Gujarat High Court
State Of Gujarat vs Prakashkumar Kanchanlal Shah on 7 September, 2022
Author: A. C. Joshi
Bench: Ashokkumar C. Joshi
R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 446 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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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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STATE OF GUJARAT
Versus
PRAKASHKUMAR KANCHANLAL SHAH & 1 other(s)
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR PARTHIV B SHAH(2678) for the Opponent(s)/Respondent(s) No. 2
RULE NOT RECD BACK for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 07/09/2022
ORAL JUDGMENT
1. The present Appeal is preferred by the Appellant - State of Gujarat under Section 378(1)(3) of the Criminal procedure Code, Page 1 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022 R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 1973, against the impugned judgment and order passed in Atrocity Case No. 32 of 2007 by the learned Additional Sessions Judge, 4 th Fast Track Court, Vadodara dated 1.11.2007, recording the acquittal of the Respondents / Original Accused Persons for the charges under Sections 324, 504, 427 and 114 of the Indian Penal Code and under Section 3(1)(10) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocities Act").
2. The brief facts of the prosecution case is that on 13.5.2002 in the afternoon when the complainant was present in his house, at that time, at about 3:00 pm, extra and empty wine bottles in a plastic bag dumping near his house and saw the accused persons outside his house. Thereafter, the complainant had asked the accused as to why they had thrown the plastic bags in front of his house and thereafter accused no.2 all of a sudden enraged and started to give abuses to the complainant and also gave knife blow below the left shoulder. Thereafter the wife of the complainant came there and saved him. Thereafter the accused persons ran away from the spot.
3. Upon such FIR being filed, investigation started and the Investigating Officer recorded statements of as many as 7 witnesses and produced number of documentary evidence, and after Page 2 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022 R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 completion of the investigation, Charge-sheet was filed against the accused persons for the offences in question. The case was committed to the Sessions Court and the learned trial Judge framed the Charge. Since the accused did not plead guilty, trial was proceeded against the accused. Vide impugned judgment and order dated 1.11.2007, the learned Sessions Judge acquitted the accused persons. Being aggrieved by the same, the State has preferred the present appeal.
4. Heard, learned APP Ms. Jirga Jhaveri for the appellant - State.
Learned Advocate Mr. Parthiv Shah appears and states that he has instructions to appear on behalf of both the Respondents / Original Accused and he will accordingly file his Vakalatnama on behalf of Respondent No.1. The Appeal was Admitted by this Court on 10.7.2008.
5. The learned Additional Public Prosecutor Mr. Jirga Jhaveri has mainly contended that the learned trial Judge has erred in holding that the prosecution has failed to prove its case beyond reasonable doubt. The learned APP submitted that the impugned judgment of the trial Court is based on presumptions and inferences, and thereby, it is against the facts and the evidence on record. The learned APP further submitted that the learned trial Judge has failed to appreciate the evidence on record in its true and proper Page 3 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022 R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 perspective and thereby, has erred in recording the acquittal of the respondents - original accused.
6. Learned APP Ms. Jirga Jhaveri referred to the judgment and order as well as the testimony of number of witnesses and also the documentary evidence. Learned APP has submitted that the judgment and order of acquittal passed by the learned Judge is contrary to law, evidence on record and principles of natural justice, hence the same deserves to be quashed and set aside by this Hon'ble Court. It is further contended that the judgment and order of acquittal passed by the Court of learned Judge is based on inference not warranted by facts of the case and also on presumption not permitted by law and that the learned Judge ought to have seen that there are direct and indirect evidence connecting Respondent with crime produced in this case. In spite of the fact, learned Judge without appreciating oral as well as documentary evidence on record of the case, straight way arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubt for the alleged offence under Sections 324, 504, 427 and 114 of the Indian Penal Code and under Section 3(1)(10) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
7. Learned APP has further submitted that the learned Sessions Page 4 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022 R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 Judge has failed to appreciate that prosecution has proved its case beyond reasonable doubt that the accused person, with intention to insult the complainant in public at large, has given filthy abuse to the complainant relating to his caste and beaten the complainant and that the learned Sessions Judge has committed error in holding that the incident has taken place in public and at the relevant point of time, independent witnesses were available, inspite of the fact no independent witnesses are examined by the prosecution, and merely interested witnesses have been examined.
8. Learned APP has therefore submitted that the learned Judge has committed error in giving undue weightage to minor omissions and contradictions in the evidence of prosecution witnesses and therefore the reasons given by the learned Judge while appreciating the evidence as well as while acquitting the accused are improper, perverse and bad in law. Therefore, it is submitted that the present Appeal may be allowed.
9. Per contra learned Advocate Mr. Parthiv B. Shah for the Respondents / Original Accused has heavily contended that in the present case, the material placed is not examined, and therefore, the learned Sessions Judge has rightly arrived at the acquittal of the Respondents / Original Accused Persons, and therefore, there is no requirement of interference by this Hon'ble Court.
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10. In view of the rival submissions made by the learned APP Ms. Jirga Jhaveri for the Appellant - State of Gujarat and learned Advocate Mr. Parthiv B. Shah for the Respondents / Original Accused, it is required to be considered whether the impugned judgment and order can be sustained or not.
