Ranjanben W/O Rameshkumar ... vs State Of Gujarat
2022 Latest Caselaw 9352 Guj

    R/CR.A/845/2015                                CAV JUDGMENT DATED: 21/10/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 845 of 2015


FOR APPROVAL AND SIGNATURE:                                    Sd/-


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN                      Sd/-
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1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2      To be referred to the Reporter or not ?                             NO

3      Whether their Lordships wish to see the fair copy                   NO
       of the judgment ?

4      Whether this case involves a substantial question                   NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== RANJANBEN W/O RAMESHKUMAR SHANTILAL MOCHI Versus STATE OF GUJARAT & 4 other(s) ========================================================== Appearance:

MR P P MAJMUDAR(5284) for the Appellant(s) No. 1 HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 2,3,4,5 MR.MRUDUL M BAROT(3750) for the Opponent(s)/Respondent(s) No. 2,3,4,5 MS CM SHAH APP for the Opponent(s)/Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 21/10/2022

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 30/12/2014 passed by the learned 3 rd

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Additional Judicial Magistrate, First Class, Palanpur in Criminal Case No.5222 of 2011 acquitting the respondents

- original accused from the offence punishable under sections 323, 504, 506(2), 452, 427 and 114 of Indian Penal Code.

2. The brief fact of the prosecution case is that on 28/8/2011 at around 12 PM, the respondent nos.2 to 5 were playing loud music in their house and at that time, the appellant told them to lower down the volume and thereafter, the respondent Nos.2 to 5 entered into the Verandah of the appellant and inflicted fists and hit with chain of cycle. It is further alleged in the complaint that the respondent Nos.2 to 5 abused and threatened the appellant with dire consequences and tore the gown worn by the appellant.

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 - accused, Chargesheet was filed before the learned Judicial Magistrate, First Class and the case was numbered as Criminal Case No.5222 of 2011. Thereafter, Charge was framed against the accused for the offence punishable under sections 323, 504, 506(2), 452, 427 and 114 of Indian Penal Code. The accused

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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 was recorded under section 313 of the Code of Criminal Procedure and arguments were heard. At the conclusion of the trial, the learned trial court was pleased to acquit the accused for the charges levelled against them. Hence, the appellant has preferred the present Criminal Appeal challenging the judgement and order of acquittal.

4. Heard Mr.P.P. Majmudar, learned advocate for the appellant complainant, Ms.C.M. Shah, learned APP for the respondent No.1 - State and Mr.Mrudul Barot, learned advocate for the respondent Nos.2 to 5 - original accused.

5. Mr.P.P. Majmudar, learned advocate for the appellant has vehemently submitted that the learned judge has failed to appreciate the evidence which has been brought on record by the prosecution in its true spirit. The learned Judge without properly appreciating the oral as well as documentary evidence, which thoroughly supported the case of the prosecution, has wrongly acquitted the accused. It is submitted that the Sessions Court has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. He has further submitted that the trial court has erred in acquitting the accused from the

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charges levelled against them. He has further argued that the prosecution has proved that the accused have committed offence under sections 323, 504, 506(2), 452, 427 and 114 of Indian Penal Code. He has further argued that the trial court has acquitted the accused merely on some minor contradictions and omissions in the evidence of the witnesses. He 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. He has further argued that the offence punishable under sections 323, 504, 506(2), 452, 427 and 114 of Indian Penal Code, is made out against the accused, however, the same is not believed by the trial 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 accused erroneously. He has requested to allow the present appeal.

6. Ms.C.M. Shah, learned APP for the respondent No.1 State has adopted the submissions canvassed by the learned advocate for the appellant and Mr.Mrudul Barot, learned advocate for the accused has submitted that there is hardly any substance in the submissions of the learned advocate for the appellant. 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

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rightly appreciated the evidence on record and held that the prosecution has failed to prove the case against the accused beyond reasonable doubt and rightly acquitted the accused. They have requested to dismiss the present appeal.

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 10 witnesses and have produced 3 documentary evidence. PW No.1

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Ranjanben Rameshkumar is Complainant, PW No.3 Mitesh Rameshbhai is son of the complainant, PW No.4 Hetalben Rameshbhai is daughter of the complainant, PW No.5 Minaxiben Dashrathbhai and PW No.8 Anitaben Vinodbhai are neighbours and PW No.9 Ramilaben Natvarlal is cousin, of the complainant.

10. Considering the evidence on record, the complainant in his evidence Ex.35 has reiterated the version of the complaint and the main reason for the incident which has occurred is that the accused were playing loud music in their house and the complainant went there and asked to lower down the volume. As such the incident occurred wherein the accused has assaulted with kick and fist blows to the complainant and torn her gown and his son Mitesh was beaten with cycle chain and was threatened by the complainant.

