Gujarat High Court
Udayvirsing Brahmadattsing Bhadoriya vs State Of Gujarat on 24 March, 2022
Author: S.H.Vora
Bench: S.H.Vora
R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13479 of 2021
In R/CRIMINAL APPEAL NO. 1056 of 2021
With
R/CRIMINAL APPEAL NO. 1056 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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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UDAYVIRSING BRAHMADATTSING BHADORIYA
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR KRUNAL G PATEL(8525) for the Applicant(s) No. 1
for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 24/03/2022
ORAL JUDGMENT
Page 1 of 18
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R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 (PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 06.01.2020 passed by the learned City Civil, & Sessions Judge, Ahmedabad in Sessions Case No.362 of 2018 whereby the learned trial Court was pleased to release respondent No.2-Jigneshkumar Vashrambhai Parmar (Original Accused No.4) for the offences punishable under Sections 307, 452, 323, 120(b), 294(b) and 114 of the Indian Penal Code, 1860, under Section 25(1b) a of the Arms Act and under Section 135(1) of the Gujarat Prohibition Act, the appellant - Udayvirsing Brahmadattsing Bhadoriya (Original Complainant) has preferred this appeal to grant leave to appeal as provided under Section 378 (4) of the Code of Criminal Procedure, 1973 ("the Code" for short) inter alia challenging the judgment and order of acquittal in favour of the respondent No.2 - original accused No.4.
2. Brief facts of the case are as under:
2.1 As per the complaint, which is filed on 19.11.2017 by the complainant, who is originally residence of village Gatirampur, Ta.
Banda, District-Agra and presently residing at Ankur Society, Saijpur Bogha, Ahmedabad. He is running his gun shop in the name of "Uday Gun House" at Uday Diamond Complex near Thakkar Nagar Char Rasta and was selling the arms. Normally, he attends office between 9 a.m. and 4 p.m. in view of his business. Since the complainant is the president of Hindi Bhasha Samaj, he also does some social work instead of doing officer work.
Page 2 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 On 18.11.2017 about 5:00 p.m., he was gone near the Kodiyar Temple after closing his shop to attend the tribute of Martyrs and thereafter, he returned back to his residence at about 10:30 p.m. and thereafter, in about late night at about 2:00 a.m., one viz., Sandeepsing Nursinhbhai Kushwah has called him on his cellular phone and asked him that he wanted to meet the complainant. Therefore, the complainant has asked him that for what purpose, you want to meet me. At that point of time, Sandeepsing Nursinhbhai Kushwah told him that since his mother is paralyzed and there is some dispute between his brothers, therefore, he has requested him mediation between him. Therefore, the complainant has asked him to come to my office at 10.30 a.m. tomorrow. Thereafter, there are certain miss-calls on his cellular from Sandeepsing Nursinhbhai Kushwah. On 19.11.2017 in the morning at about 10:30 a.m., the complainant has gone to his office. At that point of time, accused No.1-Sandeep Kushwah has called on his phone twice but he didn't picked up the phone and thereafter, he called the Sandeepsing Nursinhbhai Kushwah and asked him to come to his office. At about 3:15 p.m., when the complainant was doing his officer work, at that point of time Sandeep Kushwah along with two other persons has come to the office of the complainant and asked his office assistant- Maheshbhai to serve the water. During the discussion, it is found that the other two accused persons, who accompanied Sandeep, were sitting in front of him viz., Navrojkhan @ Rizwan and Kanu Chawda and thereafter, Sandeep has asked him that I want to go to toilet and after returning from toilet, he has come to the complainant by taking his blessing and then, he had shown Tamancha from his pocket and Page 3 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022 R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 by drawing Tamancha towards the complainant, Sandeep has told that "You have disturbed my life" and started abusing the complainant. Therefore, the complainant has tried to snatch Tamancha. At that point of time, the other co-accused persons viz., Kanubhai Chawda and Navrojkhan @ Rizwan, who were sitting near the complainant, caught hold the complaint. During that time, Sandeep has taken another Tamancha from his pocket and has fired one round from Tamancha, which passed near the right ear of the complainant. At that point of time, watchman of the office-Thakur Prashad as well as the office person-Maheshbhai has come to rescue the complainant and at that point of time, accused No.1-Sandeep Kushwaha was caught on the spot and Kanu Chawda and Navroj Khan had run away from the spot of the incident. Accordingly, he has filed the complaint against Sandeep Kushwaha and two other persons viz., Kanu Chawda and Navrojkhan @ Rizwan. Thereafter, the name of the present Respondent No.2, who is impleaded as accused No.4, is Jigneshkumar Vashrambhai Parmar and whose name come out from the statement of office person viz., Maheshbhai recorded by the police. Therefore, he was also impleaded as an accomplice. Therefore, the complaint is registered at Police Station Nikol bearing C.R.-I No. 215 dated 19.11.2017 under Sections 307, 452, 323, 120(b), 294(b) and 114 of the Indian Penal Code, 1860 and under Section 25(1b) a of the Arms Act, 1959 and under Section 135(1) of the Gujarat Prohibition Act. Thereafter, charge-sheet is also filed pursuant to the complaint.
