CR.A/725/1997 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 725 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 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 ? ========================================================= UMAR GAGU - Appellant(s) Versus SARDARSINH H ZALA & 1 - Opponent(s) ========================================================= Appearance : MR MJ BUDDHBHATTI for Appellant(s) : 1, MR KB ANANDJIWALA for Opponent(s) : 1, PUBLIC PROSECUTOR for Opponent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 28/11/2008 ORAL JUDGMENT 1. The challenge in this appeal is to the impugned order rendered by learned Chief Judicial Magistrate, Jamnagar (‘learned Magistrate’, for short) on dated 3.6.1993 in Criminal Case No.1929 of 1985. By impugned judgment and order, the CR.A/725/1997 2/8 JUDGMENT learned Magistrate was pleased to acquit the respondent No.1, who was original accused in the aforesaid criminal case from the charges of the offences punishable under Sections 323, 504 and 506(1) of the Indian Penal Code (‘IPC’, for short). 2. The prosecution case in nutshell was that the accused being Police Officer in the rank of Police Sub-Inspector arrested the complainant Umar Gagu on dated 14.7.1985 from his home and was brought to the police station and he was severely beaten and was abused and was threatened. That till 21.7.1985, regularly at the interval of everyday, the complainant was required to be brought to the police station, and he was made to sit in the police station till late evening. That on dated 21.7.1985, at about 10 a.m., the accused along with the other Police Constable assaulted the complainant Umar Gagu and was severely beaten. 2.1 The plea of the accused was recorded by the learned Magistrate on dated 6.10.1987, to which the accused pleaded did not guilty and claimed to be tried. Therefore, the depositions of original complainant Umar Gagu, witnesses Noor Mohammad, Kishoresinh Ganubha and Dr.M.B.Parmar were recorded. No more witnesses were examined. Injury certificate came to be produced during the course of deposition of Dr.Parmar. After the completion of the evidence adduced by the prosecution, the learned Magistrate recorded further statement of the accused under Section 313 of the Code of Criminal Procedure (‘Cr.P.C.’, for short), in which the accused CR.A/725/1997 3/8 JUDGMENT denied generally all the allegations levelled against him and stated that the original complainant Umar Gagu was an accused in one case under Arms Act, and therefore, as a counter-blast, false complaint was filed against him. 2.2 After appreciating the evidence on record and after hearing the arguments advanced on behalf of both the sides, the learned Magistrate was pleased to record acquittal of the respondent – accused for the offences punishable under Sections 323, 504 and 506(1) of the IPC. Being aggrieved and dissatisfied with the order of acquittal, the original complainant Umar Gagu preferred this appeal under Section 378 of the Cr.P.C. 3. Learned advocate Mr.Buddhbhatti for the appellant – complainant submitted that the impugned judgment and order delivered by the learned Magistrate is quite erroneous and contrary to the facts on record. That the learned Magistrate erred in not properly appreciating the evidence of the complainant. That the complainant examined the Medical Officer in support of his case that he was beaten by the accused and he had sustained injuries on his person. That the reasons assigned by the learned Magistrate in acquitting the accused are contrary to the evidence on record and contrary to the law. That the evidence of the complainant is fully corroborated by witness Noor Mohammed Dost Mohammed. Therefore, it is submitted that the appeal be allowed and the impugned order of acquittal recorded by the learned Magistrate be set-aside and the respondent No.1 original accused be convicted for the offences charged against him. CR.A/725/1997 4/8 JUDGMENT 4. On behalf of the respondent No.1 (original accused), learned advocate Mr.Anandjiwala fully supported the impugned judgment and order rendered by the learned Magistrate and submitted that learned Magistrate rightly appreciated the evidence on record and arrived at the conclusion that the prosecution failed to prove its case beyond reasonable doubt. It is submitted that this being acquittal appeal under Section 378 of the Cr.P.C., the powers vested in this Court are very limited. Even if two views are possible, the view which favours the acquittal of the accused should be taken. That the original complainant was arrested in connection with some offence under the Arms Act and as a counter-blast and to pressurize the Investigating Police Officer, false allegations of beating etc. were made. Therefore, it is submitted that the appeal be dismissed. 