Whereas in the cross examination, the complainant has admitted that Hetalben and Miteshbhai are her children, Minaxiben and Anitaben are neighbours and Ramilaben is her cousin. It is admitted that before the incident, there was no enmity between the accused and their family. It is also admitted that the place of incident is front of their house wherein road is there and public movement is also there. It is also admitted that the present complaint was filed by the complainant in the evening after

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the complaint under the Atrocity Act was filed by the respondent. No medical treatment was taken nor admitted in the hospital in connection with the incident. It is also admitted that the accused persons came to her house and beaten her, which is not clarified in the complaint.

11. Panch Kirankumar Amrutbhai has been examined at Ex.41. He has admitted in the cross examination that police has taken his signature in the ready paper and he was not aware what is written in the paper and police did not permit him to read the writing. Therefore, the panchnama is doubtful.

12. PW No.3 Mitesh Ramanbhai Chauhan Ex.43 is witness who has been beaten with cycle chain. He has supported the case of the complainant. He had seen the incident from Varanda and seen that the accused was beating his mother with kick and fist blows and as he went there, accused Prakash was having chain and he was beaten on the neck by Prakash and as he screamed, Ramilaben had come and the accused threatened her while going away.

In the cross examination, he has admitted that on the date of incident, the accused filed case under Atrocity Act against them and said case was before the Sessions Court. It is also admitted that at the time of incident, he was inside his house and after hearing noise, he came in the balcony.

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This aspect is not mentioned in the police statement. It is also stated that he was beaten by all the accused with force.

13. PW No.4 Hetalben daughter of the complainant is examined at Ex.44. She has also supported the case of the complainant. In the cross examination she has admitted that the complaint has been filed against them under Atrocity Act.

14. PW No.5 Witness Minaxiben has also supported the case of the complainant. In the cross-examination, she has admitted that on the date of incident, complaint was filed against herself, complainant and other persons under the Atrocity Act and the case was in the Sessions Court. The complainant is having her house behind the house of the witness. It is also admitted that after hearing hue and cry, she had gone to the house of the complainant.

15. Panch witnesses of the scene of offence Prahladbhai and Sureshbhai Ex.53 and 54 both have turned hostile and have not supported the case of the prosecution.

16. PW No.8 Anitaben, is neighbour of the complainant and residing on rent. She has also not supported the case of the prosecution and has also turned hostile.

17. PW No.9 Ramilaben who is cousin sister of the

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complainant, after hearing hue and cry rushed to the house of the complainant. There was quarrel between the complainant and the accused and the accused were abusing the complainant and she intervened and separated them. She has not stated regarding threat given by the accused nor any kind of weapon she has seen with the accused. She has also not supported the case of the complainant fully. She is also turned hostile.

It is admitted in the cross examination that she is cousin of the complainant. There is one road between the house of the complainant and house of the witnesses. She cannot see anything from her house, if any incident occurs in the house of the complainant. She does not know the cause of the incident also.

18. PW No.10 ASI Becharbhai Ex.57 has investigated the case. He has drawn panchnama of the scene of incident, recorded statements of the witnesses, arrested accused and filed the chargesheet.

In the cross-examination, he has admitted that Jay Prakash also filed complaint before Palanpur City Police Station at 11 PM and at 12 PM and the present complainant lodged the FIR. It is also admitted that the right place of incident was not shown to him by the complainant. He has also admitted that he has recorded statement of residents of Vishvakarma Society but not recorded statement of residents of Surajpark Society.

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19. Considering entire evidence on record and as per the case of the complainant, the complainant had gone to stop the accused from playing loud music. She was beaten with kick and fist blows and her gown was torn by the accused. Her son was beaten with cycle chain. This incident has been narrated by the complainant.

20. Witness son Mitesh PW No.3 and daughter Hetal PW No.4 admitted that though the complainant was beaten with kick and fist blows and though son of the complainant was beaten with cycle chain forcefully as per the say of the complainant, they have not taken any medical treatment for the injury. In absence of such medical evidence, the say of the complainant and witness that they were beaten by the accused cannot be said to be conclusively proved. If four persons have beaten the complainant with kick and fist blows even the daughter is assaulted by the accused and even son is beaten with cycle chain on the neck and there was redness on the neck, as per the say of the witness and he was beaten forcefully, medical evidence would have been supportive evidence. As such the case of the complainant and witnesses of assault by the accused is doubtful. It is admitted that the complainant is residing in Vishvakarma Nagar and the accused are residing just behind in Surajpark Society. As per the evidence of witness PW No.5 Minaxiben, her house and house of the accused are on the

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same plot having ½ / ½ plot belonging to each other. It is admitted by Minaxiben that one gallery is attached behind her house which is adjacent to the house of the complainant, which is denied by the complainant. As per the say of the complainant, witness Mitesh and Hetal Ben, the incident has occurred which in front of their house whereas the panchnama of scene of offence Ex.53 shows different place of offence which is behind the house of the complainant in the gallery attached to the house of the complainant. As per the admission of the investigating officer, the incident occurred in the gallery behind the house of the complainant.

