Gujarat High Court
State vs Ramsing on 19 July, 2010
Author: A.M.Kapadia
Bench: A.M.Kapadia
Gujarat High Court Case Information System
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CR.MA/849/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 849 of 2010
In
CRIMINAL
APPEAL No. 176 of 2010
With
CRIMINAL
APPEAL No. 176 of 2010
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
RAMSING
JOTI SANGADA & 3 - Respondent(s)
=========================================================
Appearance
:
MR
LB DABHI, APP for Applicant(s) : 1,
None for Respondent(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 19/07/2010
ORAL
COMMON ORDER :
(Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) By means of filing this Application under Section 378 (1)(3) of the Code of Criminal Procedure ( the Cr. P C for short), the Applicant State of Gujarat has prayed to grant leave to file Criminal Appeal No. 176 of 2010, which is directed against the judgment and order dated 30/7/2009 rendered in Sessions Case No. 149 of 2007 by the learned Addl. Sessions Judge, Dahod, acquitting the Respondents accused ( the accused for short) for the offences punishable under Sections 436, 504 and 114 of the Indian Penal Code ( the Code for short ).
2. The prosecution case, as disclosed in the FIR and unfolded during trial was that the complainant Madiyabhai Phulabhai Katara lodged FIR against 4 respondents accused to the effect that on 4/11/2005 at about 11.00 p.m., the accused gave foul abuses to the complainant related to his sister and mother and threatened the complainant why the complainant allowed one Virsing Thavra Bhedi in his house. It is further the case of the prosecution that the accused started pelting stones at the house of the complainant and, therefore, the complainant had to take shelter behind his house. Ultimately, the accused set his house to fire and caused extensive damage to his house and his belongings.
2.1. Pursuant to said FIR, investigation was commenced. During the course of investigation statements of material witnesses were recorded. Panchnama of the scene of offence was prepared in presence of panchas. Certain articles were collected and were forwarded to the F.S.L. After the investigation was completed, the charge-sheet was filed in the Court of the Ld. Judicial Magistrate First Class, Zalod. Since the offence punishable under section 436 of the Code is exclusively triable by the Sessions Court, the Ld. Magistrate committed the case to the Sessions Court, Dahod, which was numbered as Sessions Case No. 149/2007 and the said case was made over to Ld. 2nd Addl. Sessions Judge, Dahod [for short 'the trial Court'] for trial.
3. The Ld. Trial Judge framed charge against the respondents accused for the offences alleged against them, to which they did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. The prosecution examined 7 witnesses and produced 7 documents as detailed in para 4 of the impugned judgment. After the prosecution concluded its oral evidence, Ld. Trial Judge recorded further statements of the respondents accused under section 313 of the Cr. PC and the accused in their further statements denied all the incriminating circumstances put to them by the Ld. Trial Judge and stated that they were falsely implicated in this case. After appreciating the evidence on record and the submissions made on behalf of both the sides, the trial Court, by virtue of the impugned judgment and order recorded acquittal of the respondents accused for the offences punishable under sections 436, 504 read with sec. 114 of the Code by giving them the benefit of doubt.
4. We have considered the submissions advanced by Mr. LB. Dabhi, Ld. APP for the applicant State and we have perused the impugned judgment and order and the set of evidence supplied by him during the course of his submissions. We have also considered the record and proceedings of Sessions Case No. 149/2007, which was called for vide order dated 30/6/2010. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case.
