State Of Gujarat vs Babubhai @ Mrugesh Jayantilal ...
2022 Latest Caselaw 4642 Guj

    R/CR.A/635/2008                                  CAV JUDGMENT DATED: 04/05/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 635 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 BABUBHAI @ MRUGESH JAYANTILAL JOSHI & 4 other(s) ========================================================== Appearance:

ABATED for the Opponent(s)/Respondent(s) No. 1,2 MR.HARDIK B SHAH(3751) for the Opponent(s)/Respondent(s) No. 3,4,5 ==========================================================

CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 04/05/2022

CAV JUDGMENT

1. This Appeal is filed by the appellant - State of Gujarat under Section 378 (1) (3) of the Criminal Procedure Code, 1973 against the judgment and order dated 07.01.2008 passed by the learned Additional City Sessions Judge, Court No.11, Ahmedabad in Sessions Case No.40 of

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2006 dated 17/7/12007 acquitting the respondents - original accused Nos.1 to 5 from the offence punishable under sections 366, 406 and 201 of Indian Penal Code.

2. The factual matrix as narrated by the prosecution case stands as under:

2.1. The complainant Tirthraj Bansidhar Tiwari, who is the husband of victim Shilaben (herein after referred to as "The Victim or The Prosecutrix) who has not been heard since long, has filed complaint on 3-8-2002 before Naroda police station at I C.R.No.361/02 against the accused persons, inter-alia, stating therein that the complainant's wife was kidnapped by the accused and also taken away Rs.80,000=00 (Rs.Eighty Thousands Only) from the victim by way of doing such Tantrik Vidhi in order to cure the wife of the son of the complainant. It is stated that the incident has taken place on 27-5-1999 and complaint is filed on 3-8- 2002. It is stated that on the same subject matter, a complaint was filed before Naroda police station and the Ld. Metropolitan Magistrate Court No.18 in Inquiry Case No.100/02 directed the PSI to Inquire into the matter. It is stated that lastly on 13-5-2002 one application was made to the Police Commissioner and addressed to Naroda police station also regarding the lost of the wife of the complainant. It is Stated that the complainant is staying in his house along with his wife Shila, son Dinesh and Kirenben, who is wife Of Dinesh. It is alleged that in the

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year 1999, Kirenben was not maintaining good health, therefore, they doubted Some Vargad i.e. evil spirit and they started homely treatment also. Accused No.1 Babubhai Joshi was residing near the vicinity and was known to the complainant and he named known Bhuva Makabhai - accused No.2. Thus, contact was made with the said Makabhai Bhuva at his residence. Thereafter, often and again for such Tantrik Vidhi, the family of the complainant started to contact the aforesaid Makabhai Bhuva - accused No.2 and ultimately the complainant put trust in Makabhai Bhuva as per his promise and started such Tantrik Vidhi. The complainant also went to the house of Makabhai Bhuva. He also called some items and money was also paid in piecemeal. Since there was no improvement in the health of Kirenben, ultimately accused No.3 Ismail Bhuva was also contacted at the behest of Makabhai. It is alleged that Makabhai Bhuva also took the complainant to Ismail Baba in order to remove such Vargad and such Vidhi was also done. It is stated that accused No.5 Chandanidev alias Chandrika De an eunuch was also neighbour and known to the complainant. The original name of accused No.5 is Rakesh Chandrakant Shah. The said accused No.5 had also contacted and done some Vidhi from such Bhuva accused. Since the accused No.5 Chandani De was residing at Himmatnagar, the accused persons were also well in contact with the said Chandani De and used to go frequently to her house. It is alleged that on 27-5-1999 the accused Makabhai along with her wife accused No.4 came on scooter

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and requested jointly the wife of the complainant to seat on the scooter in order to reach at Himmatnagar and Rs.80,000=00 (Rs.Eighty Thousands Only), which was lying in the cupboard of the complainant, was taken by the wife of the complainant at the request of the accused persons. How money of Rs.80,000=00 was collected by the complainant complaint is also stated in the complaint. Iis also alleged that thereafter on 13-9-2001 Makabhai Bhuva - accused No.2 came to the house of the complainant and Rs.5,000=00 was demanded. Since the complainant was not having such money, it was refused to give to the accused. Thereafter, accused no.2 got angry and threatened that like your wife I will also lose your son. A complaint regarding the aforesaid threaten given by Makabhai Bhuva also registered at II C.R.No.3196/01. However, the concerned police failed to trace any clue about the wife of the complainant. It is stated that thereafter U/s.202 of Cr.P.C. process was also issued by Ld. Metropolitan Magistrate Court No. 18 in Inquiry Case No.100/02 vide application 28/02 and Police Inspector started investigation. However, nothing has been done and unfortunately the complainant's wife has not returned back to her house i.e. till today, she is untraceable. Investigation was carried out and thereafter charge-sheet was also filed before the Ld. Metropolitan Magistrate Court No.18 on 3-8-2002 against the present five accused persons. The accused Nos.1, 2 and 3 came to be arrested on 25-8-2002 and subsequently were enlarged on bail. The accused No.4 came to be arrested on 14-2-2003

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and was subsequently enlarged on bail. The accused No.5 also came to be arrested on 17-9-2003 and was subsequently enlarged on bail. The Ld. Metropolitan Magistrate Court No.18 has committed the case to the Sessions Court U/s.209 of Cr.P.C. vide order dtd.4-1-2006. Thereafter, the accused have remained present before this Court for regular trial and the Court has framed the charges against the accused Exh.8 on 19-1-2007. The accused were read over the charges and they did not plead guilty to the charges and claimed to be tried.

