IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 166 of 1992 with CRIMINAL REVISION APPLICATION No 61 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STASTE OF GUJARAT Versus MAHESHKUMAR U PATEL -------------------------------------------------------------- Appearance: MS BR GAJJAR APP for Appellant - State MR HL JOSHI for M/S THAKKAR ASSOC. for Respondent Nos. 1-3,7 MR JASHVANT SHAH for MR PS CHAMPANERI for Respondent Nos. 4-5 MR RR VAKIL for Respondent No. 6 Respondent No.8 died during the pendency of the appeal. Hence appeal aginst him is abated -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of decision: 22/11/2002 C.A.V. JUDGEMENT 1. The State Government has by preferring this appeal under Section 378(1) of the Criminal Procedure Code, 1973 [for short "Cr.P.C.] challenged the correctness and legality of judgment Ex.59 dated 6th December, 1991 rendered by the learned Chief Judicial Magistrate, Vadodara [who will be referred to hereinafter as the "learned Magistrate of the trial Court"] in Criminal Case No.2680 of 1987, by which all 8 accused, who are respondents in this appeal were acquitted under Sections 248(1) of Cr.P.C. of the offences punishable under Sections 143, 147, 148, 323 alternatively under Sections 324, 341, 427, 506(2) of the Indian Penal Code [for short "I.P.C."] and also under Section 135 of the Bombay Police Act [for short "B.P.Act"] for contravention of Section 37(1) of the B. P. Act. 1.1 From the record, it appears that Indian Dyestuff Industries Limited posing itself as original complainant has by filing Criminal Revision Application No.61 of 1992 under Section 397 of Cr.P.C. challenged that very judgment of acquittal by joining original accused Nos.1 to 8 as revision opponent Nos.1 to 8 and State of Gujarat as revision opponent No.9. From the record, it appears that no order appears to have been passed by this Court in proceeding of the said Criminal Revision Application No.61 of 1992. 1.2 From the record of this appeal, it appears that the original accused No.8 - Prakashchandra Bhagvanbhai Patel, who was residing abroad in America died in motor accident on 23rd November, 1999. The Police Sub-Inspector of Sayajiganj Police Station had sent a copy of death certificate issued by the Competent Authority of the Government of America together with certificate issued by Sarpanch of Nanafofar Gram Panchayat to the Registrar of this Court. In view of this, this appeal as against the respondent No.8 has already been abated under Section 394(1) of Cr.P.C. 2. The facts leading to this present appeal in a nutshell are as follows :- 2.1 The original complainant - Devendrakumar Shankarlal Joshi lodged his complaint in Sayajiganj Police Station, Vadodara City on 9th July, 1987 and as per that complaint, he is serving as Plant Engineer in IDI Company, situated in village Ranoli, since eight years before the date of complaint. As per the complaint, there was a strike declared by employees union in the said IDI Company since 3rd June, 1987. The members of that employees' union were preventing other employees from going inside the premises of the Company for performing their respective duties and they were threatening them. They were also beating such employees, who were not joining with them in the strike. One incident of such beating the employees by the members of the employees' union had taken place on 27th June, 1987 and, thereafter, the employees of the said Company were reaching to the place of their service by travelling in the Bus under a police ascot. As an attempt of members of the employees' union were frustrated, they had assembled at S.T. Depot of Race Course at Vadodara at about 8.15 A.M. on 09.07.1987. 