[ENTITY] Applicant(s)V/S[ENTITY] R/CR.MA/681/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 681 of 2013 In [CASE NUMBER] With [CASE NUMBER] [ENTITY] Applicant(s) Versus [ENTITY] & 7 Respondent(s) Appearance: MR LB DABHI, ADDL PUBLIC PROSECUTOR for the Applicant-State CORAM: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 24/04/2013 ORAL ORDER
(PER :
HONOURABLE MR.JUSTICE [ENTITY]) Feeling aggrieved by and dissatisfied with the judgment and order dated 11th October 2012 passed by the learned Additional Sessions Judge, Sabarkantha, Camp at Modasa in Sessions [CASE NUMBER] whereby the respondents-accused came to be acquitted for the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] (hereinafter referred to as the IPC ), the applicant-State of Gujarat has preferred this application to grant leave to appeal as provided under [SECTION] of the [ACT] ( the Code , for short).
2 The prosecution as unfolded before the trial court is such that as kar sevaks damaged the Babri masjid at Ayodhya on 6.12.1992, the respondents accused persons hatched a criminal conspiracy so as to excite dissatisfaction towards Government of India, respondents Accused Nos.9 and 10 purchased National Flag from Khadi Gram Udyog, Malpur Road, Modasa on 8.12.1992 and thereafter at about 11.45 PM on public road at Sukha Bazar, the accused persons, with a view to excite dissatisfaction and hatred between Hindu and Muslim community, the respondents-accused burnt the national flag and thus committed the aforesaid offences. In pursuance of the complaint lodged by Mr [ENTITY], PSI of Modasa Town Police Station registered the offence against the respondents accused persons as they were identified and they were member of unlawful assembly gathered at the place of the incident in question. During the course of investigation, the investigating agency recorded the statements of various witnesses and further collected certain documentary evidence and drawn panchnama of the scene of offence and arranged TI Parade and gathered other relevant evidence. After having found sufficient material against the respondent-accused persons, the Investigating Agency filed charge-sheet against the respondents-accused before the court of the learned Judicial Magistrate, First Class, Modasa. As the said Court lacked jurisdiction to try the offence, it committed the case to the Court of Sessions as provided under [SECTION] of the Code. Upon committal of the case to the Sessions Court, Sabarkantha the learned trial Judge framed charge vide Exhibit 3 against the respondent accused for the aforesaid offences. All the accused persons pleaded not guilty and claimed to be tried.
3 In order to bring home the charge, the prosecution has examined 28 witnesses, produced documentary evidence, more particularly as described in paragraph 3 of the impugned judgment.
4 On conclusion of the trial, all the respondents-accused were generally examined under the provisions of [SECTION] of the Code and in the further statement all the respondents-accused denied their involvement in the crime and further stated that they are innocent and they have not committed any crime as alleged. After hearing both the sides and after analysis of the evidence adduced by the prosecution before the trial Court, all the respondents-accused came to be acquitted from the charge of the offences framed against him.
5 We have minutely examined the evidence of the witnesses and documentary evidence supplied by the learned APP for our perusal and we have also heard the submissions of the learned APP, Mr [ENTITY] appearing for the State. We have no doubt in our mind that for the offence for which the respondents-accused were charged is a very serious in nature and such crime should never be tolerated or it should go unpunished. Mere serious allegations are not sufficient to prove the charge. In the case on hand, we have examined the evidence of witnesses who were present at the time of occurrence of the incident. Not a single witness deposed to the effect that either any of the witnesses have seen any of the accused burning national flag in public place nor any of the witnesses stated that any of the accused persons was spreading or exciting the hatred so as to spread disaffection against the Government. There are two sets of witnesses, namely, witnesses from public and witnesses from the police department. Nothing is found so as to infer that any of the accused persons was involved in committing the offence as alleged against them. Further, discovery panchnama at Exhibit 11 is of no consequence because police officers are eye witnesses to the alleged incident that took place on 8.12.1992 and therefore such discovery panchnama is not helpful or is of no consequence. Photo copy of the bill, though collected, but, was not placed on record so as to prove that accused Nos.9 and 10 purchased the national flag for committing the crime in question. We have also found that TI Parade was held in open ground and it is of no consequence. Moreover, there is lot of contradiction about the timing of the occurrence of the incident in question. Suffice it to refer to the evidence of PW No.1, Mr [ENTITY], Sub Divisional Magistrate. It has come on record that though the police personnel were present at the scene of the offence, but they have not arrested any of the accused persons and apart from that in their evidence before the trial Court they have not deposed so as to believe the prosecution case as alleged against the respondents-accused. Under the circumstances, considering the nature of the evidence adduced by the prosecution before the trial Court, the learned trial Judge has rightly recorded the finding of acquittal as the prosecution has miserably failed to prove the essential ingredients of the offences with which the respondent-accused were charged and tried. On our reappreciation and re-assessment of the evidence as a whole, we do endorse that the learned trial Judge has rightly acquitted the respondents-accused persons from the offence in question. The learned APP, Mr [ENTITY] could not point out any compelling reasons or grounds to interfere with the findings recorded by the learned trial Judge so as to interfere with the impugned judgment.
6 Lastly, the appellate Court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Keeping in mind the evidence adduced by the trial Court and also settled principle as to scope of appeal against the acquittal order there are no good reasons to interfere with the findings of the trial court as there is no iota of evidence to infer that the respondent-accused have committed the offence for which they were charged and tried.
It is a cardinal principle 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. ([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.
8 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."
9 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.
10 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.
11 In view of the above and for the reasons stated above, present application for leave to appeal being [CASE NUMBER] fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, [CASE NUMBER] also deserves to be dismissed and is accordingly dismissed.
([ENTITY], J.) ([ENTITY], J.) *mohd Page of 6