CR.A/367/1998 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 367 OF 1998 For Approval and Signature: HONOURABLE MR.JUSTICE R.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 KANUBHAI PRATAPRAI THAKKAR - Respondent(s) ====================================== Appearance : Mr. K. P. Rawal, APP for Appellant(s). Mr. Haresh N. Joshi for M/s. Thakkar Associates for Respondent. ====================================== CORAM : HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 07/02/2008 ORAL JUDGMENT By way of the present appeal under Section 378 of the Code of Criminal Procedure, 1973 (“the Code” for short), the appellant-State CR.A/367/1998 2/11 JUDGMENT has questioned the legality and validity of the impugned judgement and order of acquittal dated 28th January, 1998 passed in Criminal Case No. 634 of 1993 by the learned Metropolitan Magistrate, Court No.20, Ahmedabad. 2. The facts of the case briefly summarised are that both the complainant and the accused are public servants serving in the Post Office. Having some quarrel, for which the accused is alleged to have given a fist blow to the complainant, as a result of which, the complainant sustained injuries and therefore, a complaint was filed, being C.R. No. I-123 of 1993, for the alleged offences under Sections 332, 323 and 427 of the Indian Penal Code, 1860 (“IPC” for short). The learned Metropolitan Magistrate recorded the plea and the accused claimed to be tried for the offence for which the charge was framed at Exh.3. The learned Metropolitan Magistrate proceeded with the trial and passed the impugned judgement and order, recording acquittal of the accused, which has been assailed by the appellant-State in the present appeal, inter alia, on the following grounds: 2.1 It has been contended that the learned Metropolitan Magistrate ought to have considered the evidence of the complainant – Jivanbhai Narshibhai Purani (PW-1), who is serving in the Postal Department since long, and there is nothing on record to indicate that he CR.A/367/1998 3/11 JUDGMENT would falsely implicate the accused. The learned Metropolitan Magistrate ought to have considered that the incident has taken place on 22nd April, 1993 at noon time and the complainant was taken to the hospital, and if the complaint was filed immediately, then, truth would have come out. It has also been contended that the evidence of the complainant, who is an injured witness, is corroborated by the doctor's evidence. Therefore, the offence under Section 332 of IPC is proved. 2.2 It has also been contended that the learned Metropolitan Magistrate ought to have considered the evidence of other employees and has failed to appreciate that the witnesses have supported the prosecution case and therefore, has erred in not considering this aspect while recording acquittal of the accused for which the charge is levelled against him. 3. Mr. K. P. Rawal, learned Additional Public Prosecutor for the appellant-State, has referred to the material evidence on record. He referred to the deposition of the complainant – Jivanbhai Narshibhai Purani (PW-1) at Exh.5, and submitted that he has supported the complaint at Exh.6 with regard to the occurrence of the incident. Mr. Rawal has strenuously submitted that the complainant has specifically stated that when the accused was asked not to sit on the handle of the chair and was asked by him to sit on the chair, he got excited and gave a CR.A/367/1998 4/11 JUDGMENT fist blow to the complainant and that is how, the incident has occurred. As a result thereof, the complainant had some bleeding from his mouth and his “kurta” was torn. The complainant has, therefore, specifically stated that after the incident, he had gone to the police station and lodged the complaint and also had taken the treatment at the hospital. Mr. Rawal, therefore, submitted that the observation made by the trial Court that the complaint ought to have been filed immediately and truth would have come out, is contrary to the record. 3.1 Mr. Rawal also referred to the deposition of the eye witness – Rameshbhai Kalidas Prajapati (PW-2) at Exh.8 and submitted that he is an eye witness to the incident and he has also specifically stated that he had seen the accused giving the fist blow to the complainant. In the cross-examination also, though a suggestion was specifically put to him that he is not an eye witness to the incident, he has denied the same. Mr. Rawal, therefore, submitted that there is evidence of the injured complainant , corroborated by the evidence of the eye witness and also supported by the medical evidence. Hence, Mr. Rawal strenuously submitted that the impugned judgement and order recording acquittal is not legal, valid and the trial Court has failed to appreciate the evidence and therefore, the impugned judgement and order recording acquittal is required to be quashed and set aside. CR.A/367/1998 5/11 JUDGMENT 3.2 Mr. Rawal also referred to the deposition of Dr. Virendrabhai Kanaiyalal, R.M.O. (PW-8) at Exh.60. He submitted that the marks of injury are found on the neck and lower lip, which is also supported by the medical certificate and therefore, the judgement and order recording acquittal is erroneous. Hence, the present appeal may be allowed. 