Gujarat High Court
The State Of Gujarat vs Rameshbhai Dhirubhai Ghodiya Patel ... on 18 April, 2017
Bench: S.R.Brahmbhatt, A.J. Shastri
R/CR.A/1794/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1794 of 2006
With
CRIMINAL REVISION APPLICATION NO. 388 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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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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THE STATE OF GUJARAT....Appellant
Versus
RAMESHBHAI DHIRUBHAI GHODIYA PATEL (ABET) &
2....Opponents/Respondents
======================================
Appearance:
MR. L. R. POOJARI, APP for the Appellant
MR. PRATIK KHUBCHANDANI, ADVOCATE for MR.DHAVAL D. VYAS, ADVOCATE for the
original Complainant
MR PREMAL R JOSHI, ADVOCATE for the Opponent/Respondent Nos. 2 3
======================================
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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R/CR.A/1794/2006 JUDGMENT
Date : 18/04/2017
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. The State has filed present appeal under Section 378 of Criminal Procedure Code against the judgment and order passed by the Ld. Additional Sessions Judge, F.T.C., Navsari in Special (Atrocity) Case no.34 of 1997.
2. The case of the prosecution is that one Ratanben Kanubhai Patel, who is the resident of Village Ghekti by asserting that on 16th June 1995 the accused no.1 had damaged the plants and flowerpots of complainant's house along with other assailants, which incident got settled before the Executive Magistrate. Keeping this circumstance in mind, the respondentsaccused after forming an unlawful assembly had given blows to the complainant Ratanben as well as her husband Kanubhai by way of stick and iron rods on the head and thereby the offence is committed. It has also been asserted in the complaint that the complainant and her husband are belonging to tribal community. The respondentsaccused have also committed an offence of Atrocity Act under Section 3 (1) (10) of the Act. The detailed version as to how incident in question has occurred is given by complainant Ratanben, which is reflecting on page no.227 of the paperbook compilation. In the substance of the allegation that on 16th June 1995, the lights were off in the residence of the complainant, resultantly after opening the door of the house, the complainant went down to call the soninlaw for the purpose of implanting fuse and at that moment the respondents - accused persons armed with deadly weapons came to the residence of the complainant and beaten Ratanben i.e. complainant and when the husband i.e. Kanubhai came along with son Nitinkumar and daughter Nimisha to intercept, one Rameshbhai Dhirubhai an accused armed with Page 2 of 22 HC-NIC Page 2 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT iron road has given the blow on the head of husband Kanubhai and on account of continuous bleeding, he fell down on the floor and along with the main accused, the other accused persons i.e. Manubhai, Satishbhai, Sureshbhai have also given stick blows on various parts of the body of Kanubhai and in this incident the husband of the complainant sustained serious injuries where upon he was taken to the Chikhli hospital for treatment and thereafter at Navsari Gohel Hospital for further treatment. On account of this incident, the complaint was filed before Chikhli Police Station being C.R.No.I160/95 for the offence punishable under Sections 323, 325, 452, 114 of Indian Penal Code along with Section 135 of the Bombay Police Act. Later on on account of the fact that during the course of investigation, the certificate about the complainant being a tribal community, charge of atrocity came to be added. This incident in question has resulted into filing of the complaint, which came to be investigated by the Investigating Officer PW4 Amratbhai Desai, who during the course of investigation collected the necessary material by recording statement of witnesses, drawn the panchnama of scene of offence and has carriedout every step in furtherance of investigation and having found material against the respondents, arrest of respondents came to be made by executing arrest panchnama. With respect to this, upon completion of investigation, the chargesheet came to be filed before the learned Judicial Magistrate. It appears from the record that in between as per the say of the complainant, since originally the complaint was not takenup, the complainant Ratanben had given an application before the Court at Navsari being Criminal Misc. Application no.402 of 2015 a private complaint came to be filed as the same was not initially takenup by the police. Pursuant to that, it appears from the record that in the said complaint by way of order dated 17th January 1998 the 'C' summary, which was filed by