE OF GUJARAT Versus RAJPUT ROHITBHAI MANUBHA & 2 other(s) ========================================================== Appearance:

MR AM PAREKH(562) for the Opponent(s)/Respondent(s) No. 3 MR SS SAIYED(3690) for the Opponent(s)/Respondent(s) No. 1,2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 08/02/2022

CAV JUDGMENT

1. This Appeal is filed by the appellant - State of Gujarat under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the judgment and order dated 14.07.2006 passed by the Additional Sessions Judge, Fast Track Court No.3, Ahmedabad (Rural) in Special Atrocity Case No.42 of

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2004 acquitting the respondent nos.1 to 3 - original accused from the offence punishable under sections 323, 504, 506(2) and 114 of Indian Penal Code, under section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989 and under section 135 of Bombay Police Act.

2. The case of the prosecution case is that the complainant namely Naranbhai Chhaganbhai Chavda is doing agricultural work in Makhiyav village. On 09.09.2004 at about 16.30 hours, the complainant was present in his farm and fetching water for his crops by machine from the canal. At that time, respondent nos.1 and 3 came there and stopped the machine. They also started giving abuses to the complainant naming his caste. Thereafter, respondent accused No.2, complainant and opponent - accused No.1 struck complainant with stick on his right leg and went from there. Thereafter, respondent accused No.3 came to know about earlier incident. He got excited and went to the house of the complainant. PW No.3 - complainant's wife was present at home. Respondent accused No.3 pushed her out side from her house by holding her upper arm and gave threat to kill her and also gave abuses to her in filthy language. When the complainant returned home, PW No.3 disclosed about the said incident to him. Thereafter, the complainant along with PW No.2 Mafabhai Narsingbhai went to the Police Station and lodged a complaint against the respondents - accused before the police station. Police

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authority registered the offence and carried out investigation. Investigating officer visited the place of occurrence and prepared panchnama of scene of offence and recorded statements of concerned witnesses and recovered the weapon and arrested the respondents accused. After completing the investigation chargesheet was filed. The opponent accused faced the trial in Special Atrocity Case No.42 of 2004 for the offence punishable under sections 323, 504, 506(2) and 114 of Indian Penal Code and under section 135 of Bombay Police Act and section 3(1)(10) Atrocity Act.

2.2. The Additional Sessions Judge, after appreciating the evidence on record, acquitted the respondents herein - original accused from the charges levelled against them.

2.3. Being aggrieved by and dissatisfied with the aforesaid judgement and order of acquittal, present appeal has been filed by the appellant - State.

3. Learned APP Mr.R.C. Kodekar for the appellant State has vehemently argued that the Sessions Court has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. He has further submitted that the Sessions Court has erred in acquitting the respondents - accused from the charges levelled against them. He has further argued that the prosecution has proved that the respondents have committed offence under

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sections 323, 504, 506(2) and 114 of Indian Penal Code and under section 135 of Bombay Police Act and section 3(1)(10) of Atrocity Act, however, the Sessions Court has acquitted the respondents accused merely on some minor contradictions and omissions in the evidence of the witnesses and erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. He has further submitted that the offence punishable under sections 323, 504, 506(2) and 114 of Indian Penal Code and under section 135 of Bombay Police Act and section 3(1)(10) of Atrocity Act is made out against the accused, however, the same is not believed by the Sessions Court and erroneously acquitted the accused.

Making above submissions, he has requested to allow the present appeal.

4. Mr. S.S. Saiyed, learned advocate for the respondent Nos.1 and 2 and Mr.A.M. Parekh, learned advocate for the respondent No.3 - original accused have submitted that there is hardly any substance in the submissions of learned APP. There is no admissible evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses. Though the alleged incident occurred during day light and though independent witnesses were available, no independent witness has been examined. Even no statement of

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independent witness has been recorded by the investigating officer. All the witnesses are interested witnesses and case rests on interested witnesses whose evidence is not trustworthy. Prosecution witness Niruben Naranbhai is not eye witness and she was informed about the incident by her son Rahul. Rahul is the person who witness the incident, but he is not examined as witness. There is no eye witness. The case is not supported by any independent witness or panch witness. Mafabhai was cultivating the farm of the accused and to grab the farm, the complainant has falsely implicated the accused in the offence.

