CR.A/73119/1994 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 731 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ========================================= 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 DIPAKBHAI ISHWARBHAI BHAGAT & 9 - Opponent(s) ========================================= Appearance : MR KP RAWAL, ADDL. PUBLIC PROSECUTOR for Appellant(s) : None for Opponent(s) : 1,3 - 4, 6,8 - 9. (MR BJ JADEJA) for Opponent(s) : 1, MR BS PATEL for Opponent(s) : 2, 5, 7, 10, ========================================= CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 06/10/2008 ORAL JUDGMENT CR.A/73119/1994 2/11 JUDGMENT By way of the present appeal under Section 378 of the Code of Criminal Procedure, 1973 (“the Code” for short), the appellant- State has questioned the legality and validity of the impugned judgment and order of acquittal dated 28.2.1994 passed in Criminal Case No. 1649/91 by the learned Judicial Magistrate, First Class, Karjan. 2. The facts of the case, briefly summarized, are that the complainant, Thakore Ambalal Patel, lodged the complaint at Exh. 17 with regard to the incident for which the accused persons are charged with having committed offences under Sections 143, 147, 148, 149, 324 & 452 of the Indian Penal Code as well as Sec. 135 of the Bombay Police Act. It is alleged in the complaint at Exh. 17 that there was election of the dairy and for canvassing of the election, the complainant, one Jagjivanbhai Ranchhodbhai, Ambalal Himmatlal Joshi and Prakashbhai Manibhai Joshi (victim) were passing near Jayhind Khadki. At that time, Kanubhai Devjibhai Patel met and he had heated discussion with Prakashbhai Manibhai as regards the election matter, which resulted in a quarrel. At that time, the accused persons, (1) Deepakbhai Ishwarbhai Bhagat, (2) Pravinbhai Iswharbhai Bhagat, (3) Rakeshbhai Ishwarbhai Bhagat, (4) Rajeshbhai Ishwarbhai Bhagat, (5) Maganbhai Varadbhai Patel, (6) Atulbhai Rameshbhai Patel, (7) Chunilal Bhailalbhai Patel, (8) Rupeshbhai Chunilal Patel, (9) Chunilal Jashbhai Patel, are said to have rushed there armed with sticks and pipes. It is also alleged CR.A/73119/1994 3/11 JUDGMENT that the original accused No. 2 Pravinbhai Ishwarbhai Bhagat, armed with pipe, rushed to give a blow to Prakashbhai Manibhai (victim) and Prakashbhai ran into the house of Govindbhai Becharbhai and closed the doors. However, the accused persons thrust open the door, dragged out Prakashbhai Manibhai and at that time accused No.2-Pravinbhai Ishwarbhai inflicted the blow with the pipe on the forehead of Prakashbhai Manibhai (for short 'the victim') as a result of which he was profusely bleeding and fell down. Thereafter, other persons who were with the victim, including the complainant, intervened and therefore the accused persons (assaulting party) ran away. Therefore, the victim was rushed in a Maruti van to the Karjan Government Hospital for treatment and the complaint was lodged by the complainant Thakore Ambalal Patel, which is at Exh. 17. On the basis thereof, the complaint was registered as C.R. No. I-332/91 at Karjan Police Station for the alleged offences under Sections 143, 147, 148, 149, 324 & 452 of the Indian Penal Code as well as Sec. 135 of the Bombay Police Act. The learned Judicial Magistrate, First Class, Karjan, recorded the plea and as the accused persons claimed to be tried for the offences for which the charge was framed at Exh. 3, the learned Magistrate proceeded with the trial after recording the evidence and passed the impugned judgment and order recording the acquittal of the accused persons, which has been assailed by the appellant-State in the present appeal on the grounds narrated in detail in the memo of appeal contending, inter CR.A/73119/1994 4/11 JUDGMENT alia, that the learned Magistrate has erred in acquitting the accused persons though there are ample direct and indirect evidence to connect the accused persons with the offences alleged. It is also contended that the learned Magistrate has erred in not appreciating the evidence of the complainant and other witnesses including the eye witness Govindbhai Becharbhai. It is therefore contended that the learned Magistrate has erred in disregarding and appreciating the evidence and, therefore, the order regarding acquittal of the accused is improper, perverse, unwarranted on the material evidence on record. 3. Mr. K.P. Rawal, learned Addl. Public Prosecutor, for the appellant-State fairly conceded that at the time of admission of this appeal, while passing the order dated 21.4.1995, the appeal had been rejected qua respondents-original accused Nos. 1, 3, 4, 6, 8 and 9 and it has been admitted only qua respondents-original accused Nos. 2, 5, 7 and 10. He has, therefore, submitted that as the appeal qua other persons have been rejected at the admission stage, the charges for offences under Sections 143, 147, 148 and 149 will not survive and will not be relevant. However, it was submitted that the court is required to appreciate the overt act and the material evidence qua each of the accused for whom the appeal has been admitted. For that purpose he referred to the deposition of the complainant-Thakore Ambalal Patel at Exh. 16 and his complaint at Exh. 17. Learned APP Mr. Rawal submitted that in the