2.2 The complainant had gone to Race Course Depot as Bus Stop for bus of their Company, is also situated at that very place. The complainant had gone to that place so as to catch the bus of the Company to go to the Company to attend his duty. At that time, about 10 to 12 persons of that Company had assembled there, one of them was Mr.M.U.Patel [accused No.1], who came near the complainant and gave a threat that he would kill him, if he [complainant] would go to the Company for the purpose of service and further that he would also break his legs. At that time, the employees, who were on strike came there. Out of that employees, who were on strike, one was Mr.N.A.Shukla [accused No.7], who was armed with an iron chain, second was Mr.A.P.Raj [accused No.3], who was armed with an iron pipe, third was Mr.P.V. Patel [accused No.8], who was armed with black coloured "V" belt, and had worn black coloured cotton glows, fourth was Mr.N.R.Parikh [accused No.6], who was armed with black wire, fifth was Mr.R.R.Patel [accused No.4], sixth was Mr.John Benz [accused No.2], who was armed with an iron rod. Mr.M.U.Patel [accused No.1] was not having with him any weapon. On seeing these persons, complainant got frightened. At that time, one Dr.Rao, Dr.K.S.Sriram, Mr.J.M.Bhatt and Mr.C.B.T.Ishwaran came there, at the place, where the complainant was standing. They gave courage to complainant to face the situation. 2.3 At about 8.20 A.M., the passenger bus of IDI Company arrived at the Company's Bus Stop, Dr.K.S. Sriram, Mr.J.M.Bhatt and Mr.C.B.T. Ishwaran could board the bus and following them, the complainant was trying to board the bus and behind the complainant, Dr.Rao was also to board the bus. At that time, Mr.N.R.Parikh [accused No.6] and Mr.R.R.Patel [accused No.4], both came there and caught hold the shirts of the complainant and Dr.Rao, from behind and they took them out from the bus. Mr.G.I.Patel [accused No.5] pricked the valve of the wheel of the bus and caused the air to leak out from the wheel. Before complainant could understand as to what had happened, the accused Mr.Shukla had wielded the chain in the air, which came on the complainant and, therefore, the complainant caught hold of that chain. At that time, Mr.A.P.Raj [accused No.3] and Mr.John Benz [accused No.2] had beaten the complainant on his hand by inflicting blow of pipe and iron rod, as a result of which the chain, which was caught hold by the complainant got released from the grip of the complainant. Thereafter, Mr.N.A.Shukla [accused No.7] inflicted a blow of the chain on his abdomen, as a result of which the complainant had become bend and, thereafter, Mr.Shukla had inflicted a blow of chain on the face of the complainant, as a result of which, there was bleeding from the part near the mouth of the complainant. The complainant sustained injuries on chin, right cheek, abdomen, neck and two hands. At that time complainant's colleague Dr.Rao sustained hidden injuries on his face. Mr.P.V.Patel [accused No.8] inflicted a blow of "V" belt, on temple portion and right portion of neck. Mr.J.M.Bhatt sustained bleeding injuries. One Mr.K.C.Oza came there to rescue the complainant and while doing so, he sustained injuries on his left wrist. Mr.D.L.Joshi sustained hidden injuries on his face as well as abdomen. Mr.P.S. Shah sustained injuries on his abdomen and back portion as a result of infliction of blows of pipe as well as kick and fist and Mr.N.S.Barot had sustained injuries on back portion of neck by infliction of blows of kick and fist. Thereafter, accused, who were in number of about 10 to 12 persons and, who were on strike gave threat to the complainant as well as the injured witnesses that they would not allow them to keep alive, if they would go to the Company for the purpose of service. They also asked them not to dare to go to the Company for service and they would see as to for what period they would get a police ascort. The complainant has stated in his complaint that he had seen other persons in group of employees of the union, which had declared strike, but he could not remember their names. He has also stated in his complaint that he would inform the police department as and when, he would remember names. 2.4 Thereafter, complainant went to his Family Doctor, Dr.G.R.Mehta residing in Mahisha Society and obtained preliminary medical treatment and as per his advice, he went to S.S.G. Hospital, Vadodara for further medical treatment. While complainant was in S.S.G. Hospital, Vadodara, he lodged his complaint to Police Sub-Inspector, Sayajiganj Police Station, Vadodara and complainant signed that complaint. In the complaint, he has given the names of eight accused, who were members of the employees' union, which had declared strike against the management of Company. From the evidence of the Investigating Officer, it appears that the said complaint