Gujarat High Court
State Of Gujarat vs Samalbhai Chandubhai Vasava on 11 January, 2022
Author: S.H.Vora
Bench: S.H.Vora
R/CR.MA/13247/2021 ORDER DATED: 11/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13247 of 2021
In R/CRIMINAL APPEAL NO. 1025 of 2021
With
R/CRIMINAL APPEAL NO. 1025 of 2021
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STATE OF GUJARAT
Versus
SAMALBHAI CHANDUBHAI VASAVA
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Appearance:
MS CHETNA SHAH, APP for the Applicant(s) No. 1
for the Respondent(s) No. 4,5
HCLS COMMITTEE(4998) for the Respondent(s) No. 1,2,3
MR.KISHORE PRAJAPATI(6305) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/01/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. Feeling aggrieved and dissatisfied with the judgment and order dated 24.07.2019 passed by the 16 th (Adhoc) Additional Sessions Judge, Special Judge (Atrocity Cases), Vadodara in Sessions Case No. 178 of 2014, whereby the respondent - accused persons came to be acquitted for the offence punishable under sections 324, 326, 504, 506(2) and 114 of the Indian Penal Code (hereinafter referred as 'IPC' for short) as well as section 135 of the Bombay Police Act ('the Act' for short) by giving benefit of doubt to the accused persons. The Page 1 of 14 Downloaded on : Thu Jan 13 21:07:39 IST 2022 R/CR.MA/13247/2021 ORDER DATED: 11/01/2022 applicant - State of Gujarat has preferred this application to grant leave to appeal as provided under section 378(1)(3) of the Code of Criminal Procedure, 1973 ('the Code' for short).
2. The facts in nutshell which give rise to the present leave to appeal and appeal are as under:-
2.1 It is the case of prosecution that accused persons and complainant were having their field nearby and they quarrelled with regard to the time of gazing of cattle and during that time all the accused persons came with deadly weapons and assaulted the complainant and his relatives, wherein the accused No. 1 gave axe blow on the head of Firoz, accused No. 3 gave axe blow on the forehead and left eye of the complainant, accused No. 4 gave a lathi blow on the hand of the complainant and accused No. 2 assaulted the father of the complainant with axe, due to which they have received grievous injuries and because of the intervention of the Sarpanch the accused persons ran away and all the injured persons were admitted to the hospital. Thereafter, the complaint came to be registered being C.R.I-230 of 2012 before the Dabhoi Police Station for the offence punishable under sections 326, 324, 504, 506(2), 114 of the IPC and Page 2 of 14 Downloaded on : Thu Jan 13 21:07:39 IST 2022 R/CR.MA/13247/2021 ORDER DATED: 11/01/2022 section 135 of the Act.
2.2 In pursuance to the complaint lodged by the complainant the Investigating Agency collected evidence in the form of statement of witnesses and documentary evidence and after having found material against the respondent - accused persons chargesheet came to be filed in the Court of Judicial Magistrate First Class at Dabhoi by Criminal Case No. 105 of 2014. During the proceedings before the Judicial Magistrate First Class Court at Dabhoi, it was informed to the Court that in pursuance to the Criminal complaint filed by the present accused persons against the complainant, which is registered as C.R.I-231 of 2012 at Police Station, Dabhoi, which is a cross-
case against the present case and which was committed to the Sessions Court and therefore according to the order passed by the Sessions Court the Judicial Magistrate First Class Court at Dabhoi committed the case to the Sessions Court under section 209 of the Code.
