State Of Gujarat vs Karsanbhai Bachubhai Barad
2022 Latest Caselaw 9112 Guj

    R/CR.A/238/2011                                   CAV JUDGMENT DATED: 11/10/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL APPEAL NO. 238 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 KARSANBHAI BACHUBHAI BARAD & 1 other(s) ========================================================== Appearance:

MR BRIJESH RAMANUJ WITH MR Y J PATEL(3985) for the Opponent(s)/Respondent(s) No. 1,2 RULE SERVED for the Opponent(s)/Respondent(s) No. 2 ==========================================================

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 11/11/2010 passed by the learned Additional

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Sessions Judge, Veraval in Sessions Case No.30 of 2009 acquitting the respondent Nos.1 and 2 - original accused Nos.1 and 2 from the offence punishable under sections 323, 504, 506(2) and 114 of Indian Penal Code and under section 3(1)(11) 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:-

On 18/11/2007 while the complainant was standing in front of her house, at that time at about 7.30 PM, both the accused gathered with in front of her house and started to tease her and abusing her and upon asked them to go away, they got furious and insulted her caste by humiliating in public place and administered threat to her. However, one Virabhai Parabatbhai who intervened and rescued her from further beating as the accused persons were giving kick and fist blows to the complainant. Thus, the accused gave abuses and insulted the complainant and in furtherance gave fist blows and also caused injuries and humiliated her in public place. Therefore, the complainant has lodged the complaint for the aforesaid offence.

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

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evidence against the respondent Nos.1 and 2 - accused Nos.1 and 2, 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 Sessions Case No.30 of 2009. Thereafter, Charge was framed against the accused for the offence punishable under sections 323, 504, 506(2) and 114 of Indian Penal Code and under section 3(1)(11) 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 Mr.Brijesh Ramanuj, learned advocate for Mr.Y.J. Patel, learned advocate for the respondents - accused.

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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 323, 504, 506(2) and 114 of Indian Penal Code and under section 3(1)(11) of Atrocity Act. She has further argued that 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 323, 504, 506(2) and 114 of Indian Penal Code and under section 3(1)(11) 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.

5. Mr.Brijesh Ramanuj learned advocate for Mr.Y.J.

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Patel, 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.

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

7. 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

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Law. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.

8. On re-appreciation of the evidence on record, it appears that in this case, the prosecution has examined in all 16 witnesses out of which PW Nos.13 to 16 are police witnesses who have registered the case and has investigated the case and has deposed according to the work done by them. Whereas, in this case, the important witnesses who are examined by the prosecution are the complainant and other neighbours who according to them were the witnesses to the incident. It is the case of the prosecution that on 18/11/2007 at 7.30 p.m. when the complainant was standing in her courtyard both the accused were passing by using bad words amongst each other, for which the complainant restrained them to speak such words and being angry and furious, they have beaten the complainant with kick and fist blows and insulted her using words against her caste and humiliated in public and threatened her.

The complainant who has been examined in this case as PW No.1 at Ex.9 has re-iterated her version mentioned in the complaint and has stated that Hira Parbat had intervened and saved her from the accused and while going the accused threatened her. It is also the say of the

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complainant that she was insulted and humiliated by caste speaking filthy words against her caste.

In the cross examination it is admitted by the complainant that she knows the accused as they are of the same village and both are father and son. It is admitted that after the incident had happened, Vira Parbat had come and entire incident had occurred in her house and it is admitted that she has not taken any treatment in the hospital.

9. Devchandbhai Bachubhai, the husband of the complainant Rajiben is examined at Ex.13. From his evidence it is apparent and clear that he has not seen the incident and his wife has informed him about the incident.

Witness Vira Parbat, who as per the case of the prosecution, intervened and saved the complainant, is examined at Ex.14. The complainant is wife of his nephew. He has stated that he has not seen the incident. From his admission itself it reveals that he is not the eye witness to the incident, which falsifies the fact of intervention by him and saving the complainant from beating by the accused and it also falsifies the say of the witness that he had heard abusive words. However, as regards filthy and abusive language alleged to have been used against the accused, the witness has not uttered the words in his evidence. In addition, this witness has also stated in his evidence that

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the accused were giving abuses to the complainant which is contradictory to the evidence of the complainant as the complainant has admitted that no bad word were used against her but both, father and son were using bad words against each other. The evidence of eye witness Vira Parbat cannot relied upon. As he is not the eye witness as per his own version and his version is contrary to the version of the complainant.

