State Of Gujarat vs Trikambhai Mohanbhai Patel
2022 Latest Caselaw 9358 Guj

     R/CR.A/1140/2008                                  JUDGMENT DATED: 21/10/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1140 of 2008


FOR APPROVAL AND SIGNATURE:

HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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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 ?

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                            STATE OF GUJARAT
                                  Versus
                   TRIKAMBHAI MOHANBHAI PATEL & 1 other(s)
==========================================================
Appearance:
MR. J.K.SHAH, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2
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    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                 Date : 21/10/2022

                                 ORAL JUDGMENT

1. The present Appeal is directed against the impugned

judgment and order in Special Case No. 20 of 2005 by the learned

Additional Sessions Judge and Special Judge, Dhrangadhra dated

8.1.2008 recording the acquittal of the Respondents / Original

Accused for the charges under Sections 504, 506(1) and 114 of the

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Indian Penal Code and Section 3(1)(10) of the Scheduled Caste and

Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter

referred to as "the Atrocities Act").

2. The facts of the case briefly are that complainant - Chaturbhai

Motibhai, who is residing at Soldivala, lodged a complaint before the

Dhrangdhra Taluka Police Station being CR No. II-23/05, against the

accused persons for the offences punishable under Sections 504,

506(2) of the Indian Penal Code and Sections 504, 506(2) of IPC and

Section 3(1)(10) of the Atrocities Act. The prosecution case is that

on 10.4.2005, at about 22:00 hours, accused persons took the soil

from the field of complainant and when complainant saw it and

denied for the same, the accused persons got provoked and gave

filthy abuses to the complainant and also threatened him to kill.

The accused persons insulted him by giving filthy abuses against his

caste.

3. Upon such FIR being filed, investigation started and the

Investigating Officer recorded statements of as many as 17

witnesses and produced number of documentary evidence, and

after completion of the investigation, Charge-sheet was filed against

the accused for the offences in question. The case was committed to

the Sessions Court and the learned trial Judge framed the Charge.

Since the accused did not plead guilty, trial was proceeded against

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the accused. Vide impugned judgment and order dated 8.1.2008,

the learned trial Judge acquitted the accused persons. Being

aggrieved by the same, the State has preferred the present appeal.

4. Heard, learned APP Mr. J.K.Shah for the appellant - State.

Though served, none has remained present on behalf of the

Respondents / Original Accused persons.

5. The learned Additional Public Prosecutor has mainly

contended that the learned trial Judge has erred in holding that the

prosecution has failed to prove its case beyond reasonable doubt.

The learned APP submitted that the impugned judgment of the trial

Court is based on presumptions and inferences and thereby, it is

against the facts and the evidence on record. The learned APP

further submitted that the learned trial Judge has failed to

appreciate the evidence on record in its true and proper perspective

and thereby, has erred in recording the acquittal of the respondent -

accused.

6. Learned APP Mr. J.K.Shah has referred to the judgment and

order as well as the testimony of number of witnesses and also the

documentary evidence. Learned APP has submitted that the

judgment and order of acquittal passed by the learned Judge is

contrary to law, evidence on record and principles of justice, hence

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the same deserves to be quashed and set aside by this Hon'ble

Court. It is further contended that the judgment and order of

acquittal passed by the Court of learned Judge is based on inference

not warranted by facts of the case and also on presumption not

permitted by law and that the learned Judge ought to have seen

that there are direct and indirect evidence connecting Respondent

with crime produced in this case. In spite of the fact, learned Judge

without appreciating oral as well as documentary evidence on

record of the case, straight way arrived at the conclusion that the

prosecution has failed to prove its case beyond reasonable doubt for

the alleged offences under Sections 504, 506(2) and 114 of IPC as

well as Section 3(1)(10) of the Atrocities Act. That the learned Judge

has committed error in holding that prosecution has failed to prove

its case beyond reasonable doubt. Learned APP has further

submitted that the learned Judge has committed error in giving

undue weightage to minor omissions and contradictions in the

evidence of prosecution witnesses and therefore the reasons given

by the learned Judge while appreciating the evidence as well as

while acquitting the accused are improper, perverse and bad in law.

Learned Advocate for the Appellant has further submitted that the

learned Judge has committed error in holding that the prosecution

has failed to produce medical evidence in respect of injuries caused

to complainant and his son. Therefore, it is submitted that the

present Appeal may be allowed.

