State Of Gujarat vs Rabari Mafabhai Rugnathbhai
2022 Latest Caselaw 9107 Guj

    R/CR.A/692/2011                                CAV JUDGMENT DATED: 12/10/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 692 of 2011


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 RABARI MAFABHAI RUGNATHBHAI & 2 other(s) ========================================================== Appearance:

MS RHEA CHOKSHI FOR MR TEJAS M BAROT(2964) for the Opponent(s)/ Respondent(s) No. 1,2,3 RULE SERVED for the Opponent(s)/Respondent(s) No. 2,3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 14/10/2022

CAV JUDGMENT

1. Present Criminal Appeal has been preferred by the appellant - State of Gujarat under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 11/02/2011 passed by the learned Additional

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Sessions Judge, Deesa in Special (Atrocity) Case No.10 of 2010 acquitting the respondent Nos.1 to 3 - original accused Nos.1 to 3 from the offence punishable under sections 447, 504, 506(2) and 114 of Indian Penal Code and under section 3(1)(10) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act (hereinafter referred to as "the Atrocity" Act).

2. The crux of the case of the prosecution is as under:-

The complainant - Mafabhai Rakhabhai Meghval (Harijan) lodged the complaint that on 19/7/2009 at about 12 O'clock when he was in was in his agricultural field, Rabari Mafabhai Rugnathbhai, Mevabhai Pujabhai Rabari came with sticks and Lakhabhai Rugnathbhai Rabari came with axe with materials to construct shed and they started to construct a shed near the well and therefore, the complainant asked them that why they are constructing shed in his field and in reply they said that before four years they have purchased his land from his by way of registered sale deed at the consideration of Rs.3 Lacs and you have nothing to do. At that time the complainant said that he has worked with him in the agricultural field as partner and his Rs.3 Lacs is due to be paid by them and for which even on a writing his thumb impression is obtained on the stamp paper of Rs.20/- and at that time, all the three got excited and Mafabhai Rugnathbhai took the axe which was lying in the bullock cart and came to beat the

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complainant and hence due to fear, the complainant left the place and at that time, all the three said that "Sala Dhedha Kanda" if he enters in the field, they will kill him and will bury him. It is the case of the complainant that thereafter he went to his house and thereafter, he his sons Ramesh and Prakash and wives of his sons had gone to the aforesaid three persons in the field to ask them not to construct the shed and at that time, all the three accused again gave abuses and ran behind them to beat them. Hence, the complainant has lodged the complaint.

3. On the basis of the said complaint, investigation was started, statement of witnesses were recorded, prepared the panchnama of the scene of offence, arrested the accused and after through investigation, as there was sufficient evidence against the respondent Nos.1 to 3 - accused Nos.1 to 3, Chargesheet was filed before the learned Judicial Magistrate, First Class. As the offence committed by the accused persons was exclusively triable by the Court of Sessions as per the provisions of Section 209 of Criminal Procedure Code, the learned Magistrate was pleased to commit the case to the Court of Sessions and the case was transferred and placed for trial in the court of learned Additional Sessions Judge, which has been numbered as Special (Atrocity) Case No.10 of 2010. Thereafter, Charge was framed against the accused for the offence punishable under sections 447, 504, 506(2) and 114 of Indian Penal

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Code and under section 3(1)(10) of Atrocity Act. The accused pleaded not guilty to the Charges and claimed to be tried. The prosecution, therefore, laid evidence, oral as well as documentary. After the evidence was over, Further Statement of the accused were recorded under section 313 of the Code of Criminal Procedure and arguments were heard. At the conclusion of the trial, the learned Sessions Judge was pleased to acquit the accused for the charges levelled against them. Hence, the appellant - State of Gujarat has preferred the present Criminal Appeal challenging the judgement and order of acquittal.

4. Heard Ms.C.M. Shah, learned APP for the State and Ms.Rhea Choksi, learned advocate appearing on behalf of Mr.Tejas Barot, learned advocate for the respondent Nos.1 to 3.

