State Of Gujarat vs Gohil Mahendrasinh Ajitsinh
2023 Latest Caselaw 2069 Guj

    R/CR.A/396/2013                                   CAV JUDGMENT DATED: 06/03/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL APPEAL NO. 396 of 2013
                                       With
                         R/CRIMINAL APPEAL NO. 875 of 2013

FOR APPROVAL AND SIGNATURE:


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 ?

========================================================== STATE OF GUJARAT Versus GOHIL MAHENDRASINH AJITSINH & 7 other(s) ========================================================== APPEARANCE:

CRIMINAL APPEAL No.396 of 2013 Ms.Asmita Patel, learned APP for the State. Mr.Kishor Barot, learneed advocate for MR.Hardik A. Dave, learned advocate for the Accused.

CRIMINAL APPEAL No.875 of 2013 Mr.Prakash S. Pandya advocate for the complainant. Ms.Asmita Patel, learned APP for the State. RULE served to the accused.

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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 06/03/2023

CAV JUDGMENT

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1. Criminal Appeal No.396 of 2013 has been filed by the appellant - State of Gujarat and Criminal Appeal No.875 of 2013 has been filed by the appellant - original comoplainant challenging the judgement and order dated 14/12/2012 passed by the learned Special Judge and 2 nd Additional Sessions Judge, Bhavnagar in Special (Atrocity) Case No.44 of 2009 whereby the learned Judge has acquitted the accused / respondent Nos.1 to 8 from the offence punishable under sections 504, 506(2) and 114 of Indian Penal Code, under section 135 of Bombay Police Act and under section 3(1)(10) of the Prevention of Atrocities Act.

2. Brief case of the prosecution is that the complainant has alleged in the complaint that Accused No. 1 to 4 on 13/06/2009 were making a thorn boundary in the back side of the complainant house and complainant had asked them not to make that thorn boundary due to which Accused persons got angry and had ran with Dhariyu, Lakdi, Khuhadi to beat Complainant and had abused on caste and threatened him and complainant had gone inside the house than accused No. 5 to 8 had come and threatened the complainant and therefore on 29/06/2009 complaint is given by complainant against the Accused persons, for the aforesaid offences.

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3. Thereafter, the investigation was set in motion and the investigating officer recorded statements of witnesses, panchnama of the scene of offence, other panchnamas were prepared and completed other procedure and as there was sufficient against the accused, chargesheet was filed in the court of learned Judicial Magistrate, First Class. As the case was triable by the Sessions Court, the learned Magistrate having no jurisdiction to try the case, the case was committed to the Sessions Court and was numbered as Special Atrocity Case No.44 of 2009.

4. The learned Sessions Judge before whom the case was committed, framed the Charge. The accused denied the contents of the charge. As a result, trial was conducted by the Sessions Judge. Further Statement of the accused under section 313 of the Code of Criminal Procedure was recorded in which accused / respondent denied the charges and prayed for trial. Upon recording of the Further Statement of the accused, arguments were heard by the learned Sessions Judge and thereafter trial was resulted into acquittal of all the 8 accused from the charges levelled against them, as a result of which the present appeals are filed by the State of Gujarat and the complainant challenging the acquittal.

5. Ms.Asmita Patel, learned APP for the State in Criminal Appeal No.396 of 2013 and Mr.Prakash Pandya, learned

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advocate for the complainant in Criminal Appeal No.875 of 2013 have submitted that the judgement and order passed by the learned Sessions Judge is against the evidence on record and provision of law. The learned Special Judge has not appreciated and accepted the evidence which is corroborated by the version of the eye witness. The learned Special Judge has also not appreciated the evidence of the investigating officer in its true and correct perspective. It is further submitted that Sessions Judge has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. It is further submitted that the Special Judge has erred in acquitting the respondents - accused from the charges levelled against them. It is further submitted that the prosecution has proved that the respondent has committed the offence under sections 504, 506(2) and 114 of Indian Penal Code, under section 135 of Bombay Police Act and under section 3(1)(10) of the Prevention of Atrocities Act. It is further submitted that the Special Judge has acquitted the respondents / accused merely on some minor contradictions and omissions in the evidence of the witnesses. It is further submitted that the Special Judge has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. It is further submitted that the offence punishable under sections 504, 506(2) and 114 of Indian Penal Code, under section 135 of Bombay Police Act and under section 3(1)(10) of the Prevention of Atrocities

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Act, is made out against the respondents / accused, however, the same is not believed by the learned Sessions Judge. It is further submitted that though the prosecution witnesses have supported the case of the prosecution, the learned Special Judge has not believed their evidence and acquitted the respondents - accused erroneously. She has requested to allow the present appeal.

6. Mr.Kishor Barot, learneed advocate appearing on behalf of for Mr. Hardik A. Dave, learned advocate for the Accused has vehemently 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 respondent / accused beyond reasonable doubt and rightly acquitted the accused. He has 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

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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. 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 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".

9.1 Yet in another decision in Chaman Lal v. The State

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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 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

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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."

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. 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.

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(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 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;

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(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;

(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."

10. In aforesaid backdrop, the re-appreciation of the evidence on record is as under:-

11. That in the offence under section 3(1) (10) of the Prevention of Atrocities Act, there must be insult against the case in public by the accused. Herein the witness are the

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family members of complainant. In the cross examination of the complainant and witnesses, it is clear that the complainant had filed several other Atrocity complaints against many person and even the complainant had lost election against the respondent and there are all possibility that the complainant has filed false complaint keeping vengeance against the accused.

12. As per the case of the complainant incident took place on 13.06.2009 of which complaint is given on 29.06.2009. The complainant had not given any reason for delay in registering the complainant against the respondents. Threat causing no alarm would not constitute offence under section 504 and 506(2) of IPC. There must be alarm causing thereat.

13. That the place where it is alleged that the respondents were making thorn boundary does not belongs to the complainant it belongs to the respondent and respondent were tying their Cattle and for stopping respondents from tying the Cattle's and keeping grudge of the defeat in the election it appears that the complainant had lodged the FIR against the Respondents to fulfill his Ulterior Motives.

14. No weapons as alleged is recovered by the Police from the place of the incident. Considering the entire evidence on record, it appears that the complainant had falsely

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implicated the respondents to fulfill his ulterior motives more particularly when the complainant is habitual to file complaints under the Atrocity Act.

15. 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.

16. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-

"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :

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"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:

"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The

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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 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

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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 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

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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."

17. 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.

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18. 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 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

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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."

19. 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.

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20. In view of the above and for the reasons stated above, present Criminal Appeal deserve to be dismissed and is accordingly dismissed. The judgement and order dated 14/12/2012 passed by the learned Special Judge and 2 nd Additional Sessions Judge, Bhavnagar in Special (Atrocity) Case No.44 of 2009 acquitting the respondents accused is hereby confirmed. Bail Bond, if any, stands cancelled. Record and Proceedings be sent back immediately.

Sd/-

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