Amratbhai Dahyabhai Pandav vs State Of Gujarat
2022 Latest Caselaw 182 Guj

     R/CR.A/223/2021                                ORDER DATED: 06/01/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 223 of 2021

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                        AMRATBHAI DAHYABHAI PANDAV
                                   Versus
                         STATE OF GUJARAT & 2 other(s)
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR. MANOJ T DANAK(6264) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2,3
PUBLIC PROSECUTOR(2) 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 : 06/01/2022

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)

1. The present Appeal is filed by the appellant who is

original complainant Amrutbhai Dhayabhai Pandav under

section 378 of Criminal Procedure Code. Being aggrieved and

dissatisfied with the judgment and order dated 30.11.2019 in

Special Atrocity Case No. 84 of 2014 by learned 2 nd Additional

Sessions Judge, Ahmedabad (Rural) whereby the respondent

Nos. 2 and 3 - accused came to be acquitted for the offences

punishable under sections 465, 467, 468, 471 and 114 of the

Indian Penal Code (hereinafter referred as 'IPC' for short) as

well as section 3(1)(5) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 ('the Act' for short).

R/CR.A/223/2021 ORDER DATED: 06/01/2022

2. The facts of the case of the prosecution in nutshell is as

under:-

2.1 The appellant - original complainant has filed complaint

against the respondents - original accused stating that on or

before 04.01.2011, the accused persons have collected two

different stamps of Rs.100/- each and they have executed false

agreement for the land of survey No. 1343 of Dholka, which

belongs to the near relative of the appellant - original

complainant herein. It is also the case of the complainant that

the accused made fraudulent signatures of the complainant as

well as other cousins of the complainant in that agreement and

thereby made attempt to take over the possession of the land

admeasuring 0-27 gunthas of Survey No. 1343 of Dholka.

Though the complainant being a member of the Scheduled

Caste took objections against the entry No. 21656, the accused

took over the possession of the land and therefore as per the

case of the complaint the offence was registered under

sections 465, 467, 468, 471 and 114 of the IPC and section

3(1)(5) of the Act, vide complaint being C.R.I 74 of 2013

registered with the Dholka Police Station on 04.05.2013

against the accused. After the investigation the chargesheet

R/CR.A/223/2021 ORDER DATED: 06/01/2022

came to be filed before the Court of Judicial Magistrate First

Class, Dholka who in turn committed the case under section

209 of Code of Criminal Procedure to the Sessions Court. The

said case came to be registered as Special Atrocity Case No.

84 of 2014 before the 2nd Additional Sessions Judge,

Ahmedabad (Rural).

3. Upon committal of the case to the Sessions Court, the

learned Sessions Judge, framed the charge at Exh. 2 against

the respondents - accused for the aforesaid offences. All the

respondents pleaded 'not guilty' and claimed to proceed with

the trial.

4. In order to bring home the charge, the prosecution

examined 27 witnesses and to prove their case documentary

evidence is produced by the complainant which is mentioned

as under:-

Sr.        Particulars                                                Exh. No.
No.

           accused









       R/CR.A/223/2021                                  ORDER DATED: 06/01/2022



          case No. 2 of 2011 of Mamlatdar Office,
          Dholka
6         Certified copy of the entry of Mamlatdar in 59



          opinion


          stamp vendor Pratimaben

Mamlatdar in respect of making entry of the suit land in the record of rights.

12        Copy of the extract of Village Form Nos. 6,
          8/A and 7/12
13        Copy of the affidavit regarding heirs
14        Certified copy of the pedigree
15        Death certificate of Kusabhai
16        Acknowledgment slip of the notice served

through U.P.C. to Bhaniben Jivabhai and Dhayabhai and other miscellaneous papers

5. Against that, the accused has also produced

documentary evidence regarding the earlier as well as pending

litigation which are mentioned as under:-

Sr.       Particulars                                              Exh. No.
No.
1         Certified copy of the suit filed for        93

declaration and permanent injunction dated 24.11.2010 before the Principal Civil Judge, Dholka in Civil Suit No. 326 of 2010 against complainant Amrutbhai Dhayabhai

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Pandav 2 Certified copy of the panchanama of the 94 Court Commissioner of the suit filed for declaration and permanent injunction dated 24.11.2010 before the Principal Civil Judge, Dholka in Civil Suit No. 326 of 2010 against complainant Amrutbhai Dhayabhai Pandav

against the complainant and accused no.

