Udabhai Nanabhai Bhoi (Mahera) vs State Of Gujarat
2022 Latest Caselaw 7768 Guj

     R/CR.A/1784/2022                               JUDGMENT DATED: 09/09/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/CRIMINAL APPEAL NO. 1784 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE S.H.VORA

and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

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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 ?

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                        UDABHAI NANABHAI BHOI (MAHERA)
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR. RADHESH Y VYAS(7060) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2,3,4,5,6
MS CHETNA SHAH APP for the Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE S.H.VORA
          and
          HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                                Date : 09/09/2022

                               ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE S.H.VORA)

Feeling aggrieved and dissatisfied with the judgment and

R/CR.A/1784/2022 JUDGMENT DATED: 09/09/2022

order dated 14/06/2019 passed in Sessions Case No.151 of 2014 by the learned 4th Additional Sessions Judge, Nadiad whereby the learned trial Court acquitted the respondents No.2 to 6-accused Nos.1 to 5 for the offences punishable under Sections 316, 307, 323, 504, 506(2) and 114 of IPC, the original complainant has preferred the captioned appeal under Section 372 of the Code of Criminal Procedure, 1973 ("the Code" for short). However, the learned trial Judge while acquitting the respondents No.2 to 6 - org. accused No.2 to 5 for the offence punishable under Section 324 of IPC was pleased to convict the respondent No.2-org. Accused No.1 for the said offence and sentenced him to undergo RI for three years with fine of Rs.2,000/-; in default, to undergo SI for two months.

2. Briefly stated; the case of the prosecution - org. complainant is that org. complainant was residing with his family members at Village Thasra and org. accused No.1 was also residing in the said nearby vicinity. That on 07/02/2014, all the accused persons arrived at the place of complainant having armed with deadly weapons like Dhariya and Sticks and started abusing by saying that the house was constructed on the road and encroachment was not removed. The complainant was alone at the home and therefore ran towards field for help; where accused chased and at that time the family members of the complainant tried to save him but the accused attacked on them and one of the victim viz., Manishaben Jayeshbhai Bhoi who was pregnant at the time of incident and though the accused were very well aware about her condition, they all attacked and gave fist and kick blows.

R/CR.A/1784/2022 JUDGMENT DATED: 09/09/2022

That said Manishaben alongwith other victims were given a medical treatment at Government Hospital at Thasra and on on 09/02/2014 the lady victim delivered a stillborn on account of the injuries she sustained which had caused miscarriage of her fetus. Thus, the complaint being I-CR No.25 of 2014 for the aforesaid offences came to be registered. The offence was investigated and charge-sheet came to be filed and in the Court of learned JMFC, Nadiad. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Nadiad as provided under section 209 of the Code.

3. In order to bring home the charge, the prosecution has examined 18 prosecution witnesses and have proved various documentary evidence as described in paragraph-5 of the impugned judgment and order.

4. We have heard learned Advocate Mr.Vyas appearing for the appellant -original complainant. It is the specific case of the prosecution that respondents-accused few of them were armed with deadly weapons attacked the victim side on account of dispute with regard to encroachment on the road. At the time of incident, the complainant was alone at his home and as accused were abusing, he ran for help; where accused chased him and when family members tried to save him, the accused also attacked on the lady victim-Manishaben who was pregnant at the time of incident and accused persons gave kick and fist blows on her stomach which resulted into delivery of stillborn baby and she sustained miscarriage of her fetus.

5. It appears that the learned trial Judge while acquitting the

R/CR.A/1784/2022 JUDGMENT DATED: 09/09/2022

respondents No.2 to 6 - org. accused No.2 to 5 for the offence punishable under Section 324 of IPC was pleased to convict the respondent No.2-org. Accused No.1 for the said offence and sentenced him afore-stated.

6. In order to appreciate the submissions made by learned Advocate for the appellant, we have extensively heard learned advocate Mr. Vyas for the appellant-org. complainant and have analyzed the entire evidence, more particularly, the evidence of PW 5 - Manishaben Jayeshbhai Bhoi (Exh.41) and PW 13 - Mrutunjaykumar Ramsharan Sharma - Medical Officer (Exh.55) and PW 14 - Chandrakant Rajabhai Makwana - Medical Officer (Exh.60). According to the medical evidence, including the deposition of the Doctor, it has come on record that Doctor who performed the delivery of the victim-Manishaben was not examined and further no any medical evidence with regard to the stillborn child is placed on record. The prosecution has failed to lead any evidence with respect to the serious allegations made against the respondents; inasmuch as; evidence in relation to said Manishaben sustained miscarriage of fetus on account of the injuries sustained by her in the nature of kick and fist blows inflicted by the accused. Practically, there is no evidence with regard to the allegations made and therefore therefore is nothing on record so as to infer that the stillborn child died on account of the injuries inflicted by the respondents-accused at the time of incident. Once the important and vital facts get disproved and not supported by any medical evidence, the learned trial Judge has rightly come to the conclusion recording acquittal of the respondents-accused.

R/CR.A/1784/2022 JUDGMENT DATED: 09/09/2022

7. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

8. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:

"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."

9. 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

R/CR.A/1784/2022 JUDGMENT DATED: 09/09/2022

(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.

10. 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 372 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.

11. In view of the above and for the reasons stated above, Criminal Appeal deserves to be dismissed and is accordingly dismissed.

(S.H.VORA, J)

(RAJENDRA M. SAREEN,J) sompura