10. PW No.4 Vejabhai Gandabhai Ex.15 has stated that he has seen the incident from the terrace of his house and has seen both the accused beating the complainant, abusing with bad words also using words against her caste. It is admitted in his evidence that after the incident, he went to the house of the complainant and thereafter he was informed about the incident by the complainant. Considering the evidence of Vejabhai, it appears that on one side, he states that he has seen the incident from the terrace and on the other side he states that he heard the bad words used against the caste of the complainant, which is contradictory to the evidence of the complainant. As per his say, he has seen the accused beating the complainant, but he has not intervened and not tried to save her also. This witness belongs to same caste of the complainant and his version is contrary to the version of the complainant. The evidence of this witness is not reliable and trustworthy.

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11. PW No.5 Bhanubhai Govabhai has stated that he was in his house and the accused were speaking abusive language amongst each other and complainant stopped them to use abusive words. Except this, he has nothing more to say in his evidence. As such, though he is stating regarding restraining the accused from using abusive language, but he has not uttered the words used by the accused against the complainant.

12. Evidence of PW No.10 Ranchhodbhai Haribhai does not reveal the filthy language used by the accused against the complainant.

13. PW No.11 Karshan Daya is examined at Ex.25 has supported the case about using abusive words against the complainant and beating the complainant and also using bad words to the complainant.

14. PW No.12 Kanji Megha in his evidence has stated that he was in his house and heard some commotion. He opened the door and saw that the accused were giving filthy words against the complainant and threatening her to kill. Vira Parbat intervened and saved the complainant.

15. Considering the entire evidence on record, it appears that there are material contradictions using the filthy language against the caste of the complainant, regarding

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using abusive language to the complainant, beating the complainant with kick and fist blows. From the evidence of the witnesses, it is clear that all the witnesses have stated that in the incident, Vira Parbat intervened and saved the complainant, whereas Vira Parbat as stated above has specifically stated that he has not seen the incident with his own eyes. The versions of all the witnesses who have stated in support of the complainant, is contradictory to version of Vira Parbat. If all the witnesses have seen the incident at the same time from their respective house or terrace as it has come on record that every one has not seen and heard everything, whereas here some witnesses have not supported regarding beating the complainant or using abusive language against the caste of the complainant. Some have stated regarding filthy language against the caste and also using the abusive words to the complainant. Interestingly in the entire complaint if all the witnesses have seen the incident, they are from the neighbourhood the complainant or Vira Parbat in the complaint as well as statement must have cited them as witnesses in evidence but the complainant has not uttered a word regarding presence of all the witnesses or witnesses inquiring from her regarding the incident. Secondly it has also come on record that the incident has occurred inside the house of the complainant as per the admission of the complainant. Nothing has been brought on record that everybody was able to see the entire incident or hear the words. As such,

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as stated above, the version of all the witnesses regarding using of abusive language and words against the caste are contradictory to the evidence of the main witnesses complainant and Parbat Vira. The presence of all the witnesses at the time of incident, viewing the incident which has occurred in the house of the complainant, is doubtful.

16. One most important aspect which is to be considered is the evidence brought by the prosecution regarding beating the complainant by the accused with kick and first blows. As such, if she was beaten, there must have been supporting evidence by way of any treatment taken by the complainant from the Doctor or when the police was informed, they might have sent her for medical check up but no such medical record has been brought on record by the prosecution. The complainant has admitted that she has not taken any treatment. Whether she was beaten by the accused is not proved by the prosecution in any manner. As such, evidence of PW Nos.4, 11 and 12 regarding beating the complainant by the accused does not get any support.

17. So far as threatening the complainant by the accused is concerned, no such incident has come on record. Again the impact of any threat must be so that the victim should be restrain himself or herself from doing routine work under the influence of such threat. No such evidence has come on record that because of the alleged threat, the complainant

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was restrained from doing her routine work due to fear.

18. So far as using words by the accused against the caste of the complainant is concerned, it has come on record that the incident has occurred in the house of the complainant which is not a public road or public place.

19. For the sake of argument, if it is believed that the complainant restrained the accused from speaking abusive language used by the accused amongst each other and the accused uttered words against the caste of the complainant, but as the same are not said in public view, the same cannot be believed.

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,

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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 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

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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 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

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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

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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 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

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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:

"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

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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 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

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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..