5. At the outset, considering the impugned judgment and order rendered by the trial Court, it clearly transpires that the trial Court examined and appreciated the evidence of the first informant PW 1 Madiyabhai Phulabhai Katara, examined at exh. 8. About the offence of setting his house to fire punishable under section 436 of the Code, while appreciating and scrutinizing his evidence, the Ld. Trial Judge came to the conclusion that as admitted by him, the first informant Madiyabhai did not see the actual commission of offence punishable under section 436 of the Code as according to his admission, at the time when his house was set to fire, he had gone behind his house. The trial Court further observed that as admitted by him, the alleged incident took place during mid-night and there was no electric light available either in the house or in the nearby vicinity to the house. The trial Court further came to the conclusion considering the evidence of the first informant that there was no animosity whatsoever between himself and any of the accused. Ultimately, reading the evidence of the first informant Madiyabhai in the context with his FIR, the trial Court came to the conclusion that there are material contradictions and omissions in his evidence, which go to the root of the prosecution case as his evidence was found to be full of exaggeration.
6. The trial Court also undertook the exercise as to how two witnesses who claimed themselves to be eye witnesses corroborate the evidence of first informant. The prosecution presented PW 4 Savsingbhai Khatrabhai Katara examined at exh. 14 as well as PW 5 Virsingbhai Thavrabhai examined at exh. 15 as eye witnesses. The trial Court, perusing the evidence of the aforesaid two witnesses, came to the conclusion that according to their evidence, they came near the house of the complainant only after hearing the noise of shouting. Under such circumstances, it is very clear that none of the witnesses, in true perspective can be said to be the eye witness of the entire episode. According to these witnesses, when they reached near the house of the complainant, the house was already set to fire. PW 5 Virsingbhai Thavrabhai in his evidence admitted that the accused had disputes with him. Moreover, the Ld. Trial Judge came to the conclusion that PW 4 Savsingbhai happens to be nephew of the complainant Madiyabhai and PW 5 Virsingbhai happens to be cousin brother of the complainant. As observed by the trial Court, the entire case centered round the evidence of the aforesaid three witnesses including the first informant Madiyabhai.
7. We have re-examined, re-appreciated and re-scrutinized the evidence of the prosecution witnesses examined by the trial Court and on overall view of the matter, according to us, the trial Court rightly came to the conclusion that the evidence adduced by the prosecution was shaky and untrustworthy. We are, therefore, of the considered opinion that the trial Court rightly granted benefit of doubt to the accused. According to us, the prosecution has not been able to bring home the charge levelled against the accused and the complicity of the accused for the commission of the offences is not established and there is no cogent and convincing evidence against the accused to connect them with the alleged crime.
8. In view of the unsatisfactory evidence led by the prosecution, we are of the considered opinion that no illegality or infirmity has been committed by the trial Court in acquitting the accused of the offences with which they were charged. We find ourselves in complete agreement with the ultimate conclusion and the resultant order of acquittal, as, in our view, no other conclusion was possible except the one reached by the trial Court.
9. This is an acquittal appeal. The principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the Trial Court have been very succinctly explained by the Supreme Court in the matter of AJIT SAVANT MAJAGAVI VS. STATE OF KARNATAKA, reported in AIR 1997 p.3255.
(a) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(b) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(c) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.
(d) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court.
(e) If the High Court, on a fresh scrutiny and reappraised of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(f) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court, especially in the witness box.
(g) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.
10. In ANOKH SINGH vs. STATE OF PUNJAB, reported in AIR 1992 SC p.598, Supreme Court has held that in an appeal against acquittal, the High Court should attach greater weight to appreciation of evidence by the Trial Judge who had the occasion to watch the demeanour of the witnesses.
11. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (See Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
12. On overall appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the trial Court for acquitting the accused. Suffice it to say that the trial Court has given cogent and convincing reasons for acquitting the accused and the learned A.P.P. has failed to dislodge the reasons given by the trial Court and convince this Court to take a view contrary to the one taken by the trial Court.
13. Seen in the above context, we do not find any valid reason or justifiable ground to interfere with the impugned judgment and order acquitting the accused of the offences with which they were charged.
14. For the foregoing reasons, the application fails and accordingly it is rejected. Resultantly, leave to appeal is refused, and as a consequence thereof, Criminal Appeal No. 176 of 2010 is dismissed.
(A.M.Kapadia,J) (J.C.Upadhyaya,J) * Pansala.
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