Gujarat High Court

State Of Gujarat vs Gandabhai Motibhai Rathod on 11 January, 2022

Bench: Sandeep N. Bhatt

     R/CR.MA/20264/2021                             ORDER DATED: 11/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 20264 of 2021

                    In R/CRIMINAL APPEAL NO. 1720 of 2021

                                    With
                      R/CRIMINAL APPEAL NO. 1720 of 2021
==========================================================
                              STATE OF GUJARAT
                                    Versus
                          GANDABHAI MOTIBHAI RATHOD
==========================================================
Appearance:
MS CHETA SHAH, APP for the Applicant(s) No. 1
for the Respondent(s) No. 1
==========================================================

 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 04.01.2021 passed by the 2 nd Additional Sessions

Judge, Morbi in Sessions Case No. 60 of 2016 whereby the

respondent accused came to be acquitted for the offences

punishable under sections 325, 326, 114, 504 of Indian Penal

Code (hereinafter referred as 'IPC' for short), the applicant -

State of Gujarat has preferred this application to grant leave to

appeal under section 378(1)(3) of the Criminal Procedure Code

('the Code' for short).

R/CR.MA/20264/2021 ORDER DATED: 11/01/2022

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

to appeal as well as appeal is as under:-

2.1 As per the case of the prosecution on 09.10.2009, at

around 09:00 hours, the buffaloes of complainant were

drinking water from the pond at Village Sapkada and the

complainant was waiting there as the caretaker of the

livestock. At that point of time, the accused person who is also

the owner of the buffaloes was present there and his buffaloes

also needed to drink water from the pond. The complainant

told the accused person to wait till the buffaloes of the

complainant are finished drinking water which enraged the

accused person and the juvenile accused Mr. Bharatbhai

Gandabhai Rathod who along with the accused person started

giving filthy abuses to the complainant and also inflicted stick

blows on the head of the complainant and thereby causing

fracture to the complainant.

2.2 It is the case of the prosecution that the complainant

Prabhubhai Maganbhai lodged complaint being C.R. I - 131 of

2009 before the Halvad Police Station for the alleged offence

under sections 325, 326, 504, 114 of the IPC. In pursuant to

the complaint lodged by the complainant, the Investigating

R/CR.MA/20264/2021 ORDER DATED: 11/01/2022

Agency collected evidence in the form of statement of

witnesses and documentary evidence and after having found

material against the respondent - accused, chargesheet came

to be filed in the Court of Judicial Magistrate First Class,

Halvad. Since, the cross-case of the present offence was

pending before the Sessions Court at Dangadhara, the Judicial

Magistrate First Class Court, Halvad committed the case to the

learned Additional Sessions Court, Dangadhara.

2.3 Upon committal of the case to the Sessions Court,

Dangadhara, the Sessions Court registered the case being

Sessions Case No. 40 of 2014. Thereafter, due to the

bifurcation of the district the same case was transferred to

Sessions Court, Morbi which came to be registered as Sessions

Case No. 60 of 2016. The learned Sessions Court has framed

the charge at Exh. 9 against the respondent accused for the

aforesaid offence and the accused pleaded 'not guilty' by his

statement recorded at Exh. 10 and claimed trial.

3. In order to bring home charge, the prosecution has

examined 14 witnesses and also produced documentary

evidence as under:-

R/CR.MA/20264/2021 ORDER DATED: 11/01/2022

Sr. Particulars Exh. No. No.

4          Panch Slips                                   20-21








13         Yadi of Muddamal along with certificate of 45
           the authorities
14         Opinion of F.S.L.                             46-47

4. Upon conclusion of trial the respondent - accused was

examined under the provisions of section 313 of the Code and

in his further statement the respondent - accused denied his

involvement in the crime and stated that false case is lodged

against him. After hearing both the sides and after analysis of

the evidence adduced by the prosecution before the learned

trial Court the respondent - accused was acquitted from the

charge of offence punishable under sections 325, 326, 114 and

504 of IPC.

R/CR.MA/20264/2021 ORDER DATED: 11/01/2022

5. We have minutely examined the oral as well as

documentary evidence produced on the record by the

prosecution before the learned trial Court and we have also

heard the submissions of Ms. Chetna Shah, learned APP

appearing for the State. On re-appreciation of evidence we

have noticed that cross-case was filed by the present accused

against the complainant and though the complainant has

supported his version given in the FIR during the deposition,

the other witnesses are not corroborating with the evidence of

the complainant in any manner. Hence, the learned trial Court

has rightly acquitted the accused by observing that except the

complainant, nobody is corroborating the alleged incident.

6. Before the evidence is scrutinized it is necessary to prove

the case by the prosecution in criminal trial by establishing the

case beyond reasonable doubt. It is also necessary to to prove

the case by adducing the evidence which supports the

complaint by the complainant himself as well as the other

independent witnesses. We have also taken into consideration

the oral evidence and all the prosecution witnesses more

particularly evidence of Nagjibhai Laxmanbhai at exh. 32 and

Medical Officer - Dr. Manthanbhai Naimeshbhai Patel at Exh.

39 along with the evidence of the complainant - Prabhubhai

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Maganbhai recorded at Exh. 28. We have found that the

witnesses that deposed before the trial Court, except the

complainant the deposition given by the other witnesses are

not supporting the version given the complainant more

particularly the witness - Nagjibhai Laxmanbhai turned hostile

while deposing before the trial Court.

