Gujarat High Court
State Of Gujarat vs Chandugiri Devgiri Goswami & ... on 30 January, 2017
Author: A.G.Uraizee
Bench: A.G.Uraizee
R/CR.A/70/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 70 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
CHANDUGIRI DEVGIRI GOSWAMI & 3....Opponent(s)/Respondent(s)
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Appearance:
MS. REETA CHANDARANA, ADDL. PUBLIC PROSECUTOR for the
Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 30/01/2017
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 the Learned Additional Sessions Judge and Presiding Officer, Special Judge, (Atrocity), Fast Track Court No.4, Veraval Camp at Una in Special Case No.8 of 2004, vide which the respondent came to be acquitted of the offences punishable under Sections 323, 325, 504 read with Section 114 of the Indian Penal Code ("I.P. Code" for Short) and under Section 3(1)(x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("Atrocity Act" for Short) read with Section 135 of the Bombay Police Act ("B.P. Act" for Short). The appellants-State being aggrieved by and dissatisfied with the impugned judgment and order dated 15.10.2007 hence, has preferred this appeal.
2. According to the prosecution case, when the complainant viz., Premjibhai Mepabhai Gohil had gone to the shop of Karshanbhai Lakhmanbhai Koli for purchasing bidi, the respondent-accused abused him and insulted him. Over and above, the accused came armed with deadly weapons like pipe, stick etc. and beaten the complainant Page 2 of 12 HC-NIC Page 2 of 12 Created On Sat Aug 12 08:28:54 IST 2017 R/CR.A/70/2008 JUDGMENT and thus, committed an offence.
3. Accordingly, offence being C.R.No.I121/2002 came to be registered with Una Police Station for the offence under Sections 323, 325, 504 read with Section 114 of the I. P. Code, under Section 3(1)(x) of the Atrocity Act and under Section 135 of the B.P. Act. Charge sheet was filed before the Learned Additional Chief Judicial Magistrate, Una. As the case was triable by the Sessions Court, under Section 209 of CR.P.C. the same was committed to Sessions Court.
4. On the basis of complaint, the investigation was embarked upon. The statements of various witnesses were recorded and the accused persons were arrested. On conclusion of the investigation, on the basis of the material collected against the respondents-accused, since the Investigating Officer found a prima-facia case against the respondent-accused, charge-sheet came to be filed before the Learned Additional Chief Judicial Magistrate, Una for the offence under Sections 323, 325, 504 read with Section 114 of the I.P. Code, under Section 3(1)(x) of the Atrocity Act and under Section 135 of the B.P. Act.
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R/CR.A/70/2008 JUDGMENT
5. Since the offence alleged against the respondents- accused was exclusively triable by the Court of Sessions, the Learned Chief Judicial Magistrate, Una committed the case to the Court of Sessions, Veraval under Section 209 of the Code of Criminal Procedure, which came to be registered as Atrocity Sessions Case No.8 of 2004.
6. On committal, the case was transferred and placed for trial before the Learned Additional Sessions Judge and Presiding Officer, Special Judge (Atrocity), Fast Track Court No.4, Veraval camp at Una, who had initially framed charge against the respondents-accused vide Exh.51 for the offence under Sections 323,325, 504 read with Section 114 of the I.P. Code, under Section 3(1)(x) of the Atrocity Act and under Section 135 of the B.P. Act. The plea of each accused vide Exhs.52 to 55 were recorded, wherein the respondents-accused pleaded not guilty to the charge and claimed to be tried.
7. In order to bring home the offence alleged against the respondent, the prosecution adduced oral and Page 4 of 12 HC-NIC Page 4 of 12 Created On Sat Aug 12 08:28:54 IST 2017 R/CR.A/70/2008 JUDGMENT documentary evidence as under :
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Sr. Details Exhibit No. 1 Varjangbhai Arshibhai (Panch Witness) 58 2 Karshanbhai Lakhamanbhai (Panch Witness) 60 3 Premjibhai Mepabhai (Complainant) 65 4 Jayantkumar Amrutlal Joshi (Police Witness) 67 5 Babubhai Hamirbhai Koli (Panch Witness) 71 6 Dr. Rameshbhai Narottambhai Nimavat 80 7 Bhimabhai Menasibhai 91 8 V.S. Sarvaiya (Police Witness) 94 9 Chopra Usmangani Mohammad (Investigating 95 Officer) Sr. Documentary Evidence Exhibit No. Number 1 Arrest as well as body position 59 panchnama of the accused 2 Complaint 66 3 Zerox copy of FIR 68 4 True copy of station diary 69 5 Yadi written by the P.S.O. Of Una to 70 Deputy Superintendent of Police 6 Panchnama of scene of offence 72 7 Treatment certificate of the complainant 81 8 O.P.D. Case papers of complainant 82 9 Caste certificate of the complainant 96 10 Caste certificate issued by the Talati- 97 cum Mantri 11 Notification 98 Page 6 of 12 HC-NIC Page 6 of 12 Created On Sat Aug 12 08:28:54 IST 2017 R/CR.A/70/2008 JUDGMENT
8. I have heard Ms. Reeta Chandarana, learned Additional Public Prosecutor for the appellant and Mr. Yogesh Kanade, learned advocate for the respondents.
