Purshottambhai Kalubhai Bamania vs State Of Gujarat
2022 Latest Caselaw 2745 Guj

     R/CR.MA/4945/2020                                ORDER DATED: 10/03/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 4945 of 2020

                                       With
                         R/CRIMINAL APPEAL NO. 176 of 2022
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                    PURSHOTTAMBHAI KALUBHAI BAMANIA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR RAMNANDAN SINGH(1126) for the Applicant(s) No. 1
MR UM SHASTRI(830) for the Respondent(s) No. 2,3,4
MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 10/03/2022

                              ORAL ORDER

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

1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 29.5.2017 passed by the learned 4 th Addl. Judicial Magistrate First Class, Godhra (Panchmahal) in Criminal Case No.695/2016, whereby the opponents accused Nos.2 to 4 came to be acquitted for the offences under sections 465, 467, 468, 471, 120(B) and 114 of IPC, the applicant complainant has preferred this application to grant leave to appeal as provided under section 378(4)) of the Code of Criminal Procedure, 1973 ("the Code" for short).

2. That the present applicant filed complaint u/s 200 of the Code of Criminal Procedure which was initially registered as Criminal Inquiry No.96 of 2014, however, subsequently, it was numbered as Criminal Case No.695 of 2016. It is alleged in said criminal case that his late father Kalubhai Hirabhai Bamania had adopted the present applicant and also had stated in the

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adoption deed that land bearing survey Nos.313/3, 344/4, 343/9, 345/1 situated in village Veganpur and house bearing Panchayat No.182 along with Vada and House No.1/665 and 1/665/1 known as Nadiavas situated in Khadi Fadia of Godhra Municipality was also disposed of in favour of the present applicant. After the death of the applicant on 3.11.1980, the applicant had made applications for mutation of revenue entries in the revenue records. In the meantime, there were civil litigation and the matter had reached upto this Court and this Court was pleased to grant stay against transfer, alienation etc. During the period of stay, mother of the applicant had passed away and the sister of the applicant had approached the revenue authority that she was in possession of Will executed by late Maniben and therefore, in the revenue records, her name should be mutated in case of all the properties. This was objected by the present applicant and the katcha entry was made cancelled. The private respondents also made an attempt to move the civil Court for grant of probate for certification of Will. It is also alleged in the complaint that in fact, the Will is fabricated and the Will executed by Maniben is illegal by virtue of the order of this Court.

3. We have heard learned advocate Mr. Ramnandan Singh for the applicant - complainant and reassessed and reanalyzed the evidence adduced by the complainant before the learned trial Court.

4. It is a matter of fact that except evidence of the complainant, no any oral or documentary evidence was placed before the learned trial Court. The complainant being adopted by the father of the respondent No.2 claims to be brother of respondent No.2 Nanduben. As per say of the complainant, the

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father of the respondent No.2 i.e. Kalubhai had no issue and therefore, he adopted complainant Purshottambhai. Upon demise of father of the respondent No.2 Nanduben, he becomes entitled to inherit movable and immovable properties as a legal heir. In order to siphon off the property, the respondent No.2 Nanduben and her husband created one bogus Will dated 31.5.2001 of her mother, namely, Maniben. In nutshell, the claim of the complainant is that said Will is fake and fabricated and therefore, private complaint came to be filed on 19.4.2014.

5. Pursuant to such complaint, the learned trial Court called for the report from the police in exercise of its powers u/s 202 of the Code of Criminal Procedure. Since the case was warrant triable, the matter was posted for evidence for framing of the charge. Except deposition of the complainant at Exh.9, no any other evidence has been led or adduced before the learned trial Court. The entire premise of the complainant right to challenge the will was that he was adopted son of father of the respondent No.2 Nanduben. In para 7 of the impugned order, the learned trial Court categorically recorded that no any evidence with regard to complainant's adoption by father of the respondent No.2 Nanduben is on record or adduced. Not only that, there exists civil litigation between the parties and the complainant has already preferred Regular Civil Suit No.220 of 2013 inter alia praying to cancel the registered Will of the mother of the respondent No.2 Nanduben. The entire claim of the private complainant is nothing but complainant's adoption by the father of the respondent No.2 Nanduben. In absence of any evidence in this regard and also with regard to Will being fake and fabricated or got up, the learned trial Court rightly discharged the private respondents from the alleged offences punishable u/s 465, 467,

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468, 471, 120(B) and 114 of IPC. Under the circumstances, the learned trial Judge has rightly acquitted the opponents 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.

6. 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.

7. 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

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acquittal."

8. 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.

9. 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.

10. 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. Notice discharged. 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