CR.A/1070/1997 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1070 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 ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus NARSHIBHAI RATANSHIBHAI VANPARIA - Opponent(s) ========================================================= Appearance : MR KC SHAH, APP for Appellant(s) : 1, MR PN BAVISHI for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 05/12/2008 ORAL JUDGMENT 1. The challenge in this appeal under Section 378 of the Code of Criminal Procedure ('Cr.P.C.', for short) is to the judgment and order rendered by Additional Sessions Judge, Junagadh on dated 29.9.1997 in Criminal Appeal No.50 of 1993. By CR.A/1070/1997 2/11 JUDGMENT impugned judgment and order the learned Sessions Judge allowed the said appeal and set-aside the order of conviction recorded by the learned Judicial Magistrate First Class, Keshod in Criminal Case No.193 of 1988 and acquitted the original accused (the respondent herein) from the charge of offences punishable under Sections 353, 504, 434, 186 of the Indian Penal Code. 2. The facts of the prosecution case in nutshell is as under:- 2.1 One Regular Civil Suit No.157 of 1987 was pending in the Court of learned Civil Judge (Jr.Division), Keshod. In the said suit, for the purpose of taking measurements, the learned Civil Judge appointed the first informant Mr.A.A.Tamachi as Court Commissioner, who was at the relevant time serving as Surveyor in the office of Land Record. It is the case of the prosecution that on dated 28.2.1988 between 10 a.m. to 11 a.m., the Court Commissioner visited the site and started taking measurements, at that time, he was humiliated and was given filthy abuses by the respondent – accused and was also obstructed in performing his official duty and that two survey- marks came to be removed by the accused. It is the case of the prosecution that the incident was reported by the first informant – Surveyor Mr.Tamachi to the Civil Court and the learned Civil Judge directed the police to provide police CR.A/1070/1997 3/11 JUDGMENT protection to the Surveyor and to register the complaint, which the Surveyor may lodge before the police. Thereupon, the first informant – Surveyor Mr.Tamachi lodged the FIR before Keshod police station regarding the incident and the offence came to be registered. 2.2 The police investigation was commenced. Investigating Police Officer recorded statements of relevant witnesses, panchnama of the scene of offence was drawn. After the completion of the police investigation, chargesheet came to be filed in the Court of learned Judicial Magistrate First Class, Keshod against the accused which was registered as Criminal Case No.193 of 1988. 2.3 In Criminal Case No.193 of 1988, since the respondent – accused did not plead guilty and claimed to be tried, the prosecution adduced its oral and documentary evidence. After the completion of the evidence, the learned Magistrate recorded the further statement of the accused under Section 313 of the Cr.P.C. and the accused in his further statement denied generally all the allegations levelled against him and stated that he was falsely implicated in this case. After considering the evidence on record and the submissions advanced on behalf of both the sides, the learned Magistrate by his judgment and order dated 30.6.1993 recorded the conviction of the respondent – accused for the offences punishable CR.A/1070/1997 4/11 JUDGMENT under Sections 186, 353, 434 and 504 of the IPC and the accused was appropriately sentenced for the commission of the above offences. 2.4 Feeling aggrieved and dissatisfied with the order of conviction recorded by the learned Magistrate, the respondent – accused preferred Criminal Appeal No.50 of 1993 in Sessions Court, Junagadh. The learned Additional Sessions Judge after calling for the record of the criminal case and after considering the evidence adduced by the prosecution in said case, and considering the submissions advanced on behalf of both the sides, delivered the impugned judgment and order on dated 29.9.1997 and he was pleased to allow the appeal of the respondent – accused, and the order rendered by the learned Magistrate, recording the conviction of the respondent – accused, came to be set-aside and the accused was acquitted. Feeling aggrieved and dissatisfied with the impugned order rendered by the learned Additional Sessions Judge, recording the acquittal of the respondent – accused, the State of Gujarat preferred this appeal under Section 378 of the Cr.P.C. 3. On behalf of the appellant – State of Gujarat, learned APP Mr.Shah submitted that the impugned judgment recording the acquittal, rendered by the learned Additional Sessions Judge, is contrary to law and evidence on record. That the learned Sessions Judge erred in arriving at the CR.A/1070/1997 5/11 JUDGMENT conclusion that the first informant – Surveyor Mr.Tamachi was not competent to launch the prosecution and the prosecution was hit by the provisions contained under Section 195 of the Cr.P.C. It is submitted that it has categorically come on record that soon after the incident, the first informant Mr.Tamachi reported the incident to the learned Civil Judge and upon direction given by the learned Civil Judge, he approached the police and lodged the FIR. Therefore, the learned Sessions Judge committed serious illegality in acquitting the accused on the ground that the first informant was not competent to launch the prosecution. 3.1 It is submitted that even considering the factual scenario of the matter, the evidence of the first informant – Surveyor Mr.Tamachi itself is sufficient to come to the conclusion that the prosecution proved its case beyond reasonable doubt. That the first informant Mr.Tamachi was independent public servant, who was appointed by the Civil Court to perform his duty as Court Commissioner. He was not at all interested in the dispute, which was pending between the two parties. He categorically stated that while he was performing his duty, the accused came there and he was humiliated and that the accused abused him and obstructed him in performing his official duty and that the two survey marks were removed by the accused. That the evidence by the first informant CR.A/1070/1997 6/11 JUDGMENT is corroborated by the evidence of independent witness, together with the panchnama of the scene of offence drawn by the police in presence of Panch witness. It is categorically stated that the two survey marks found removed and that the soil appeared to have been recently dug, therefore, it is submitted that there was no reason whatsoever for the first Appellate Court to interfere with the judgment and order recording conviction of the accused rendered by the learned JMFC. Therefore, it is submitted that the appeal be allowed and the impugned judgment and order rendered by the Sessions Court, recording acquittal of the respondent – accused be set-aside and the respondent – accused be convicted and appropriately sentenced for the commission of offences charged against him. 4. None appeared for the respondent. 