possibly might have been lodged at or around about 11.30 A.M. and that complaint came to be registered as C.R.No.I-774/87. The investigation of the said case was entrusted to P.W.11. P.S.I. Shri Jayaprakash B. Kadel. P.S.I. Shri Jayaprakash B. Kadel went to the scene of offence and drew a panchnama of the scene of offence. He recorded the statements of witnesses, who were conversant with the facts of the case. He, thereafter, collected medical certificates of the injured witnesses from the Civil Hospital, Vadodara. Thereafter, he arrested accused and recovered weapons from them. On completion of investigation, P.S.I. Shri Jayaprakash filed charge-sheet against all the accused in the Court of the learned Magistrate of the trial Court on 11th November, 1987. That charge sheet came to be registered as Criminal Case No.2680 of 1987. 3. The learned Magistrate of the trial Court framed charge at Ex.4 on 25th March, 1988 and recorded pleas of the accused. They have pleaded not guilty to the charge and claimed to be tried. 4. To prove the case against the accused persons, the prosecution examined the following eleven witnesses. i. P.W.1 Dr.Rozi Mathai, [Medical Officer who examined the injured witnesses] at Ex.15. ii. P.W.2 Mr.D. S. Joshi [complainant] at Ex.26. iii. P.W.3 Mr.Dhananjay L. Joshi at Ex.31. iv. P.W.4 Mr.K.C.Oza at Ex.32. v. P.W.5 Mr.D.D. Salekar at Ex.34. vi. P.W.6 Mr.L.P. Ghadghe, Ex.35. vii. P.W.7 Mr.K.K. Narayanan Raman [panch witness] at Ex.36. viii. P.W.8 Mr.N.S.Barot at Ex.38. ix. P.W.9 Mr.J.H. Mahant [panch witness] at Ex.39. x. P.W.10 Mr.J.M.Bhatt at Ex.42. xi. P.W.11 P.S.I., Shri Jayaprakash B. Kadel [Investigating Officer] at Ex.46. 5. The prosecution has also produced the following documentary evidence along with the other documentary evidence to substantiate the case against the accused for which charge has been framed. a. Seven medical certificates issued by Medical Officer, S.S.G. Hospital, Vadodara, who examined seven injured witnesses, namely [1] Mr.D.K. Joshi, [2] Mr.J.M.Bhatt, [3] Mr.P.S.Shah, [4] Dr.Rao, [5] Mr.D.N.Joshi, [6] Mr.Nareshchandra Shashikant Barot and [7] Mr.K.C. Oza at Ex. 16, 17, 18, 19, 20, 21 and 22 respectively. b. Original complaint at Ex.27. c. Panchnama of scene of offence at Ex.37. d. Recovery panchnama of iron pipe produced by the accused No.2 Mr.John Advard at Ex.40. 6. On evidence led by the prosecution was over, the learned Magistrate of the trial Court explained to and brought to the notice of each accused by recording further statement of each accused, separately. From further statements of the accused, it appears that they have denied the entire prosecution case and, therefore, their defence is of a complete denial. They have advanced their defence that their union had declared a nonviolent strike against the Management of their Company. They are the leading members of the union and, therefore, with a view to see that chaotic condition takes place in the strike and observers of strike do not succeed in their strike, a false case has been lodged against them. The accused have neither led any evidence nor they have entered into witness box to give evidence on oath, in their defence. From the record, it appears that the learned advocate for the original complainant filed his written arguments through learned APP at Ex.57. On hearing, the arguments of the learned advocates for both the parties and on analyzing and appreciating the evidence on record, the learned Magistrate of the trial Court came to a conclusion that the prosecution has failed to prove the case against all the accused beyond reasonable doubt for the offences punishable under Sections 143, 147, 148, 323 alternatively under Section 324, 341, 427, 506(2) of the I.P.C. and also under Section 135 of the B.P.Act. On coming to such conclusion, the learned Magistrate of the trial Court by rendering his judgment at Ex.59 dated 6th December, 1991 acquitted all the accused under Section 248(1) of Cr.P.C. of the offences punishable under Sections 143, 147, 148, 323 alternatively under Section 324, 341, 427, 506(2) of the I.P.C. and also under Section 135 of the B.P.Act, for which charge was framed against them. 7. Being aggrieved against and dissatisfied with the aforesaid judgment of acquittal in favour of the accused, the