CR.A/73119/1994 5/11 JUDGMENT complaint at Exh. 17 it has been specifically stated by the complainant as regards the overt act that the victim Prakashbhai was dragged out by the assaulting party (accused persons) and the accused-respondent No. 2 armed with pipe had inflicted a blow and the victim fell down. This has not been appreciated. However, he has also, referring to the deposition of the complainant Thakore Ambalal Patel at Exh. 16, has conceded that in his deposition he has not specifically referred to the name of the accused No.2- Pravinbhai. He has, on the contrary, stated that Prakashbhai was inflicted the blow by anyone from the crowd of 4-5 persons. He has specifically stated that who has given the blow and who has given the blow with the stick he cannot say. Similarly, referring to the deposition of another eye witness Jagjivanbhai Ranchhodbhai, who was also there present at the time of incident, as he was also accompanying the victim Prakashbhai when the quarrel took place and he has also not specifically identified or said about any overt act. Learned APP Mr. Rawal referred to the deposition of Jagjivanbhai Ranchhodbhai. Jagjivanbhai in his deposition stated that he has also referred to the group of people including the accused persons, but he has stated that 2-3 persons dragged the victim Prakashbhai out and there was an altercation. He has also stated that he cannot say who has inflicted the blow as there was darkness and therefore he cannot identify and say who had given the blow to the victim Prakashbhai. However, he referred to the other material evidence on record including the medical evidence CR.A/73119/1994 6/11 JUDGMENT and submitted that the blow has been admittedly inflicted and it has been caused by the assaulting party (the accused persons). In the complaint, the complainant has specifically referred to the name of respondent No.2-Pravinbhai, but he has not by inadvertence or for whatever reason, stated the same in his deposition at Exh. 16. Similarly, it has not been stated by another eye witness also. Therefore, it was submitted that the court may consider the material evidence on record. 5. Mr. B.S. Patel, learned advocate appearing for the accused persons however submitted that in view of the fact that the complainant in his deposition at Exh. 16 failed to specifically state as to the overt act by any of the persons, that is, he has not specifically stated about the respondent No. 2 and that respondent No. 2 Pravinbhai had inflicted the blow, meaning thereby he has not supported or stood by his version in the complaint to that extent. Similarly, another eye witness Jagjivanbhai Ranchhodbhai has also stated in his deposition that as there was darkness he cannot say who has inflicted the blow. Learned advocate Mr. Patel has also submitted that, in fact, the eye witness Jagjivanbhai has also not been able to say whether the blow was inflicted with stick or pipe as he has stated that the blow was given with some black wooden substance. He, therefore, submitted that the observations and findings given by the learned Magistrate recording the acquittal of the accused is just and proper. Learned advocate Mr. CR.A/73119/1994 7/11 JUDGMENT Patel for the respondents-accused has also submitted that it is well- settled that if two views are possible and the view taken by the trial court, which is a reasonable view, then this court should not interfere with the acquittal even if the other view is possible. It was submitted that if two views are possible, then the view which is beneficial to the accused may be accepted and the court may not interfere with the judgment and order of the learned Magistrate recording the acquittal. 6. In view of the rival submissions and also on appreciation and scrutiny of the evidence, which has been referred to by both the sides, it is required to be considered as to whether it would call for any interference with the impugned judgment and order recording the acquittal of the accused. On scrutiny of the evidence, it transpires that the incident is said to have taken place with regard to an election matter when the victim-Prakashbhai accompanied by the complainant and others were proceeding, there was some heated discussion which resulted into the quarrel. It is also required to be appreciated that at the time of admission of this appeal, the court has passed an order rejecting the appeal qua respondent Nos. 1, 3, 4, 6, 8 & 9 and the appeal is admitted qua respondent Nos. 2, 5, 7 and 10 only. Therefore, the charges for the offences under Sections 143, 147, 148 and 149 would not remain and it would not have any relevance. Therefore, as rightly submitted by the learned APP, it is now only required to be focused CR.A/73119/1994 8/11 JUDGMENT in this appeal as regards the overt act of each of the remaining accused persons qua whom the appeal has been admitted and the evidence on record for the same. For that purpose, both the sides have referred to the deposition of the complainant-Thakore Ambalal Patel (Exh. 16) and, as discussed, he has specifically stated that he had given the complaint (Exh.17). However, he has also specifically stated that the assaulting party were armed with pipes and lathis. He has specifically stated that the victim Prakashbhai was