State Of Gujarat vs Kaushikbhai Ishwarbhai Parmar
2022 Latest Caselaw 6404 Guj

    R/CR.MA/6586/2022                                 JUDGMENT DATED: 19/07/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 6586 of 2022

                        In R/CRIMINAL APPEAL NO. 690 of 2022

                                       With
                         R/CRIMINAL APPEAL NO. 690 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE S.H.VORA

and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                               STATE OF GUJARAT
                                      Versus
                         KAUSHIKBHAI ISHWARBHAI PARMAR
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Appearance:
MS CM SHAH, APP for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE S.H.VORA
          and
          HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                                  Date : 19/07/2022

                                 ORAL JUDGMENT

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

R/CR.MA/6586/2022 JUDGMENT DATED: 19/07/2022

1. Feeling aggrieved and dissatisfied with the judgment and order dated 14.10.2019 passed by the learned Additional Sessions Judge, Ankleshwar, Bharuch in Sessions Case No.1 of 2016, whereby, the respondents accused came to be acquitted for the offence under sections 302, 447, 323, 114 of Indian Penal Code 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.

2. Briefly stated, it is the case of the prosecution that as such the accused persons illegally entered into the complainant's farm with Discover Bike bearing No.GJ-16-BF-6234 and at that time, complainant's battery light fell on them and thereafter, the accused persons became agitated and asked why do you throw light of the battery. According to the complainant, the accused persons came with stick and all of them started giving stick blow to the victim and assaulted Ramjibhai Godhanbhai with stick blow. On account of assault, Ramjibhai succumbed to injury. Therefore, FIR came to be registered being C.R.No.I-44 of 2015 with Ankleshwar Rural Police Station for the aforesaid offences.

3. In pursuance of the complaint lodged by the complainant, the investigating agency recorded statements of the witnesses, drawn panchnama of scene of offence, discovery and recovery of weapons and obtained FSL report for the purpose of proving the offence. After having found sufficient material against the respondents accused, charge-sheet came to be filed in the Court of learned JMFC. As said Court lacked jurisdiction to try the offence, it committed the case to the Sessions Court, Ankleshwar as provided under section 209 of the Code.

R/CR.MA/6586/2022 JUDGMENT DATED: 19/07/2022

4. Upon committal of the case to the Sessions Court, learned Sessions Judge framed charge at Exh.10 against the respondents accused for the aforesaid offence. All the respondents accused pleaded not guilty and claimed trial.

5. In order to bring home charge, the prosecution has examined 37 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 4 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 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.

7. We have heard learned APP for the appellant - State, who has taken us through oral and documentary evidence. Learned APP has submitted that learned Trial Court has not properly appreciated the evidence of the prosecution witnesses, more particularly, PW-22 -complainant who is examined at Exh.57, PW-26 - Rameshbhai examined at Exh.64, PW-17 - Bhagubhai Parmar, In-charge Mamlatdar and Executive Magistrate at Ankleshwar examined at Exh.47 and PW - 36- Sunilbhai Tarde, IO examined at Exh.82. It is further submitted that these witnesses have fully supported the case of the prosecution and they have narrated role of each of the accused persons. She has further submitted that learned Trial Judge has committed error

R/CR.MA/6586/2022 JUDGMENT DATED: 19/07/2022

in disbelieving and discarding the evidence of these witnesses and therefore, impugned judgment and order of acquittal may be quashed and set aside.

8. We have minutely examined the oral as well as documentary evidence. Learned APP has heavily relied on deposition of PW-22- complainant - Narendrabhai examined at Exh.57, deposition of PW-26 - Rameshbhai examined at Exh.64, deposition of PW-17 - Bhagubhai Parmar, In-charge Mamlatdar and Executive Magistrate, at Ankleshwar at Exh.47 and lastly deposition of PW - 36- Sunilbhai Tarde, IO at Exh.82. In order to appreciate submissions of learned APP made at bar, we have carefully gone through the entire deposition of afore-stated prosecution witnesses. It is quite evident that incident dated 13.04.2015 took place in the field of one Ankitbhai at Navagam Karad and the incident as projected by the prosecution occurred at night hours, wherein, accused persons indiscriminately beating Rameshbhai and complainant - Narendrabhai with battery, belt and as per say of the said complainant, all the accused persons came on bike bearing No.GJ-16-BF-6234 and at the time and place of incident, when accused persons were coming out from gate, one Ganpathbhai took Panjethi (pitchfork) and thereafter, accused persons ran away after throwing bike on the road. Further, it is the case of the prosecution that prior to incident, they met PW-26 - Rameshbhai with whom accused persons made some inquiry as to where gambling is played. Said Ramesbhai took the accused persons at the place where gambling was played by other persons, though, it is the case of the prosecution that said witness Rameshbhai was also beaten by them while taking him back to the place where all the accused brought him at the place of gambling. The prosecution

R/CR.MA/6586/2022 JUDGMENT DATED: 19/07/2022

could not explain as to why one witness viz. Ganpathbhai who was present at the very scene of offence and took out Panjethi (pitchfork) is not examined. Not only that the police has not recorded his statement for the reasons best known to it. Now coming to the prosecution witness Rameshbhai examined at Exh.64, it is quite evident that he has not supported the prosecution case and accused persons were not put to test identification parade in his presence.

9. On combine reading of deposition of aforesaid prosecution witnesses, it is quite clear that neither complainant nor Rameshbhai were knowing the accused persons prior to the incident and when incident took place at night / in darkness, no attempt was made to carry out Test identification parade in presence of Rameshbhai. No-doubt, Test identification parade was carried out in the presence of complainant - Narendrabhai, but we have found that the complainant took out accused persons amongst dummy accused and original accused stood in queue but while bringing out each accused persons, Executive Magistrate did not record specific name of accused persons who were identified and Mamlatdar remained satisfied with identification of accused persons in general. We have also found that the complainant identified accused person, but as per deposition of Executive Magistrate, he has not named as to which persons were identified as accused and in which sequence said accused was kept in between dummy accused. Except this, no any other evidence is available either with regard to actual occurrence of the incident being seen by any prosecution witnesses. Since material prosecution witnesses were not knowing accused persons prior to the incident or met at any time in past and more particularly when the incident occurred

R/CR.MA/6586/2022 JUDGMENT DATED: 19/07/2022

at night / dark hours, in that event, it becomes very important that identity of accused persons is established with cogent, reliable and convincing evidence, which in the case on hand is missing.

10. We have independently re-examined and re-assessed evidence and also findings recorded by the learned Trial Judge in the impugned judgment. On our careful re-appreciation or entire evidence, we do not find that there is any infirmity or irregularity in the findings of fact recorded by the learned trial judge. 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.

11. Except relying upon aforesaid evidence, no any other direct evidence either oral or documentary is pressed into service to interfere with the findings of the learned trial Court leading to acquittal of the respondents accused. When substantial evidence is lacking to connect the respondents accused with the crime or not brought on record sufficient evidence to establish the guilt, other corroborative evidence loses its significance or needs any consideration to upset the findings and therefore, there is no need to overburden the judgment anymore or needs any discussion of such evidence.

12. 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,

R/CR.MA/6586/2022 JUDGMENT DATED: 19/07/2022

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.

13. 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."

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

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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 application for leave to appeal being Criminal Misc. Application No.6586 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.690 of 2022 also deserves to be dismissed and is accordingly dismissed.

(S.H.VORA, J)

(RAJENDRA M. SAREEN,J) SATISH