5. Mr.C.M. Shah, learned APP has vehemently submitted that the Sessions Court has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. She has further submitted that the Sessions Court has erred in acquitting the respondents - accused from the charges levelled against them. She has further argued that the prosecution has proved that the respondents have committed offence under sections 447, 504, 506(2) and 114 of Indian Penal Code and under section 3(1)(10) of Atrocity Act. She has further argued that

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Sessions Court has acquitted the respondents merely on some minor contradictions and omissions in the evidence of the witnesses. She has further argued that the trial court has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. She has further argued that the offence punishable under sections 447, 504, 506(2) and 114 of Indian Penal Code and under section 3(1)(10) of Atrocity Act, is made out against the respondents, however, the same is not believed by the Sessions Court. She has further argued that though the prosecution witness has supported the case of the prosecution, the trial court not believed their evidence and acquitted the respondents - accused erroneously. She has requested to allow the present appeal.

6. Ms.Rhea Choksi, learned advocate for the respondents- original accused has submitted that there is hardly any substance in the submissions of learned APP. There is no 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 trial court has rightly appreciated the evidence on record and held that the prosecution has failed to prove the case against the respondents - accused beyond reasonable doubt and rightly acquitted the accused. He has requested to dismiss the present appeal.

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7. Heard advocates for the respective parties and perused the impugned judgement and order of acquittal and re- appreciated the entire evidence on record.

8. 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.

9. On re-appreciation of the evidence on record, it appears that the prosecution has examined 5 witnesses. The complainant and his two sons are examined as PW Nos.1, 2 and 4 whereas Panch witness has been examined at Ex.23 and I.O. has been examined at Ex.26 and the prosecution has produced 6 documentary evidence on record.

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10. It is the case of the prosecution that the complainant was in his agricultural field on 19/07/2009 at 12 p.m. and was doing his agricultural work. At that time, the accused armed with sticks and axe came near the well along with the material like tin-sheets and other materials to construct a shed on the agricultural land which was restrained by the complainant and the incident has occurred wherein the accused have used abusive and filthy language and given threat to kill. It is also the case of the prosecution that the first incident pertaining to the complainant himself and using filthy language against the caste of the complainant and thereafter the complainant had gone to his house and informed his wife and sons and all of them came back and again had talked with the accused and accused started abusing them using bad words and ran after them with weapons and hence, all of them had run away and thereafter, the complaint was filed by the complainant.

11. The complainant Mafabhai Rakhabhai has been examined at Ex.18. He, in his deposition, has reiterated the facts of the complaint filed by him against the accused.

12. The sons of the complainant Ramesh Mafabhai and Pratap Mafabhai are examined at Ex.20 and Ex.25 respectively. They have also supported the case of the complainant. As per the case of the prosecution, the

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accused armed with agricultural instruments like stick and axe enter into the land of the complainant and started constructing shed and assaulted the complainant. As per the case of the complainant, the land is of his ownership and the accused have entered wrongfully in the land and has made the construction of shed. In the cross- examination, the complainant has denied regarding agreemenet of sale by the complainant in favour of the accused of the said land. It is further admitted that the Civil Suit of permanent injunction is pending in Dhanera Court and Panchnama was drawn by the Court Commissioner in the said suit.

13. From the entire evidence of the complainant, it reveals that the land upon which the accused alleged to have entered wrongfully is disputed land for which the dispute is pending between the parties and civil suit is pending. The dispute between the parties is with respect to ownership of the land.

14. On the aspect of dispute between the parties regarding the land, the investigating officer has been examined at Ex.26. He has submitted that the complainant and accused is having dispute regarding the land. The dispute is regarding share in the crops worth Rs.3 Lacs yield from the land. In his investigation, he has found that there was document written on stamp paper of Rs.20/-, which has not

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been seized by him. As such the deposition of I.O. itself clearly mentions that there is a dispute between the parties regarding ownership and possession of the land on the date of the incident. It is also on record in the deposition that the shed was there on the land and nothing is found that the shed was under construction at the time of drawing panchnama. As per the defence of the accused, the complainant has sold the land in Rs.3 Lacs to the accused vide Agreement-to-sell for which civil dispute is pending between the parties. The complainant has alleged that the accused have trespassed in his land. It is the duty of the complainant himself to show prima facie ownership and possession of the land by way of revenue entry. However, in this case, it has come on record that no such record showing possession or ownership has been placed on record by the investigating agency.