State Government has preferred Criminal Appeal No.166 of 1992, while, as stated earlier, Indian Dyestuff Industries Limited claiming to be an original complainant has filed Criminal Revision Application No.61 of 1992 under Section 397 of Cr.P.C. 8. Ms.B.R.Gajjar, learned APP for the State i.e. appellant of Criminal Appeal No.166 of 1992 has taken me through the entire oral as well as documentary evidence led by prosecution in the case before the trial Court. Mr.H.L. Joshi, learned advocate representing respondent Nos.1, 2, 3 and 7 has taken me through the impugned judgment challenged in this appeal. I have heard Ms.B.R.Gajjar, learned APP for the appellant, Mr.H.L.Joshi, learned advocate for and on behalf of M/s.Thakkar Associates representing respondent Nos.1, 2, 3 and 7, Mr.Jashvant Shah, learned advocate for and on behalf of Mr.P.S. Champaneri, representing respondent Nos.4 and 5. Mr.R.R.Vakil, learned advocate for the respondent No.6 has remained absent through out the hearing of the appeal. 9. Ms.B.R.Gajjar, learned APP for the appellant State has argued that the learned Magistrate of the trial Court has not appreciated the evidence in its correct and perspective manner and further that looking to the evidence led by prosecution, the learned Magistrate of the trial Court ought to have held all the accused guilty for the offences, for which a charge was framed against them. She has further argued that the impugned judgment is wrong, erroneous and unsustainable. She has further argued that this Court is empowered to reappreciate the evidence on record and come to a contrary conclusion to the effect that the prosecution has ably proved the case against all the accused and thereby, this Court should convict and sentence all the accused by allowing the appeal filed by the State Government. In support of her arguments, she has cited an authority of Narayan Chetanram Chaudhary and another Vs. State of Maharashtra, reported in AIR 2000 S.C. 3352. From this authority, she has read para-40, which appears at Page No.3368 and argued that the omissions found in the evidence of injured witnesses are trivial and cannot be considered as major contradictions. She has further argued that the discrepancies, which appeared in the evidence of witnesses, cannot be said to be a material discrepancies and evidence of prosecution cannot be thrown over, board on highlighting such discrepancies as major contradictions. 10. In reply to the aforesaid arguments, Mr.H.L.Joshi, learned advocate appearing for respondent Nos.1, 2, 3 and 7 and Mr.Jashvant Shah, learned advocate appearing for respondent Nos.4 and 5 have supported the judgment challenged in this appeal. They have argued that learned Magistrate of the trial Court has correctly and properly appreciated the evidence on record, keeping in mind well settled principles of law with regard to appreciation of evidence. They have further argued that it is not sufficient to show by the appellant that the impugned judgment is wrong, erroneous and unsustainable. They have argued that this Court being Appellate Court is required to seek an answer to the question whether the findings of trial Court are [i] palpably wrong, [ii] manifestly erroneous or [iii] demonstrably unsustainable. They have further argued that the conclusion of the appellate Court that legitimately on reappreciation of evidence, another view than one taken by the trial court is possible, cannot constitute a valid and sufficient ground to interfere with acquittal order. Mr.Joshi has cited the following authorities :- [1] Harijana Thirupala and others Vs. Public Prosecutor, High Court of A.P., Hyderabad, reported in 2002 Supreme Court Cases (Criminal) 1370 - relevant paras 12 and 16. [2] Kalyan and others Vs. State of U.P., reported in 2002 Supreme Court Cases (Criminal) 780 - relevant paras 8, 9 and 19. [3] Thanedar Singh Vs. State of M.P., reported in 2002 Supreme Court Cases (Criminal) 153 - para-14. [4] Kashiram and others Vs. State of M.P., reported in 2002 Supreme Court Cases (Criminal) 68 relevant para 21. [5] Patel Hiralal Joitaram Vs. State of Gujarat, reported in 2002 Supreme Court Cases (Criminal) 1 - relevant para 11. [6] Jaipal and another Vs. State of U.T. Chandigarh, reported in 1998 Supreme Court Cases (Criminal) 1593 - relevant para 4. [7] Garasia Ratubha Hanubha and another Vs. State of Gujarat, reported in 1997 Supreme Court Cases (Criminal) 195. I have considered the submissions made by both the parties. I have carefully gone through and examined the evidence on record. I have reappreciated the same to come to my own conclusion. 