CR.A/599/1999 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 599 of 1999 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 SHARMA CHIMALAL CHHANALAL & 2 - Opponent(s) ====================================== Appearance : MR M.R.MENGDE, A.P.P. for Appellant(s) : 1, MR BHARGAV HASULKAR for MR SV RAJU for Opponent(s) : 1 - 3. ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 20/02/2008 ORAL JUDGMENT Being aggrieved and dissatisfied with the judgment and order rendered by the learned Judicial Magistrate First Class, Mansa ('ld.Magistrate', for short) on 25.02.1999 in Criminal Case No.383 of CR.A/599/1999 2/8 JUDGMENT 1990, the State of Gujarat preferred this appeal under Section 378 of the Criminal Procedure Code, 1973 ('Code', for short). By virtue of the impugned judgment and order, the ld.Magistrate was pleased to acquit the present respondents-accused for the offences punishable under Section 451, 352 and 506(2), r/w. Section 114 of Indian Penal Code ('IPC', for short). 2. The case of the prosecution in nutshell is, the complainant Pravinbhai Chandulal was residing along with his family members in the area called Pandyano Madh, Vallabh Chowk, Mansa. That the 3 respondents-accused were also residing in the same vicinity. It is the case of the prosecution that the respondent-accused No.1 Chimanlal Chanalal had illicit relation with the wife of the complainant named Pravinaben. Many a times, complainant asked the respondent-accused No.1 not to keep illicit relation with his wife. That before about 2 days from the date of filing the FIR before police (considering the FIR, Exhibit-21, the same was filed in Mansa Police Station by the complainant on 11.9.1989), the respondents-accused armed with Dariya and Sticks, trespassed into the house of the complainant and they threatened to kill the complainant and his family members. That they assaulted with dangerous weapons in their hand. After the complaint was registered, the police started investigation, and after the completion of investigation, the police filed chargesheet against the present respondents No.1 & 2 i.e. original accused No.1 Chimanalal Chanalal and original accused No.2 Subhash Chanalal. It appears that during the course of trial, the complainant applied under Section 319 of the Code to implead the present respondent No.3 as co-accused, and thereby the present respondent No.3 Chandulal Chanalal was impleaded as accused No.3 in the aforesaid criminal case. The respondents-accused did not plead guilty, and therefore, the prosecution adduced its oral and documentary evidence. CR.A/599/1999 3/8 JUDGMENT The prosecution examined complainant Pravinbhai Chandulal at Exhibit- 20. The testimonies of witnesses Chandulal Mathurdas, Chandulal Vitthaldas, Bharatkumar Chandulal, Amrutlal Girdharlal, P.S.I. Jagdishchandra Amrutlal Pathak, Kantaben Chandulal, Gitaben Anandrai were recorded at Exhibits-77, 79, 78, 83, 95, 121 and 125 respectively. During the course of trial, the prosecution produced required documentary evidence like FIR, Panchnama of the scene of offence, Recovery panchnama of weapons etc. After the conclusion of evidence, the ld.Magistrate recorded further statements of the respondents-accused under Section 313 of the Code, wherein they denied all the allegations leveled against them. The ld.Magistrate appreciating the evidence on record, and after considering the arguments advanced on behalf of both parties, delivered the impugned judgment and order dated 25.02.1999 and he was pleased to acquit the respondents-accused for the offences punishable under Section 415, 352, 506(2) r/w. Section 114 of the IPC. 3. On behalf of the appellant-State of Gujarat ld.A.P.P. Mr.Mengde argued that the ld.Magistrate erred in not properly appreciating the evidence on record. That the version of the complainant Pravinbhai Chandulal gets support by independent witnesses. Despite this, the ld.Magistrate erred in not properly appreciating his evidence. That there is ample direct and indirect evidence connecting the accused with the crime. The witnesses have supported the case of the prosecution. That the ld.Magistrate erred in not properly taking into consideration one relevant fact that because the respondent-accused No.1 was keeping illicit relation with the wife of the complainant, she committed suicide. Therefore, it is submitted that the appeal be allowed and the impugned judgment and order passed by the ld.Magistrate be set-aside, and the respondents-accused be appropriately punished for the offences punishable under Section 451, 352, 506(2) r/w. Section 114 of CR.A/599/1999 4/8 JUDGMENT IPC. 4. On behalf of the respondents, learned Counsel during the course of his argument fully supported the impugned judgment and order passed by the Trial Court. It is submitted that the ld.Magistrate truly and legally appreciated the evidence adduced by the prosecution on record and rightly came to the conclusion that the accused persons deserve acquittal. That there was delay in filing the FIR. Delay is not properly explained. The delay is such that it creates doubt in the case of the prosecution. That there are major contradictions in the depositions of the witnesses, again creating doubt in case of the prosecution. That there is no iota of evidence to come to the conclusion that accused No.1 or any of the accused persons had any so-called illicit relation with the wife of the complainant. That this is an appeal under Section 378 of the Code, wherein it is now well settled that the Appellate Court can interfere with the judgment and order of acquittal delivered by its subordinate Court, only if the Appellate Court finds that the judgment of the Trial Court is perverse or contrary to the material on record. That there is nothing on record to come to the conclusion that the ld.Magistrate committed any error. That the prosecution failed to prove its case beyond reasonable doubt. Therefore, it is submitted that the appeal be dismissed. 