the investigating officer was approved. Resultantly, the complainant Ratanben K. Patel filed Criminal Misc. Application no.402 of 1995 before the learned Addl. Sessions Page 3 of 22 HC-NIC Page 3 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT Judge, Valsad at Navsari, who upon said application passed an order on 4th July 2001 whereby the application came to be allowed and the order passed by the learned Chief Judicial Magistrate, Chikhli approving 'C' summary against the respondentsaccused came to be quashed and it is in this background of the fact the further process appears to have been undergone in the present case. As stated earlier that chargesheet was filed by the investigating officer before the learned Chief Judicial Magistrate, Chikhli, which was registered as criminal case and since as the same was triable by the Court of Sessions in exercise of power under Section 209 of the Cr.P.C., by an order dated 30th June 1997 the case was committed to the Sessions Court, which was came for consideration before the learned Addl. Sessions Judge and Special Judge at Navsari. Upon committal of the case, the learned Addl. Sessions Judge vide order dated 10th December 1999 vide Exh.3 has framed the charge against the respondentaccused and subsequent thereof, the pleas have been recorded of the respondent accused in which they have denied the offence being committed. The said plea is at Exh.4 and 5 respectively. It appears from the record that original accused no.2 in between was not available for trial, who then after presented himself on 15th November 2003 and therefore, after recording his plea, the case was then takenup for further process. During the passage of time, the original accused no.1 Rameshbhai Dhirubhai Ghodiya Patel has expired and upon production of Death Certificate at Exh.60, the case was ordered to be abated qua him.
3. The record further indicates that after the said process of recording of plea, the prosecution has given an opportunity to lead the evidence which had been led before the Court in the form of oral as well as documentary evidence in the following form.
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: Oral Evidence :
Sr. Exhibit Name Remarks
No.
1 Exh.67 Janakbhai Nagindas Parekh Doctor
2 Exh.72 Kanubhai Ravjibhai Patel Witness
3 Exh.76 Ratanben Kanubhai Patel Complainant
4 Exh.80 Harendrasinh Kiritsinh Rana I.O.
5 Exh.84 Amrutbhai Ramabhai Desai I.O.
6 Exh.85 Dashrathbhai Naginbhai I.O.
: Documentary Evidence :
Sr. Exhibit Description
No.
1 Exh.65 Panchnama of scene of offence.
2 Exh.69 Certificate regarding Treatment of Kanubhai.
3 Exh.70 Xray and treatment Reports.
4 Exh.71 Primary Health Center, Chikhli Exchange Form.
5 Exh.73 Caste Certificate.
6 Exh.74 Caste Certificate.
7 Exh.77 Complaint.
8 Exh.78 Complaint before the Chikhli Court.
9 Exh.79 Panchnama of weapon production.
10 Exh.81 Certified copy of the complaint & order of the trial Court thereon.
11 Exh.83 Certified copy of the judgment given by the trial Court.
12 Exh.86 Report produced in trial Court at Exh.35.
4. After leading the evidence, closure purshis given at Exh.88 by the prosecution and vide Exh.87 some of the witnesses dropped for which purshis was given. After considering the evidence lead by the prosecution in Special (Atrocity) Case no.34 of 1997 and Special (Atrocity) Case no.7 of 2003, the learned Judge has passed the consolidated order whereby in exercise of jurisdiction under Section 235 of the Code of Criminal Procedure, in so far as Special (Atrocity) Case Page 5 of 22 HC-NIC Page 5 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT no.34 of 1997 is concerned, the respondent - accused no.2 Sureshbhai Ramanbhai Koli Patel and respondent no.3 Mangubhai Manubhai Koli Patel came to be acquitted for the offence punishable under Section 323, 325, 452 read with Section 114 of the I.P.C. as also under Section 135 of the Bombay Police Act. Similarly, in Special (Atrocity) Case No.7 of 2003, the respondentsaccused no.2, 4, 5, 8 and 9 also came to be acquitted for the charges for which they have been tried and it is this judgment and order, which was passed on 15th February 2006 is made a subject matter of this criminal appeal.
5. It appears from the record that State has filed Criminal Appeal no.1794 of 2006 feeling aggrieved by the decision delivered by the learned Addl. Sessions Judge in Special (Atrocity) Case no.34 of 1997 dated 15th February 2006 whereas the complainant appears to have filed Criminal Revision Application no.388 of 2009. Both these proceedings were clubbed together in the month of February 2009, which has after completion of procedure came for final disposal before this Court. In the aforesaid background, the Criminal Appeal No.1794 of 2006 first is takenup for hearing in which the State has been represented by the learned APP Shri L. R. Poojari.