11. Having heard the arguments advanced by the learned APP Ms. Jirga Jhaveri for the Appellant - State and learned Advocate Mr. Phartiv B. Shah for the Respondents / Accused Persons, before we advert to the merits of the case, it would be worthwhile to refer to the scope of this Appeal.
12. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.
Page 6 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 12.1 Further, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.
12.2 Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record.
That the duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.
13. In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, Page 7 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022 R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 (2019) 2 SCC 752, the Apex Court has observed that:
"The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".
14. Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:
"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC
189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:
12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment Page 8 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022 R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law.
Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
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14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under:
(SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of 'flourishes of language' to emphasise the Page 10 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022 R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, Page 11 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022 R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
(ii) The High Court's conclusions are contrary to evidence and documents on record;
(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
(v) This Court must always give proper weight and consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Page 12 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022 R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:
"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum- Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp.
Page 13 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636)." (emphasis supplied) 9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.
9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:
"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC
228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the Page 14 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022 R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233)
"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion.
Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."
31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court.
Page 15 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) "8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non- compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no Page 16 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022 R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."
31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the Page 17 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022 R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 809-
10) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well- established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
Page 18 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.
31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."
(emphasis supplied)."
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15. To substantiate the charges levelled against the Accused Persons, the prosecution has testified PW-1 Arjunbhai Chhaganbhai Patel at Exh.12. He appears to be the panch witness who has turned hostile and not supported the case of the prosecution.
15.1 The Prosecution has testified PW-2 Naginbhai Devabhai Vasawa at Exh.15. He appears to be original informant of the complaint which is tendered at Exh.16. He tried to depose in accordance with the contents of the complaint but in cross-
examination he has stated that the so-called knife was inflicted initially by Prakash but in the question-answer he replied that the knife was inflicted by Vania and thereafter in the end of the cross-
examination he said that it is not true that either Jayantibhai or Prakash has not inflicted knife. Therefore, it appears that there are some contradictions so longer as the infliction of the knife blow is concerned. Further, the learned Additional Sessions Judge, Vadodara has rightly acquitted the Accused Persons.
15.2 The Prosecution has testified PW-3 Kamlaben Naginbhai Vasava at Exh. 22. She appears to be the neighbour of the prime witness. In her cross-examination she has admitted that the Advocate has come to place for treatment.
15.3 The Prosecution has testified PW-4 Kalidas Dilipbhai Vyas at Page 20 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022 R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 Exh. 23. He was serving at Sardar Estate. He has stated that he attended the occurrence after hearing the noise.
15.4 The Prosecution has testified PW-5 Sudhaben Balchandra at Exh.24. She appears to be ASI at Nari Suraksha Cell, Vadodara City.
She has just registered the complaint.
15.5 The Prosecution has testified PW-6 Bhimsinh Sursinh Vasava at Exh.30. He appears to be Dy.S.P. on 13.5.2002. He has tendered charge sheet. He has admitted in the cross-examiantion that at the first instance, the complaint was registered on 15.5.2002. It has not come in his investigation that there were some scuffle took place between the complainant and the accused persons.
15.6 The Prosecution has testified PW-7 Girish Ambalal Patel at Exh.31. He has admitted in the cross-examination that the injuries were superficial. Upon all such premises, the learned Additional Sessions Judge, Vadodar on 1.11.2007 has arrived at the benefit of doubt to the accused persons.
16. Upon such premises, in the opinion of this Court, the learned Sessions Judge has rightly arrived at the acquittal of the accused persons.
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17. Thus, on re-appreciation and reevaluation of the oral as well as documentary evidence on record, as referred to herein above, it transpires that there are contradictions and omissions in the evidence of the prosecution witnesses. The learned trial Judge has observed that on considering the evidence on record there appears no trustworthy evidence on record to prove the charge levelled against the accused and the prosecution has failed to bring home the charges levelled against the accused inasmuch as the ingredients of the offence alleged are not fulfilled. This Court has gone through in detail the impugned judgment and order and found that the learned trial Judge has meticulously considered the depositions of all the witnesses and came to the conclusion that the prosecution has failed to prove the case against the accused beyond reasonable doubt and in the considered opinion of this Court, the learned trial Judge has rightly come to such a conclusion, which does not call for any interference at the hands of this Court.
18. In view of the aforesaid discussion and observations, in the considered opinion of this Court, the prosecution has failed to bring home the charge against accused for want of sufficient material.
The findings recorded by the learned trial Judge do not call for any interference. Resultantly, in fleri, the appeal fails and is dismissed accordingly. Impugned judgment and order dated 1.11.2007, passed in Atrocity Case No. 32 of 2007 by the learned Additional Page 22 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022 R/CR.A/446/2008 JUDGMENT DATED: 07/09/2022 Sessions Judge, 4th Fast Track Court, Vadodara, recording the acquittal of the Respondents / Accused Persons is confirmed. Bail bond, if any, shall stand cancelled. R&P, if received, be transmitted back forthwith.
(A. C. JOSHI,J) 96 / J.N.W Page 23 of 23 Downloaded on : Sun Dec 25 01:16:50 IST 2022