CR.MA/2043/2008 12/ 13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 2043 of 2008 In CRIMINAL APPEAL No. 1001 of 2008 With CRIMINAL APPEAL No. 1001 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE [ENTITY] 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 constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? [ENTITY] - Applicant(s) Versus [ENTITY] & 6 - Respondent(s) Appearance : PUBLIC PROSECUTOR for Applicant(s) : 1, None for Respondent(s) : 1 - 7. CORAM : HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 27/06/2008 ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE [ENTITY])
1. The above referred Criminal Appeal is preferred by the State under [SECTION] of the [ACT], against the judgment and order delivered by the Special Judge, Dist: Panchmahal at Godhra on 22nd October, 2007 in [CASE NUMBER] whereby the present respondents being accused of the said Special Case came to be acquitted by the Special Judge for the offences charged against the accused under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] as well as under [SECTION] and [SECTION], [SECTION] as well as under [SECTION] of the [ACT].
2. The State has also preferred above referred Criminal Misc. Application under [SECTION] of the [ACT], for obtaining leave to appeal.
3. Learned Additional Public Prosecutor, Ms.[ENTITY], for State was heard at length in respect of the matter on behalf of the State.
4. The incident in question which led to prosecution of the respondents occurred on 21st January, 2007 and the complaint of which came to be filed by complainant-[ENTITY] on 31st January, 2007 at Shehra Police Station, which was registered as [CASE NUMBER]. According to prosecution case as disclosed in the complaint, on the date of incident, while complainant was going to his old house at about 2:00 p.m. and when he reached near the house of one [ENTITY], accused No.1-[ENTITY] and [ENTITY] were coming on cycle and cycle was driven by them upon the complainant. The complainant was caught hold by the accused from neck and he was beaten by fist and kick. Accused No.1-[ENTITY] inflicted blows by iron rod on the back of the complainant. At that time, [ENTITY], [ENTITY], [ENTITY] and [ENTITY] came to the incident and complainant was rescued. At that juncture also, both these persons insulted the caste of the complainant. For some period, complainant did not file any complaint nor he took any treatment. Thereafter, when he was at his old house, at the resident of his uncle, [ENTITY] and his aunt [ENTITY] and sister-in-law-[ENTITY] was present at about 5:00 p.m., accused-[ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY], in all nine persons came there with weapons like iron rods, hockey, sticks, etc. [ENTITY] had iron rod in his hand while [ENTITY] had also iron rod in his hand. Accused-[ENTITY] and [ENTITY] had also iron rods in their hands; while other accused had weapons like hockey, stick, etc. All of them started beating family members of the complainant and those family members were [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. They all uttered abuses and insulted the caste of the complainant and his relatives. The accused persons also threatened to handover the land to the accused otherwise the complainant and his family members would be done to death. Witnesses came at the scene of offence and they intervened and therefore the accused went away. In the complaint, it was further stated by the complainant that his grandfather-[ENTITY] was heavily beaten by the accused and therefore he died at 5:30 p.m. It is the complaint of the complainant that the accused threatened that no cremation ceremony was to be performed of the dead body, and if, any attempt was made by the complainant they will be burnt alive. According to prosecution case, at about 7:00 p.m., he himself, [ENTITY] and [ENTITY] informed Police about the incident, but their complaint was not recorded and were driven away and ultimately on 31st January, 2007 the complaint was given to Police Inspector, Godhra Town Police Station. A crime was registered vide Zero Number at Godhra Town Police Station and complaint was forwarded to Shehra Police Station where after registering the crime, investigation was handed over to Deputy Superintendent of Police, Mr.[ENTITY] and he submitted charge-sheet against the accused-respondent herein in the Court of Judicial Magistrate First Class, who in turn committed the case to the Special Judge. Charge was framed by learned Special Judge against all the accused vide Exh.3 for above said offences on 7th June, 2007 to which each accused pleaded not guilty. The prosecution, therefore, examined as many as ten witnesses and produced on record documentary evidence to prove its case against the accused. Thereafter, the learned trial Judge recorded further statement of the accused under [SECTION] of the [ACT] and came to a conclusion after hearing both the party, to acquit all the accused from all the charges levelled against them and hence this appeal and application for leave to appeal.