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7. Learned APP has further contended that the learned Sessions

Judge ought to have appreciated the caste certificate and other

aspects, and on all such ground, learned APP has contended that

the learned Sessions Judge has committed error in appreciating the

evidence. Therefore, this Court may reverse the judgment of the

learned Sessions Judge from acquittal into conviction. Learned APP

has also taken this Court to the judgment and order passed by the

learned Sessions Judge coupled with appreciation of evidence and

contended that the learned Sessions Judge has committed error in

appreciation of evidence.

8. This Court has Admitted the Appeal on 10.7.2008 and the

Bailable Warrant came to be issued against the Respondents /

Original Accused persons. It is to be noted that though served, none

has remained present on behalf of the Respondents / Original

Accused Persons. As the matter is of the year 2008, the Court has

therefore proceeded with the matter for final hearing today.

9. In view of the rival submissions made by the learned

Advocates for the respective parties, it is required to be considered

whether the impugned judgment and order can be sustained or not.

10. Having heard the arguments advanced by the learned APP,

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before we advert to the merits of the case, it would be worthwhile to

refer to the scope of this Appeal.

10.1 Before adverting to the facts of the case, it would be

worthwhile to refer to the scope of interference in acquittal

appeals. It is well settled by 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.

10.2 Further, 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.

Further, while exercising the powers in appeal against the order

of acquittal, the Court of appeal would not ordinarily interfere

with the order of acquittal unless the approach of the lower Court

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is vitiated by some manifest illegality and the conclusion arrive at

would not be arrived at by any reasonable person, and therefore,

the decision is to be characterized as perverse.

10.3 Merely because two views are possible, the Court of appeal

would not take the view which would upset the judgment

delivered by the Court below. However, the appellate Court has

a power to review the evidence if it is of the view that the

conclusion arrived at by the Court below is perverse and the

court has committed a manifest error of law and ignored the

material evidence on record. That the duty is cast upon the

appellate Court, in such circumstances, to re-appreciate the

evidence to arrive to just decision on the basis of material placed

on record to find out whether the accused is connected with the

commission of the crime with which he is charged.

10.4 In Mallikarjun Kodagali (Dead) represented through

Legal Representatives v. State of Karnataka and Others,

(2019) 2 SCC 752, the Apex Court has observed that:

"The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be

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filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".

10.5 Yet in another decision in Chaman Lal v. The State of

Himachal Pradesh, rendered in Criminal Appeal No. 1229

of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex

Court has observed as under:

"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial

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court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

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14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42)

"(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.

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Such phraseologies are more in the nature of 'flourishes of language' to emphasise 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 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 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."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in

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mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20)

"20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

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(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:

"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by

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taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636)." (emphasis supplied)

9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

9.4 In the recent decision of Vijay Mohan Singh v.

State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from

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1952 onwards. In paragraph 31, it is observed and held as under:

"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC

228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233)

"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal

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passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court.

While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416)

"8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a

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well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."

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31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 80910) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have

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set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

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If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."

(emphasis supplied)."

11. At this juncture, a beneficial reference may also be made to a

decision of the Hon'ble Apex Court in the case of Lalit Kumar and

Ors. v. Superintendent and Remembrancer of Legal Affairs,

Govt. of W.B. reported in AIR 1989 SC 2134, wherein the Hon'ble

Court has held that:

"It is now well settled that the power of an appellate Court to review evidence in appeals against acquittal is an extensive as its powers in appeals against convictions, but that power is with a note of caution that the appellate Court should be slow

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in interfering with the orders of acquittal unless there are compelling reasons to do so. If a finding reached by the trial Judge cannot be said to be an unreasonable finding, then the appellate Court should not disturb that finding even if it is possible to reach a different conclusion on the basis of the material on record."

12. In the aforesaid backdrop, as per the evidence of PW-1

Chaturbhai Motibhai at Exh.10. He appears to the original informant

/ complainant. He tried to depose in accordance with the complaint

which is produced at Exh.12 but in cross-examination he has

categorically admitted that in the police station, his brother was

giving the dictation of the complaint. Further, it is also admitted

that he has merely signed the complaint. Upon all such premises

and also on the basis of the judgment as rendered by the learned

Sessions Judge, it appears that the learned Sessions Judge has

rightly arrived at the acquittal of the Accused Persons by way of

granting benefit of doubt.

