State Of Gujarat vs Rameshbhai @ Karshanbhai ...
2022 Latest Caselaw 877 Guj

     R/CR.MA/1864/2022                                ORDER DATED: 28/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


             R/CRIMINAL MISC.APPLICATION NO. 1864 of 2022
                                 In
                   R/CRIMINAL APPEAL NO. 187 of 2022

                                        With

                         R/CRIMINAL APPEAL NO. 187 of 2022

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                                STATE OF GUJARAT

                                       Versus

       RAMESHBHAI @ KARSHANBHAI RAJABHAI GOGIYA & ORS.
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Appearance :

MS CHETNA M. SHAH, APP for the Applicant / Appellant
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 28/01/2022

                                   ORAL ORDER

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

1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 30.09.2021 passed by the learned Sessions Judge, Surendranagar in Sessions Case No.77 of 2015 for the offences under Sections 307, 323, 504, 403, 143, 147, 148 and 149 of the Indian Penal Code, 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) inter alia challenging the judgment and order of acquittal in favour of the respondent accused.

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2. The brief facts of the present case are that, on 06.09.2015 at about 11:30 hours at night, when complainant along with his relatives were sitting in his house situated at Dhararpara - Thangadh, accused No.1 came there and asked them as to why they are meeting. The complainant told him that there would be a festival and therefore, they met together and he asked complainant to leave from there. Accused No.1 left the place and returned immediately with accused Nos.2 to 5 and congregated illegally. Accused No.1 was armed with knife. Accused Nos.2 and 3 were armed with pipe, accused No.4 was armed with stick and accused No.5 was also present. They used filthy language against the complainant and others. When the complainant asked them not to use such language, accused No.1 got angry and inflicted knife blow to one Ravi - son of the complainant on his left side of the stomach, whereas accused Nos.2 and 3 inflicted pipe blow on left elbow and accused No.4 and 5 provoked the other accused persons to beat Ravi. During the said scuffle, amount of Rs.2,000/- was dropped from the pocket of Ravi. Thereby they have committed an offence. Thereafter, the complainant lodged the complaint with regard to the incident before Thangadh Police Station, which was registered as I - C.R. No.34 of 2015 for the offences under Sections 143, 147, 148, 149, 307, 323, 403 and 504 of the Indian Penal Code.

3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence in form of medical evidence and drew various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the respondent accused, charge-sheet came to be filed

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in the Court of learned JMFC, Thanghadh. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Surendranagar as provided under section 209 of the Code.

4. Upon committal of the case to the Sessions Court, Surendranagar, learned Sessions Judge framed charge at Exh.4 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 25 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 7 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 his explanation/answer as provided u/s 313 of the 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 he was tried, as the prosecution failed to prove the case beyond reasonable doubt.

7. We have heard learned APP Ms. Shah appearing for the applicant State and have minutely examined the documentary

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evidence provided to us by learned APP during the course of hearing.

8.1 We have heard learned APP for the State. We have perused the impugned judgment and also record of the case. It cannot be believed that at about 11:30 hours at night, any one congregated illegally, went to someone's house and attacked on them with the knife, pipe and stick. Further, since the incident itself is not believable, the question of using filthy language by the accused persons does not arise. Further, the injury caused on left elbow was minor in nature and therefore, offence under Section 323 is not attracted in said offence. Further, amount of Rs.2,000/- dropped from the pocket of Ravi during the scuffle is not believable. Looking to the entire evidence, the trial Court has rightly come to the conclusion that the offence against the present respondents - original accused Nos.2 to 5 is not made out. Further, PW-13 - Maheshbhai Dhanjibhai Waghela, who is an eye-witness of the incident and who is a relative of the complainant, has not supported the case of the complainant (Exh.52). He has stated in his deposition that there was no weapon in the hands of accused No.3 and further, he does not depose that accused No.2 has caused injury with pipe blow to the complainant. Further, other eye-witnesses, who are the relatives of the complainant, do not speak about the role attributed to each respondents - accused Nos.2 to 5 in the commission of offence. Looking to the entire evidence on record, the trial Court has observed that when accused No.1 (who is not the respondent before this Court in the present case) inflicted knife blow to the son of the complainant - Ravibhai Dhanjibhai Waghela, accused No.2 tried to intervene and got injury on the first

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finger of the right hand. The trial Court has further observed that accept intervention, there was no role attributed to accused No.2 in the commission of offence. The Trial Court has also observed that, looking to the evidence of the independent witnesses, the presence of accused Nos.3 to 5 is not proved. The trial Court has therefore rightly come to the conclusion that there was no offence proved against the present respondents - accused Nos.2 to 5 in absence of corroborative evidence. During the course of trial, the complainant has expired. Further, looking to the evidence of PW-12 - Dr.Binduben Manishbhai Mudgal (Exh.44), it has come on record that the injured himself has stated at the time of treatment that he was playing the cards outside the house and at that time, six persons have attacked on him by pelting stones. He has not stated in his statement before the doctor that present respondents have inflicted any blow on him. Moreover, Dr.Mudgal has admitted in her cross-examination that all injuries are simple injuries.

8.2 Under the circumstances, the learned trial Judge has rightly acquitted the respondents (original accused Nos.2 to 5) for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal.

9. In view of above and on our own analysis and reappreciation of the evidence, we do not find any infirmity or compelling reasons to interfere with the order of acquittal passed by the trial Court. We have also perused the judgment and findings given by the trial Court and found that the same are in accordance with law.

R/CR.MA/1864/2022 ORDER DATED: 28/01/2022

10. It is pertinent to note that the prosecution is required to prove the intention or knowledge of the accused persons, however, it is necessary that the prosecution is required to prove the intention or knowledge of the accused persons and it is not necessary that injury capable of causing death should have been inflicted by the accused persons. What is material to attract offence under section 307 of the IPC is the intention or knowledge with which all the acts are done irrespective of its results. In order to attract the offence under section 307 of IPC, we have minutely examined oral evidence and all the prosecution witnesses and we found that nothing is disclosed with regard to intention or knowledge so as to constitute that there is anything on the part of the respondents - accused persons to commit act or attempt to commit murder. In the present case, the prosecution has failed to discharge its duty to prove its case beyond reasonable doubt and the Trial Court has rightly acquitted the accused persons by giving benefit of doubt as the case is not proved beyond reasonable doubt.

11. 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 is not 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

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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."

13. 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 in Para : 20 to 22 as under :-

"20. 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 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 hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial Court to

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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."

14. 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.

15. 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.

16. In view of the above and for the reasons stated above, present Criminal Misc. Application No.1864 of 2022 for leave to

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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 No.187 of 2022 also deserves to be dismissed and is accordingly dismissed.

(S.H.VORA, J)

(SANDEEP N. BHATT,J) M.H. DAVE