5. On behalf of the respondent No.2 – State of Gujarat, learned APP Mr.U.R.Bhatt is heard. 6. Before the evidence adduced by the complainant before the trial Court is re-appreciated and reanalyzed, it would be necessary to consider that this being acquittal appeal under Section 378 of the Cr.P.C., Hon’ble the Apex Court in the case of Chandrappa and others Vs.State of Karnataka reported in (2007)4 SCC 415 observed as under: 6.1.1 An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. CR.A/725/1997 5/8 JUDGMENT 6.1.2 The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. 6.1.3 Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. 6.1.4 An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not be disturbed by the appellate court.” 7. Keeping in mind, the above principles established by Hon’ble Apex Court, if the evidence adduced by the complainant is re- appreciated, it would appear that the complainant in his complaint dated 22.7.1985 alleged that from dated 14.7.1985 till 22.7.1985 regularly at the interval of everyday, the accused used to come to his house and was taken to police station illegally and he was confined in the police station and was beaten by stick and kick and fist blows. In his complaint dated 22.7.1985, it is stated that on 21.7.1985, at 10 a.m., he was CR.A/725/1997 6/8 JUDGMENT called by the accused to the police station and he was compelled to lie down on a bench and he was beaten by 2 or 3 Police Constables at the instance of the accused. Considering the deposition of Dr.Parmar, Exh.50, it is true that on dated 22.7.1985 when complainant Umar Gagu was brought before him, this bodily injures were noted by the Medical Officer. All injuries were simple in nature. However, Dr.Parmar deposed that no history was given before him by the complainant. However, witness Kishorsinh Ganubha was examined at Exh.52. According to his deposition, at the relevant time, he was serving in LCB Department. He stated that during 14.7.1985 to 22.7.1985, the accused was PSI LCB. At the time of his testimony, this witness brought the weekly diary, which the accused used to forward to District Superintendent of Police, and considering the weekly diary, the witness stated that in the weekly diary, there is no reference of arrest of the complainant Umar Gagu recorded at Exh.58. In his cross- examination he admitted that whenever any accused was kept in lockup, the entries were made in lockup register. He admitted that the accused was arrested in connection with some offence under the Arms Act. The son of the complainant Hussainbhai Umarbhai was examined at Exh.60 and according to his testimony, pursuant to the search warrant issued by the Court, his father was produced in the Court. 7.1 In the impugned judgment, the learned Magistrate discussed at length the oral evidence adduced by the prosecution. It is true that in the impugned judgment, the learned Magistrate observed that the complainant in his complaint alleged that he CR.A/725/1997 7/8 JUDGMENT was beaten by the accused, whereas during the course of his testimony he stated that he was beaten by 2 or 3 Constables at the instance of the accused. The learned Magistrate therefore observed that material improvements are there in the testimony of the complainant, which are not even pleaded by him in his complaint. Moreover, the learned Magistrate observed that the say the complainant that from dated 14.7.1985 till 22.7.1985, everyday he was asked to remain present throughout the day in the police station, does not get support from lockup register. There is no dispute that the complainant was arrested in connection with some offence under the Arms Act, which was investigated by the respondent accused. 7.2 The learned Magistrate assigning the reasons in the impugned judgment on the basis of the appreciation of evidence on record arrived at the conclusion that prosecution failed to prove its case beyond reasonable doubt. Re-appreciating the evidence on record, I do not find any illegality or any irregularity committed by the learned Magistrate in recording the order of acquittal in the impugned judgment. This is an acquittal appeal under Section 378 of the Cr.P.C. and as seen above, if two views are possible, one leading to the conviction of the accused and another leading to the acquittal of the accused, the view which is in favour of the accused is required to be taken. 8. In view of the entire above discussions, the appeal deserves to be dismissed. The appeal is dismissed. CR.A/725/1997 8/8 JUDGMENT (J.C.UPADHYAYA, J.) (binoy)