6. Shri Poojari, learned APP for the State contended that there appears to be serious error committed by the learned Judge in passing the order of acquittal especially when the prosecution has led ample evidence on record to establish the guilt of respondentsaccused. Learned APP has contended that there are eye witnesses to the incident and from the testimony of injured eye witness, there appears to be a consistency in the case of the prosecution and this testimony could not have been overlooked while passing the judgment and order. He further contended that from the testimony of complainant Ratanben Kanubhai, which is in consistency with the testimony of Kanubhai, who was an Page 6 of 22 HC-NIC Page 6 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT injured eye witness, there is a complete corroboration to the case of the prosecution. Both these witnesses have established the role attributed by the respondents and have consistently deposed before the Court about the weapons, which were used by them and inflicted injuries and it has been contended that these testimony of injured witnesses are inconsonance with the medical evidence on record and therefore, he contended that when medical evidence and ocular evidence are in conformity with each other, there is hardly any material before the learned Judge to disbelieve the case of prosecution and therefore, there appears to be clear error on the part of the learned Judge in passing the order.
7. Shri Poojari, learned APP for the State further contended that as per the case of the complainant, the respondentsaccused armed with deadly weapons came to the house of the complainant and therefore, their intention to commit the crime was unequivocally established before the Hon'ble Court and therefore, when the evidence is sufficient enough to justify the guilt of accused, the reasons assigned by the learned Judge are not germen to law. In addition thereto, he further contended that the findings, which have been arrived at are not in conformity with the testimony of injured witness and therefore, also this being a perverse finding, the order requires to be interfered with. He further contended that the medical examination of the husband of the complainant has clearly revealed the serious injuries caused on various part of the body. More particularly, the injuries are reflecting on the head, which indicates that there was serious attempt to commit crime, which is established and therefore, when the medical opinion is clearly suggesting that these injuries, which have been caused are serious enough, which may cause even death, if not taken care of properly, such act of the respondents could not be given any leniency and therefore, in the background of this fact, when consistency as come on record in Page 7 of 22 HC-NIC Page 7 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT respect of the case of prosecution, the findings arrived at by the learned Judge are based on mere inferences, which cannot be said to be cogent enough and therefore, this error committed by the learned Judge required to be corrected by setting aside the order.
8. Shri Poojari, learned APP for the State contended that the entire material on record is establishing guilt of the respondentsaccused beyond reasonable doubt. The apex Court has sufficient power to set at naught the error committed by the learned Judge and impose appropriate punishment. Shri Poojari, learned APP for the State further stated that looking to the evidence on record, this is a fit case in which the acquittal order is required to be reversed and ultimately by contending this, he requested the Court to allow the present appeal by setting aside the impugned order.
9. To support the stand taken by learned APP, Shri Pratik Khubchandani, learned advocate appearing for Mr.Dhaval D. Vyas, learned advocate for the original complainant has contended that the testimony of eyewitnesses is clearly establishing the guilt of the respondentsaccused, the injured witnesses have specifically attributed the role of the respondentsaccused and have identified the weapon being used and therefore, when there is consistency amongst the witnesses, who deposed before the Court, there was hardly any justifiable reason to grant benefit while acquitting the respondents accused. It has been contended by Mr.Khubchandani, learned advocate for the original complainant that the motive was established on record, which clearly corroborates the version of the witnesses. It has been contended that there was past animosity with the accused, which has resulted into such attack by the respondents. It has been contended that presence of respondentsaccused with arms have been established by the prosecution and even from the reading of deposition of injured eye Page 8 of 22 HC-NIC Page 8 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT witnesses consistency is reflecting from chiefexamination to cross examination as well. Mr.Khubchandani, further contended that the medical evidence has also clearly opined in favour of prosecution and therefore, when such is the position prevailing on record, the order of acquittal is uncalled for. It has also been contended that right from the beginning, there was a resistance on the part of the police authority to accept the complaint and so much so that in