Gujarat High Court
State Of Gujarat vs Meriya Moti Gamar & on 29 April, 2013
Author: M.R. Shah
Bench: M.R. Shah
STATE OF GUJARAT....Applicant(s)V/SMERIYA MOTI GAMAR R/CR.MA/16722/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 16722 of 2012 In CRIMINAL APPEAL NO. 1842 of 2012 With CRIMINAL APPEAL NO. 1842 of 2012 ============================================= STATE OF GUJARAT....Applicant(s) Versus MERIYA MOTI GAMAR & 4....Respondent(s) ============================================= Appearance: MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the Applicant(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA Date : 29/04/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] Present Criminal Miscellaneous Application under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC ) along with the criminal appeal has been preferred by the applicant State of Gujarat for Leave to Appeal against the impugned judgment and order of acquittal dated 27.08.2012 passed by the learned Additional Sessions Judge, Sabarkantha, Camp at Idar in Sessions Case No.116 of 2010 acquitting the respondents herein original accused for the offences punishable under Section 395 of the Indian Penal Code, 1860 (hereinafter referred to as IPC ) and Section 135 of the Bombay Police Act.
[2.0] We have heard Ms. C.M. Shah, learned APP appearing on behalf of the applicant State of Gujarat at length and perused the impugned judgment and order of acquittal in detail and gone through the entire evidence on record received from the learned trial Court so as to satisfy whether there is any merits in the Appeal and whether Leave to Appeal is required to be granted or not as, as such we have re-appreciated the entire evidence on record. Ms. C.M. Shah, learned APP has taken us to the entire evidence, more particularly, the evidence relied upon by the prosecution and we have considered the same in detail.
[3.0] That the case on behalf of the prosecution which culminated into trial was that on 25.06.2010 at about 9 pm, complainant and his family members took the meal and thereafter they were sleeping in front of his room. According to the prosecution case, at about 4 am, one dog was barking in his field and accordingly, complainant and his wife wake up and saw in light of the room that 7 persons were standing in the field of the complainant, who told the complainant in Adivasi language to tie his dog, otherwise they cause death of the complainant and thrown stones and sticks towards dog and therefore, dog had hidden itself below the cot. The accused persons came near the cot. Out of 7 persons, 4 persons were having dhariya in their hands and 3 persons were having sticks in their hands. All the accused persons told the complainant to hand over whatever the complainant and his wife were having and gave one stick blow. At the relevant time the complainant replied that he has nothing, however, the accused persons thrown light and taken out Nokia made mobile valued at Rs.600 and cash of Rs.1000/- from his pocket and also taken out chuni valued at Rs.500/-, silver earrings valued at Rs.250/- and silver chhada (bangle) valued at Rs.1000/- from the custody of his wife therefore, the complainant called the owner of the land and made him aware about the incident and thereafter, complainant along with other persons named in the complaint gone for search of the accused persons and during the search, respondents herein were found on canal, who were caught by village people. According to the prosecution case, respondents herein were the accused, residents of village Suvari, District Udaipur. Therefore, it was alleged that the accused persons have committed the offence under Section 395 of the IPC and Section 135 of the Bombay Police Act. An FIR was lodged against the accused persons with the Jadar Police Station being CR No.I-29/2010 for the offences punishable under Section 395 of the IPC. After conclusion of the investigation, the Investigating Officer submitted the charge-sheet against the accused in the Court of learned JMFC, Idar. As the case was exclusively triable by the Court of Sessions, the learned JMFC, Idar committed the case to the Sessions Court, Sabarkantha, which was transferred to Court of learned Additional Sessions Judge, Sabarkantha, Himatnagar, Camp at Idar which was numbered as Sessions Case No.116 of 2010. That the learned Sessions Court framed the charge against the accused persons at Exh.3 for the offences punishable under Section 395 of the IPC and section 135 of the Bombay Police Act. That the charge was read over to the accused and the accused pleaded not guilty and therefore, they came to be tried for the aforesaid offences. To prove the case against the accused, the prosecution examined in all 18 witnesses inclusive of the complainant and the Investigating Officer. The prosecution has also led the documentary evidences. That after closing of the evidence, further statement of the accused was recorded under Section 313 of the CrPC wherein they denied having committed any offence and stated that they are falsely implicated in the case.
[3.1] That after hearing the prosecution as well as the defence and on appreciation of evidence and considering the fact that neither any TI parade was conducted to prove the identity of the accused persons nor there was any discovery from the accused, who were arrested and thereby prosecution having failed to establish that the respondents accused committed the offence vide impugned judgment and order, the learned Judge has acquitted the respondents herein original accused.
[3.2] Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal, the applicant herein State of Gujarat has preferred the present application for Leave to Appeal along with the criminal appeal.
[4.0] Ms. C.M. Shah, learned APP appearing on behalf of the applicant State of Gujarat has vehemently submitted that the learned Judge has materially erred in acquitting the respondents herein original accused for the offence punishable under Section 395 of the IPC read with Section 135 of the Bombay Police Act.
[4.1] It is submitted that as such the learned Judge has not properly appreciated the evidence on record, more particularly, the deposition of the complainant. It is submitted that considering the fact that all the accused persons were arrested from the nearby canal and within short time from the time of incident, the learned Judge ought to have convicted the accused for the offences for which they came to be tried. Therefore, it is requested to grant leave to appeal and admit the appeal.
[5.0] Having heard Ms. Shah, learned APP appearing on behalf of the applicant State of Gujarat and on perusal of the impugned judgment and order of acquittal and the findings recorded by the learned trial Court while acquitting the respondents, it appears to us that as such the learned Judge has not committed any error in acquitting the respondents original accused. Even on re-appreciation of entire evidence on record, we are of the opinion that the finding given by the learned trial Court are neither perverse nor contrary to the evidence on record and as such no error has been committed in acquitting the respondents herein which calls for interference of this Court in exercise of powers under Section 378 of the CrPC.
[5.1] Admittedly, neither there is any TI parade held/conducted to prove the identity of the accused persons. There is no recovery from the accused persons. Under the circumstances, the prosecution has miserably failed to establish and prove the identity of the accused and failed to prove that in fact respondents herein original accused were the persons who committed the offence. It is also required to be noted that in the entire evidence it has specifically come on record that at the relevant time there was darkness and there was no light and therefore, the accused could not be identified at the relevant time. Though it was alleged that the accused persons were having dhariya and sticks, there is no recovery of any weapon from the accused persons. Considering the aforesaid facts and circumstances, when the learned Judge has acquitted the accused persons for the offences punishable under Section 395 of the CrPC and Section 135 of the Bombay Police Act, no error has been committed by the learned Judge. We are in complete agreement with the view taken by the learned Judge acquitting the respondents herein original accused for the aforesaid offences.
[5.2] 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. [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 learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
[5.3] In the case of Ram Kumar vs. State of Haryana reported in AIR 1995 SC 280, Supreme Court has held as under:
The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."
[5.4] As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011)11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal is somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
[5.5] Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of Appeal under Section 378 of the CrPC, no case is made out to interfere with the impugned judgment and order of acquittal.
[6.0] In view of the above and for the reasons stated above, present application for Leave to Appeal fails and same deserves to be dismissed and is, accordingly, dismissed. In view of dismissal of the application for Leave to Appeal, Criminal Appeal also deserves to be dismissed and is, accordingly, dismissed.
(M.R.SHAH, J.) (S.H.VORA, J.) Ajay Page 7 of 7