7. The learned APP submitted that the complainant and

other witnesses supported the case of the prosecution. She has

taken us through the deposition and examination-in-chief of

the complainant and has also taken us through the cross-

examination of the complainant where the complainant has by

and large stuck to the version given in his complaint before the

police and no material contradiction or omission is found from

the deposition of the complainant. She has also submitted that

the Medical Officer namely Dr. Ashwinbhai Ramniklal Adroja

who is examined at Exh. 14 and other Medical Officer Dr.

Manthanbhai Naimeshbhai Patel who is examined at Exh. 39

have supported the case of the prosecution. According to her,

they have also given the details of the injuries received by the

complainant from the alleged incident. Therefore, she has

submitted that the offence is clearly made out under sections

325, 326, 114 and 504 of the IPC and the trial Court has erred

R/CR.MA/20264/2021 ORDER DATED: 11/01/2022

in acquitting the accused person. Learned APP has further

submitted that the prosecution has established the involvment

of the accused in the offence by leading cogent and convincing

evidence and therefore also the trial Court has committed

error in acquitting the accused person.

8. We have considered the submissions made by the

learned APP at length. Since the learned trial Court has

recorded detailed findings for acquitting the accused as

prosecution has failed to establish by convincing evidence

about the essential ingredients of section 325, 326, 114 and

504 of the IPC for which the accused was charged and tried.

We have also perused the record produced by the learned APP

and after considering the evidence adduced by the Dr.

Ashwinbhai Ramniklal Adroja at Exh. 14 we find that in the

history given before the Dr. Adroja by the complainant

Prabhubhai Maganbhai, it reveals from the chief examination

itself that though the complainant was knowing the accused

very well in the history he has stated that some unknown

person has beaten him with stick on 09.10.2009. Hence,

nothing comes out from the examination-in-chief or cross-

examination about the involvement of the present accused.

R/CR.MA/20264/2021 ORDER DATED: 11/01/2022

9. If we peruse the deposition of Nagjibhai Laxmanbhai at

Exh. 33, who ultimately turned hostile and even in his cross-

examination, the prosecution could not establish anything

about his personal knowledge about the involvement of the

accused in the alleged incident. Moreover, if we peruse the

deposition of other witnesses at Exh. 34 - Hareshbhai Dalabhai

Chavda, who has also said that the complainant has not stated

anything to him about the involvement of the accused in the

said offence. In the same way, other witness Chamanbahi

Maganbhai Kanjaraiya who was exmained at Exh. 35 has also

in turn said that he has not seen offence since he was not

present and that he has no personal knowledge about the

incident. The other witness Keshabhai Chaturbhai Chavda, in

whose rickshaw the complainant was taken to the hospital was

examined at Exh. 37 and he has also stated that he has not

seen the offence as he was not present at the scene of offence.

The other witness Mr. Rameshbhai Kanjibhai Chavda was

examined at Exh. 38, who is nephew of the complainant has

submitted that his uncle was beaten by blow of stick and he

has received fracture in ribs and he has in his cross-

examination, he has admitted he has not seen the offence as

he was not present at the scene of offence. Dr. Manthanbhai

Patel was also examined at Exh. 39 has specifically deposed in

R/CR.MA/20264/2021 ORDER DATED: 11/01/2022

his examination-in-chief, that without naming the accused,

Prabhubhai has informed through his relatives that some third

person had beaten the complainant. From the perusal of the

entire evidence available on record, except complainant

himself, nobody is corroborating the version of the

complainant which is given in the complaint. All the witnesses

are not able to support the say of the complainant and

accordingly the trial Court has considered the evidence and

has given specific findings about the non-corroboration of the

evidence given by the complainant by any of the witnesses.

10. It was also found in the judgment of the trial Court that

looking to the evidence recorded in Special Atrocity Case No.

40 of 2016 which was conducted with the trial of the present

case, where the present accused is examined at Exh. 76 and

where he has submitted that he was at his home at the time of

the alleged incident and therefore also the trial Court has

considered that there is suspicion created about the timing of

the offence and the presence of the accused at the place of

the incident. Hence, the trial Court has rightly found that the

prosecution has miserably failed to establish the case and has

rightly acquitted the accused from the charges punbishable

under sections 325, 326, 114 and 504 of the IPC. Thus, on our

R/CR.MA/20264/2021 ORDER DATED: 11/01/2022

own analysis and re-appreciation of evidence we do not find

any compelling reasons or infirmity to interfere with the order

of acquittal recorded by the trial Court nor have we found any

illegality or perversity in the acquittal order recorded by the

trial Court. Therefore, we confirm the order passed by the

learned trial Court for acquittal of accused for offence under

sections 325, 326, 114 and 504 of the IPC.

11. 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.

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

in AIR 1995 SC 280, Supreme Court has held as under:

R/CR.MA/20264/2021 ORDER DATED: 11/01/2022

"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

R/CR.MA/20264/2021 ORDER DATED: 11/01/2022

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. 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 as there is a double presumption of

R/CR.MA/20264/2021 ORDER DATED: 11/01/2022

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
affects its performance. We have a

R/CR.MA/20264/2021 ORDER DATED: 11/01/2022

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."