Making above submissions, he has requested to dismiss the present appeal.

5. Heard the learned advocates for the respective parties and gone through the impugned judgemenet and order of the trial court as well as re-appreciated the entire evidence on record.

6. 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 is 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

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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.

7. If the facts of the present case are seen, the entire incident has occurred in two parts, one incident has occurred, as per the complainant, in the agricultural field of the complainant whereas, the second incident has occurred in front of the house of the complainant. As per the allegations levelled against the accused, in first part of the incident i.e. occurred in the agricultural field, the allegations have been levelled against the accused Nos.1 and 2, whereas second incident has occurred between wife of the complainant and accused no.3. Considering the entire record of the case, no documentary or cogent oral evidence has been produced on record to substantiate the allegations regarding first incident. Whereas evidence which has been recorded is pertaining to second incident. The prosecution examined complainant - Naranbhai Chhaganbhai Ex.22, Mafabhai Narsinhbhai Ex.25 who is brother-in-law of Niruben, his wife - Naruben Naranbhai Ex.27 and his sister- in-law Hiraben Mafabhai Ex.28. To evaluate the evidence of the witnesses, all these witnesses are interrelated with each other and they are known to be interested witnesses and there are material contradictions inter-se in the in the deposition of the witnesses as well as there are material contradictions with respect to the complaint as well as

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statements of the witnesses.

8. As per the deposition of the complainant, when he was fetching water in his field, Accused Nos.1 and 2 came and there was quarrel between them and Accused No.2 caught hold him and Accused No.1 inflicted stick blow on his hand. It is the say of the complainant that he had shouted and made hue and cry and his neighbour in the adjoining field Vikrambhai came there and he took the complainant to his home. This incident is mentioned in the complaint but not mentioned in the examination-in-chief. Considering the evidence of the complainant, hearing his shouting, persons from the agricultural field namely Dineshbhai, Popatbhai and Bharatbhai had come. However, nobody has been examined and nobody had come to his help. On the contrary, the complainant has stated that as he was beaten with the stick on his leg, he had become unconscious and thereafter he is ignorant what had happened. As such, there is exaggeration in the evidence of the complainant pertaining to the first incident which occurred in the field.

9. So far as the second incident which has occurred in front of the house of the complainant is concerned, the complainant has alleged that the accused No.3 had come to the field and he went to the house and dragged the wife of the complainant outside the house and abused her and also beaten her with kick and fist blow and one Mafabhai who was coming from Sanand, saved her. As per the version of

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the complainant, the second incident happened with his wife, but this incident has not been mentioned by the complainant in his evidence. On the contrary, the complainant has mentioned that he does not know what had happened after he became unconscious.

10. So far as the evidence of the wife of the complainant - Niruben Naranbhai Ex.27, is concerned, she is declared hostile. There are material contradictions with respect to drag her out of the house by the Accused No.3, which she has not mentioned in her statement. Moreover, as regards abusive word against caste is concerned, she has stated nothing in her evidence. As regards presence of Mafabhai, Niruben stated nothing regarding intervention of Mafabhai and saving her from the accused No.3. Considering evidence of Niruben, her evidence does not help the case of the prosecution in any manner and there are material contradictions with respect to evidence of Niruben.

11. With respect to evidence of Mafabhai is concerned, there is material contradictions between the deposition of Mafabhai and Niruben. Niruben has stated nothing regarding word used against caste by the accused No.3, whereas Mafabhai has tried to exaggerate this version. Mafabhai is also one of the interested witnesses, who is brother-in-law of Niruben.