a private complaint 'C' summary was approved, which later on by a justifiable reason set aside in criminal revision application and therefore, this incident also is substantially corroborates to facts of the evidence. It has also been revealed from the evidence that though the injured witness Kanubhai was unconscious still his police statement came to be recorded, which itself is suggesting that how and in what manner the grievance of the complainant was dealt with. It has been further contended that the testimony of injured witness is to be given predominance in view of the fact that it is this very witness, who can throw light exactly on the version of the prosecution. It has been further submitted that two eye witnesses are inconsistent, who have identified not only assailants i.e. the respondents - accused, but their merciless beating to Kanubhai was also clearly emerging and therefore, such accuracy is reflecting from the testimony of eye witnesses. It cannot be said in any way that benefit should be lean in favour of the respondentaccused. Mr.Khubchandani, learned advocate for the original complainant for the purpose of substantiating his contention with respect to the testimony of injured witness has relied upon the decision of Apex Court (2011) 2 ACR 1190 (Supreme Court) and by referring to paragraph nos.23 and 25 a contention is raised that this is a fit case in which such observations are required to be taken in aid to believe the case of prosecution. In addition thereof, one another decision is also relied upon, which is reported in 1998 ACR 519 (Supreme Court) and by referring to paragraph nos.9, 10 and 11 a specific contention has been raised by the learned Page 9 of 22 HC-NIC Page 9 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT advocate that a credibility of injured eye witness cannot be overlooked by evaluating and analyzing the evidence on record and by referring to this decision Mr.Khubchandani, learned advocate has stated that the findings which have been arrived at is based upon misinterpretation of evidence and can be said to be perverse, which requires interference of this Court in appellate jurisdiction. He submitted that appellate jurisdiction is vide enough to examine the evidence independently and to arrive at a different conclusion if there reflects perversity by contending this, he has supported the stand taken by the State and prayed the Court to set aside the impugned order of acquittal and pass suitable order imposing punishment upon the respondentsaccused.
10. To oppose the stand taken by the original complainant and the State as stated above, Mr.Premal Joshi, learned advocate for the respondentsaccused has vehemently contended that there are serious discrepancies in the version of the witnesses. There also appears to be no consistency in the ocular version as well as medical evidence. It has also been contended that there is a clear veracity about the role played by each of the accused. If the injured witnesses' testimony is to be considered, that is raising serious doubt about the case of the prosecution. He has further contended that there is a clear improvement in the testimony of complainant and medical evidence is also not inconformity with ocular evidence. While contending this Mr.Joshi, learned advocate further submitted that the reasons, which are assigned by the learned Judge cannot be said to be perverse as are based on close scrutiny of the testimony of material evidence. He contended specifically that after alleged occurrence of incident, the injured witness was taken initially to Chikhli Hospital and then to Gohel Hospital, Navsari, but at that point of time, while giving history no names are referred to any of the accused though closely knowing and further no role is attributed and therefore, in absence of any specific history given Page 10 of 22 HC-NIC Page 10 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT by the medical officer about the incident in question, it cannot be said that it is the respondents accused, who committed the crime. Shri Joshi, learned advocate further contended that the thorough version, which has been given by the complainant is unbelievable and no trustworthiness is reflecting. It has been stated in testimony of Ratanben reflecting at page no.227 that on account of attack Kanubhai was in pool of blood whereas this is to be decided in conformity with the other material in the form of panchnama of scene of offence, there found to be no blood stain on the floor of the place of incident. If there is a profuse bleeding, there might be some blood at the place, which is missing and therefore, it clearly transpires that the story is cookedup to arraign wrongly the respondentsaccused. It is further contended that had there been a clear use of weapons, the recovered weapons might have blood stains, which also completely missing. The recovered muddamal in the form of weapons are not having any blood stain and therefore, this is clearly dislodged the story putup by the prosecution. In addition thereto, Mr.Joshi, learned advocate contending that even at the Gohel Hospital where the injured Kanubhai was given medical treatment, in the history, which has been recorded there is no name of any of the accused nor any role is attributed, which is quite in contrast with the