21. Under the circumstances, it appears that the witnesses have changed the place of incident, contradictory to the investigation carried out and the place of incident itself is not proved in this case. The conduct of the complainant and witness showing the place of incident to be in front of their house rather than gallery behind their house is doubtful and suspicious which points towards suppression of true facts.

22. PW No.8 Anitaben and PW No.9 Ramilaben - neighbours of the complainant are eye witnesses. Witness Anitaben has not supported the entire incident and has turned hostile, whereas Ramilaben - cousin sister of the complainant has tried to support to some extent. She has

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stated that after hearing commotion, she went to the place of incident where quarrel took place between the parties and she intervened and separated them. Nothing regarding assault upon the complainant or her son Mitesh or daughter Hetalben is mentioned nor any word uttered by the accused has come in the evidence of Ramilaben. She has not stated that even Mitesh was beaten by cycle chain and gown of the complainant was torn. As such witnesses Anitaben and Ramilaben have not supported the case of the prosecution and their evidence cannot be relied upon..

23. So far as evidence of the complainant is concerned, her daughter Hetal was assaulted by accused Wadilal and Niruben and was beaten with kick and fist blows but they were assaulted on which part and on which part they got injury is not mentioned. The same is the case of Hetalben, who is eye witness. As per Hetalben she came in the verandah and saw that both the accused were beating her mother, however, she has also not stated on which part of her mother, the accused were beating. It is narrated that gown of her mother was torn by the accused but her mother was beaten by the accused is not mentioned. Even there is major contradictions in the evidence of Hetalben and Ranjanben. There is also major contradictions in the complaint and the evidence of the complainant.

24. So far as the evidence of Mitesh is concerned, the

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complainant has stated that accused Prakash had caught hold Mitesh and accused Mukesh gave blow of cycle chain on his neck. But in the complaint she has not stated regarding injury to Mitesh but in the complaint a small words are written regarding assault with chain, which is addition in the complaint made at the end of the complaint, which cannot be believed. Moreover, if it is believed that chain blow was given on the back but no such fact has been narrated by the complainant or witness Mitesh in the complaint, which is contradictory to the evidence of the complainant. Who has caught hold of the Mitesh and who has given chain blow, is not mentioned.

25. So far as catching hold of the Mitesh and giving chain blow is concerned, Mitesh has stated that Prakash gave chain blow. Whereas, he has not stated that anybody has caught hold of him, whereas witness Hetalben has stated contrary to the complainant and Mitesh. She has stated that accused Wadilal caught hold and Prakash beaten with chain on the neck. As such the evidence of all the witnesses are contradictory to each other regarding catching hold of Mitesh and inflicting chain blow on the neck. When a blow of chain is given on the neck, which is a soft part of the body, it results into injury which is visible. There was redness as per the case of the prosecution, no treatment of neck injury is taken, no medical certificate has been brought on record. As such the injury and the case of

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inflicting chain blow to Mitesh is doubtful.

26. One more aspect is, as per the case of the complainant, her gown was torn by accused Niruben and thereafter she was assulted. However, no torn gown has been seized by the investigating agency. Thus, the aspect of tearing gown is also doubtful.

27. So far as giving abusive language by the accused and threat given to the complainant and witnesses is concerned, no specific words have been brought by the complainant or witnesses alleged to have been used by the accused person during the incident.

28. So far as the threat given by the accused is concerned, the complainant and the witnesses have failed to bring on record that because of the alleged threat, they were not able to do their routine work and were not able to move freely. On the contrary, witnesses have admitted that they are staying in the same house, they are doing their routine work, they are moving freely. As such the threat alleged to have been given have raise no alarm in the mind of the complainant and the witnesses and no specific words regarding abusive language has been brought on record. Under the circumstances the allegations of using abusive language and giving threat are also not proved.

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29. 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.

30. 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

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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 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

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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 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

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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 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

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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."

31. 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.

32. 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

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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 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

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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."

33. 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.

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

Sd/-

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