2.3 Upon committal of the case, the Sessions Court, Vadodara registered the case being Criminal Case No. 178 of 2014. The trial Court framed the charges at Exh. 8 and the statement of the accused persons were recorded at Exhs. 9 to Page 3 of 14 Downloaded on : Thu Jan 13 21:07:39 IST 2022 R/CR.MA/13247/2021 ORDER DATED: 11/01/2022
12. The accused persons in their statement pleaded 'not guilty' and claimed to proceed with the trial.
3. The prosecution has examined 17 witnesses and also produced documentary evidence which are as under:
Sr. Particulars Exh. No. No. 1 Complaint of the complainant 24 2 Panchname of the scene of offence 39 3 Chits that are stitched 40 4 Panchnama of the physical verification of 42 the accused 5 Panchnama of the muddamal siezed 46 6 Panchnama of the physical verification of 49 the accused 7 Treatment certificate of the injured 63 & 64 8 Yadi of the visit of the place of incidence 66 9 Primary investigation of the place of 67 incidence 10 Treatment certificate of the complainant 69 - 71 and witnesses 11 Original copy of the E.P.R. Register 72 12 Yadi of the register of FIR 74 13 Depute order 75 14 Original copy of the Station Diary 76 15 Release Note 83 16 Receipt of the F.S.L. accepting delivery of 84 muddamal 17 Serological opinion given by F.S.L. 85 18 Public notice 86 Page 4 of 14 Downloaded on : Thu Jan 13 21:07:39 IST 2022 R/CR.MA/13247/2021 ORDER DATED: 11/01/2022
4. Upon conclusion of the trial, the respondent - accused persons were examined under the provisions of section 313 of the Code and in their further statement the respondent - accused persons denied their involvement in the alleged crime and stated that false case is lodged against them. After hearing both the parties and after analysis of the evidence on record before the trial Court, the respondent - accused persons came to be acquitted from the charge of offence punishable under sections 326, 324, 504, 506(2), 114 of the IPC and section 135 of the Act by the trial Court by giving benefit of doubt.
5. Before discussing the submissions made in the present Appeal, it transpires from the record of present Appeal that original accused - opponent No. 4 Kantaben Samabhai Vasava had passed away on 19.06.2021 and therefore, this Court in order dated 18.08.2021 recorded that the matter cannot be proceeded further for deceased opponent No. 4. We have minutely examined the oral as well as documentary evidence adduced by the prosecution before the trial Court. We have heard the submissions of Ms. Chetna Shah, learned APP Page 5 of 14 Downloaded on : Thu Jan 13 21:07:39 IST 2022 R/CR.MA/13247/2021 ORDER DATED: 11/01/2022 appearing for the State and Mr. Kishore Prajapati, learned advocate for the respondent - accused persons.
6. Learned APP has submitted that from the deposition recorded of the complainant, injured witnesses as well as the Medical Officers, the prosecution has sufficiently proved the case against the accused persons and involvement of the accused persons in commission of the said crime. She has also taken us through the deposition of Kadherbhai Mohmadbhai Mansuri at Exh. 2 where he submitted that Samanbhai was having axe in his hand and he has given blow to Firoz and Satishbhai has given blow of axe to himself and Kantaben has given blow of the stick to the complainant and his father Manojbhai also received axe injury by the blow inflicted by Vinodbhai Vasava. He has admitted in his cross-examination that the axe, plough are necessary tools for doing agricultural work but nothing is coming out from his deposition that inspires confidence to implicate the accused persons in the commission of the crime, as other witnesses have not supported the say of the complainant in their deposition. The Medical Officer - Gudiyarani Devkumar Prasadsinh was examined at Exh. 68 and she has admitted that the injuries which are received by the injured persons are of simple nature Page 6 of 14 Downloaded on : Thu Jan 13 21:07:39 IST 2022 R/CR.MA/13247/2021 ORDER DATED: 11/01/2022 and the history was given to her by the injured that somebody had attacked them with sharp weapon. The prosecution has also examined the witness at Exh. 77 - Firozbhai Malangbhai Mansuri and he has admitted in his cross-examination that the accused Shamalbhai Vasava has filed complaint against his father and other and that he cross-case is also going on. He has also admitted in his cross-examination that he had given his history to Dr. Tausif Noormohmad Dabhoiwala that the group of unknown persons have beaten them and had not given the name of the accused before the doctor. The prosecution has also examined the witness Mayuddin Ismail Mansuri at Exh. 34 however, he has not as such supported the version of the complainant in the complaint but has