Gujarat High Court
State Of Gujarat vs Sanjay Mohanbhai Vaghela on 3 January, 2022
Bench: Sandeep N. Bhatt
R/CR.MA/23177/2021 ORDER DATED: 03/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23177 of 2021
In R/CRIMINAL APPEAL NO. 2051 of 2021
With
R/CRIMINAL APPEAL NO. 2051 of 2021
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STATE OF GUJARAT
Versus
SANJAY MOHANBHAI VAGHELA
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Appearance:
MS CM SHAH, APP (2) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 03/01/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE S.H.VORA)
1. Feeling aggrieved and dissatisfied with the judgment and
order dated 17.07.2021 passed by the learned Sessions Judge,
Anand in Sessions Case No.213 of 2015, whereby, the
respondents accused came to be acquitted for the offence
under sections 143, 147, 148, 307, 504 read with section 149
of Indian Penal Code (hereinafter referred as "IPC" for short),
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).
2. Briefly stated, it is the case of the prosecution that on
28.06.2015, respondent accused persons were sweeping the
land of the complainant and at that time, accused persons
R/CR.MA/23177/2021 ORDER DATED: 03/01/2022
started giving filthy abuses to the complainant and despite the
complainant's request not to give abuse, the respondents
accused persons got provoked and inflicted stick and dhariya
blow on the complainant and other witnesses. After the
incident, the respondents accused persons left the place by
giving abuses to the complainant and other family members
and giving threat to their life. Thus, according to the
prosecution, all the accused persons with clear intention to
cause death of the complainant, assaulted upon the
complainant and other witnesses and therefore, FIR was
registered being C.R.No.I-95 of 2015 at Anand Rural Police
Station for the offence under sections 143, 147, 148, 149, 307,
323, 324 and 504 of IPC. In pursuance of the complaint
lodged by the complainant, investigating agency collected
evidence in form of statement of witnesses and documentary
evidence and after having found material against the
respondent accused, charge-sheet came to be filed in the
Court of learned JMFC, Anand. As said Court lacked jurisdiction
to try the offence, it committed the case to the Sessions Court,
Anand as provided under section 209 of the Code.
3. Upon committal of the case to the Sessions Court,
learned Sessions Judge framed charge at Exh.7 against the
respondents accused for the aforesaid offence. All the
respondents accused pleaded not guilty and claimed trial.
4. In order to bring home charge, the prosecution has
examined 14 witnesses and also produced documentary
evidence which is as under : -
Sr.No. Documents Exh.
R/CR.MA/23177/2021 ORDER DATED: 03/01/2022
2 Panchanama of scene of offence. 40
3 Panchanama of recovery of 43 - 47
weapon.
4 Yadi given by Doctor to police. 58
5. Medical certificate of Sumitraben. 59
6 Medical certificate of Rajubhai 60
Punambhai.
7 Medical certificate of Bhailalbhai 61
Punjabha.
8 Medical certificate of Jasbhai 62
Punjabha.
9 Medical certificate of Punambhai 63
Bachubhai .
12 Police Yadi for obtaining medical 71
certificate.
5. Upon conclusion of trial, the respondents - accused were
generally examined under the provisions of section 313 of
Code and in further statement, the respondents accused
denied their involvement in the crime and stated that false
case is lodged against them.
6. After hearing both the sides and after analysis of the
evidence adduced by the prosecution before the learned Trial
Court, the respondents accused were acquitted from the
charge of offence under sections 143, 147, 148, 307, 504 read
with section 149 of Indian Penal Code, whereas, they were
found guilty of offence under sections 323 and 324 of IPC and
accordingly, they were convicted.
7. We have minutely examined oral and documentary
R/CR.MA/23177/2021 ORDER DATED: 03/01/2022
evidence adduced by the prosecution before the learned Trial
Court and we have also heard submission of learned APP Ms.
C.M.Shah appearing for the State. On re-appreciation of the
evidence, we have noticed that there was some land dispute
amongst the parties, on which one temple was to be
constructed and also with regard to ownership. In order to see
that woods kept by one accused is removed, free fight took
place between two groups, wherein, the complainant and other
witnesses suffered injury at the hands of the respondents
accused as per prosecution case.
8. Before evidence is scrutinized, it is necessary that the
prosecution is required to prove intention of knowledge of
accused persons and not injury. It is not necessary that injury,
capable of causing death, should have been inflicted. What is
material to attract offence under section 307 is the guilty
intention or knowledge with which all the acts are done,
irrespective of its results. In order to attract the offence under
section 307, we have minutely examined oral evidence and all
the prosecution witnesses, more particularly injured, we have
found that all the witnesses deposed before the Court that
they have received certain injuries either on account of stick or
dharia blow, but nothing is disclosed with regard to intention or
knowledge so as to constitute that there is anything on the
part of the respondents -accused to commit act or attempt to
commit murder.
9. Learned APP tried to submit that the complainant and
some other witnesses received injury on head and fracture
injury. The intention and knowledge are the matters of
inference from totality of circumstances and cannot be
R/CR.MA/23177/2021 ORDER DATED: 03/01/2022
measured merely from the results. In fact, the Doctor who
treated injured persons opined that prosecution witnesses
received simple injury and all were normal and conscious when
they came for treatment. So if we look at the nature of injury
as assessed by the Doctor, then it becomes evident that
prosecution witnesses received simple injury. As recorded
herein above, the prosecution is duty bound to establish
intention and knowledge on the part of the respondents
accused, which in the present case is not proved. Based on
such evidence, learned Trial Judge has recorded finding of
acquittal as prosecution has failed to establish essential
ingredients of sections 143, 147, 148, 307, 504 read with
section 149 of Indian Penal Code for which the respondents
accused were charged and tried. Thus, on our own analysis
and re-appreciation of the evidence, we do not find any
infirmities or compelling reason to interfere with the order of
acquittal recorded by the learned Trial Judge.
10. 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.
11. In the case of Ram Kumar v. State of Haryana, reported
R/CR.MA/23177/2021 ORDER DATED: 03/01/2022
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."
12. 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.
R/CR.MA/23177/2021 ORDER DATED: 03/01/2022
13. 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.
14. In view of the above and for the reasons stated above,
present application for leave to appeal being Criminal Misc.
Application No.23177 of 2021 fails and same deserves to be
dismissed and is accordingly dismissed. In view of dismissal of
the application for leave to appeal, Criminal Appeal No.2051 of
2021 also deserves to be dismissed and is accordingly
dismissed.
(S.H.VORA, J)
(SANDEEP N. BHATT,J)
SATISH
