Gujarat High Court

State Of Gujarat vs Samalbhai Chandubhai Vasava on 11 January, 2022

Bench: Sandeep N. Bhatt

     R/CR.MA/13247/2021                              ORDER DATED: 11/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 13247 of 2021

                    In R/CRIMINAL APPEAL NO. 1025 of 2021

                                    With
                      R/CRIMINAL APPEAL NO. 1025 of 2021
==========================================================
                               STATE OF GUJARAT
                                     Versus
                          SAMALBHAI CHANDUBHAI VASAVA
==========================================================
Appearance:
MS CHETNA SHAH, APP for the Applicant(s) No. 1
for the Respondent(s) No. 4,5
HCLS COMMITTEE(4998) for the Respondent(s) No. 1,2,3
MR.KISHORE PRAJAPATI(6305) for the Respondent(s) No. 1,2,3
==========================================================

 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 11/01/2022

                        ORAL ORDER

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

1. Feeling aggrieved and dissatisfied with the judgment and

order dated 24.07.2019 passed by the 16 th (Adhoc) Additional

Sessions Judge, Special Judge (Atrocity Cases), Vadodara in

Sessions Case No. 178 of 2014, whereby the respondent -

accused persons came to be acquitted for the offence

punishable under sections 324, 326, 504, 506(2) and 114 of

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

as well as section 135 of the Bombay Police Act ('the Act' for

short) by giving benefit of doubt to the accused persons. The

R/CR.MA/13247/2021 ORDER DATED: 11/01/2022

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. The facts in nutshell which give rise to the present leave

to appeal and appeal are as under:-

2.1 It is the case of prosecution that accused persons and

complainant were having their field nearby and they quarrelled

with regard to the time of gazing of cattle and during that time

all the accused persons came with deadly weapons and

assaulted the complainant and his relatives, wherein the

accused No. 1 gave axe blow on the head of Firoz, accused No.

3 gave axe blow on the forehead and left eye of the

complainant, accused No. 4 gave a lathi blow on the hand of

the complainant and accused No. 2 assaulted the father of the

complainant with axe, due to which they have received

grievous injuries and because of the intervention of the

Sarpanch the accused persons ran away and all the injured

persons were admitted to the hospital. Thereafter, the

complaint came to be registered being C.R.I-230 of 2012

before the Dabhoi Police Station for the offence punishable

under sections 326, 324, 504, 506(2), 114 of the IPC and

R/CR.MA/13247/2021 ORDER DATED: 11/01/2022

section 135 of the Act.

2.2 In pursuance to the complaint lodged by the complainant

the Investigating Agency collected evidence in the form of

statement of witnesses and documentary evidence and after

having found material against the respondent - accused

persons chargesheet came to be filed in the Court of Judicial

Magistrate First Class at Dabhoi by Criminal Case No. 105 of

2014. During the proceedings before the Judicial Magistrate

First Class Court at Dabhoi, it was informed to the Court that in

pursuance to the Criminal complaint filed by the present

accused persons against the complainant, which is registered

as C.R.I-231 of 2012 at Police Station, Dabhoi, which is a cross-

case against the present case and which was committed to the

Sessions Court and therefore according to the order passed by

the Sessions Court the Judicial Magistrate First Class Court at

Dabhoi committed the case to the Sessions Court under

section 209 of the Code.

2.3 Upon committal of the case, the Sessions Court,

Vadodara registered the case being Criminal Case No. 178 of

2014. The trial Court framed the charges at Exh. 8 and the

statement of the accused persons were recorded at Exhs. 9 to

R/CR.MA/13247/2021 ORDER DATED: 11/01/2022

12. The accused persons in their statement pleaded 'not guilty'

and claimed to proceed with the trial.

3. The prosecution has examined 17 witnesses and also

produced documentary evidence which are as under:

Sr.        Particulars                                       Exh. No.
No.



4          Panchnama of the physical verification of         42
           the accused

6          Panchnama of the physical verification of         49
           the accused
7          Treatment certificate of the injured              63 & 64
8          Yadi of the visit of the place of incidence       66

           incidence
10         Treatment certificate of the complainant          69 - 71
           and witnesses





16         Receipt of the F.S.L. accepting delivery of       84
           muddamal









      R/CR.MA/13247/2021                     ORDER DATED: 11/01/2022

4. Upon conclusion of the trial, the respondent - accused

persons were examined under the provisions of section 313 of

the Code and in their further statement the respondent -

accused persons denied their involvement in the alleged crime

and stated that false case is lodged against them. After

hearing both the parties and after analysis of the evidence on

record before the trial Court, the respondent - accused persons

came to be acquitted from the charge of offence punishable

under sections 326, 324, 504, 506(2), 114 of the IPC and

section 135 of the Act by the trial Court by giving benefit of

doubt.