12. The complainant's sister-in-law, wife of Mafabhai is

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also examined. She has also stated that Niruben had shouted her name so she had gone to rescue Niruben and at that time accused No.3 had dragged and caught-hold hand of Niruben and drawn her on the ground and abused her against her caste. In the cross-examination she admitted that she has not stated in her statement regarding dragging and caughtting hold the hand of Niruben. It is also admitted by her that at the time of incident she was at her house and she does not know what was told by the accused. As such, she is also interested witness i.e. sister-in-law and tried to help the complainant to prove the case. Moreover regarding Hiraben, her name has not been mentioned by Niruben also.

13. Considering main four witnesses, they are interested witnesses and there are material contradictions brought on record by the defence which goes to the root of the case. As such, the evidence of the prosecution witnesses though they are related to each other, the same do not inspire any confidence and the same cannot be relied upon to convict the accused.

14. Reevaluating the entire evidence, after first incident had completed, it is the say of the complainant that in his complaint that when he went to his house, second incident was told by his wife. Whereas, his wife has stated nothing regarding this incident in her statement and in her deposition. On the contrary, as per the say of

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Niruben, her son Rahul informed her regarding first incident who had gone to the field and has taken the complainant to the Doctor. This important witness - Rahul is not examined by the prosecution nor his statement has been recorded. Moreover if Rahul had taken the complainant direct from the field to the Doctor, there was no meeting between the complainant and his wife, therefore, the second incident alleged by the complainant is not probable.

15. It is also admitted by the complainant in his deposition that at the time of lodging the complaint, Mafabhai was with him and the complaint was dictated by Mafabhai and police was writing the complaint. When at the time of first incident, as per the prosecution case, Mafabhai was not present even as per Niruben, Mafabhai was not present in the second incident also, and if Mafabhai was dictating the complaint, the complaint itself cannot be believed and the entire complaint is concocted and not believable.

16. As regards injury aspect is concerned, Dr.Patel has been examined. As per the say of the Doctor, the complainant approached him without police yadi at 10.30 p.m. whereas as per the evidence of the police witness is concerned, the complaint is lodged at 10.00 p.m. If the complaint was lodged at 10 p.m. there was no reason for the complainant to go to the Doctor without police yadi. There is no explanation as to why the complainant approached the

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Doctor without police yadi. Even though there was no police yadi, Doctor also has not bother to inform the police regarding medico-legal case at the time of examination of the complainant. No certificate of injury of civil hospital is on record. As such the injury aspect is not clarified by the prosecution in this case.

17. Panch witness of recovery of stick have not supported the case of the prosecution case. Deposition of panch witness for the site of incident does not inspire any confidence. The complainant and the witness are of one caste and only to support the complainant, they have deposed and therefore, possibility of false implication cannot be ruled out.

18. On re-appreciation of the entire evidence on record, no independent witness has supported the case of the prosecution. Though the incident has occurred in broad day light in public place, no independent witnesses have been examined. No statement of independent witness has been recorded. As per the case of the prosecution Vikramsinh had taken the complainant to his house. However, neither statement of Vikramsinh is recorded nor his evidence is recorded. Though hue and cry was made at the time of first incident and there are neighbours of the adjoining agricultural field, no independent witness has been spotted. As per the case of the prosecution, Rahul informed his mother regarding first incident, however, neither statement

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of Rahul is recorded nor his deposition has been recorded. On overall consideration of the evidence on record, the same do not inspire any confidence.

19. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-

"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :

"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court.

Normally the views of the trial court, as to the credibility of the witnesses, must be given

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proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:

"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take

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another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:

"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended

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indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."

28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:

"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."

"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."

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8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the

as under:

"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."

20. In that view of the matter, the Criminal Appeal being devoid of merits is dismissed.

(RAJENDRA M. SAREEN,J) R.H. PARMAR