State Of Gujarat vs Jitendrakumar Prabhulal Dave
2022 Latest Caselaw 67 Guj

     R/CR.MA/19963/2021                              ORDER DATED: 04/01/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 19963 of 2021

                    In R/CRIMINAL APPEAL NO. 1664 of 2021
                                    With
                      R/CRIMINAL APPEAL NO. 1664 of 2021
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                                 STATE OF GUJARAT
                                       Versus
                          JITENDRAKUMAR PRABHULAL DAVE
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Appearance:
MS CM SHAH, APP for the Applicant
for the respondents(s) No. 1,2,3,4,5,6,7,8
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  CORAM:HONOURABLE MR. JUSTICE S.H.VORA
        and
        HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 04/01/2022

                              ORAL ORDER

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

1. Feeling aggrieved and dissatisfied with the judgment and order dated 16.2.2021 passed by the learned 2 nd Addl. Sessions Judge, Kalol in Sessions Case No.22 of 2018 for the offences under sections 395, 323, 354, 504, 506(2) of IPC and also u/s 135 of the G.P. Act, 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 complainant Jaydipsinh Chavda that on 26.7.2016 at about 21:00 hrs. at village Kalol Town Kalyanpura near Vijaynagar Society Part I Gate, the accused gave filthy abuses to one Minaxiben and pushed her away and thus, committed offence against chastity and other accused persons also quarreled with the complainant and with the help of each other, gave fist blows as well as kick blows and thereby, caused injuries to the complainant and committed

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robbery of Rs.1000/- from the purse of the complainant. It is also alleged in the complaint that during the course of the incident, mobile of Sony company valued at Rs.5000/- and golden chain valued at Rs.45,000/- were looted from the complainant and therefore, complaint in this regard was lodged before the PI, Kalol City Police Station, which was registered as I

- C.R. No.80 of 2016 for the offences under sections 395, 323, 354, 504, 506(2) of IPC and also u/s 135 of the G.P. Act.

3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence in form of various Panchnamas, relevant medical evidence and other evidence. After having found material against the respondents accused, charge-sheet came to be filed in the Court of learned JMFC, Kalol. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Kalol as provided under section 209 of the Code.

4. Upon committal of the case to the Sessions Court, Kalol, learned Sessions Judge framed charge at Exh.7 against the respondents accused for the aforesaid offence. The respondents accused pleaded not guilty and claimed to be tried

5. In order to bring home charge, the prosecution has examined 07 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 6 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 respondents accused so as to obtain their explanation/answer as provided u/s 313 of the

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Code. In the further statement, the 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 respondents accused of the offences, for which they were tried, as the prosecution failed to prove the case.

7. We have heard learned APP Ms. Shah appearing for the applicant State and have minutely examined the record and proceedings provided to us during the course of hearing. It appears that all the material witnesses, more particularly, Minaxiben Nayak, whose deposition is recorded below Exh.36, turned hostile and did not support the prosecution case with regard to actual occurrence of the incident, namely, inflicting injuries, robbery and act against her chastity. No any other eye witness has come forward to support the prosecution case and therefore, reliance of other evidence, namely medical certificate or Panchnama would not serve any purpose or would not be helpful to the prosecution to establish the guilt of the respondents accused. At this stage, learned APP tried to submit that learned APP in charge of the case did not examine other prosecution witnesses and therefore, the case deserves to be remanded back for retrial. Such submission at this stage cannot be accepted since it is not the case of the prosecution that the learned trial Court has deprived the prosecution to lead evidence and it is for the prosecution to decide as to how, in what manner and through which evidence, it proposes to prove the case and it shall accordingly proceed with the case to prove the charge against the respondents accused. When, the prosecution has selected particular set of evidence to prove the charge and at the

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end of trial, the prosecution witnesses did not support the case, then the prosecution cannot be permitted to make a request to examine other witnesses and for that purpose, matter may be remanded. Such recourse is not permissible under law. This Court did not find any such reason to consider the matter for said purpose, more particularly, when star witnesses did not support the prosecution case at all.

8. 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.

9. 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

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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 (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. 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.

12. In view of the above and for the reasons stated above, present application for leave to appeal fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, captioned Criminal Appeal also deserves to be dismissed and is accordingly dismissed.

(S.H.VORA, J)

(SANDEEP N. BHATT,J) SHEKHAR P. BARVE