Page 4 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 2.2 In pursuance of the complaint lodged by the complainant, the
investigating agency recorded the statements of the witnesses, collected the relevant documentary evidence in the form of medical evidence as Panchnama and other relevant evidences for the purpose of proving the offence. After collecting material evidence against the respondents-accused, charge-sheet came to be filed, as the learned City Civil, & Sessions Judge, Ahmedabad in view of the Exh.9 application, the trial is proceeded against the accused Nos.1, 3 & 4 and it was directed that the accused No.2 has not appeared in the supplementary charge-sheet, which is required to be filed by the investigating officer. Accordingly, trial is proceeded against the accused Nos.1, 3 & 4 by the trial Court.
2.3 Upon committal of the case to the learned Session Court, Nadiad, the learned Session Judge has framed the charge at Exh.10 against the respondents-accused for the aforesaid offence and has recorded plea of accused No.1-Sandeep at Exh.11 and accused No.3- Rizwan Hameed Khan Pathan at Exh.12 and accused No.4-the present respondent No.2- Jigneshkumar Vashrambhai Parmar and as the said accused persons pleaded not guilt and claimed to be tried.
2.4 In order to bring home charge, the prosecution has examined 24 witnesses and also produced various documentary evidence before the trial Court, which is mention in para 5 like; Panchnama and F.S.L. report etc. Page 5 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022 R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 2.5 In conclusion of evidence on the part of prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondents accused so as to obtain his explanation/answer as provided under Section 313 of the Code. In the further statement, the respondent No.2(original accused No.4) has denied all incriminating circumstances appearing against him as false and further stated that he is innocent and false case has been filed against him.
2.6 After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge has convicted accused Nos.1 and 3 under the provisions of I.P.C. as well as Arms Act. The respondent No.2 (original accused No.4) is acquitted from the offences punishable under Sections 307, 452, 323, 120(b), 294(b) and 114 of the Indian Penal Code, 1860 I.P.C., by giving benefit of doubt to accused No.4 and the learned trial Court further found that the accused No.4 for which offences he was tried, the prosecution has failed to prove the case against the original accused No.4 beyond reasonable doubt. Therefore, he is required to be acquitted beyond reasonable doubt.
3.1 Learned advocate Mr. Krunal G. Patel for the appellant has submitted that the role of original accused No.4 is clearly established as he was come with all the accused persons and it can be inferred from the deposition of office assistant-Maheshbhai Chauhan, who is examined at Exh.82 that respondent No.2 (original accused No.4 ) had come with all these accused and was standing outside the office premises with an intention to watch the outside activities and if Page 6 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022 R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 anyone would come inside the premise then he can warn all accused persons or he can retain that person from entering into the premises. That can be inferred as he was just standing outside the office premises. Moreover, the CCTV footage is also establishing his presence at the outside the office premises. Thereafter, when the trial Court has convicted accused Nos.1 and 3 in the trial, then there is no reason for the trial Court to take different view by acquitting the accused No.4, who is also part of the premier conspiracy and has also sharing common intention. Therefore, he prayed that the impugned judgment and order passed by the trial Court, of acquitting the accused No.4, is erroneous and illegal, which is required to be interfered with by exercising the powers under Section 378(4) or Section 372 of the Code of Criminal Procedure, 1973.
