Gujarat High Court
State vs Rajendrakumar on 19 July, 2010
Author: A.M.Kapadia
Bench: A.M.Kapadia
Gujarat High Court Case Information System
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CR.MA/14545/2009 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 14545 of 2009
In
CRIMINAL
APPEAL No. 2582 of 2009
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
RAJENDRAKUMAR
@ RAJUBHAI BADARBHAI PATEL & 1 - Respondent(s)
=========================================================
Appearance
:
MR
LB DABHI, ADDL.PUBLIC PROSECUTOR
for
Applicant(s) : 1,
None for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 19/07/2010
ORAL
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 Code" for short), the Applicant - State of Gujarat has prayed to grant leave to file Criminal Appeal No.2582 of 2009, which is directed against the judgment and order dated 19.09.2009 rendered in Special (Atrocity) Case No.21 of 2008 by the learned Special Judge (Atrocity), Sabarkantha at Himatnagar camp at Idar, acquitting the respondents - accused ("the accused" for short) of the offences punishable under Sections 420, 406, 504, 506(2), 114 of the Indian Penal Code ("the IPC" for short) and Section 3(1)(X) of the Schedule Castes and the Scheduled Tribes (Prevention of Atrocities), Act 1989 ("the Atrocities Act" for short).
The prosecution case as disclosed in the FIR and unfolded during trial was that;
2.1 The complainant - Lembabhai Virmabhai Angari filed criminal complaint in the Court of learned JMFC, Idar alleging that both the respondents- accused, in abetment of each other, gave false promise to the complainant to purchase cotton seeds of plot at the rate of Rs.300/- per kg. and cotton at the rate of Rs.60/- in the year 2001-02. Pursuant to that the cotton seeds weighing 104.500 kgs. and cotton weighing 60 kgs. valued at Rs.34,950/- were produced, but the amount for the same was not paid to the complainant and thereby according to the prosecution case, the accused cheated the complainant. It is further the prosecution case that on 30.7.2006, at about 14 hours, at Village Jetpur Kampa, respondent-accused No.1 Rajendrakumar @ Rajubhai Badarbhai Patel abused the complainant and insulted him in his caste's name. He also administered threat to cause his death.
2.2 Upon receipt of said complaint, learned JMFC, Idar sent said complaint for police investigation u/s.156(3) of the Code. During the course of investigation, statements of material witnesses were recorded and required documents were collected. After the investigation was completed, the chargesheet was filed in the Court of learned JMFC, Idar. Since the offence was exclusively triable by the Special Court (Sessions Court), Sabarkantha at Himatnagar, it was made over for trial to the learned Special Judge (Atrocity), Himatnagar camp at Idar.
2.3 The learned trial Judge framed charge against both the accused under Sections 420, 406, 504, 506(2) read with Section 114 IPC and Section 3(1)(x) of the Atrocities Act, to which they did not plead guilty and claimed to be tried. Thereupon, the prosecution examined 5 witnesses and tendered 6 documents, detailed in paragraph 5 in the impugned judgment. After the prosecution concluded its oral evidence, the learned trial Judge recorded further statements of both the accused under Section 313 of the Code and the accused denied generally all the imputations put to them by the trial Court and stated that they were falsely implicated in this case. The accused neither examined any witness nor adduced any oral evidence. After appreciating the evidence on record and the submissions made on behalf of both the sides, the learned trial Judge recorded acquittal of both the accused for the offences punishable under Sections 420, 406, 504, 506(2) read with Section 114 IPC and Section 3(1)(x) of the Atrocities Act.
We have considered the submissions advanced by Mr. L.B.Dabhi, learned APP for the Applicant - State of Gujarat, we have perused the impugned judgment and order, and the set of evidence supplied by him during the course of his submission as well as we have perused the record and proceedings of Special (Atrocity) Case No.21 of 2008 called for vide order dated 23.6.2010. 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.
Perusing the impugned judgment and order rendered by the trial Court as well as considering the record of the case, first of all it clearly transpires that the complaint filed by complainant Lembabhai Virmabhai is a belated complaint and it transpires that in connection with the alleged offence which took place in the year 2001-02, the private criminal complaint in the Court of learned JMFC, Idar came to be filed on 3.8.2006. It transpires that complainant Lembabhai Virmabhai PW-1, examined at Exh.8, tried to explain the delay by saying that soon after the incident, he had lodged FIR in Khedbrahma police station. Considering the evidence of Investigating Police Officer PW-5 Khumansinh Nanabhai Damor, examined at Exh.16, nothing transpires that any FIR was lodged by the complainant Lembabhai in Khedbrahma police station as alleged by him. In the impugned judgment, the learned trial Judge elaborately discussed this aspect of the matter and, ultimately, came to the conclusion that the complaint was suspiciously delayed complaint. In the impugned judgment, the learned trial Judge came to the conclusion that the complainant Lembabhai examined only the relatives as witnesses, namely, his nephew PW-2 Laxmanbhai Keshrabhai Angari and his brother-in-law PW-3 Kalubhai Shatrabhai Parghi and no independent witnesses were examined by the prosecution. Learned trial Judge, appreciating and scrutinizing the evidence of the witnesses, namely, PW-1 Lembabhai Virmabhai, the complainant, PW-2 Laxmanbhai Keshrabhai and PW-3 Kalubhai Shatrabhai, came to the conclusion that their evidence suffers from material infirmities and contradictions, which go to the root of the prosecution case. The learned trial Judge ultimately came to the conclusion that a civil dispute was given shape of criminal offence.
Upon re-appreciation and re-analysis of the evidence on record, we are of the considered opinion that the trial Court giving cogent and convincing reasons rightly recorded the acquittal of the respondent
- accused. On overall view of the matter, the prosecution has not been able to bring home the charge levelled against the accused and the complicity of the accused for commission of the offence is not established and there is no cogent and convincing evidence against the accused to connect him with the alleged crime.
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 offence with which he was 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.
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.
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.
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.
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.
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.
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. 2582 of 2009 is dismissed.
(A.M. Kapadia, J.) (J.C.Upadhyaya, J.) (binoy) Top