CR.A/965/1999 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 965 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 PRAGNESH @ PINTUBHAI MOHANBHAIPATEL & 3 - Opponent(s) ====================================== Appearance : MR MR MENGDE, A.P.P. for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1 - 4. MR KB ANANDJIWALA for Opponent(s) : 1 - 4. MR ASHISH D OZA for Opponent(s) : 1 - 4. ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 12/03/2008 ORAL JUDGMENT The appellant – State of Gujarat preferred this appeal challenging CR.A/965/1999 2/8 JUDGMENT the legality and validity of the impugned judgment and order delivered by learned Judicial Magistrate First Class, Valsad ('ld.Magistrate', for short) on 31.5.1999 in Criminal Case No.4347/1997. The ld.Magistrate was pleased to acquit all the respondents-accused for the offence punishable under Sections 323, 325, 452, 337, 338 and 427 read with Section 114 of Indian Penal Code ('IPC', for short). 2. The prosecution case in nutshell is as under:- 2.1 It is the case of the prosecution that the offence took place on 29.06.1997 at about 20.30 hours, near the house of complainant – Bhaniben Babubhai, situated at village Anjlav Desai Faliya, Taluka and District Valsad. It is the case of the prosecution that on 28.6.1997, the cattle of respondent-accused No.3 Vinodbhai Patel had trespassed into the field of the complainant, and the cattle were causing damage to the vegetable, which was grown in the field. It is the case of the prosecution that on 29.6.1997, at about 20.30 hours, when the complainant and her family members were inside their house, at that time the accused persons trespassed into her house, and accused Pintu Mohan and accused Sanjay Chhagan started beating her husband Babubhai with sticks, and Babubhai sustained grievous injuries. That the complainant herself and her mother-in-law Kashiben also sustained injuries in the incidence. That the accused caused damage to Suzuki motorcycle belonging to the complainant, and the house belonging to the complainant was also damaged. Upon receipt of the FIR lodged by complainant Bhaniben, the police started investigation and recorded the statements of witnesses. Police prepared necessary panchnama in presence of panchas. Injury certificates issued by Medical Officer regarding the injuries sustained by the injured witnesses were recovered by the police, and after the completion of investigation, the police filed CR.A/965/1999 3/8 JUDGMENT chargesheet against all the four respondent-accused persons. 2.2 The ld.Magistrate framed charge against all the four accused persons for the offence punishable under Sections 325, 323, 452, 337, 338, 427 r/w. Section 114 of IPC. Since the accused did not plead guilty, the prosecution adduced its oral and documentary evidence. The prosecution examined complainant Bhaniben Babubhai at exh.20. During the course of her deposition, the FIR was produced at exh.21. Medical Officer Dr. Ramavat was examined at exh.23. During the course of his deposition, the injury certificate issued by him pertaining to the injuries of witnesses Babubhai Patel, Kashiben Khalapbhai and complainant Bhaniben Patel were produced at exhs.24, 25 and 26 respectively. The prosecution examined witnesses Jayesh Babubhai at exh.29, Kashiben Khalapbhai at exh.31, Paliben Bhanaben at exh.40, Babubhai Khalapbhai at exh.41, Vinod Patel at exh.43, Dineshchandra Nanubhai at exh.45, Rakesh Chhaganbhai at exh.47 and Investigating Police Officer Mr.K.J. Patel at exh.49. No more witnesses were examined by the prosecution. The prosecution produced relevant panchnama regarding the panchnama of scene of offence and panchnama regarding recovery of weapon. After the completion of the evidence adduced by the prosecution, the ld.Magistrate recorded the further statement of all the accused persons u/s.313 of the Code of Criminal Procedure. All the accused persons denied the allegations leveled against them by the prosecution. The ld.Magistrate after appreciating the oral and documentary evidence adduced by the prosecution, and after hearing the arguments advanced on behalf of both the parties, delivered the impugned judgment, whereby he was pleased to acquit all the accused persons. 3. On behalf of the appellant – State, learned A.P.P. Mr.M.R. Mengde CR.A/965/1999 4/8 JUDGMENT submitted that the judgment and order of acquittal passed by the ld.Magistrate is contrary to law, evidence on record and principles of justice. That there are 3 injured eye-witnesses examined by the prosecution, and amongst them the injured witness Babubhai sustained grievous injury, like fracture. All these 3 injured eye-witnesses, who sustained injuries during the course of this offence, categorically deposed that they were beaten by the accused persons. There was no reason whatsoever to discard the ocular evidence in the form of injured witnesses produced by the prosecution. That the ld.Magistrate placed much emphasis upon minor contradictions, but, it is well settled that certain minor contradictions are bound to be there. The deposition of rustic witnesses, who are residing in a small village and who are illiterate, were examined by the prosecution. That therefore, considering the overall evidence on record, the prosecution successfully proved that the 3 injured eye-witness were beaten by the accused persons. Their injuries are supported by medical evidence. That therefore, the appeal be allowed and the impugned judgment and order delivered by the ld.Magistrate be set-aside and all the accused be appropriately punished for the offence charged against them by the prosecution. 