[CASE NUMBER] [ACT] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 125 of 2005 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] 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 [ACT] or any order made thereunder ? [ENTITY] Appellant(s) Versus [ENTITY] Opponent(s)/Respondent(s) Appearance: MRS [ENTITY] APP for the Appellant(s) No. 1 MR [ENTITY], ADVOCATE for the Opponent(s)/Respondent(s) No. 1 MR [ENTITY], ADVOCATE for the Opponent(s)/Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 22/04/2015 ORAL [ACT]
1. The State has preferred this appeal under [SECTION] of the [ACT] against the judgment and order dated 12.10.2004 rendered by the learned Special (Atrocity) Judge, 7th Fast Track Court, Palanpur, in Special Case (Atro.) [CASE NUMBER] [ACT] No.43 of 2003. The said case was registered against the present respondent original accused for the offence under [SECTION] of the [ACT] and also under [SECTION] of the [ACT] and the [ACT] as well as [SECTION] of the [ACT].
2. The case of the prosecution was that on 15.8.2002, the complainant [ENTITY] filed complaint before Pathavada Police Station being [CASE NUMBER] for the alleged offence, alleging that while he was doing agricultural work, the respondent accused grazing the cattle in the sim and some of the cattle entered in his field. Therefore, the complainant told the accused to remove the cattle from his field, at that time, the accused got angered and gave filthy abuses relating to the caste of the complainant like "Sala Dheda". It is further case of the prosecution that the respondent inflicted stick blow on the hand of the complainant . Therefore, the complaint was filed and the police recorded the statement of witnesses and as there was sufficient evidence connecting the accuse, the charge-sheet was filed before the learned Judicial Magistrate First Class, Dhanera and thereafter, case was committed to the Court of Special Judge, where the charge was framed against the [CASE NUMBER] [ACT] accused. The accused pleaded not guilty to the charge and claimed to be tried.
3. In order to bring home the charges against the accused persons, prosecution has examined several witnesses and also produced several documentary evidence to prove the case in its favour.
4. Thereafter, after filing closing purshis by the prosecution, further statement of accused person under [SECTION] of the [ACT] were recorded. The accused person denied the case of the prosecution and submitted that a false case is filed against him.
5. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondent - accused.
6. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 12.10.2004 rendered by the learned Special (Atrocity) Judge, 7th Fast Track Court, Palanpur, in [CASE NUMBER], the appellant-State has preferred the present appeal before this Court.
7. Learned APP Mrs. [ENTITY] appearing for the State has submitted that the order of acquittal is contrary to law and evidence on record. The learned Judge has erred in holding that the complainant and other prosecution witnesses have not [CASE NUMBER] [ACT] supported the say and act of accused that the accused used words relating to his caste in order to lower down his prestige. Thus the offence under [SECTION] of the [ACT] has been clearly made out by the prosecution. Even other offence as alleged has been proved by the prosecution by way of documentary evidence as well as oral evidence. She also submitted that the learned Judge ought to have seen that from the evidence of the complainant [ENTITY] at Exhibit 10, it appears that the buffaloes of the respondent accused were grazing in his field and therefore, the complainant told him to remove them from his field and at that time, the respondent accused got angered and inflicted stick blows upon the complainant. He further deposed in his evidence that at that time, the witness, [ENTITY] came from the other field and saved him and then the complainant was taken to the hospital for medical treatment. Learned APP further submitted that the complainant identified the accused as well as muddamal stick. She further submitted that the version of the complainant is supported by the witness [ENTITY] examined at Exhibit 14. She also submitted that the prosecution also examined witness Dr. [ENTITY] at Exhibit 22, where this witness clearly stated that on 15.8.2000, the complainant was examined by [CASE NUMBER] [ACT] her and he gave the case history before her and the complainant received injury due to assault. She therefore, submitted that the prosecution has proved the alleged offence punishable under [SECTION] and [SECTION] of the [ACT] and [SECTION] of the [ACT] and also [SECTION] of the [ACT], but the learned trial Judge has not believed the same. She therefore, prayed to allow present appeal by convicting and sentencing the accused for the alleged offence.
8. On the other hand, Mr. [ENTITY] appearing on behalf of the respondent accused submitted that there is no infirmity in the impugned order. He submitted that the lower court has rightly appreciated the evidence on record and acquitted the respondent of the charges levelled against him. He, therefore, submitted that the impugned judgment and order may not be interfered with and it may be confirmed.
9. I have heard learned APP for the appellant - State. I have gone through the papers produced in the case. Learned trial Judge has found that the prosecution has failed to prove the case of atrocities and other offence against the accused. It is found by the trial Court that there are discrepancies in the evidence led by the prosecution and the prosecution has failed to establish that the injuries were caused by the accused [CASE NUMBER] [ACT] person. It is also found by the trial Court that the panch witness turned hostile though they are independent witnesses. The recovery panchnama at Exhibit 20 reflects that the witness did not identify the weapon recovered by the police. It also appears that in the case of Atrocity, the investigation is required to be carried out by the police officer, who is Dy. S.P. or any superior officer. Here the investigation was carried out by the PSI, who is below the rank of Dy. S.P. Therefore, there is breach of [SECTION] of the Act. It also appears that all the witnesses have not supported the case of the prosecution and, therefore, the prosecution could not prove that the accused committed alleged offence. From the statement under [SECTION], it appears that the complainant lodged such complaint due to enmity with the accused. Therefore, in my view, the prosecution has miserably failed to prove the case against the accused. The evidence on record does not inspire confidence and no atrocity was committed by the accused. Therefore, learned trial Judge has rightly observed that the prosecution could not prove its case beyond reasonable doubt.
10. In a recent decision of the Apex Court in the case of [PRECEDENT]. Reported in [PRECEDENT], the Court has reiterated the powers of the High Court in such [CASE NUMBER] [ACT] cases. In para 16 of the said decision the Court has observed as under:
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re- appreciate the evidence to arrive to a just [CASE NUMBER] [ACT] decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."
11. Similar principle has been laid down by the Apex Court in the cases of [PRECEDENT] and in [PRECEDENT]. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
12. Even in a recent decision of the Apex Court in the case of [PRECEDENT], the Apex Court in Para-4 has held as under:
"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under [SECTION] of [ACT] and awarded RI for life. Since counsel for the appellants very much emphasized [CASE NUMBER] [ACT] that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [[PRECEDENT]]"
13. It is settled legal position that in an acquittal appeal, the Appellate Court is not required to re-write the Judgment or to [CASE NUMBER] [ACT] give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondent - accused and adopting the said reasons as well as the reasons aforesaid, in my view, the impugned Judgment is just, legal and proper and requires no interference by this Court at this stage. I do not find any cogent reason to interfere with the impugned decision as it cannot be said to be either perverse or not borne out from the facts of the case. The State has not been able to persuade this Court to take a different view in this matter. Hence, this appeal sans merit and is required to be dismissed.
14. In the result, the Criminal Appeal is dismissed and order dated 12.10.2004 passed by the learned Special (Atrocity) Judge, 7th Fast Track Court Court, Palanpur, in [CASE NUMBER] is hereby confirmed. Bail bonds if any stands cancelled. Record and Proceedings, if any, to be sent back to the concerned trial court forthwith.
([ENTITY], J.) [ENTITY]