15. Here in this case, it is also pertinent to note that as per the case of the complainant, the accused were armed with stick and axe and they try to assault. However, not even a scratch or injury has been caused by the accused to the complainant or anybody nor any medical certificate regarding any kind of injury has been produced on record. As such the intention of beating or insulting the complainant on the very day of the incident also cannot be said to have been in the mind of the accused on the day of the incident.

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16. So far as the evidence of complainant is concerned, as per his case, in the first altercation which occurred between him and accused and accused used filthy language against the cast of the complainant and this incident occurred in the field and thereafter, he went to his house and informed his family members and thereafter all came to the place of incident and second incident has occurred wherein it is alleged that the accused have used filthy language against their caste. As such, the allegation of insulting or humiliating the complainant by using abusive language against the caste is concerned, no eye witness has viewed such incident and no eye witness has been brought on record. However, the sons of the complainant Ramesh and Pratap have stated that their father was abused. The first altercation has been happened between the complainant and the accused and so the evidence of the sons of the complainant is hearsay evidence so far as allegation of insulting the complainant against his caste is concerned.

17. So far as the threat given to the complainant is concerned, which is asserted by both the sons, it is improbable to believe that in first altercation between the complainant and accused wherein the accused alleged to have abused the complainant and threatened to kill him, the complainant again along with his family members comes to the accused. Moreover, it is not the case of the

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complainant and his family members that due to the threat given by the accused, they were not able to do their routine due to the fear. There is nothing on record that threat was in form of lowering the complainant or his family members.

18. So far as abusive words alleged to have been used by the accused the humiliating the complainant is concerned, the entire incident has occurred in the disputed agricultural field and the same is not a public place and it cannot be said that the offence is made out as held by the Hon'ble Supreme Court in the case of Hitesh Verma Versus State of Uttarakhand and another, reported in (2020) 10 SCC

710. In the said decision the object and reason of enactment of SC/ST Act have been laid down by the Apex Court. Para 13 of the said decision reads thus:-

"13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an

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offence under the Act would be made out when a member of the vulnerable section of the society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that Respondent 2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with procedure established by law. Such action is not for the reason that respondent No.2 is a member of Scheduled Caste."

19. The challenge before the Hon'ble Supreme Court in the aforesaid decision was the order passed by the High Court of Uttarakhand whereby in an application under section 482 of the Code of Criminal Procedure for quashing the chargesheet as well as the summoning order was dismissed. However, considering the facts of the case, it was held that the dispute between the parties is about the possession of the land and the dispute is pending before the Civil Court. This court is in quite agreement with the law laid down by the Hon'ble Apex Court in the aforesaid decision. Considering the aforesaid decision of the Hon'ble

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Apex Court and evidence on record, no case is made out against the accused.

20. Considering the entire evidence on record oral as well as documentary, this Court is of the opinion that the prosecution has failed to prove the case against the accused by leading cogent and convincing evidence. The judgement delivered by the Sessions Judge is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial court has been rightly appreciated by the trial court. No apparent error on the face of the record is found from the judgement. The judgement does not suffer any material defect or cannot be said to be contrary to the evidence recorded.

21. 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 :

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"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 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

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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 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

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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."

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

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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."

22. 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.

23. Scope of appeal against acquittal is well laid down in case of Chandrappa and ors. vs. State of Karnataka reported in (2007) 4 SCC 415, it was observed:

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"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double

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presumption in favour of the accused. Firstly, the presumption of innocence 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 reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

24. 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.

25. In view of the above and for the reasons stated above, present Criminal Appeal deserve to be dismissed and is accordingly dismissed.

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