2.2. The prosecution laid oral as well as oral evidence. Thereafter the prosecution gave closing pursis. Thereafter, Further Statement of the accused came to be recorded. The accused denied the charges and prayed for trial.

2.3. After conclusion of the trial, the learned trial court acquitted the accused for the offence punishable under sections 366, 406 and 201 of Indian Penal Code.

3. Mr.R.C. Kodekar, learned APP for the appellant State learned APP Mr.R.C. Kodekar for the appellant State has vehemently argued that the Sessions Judge has committed a grave error in not believing the deposition of the witnesses examined by the prosecution and evidence adduced by the prosecution. He has further submitted that the Sessions Judge has erred in acquitting the respondents

- accused from the charges levelled against them. He has

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further argued that the prosecution has proved that the respondents have committed offence under sections 366, 406 and 201 of Indian Penal Code. He has further argued that Sessions Judge has acquitted the respondents accused merely on some minor contradictions and omissions in the evidence of the witnesses. He has further argued that the Sessions Judge has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. He has further argued that the offence punishable under sections 366, 406 and 201 of the Indian Penal Code is made out, however, the same is not believed by the Sessions Judge. He has further argued that though the prosecution witness has supported the case of the prosecution, the Sessions Judge erroneously not believed their evidence and acquitted the accused. He has further argued that the Sessions has erroneously held that the prosecution has failed to prove the case beyond reasonable doubt.

Making above submissions, he has requested to allow the present appeal.

4. Mr.Hardik B. Shah, learned advocate appearing for the respondent Nos.2, 3 & 5 has submitted that there is hardly any substance in the submissions of learned APP. There is no admissible evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses. The prosecution has not proved the

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case beyond reasonable doubt. No error or illegality has been committed by the trial court in acquitting the respondents accused by giving benefit of doubt.

Making above submissions, he has requested to dismiss the present appeal.

3. Heard the leaned advocates for the respective parties at length and perused the impugned judgement and order of acquittal passed by the trial court as well as the entire material on record.

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 perusal of the record it appears that the accused

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Nos.1 and 2 expired during the pendency of the proceedings and hence, present appeal came to be abated qua appellant Nos.1 and 2 - original accused Nos.1 and 2.

5.1. It is pertinent to note that there is a considerable delay of 3 years and 68 days in filing the complaint and for such inordinate delay of more than three years, no explanation has been given. On perusal of the entire evidence on record, it is clear that no kidnapping U/s.366 of I.P.C. is proved beyond any reasonable doubt and it has come on record that the victim left her house voluntarily at her wish which has been told by PW-2 Kirenben and PW-3 Dineshbhal. The victim has stated to Pw-2 and Pw-3 that I am going to Himmatnagar. The said witnesses have stated that there was no force or any compulsion upon the victim to leave her house with alleged money and the victim was not taken away by force. No ingredients U/ss.366 or 201 of I.P.C. are said to have been proved.

5.2. So far as the accused No.2 is concerned, it appears that even whatever may be the money taken by the accused Makabhai Bhuva might have been taken as professional fees but no fixed amount is proved. On perusal of the and consideration of deposition of Pw-1 Tirthraj, who is complainant and husband of the victim, there are major contradictions between the deposition of Pw No.1 and deposition of Pw-2 Kirenben and Pw-3 Dineshbhai and the allegations are not believable because the time of leaving for

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Himmatnagar by the victim along with the accused persons are totally uncertain. Even there is no eye-witness in present case except the son and wife of son of the complainant, and even in their depositions also there are major contradictions. The accused were knowing the complainant and the complainant might nave paid any amount voluntarily to the accused persons. Thus, no case is made out against the accused No.2.

5.3. So far as accused No.3 is concerned, it is appears that the complainant has not given any amount hand to hand to any accused. There is no role at all of the accused No.3 Ismailsha who is said to have taken only some fees for Tantrik Vidhi and he is not involved in kidnapping or criminal breach of trust. Regarding Tantrik Vidhi, nothing has been recovered and no evidence has been placed in the record. Therefore, it is clear that even against the accused No.3 also no case is made out.

5.4. So far as the accused No.5 is concerned, no case is made out regarding kidnapping or causing any disappearance of is breach of trust. on the contrary, the accused No.5, who is very family related person to the complainant indisputably, has tried to trace out the victim for long time. There is no evidence to show that the victim went to the house of the accused No.5 Chandani De and there is no evidence that the accused No.5 telephoned the family members of the complainant that the victim has been

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made to seat in the S.T. Bus for coming to Ahmedabad City. Live detection test Exh.26 is also in favour of the accused. The prosecution has failed to lead the evidence consistent to the version of the complaint. How Rs.80,000=00 was lying within the custody of the complainant or the victim is also not proved. Therefore, No money can be said to have been taken away by the accused. There is no documentary evidence produced in the record showing that house was sold for about Rs.80,000=00 by the complainant. It is also clear that the accused No.5 has played no role and there is no evidence at all against the accused No.5.

5.5. 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

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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 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

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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 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

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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

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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."

8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the

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

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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."

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

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