State Of Gujarat vs Thanabhai Ganeshbhai Rajput
2022 Latest Caselaw 3827 Guj

    R/CR.A/886/2008                                CAV JUDGMENT DATED: 31/03/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 886 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
==========================================================

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 ?

========================================================== STATE OF GUJARAT Versus THANABHAI GANESHBHAI RAJPUT & 2 other(s) ========================================================== Appearance:

ABATED for the Opponent(s)/Respondent(s) No. 3 MR VR HALANI(6169) for the Opponent(s)/Respondent(s) No. 1,2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 31/03/2022

CAV JUDGMENT

1. This Appeal is filed by the appellant under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the judgment and order dated 11.09.2007 passed by the learned Additional Sessions Judge and 3 rd Fast Track Court, Diodar in Special Case No.45 of 2007, acquitting the private respondents Nos. 1 to 3 - original accused from the offence

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punishable under sections 504, 506(2) and 114 of Indian Penal Code and under sections 3(1)(10) of the Scheduled Tribes (Prevention of Atrocities Act), 1989.

2. The brief facts of the prosecution case is that on 3.01.2007, the complainant Ishwarbhai Nagabhai Nesda registered a complaint against the accused persons at Suigam Police Station, with C.R. No.3001/2007, for the offences punishable under Sections 504, 506(2), 114 of the Indian Penal Code and Sections 3(1) (10) of the Atrocity Act, 1989, stating therein that the complainant is residing at Vav, and having three brothers. On 2.01.2007 at afternoon, the complainant gone to his farm and at that time the accused persons came to his house and all the accused abused the complainant by uttering obscene words in public relating to the mother and Sister of the complainant and also to his wife Sonaben and minor son Dhanji, and saying "Taro Dhani Vadhare Dahyo Thay Chhe, Te Aeklo Mali Jay to Janthi Mari Nakhavo Chhe, and Amari Aagal Tamari Shu Hesiyat Chhe Sala Kandao Tamoto Varsho Thi Amara Gulam Chho Jethi Ame Kahie Tem Karvu Padshe". On hearing the shout of the complainant's wife and accused persons Complainant's mother Gomtiben and Uncle's daughter came there and pacified them. Thereafter, the complainant filed a complaint with C.R.No.3001/2007, and the offence was registered at Suigav Police Station against the accused persons for offences punishable under Sections 504, 506(2), 114 of the Indian Penal Code and Sections 3(1)

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(10) of the Atrocity Act, 1989.

2.1 On the basis of the said complaint, investigation was initiated and as there was sufficient evidence against the respondent accused person, charge sheet was filed against them before the Learned Judicial Magistrate First Class, Palanpur. As the offences committed by the accused person was exclusively triable by the Court of Sessions as per the provisions of 209 of Criminal Procedure Code, the Learned Judge was pleased to commit the Case to the Court of Sessions and the case was transferred and placed for trial before the Additional Sessions Judge, FTC-3, Deesa, which has been numbered as Special (Atro.) Case No.45 of 2007. Thereafter, charge was framed against him for the offence punishable Under Sections 504, 506(2), 114 of the Indian Penal Code and Sections 3(1) (10) of the Atrocity Act, 1989. The accused person pleaded not guilty to the charges and claimed to be tried. The prosecution therefore laid evidence. The Prosecution has examined 7 witnesses as well as produced 6 documentary evidences on the record of the case. At the conclusion of the trial, Additional Sessions Judge, FTC-3, Deesa, Palanpur was pleased to acquit all the accused persons - respondents from the charges of offences against him punishable under Sections 504, 506(2) and 114 of the Indian Penal Code and Sections 3(1) (10) of the Atrocity Act, 1989. Hence this appeal.

3. Heard the learned advocates for the respective

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parties and perused the impugned judgement and order of acquittal. Re-appreciated the entire evidence on record. Since the respondent No.3 died during the pendency of the proceedings, present appeal stands abated qua respondent No.3.

4 Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice in favour of the Accused, firstly, the presumption of innocence is available to him under the Fundamental Principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of Law. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.

5. On re-appreciation of evidence, it is clear that the there was quarrel of the minor son with Dhanji and at the time of quarrel no witness was present as per the case of the complainant, when the complainant' wife Sonalben had gone to scold, the accused insulted against her caste. However, the wife of the complainant has not lodged any complaint. The complaint is filed on the next day. There is

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no reasonable explanation for lodging the complaint belatedly. The delay is not explained in the complaint or in the evidence, prima facie it appears that the complaint itself is suspicious. Further though the incident had happened in the public state, other independent witness is not examined. In absence of corroboration to the witnesses, the complainant's complaint is doubtful.

5.1. Panch witness Jagabhai Chandabhai Rathod who is examined at Ex.11 is the panch of the panchnama of place of offence Ex.12. The said witness has stated that in the field of the accused No.1 there was electric pole and at the time of incident the said witness was sitting at the house of the complainant and at that time he has put his signature and in the house itself the signature of the panchwitness has been obtained. Thus, panchnama is prepared in the house and signature of the panch witness is obtained. From the cross examination of this witness it is clear that the panchnama is not proved. As per the case of the defence, in the field of the accused, there is electric pole and kite was fixed with the said pole and the fact cannot be disputed that with a view to see that no untoward incident occurred, the accused persons driven out the boy Dhanji and it is also possible that on the next day false complaint is filed.