5. Before the evidence adduced by the prosecution before the trial Court is re-appreciated or re- analysed, it would be necessary to consider the fact that as the present one is an appeal preferred by the State 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: 1.1.1 An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. 1.1.2 The Code of Criminal Procedure, 1973 puts no limitation, CR.A/1070/1997 7/11 JUDGMENT 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. 1.1.3 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. 1.1.4 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.” 6. Keeping in mind the principles established by Honourable the Apex Court, the evidence adduced by the prosecution deserves to be briefly re- examined. The evidence of the first informant Mr.Tamachi, Exh.14 is considered, he stated that on dated 28.2.1988, he visited the site as Court Commissioner, as he was appointed to perform the work by the Civil Court. He went to site between 10 a.m. to 11 a.m. and he started drawing panchnama and measured the land and survey marks were installed, in the meanwhile, the accused came there. The first informant stated that the CR.A/1070/1997 8/11 JUDGMENT accused was neither plaintiff nor defendant in the suit in which he was appointed as Court Commissioner. That the accused removed the marks and obstructed him and he was abused and humiliated and he could not perform his work satisfactorily, and therefore, he informed the concerned Court and lodged the FIR. In his cross-examination, he stated that he could not say as to who were parties to the suit, but, plaintiff and defendant were present. He denied the suggestion that the accused did not remove the marks and did not abuse him. 6.1 Now in this connection,the FIR Exh.23 is considered, the first informant narrated the incident in his FIR. However, neither in the FIR nor in his deposition, he referred the names of the persons who were present at the time when he visited the site and was performing his duty as Court Commissioner. 6.2 Furthermore, considering the deposition of the first informant, it appears that he was drawing the panchnama and he had completed the measurements and the survey marks were installed on the land by him and he was preparing rojkam, meanwhile the accused came. In the impugned judgment, the learned Sessions Judge rightly observed that the Investigating Police Officers should have collected the panchnama and rojkam prepared by the first informant on site at the CR.A/1070/1997 9/11 JUDGMENT time of the incident. The learned Sessions Judge rightly observed that if the panchnama would have been collected by the police, that would have provided the material information and the relevant fact as to what was the work which the first informant had already completed and at what stage the alleged obstruction was caused by the accused. 6.3 The panchnama, Exh.16, the scene of offence panchnama reveals that some pits were found on the land and some stones appear to have been removed and some of the pits appear to have been recently filled in with clay. 6.4 In the impugned judgment, the learned Sessions Judge discussed the evidence adduced by the witnesses Haridas Maganlal, Jaysukh Champaklal, Vrundavan Vitthalbhai, Mansukh Jerambhai and the Investigating Police Officer, Mr.Bachhani and appreciating the evidence on record and assigning reasons observed that the evidence adduced by the prosecution through those witnesses does not inspire any confidence about the alleged abusement made by the accused or alleged obstruction made by the accused. So far as the removal of survey marks are considered, appreciating the evidence on record, the learned Sessions Judge observed that the evidence adduced by the prosecution did not specifically reveal the fact as to at which stage the alleged obstruction was caused to the Surveyor. As seen above, the learned Sessions CR.A/1070/1997 10/11 JUDGMENT Judge rightly observed that the Investigating Police Officer should have collected the rojkam prepared by the Surveyor – first informant on site. Even considering the evidence of Investigating PSI Mr.Bachhani, Exh.21, in his cross-examination, he categorically admitted that in the FIR, the first informant did not refer name of any witness. Despite this, the Investigating Police Officer denied the suggestion that the names of the witnesses which he has mentioned in his report, under Section 173 of the Cr.P.C. were not present on the site at the time of the incident. 6.5 In the impugned judgment the learned Additional Sessions Judge further observed that both the parties to the suit had settled their dispute and that therefore, the suit came to be amicably disposed of. 7. Considering the above discussions, I do not find any reason to interfere with the impugned judgment and order rendered by the learned Sessions Judge, recording the acquittal of the respondent – accused. There is nothing that the impugned judgment and order rendered by the learned Sessions Judge is contrary to law and evidence on record. However, in the impugned judgment, the learned Sessions Judge observed that considering the provisions contained under Section 195 of the Cr.P.C., the original CR.A/1070/1997 11/11 JUDGMENT complainant was not competent to launch the prosecution, but, only the concerned Court was competent to launch the prosecution. Considering the entire evidence on record, when this Court has come to the conclusion that the learned Sessions Judge did not err in appreciating the evidence on record and when the prosecution failed to prove its case beyond reasonable doubt, now at this stage, it is not necessary for this Appellate Court to go into the validity of the technical aspect considered by the learned Sessions Judge. It is pertinent to note that in this case the facts are very peculiar, in the sense that, the trial Court convicted the accused, whereas the learned Sessions Judge rendered the order of acquittal and set-aside the order of conviction recorded by the learned Magistrate. Therefore, even if two reasonable views are there, 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, leading to the acquittal, deserves to be accepted. 8. For the foregoing reasons, the appeal deserves to be dismissed. The appeal is dismissed. (J.C.UPADHYAYA, J.) (binoy)