CR.A/1229/2005 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1229 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 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 ? ========================================= THE STATE OF GUJARAT Versus HEMABHAI DHARMABHAI PATEL & ORS ========================================= Appearance : MR AJ DESAI APP for Appellant MR MEHUL H RATHOD for Respondents ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 12/03/2008 CR.A/1229/2005 2/7 JUDGMENT ORAL JUDGMENT :(Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 Instant Appeal is preferred by the State under Section 378 of the Code of Criminal Procedure, against the judgment and order delivered by Additional Sessions Judge, Banaskantha at Palanpur, on 19th of February, 2005, in Special Case No. 14 of 2004. 2 Learned APP Mr. A.J. Desai for the State was heard. Leave to Appeal is granted. Appeal is Admitted. Learned Advocate Mr. Mehul H Rathod for the respondents waives. 3 Upon request of learned APP and learned Advocate appearing for the respondents, this Appeal was taken up for final hearing today. It is requested by the learned Counsels that Record and Proceedings of the Trial Court is summoned and is available with the Court and that they would provide necessary xerox copies of the evidence recorded during the trial and documents produced. 4 As per prosecution case, the incident in question occurred on 10th of February, 2003 at 12.00 p.m. in the field of village Radka, bearing Survey No. 154, owned by complainant Babubhai Kasabhai Harijan. It is alleged that Babubhai Kasabhai Harijan had been to village Kansari and was not present at the field. The incident, therefore, was witnessed by his brother Shankarbhai. It is alleged that present respondents illegally entered in the CR.A/1229/2005 3/7 JUDGMENT said field of the complainant and cut the hedge of the field. It is also alleged that the respondents uttered words insulting the caste of the complainant and dismantled the water storage and the small house standing on the field and they through tractor had stolen away the goods from such house of the complainant. The complainant – Babubhai filed a private complaint before the court of Judicial Magistrate, First Class, in this respect, on 25th of February, 2003 and the learned JMFC , Tharad, on the same day, directed the police to investigate the same under Section 156(3) of the Code of Criminal Procedure. The said criminal complaint was registered as `M' Case No. 6 of 2003 in Tharad Police Station and a charge sheet came to be filed against all the respondents for the offences punishable under Sections 447, 379 and 114 of the Indian Penal Code and under Section 3(1)(10) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. 5 On committing the case, which was registered as Special Case No. 14 of 2004, was made over to the learned Additional Sessions Judge, Banaskantha at Palanpur, who framed the charges against the respondents for the above said offences and on their pleading not guilty, they were put to trial. 6 Prosecution examined Babubhai Kasanbhai Harijan at Exhibit-16; Shankarbhai Kasanbhai Harijan, complainant at Exhibit -22; witness Rameshbhai Chenabhai Chamar, at Exhibit-23; Vardhabhai Arjanbhai, panch of panchnama of scene of offence, at Exhibit-25; panch of muddamal recovery panchnama - Pravinkumar Ravjibhai at Exhibit-27; CR.A/1229/2005 4/7 JUDGMENT police witnesses have been examined, vide Exhibits 30 and 37. 7 At this juncture, we have carefully and thoroughly gone through the Record and Proceedings of the Trial Court and have re-appreciated the evidence. We have taken into consideration the vital features of the matter and reasonable probabilities arising out of the circumstances of the case. We have also taken into consideration the reasons assigned by the Trial Judge for acquittal and contentions raised by the learned APP and learned Advocate for the respondents in this Appeal. 8 It appears from the record and from scrutiny of the evidence that complainant Babubhai, examined at Exhibit – 16, is a formal witness and he was not present at the time of the incident. He was conveyed this fact by his brother Shankarbhai Kasanbhai, examined at Exhibit-22, who deposed that while he was at the field bearing Survey No. 154, accused trespassed the field after cutting hedge. It was stated by him that accused also demolished the hut standing on the field and damaged to the land. He stated that he was all alone at the time and, therefore, he was frightened and called Babubhai from village Kansari by telephone. Witness Rameshbhai Chenabhai Chamar also is not an eye witness, but he knew this incident from complainant and his brother. All the panchas of the panchnamas prepared by the police have not supported the prosecution case. According to police witness - PSI Natvarlal Somabhai Rathod, examined at Exhibit-33, had investigated the offence and had submitted charge sheet. Though the other witnesses i.e. PSO Parthiji Hathiji, CR.A/1229/2005 5/7 JUDGMENT at Exhibit-30 and PSI Jayaprakash Rambhai Patel, at Exhibit – 35, are also examined by the prosecution, but they are the formal witnesses. 9 From re-appreciation of evidence, it transpires that, the whole case hinges upon the evidence of Shankarbhai Kasanbhai. Going through his evidence, we found that there are contradictions in his evidence as to actual occurrence of the incident. Main contradiction which arises in the say of the complainant and these witnesses is in respect of dismantling the hut and water storage. Shankarbhai, in his deposition, did not say that the accused took away all the goods from the field in tractor. Even it is found from the evidence of Natvarlal Rameshbhai Rathod, who is examined at Exhibit -33 that Shankarbhai did not state before him that the accused had dismantled the hut and caused damage to the land. He stated only to the extent of cutting of the hedge and entering into the field. This contradiction goes to the root of the matter and as to the incident and, therefore, no much reliance can be placed on the evidence of Shankarbhai Kasanbhai . 10 It is also found from the cross-examination of the complainant that there was civil dispute about this field between the parties. Complainant admitted that the accused had filed a civil suit against the complainant in respect of this very field and the Civil Court had granted stay against the complainant. 11 One more aspect, which goes to the root of the prosecution case, CR.A/1229/2005 6/7 JUDGMENT is in respect of late filing of the complaint. The incident has occurred on 10 th of February, 2003 and private complaint of the same came to be filed before the learned JMFC on 25th of February, 2005. Though, he stated in the complaint that the complainant had been to the Police on 11th of February, 2003 and had offered a written complaint, but Police did not choose to take any action, but there is nothing on the record to indicate that in fact the complainant had offered any complaint on 11th of February, 2003 before the Police. Consequently, there is no proper explanation for filing complaint late by 15 days and, therefore, doubt is created in the prosecution case. 12 The learned Trial Judge rightly appreciated the evidence and came to the conclusion that the prosecution could not prove its case beyond reasonable doubt. The learned Trial Judge also assigned the above said reasons on proper appreciation of evidence. 13 This is an appeal against the acquittal and law as to deal with the appeal against the order of acquittal is well settled. Unless it is found that the findings of the trial court are perverse, manifestly erroneous, palpably wrong and demonstrably unsustainable, no interference is permitted in the order of acquittal impugned in this Appeal. Therefore, there is no reason at all to interfere in the findings of the Trial Court of acquittal as the reasoning and conclusion of the trial court cannot be labelled as perverse, manifestly erroneous, palpably wrong and demonstrably unsustainable. Therefore, this Appeal has no merit and is required to be dismissed. CR.A/1229/2005 7/7 JUDGMENT 14 In above view of matter, Appeal stands dismissed. (J. R. VORA, J.) (M. R. SHAH, J.) pnnair