5.2 The complainant Ishvarvbhai Nagaji is examined at Ex.14, from the evidence of the complainant it is clear that the complainant was not present at the time of incident. The

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incident took place before 5 months and at that time the complainant was not at home and he had come to house afternoon and then his wife has told the story that his son had gone to take kite in the adjoining field and the quarrel had happened and when the wife of the complainant had gone for scolding the accused, they used filthy language and used the words against his caste. However, at that time complainant was not present and the complainant filed the complaint listening the story from his wife. The wife of the complainant has not given the complaint after the incident and therefore, the complaint itself is suspicious. It can be believed that even in the complaint the words "Sale Kandao" have been added subsequently because it clearly transpires that after writing the complaint, the words "sala kandao" have been added subsequently and therefore, the complaint is suspicious. The said witness in his cross examination admits denies that the there is pole in the field of the accused but denies that the son of the complainant had gone on the pole to pick up the kite and accused had driven out the son of the complainant. This witness admits regarding previous dispute between the parties. It is not written in the complaint by the complainant that the son of the complainant was flying kite and kite had gone to the field of the accused. Thus, it is clear that the story of flying kite by his son is subsequently concocted and the complaint is filed falsely. From the examination of this witness, it is clear that the complaint of the complainant is suspicious.

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5.3. Wife of the complainant - Sonalben Ishvarbhai is examined at Ex.16. It is natural that she gave deposition in the line of the complainant. From the cross examination of the said witness. As per the this witness, the accused have used words against her caste. It is her case that her son was flying kite and kite had gone to the field of the accused and the accused Thana gave filthy languages and son returned crying. The complainant has given complaint that all the accused told that "Mari Nakhvi Chhi ane Kapi Nakhvi Chhi ane Taro Dhani Ghanu Dodhdayu bole chhe, dhedha kanda tame su karina nakhvana chho, lakh rupiya bagadi nakhva chhi pan aa lokone finish karinakhvana chhe". The complaint is lodged by her husband. She admits that due to tractor the edge of the field had broken. Further, it is not written in the cross complaint that the kite had gone to the field of the accused and accused Raju Thana had used abusive language. Further it is also not written in the cross examination that all the three accused had come and they threatened her to kill and even "maro dhani su bole chhe lakh rupiya bagadva chhe" are also not written in the complaint. It is also not written in the cross examination that the accused said that "kandaone finis kari nakhva chhi". Considering the cross examination of this witness, the possibility of false implication cannot be ruled out.

5.4. Ratanben Nagabbhai who is mother of the complainant is examined at Ex.17 who has stated in chief examination that the accused Thana had come to beat. However no

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evidence to that effect is produced. Other witnesses have said that all the witness had come. Thus, whether this witness has seen the incident or not is also doubtful. If evidence of this witness is believed, evidence of other witness are required to be discarded. Her evidence as an eye witness is not trustworthy. In cross examination she has stated that at the time of incident she was nearby and accused said that mat bolo. She also stated that it is not true that when son had come to the house, she was at home her son had informed about the incident. She has stated that wife of her son had informed about the incident. Thus, from the statement before the police her evidence is doubtful she cannot be said to be eye witness. It appears that as she is mother of the complainant, she has tried to support the case of the complainant, however, her evidence in any manner cannot be considered as eye witness.

5.5. Dhanjibhai Ishvarbhai is examined at Ex.18 who is minor son of the complainant aged 6 years. Evidence of this witness was recorded in questionnaires on oath. He stated that he was flying kite, and kite had gone to the field of the accused and accused Thano run behind him and so he came to house crying and he informed about the incident to his mother. They in their evidence has disclosed the name of other witness and accused were saying that "taro dhani kya gayo chhe tena pag bhangi nakhvana chhi pachhi aaropio jata rahela". Thereafter Ratanben had come. She knows the accused. From the evidence of this witness it is clear that

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evidence of this witness does not support case of the prosecution that accused used the word "sali dhedhdi kandan" and insulted against their caste. This witness has also come to the house of the accused subsequently. She merely states regarding dispute regarding taking kites from the field of the accused. This witness does not support the say of the complainant that the accused used filthy abuses and used words against their caste. Further, in the statement before the police this witness has not stated that "taro dhani kya gayo chhe tena hath pag bhangi nakhvana chhi". Thus, there is material contradictions. This witness also does not say regarding threat to kill. The evidence of this witness is different from the evidence of other witnesses. This witness also has not given evidence regarding using words against caste. Hence, evidenece of this witness is also not believable.

5.6. Veljibhai Vastabhai, A.S.I. is examined at Ex.20 who recorded the FIR at the relevant time. He admitted that no reason for giving the FIR late was given by the complainant. Thus, the delay in lodgement of the FIR creates a serious doubt about occurrence of the incident.

5.7. Witness Bhikhabhai Bhagvanbhai, investigating officer is examined at Ex.25. He has investigated the offence and has filed chargesheet. As per the investigation of this witness, it has not come on record that when the incident occurred and for what reason. In cross examination it is

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mentioned that Sonalben has not stated in her statement that the kite had gone in the field of the accused and even it is not stated in the statement that accused Rajput Thana gave filthy abuses. No statement of independent witnesses are recorded by this witness, though available. Therefore, the investigation is also not trustworthy.

Thus, from the aforesaid discussion, it is clear that the prosecution has failed to prove the case beyond reasonable doubt and trial court has not committed any error or illegality in acquitting the accused.

6.00. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-

"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :

"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further

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reinforced by his acquittal by the trial court.

Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:

"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of

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the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:

"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."

28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:

"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."

"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact;

(ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."

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8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:

"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."

7. In that view of the matter, the Criminal Appeal being devoid of merits is dismissed.

(RAJENDRA M. SAREEN,J) R.H. PARMAR