Gujarat High Court
State Of Gujarat vs Haribhai Balubhai Karadiya (Vala) & ... on 19 January, 2017
Author: A.G.Uraizee
Bench: A.G.Uraizee
R/CR.A/69/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 69 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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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STATE OF GUJARAT....Appellant(s)
Versus
HARIBHAI BALUBHAI KARADIYA (VALA) & 2....Opponent(s)/Respondent(s)
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Appearance:
PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR DIPEN K DAVE, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 3
MR LAXMANSINH M ZALA, ADVOCATE for the Opponent(s)/Respondent(s)
No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 19/01/2017
ORAL JUDGMENT
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1. The State is in appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Code" for short) to question the legality and validity of the judgment and order of acquittal dated 15.10.2007 passed by learned Additional Sessions Judge and Presiding Officer, Special Judge (Atrocity), Fast Track Court No.4, Veraval Camp at Una in Atrocity Sessions Case No.17 of 2006, whereby and where under the respondent came to be acquitted of the offences punishable under Sections 323, 504, 506(2) read with Section 114 of the Indian Penal Code ("I.P. Code" for Short) and under Section 3(1)(x) of the Prevention of Scheduled Castes & Scheduled Tribes Atrocities Act, 1989 ("Atrocity Act"
for Short).
2. The prosecution story as unfolded during the trial is that on 02.02.2006, at about 19:00 hours, when the complainant viz., Devuben wife of Valjibhai Jethabhai had gone to the house of accused and explained them, the accused persons got excited and started abusing the husband of the complainant. Since the complaint intervened, the accused started beating her and also abused against their caste stating "dhedo totiyo"
and also threatened to him them and thus, committed an offence.
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R/CR.A/69/2008 JUDGMENT
3. After framing the charge, accused did not plead guilt and therefore, trial was proceeded against them. After considering evidence on record and after considering statement under Section 313 of Code of Criminal Procedure, the learned Judge was pleased to acquit the respondents-accused by giving benefits of doubt and hence this appeal.
4. The complaint was registered vide C.R. No.II-15/2006 with Kodinar Police Station for offences punishable under Section 323, 504, 506(2) read with Section 114 of the IPC and under Section 3(1)(x) of the Atrocity Act, 1989.
5. Upon the conclusion of investigation, prima-facia case was found against the respondent and therefore, charge sheet came to be filed against them in the Court of learned Additional Sessions Judge and Presiding Officer, Special Judge (Atrocity), Veraval Camp at Una. Since, the offences alleged against the respondents were exclusively triable by the Sessions Court, the learned Additional Sessions Judge and Presiding Officer, Special Judge (Atrocity) by order dated 15.10.2007 committed case to the court of Sessions under Section 209 of the Code. Upon committal the case came to be registered as Atrocity Sessions Case No.17 of 2006 in the Sessions Court Veraval Camp at Una.
6. Charges were framed and read over and explained to the Page 3 of 7 HC-NIC Page 3 of 7 Created On Sat Aug 12 16:42:10 IST 2017 R/CR.A/69/2008 JUDGMENT respondent. They pleaded not guilty and claimed to be tried in order to bring home the guilt to the respondent, the prosecution adduced oral and documentary evidence as under :
[A] ORAL EVIDENCE:-
1. Devuben w/o. Valjibhai (Complainant) Exh.54
2. Valjibhai Jethabhai Exh.62
3. Devabhai Pithabhai Exh.73
4. Tersingbhai varsingbhai pargi Exh.78
5. Karsanbhai Rambhai Parmar (Police Witness)Exh.84 [B] DOCUMENTARY EVIDENCE:-
1. Complaint Exh.55
2. Caste certificate of the complainant Devuben Valjibhai issued by Taluka Development Officer Exh.79
3. Investigation order to the Police Officer, Junagadh by Fax message Exh.80
4. Letter of P.S.I., Kodinar to Deputy Police Officer, veraval regarding investigation of offence Exh.81
5. Disability certificate of complainant Devuben (Exh. No. when cross examined) Exh.82
6. Wireless message of PSI, Kodinar to Deputy Police Officer, Veraval regarding investigation of offence Exh.85
7. Special Report Exh.86
8. True copy of the F.I.R. work, Kodinar Police Station C.R.No. Second 15/06 Exh.87
9. True copy of Station Diary Kodinar Police Station C.R.No. Second 15/06 Exh.88
10. Panchnama of place of offence Exh.74
11. Panchnama of physical condition of the accused Exh.75
7. The learned Trial Judge upon hearing the learned A.P.P. and learned advocate for the defense and after analyzing the oral and documentary evidence, record and findings that the Page 4 of 7 HC-NIC Page 4 of 7 Created On Sat Aug 12 16:42:10 IST 2017 R/CR.A/69/2008 JUDGMENT prosecution has failed to prove the case against the respondent beyond reasonable doubt and therefore, acquitted them under Section 235(1) of the Code, by his impugned judgment and order dated 15.10.2007.
8. The appellant - States being aggrieved and dissatisfied with the impugned judgment and order dated 15.10.2007 hence, has preferred this appeal.
9. I have heard Mr. K.P. Raval, learned A.P.P. for the State, Nobody is present for the respondent despite service of notice when the matter is called out.
10. The scope of the acquittal appeal under Section 378(1)(3) of the Code is limited. The Supreme Court in the case of Sadhu Saran Singh v/s. State of Uttar Pradesh, (2016) 4 SCC 357, have explained this court of acquittal appeal in paragraph 20 as under :
"20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Aug 12 16:42:10 IST 2017 R/CR.A/69/2008 JUDGMENT avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal in Sambasivan v. State of Kerala, (1998) 5 SCC 412 has held:
7.The principles with regard to the scope of the powers of the appellate Court in an appeal against acquittal, are well settled.
The powers of the appellate Court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate Court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate Court can interfere with the order of acquittal."
11. The complainant Devuben Valjibhai (PW-1) has not supported the prosecution case. The testimony of PW-2 Valjibhai Jethabhai who happens to be husband of the Page 6 of 7 HC-NIC Page 6 of 7 Created On Sat Aug 12 16:42:10 IST 2017 R/CR.A/69/2008 JUDGMENT complainant (PW-1) is contradictory to the evidence of the original complainant. The independent witnesses though available have not been examined. The learned Trial Judge has analysed the evidence in details and has recorded cogent findings to acquit the respondent.
12. I am therefore, of the view that the reasons and findings recorded by the learned Trial Judge to acquit the respondent cannot be said to be perverse or illegal. As a result, the impugned judgment of acquittal does not warrant any interference in this appeal.
13. For the foregoing reasons, the appeal fails and is hereby dismissed, judgment and order of acquittal dated 15.10.2007 recorded by the learned Fast Track Court, Veraval Camp at Una in Atrocity Sessions Case No.17 of 2006 is hereby confirmed.
14. R & P is ordered to be remitted to the trial Court to the forthwith.
(A.G.URAIZEE,J) PALLAVI Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Aug 12 16:42:10 IST 2017