4. On the other hand, Mr. Haresh Joshi, learned Advocate for M/s. Thakkar Associates appearing for the respondent-original accused, has referred to the material evidence in detail and it was emphasised that there are contradictions with regard to narration of the incident by the witnesses, including the eye witness and the complainant. For that part, he has referred to the deposition of the complainant – Jivanbhai Narshibhai Purani (PW-1) at Exh.5, and depositions of Rameshbhai Kalidas Prajapati (PW-2) at Exh.8 and Jayantibhai Kalidas (PW-6) at Exh.14, who are the eye witnesses. Mr. Joshi has also referred to the provisions of Section 332, read with Section 427, of IPC and submitted that it does not fulfill the criteria inasmuch as there is no mens rea or intention as the incident is said to have occurred from a trivial quarrel. Therefore, Mr. Joshi submitted that the impugned judgement and order recording acquittal is just and proper. He also submitted that no independent witness like customer, who might have been present at the relevant time, is examined by the prosecution. Further, referring to CR.A/367/1998 6/11 JUDGMENT the medical evidence, he pointedly drawn the attention that Dr. Snehlatta, who had treated the complainant, has not been examined and Dr. Virendrabhai Kanaiyalal, who is examined as PW-8 at Exh.16, had no personal knowledge as he had not treated the complainant. Moreover, referring to the deposition of Dr. Virendrabhai Kanaiyalal, RMO (PW-8) at Exh.16, Mr. Joshi submitted that the said witness has also mentioned that the complainant was treated only as an outdoor patient and as the injury could be caused by falling down from a chair, there could be an accident by which the complainant might have fallen down and therefore also, the observation made by the learned Metropolitan Magistrate recording acquittal, is just and proper. 4.1 Mr. Joshi further referred to the judgement of the Honourable Apex Court in the case of Shingara Singh vs. State of Haryana & Anr. reported in AIR 2004 SC 124 and referring to Headnote-(B), he emphasised that in an appeal against acquittal, if two views are reasonably possible on the basis of the evidence and the view taken by the trial Court, which is a reasonable view, then, the High Court would not interfere with the acquittal. In other words, he strenuously submitted that if two views are possible, the view which is beneficial to the accused may be accepted and this Court may not interfere with the impugned judgement and order of the learned Metropolitan Magistrate recording acquittal. CR.A/367/1998 7/11 JUDGMENT 5. 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 judgement and order recording acquittal. From the scrutiny of the evidence, it transpires that the incident is said to have been occurred from a trivial quarrel with regard to taking proper seat instead of sitting on the handle of the chair; both the complainant and accused are public servants with the Postal Department. The submission made by Mr. Kirit Rawal, learned Additional Public Prosecutor, that relying upon the deposition of the complainant at Exh.5, supporting his complaint at Exh.6, which has been corroborated by two eye witnesses, i.e. Rameshbhai Kalidas Prajapati (PW-2) at Exh.8 and Jayantibhai Kalidas (PW-6) at Exh.14 that both have supported the prosecution version, is required to be considered. There is no dispute with regard to occurrence of the incident and therefore, if the case of the prosecution is accepted on the face value, even then, it is required to be appreciated that whether necessary ingredients of the alleged offence under Section 332 read with Section 427 of IPC can be said to have been fulfilled and the answer has to be in the negative inasmuch as from the material evidence on record, it is evident that such an incident occurred from a trivial quarrel and there was no intention or mens rea. CR.A/367/1998 8/11 JUDGMENT 6. A bare perusal of the provisions of Section 332 of IPC will make it clear that it has to be satisfied that if a public servant is