9. As the case was triable by the Sessions Court, under Section 209 of CR.P.C. the same was committed to Sessions Court.
10. After recording of the evidence of the prosecution witnesses was over, the Court below explained to the respondents-accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statement under Section 313 of the Criminal Procedure Code. In their further statement, they denied the case of the prosecution in entirety. According to them, they have been roped in a false case. However, they have neither led any evidence nor did they examine any witness in support of their defence.
11. At the end of trial, on appreciation, evaluation, analysis and scrutiny of the evidence on record, the learned Additional Sessions Judge and Presiding Officer, Special Judge (Atrocity), Fast Track Court No.4, Veraval Page 7 of 12 HC-NIC Page 7 of 12 Created On Sat Aug 12 08:28:54 IST 2017 R/CR.A/70/2008 JUDGMENT camp at Una was pleased to acquit the respondents- accused under Sections 323, 325, 504 read with Section 114 of the I.P. Code, under Section 3(1)(x) of the Atrocity Act and under Section 135 of the B.P. Act holding inter- alia that the prosecution has failed to prove the charge beyond reasonable doubt.
12. 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 prosecution has failed to proved 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.
13. 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 Page 8 of 12 HC-NIC Page 8 of 12 Created On Sat Aug 12 08:28:54 IST 2017 R/CR.A/70/2008 JUDGMENT 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 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.""
14. This court will have to examine the evidence adduced by the prosecution and the evaluations of the Page 9 of 12 HC-NIC Page 9 of 12 Created On Sat Aug 12 08:28:54 IST 2017 R/CR.A/70/2008 JUDGMENT evidence done by the learned Trial Judge keeping in mind, the aforesaid proposition of law, as regards the scope of the acquittal appeal.
15. If the prevention of Section 3(1)(x) of the Atrocity Act is seen the basic and essential requirement is that the persons belonging to Scheduled Caste or Scheduled Tribe have to be humiliated within public view. Overall reading of the complaint as also the evidence of material witnesses does not reveal that the respondent had humiliated the complainant in presence of other members of the public and therefore, it cannot be said that the respondent had committed offence under Section 3(1)(x) of the Atrocity Act.
16. The perusal of the impugned judgment and order of acquittal makes it manifestly clear that the learned Special Judge has assigned cogent and convincing reasons to acquit the respondents and the view adopted by the learned Special Judge is plausible view which does not warrant any interference in this appeal.
17. Moreover, the evidence of the witnesses contains contradictions which, according to my opinion, go to the root of the prosecution story and therefore, it cannot be Page 10 of 12 HC-NIC Page 10 of 12 Created On Sat Aug 12 08:28:54 IST 2017 R/CR.A/70/2008 JUDGMENT said that the prosecution has proved the case against the respondents beyond reasonable doubt, for having committed offences punishable under Sections 323, 325, 504 and 114 of the I.P. Code and Section 135 of B.P. Act as well as Section 3(1) (x) of Atrocity Act.
18. Thus, to bring home the case against the respondents for having committed an offence under Section 3(1)(x) of the Atrocity Act, the prosecution has to prove that the accused persons had called the complainant and the witnesses if any, by names so as to humiliate them within public view. The evidence of the witnesses does not reveal that when the respondents had uttered the offending words in presence of other persons and thereby the complainant was humiliated within public view.
19. I am therefore of the opinion that the prosecution has also failed to bring home the charge of Section 3(1)
(ix) of the Atrocity Act against the respondents beyond reasonable doubt.
20. The view and reasons adopted by the learned Trial Court is plausible and reasonable which cannot be Page 11 of 12 HC-NIC Page 11 of 12 Created On Sat Aug 12 08:28:54 IST 2017 R/CR.A/70/2008 JUDGMENT substituted by another plausible and reasonable views of this court. The appeal therefore lacks merits.
21. For the foregoing reasons , the appeal fails and hereby dismissed.
22. 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.
23. 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 Special Case No.8 of 2004 is hereby confirmed.
24. R & P is ordered to be remitted to the trial Court to the forthwith.
(A.G.URAIZEE,J) PALLAVI Page 12 of 12 HC-NIC Page 12 of 12 Created On Sat Aug 12 08:28:54 IST 2017