11. Before, I deal with the submissions and evidence on record, I would like to place on record the scope and ambit of Section 378 of Cr.P.C. and powers of the Appellate Court, which can be exercised, while dealing with the acquittal appeal. 12. In case of Ramesh Babulal Doshi Vs. The State of Gujarat, reported in 1996 (2) G.L.H. 206 [S.C.], it has been held in para-7 by the Hon'ble Supreme Court as follows:- "This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed." 13. In another case of Ajitsavant Majagvai Vs. State of Karnataka, reported in 1997 Supreme Court Cases (Criminal) 992, the Hon'ble Supreme Court has laid down certain principles which govern and regulate the hearing of the appeal by the High Court against an order of acquittal passed by the trial Court in para-16. It has been held as follows :- " This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under : [1] In an appeal against an order of acquittal, the High court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction. [2] The High Court has the power to reconsider the whole issue reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse. [3] Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal. [4] In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court. [5] If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. [6] The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanor of witnesses and observing their conduct in the court especially in the witness-box. [7] The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused." 14. Keeping in mind the aforesaid legal position with regard to ambit and scope of Section 378 of Cr.P.C. under which acquittal appeal can be filed and the principles with regard to powers of the appellate court, which can be exercised in dealing with the appeal against the acquittal judgment rendered by the trial Court. Now we will discuss the evidence on record. 14.1 On reading complaint at Ex.27 lodged by P.W.2 Shri Devendrakumar Shankarlal Joshi. The following persons were beaten by the accused as a result of which they sustained minor and major injuries. [1] Complainant himself. [2] Dr.B. V. Rao. [3] J. M. Bhatt. [4] Mr.K. C. Oza. [5] Mr.D. L. Joshi. [6] Mr.P. S. Shah. [7] Mr.N. S. Barot. Out of the aforesaid seven injured persons, the prosecution has examined only five injured witnesses and dropped two injured witnesses namely [1] Dr.B. V. Roa and [2] Mr.P.S. Shah. The prosecution has produced an injury certificate at Ex.18 for injury, sustained by Mr.P.S. Shah and an injury Certificate at Ex.19 for injury, sustained by Dr.B. V. Rao. No reasons are assigned by the prosecution for dropping these two important eye witnesses, when evidence was declared to be closed by the prosecution. As per rojkam, the prosecution declared that their evidence was over, on 18th September, 1990. 15. I have kept in mind the different principles settled by the Hon'ble Supreme Court in cases cited by Mr.H.L.Joshi, learned advocate for the respondent Nos.1, 2, 3 and 7. 16. The prosecution has examined the complainant Devendrakumar Shankarlal Joshi as P.W.2, at Ex.26. He has deposed in his evidence that he is serving as a Plant Engineer in IDI Company and, there was a strike declared by employees on 3rd September, 1987. The employees, who were on strike were preventing and beating the employees, who in fact wanted to go to Company for performing their duty and such type of untoward incident had taken place on 27th June, 1987. He has further deposed that the incident [of this case] took place on 9th July, 1987. He had gone to S.T. Workshop where he parked his Scooter and, thereafter, he was to take sit in the passenger bus, which was being plied by the Company. He has further deposed that at that place, about 10 to 15 persons, had come there, one of them was Mr.N. A. Shukla, second was Mr.N.R.Parikh and third was Mr.A.P.Raj. He has also deposed that accused Nos.1, 2, 3, 5, 8 and other accused were also standing there. He