Arvindbhai Dalpatbhai Patel vs State Of Gujarat
2022 Latest Caselaw 1562 Guj

     R/CR.A/1085/2021                                ORDER DATED: 10/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1085 of 2021

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                          ARVINDBHAI DALPATBHAI PATEL
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR RUTVIJ S OZA(5594) for the Appellant(s) No. 1
MS POONAM M MAHETA(11265) for the Appellant(s) No. 1
MR VINOD M GAMARA(5910) for the Opponent(s)/Respondent(s) No. 5
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2,3,4
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 10/02/2022

                                   ORAL ORDER

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

1. Feeling aggrieved and dissatisfied with the judgment and order dated 16.3.2021 passed by the learned 8 th Addl. Sessions Judge, Surat in Sessions Case No.476 of 2018 for the offences under sections 380, 413 and 114 of IPC, the appellant - original complainant has preferred this appeal as provided under section 372 of the Code of Criminal Procedure, 1973 ("the Code" for short).

2. Briefly stated, it is the case of the appellant-original complainant that he was serving as Manager in the Talad Vibhag Milk and Vegetable Co. Op.. Society and accused No.1- Maheshbhai was also serving on contract basis as driver of the milk carrying vehicle. It is the case of the original complainant that accused No.1 with the connivance with other accused

R/CR.A/1085/2021 ORDER DATED: 10/02/2022

persons committed theft of 155 bags of various animal feeds amounting to Rs.20,00,070/- in tempo vehicle of other accused persons and therefore the offence being CR No.I-109 of 2018 came to be registered with Olpad Police Station for the aforesaid offence.

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

4. Upon committal of the case to the Sessions Court, Dhari, learned Sessions Judge framed charge at Exh.9 against the private respondents for the aforesaid offence. The private respondents-accused pleaded not guilty and claimed to be tried.

5. In order to bring home charge, the prosecution has examined 17 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 private respondents so as to obtain their explanation/answer as provided u/s 313 of the

R/CR.A/1085/2021 ORDER DATED: 10/02/2022

Code. In the further statement, the private respondents- accused denied all incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the private respondents-accused of the offences, for which they were tried, as the prosecution failed to prove the case beyond reasonable doubt.

7. We have heard learned Advocate Ms. Mehta appearing for the original complainant and have minutely examined the documentary evidence provided to us during the course of hearing.

8. At the outset, it is required to be noted that learned Advocate for the appellant-original complainant does not press for this appeal qua respondent No.4-Parabhu @ Sardulbhai Nagjibhai Bharvad (Original accused No.3) and respondent No.5-Jagsi @ Jagdishbhai Radhabhai Bharvad (Original accused No.4). Accordingly, the present appeal stands disposed of as not pressed qua respondents No.4 and 5.

9. Now, insofar as, the respondents No.2 and 3 are concerned, learned Advocate Ms.Mehta for the appellant has drawn our attention to the evidence in the form of CCTV footage of the godown of the society; wherein it is seen that accused No.1-Mahesh switched off the camera No.7 on 05/09/2018 between 22:01:00 and 23:03:00 p.m. and camera No.8 on 05/09/2018 between 22:02:00 to 22:03:27 p.m. and on 06/09/2018 between 00:19:20 to 00:243:33 a.m. and the said evidence clearly indicates the involvement of accused No.1.

R/CR.A/1085/2021 ORDER DATED: 10/02/2022

Learned Advocate Ms.Mehta for the appellant has further relied upon the extra judicial confession of accused No.1-Maheshbhai made before the lodgement of the complaint before PW 4- Dipakbhai Patel, PW 8-Arvind Patel and PW 9 - Shaileshbhai Patel. According to her, the learned trial Court has not made any detailed discussion with regard to the CCTV footage and extra judicial confession made by accused No.1 since the entire case of the prosecution rests on the circumstantial evidence. She has further submitted that the learned trial Court has overlooked the evidence of vital witness examined as PW 1-Divyeshbhai Aahir who clearly certified that accused No.1 had switched off the light and secondly there is a material difference in the quantum of the goods lying at godown. In her submission, the learned trial Court has overlooked such evidence and therefore the learned trial Court ought to have recorded findings of conviction rather than acquittal of the private respondents.

10. We have in detailed analyzed the oral and documentary evidence adduced by the prosecution. It is not in dispute that none of the accused were found in possession of 155 bags of animal feeds. It is a matter of fact that no any discovery is effected or made at the instance of any of the accused persons, more particularly, accused nos.1 and 2. No doubt, at the instance of accused No.2-Pradipbhai Vasava, 60 bags were recovered from the house of one Mr.Nagjibhai who happens to be father of accused No.3 against whom the present appeal is not pressed. Similarly, the stock statement produced at Exh.21 is of 11/02/2018; whereas the alleged theft took place on 05/08/2018. Further, there is no evidence with regard to the fact that 60 bags produced by Mr.Nagjibhai is of the same

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quality as was entered in the stock statement. Further the said Mr.Nagjibhai at whose instance the goods were produced is not examined as a witness. In view of this glaring defects, reliance on CCTV footage to contend that accused No.1-Mahesh was seen in CCTV camera during particular period and he was switching of the CCTV would not lead us anywhere because he is not found in possession of the theft goods at relevant time or at any point of time. Insofar as the so-called extra judicial confession made by accused No.1-Maheshbhai is concerned, it is a very weak piece of evidence and in absence of corroborative evidence, no reliance can be placed on such confession. Under the circumstances, the learned trial Judge has rightly acquitted the private respondents 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.

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 Advocate for the appellant 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:

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"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 (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. 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 372 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.

15. In view of the above and for the reasons stated above,

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present appeal deserves to be dismissed and is accordingly dismissed.

(S.H.VORA, J)

(SANDEEP N. BHATT,J) sompura