hurt in discharge of his duties with an intention to prevent or deter him from discharge of his duty, or if as a consequence of anything done or attempted to be done in lawful discharge of duty of such public servant, is made punishable. In the facts of the present case, it is not even the case that there was any such attempt or injury was caused while discharging the public duty with an intention to prevent him from discharging his duty inasmuch as both the complainant and accused are public servants with the Postal Department. Therefore, as stated, it was a quarrel or incident took place spontaneously from a trivial issue of taking a seat on the chair instead of sitting on the handle of the chair. 7. Further, Rameshbhai Kalidas Prajapati (PW-2), in his deposition at Exh.8, has stated that he does not know about the reason, but, when he saw, then, there was an altercation and both the complainant and accused had indulged in the fight and in the process, the accused is said to have given a fist blow. Another eye-witness, Jayantibhai Kalidas (PW-6), in his deposition at Exh.14, has also referring to this incident, confirmed about the fact that it has originated from a trivial quarrel with regard to taking up proper seat instead of sitting on the handle of the chair and therefore, to that extent, they have CR.A/367/1998 9/11 JUDGMENT clearly stated that it was on a spur of moment without any intention. 8. Further, with regard to the aspect of injury, for which Mr. Rawal, learned Additional Public Prosecutor, has referred to the medical certificate and deposition of Dr. Virendrabhai Kanaiyalal, RMO (PW-8) at Exh.26, it is required to be appreciated that there are some injuries, but, the doctor has stated in his deposition that such an injury could be caused even if one falls down from the chair. Further, he is not one who had treated or to whom the injured complainant could have stated about the history. Admittedly, the complainant has been treated as an outdoor patient only. 9. Therefore, on appreciation and scrutiny of the evidence on record, it would make it evident that the view taken by the learned Metropolitan Magistrate recording acquittal is not perverse, but, possible and this Court is in agreement with the ultimate conclusion arrived at and recorded by the learned Metropolitan Magistrate. Therefore, it may not be further necessary to elaborate on this aspect and scrutinise the evidence threadbare, as observed by the Honourable Apex Court in its judgement in the case of State of Karnataka vs. Hemareddy & Anr., reported in AIR 1981 SC 1417. 10. Moreover, reliance placed by Mr. Haresh Joshi, learned CR.A/367/1998 10/11 JUDGMENT Advocate for the respondent-accused, on the judgement of the Honourable Apex Court in the case of Shingara Singh vs. State of Haryana (supra), relying upon Head Note-(B) that if two views are possible on the basis of the evidence and the view taken by the trial Court is possible reasonable, then, the High Court would not interfere with the acquittal. The same principle has been reiterated in a catena of decisions. The Honourable Apex Court, in the case of State of Goa vs. Sanjay Thakran & Anr., reported in (2007) 3 SCC 755, has also 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. 11. Moreover, it is also well settled that if two views are possible or a different view is possible is not by itself sufficient to interfere with the order of acquittal. The Honourable Apex Court in the judgement in the case of K. Prakashan vs. P. K. Surenderan, reported in (2008) 1 SCC 258, has again referred to this aspect and has observed that when two views are possible, the appellate court should not reverse the judgement of acquittal merely because the other view was possible unless when the judgement of the trial Court was neither perverse nor CR.A/367/1998 11/11 JUDGMENT suffered from any legal infirmity or non-consideration of the evidence on record. 12. Therefore, in view of the discussion made hereinabove, the impugned judgement and order dated 28th January, 1998 passed by the learned Metropolitan Magistrate, Court No.20, Ahmedabad in Criminal Case No. 634 of 1993 is possible reasonable and on appreciation of evidence, broadly the conclusion arrived at is just and proper and therefore, this Court is not inclined to interfere with the acquittal recorded by the learned Metropolitan Magistrate. Therefore, the impugned judgement and order passed by the learned Metropolitan Magistrate recording the acquittal is hereby confirmed and the present appeal is required to be dismissed. 13. In the result, the present appeal hereby stands dismissed. [R. H. Shukla, J.] kamlesh*