5. Before discussing the submissions made in the present

Appeal, it transpires from the record of present Appeal that

original accused - opponent No. 4 Kantaben Samabhai Vasava

had passed away on 19.06.2021 and therefore, this Court in

order dated 18.08.2021 recorded that the matter cannot be

proceeded further for deceased opponent No. 4. We have

minutely examined the oral as well as documentary evidence

adduced by the prosecution before the trial Court. We have

heard the submissions of Ms. Chetna Shah, learned APP

R/CR.MA/13247/2021 ORDER DATED: 11/01/2022

appearing for the State and Mr. Kishore Prajapati, learned

advocate for the respondent - accused persons.

6. Learned APP has submitted that from the deposition

recorded of the complainant, injured witnesses as well as the

Medical Officers, the prosecution has sufficiently proved the

case against the accused persons and involvement of the

accused persons in commission of the said crime. She has also

taken us through the deposition of Kadherbhai Mohmadbhai

Mansuri at Exh. 2 where he submitted that Samanbhai was

having axe in his hand and he has given blow to Firoz and

Satishbhai has given blow of axe to himself and Kantaben has

given blow of the stick to the complainant and his father

Manojbhai also received axe injury by the blow inflicted by

Vinodbhai Vasava. He has admitted in his cross-examination

that the axe, plough are necessary tools for doing agricultural

work but nothing is coming out from his deposition that

inspires confidence to implicate the accused persons in the

commission of the crime, as other witnesses have not

supported the say of the complainant in their deposition. The

Medical Officer - Gudiyarani Devkumar Prasadsinh was

examined at Exh. 68 and she has admitted that the injuries

which are received by the injured persons are of simple nature

R/CR.MA/13247/2021 ORDER DATED: 11/01/2022

and the history was given to her by the injured that somebody

had attacked them with sharp weapon. The prosecution has

also examined the witness at Exh. 77 - Firozbhai Malangbhai

Mansuri and he has admitted in his cross-examination that the

accused Shamalbhai Vasava has filed complaint against his

father and other and that he cross-case is also going on. He

has also admitted in his cross-examination that he had given

his history to Dr. Tausif Noormohmad Dabhoiwala that the

group of unknown persons have beaten them and had not

given the name of the accused before the doctor. The

prosecution has also examined the witness Mayuddin Ismail

Mansuri at Exh. 34 however, he has not as such supported the

version of the complainant in the complaint but has stated that

there dispute had taken place with Shamalbhai Vasava when

he went to visit his sister Zubeda. The prosecution has also

examined the Medical Officer - Dr. Tausif Noormohmad

Dabhoiwala who is practicing as General and Laparoscopy

Surgeon in his own private hospital and he has submitted that

in the history given by the injured persons before him, nobody

has given any names of the persons who had inflicted those

injuries on them. Mr. Ashok Popatlal Jani who is serving at

Forensic Science Laboratory was also examined but nothing

much came out from his disposition to support the case of the

R/CR.MA/13247/2021 ORDER DATED: 11/01/2022

prosecution. Therefore, as cross-cases are going on between

the complainant and the accused persons and the dispute with

regard to civil nature also occurred amongst them, the trial

Court has rightly inferred that the prosecution has failed to

establish its case beyond reasonable doubt. None of the

witnesses has given any name before both the doctors though

they are knowing the accused persons very well and hence this

creates doubt about the story of the prosecution. Hence, the

trial Court has rightly acquitted the respondent - accused

persons by giving benefit of doubt. We found not illegality or

infirmity with the findings given by the trial Court and hence,

we confirm the judgment and order passed by the trial Court,

as no interference of this Court is required by exercising

powers under section 378 of the Code.

7. Before the evidences are further scrutinized, it is

necessary that prosecution is required to prove the case in the

criminal proceedings by leading cogent and convincing

evidence and the charge leveled against the accused persons

should be proved beyond reasonable doubt. In the present

case, the complainant and the other injured persons have not

disclosed the names of the persons who have inflicted the

injuries to the injured persons which is creating suspicion

R/CR.MA/13247/2021 ORDER DATED: 11/01/2022

about the involvement of the accused persons in the

commission of the alleged crime. On re-appreciation of the

evidence we have noticed that the complaint of the

complainant is an attempt to give flavour of criminality to the

Civil disputes which are going on between the parties. We have

also found from the record that the prosecution has failed

miserably in establishing the offence against the respondent -

accused persons by not leading cogent and convincing

evidence which can be proved beyond reasonable doubt.

8. 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

wrong, manifestly erroneous or demonstrably unsustainable.

9. In the case of Ram Kumar v. State of Haryana, reported

R/CR.MA/13247/2021 ORDER DATED: 11/01/2022

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."

10. As observed by the Hon'ble Supreme Court in the case of

Rajesh Singh & Others vs. State of Uttar Pradesh reported in

R/CR.MA/13247/2021 ORDER DATED: 11/01/2022

(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.

11. 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 accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome

R/CR.MA/13247/2021 ORDER DATED: 11/01/2022

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

R/CR.MA/13247/2021 ORDER DATED: 11/01/2022

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

12. Considering the aforesaid facts and circumstances of the

R/CR.MA/13247/2021 ORDER DATED: 11/01/2022

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.

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

present application for leave to appeal being Criminal Misc.

Application No. 13247 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. 1025 of

2021 also deserves to be dismissed and is accordingly