Gujarat High Court
State Of Gujarat vs Thakor Gopalji Chhanaji on 31 January, 2022
Bench: Sandeep N. Bhatt
R/CR.MA/2197/2022 ORDER DATED: 31/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 2197 of 2022
In R/CRIMINAL APPEAL NO. 226 of 2022
With
R/CRIMINAL APPEAL NO. 226 of 2022
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STATE OF GUJARAT
Versus
THAKOR GOPALJI CHHANAJI
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Appearance:
MS CM SHAH, APP for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 31/01/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE S.H.VORA)
1. Feeling aggrieved and dissatisfied with the judgment and
order of acquittal dated 23.08.2021 passed by the learned 4 th
Additional Sessions Judge, Mehesana at Visnagar in Sessions
Case No.15 of 2019, whereby, the respondents accused came
to be acquitted for the offence under sections 395, 397, 323,
504, 506(2) of Indian Penal Code (hereinafter referred as
"IPC" for short) and under section 135 of 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, the complainant - Shri Thakor Mathurji
Anarji registered a complaint with Vadnagar Police Station as I-
R/CR.MA/2197/2022 ORDER DATED: 31/01/2022
C.R.No.65 of 2018 for the aforesaid offence inter-alia alleging
that on 27.07.2018, the complainant's son and son of accused
no.2 had quarrel for the matter of going way to Ambaji Temple.
Thereafter, on 30.07.2018, the complainant's son - Shri
Sanjaybhai called the complainant saying that respondents
would come for settlement talk at his shop and therefore, the
complainant returned back and came at shop where,
respondent no.1 and 2 inflicted bat blows on the body of the
complainant and other accused had also beaten complainant
and other witnesses. It is further alleged that jewelry was
grabbed / roped and with the help of each other, they
committed offence. Complainant and injured - witnesses were
admitted in Vadnagar Civil Hospital. Pursuant to complaint, the
police authorities investigated the offence and during the
course of investigation, statement of various witnesses were
recorded, panchnama of place of offence and other recovery /
discovery panchnama of weapons were drawn and necessary
medical evidence and other relevant documents were
collected. After having found sufficient material against the
respondent accused, the investigating agency submitted
charge-sheet before learned JMFC, Vadnagar. Since the case
was exclusively triable by learned Sessions Court, the learned
JMFC, Vadnagar committed the case to the Sessions Court as
provided under section 209 of the Code.
3. Upon committal of the case to the Sessions Court,
learned Sessions Judge framed charge against the respondents
accused at Exh.7 for the aforesaid offences. All the
respondents accused pleaded not guilty and claimed trial.
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4. In order to bring home charge, the prosecution has
examined 13 witnesses and also produced 15 documentary
evidence which is as under : -
Sr.No. Documents Exh.
1 Medical certificate of complainant 15 / 16.
- Shri Mathurji
2 Original case papers, total 56 and 17
12 X-ray plates.
3 Medical certificate of witness - 18
Sanjayji.
4 Original case papers, total 4 and 19
2 X-ray plates.
5. Medical certificate of witness - 20
Sureshji.
6 Original case papers, total 1 and 21
X-ray plate.
7 Panchnama of scene of offence. 23
weapon.
9 Panch slip of Muddamal article 27
no.1.
weapon.
11 Panch slip of Muddamal article 31
no.2.
13 Xerox copy of page no.29 of 39
original station diary of Vadnagar
Police Station.
5. Upon conclusion of trial, the learned Trial Judge recorded
further statement of the respondents - accused as provided
under section 313 of Code, wherein, the respondents accused
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denied their involvement in the offence and further stated that
on account of enimty with regard to land and election of
Sarpanch, 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 learned Trial Court acquitted the respondents
accused from the aforesaid offence of charge framed vide
Exh.7.
7. We have heard learned APP for the State and minutely
examined oral and documentary evidence adduced by the
prosecution before the learned Trial Court. Normally, we may
find that offence of the nature with which we are concerned, in
the instant case is committed more often not known by the
persons who are known to the victim and such an offence does
not fall within the category of those offences where accused
out of revenge and enmity committed offence. In the instant
case, of-course, identity of the accused persons is not a
problem. In most of the cases of offence under sections 395
and 397 of IPC, accused person is unknown person and not
known person, who ventures to commit offence of present
nature. In the case on hand, it appears and is admitted fact
that the complainant and accused persons are known to each
other. In the present case, except evidence of complainant at
Exh.8, injured - complainant's son - Shri Sanjayji at Exh.10 and
Shri Sureshji at Exh.9, no other prosecution witnesses have
supported the prosecution case as to occurrence to the
incident, as alleged against the respondents. No recovery of
any gold ornaments has been effected from any of the accused
persons. It further transpires from the record that there is
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rivalry with regard to election matter. On perusal of the
evidence of complainant's son - Shri Sanjayji, he has not made
any allegation with regard to dacoity or robbery. Similarly, no
any injury is noticed by the Doctor on the complainant's right
ear, as it is alleged that earring was snatched. Learned Trial
Judge upon appreciation of evidence found that major part of
evidence with regard to occurrence of incident does not stand
proved and no reliance can be placed so as to believe
occurrence of incident. On our re-assessment and re-
appreciation of evidence adduced on record, we also find that
major part of the prosecution case does not inspire confidence
in our mind and so we do not find any infirmity in the finding
recorded by the learned Trial Judge leading to acquittal of the
respondents accused.
8. We have noticed number of infirmities in the prosecution
witnesses, more particularly, complainant's son who does not
utter a word with regard to dacoity / robbery and allegation of
snatching gold ornaments as alleged by the complainant. To
secure conviction of charge on dacoity, the prosecution is
required to establish two elements viz (i) that the dacoity as
defined in section 391 of IPC has been committed (b) that it
was committed by the accused persons. In assessing liability to
accused person for offence of dacoity, the word "co-jointly"
has an important significance. According to section 391 of IPC,
dacoity is robbery committed by five or more persons.
Essential element of offence of dacoity under section 395 is
that five or more persons must have participated in the offence
of dacoity. No such evidence is coming on record so as to infer
that respondent nos.3 to 6 actually participated in committing
offence of dacoity. On our re-assessment of evidence, there is
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no iota of evidence noticed by us so as to hold that prosecution
succeeded in providing essential ingredients of section 395 of
IPC. Under the circumstances, we have not found any
compelling reason so as to interfere with the finding recorded
by the learned Trial Judge and learned APP could not point out
any reliable evidence so as to infer that respondents have
committed offence as provided under sections 395, 397 and
323 of IPC. Under the circumstances, the learned Trial Judge
has rightly acquitted the respondents accused 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. The appellate Court should bear in mind the presumption
of innocence of the accused and further that the trial Court's
acquittal bolsters the presumption of his innocence. Keeping in
mind the evidence adduced by the trial Court and also settled
principle as to scope of appeal against the acquittal order
there are no good reasons to interfere with the findings of the
trial court as there is no iota of evidence to infer that the
respondent-accused has committed offence as alleged. Since
independent witnesses have not been examined, the
prosecution case cannot be believed as to occurrence of the
incident in the complainant's shop.
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.
R/CR.MA/2197/2022 ORDER DATED: 31/01/2022
(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
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,
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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.
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.2197 of 2022 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.226 of
2022 also deserves to be dismissed and is accordingly
dismissed.
(S.H.VORA, J)
(SANDEEP N. BHATT,J)
SATISH