2 at Dholka Police Station being CR-I 2/2011 under sections 323, 504, 506(2), 427, 403, 114 of IPC

Exh. 34 by the Court in the Special Atrocity Case No. 30/11 filed by the sister of complainant Parvatiben against the accused.

Upon conclusion of the trial, the prosecution - complainant

side tendered closing pursis at Exh. 90 and thereafter the trial

Court has recorded statement of accused under section 313 of

the Code and in the further statement recorded under section

313 of the Code the respondents - accused persons denied

their involvement in the crime and stated that false and

fabricated complaint is lodged against them by the

complainant.

6. After hearing both the sides and after analysis of the

evidence adduced by the prosecution as well as by the

accused before the trial Court, the respondent Nos. 2 and 3 -

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accused were acquitted from the charge of offence under

sections 465, 467, 468, 471 and 114 of IPC as well as

section 3(1)(5) of the Act, by the impugned judgment and

order dated 30.11.2019.

7. At the outset, it is pertinent to note that we have

minutely examined the oral as well as documentary evidence

adduced and produced by the prosecution before the learned

Trial Court and we have also heard submissions at length of

the learned advocate Mr. Danak for the appellant - original

complainant. On re-appreciation of the evidence we noticed

that some land dispute among the parties was going on since

long and in order to see that the accused persons are

implicated in the said offence by way of counter blast the

present complaint seems to have been filed by the

complainant. Before evidence is scrutinized, it is necessary

that prosecution is required to prove the case of the

prosecution beyond reasonable doubt. The ingredients of the

sections mentioned in the complaint are needed to be satisfied

with proper and convincing evidence. What is material required

to attract the offence under section 3(1)(5) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989, is necessary to lead the evidence for the actual word or

R/CR.A/223/2021 ORDER DATED: 06/01/2022

actual act committed by the accused pertains to the said

offence. On bare perusal of the deposition given by the

complainant himself at Exh. 16 - Amrutbhai Dhayabhai

Pandav nowhere he has stated anything by which the offence

under 3(1)(5) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 can be attracted. Moreover,

the complaint is filed for the document of the year 2007 and

investigation is carried out and oral evidence is recorded on

the basis of the document of the year 2010 which is improper

and illegal and therefore at the very inception of the complaint

filed by the complainant which is at Exh. 17 it is mentioned

that the document which is executed on the stamp paper of

Rs.100/- for the land in question for the consideration of

Rs.1,45,000/- on 03.02.2007, whereby the document which is

sent for scientific investigation is related to the document of

the year 2010, even the photocopy of the agreement which

was produced on the record by the prosecution at Mark 21/12

is also having the date 09.06.2010. This clearly shows that the

complaint is filed by the complainant is ill-motive and

accordingly the prosecution has also failed in proving the case

for the so called alleged offence committed by the accused.

Hence the learned trial Court has rightly acquitted the accused

on the valid and proper grounds as discussed in the lengthy

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judgment after considering the oral as well as documentary

evidence available on the record.

8. Learned advocate Mr. Danak has submitted that as the

forensic expert has deposed at Exh. 75 that the document

which is received by him is examined by comparing with the

other specimen signatures and accordingly he has submitted

his report at Exh. 79, by which he has found that the

signatures do not match. Mr. Danak, learned advocate has also

further submitted that from the oral deposition of the

complainant recorded at Exh. 16, it was clearly established by

the prosecution that the said agreement is made by putting up

forged signatures of the cousin brothers of the complainant by

the accused. If we peruse the deposition at Exh. 16, no

material is coming out to support the case made by the

complainant in his complaint. On the contrary, if we peruse the

cross-examination of the complainant, he has admitted that

the dispute is going on for the land in question and the civil

suits are also filed regarding the same. He has also admitted

that Parvatiben Ratnabhai Babubhai is his uncles' daughter

and earlier Parvatiben Ratnabhai Babubhai had filed a case

under provisions of Atrocity Act against Bachubhai Punabhai

Bochiya - accused herein and the complainant had deposed as

R/CR.A/223/2021 ORDER DATED: 06/01/2022

witness in that case also. Therefore, the submissions made by

Mr. Danak is neither well found on the basis of the evidence

available on the record nor the deposition of the complainant

inspires any confidence.