complaint, which has been lodged by the complainant. For substantiating this Mr.Joshi, learned advocate has drawn our attention to page no.183 of the paperbook compilation where the history, which has been recorded is indicating "beaten up by someone" and therefore, the credibility and trustworthiness is not reflecting from the very fact that though the respondentsaccused were well within the knowledge of complainant still no names are referred to. Had there been a genuine witness come forward to depose before the Court, then his/her conduct might have been trustworthy, which is completely lacking and therefore, there appears to be a serious suspicion in the testimony of witnesses and therefore, not reliable. Shri Joshi, learned advocate further contended Page 11 of 22 HC-NIC Page 11 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT that there was a past animosity on account of which false case is tried to be lodged against the respondentsaccused for the reasons best known to them and it has also been clarified in the further statement recorded under Section 313 of Criminal Procedure Code. On the contrary, the deceased accused Rameshbhai was beaten up by Kanubhai for which a complaint was lodged and to apply pressure, such kind of complaint is lodged and therefore, in view of this situation prevailing on record, there is hardly any material cogent enough to establish the guilt of the respondentsaccused. In addition thereto, he contended that initial version of this complainant Ratanben is that she was beaten by respondentsaccused, but there appears to be no medical evidence qua this, which has been stated and therefore, there is a serious doubt about the trustworthiness of this witness and therefore, the benefit of doubt be given to the respondentsaccused. Mr.Joshi, learned advocate further contended that by taking advantage of the complainant being tribal, even an attempt is made to arraign the respondents - accused in commission of atrocity offence and therefore, this is a serious attempt, which could not have been ignored by the learned Addl. Sessions Judge and after considering this, since the benefit has been granted to the respondentsaccused is just and proper. To substantiate this contention of benefit of doubt a reference is made by Mr.Joshi, learned advocate of a case reported in 2014 (5) GLR 4198 and by referring to paragraph no.10 of the said decision, he submitted that here in the case on hand no names given in the history where the injured taken for medical treatment and therefore similar benefit is also given to the respondents accused as well. He further contended that so far as burden of proof is concerned, it is a legal duty to be performed by the prosecution, which in the present case has been miserably not taken care of and for that purpose Mr.Joshi, learned advocate is relying upon the decision of apex Court in the case of Khaleel Ahmed Vs. State of Karnataka reported in 2015 (16) SCC 350 and by taking us to the observations contained in Page 12 of 22 HC-NIC Page 12 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT para22 of the said judgment he requested to grant benefit to the respondentsaccused, which has rightly been given by the learned Addl. Sessions Judge.
11. To summarize the contentions, Shri Premal Joshi, learned advocate submitted that there is a serious discrepancy about the names, which have been given by the complainant and the role, which has been attributed against the respondentsaccused. A further fact that no history was given before the medical officer is also clinching issue which rightly has been taken care of by the learned Addl. Sessions Judge. In furtherance of this, it has been brought to our notice that though there is a clear assertion that Kanubhai Patel, the injured witness was in profuse bleeding, the panchnama is reflecting no blood stain. About the use of weapons, there is a serious discrepancy and despite the fact that complainant and the injured witness are knowing the respondents accused closely, still not referred their names at the initial stage of a case in question and therefore, by referring to all these things, Mr.Joshi, learned advocate contended specifically that these are the major discrepancies and cannot be said to be minor discrepancies and therefore, benefit of doubt, which has been given is rightly given by the learned Addl. Sessions Judge. He by referring to reasons, which are assigned by the learned Addl. Sessions Judge has clearly contended that this is a fit case in which the order of acquittal is required to be confirmed.
12. Mr.Joshi, learned advocate to substantiate his contention has relied upon the decision delivered by Apex Court in case of (2016) 10 SCC 220 indicating about the scope of acquittal appeal and the interference thereof as also relied upon the decision delivered by this Court as referred to above and by relying upon the said decisions, Mr.Joshi, learned advocate has ultimately contended that this is not a fit Page 13 of 22 HC-NIC Page 13 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT case in which interference is warranted in respectful submission and therefore, by referring to the testimony of relevant witnesses a request is made to dismiss the appeal filed by the State as also the revision application filed by the private complainant.