inflicted the blow by any of the 4-5 persons of the assaulting party meaning thereby he has not specifically stated about any overt act by any of the accused. It is required to be appreciated that in his complaint at Exh. 17 he has specifically narrated as to what had transpired, that the victim Prakashbhai was dragged out by the assaulting party and the respondent original accused No. 2 Pravinbhai Iswharbhai is said to have inflicted the blow with the pipe as a result of which the victim Prakashbhai started bleeding profusely and thereafter he was removed to the Karjan Government Hospital. However, in his deposition he has not stuck to his version or supported his version as given in his complaint at Exh. 17. On the contrary, in his deposition he has stated that the blow was given by any of the 4-5 persons of the assaulting party. Similarly, another eye witness Jagjivanbhai Ranchhodbhai in his deposition at Exh. 17 has stated that as there was darkness he could not say who had inflicted the blow to the victim Prakashbhai and in fact he has not been able to say as to who had inflicted the blow with the pipe or CR.A/73119/1994 9/11 JUDGMENT lathi. He has merely stated that the blow was inflicted by some black wooden substance. He has denied in the cross-examination that respondent No. 2 Pravinbhai inflicted the blow with the lathi. It is also required to be appreciated that the evidence of the victim Prakashbhai is recorded at Exh. 22 and in his deposition (Exh. 22) he has stated that after he had a quarrel with Kanubhai, the assaulting party ran after him and therefore he went into the house of Govindbhai and closed the door from inside. Thereafter the assaulting party dragged him out and respondent No.2-Pravinbhai had inflicted the blow with the pipe. He has stated that Kanubhai was provoking the people that the victim may be finished. However, in the cross-examination he has admitted that Kanubhai was provoking that the victim may be finished is not stated by the victim in his statement before the police. Similarly, in the cross- examination he has stated that all members of the assaulting party, that is, all the accused persons, were beating him and he fell down and Thakore Ambalal and Jagjivanbhai Ranchhodbhai had intervened to save him. Therefore, he has not remained consistent with his own examination-in-chief meaning thereby he has not, in the cross-examination, stuck to his version that pipe blow was inflicted by respondent-accused No. 2. On the contrary, he has stated that he was beaten by all the accused persons. 7. Therefore, on appreciation and scrutiny of the evidence on record, it would be evident that the view taken by the learned CR.A/73119/1994 10/11 JUDGMENT Magistrate recording the acquittal of the accused is not perverse but possible and this court is in agreement with the conclusion arrived at and the acquittal recorded by the learned Magistrate. Therefore, it may not be further necessary to elaborate on this aspect and scrutinize the evidence threadbare as observed by the Hon'ble Apex Court in a judgment in the case of State of Karnataka v. Hemareddy & Anr. reported in AIR 1981 SC 1417. Moreover, it is well-settled that if two views are possible, the view which is beneficial to the accused is required to be accepted and if the trial court has recorded the acquittal, this court would not ordinarily interfere with such an order recording acquittal. Even if a different view is possible, that by itself, is not sufficient to interfere with the order of acquittal. 8. The Hon'ble Apex Court in its judgment in the case of K. Prakashan v. P.K. Surendran reported in (2008) 1 SCC 258 has referred to this aspect and observed that when two views are possible, the appellate court should not reverse the judgment of acquittal merely because the other view was possible unless when the judgment of the trial court was neither perverse nor suffered from any legal infirmity or non-consideration of any material evidence on record. 9. Similar view has also been expressed by the Hon'ble Apex Court in its judgment in the case of State of Goa v. Sanjay CR.A/73119/1994 11/11 JUDGMENT Thakran & Anr. reported in (2007) 3 SCC 755. It is observed, referring to the scope of interference by the appellate court, that the appellate court can review the evidence and interfere with the order of acquittal only if the approach of the lower court is vitiated by some manifest illegality or the decision is perverse and the court has committed a manifest error of law and ignored the material evidence on record. 10. In the facts of the present case, as discussed hereinabove, there is no such error or mistake committed by the learned Magistrate in recording the acquittal of the accused persons on appreciation of the material evidence on record. Therefore, this court is not inclined to interfere with the order of acquittal recorded by the learned Judicial Magistrate, First Class, Karjan. The impugned judgment and order dated 28.2.1994 passed by the learned Judicial Magistrate, First Class, at Karjan in Criminal Case No. 1649/91 recording the acquittal of the accused is hereby confirmed and the present appeal filed by the appellant-State deserves to be dismissed. The present appeal is, accordingly, dismissed. (Rajesh H. Shukla, J.) (hn)