5. Considering the deposition of complainant Pravinbhai Chandulal, Exhibit-20, he narrated the incidence more or less in the manner as stated in his FIR. The motive behind this incidence as per the case of the prosecution is this that the respondent-accused No.1 Chimanlal Chanalal was keeping illicit relation with the wife of the complainant named Pravinaben. When the complainant came to know about such an affair, many a times he asked the respondent-accused CR.A/599/1999 5/8 JUDGMENT No.1 not to keep any relation with his wife. According to the case of the prosecution, thereupon the accused persons armed with deadly weapons entered the house of the complainant and committed the offence. Now, the complainant Pravinbhai in his deposition stated that not only the accused No.1 Chimanlal Chanalal, but even the accused No.2 Subhasbhai Chanalal and accused No.3 Chandulal Chanalal were keeping illicit relations with his wife. As per the deposition of complainant Pravinbhai, as well as considering the depositions of other witnesses, who are family members of the complainant Pravinbhai, the offence took place on 08.09.1989 at about 7 to 7.30 a.m. Now, considering the FIR, Exhibit-21, it clearly transpires that the same was filed by the complainant Pravinbhai in Mansa police station on 11.09.1989. Therefore, it becomes clear that the complaint was not filed on the same day when the offence was alleged to have taken place. Considering the impugned judgment delivered by the ld.Magistrate, he took into consideration this aspect of the matter. Ld.Magistrate further observed that it has come in the evidence of the complainant and especially in the deposition of witness Chandulal Mathurdas, Exhibit-77, it has come in evidence that Mansa police station was just adjacent to the residence of the complainant, and within 15 minutes one can reach to the police station from the residence of the complainant. Despite this, the complaint was filed after about 3 days. Furthermore, the ld.Magistrate took into consideration one relevant fact that FIR, Exhibit-21 reveals that it contains typed papers. Considering the deposition of complainant Pravinbhai, he nowhere stated that where the complaint was typed and who typed the complaint. What he stated is, on 11.09.1989, he filed complaint against the accused persons. However, considering the deposition of Chandulal Mathurdas, who happens to be the father of the complainant Pravinbhai, he stated that his son, complainant Pravinbhai had gone to Ahmedabad and from there he brought the typed papers which were presented by his son CR.A/599/1999 6/8 JUDGMENT before the police. Neither in the FIR, Exhibit-21 nor during the course of evidence, the complainant explained the delay while filing the FIR. Moreover, ld.Magistrate observed that as per the case of the complainant, the alleged offence took place on 08.09.1989, and on 10.09.1989, wife of the complainant committed suicide. The ld.Magistrate further observed that to avoid any criminal prosecution against the complainant by parents of his wife, the complainant concocted the incidence and filed the present complaint against the present accused persons on 11.09.1989. However, the fact remains that this is a case of delayed FIR, and the delay is nowhere explained. 6. After appreciation of evidence on record, the ld.Magistrate further observed in the impugned judgment that at the time of so-called offence, whether the complainant alone was present or his other family members, like his father, mother and sons were present or not. About such vital aspects, there are major contradictions in the evidence of the prosecution. As per the deposition of complainant, he himself and all his family members were present when the accused armed with deadly weapons threatened him and his family members. Whereas considering the deposition of witness Bharatkumar Chandulal, when the accused entered into their house, carrying weapons in their hands, he himself, complainant Pravinbhai and other family members went inside the house. Witness Kantaben Chandulal, who happens to be the mother of the complainant, stated that at the time of the incidence, she alone was present in the house. Ld.Magistrate further observed that if at all the accused had threatened the complainant and his family members, that they will kill them and especially at the time of giving threats, the accused were armed with deadly weapons, then the complainant would have immediately rushed to the police station and would have requested some police protection. That on the contrary, it has come in evidence CR.A/599/1999 7/8 JUDGMENT that after the incidence was over, at about 7.30 a.m. on 08.09.1989, the complainant and his brother had gone to their shop for doing their business. The ld.Magistrate further observed that the prosecution examined only interested witnesses baring witness Gitaben Anandrai. And even considering the deposition of Gitaben Anandrai, she clearly stated that she was not knowing the accused persons. She did not narrate the incidence. Thus, according to the ld.Magistrate, Gitaben who can be said to be independent witness, did not support the case of the prosecution. Ld.Magistrate further observed that even the recovery of so- called weapons like Dhariya and sticks from the accused persons is not proved beyond reasonable doubt, in the sense that the Panchas of the Recovery panchnama turned hostile and did not support the contents of the Panchnama. 7. It is now settled law that although the Appellate Court is vested with power to re-appreciate and re-evaluate the evidence on record, generally it would not interfere with the order of acquittal, unless it is found that the judgment of the Trial Court is perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. Even two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. 8. Keeping in mind the settled principles, together with the reasons assigned by the ld.Magistrate in the impugned judgment, while appreciating the evidence adduced before him by the prosecution, it cannot be said that the ld.Magistrate committed any error in coming to the conclusion that the prosecution failed to prove its case beyond CR.A/599/1999 8/8 JUDGMENT reasonable doubt. Therefore, the ld.Magistrate did not err in acquitting the respondents-accused for the offences punishable under Section 451, 352, 506(2) r/w. Section 114 of IPC. Therefore, the appeal deserves to be dismissed. 9. In the result the appeal deserves to be dismissed, and the same is hereby dismissed. (J.C. Upadhyaya, J.) binoy