9. We have also perused the deposition of the persons who

are cousins of the present complainant and as per the say of

complainant, his cousins Chinubhai Jivabhai and Harshadbhai

Premjibhai have neither executed any agreement nor they

have put their signatures on any agreement. However, if we

peruse the deposition given by the Harshadbhai Premabhai

Pandav at Exh. 40, he has not supported the version of the

complainant though as per the say of the complainant, he is

one of the affected party by the alleged forged agreement. On

the contrary, he has turned hostile and while he has been

cross-examined by the prosecution at length, nothing is

established with regard to the offence against the accused

persons. On the contrary, he has admitted that some litigation

is going on with regard to the land in question. The prosecution

has examined other witnesses Talsibhai Dhayabhai Pandav at

Exh. 41 and Govindbhai Jivabhai Pandav at Exh. 42,

Mukeshbhai Jivabhai Pandavi at Exh. 44, Sureshbhai Parmabhai

Pandav at Exh. 45, Bhaggabhai Parmabhai Pandav at Exh. 46,

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and Manubhai Parmabhai Pandav at Exh. 47 who also are not

able to support the contents of the complaint. The prosecution

has also examined Parvatiben Ratnabhai Babubhai at Exh. 48,

who has admitted in her cross-examination that Bachubhai

Punabhai Bochiya is cultivating the land since many years and

she has also admitted that earlier she had filed complaint

against Bachubhai Punabhai Bochiya and therefore, no

material is coming out from the deposition of the witnesses to

support the case of the prosecution. While perusing the

evidence adduced by the different witnesses as well as

documentary evidence we find that in the complaint the

complainant has mentioned the date of the agreement as

03.02.2007 whereby the document which is produced on the

record by Mark 21/12 as well as the document which is sent for

examination before the Forensic Expert is of the year 2010 is

also not telling from the date itself and therefore the complaint

itself is misconceived and not as per the record. We have also

perused the deposition of Amrutbhai Dhayabhai for the

purpose of considering any statement to prove the ingredients

of section 3(1)(5) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 but we found no

such statement from the entire deposition neither in the

examination-in-chief nor in the cross-examination and

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therefore there is no question to believe the allegation made in

the complaint with regard to offence committed under section

section 3(1)(5) of the Act. Hence the prosecution as well as

the complainant miserably failed to establish the offence

alleged by them against the accused persons under section

3(1)(5) of the Act.

10. It is also pertinent to note that they have tried to create

litigation by harassing the accused as the civil suit for the said

land in question was pending at the relevant point of time and

the proceedings before the Mamlatdar Court were also going

on. It is also relevant to note that the original agreement

executed on the stamp paper of Rs.100/- was never produced

on the record. It was neither recovered by the Investigating

Officer nor was it produced by the complainant.

11. Moreover, the material witness - Harshadbhai Parmarbhai

Pandav who is examined at Exh. 40 has clearly stated that he

is not having any knowledge about the signature put up by

Bachubhai Punabhai Bochiya in the said agreement. It is also

considered from the evidence of Parvatiben Babubhai Parmar

at Exh. 48 where she has admitted that Bachubhai Punabhai

Bochiya is cultivating the land of her share and he has

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constructed his house on the said land and is staying there

since last 7 to 8 years. She has also admitted that the Civil Suit

is filed by the accused against the complainant in the year

2008 which is pending, and therefore, the learned Trial Court

has rightly acquitted the accused by giving benefit of doubt.

12. We are therefore of the considered opinion that the

learned trial Court has not committed any illegality in

acquitting the accused persons and we found no perversity in

the judgment and order passed by the learned trial Court.

Hence, the judgment and order passed by the learned trial

Court stands confirmed by acquitting the accused persons and

holding the same as just and proper.

13. It is a cardinal principal 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

R/CR.A/223/2021 ORDER DATED: 06/01/2022

wrong, manifestly erroneous or demonstrably unsustainable.

14. 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."

R/CR.A/223/2021 ORDER DATED: 06/01/2022

15. 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.

16. In the very recent judgment reported in 2021 (15) SCALE

Pg. 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 as under:-

"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

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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

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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. 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

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Appellate Court is expected to maintain a degree of caution before making any remark."

17. 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.

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

present Criminal Appeal No.223 of 2021 deserves to be

dismissed and is accordingly dismissed. No order as to costs.

(S.H.VORA, J)

(SANDEEP N. BHATT,J) SHRIJIT PILLAI