13. Having heard the learned advocates appearing for the respective sides and having gone through the reasons, which are assigned by the learned trial Judge and upon comprehensive analysis of the evidence independent of this, the following circumstances are not possible to be ignored, which are worth to be taken care of to arrive at ultimate conclusion, hence they are reproduced as under :
14. From the record it appears that the prosecution has made an attempt to prove the case by examining their injured witnesses. However, from the reading of the said injured witnesses' testimony, it appears that the learned Addl. Sessions Judge has not inspired any confidence by the testimony of the injured witnesses in view of series of discrepancies. It appears from the testimony of Kanubhai Patel PW2 at Ehx.72, it has comeout that there was a previous animosity, which has resulted into filing of the chapter case and there was also alleged that Rameshbhai, the accused who was inflicted a penalty of Rs.10,000/ by GEB, which on account of the grievances raised by the husband and wife i.e. Ratanben and Kanubhai. Now, this motive is tried to be developed by examining the witnesses, but it has not been substantiated by any cogent material. On the contrary, the learned Judge has found, which is also reflecting from the evidence on record that role which has been described with respective weapons against the respondentsaccused is also not inconformity. One set of evidence is reflecting from the testimony that injured, upon sustaining injuries on the head was in pool of blood and from that is reflecting from page no.209, a testimony of Ratanben K. Patel PW3. As against this, if the fact is to be examined Page 14 of 22 HC-NIC Page 14 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT from the documentary evidence on record, the prosecution has prepared a scene of panchnama, which reflects no blood stains on the floor and therefore, the testimony of the witnesses is reflecting quite in contrast to the documentary evidence and therefore, it appears that having no cogent corroboration to the case of prosecution, the learned Addl. Sessions Judge appears to have granted benefit in favour of the respondentsaccused. Yet another circumstance, which is reflecting from the record is that deceased was initially taken to the Gohel Hospital and other hospital where the history, which has been given is not reflecting any names or role of any of the accused persons. On perusal of the testimony in conformity with the deposition of medical officer it is quite reflecting that what has been alleged against the respondents is not the fact recorded at the initial stage itself. The history, which has been reflected from the testimony of Janakbhai Nagindas Parekh PW1 a Chief Medical Officer at Gohel Hospital has indicated that some group of persons have attacked on account of which serious injuries have been suffered. Now, had there been a position where the accused persons are known very much to the sight of the complainant, there was no reason to keep behind the names of the assailants on account of which the injured sustained serious injuries. In furtherance of this, the evidence is reflecting a certificate dated 24th June 1995 in which also it has been mentioned that injury caused by group of few persons and therefore, there appears to be something, which is concealed and the said fact has also been substantiated by the form, which has been filled in by Medical Officer, Chikhli Primary Health Center, Valsad. The said form, which is placed at Exh.71 reflecting on page no.183 is also indicating in the column of history that the alleged beating has taken place by someone by around 12:00 O'clock at night and therefore, again there is no reference of the name of any of the accused persons.
15. The record if further be looked into even independently Page 15 of 22 HC-NIC Page 15 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT from that which has been examined by the learned Addl. Sessions Judge then also there is improbability in the version of very complainant, who stated that out of the incident in question, she was beatenup by the respondents - accused, but if the entire record is to be seen, there is no medical evidence qua her injuries anywhere reflecting and therefore, it appears that the entire story has been putup by the prosecution against the respondentsaccused is not getting corroborated so cogently, which can permit the Court to convict a person.
16. Yet another circumstance, which is prevailing from the record is about the discrepancies of weapon and the use thereof, there appears to be no consistency from the testimony of complainant Ratanben as well as Kanubhai about the use of the weapon, which has been armed and held by the respondentsaccused and therefore, even on that aspect there appears to be a clear variance, which appears to be rightly examined and analyzed by the Court below.