4. Learned APP Ms. C.M. Shah for the State has supported the case of the complainant.
5.1 We have heard learned advocate Mr. Krunal G. Patel for the appellant - Udayvirsing Brahmadattsing Bhadoriya (original complainant). We have also hear learned advocate Ms. C.M. Shah and have minutely examined the documentary as well as oral evidence provided to us by the appellant during the course of hearing. We have also perused the record and proceedings of the trial Court.
5.2 On re-appreciation of entire evidence, we found that the role of the respondent No.2 - Jigneshkumar Vashrambhai Parmar is, as per the case of prosecution, to the extent that said Jigneshkumar Page 7 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022 R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 alongwith three accused Sandeep Kushwaha, Kanu Chawda and Rizwan Pathan came to the place of the complainant and Sandeep Kushwaha, Kanu Chawda and Rizwan Pathan went inside the office and respondent No.2 - Jigneshkumar Vashrambhai Parmar was waiting outside the office of the complainant. It was came to knowledge as office attendant - Maheshbhai when inquired from the watchmen- Thakur Prashad about the presence who was standing outside the office at that point of time, he came to know on inquiry that his name is Jigneshkumar Vashrambhai Parmar who are waiting outside the office premises. Therefore, he was also implicated in the said offence as an accomplice.
5.2 If we peruse the deposition of the relevant witnesses, we found from the deposition of Maheshbhai, who is examined at Ex.84 that these four persons has came to the office of the complainant where said Maheshbhai is serving as officer assistant. When, these four persons, who are named in the FIR filed by the complainant, have come to premises of the complainant and at that point of time, only three has gone inside the office and fourth one was waiting outside the office premises. As on the inquiry made by Thakur Prashad, when they came in the premises of the complainant viz., Sandeep Kushwaha, Kanu Chawda and Navrojkhan @ Rizwan Pathan & Jigneshkumar Vashrambhai Parmar and accordingly, these three persons except Jignesh entered into premises and have tried to attack on the complainant with the fire arms and thereafter, the appellant- original complainant has received some injuries and one of the accused-Sandeep Kushwaha caught red handed and Jignesh and Page 8 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022 R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 other co-accused persons run away. Though, in the cross- examination, witness Maheshbhai has categorically stated that the respondent No.2-Jignesh was just standing outside the office and no active participation or role was attributed by him. Further, he has admitted that there is no TI Parade is held. Therefore, he has only identified the said Jigensh in the Court only. Thereafter, if we peruse the deposition of the complainant - Udayvirsing Brahmadattsing Bhadoriya, who has also deposed on the line of FIR filed by him and has supported the case to that extent and he has also given the version of positive involvement of accused Nos.1 to 3 in the scene of offence but he is not giving any evidence about the role of accused No.4-the present respondent No.2. Further, he has deposed that there was no TI Parade held by the police but in the CCTV footage, the accused Nos.1 to 3 were found inside the office premises and he has also given this version in support of this version of CCTV footage but no active participation of accused No.4 is found.
5.3 Then, if we peruse evidence of other witnesses viz., Devendrasinh Jagjitsinh Tomar, who is examined at Exh.52, Rakeshbhai Dalelsinh Sakarwar, who is examined at Exh.58, are the punch witnesses but nothing is found from the evidence against original accused No.4. The other witnesses, who are also examined i.e. Nilesh Rameshbhai Yadav at Exh.33, Dharmehdrasinh Manisinh Rajput at Exh.36 and Vijaysinh Ramshankar Rajpur at Exh.47, are also punch witnesses but nothing is found from their evidence the role of accused No.4 in crime in question.