stated that there dispute had taken place with Shamalbhai Vasava when he went to visit his sister Zubeda. The prosecution has also examined the Medical Officer - Dr. Tausif Noormohmad Dabhoiwala who is practicing as General and Laparoscopy Surgeon in his own private hospital and he has submitted that in the history given by the injured persons before him, nobody has given any names of the persons who had inflicted those injuries on them. Mr. Ashok Popatlal Jani who is serving at Forensic Science Laboratory was also examined but nothing much came out from his disposition to support the case of the Page 7 of 14 Downloaded on : Thu Jan 13 21:07:39 IST 2022 R/CR.MA/13247/2021 ORDER DATED: 11/01/2022 prosecution. Therefore, as cross-cases are going on between the complainant and the accused persons and the dispute with regard to civil nature also occurred amongst them, the trial Court has rightly inferred that the prosecution has failed to establish its case beyond reasonable doubt. None of the witnesses has given any name before both the doctors though they are knowing the accused persons very well and hence this creates doubt about the story of the prosecution. Hence, the trial Court has rightly acquitted the respondent - accused persons by giving benefit of doubt. We found not illegality or infirmity with the findings given by the trial Court and hence, we confirm the judgment and order passed by the trial Court, as no interference of this Court is required by exercising powers under section 378 of the Code.
7. Before the evidences are further scrutinized, it is necessary that prosecution is required to prove the case in the criminal proceedings by leading cogent and convincing evidence and the charge leveled against the accused persons should be proved beyond reasonable doubt. In the present case, the complainant and the other injured persons have not disclosed the names of the persons who have inflicted the injuries to the injured persons which is creating suspicion Page 8 of 14 Downloaded on : Thu Jan 13 21:07:39 IST 2022 R/CR.MA/13247/2021 ORDER DATED: 11/01/2022 about the involvement of the accused persons in the commission of the alleged crime. On re-appreciation of the evidence we have noticed that the complaint of the complainant is an attempt to give flavour of criminality to the Civil disputes which are going on between the parties. We have also found from the record that the prosecution has failed miserably in establishing the offence against the respondent - accused persons by not leading cogent and convincing evidence which can be proved beyond reasonable doubt.
8. It is a cardinal principal of criminal jurisprudence that in an acquittal appeal if other view is possible, then also the 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.
9. In the case of Ram Kumar v. State of Haryana, reported Page 9 of 14 Downloaded on : Thu Jan 13 21:07:39 IST 2022 R/CR.MA/13247/2021 ORDER DATED: 11/01/2022 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."
10. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in Page 10 of 14 Downloaded on : Thu Jan 13 21:07:39 IST 2022 R/CR.MA/13247/2021 ORDER DATED: 11/01/2022 (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 in 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.
11. In the very recent judgment reported in 2021 (15) SCALE Pg. 184 in the case of Mohan @ Srinivas @ Seena @ Tailor Seena V/s. State of Karnataka, the hon'ble Apex Court has observed the scope of section 378 of the Code as under:-
"Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome Page 11 of 14 Downloaded on : Thu Jan 13 21:07:39 IST 2022 R/CR.MA/13247/2021 ORDER DATED: 11/01/2022 as there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial Court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence Page 12 of 14 Downloaded on : Thu Jan 13 21:07:39 IST 2022 R/CR.MA/13247/2021 ORDER DATED: 11/01/2022 affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial Court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial Court decides a case on its own merits despite its sensitivity.
22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark."
12. Considering the aforesaid facts and circumstances of the Page 13 of 14 Downloaded on : Thu Jan 13 21:07:39 IST 2022 R/CR.MA/13247/2021 ORDER DATED: 11/01/2022 case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.
13. In view of the above and for the reasons stated above, present application for leave to appeal being Criminal Misc. Application No. 13247 of 2021 fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, Criminal Appeal No. 1025 of 2021 also deserves to be dismissed and is accordingly dismissed.
(S.H.VORA, J) (SANDEEP N. BHATT,J) SHRIJIT PILLAI Page 14 of 14 Downloaded on : Thu Jan 13 21:07:39 IST 2022