Gujarat High Court
State Of Gujarat vs Mangadbhai Parbatbhai ... on 6 May, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
R/CR.A/2225/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2225 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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STATE OF GUJARAT....Appellant(s)
Versus
MANGADBHAI PARBATBHAI HARIJAN....Opponent(s)/Respondent(s)
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Appearance:
MS. MONALI BHATT, APP for the Appellant(s) No. 1
MR BHUSHAN B OZA, ADVOCATE for the Opponent(s)/Respondent(s)
No. 1
MR I I MUNSHI, ADVOCATE with MS RIZVANA V BUKHARI,
ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 06/05/2014
ORAL JUDGMENT
Page 1 of 7
R/CR.A/2225/2004 JUDGMENT 1. The present Criminal Appeal under Section 378 (1) (3) of the
Code of Criminal Procedure is directed against the impugned judgment and order passed in Sessions Case No.35 of 2003 by the learned Assistant Sessions Judge, Gondal dated 23.07.2004 recording the acquittal of the accused for the offences under Section 333, 504 and 186 of Indian Penal Code.
2. The facts of the present case briefly summarized are as follow:
That the complainant is the teacher in the primary school where the son of the accused was studying. The complainant has scolded the son of the accused for his studies, which was not liked by the accused and therefore, during the school he came and abused the complainant. The accused is stated to have been threaten the complainant that he should not beat any body's child and he also assaulted the complainant with the wood resulting in to the injury of the fracture on the left hand little finger. Therefore, the complaint was led by the complainant being FIR I CR. No.52 of 1999 with the Bhayavadar Police Station for obstructing the public servant in discharging his duty and other offences. On the basis of the complaint given by the complainant, the investigation was made and chargesheet came to be filed for the alleged offences. Initially, the charges for offences punishable under Section 325 and 405 of the Indian Penal Code, however, the prosecutor had made an application at Exh.21 for addition of the charge for the offences under Section 333 of the Indian Penal Code and therefore the case was committed to the Court of Sessions, Gondal.
3. The Court below proceed with the trial and on appreciation of the material and evidence and after hearing learned APP as well as the learned advocate for the defence, the learned Assistant Page 2 of 7 R/CR.A/2225/2004 JUDGMENT Session Judge, Gondal as stated above recorded the acquittal of the accused.
It is this judgment and order, which has been assailed by the the appellant State on the grounds stated in the present appeal.
4. Heard learned APP Ms. Monali Bhatt for the applicantState and learned Advocate Shri I. I. Munshi for the respondent original accused.
5. Learned APP Ms. Monali Bhatt referred to the testimony of the witnesses and the complainant, which is produced at Exh.8. She also referred to the application given by the public prosecutor for addition of the charge for offences under Section 333 of the Indian Penal Code. Learned APP Ms. Bhatt referred to the testimony of the complainant P.W. 2 at Exh. 8 and other witnesses P.W.3 at Exh.10 as well as P.W.4 at Exh.11. She submitted that there are eyewitnesses to the incident and they have corroborated to support the testimony of the witnesses. She pointedly referred to the testimony of the complainant at Exh.8 and submitted that she has specifically stated about the conduct of the respondentaccused and the names of the other teachers are mentioned, which have been examined and they have supported and corroborated the testimony which has not been considered. Learned APP Ms. Bhatt submitted that the Court below has attached unnecessary importance to the compromise purshish at Exh.41 and 43 before the Trial Court. She has also submitted that the testimony of the complainant before the Trial Court is considered for the injury. She has submitted that in the facts of the case, when prima facie on the basis of material and evidence, the charge for the offence under Section 333 of the Indian Penal Code has been added, the Court below could not Page 3 of 7 R/CR.A/2225/2004 JUDGMENT have proceeded setting aside the testimony of the witnesses including the complainant. She pointedly referred to the medical certificate at Exh.18 and submitted that it is clearly mentioned that he was having fracture of little finger, which establishes the injury. She also referred to the testimony of the Doctor P.W. 9 at Exh. 17 to support her submission about the injury. She has, therefore, submitted that as the Court below has failed to consider the relevant material and evidence, while appreciating the evidence has committed error in recording the acquittal. She, therefore, submitted that the present appeal may be allowed.