17. It has further been observed from the testimony of Ratanben Kanubhai Patel PW3 examined at Exh.76 wherein it has been stated by her that the names have been specifically given of the respondentsaccused by her before the doctor as well as at the police station, but if the version and testimony of medical officer is to be seen as stated above, no names are figuring at all. Not only this, variance as generated in suspicion in case of prosecution, the further fact that there was a profuse bleeding stated by Ratanben in her testimony, but if the seen of panchnama is to be examined, the said plea is falsified. In addition thereto, further even the weapons, which have been recovered, they have not bearing any blood stains, which can tallied with the blood group of injured and therefore, even there appears to be no consistency in ocular evidence as well as peculiar material coupled with the medical opinion as well and therefore, when such serious contrast is reflecting Page 16 of 22 HC-NIC Page 16 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT from the record, the view, which has been taken by the trial Court that the case has not been proved beyond reasonable doubt appears to be a sound proposition which in absence of any other distinguishable feature cannot be set at naught. If the record further is to be dealt with there was a reference about the earlier grant of 'C' summary despite the fact the same having been quashed. No further incriminating material has comeout from the case of prosecution, which can generate any further confidence and therefore, overall comprehensive analysis of the evidence on record is not inspiring any confidence by virtue of which it can be said that the case has been established by the prosecution beyond reasonable doubt. The discrepancies, with respect to not giving names, discrepancies with respect to not found any blood stains over the scene of offence, nor blood stain clothes having been given by the complainant and though they are knowing each other very well since long not giving the name in the history has raised serious suspicion in the case of prosecution. So much so, there appears to be major discrepancies found by the learned Addl. Sessions Judge with respect to the specific role, specific use of weapons by the accused persons and in the absence of any cogent material, which can corroborate the story of prosecution, it cannot be said that any error is committed by the learned Addl. Sessions Judge in coming to the ultimate conclusion by granting benefit of doubt to the respondentsaccused.
18. In the backdrop of the aforesaid situation, now if the proceedings are to be looked into, it has reflected that while dealing with the appeal at the initial stage on 19th January 2009 the Division Bench of this Court has found that on perusal of papers there were two Sessions Cases one numbered as Special (Atrocity) Case No.34 of 1997 and another Special (Atrocity) Case No.7 of 2003, wherein by common order with respect to the accused nos.2 and 3, the acquittal is recorded in Special (Atrocity) Case No.34 of 1997 for the offence punishable Page 17 of 22 HC-NIC Page 17 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT under Sections 323, 325, 452 read with Section 114 of Indian Penal Code and under Section 3 (1) (2) of the Prevention of Atrocity Act, read further with Section 135 of the Bombay Police Act, whereas so far as case of original accused nos.2, 4, 5, 8 and 9 are concerned acquittal order recorded in Special (Atrocity) Case No.7 of 2003 for the offence punishable under Section 120B, 147, 148, 149, 307, 338, 395, 504, 506 (2) read with Section 114 of the Indian Penal Code and under Section 3 (1) (11) and 4 of the Prevention of Atrocity Act. Now, the record further indicates that so far as the said judgment and order in common is concerned, only one appeal is filed by the State against an order, which relates to Special (Atrocity) Case no.34 of 1997 and therefore, the Court has to consider the testimony and material, which is a part of Special (Atrocity) Case no.34 of 1997. The learned judge has categorically found that the incident in question occurred in the house and not in public place. However, from the evidence as a whole, no specific role is established of each of the accused as to who inflicted blow with which weapon and on the other issues as well there appears to be a clear contrast from the material witness of prosecution viz. from the testimony of Ratanben. The learned Judge appears to have examined the medical certificates, which are substantiated by independent testimony of medical officers and further the fact of filing of 'C' summary on earlier occasion is also taken note on which thereafter, no improvement cogent enough is made by the prosecution, which can lead to only one conclusion that of the guilt of the respondentsaccused. On the contrary, material, which has led in the Special (Atrocity) Case no.34 of 1997 has not inspired any confidence nor has reflected the conclusion about prosecution having established the case beyond reasonable doubt and therefore, in the absence of all these circumstances, which are very much part of the record, the view, which has been taken by the learned Trial Judge is not possible to be treated as perverse or suffers from any legal infirmity.
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R/CR.A/1794/2006 JUDGMENT
19. Now, to deal with the conclusion arrived at by the learned Trial Judge as even independent comprehensive analysis of the evidence on record, we cannot forget the law laid down by the apex Court in case of Mahavir Singh V/s. State of Madhya Pradesh, reported in (2016) 10 Supreme Court Cases 220, in which law on the issue of exercise appellate jurisdiction while dealing with the order of acquittal has been enunciated and the same is reflecting in paragraph nos.12 to 14. Since, we have taken assistance of the said proposition of law laid down in the aforesaid case, we deem it proper to reproduce relevant extract of the said decision as under : "12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a fullfledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.
13. It is no doubt true that there cannot be any straitjacket formula as to under what circumstances the appellate court can interfere with the order of acquittal, but the same depends on the facts and Page 19 of 22 HC-NIC Page 19 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT circumstances of each case. In the case on hand, we have to examine the rationale behind the conclusion of the High Court in convicting the accused and the compelling reasons to deviate from the order of acquittal passed by the trial court.