4. As against this, the learned counsel Shri Ashish Oza for the respondents-accused during the course of his argument supported the impugned judgment and order passed by the ld.Magistrate. It is submitted that the oral evidence adduced by the prosecution cannot be relied upon. There are material contradictions recorded by the ld.Magistrate in the impugned judgment, creating serious doubt about the case of the prosecution. That about the identity of accused, the alleged role played by the accused, while commission of the offence, and even the so-called motive behind this offence, no cogent and consistent evidence is forthcoming on record. That the witnesses stated exaggerated CR.A/965/1999 5/8 JUDGMENT version to the extend that the accused caused damaged to the tape- recorder belonging to the complainant, and even they had stolen Rs.1,000/- from the house of the complainant. That therefore, there is no reason whatsoever for this Appellate Court to interfere with the impugned judgment and order delivered by the ld.Magistrate. Therefore, it is submitted that the appeal be dismissed. 5. Before the evidence adduced by the prosecution in this case is appreciated or re-appreciated, it would be necessary to consider the principles established by the Honourable Supreme Court regarding the acquittal appeal filed u/s.378 of the Code of Criminal Procedure in the case of Chandrappa and others Vs.State of Karnataka reported in (2007)4 SCC 415: (1)An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2)The Code of Criminal Procedure, 1973 puts no limitation, 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. (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. (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 CR.A/965/1999 6/8 JUDGMENT 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. (5)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. Considering the above principles established by the Honourable Supreme Court, keeping in mind these principles, if the evidence adduced by the prosecution in this case is again appreciated, and perusing the impugned judgment delivered by the ld.Magistrate, it becomes crystal clear that the ld.Magistrate did not commit any error or illegality while coming to the conclusion that the prosecution failed to prove its case beyond reasonable doubt against the accused persons. In the well-reasoned judgment delivered by the ld.Magistrate, the ld.Magistrate discussed the oral evidence adduced by the complainant and other witnesses examined by the prosecution. The case of the prosecution is this that all the four accused persons simultaneously trespassed into the house of the complainant. In this respect, if the evidence adduced by the complainant and the witnesses Babubhai, Kashiben and Vinodbhai is considered, none of these witnesses stated that all the accused persons simultaneously trespassed into the house of the complainant. As per the deposition of injured witness Babubhai, he himself and his family members were inside their house, at that time, Pintu knocked the door of their house, and he opened the door, and only Pintu trespassed into the house. Babubhai admitted that along with the accused Pintu, no other accused trespassed into his house. Considering the deposition of witness Jayeshbhai, he deposed that only Pintu and Vinodbhai trespassed into their house. As against this, considering the deposition of complainant-Bhaniben, who is wife of witness Babubhai, CR.A/965/1999 7/8 JUDGMENT she stated that accused Pintu along with some boy trespassed into her house. Under such circumstances, whether all the accused persons simultaneously trespassed into the house of the complainant or one by one or along with the respondent-accused Pintu, who trespassed into the house of the complainant, on this fact there are material contradictions. The ld.Magistrate, in the impugned judgment observed that during the course of oral evidence, the witnesses created exaggeration. In the FIR exh.21, the complainant nowhere stated that the accused during the course of the offence had stolen her tape-recorder and Rs.1,000/- cash, whereas during the course of oral evidence adduced by the complainant and the witnesses, they stated that the accused had stolen their tape- recorder and Rs.1,000/- cash. The case of the prosecution is this that the serious injury of fracture was caused to Babubhai by accused Pintu by inflicting blow of stick. The wife of this witness Babubhai namely Bhaniben, who is complainant in this case, deposed that Pintu inflicted blow of iron-rod on the leg of Babubhai. As stated above, Babubhai says that he was beaten by stick by accused Pintu. Whereas considering the medical evidence adduced by Dr. Ramavat, the Doctor opined that the injury can be caused by stone. Regarding the motive behind the offence, the case of the prosecution is this that the cattle belonging to accused Pintu had trespassed into the field of the complainant and had caused damage to her standing crops, whereas, considering the deposition of Investigating Police Officer, the dispute between the parties was regarding the land itself. Ld.Magistrate further observed that the so- called injured witnesses stated that at the time of incident, approximately 100 persons had gathered. Out of them, prosecution examined Paliben Bhanabhai who turned hostile and has not supported the case of the prosecution. That it has come in evidence that within 5 minutes of the commencement of the offence, the light went off and there was darkness. Under such circumstances, how the witnesses CR.A/965/1999 8/8 JUDGMENT identified the accused, and what role was played by which accused while commission of the offence, cannot be said to have been proved beyond reasonable doubt by the prosecution. In paragraph – 16 of the judgment, the ld.Magistrate discussed at length the oral and documentary evidence adduced by the prosecution and ultimately came to the conclusion that the witnesses deposed exaggerated version in their depositions, and considering the overall evidence adduced by the prosecution, the prosecution failed to prove its case beyond reasonable doubt against the accused persons. 7. In light of the above discussions, it cannot be said that the ld.Magistrate committed any error or illegality while appreciating the evidence adduced by the prosecution in this case, and in coming to the conclusion that the prosecution failed to prove its case beyond reasonable doubt against the accused persons. Therefore, there is no reason for this Appellate Court to interfere with the order of acquittal recorded by the ld.Magistrate, and the appeal therefore deserves to be dismissed. 8. The appeal is hereby dismissed. (J.C. Upadhyaya, J.) binoy