[ENTITY] Applicant(s)V/S[ENTITY] Respondent(s) R/CR.MA/11909/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 11909 of 2012 In [CASE NUMBER] [ENTITY] Applicant(s) Versus [ENTITY] Respondent(s) Appearance: MR [ENTITY] for the Applicant(s) No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 03/04/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE [ENTITY])
1. Feeling aggrieved and dissatisfied with the judgment and order dated 14.05.2012 passed by the learned Additional Sessions Judge, Vadodara in [CASE NUMBER] whereby, the respondent-accused came to be acquitted for the offences punishable under [SECTION] and [SECTION] of the [ACT] as well as [SECTION] and [SECTION] of the [ACT], the applicant-[ENTITY] has preferred this application to grant leave to appeal as provided under [SECTION] of the [ACT] (for short, the 'Code').
2. Briefly stated, complainant [ENTITY] lodged complaint against the respondent-accused before Jawaharnagar police station being [CASE NUMBER] for the aforesaid offences inter alia stating that the complainant is doing wholesale business of provisions, edible oil and sugar shop in the name and style of "Mahalaxmi Trading and Maruti Enterprise Company. On 30.07.2007, when he was closing the shop at about 8:00 o'clock at night, the complainant was having bag containing cash amount of Rs.2,32,000/- out of which Rs.82,000/- was his income of the said day and Rs.1,50,000/- was the amount being enchased through cheque. After closing the shutter of the shop, the complainant and his servant were checking the lock of the shop and when turned towards road, a mob comprising of 25 to 30 persons having age group of 30 years attacked the complainant and his servant [ENTITY] and further saying in Gujarati language 'Laavo Maaro'. In the mob, about 5 to 6 persons were having big bag containing stones and bricks and one of the persons was armed with iron pipe in his hand and the said person tried to give iron pipe blow on the head of the complainant. However, the complainant raised his hand to save blow and therefore, he sustained injury on his hand on account of which, he fell down on the ground. It is further the case of the complainant that one of the persons from the said mob, gave brick blow on his hand and snatched bag containing the aforesaid amount and fled away from the place of incident. Thereafter, the complainant stood up and tried to stop him shouting in terms 'Bachao Bachao' on account of which, gun shot was fired towards the complainant and in order to save him from the gun shot, the complainant sat on the ground. It is also alleged by the complainant that the said mob committed robbery in the nearby shops and pelted stones towards nearby people and thereafter, the said mob gone towards Ravi Talkies. The complainant followed the mob and as soon as the complainant reached near the house of one Ms.[ENTITY], the said mob again fired gun shot on him and none came to his rescue and, therefore, out of terror, he informed about the same to his brother-[ENTITY]. Accordingly, the complaint came to be lodged against the respondent-accused.
3. Pursuant to the said complaint, Jawaharnagar police station investigated the offence and recorded statement of relevant witnesses and drawn necessary panchnama of the scene of offence, held T.I. Parade, invited experts from F.S.L. and after having found sufficient material against the respondent-accused for the aforesaid offence, the Investigating Agency submitted chargesheet before the Court of learned 4th Judicial Magistrate First Class, Vadodara.
4. Since the case was exclusively triable by the Sessions Court, the said Court committed the case to the Sessions Court as provided under [SECTION] of the Code. Upon committal of the case, the learned Sessions Judge framed charge against the respondent-accused for the aforesaid offence. The respondent accused pleaded not guilty and claimed trial.
5. In order to bring home charge, the prosecution has examined 21 witnesses and has also produced and proved various documentary evidence, more particularly, described in para 4 of the impugned judgment.
6. On conclusion of the trial, the learned trial Judge recorded further statement of the respondent-accused as provided under [SECTION] of the Code wherein, the respondent-accused stated that he is innocent and further alleged that he has been falsely implicated in the offence.
7. After hearing both the sides and after appreciating the evidence adduced before the trial Court, the learned trial Judge acquitted the respondent-accused from the charge of the aforesaid offence.
8. During the course of hearing, learned A.P.P. Mr.[ENTITY] placed on record the relevant evidence placed before the trial Court for our perusal and we have also taken into account the submissions of learned A.P.P. Mr.[ENTITY] appearing for the applicant-State. Learned A.P.P. Mr.[ENTITY] submitted that the prosecution has proved its case beyond reasonable doubt against the respondent-accused in the offence for which, he was charged and tried. At the outset, we may observe that the offence of nature with which we are concerned in the instant case, is the offence committed by the person who is unknown and, therefore, identification of the accused is very relevant and important and further, recovery of alleged amount of robbery is also important. Unfortunately, the prosecution could not prove the identity of the respondent-accused so as to infer that he was one of the participants in the crime in question. Similarly, there is no recovery effected from the respondent-accused. If these two vital pieces of evidence are not on record or it is not proved then, in our considered opinion, no case is made out to entertain the appeal.
9. After re-appreciation and re-assessment of such evidence adduced on record, we have noticed number of serious infirmities in the evidence of prosecution which raise serious doubt as to occurrence of the incident as alleged. To secure conviction on charge of dacoity, the prosecution is required to establish two elements namely (a) that the dacoity as defined in [SECTION] of [ACT] has been committed and (b) that it was committed by the accused person. In assessing the liability to accused person of the offence of dacoity, the word Co-Jointly has a important significance. According to [SECTION] of [ACT], dacoity is robbery committed by five or more persons. The essential elements of the offence of dacoity under [SECTION] is that five or more persons must have participated the commission of the dacoity. No such evidence is coming on record as to infer that the respondent actually participated the commission of dacoity.
10. As discussed hereinabove, there is no iota of evidence noticed by us so as to hold the prosecution succeeded in proving the essential ingredients of [SECTION] of [ACT]. Moreover, the evidence adduced before the trial Court indicates that the respondent has not used any weapon or force or attempt to cause grievous hurt and consequently, the prosecution also failed to establish essential ingredients of [SECTION] of the [ACT].
11. Under the circumstances, learned A.P.P. Mr. [ENTITY] could not point out any trustworthy and reliable evidence so as to infer that respondent-accused has committed offence as provided under [SECTION] and [SECTION] of the [ACT] as well as [SECTION] and [SECTION] of the [ACT].
12. Lastly, the Appellate Court should bear in mind the presumptions of innocence of the accused and further that the learned trial Court's acquittal bolsters the presumptions of his innocence. So, keeping in mind the evidence adduced before the trial Court and also the settled principles as to scope of appeal against the acquittal order, we find no merits in the prosecution case or any compelling reasons or ground to interfere with the findings recorded by the learned trial Judge.
13. 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. [ENTITY] (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.
14. In the case of [PRECEDENT], 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 [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."
15. As observed by the Hon'ble Supreme Court in the case of [PRECEDENT] and in the case of [PRECEDENT], 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.
16. 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] of the [ACT], no case is made out to interfere with the impugned judgment and order of acquittal.
17. 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.
([ENTITY], J.) ([ENTITY], J.) Hitesh Page of 10