Page 9 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 The prosecution has also examined Mukesh Kanubhai Rana at Exh.60, who is servicing at FSL but he is only supporting about use of fire arms and firing. Where, no role of original accused No.4 can be attributed in the said incident. The prosecution has also examined Dr. Roopkumar Manilal Agarwal at Exh.62, who has supported the injuries and Dr. Dharmendra Govindlal Shah who is examined at Exh.70, who is also serving as officer-computer forensic department, Gandhinagar, has also supported the CCTV footage recovered by the prosecution at the place of incident but nothing found against the accused No.4, by which accused No.4 can be connected in the commission of crime, which is committed by accused Nos.1 to 3 as per the case of the prosecution. The other witness viz., Puransinh @ Pappu Bhadoria at Ex.86, Bankim Chandrakantbhai Bhoot at Exh.87, Vimal Singh Ramnaresh Singh Bhadoria at Exh.88, Shyamsinh Humkamsinh Chauhan at Ex.92 have also been examined either as neighbour of the complainant or as photographer, who has taken photographs at the scene of offence but no visper about the involvement of the accused No.4 in the crime in question, is found from the evidence of the above witness. Prosecution has also examined the witness viz., Rameshbhai Nandlal Patel at Exh.101, who has taken the complainant to the hospital, has also not supported the case of the prosecution and as the IO of Narendrakumar Nanjibhai Parghi, who is examined at Exh.138, is also not giving any specific role to the original accused No.4, by which the active participation of accused No.4 can be establishing in the crime in question.
Page 10 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 Therefore, the trial Court is found that there is no active participation of accused No.4 in commission of crime in question and benefit of doubt should be given to accused No.4 and accordingly, accused No.4 is acquitted.
5.4 Moreover, we have noticed that watchman-Thakur Prashad has inquired all the accused at the office of the complainant and has also standing outside the office premises at the time of commission of the offence, who can depose any involvement of the accused No.4 in better manner, was not examined by the prosecution. This is also fatal to the case of prosecution regarding any active participation of accused No.4 in the commission of crime in question.
5.5 We have also noticed that at the time of commission of offence when accused No.1-Sandeep has fired from his Tamancha towards complainant, there is scuffle between complainant and accused, Jigneshkumar Vashrambhai Parmar who was just waiting outside the premises has started running down and other two co- accused persons have also fled away from the scene of offence but the fact remains that if Jigneshkumar Vashrambhai Parmar has any knowledge about the offence or have any directed involvement in the commission of the said offence then it can always be by way of either keeping the vehicle ready to fled away or by obstructing the entry of any other person form entering inside office premises. It is not case of even prosecution that the said Jignesh has played any active role by keeping vehicle ready or has restrained anyone from entering when other accused persons were in the officer premises.
Page 11 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 It is also found that no evidence for hetching criminal conspiracy or common sharing is produced by the prosecution by which it can be established that the accused No.4 was also involved in criminal conspiracy. Therefore, the prosecution has failed to prove its case against respondent No.2 and the trial Court has rightly found that there is no believable and reliability reason found against accused No.4.
5.6 Moreover, if we look at the decision of Hon'ble Apex Court in Criminal Appeal No.288 of 2022 in the case of Krishna Murthy vs. State of Karnataka dated 16.02.2022, where the Hon'ble Apex Court has discussed the scope of Section 34 of Indian Penal Code, 1860 which is required to be considered here also. More particular, para 18 and 19 are important for ready reference, which can be considered as a guiding principle for deciding the involvement of respondent 2(original accused No.4) about the charges for which he is tried, which is as under:
"18. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co- perpetrators, which means that there should be community of purpose and common design or pre-arranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be pre-arranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object Page 12 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022 R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 and purpose behind the occurrence or the attack etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. We must remember that Section 34 IPC comes into operation against the co- perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co- participants. Further, the expression/term "criminal act" in Section 34 IPC refers to the physical act, which has been done by the co- perpetrators/participants as distinct from the effect, result or consequence. In other words, expression "criminal act" referred to in Section 34 IPC is different from "offence". For example, if A and B strike Lathi at X, the criminal act is of striking lathis, whereas the offence committed may be of murder, culpable homicide or simple or grievous injuries. The expression "common intention" should also not be confused with "intention" or "mens rea" as an essential ingredient of several offences under the IPC. Intention may be an ingredient of an offence and this is a personal matter. For some offences, mental intention is not a requirement but knowledge is sufficient and constitutes necessary mens rea. Section 34 IPC can be invoked for the said offence also [refer Afrahim Sheikh and Ors. (supra)]. Common intention is common design or common intent, which is akin to motive or object. It is the reason or purpose behind doing of all acts by the individual participant forming the criminal act. In some cases, intention, which is ingredient of the offence, may be identical with the common intention of the co-perpetrators, but this is not mandatory.