5. We have called for the record and proceedings from the trial Court and we have re-appreciated the evidence recorded during the trial. We have carefully gone through the reasons advanced by the learned trial Judge for acquitting the accused and the contentions raised on behalf of the State are also considered carefully. Even at this juncture, we have carefully scanned the record and proceedings and evidence recorded during the trial.
6. Out of ten witnesses, Prosecution Witness No.1-[ENTITY] examined at Exh.12 is complainant and eye-witness; while Prosecution Witness No.3-[ENTITY] examined at Exh.15, Prosecution Witness No.5-[ENTITY] examined at Exh.17 are the eye-witnesses of the incident. [ENTITY] is Investigating Officer and Deputy Superintendent of Police who investigated the offence. Prosecution Witness No.9-[ENTITY] examined at Exh.23 is Panch Witness of [ENTITY] at Exh.22, but he has not supported the prosecution case. Prosecution Witness No.8-[ENTITY] is Police Station Officer, who recorded the complaint of the complainant at Shehra Police Station. Prosecution Witness No.7-[ENTITY], examined at Exh.20 is Panch of [ENTITY] Exh.22, but he has not supported the prosecution case and likewise Prosecution Witness No.6-[ENTITY] is also Panch at [ENTITY] Exh.18 and he has also not supported the prosecution case. Prosecution Witness No.4-[ENTITY] though was eye-witness has not supported the prosecution case. Likewise, Prosecution Witness No.2-[ENTITY] examined at Exh.14 also did not support the prosecution case.
7. Re-appreciating the evidence and scrutinizing the reasons advanced by the learned trial Judge, it clearly appears that the F.I.R. has been filed late by ten days for which there is no explanation at all on record by the prosecution or the complainant. There is no medical evidence of the allegation of injuries caused by the accused to the witnesses. Appreciating the evidence of complainant, we find contradictions as to manner of the incident which had occurred earlier and thereafter. Even, Prosecution Witness No.5-[ENTITY] omitted to state this factum. So, the complainant to that extent is uncorroborated and there is no evidence at all that death of [ENTITY] was caused by the accused and even that is not the prosecution case and therefore the factum that threatening by the accused to the complainant and his family members to refrain from cremation ceremony appears to be a got up theory. It also transpires from the record that complainant herein had filed one complaint against [ENTITY]. [ENTITY] has died and present complainant is accused of causing murder of said [ENTITY] and therefore there appears to be some enmity between the parties. These all contradictions are noted by learned trial Judge. So far as the allegation for insulting the complainant is concerned, the complainant is not amply corroborated by the witnesses and each witnesses state different version as to manner in which the alleged incident was committed and therefore it clearly appears that learned trial Judge has rightly acquitted the respondents.
8. In view of the unsatisfactory evidence led by the prosecution, we are of the considered opinion that no illegality is committed by the learned Additional Sessions Judge in acquitting the accused of the offences with which they were charged and we are in complete agreement with the findings, ultimate conclusion and resultant order of acquittal recorded by the learned trial Judge, as, in our view, no other conclusion is possible except the one reached by the learned trial Judge.
9. 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 [PRECEDENT]). 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.
10. In the case of [PRECEDENT], Supreme Court has held as under:
SThe powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under [SECTION] and [SECTION], [ACT] 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."
11. It may be noted that this is an acquittal appeal in which Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly, when the evidence has not inspired confidence of the learned trial Judge. As this Court is in general agreement with the view expressed by the learned trial Judge, it is not necessary for this Court either to reiterate the evidence of the prosecution witnesses or to restate reasons given by the learned trial Judge for acquittal and in our view, expression of general agreement with the view taken by the learned trial Judge would be sufficient in the facts of the present case for not interfering with the judgment of the learned trial Judge and this is so, in view of the decisions rendered by the Hon'ble Supreme Court in the case of [PRECEDENT] and [PRECEDENT].
12. On overall appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the learned trial Judge for acquitting the accused. Suffice it to say that the learned trial Judge 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 learned trial Judge and convince this Court to take a view contrary to the one taken by the learned Judge.
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. Hence, leave to appeal deserves to be refused by dismissing the appeal in limine.
14. For the reasons stated hereinabove, leave to appeal is refused. The appeal is dismissed at the threshold.
[J. [ENTITY],J.] [M. R. SHAH,J.] sompura