14. On a thorough analysis of the judgment impugned, it is evident that the High Court has not recorded any reasons for partly setting aside the judgment of the trial court which has acquitted all the accused persons from the same set of facts before it. The High Court while has set aside the acquittal order of the trial court has observed that the trial court has based its reasoning on guesswork. We find it that even the High Court has committed the same mistake and basing on the same facts and guesswork has arrived at the conclusion that the appellant is guilty."
20. Keeping this position in mind, if the further authorities, which are cited by the complainant, though the proposition of law are not in controversy even remotely, but the fact remains that there is also a proposition of law on the issue of precedent that if slight change in the fact is reflecting, the same would make a word of difference in applying principle of law and therefore, keeping this proposition in mind if the facts of the case, which have been cited are to be analyzed, it transpires that the facts are altogether different, which are prevailing on the case on hand and therefore, we are unable to be persuaded from the aforesaid decisions, the same are relied upon, which are reported in 2011 2 ACR 1190 SC and another judgment reported in 1998 ACR, 519 (SC) now therefore, keeping these principles in mind also we are unable Page 20 of 22 HC-NIC Page 20 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT to appreciate the contention raised by the learned counsel for the complainant.
21. To place reliance in the process of assisting Public Prosecutor and ultimately to the Court, in rejoinder, much reliance is also placed by the learned counsel for the respondents accused, which is reported in 2015 (5) GLR 4198 in which upon analysis of facts of the said particular case, the learned Judge has opined in paragraph no.10, the testimony of PW2 Hasmukhbhai in that case, who learnt through that the deceased, who was accused and inflicted injuries with knife and PW3 and 4 also eye witnesses that before doctor, at the time of giving history of assailants, they would not have said the doctor that assault was by someone and therefore, PW2 of that case and two other eye witnesses knew as to who were the assailants then, it was expected of them to disclose the names while giving history and by taking note of said circumstance, the Court concerned had disbelieved the case of prosecution, which all the more is supporting the ultimate conclusion stated hereinbefore and therefore, by no stretch of imagination it can be so safely observed that the order passed by the learned Trial Judge is suffering from any infirmity or even reflecting any perversity, which has resulted into miscarriage of justice. Now, these factors are not available on record, which ordinarily would permit us to arrive at a different conclusion on the basis of some material and therefore, looking to the peripheral limit of jurisdiction of this Court, we are of the considered opinion that no case is made out, which can permit us to dislodge the finding arrived at by the learned Trial Judge and accordingly we find that appeal filed by the State is not reflecting any merit and the same accordingly deserves to be dismissed and consequently the criminal revision application, which has been filed also becomes insignificant and the same is also having no merit in view of aforesaid position of record and therefore, no case is madeout by the complainant in the said Page 21 of 22 HC-NIC Page 21 of 22 Created On Wed Aug 16 02:15:50 IST 2017 R/CR.A/1794/2006 JUDGMENT criminal revision application as well and therefore, by considering this set of circumstance, keeping in view the law laid down by the apex Court in case of exercise of jurisdiction, we are unable to agree with the proposition laid down by the prosecution that case has been established beyond reasonable doubt. In fact, there appears to be no legal infirmity, no perversity, which can said to have caused any miscarriage of justice and therefore, it cannot be said in any way that the hyper technicality should be allowed and order of acquittal with respect to the incident of the year 1995 is to be reopened and this being not permissible, the order in question requires no interference and accordingly by confirming the said judgment and order of the learned Addl. Sessions Judge, we find no merit in the appeal filed by the State as well as criminal revision application filed by the private complainant, the same deserves to be dismissed.
22. In the result, the present Appeal filed by the State as well the Criminal Revision Application filed by the private complainant are dismissed. The judgment and order, dated 15th February 2006 passed in Special (Atrocity) Case No.34 of 1997 and Special (Atrocity) Case No.7 of 2003 by the learned Additional Sessions Judge, 2nd F.T.C., Navsari is hereby confirmed. Bail bonds, if any shall stand discharged. Record and Proceedings be sent back to the trial Court concerned, forthwith.
(S.R.BRAHMBHATT, J.) (A.J. SHASTRI, J.) Rathod...
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