12.2 The prosecution has testified PW-2 Motibhai Keshabhai at Exh.

17. He tried to depose in accordance with the statement before the

police but in the cross-examination he has admitted that the

complainant is the cousin and therefore he is the interested witness.

12.3 The prosecution has testified PW-3 Dhanjibhai Bhalabhai at

Exh.19. Here also in cross-examination he has admitted that the

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panchnama was prepared and therefore he has signed the

panchnama and therefore also the prosecution has not succeeded

to prove its case.

12.4 The prosecution has testified PW-4 Bhurabhai Pitamberbhai at

Exh.23. He is known to the complainant Chaturbhai and he has

admitted that he has no personal knowledge of the so-called

occurrence.

12.5 The prosecution has testified PW-5 Karshanbhai Motibhai at

Exh.26. He appears to be real brother of the complainant. He tried

to support the version of the complainant but he has admitted in the

cross-examination that so longer as the role of the accused persons

is concerned for inflicting the blow by axe upon the complainant is

not stated in the statement.

12.6 The Prosecution has testified PW-6 Sondabhai Karimbhai at

Exh.28. He has not stated anything for the so-called occurrence.

12.7 The prosecution has testified PW-7 Ravjibhai Chodabhai at

Exh.29. He is declared hostile and therefore he has not supported

the case of the prosecution.

12.8 The prosecution has testified PW-8 Bharatbhai Lavjibhai at

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Exh.30. He has no knowledge about the occurrence. He has

therefore not supported the prosecution case and has turned

hostile.

12.9 The prosecution has testified PW-9 Himmatbhai Bhacchu at

Exh.31. This witness has not supported the prosecution case and

has turned hostile.

12.10 The prosecution has testified PW-10 Thakarsinhbhai Haribhai

at Exh.32. This witness has not supported the prosecution case and

has turned hostile.

12.11 The prosecution has testified PW-11 Dipakbhai Karsanbhai at

Exh.33. This witness has not supported the prosecution case and

has turned hostile.

12.12 The prosecution has testified PW-12 Bharatbhai Bachubhai at

Exh.34. This witness has not supported the prosecution case and

has turned hostile.

12.13 The prosecution has testified PW-13 Parsottambhai

Amarsinhbhai at Exh.35. This witness has not supported the

prosecution case and has turned hostile.

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12.14 The prosecution has testified PW-14 Savjibhai Jerambhai at

Exh.37. This witness has not supported the prosecution case and

has turned hostile.

12.15 The prosecution has testified PW-15 Dashrathsinh Hadolubha

at Exh. 43. This witness appears to be PSO In Charge of the

Dhangadhra Police Station in the year 2005. He has accepted the

complaint only.

12.16 The prosecution has testified PW-16 Malek Anvarkhan

Rahematkhan Exh. 45. He was Head Constable and he has handed

over the further investigation to the Dy. S.P.

12.17 The prosecution has testified PW-17 Vanrajsinh Juvansinh at

Exh. 46. This witness appears to the Dy.S.P. at the respective time

and tried to depose in accordance with his official duties. He has

also tendered the charge sheet.

13. Thus, on re-appreciation and reevaluation of the ocular and the

documentary evidence on record, as referred to herein above, it

transpires that there are contradictions and omissions in the

evidence of the prosecution witnesses. The learned trial Judge has

observed that on considering the evidence on record there appears

no trustworthy evidence on record to prove the charge against the

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accused and the prosecution has failed to bring home the charge

against the accused inasmuch as the ingredients of the offence

alleged are not fulfilled. This Court has gone through in detail the

impugned judgment and order and found that the learned trial Judge

has meticulously considered the depositions of all the witnesses and

came to the conclusion that the prosecution has failed to prove the

case against the accused beyond reasonable doubt and in the

considered opinion of this Court, the learned trial Judge has rightly

come to such a conclusion, which does not call for any interference

at the hands of this Court.

14. In view of the aforesaid discussion and observations, in the

considered opinion of this Court, the prosecution has failed to bring

home the charge against accused for want of sufficient material.

The findings recorded by the learned trial Judge do not call for any

interference. Resultantly, in fleri, the appeal fails and is dismissed

accordingly. Impugned judgment and order dated 8.1.2008, passed

in Special Case No. 20 of 2005 by the learned Additional Sessions

Judge & Special Judge, Dhrangadhra, recording the acquittal is

confirmed. Bail bond, if any, shall stand cancelled. R&P, if received,

be transmitted back forthwith.

(A. C. JOSHI,J) 46 / J.N.W