6. Per contra, learned Advocate Shri I. I. Munshi for the respondent original accused referred to the impugned judgment and order and the reasons recorded for arriving at the finding and conclusion and submitted that the testimony of the complainant and other witnesses, who are stated to be eyewitnesses, have been considered. He has referred to the testimony of the two eye witnesses at Exh.11 and 12 and submitted that they have stated that there was scuffle between the complainant and the accused. Similarly, there were discrepancies in the evidence, as they have stated that it was outside the school premises, whereas the complaint refers to the just outside the school compound. He also submitted that the complainant himself has not remained consistent in his testimony and has stated that immediately after that he had gone to health centre at Bhayavadar and thereafter he was referred to the government hospital at Junagadh. However, the complainant had gone to private Doctor and had a bandage by the bonesetter, who has been examined at Exh.13. This witness in his testimony has stated that he has never treated the complainant and he has not gone to him at all. There is delay in lodging the complaint. Learned Advocate Shri Munshi further submitted that thus there are discrepancies in the manner in Page 4 of 7 R/CR.A/2225/2004 JUDGMENT which the incident has occurred and regarding the place of the incident and also the versions stated by the complainant and the other witnesses. He has further referred to the testimony of Doctor Keshavji Naranji Kodinariya at Exh.17 and submitted that in the crossexamination he has admitted that the complaint had not disclosed about any history for the injury. He had referred the complainant to the orthopedic surgeon. He has also submitted that the medical certificate would suggest about the injury but there is no evidence to establish the fact that it was caused by the accused. He submitted that in fact, if the testimony of the complainant before the court below at the time of the compromise is considered, he has totally different version.
7. Learned Advocate Shri Munshi therefore submitted that in acquittal appeals, the Appellate Court would be slow to disturb the findings and conclusion arrived at by the Court below. He submitted that if the view taken by the Court below is reasonable and possible view and the same may not be disturbed merely because the other view is possible. He submitted that the scope of acquittal appeals is required to be considered and unless it can be said to be perverse, the same may not be disturbed merely because the other view is also possible.
8. In view of these rival submissions, it is required to be considered whether the present appeal can be entertained and whether the impugned judgment and order can be sustained or not.
9. From the discussion with regard to appreciation of evidence and the specific testimony of the witnesses including the complainant, the findings recorded, cannot be said to be erroneous. As it is evident from the discussion regarding appreciation of evidence, the injured complainant was treated by Page 5 of 7 R/CR.A/2225/2004 JUDGMENT the Doctor at the health centre and was referred to the Orthopedic Surgeon/ hospital at Junagadh. The testimony of the Doctor Shri Keshavji Kodinariya at Exh.17, has stated that he thought it was a fracture of the little finger. Further, he has also stated that he has not treated the patient and has referred to the orthopedic surgeon. He has not stated about the injury having been caused by the accused. Similarly, for the offences under Section 333 causing injury to the public servant and obstructing from discharging his duty, there is no evidence. The witnesses, who have been examined, have stated about the manner of the incident, but there are discrepancies with regard to even the place of the incident. Admittedly, the complainant has not got himself examined at the Junagadh hospital regarding his injury and he is said to have gone to the bonesetter. The bonesetter in his testimony at Exh.13 has stated that he has not treated the complainant. Therefore, having regard to the testimony of the complainant as well as the testimony of the other eyewitnesses, who are also the teachers present and examined at Exh.10, 11 and 12, have different versions. One has stated about scuffle between the complainant and accused. Similarly, the incident is outside the compound. The panchnama at Exh.20 also refers to the same place. Therefore, on appreciation of this evidence, the findings and conclusion arrived at by the Court below cannot be said to be erroneous as the view taken is reasonable and possible, it does not call for any interference.
10.The Hon'ble Apex Court in catena of judicial pronouncements has laid down broad guidelines with regard to approach in such acquittal appeals and has reiterated that merely because the other view is possible, it is not sufficient to disturb the findings and conclusion recorded by the Court below on appreciation of evidence. In other words, if the view taken by the Court below is Page 6 of 7 R/CR.A/2225/2004 JUDGMENT reasonable and possible on the basis of the appreciation of evidence, it does not require any interference in the appeal. The broad guidelines laid down by the Hon'ble Apex Court including the observations made in a judgment in the case of Chandrappa and others V. State of Karnataka reported in (2007) 4 SCC 415, as well as in a subsequent judgment of the Hon'ble Apex Court in the case of Murugesan & Ors. Vs. State through Inspector of Police reported in AIR 2013 SC 274, wherein it has been observed as under:
"The reversal of the acquittal could have been made by High Court only if the conclusions recorded by the learned trial Court did not reflect a possible view. The use of the expression "possible view" is conscious and not without good reasons. The said expression is in contradistinction to expressions such as "erroneous view" or "wrong view".
A "possible view" denotes an which can exist or be formed irrespective of the correctness or otherwise of such an opinion. .......................................................................... So long as the view taken by the trial Court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial Court cannot be interdicted and that of the High Court supplanted over and above the view of the trial Court."
11.Therefore, in light of the aforesaid discussion, the present appeal cannot be entertained and deserves to be dismissed and accordingly stands dismissed.
(RAJESH H.SHUKLA, J.) Tuvar Page 7 of 7