19. Section 34 IPC also uses the expression "act in furtherance of common intention". Therefore, in each case when Section 34 is invoked, it is necessary to examine whether the criminal offence charged was done in furtherance of the common intention of the participator. If the criminal offence is distinctly remote and unconnected with the common intention, Section 34 would not be applicable. However, if the criminal offence done or performed was attributable or was primarily connected or was a known or reasonably possible outcome of the preconcert/contemporaneous engagement or a manifestation of the mutual consent for carrying out common purpose, it will fall within the scope and ambit of the act done in furtherance of common intention. Thus, the word "furtherance" propounds a wide scope but should not be expanded beyond the intent and purpose of the statute. Russell on Crime, (10th edition page 557), while examining the word "furtherance" had stated that it refers to "the action of helping forward" and "it indicates some kind of aid or assistance producing an effect in the future" and that "any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony." An act which is extraneous to the Page 13 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022 R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 common intention or is done in opposition to it and is not required to be done at all for carrying out the common intention, cannot be said to be in furtherance of common intention [refer judgment of R.P. Sethi J. in Suresh (supra)]."
Accordingly, we found that the prosecution has failed to establish any criminal factum of conspiracy or common sharing amongst the accused persons, at least for accused No.4. Therefore, the learned trial Court has rightly acquitted the accused persons and we found that no perversity in the findings of the trial Court, while acquitting the accused No.4 by giving benefit of doubt.
5.7 Under the circumstances, the learned trial Judge has rightly acquitted the respondent accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal.
6. It is pertinent to note that the prosecution is required to prove the intention or knowledge of the accused persons, however, it is necessary that the prosecution is required to prove the intention or knowledge of the accused person and it is not necessary that injury capable of causing death should have been inflicted by the accused persons. What is material to attract offense under section 307 of the IPC is the intention or knowledge with which all the acts are done irrespective of its results. In order to attract the offence under section 307 of IPC, we have minutely examined oral evidence and all the prosecution witnesses, we found that nothing is disclosed with regard to intention or knowledge so as to constitute that there is anything on the part of the respondent No.2 - accused No.4 to Page 14 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022 R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 commit act or attempt to commit murder. In the present case the prosecution has failed to discharge its duty to prove its case beyond reasonable doubt and the Trial Court has rightly acquitted the accused person by giving benefit of doubt as the case is not proved beyond reasonable doubt.
7. In view of above and on our own analysis and re-appreciation of the evidence, we do not find any infirmity or compelling reasons to interfere with the order of acquittal recorded by the trial Court. We have also perused the judgment and findings given by the trial Court and find that the same are in accordance with law.
8. 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.
9. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:
Page 15 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 "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."
10. 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.
11. In the very recent judgment reported in 2021 (15) SCALE 184 in the case of Mohan @ Srinivas @ Seena @ Tailor Seena V/s. State of Karnataka, the hon'ble Apex Court has observed the scope of section 378 of the Code in Para : 20 to 22 as under :-
Page 16 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022R/CR.MA/13479/2021 JUDGMENT DATED: 24/03/2022 "20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial Court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial Court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial Court decides a case on its own merits despite its sensitivity.
22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark."
12. 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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13. In view of the above and for the reasons stated above, present Criminal Misc. Application No.13479 of 2022 for leave to appeal fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, captioned Criminal Appeal No.495 of 2022 also deserves to be dismissed and is accordingly dismissed.
(S.H.VORA, J) (SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 18 of 18 Downloaded on : Mon Mar 28 21:15:49 IST 2022