CR.A/706/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 706 of 2008 with CRIMINAL MISC. APPLICATION NO. 12417 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 FIRDAUSHUSEIN HUSEINMIYA SAIYAD & 7 - Opponent(s) ========================================================= Appearance : MR KC SHAH Ld. APP for Appellant(s) : 1, None for Opponent(s) : 1 - 8. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 13/08/2008 CR.A/706/2008 2/7 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. The present appeal is preferred by the State challenging the judgment and order dated 29.11.2006 in Special Atrocity Case No. 33 of 2006 by the learned Special Judge (Atrocity), Fast Track Court No. 2, Gandhinagar at Kalol. 2. The present respondents-accused in Special Atrocity Case No. 33/2006 were charged for the offence punishable under sec. 143, 147, 148, 149, 323, 325, 504 and 506(2) read with sec. 114 and 34 of Indian Penal Code and sec. 3(1)(10) of Scheduled Caste and Schedule Tribe (Prevention of Atrocity) Act (for short “the Atrocity Act”) and sec. 135 of Bombay Police Act and tried by the learned Special Judge, Gandhinagar at Kalol and thereafter respondents were acquitted from the offence charged against them by the aforesaid judgment and order dated 29.11.20006. 3. The facts of the prosecution case, in nut-shell, are as under: 4. On 26.6.2004 at about 14.15pm or thereabout the accused with common intention abating to each other came to the godown of Roshanbhai Ramanbhai Parmar – brother of complainant Rajeshbhai Ramanabhai Parmar and asked to vacate the godown and gave threat to pay moneys if the business is to be run by them and threafter, out of said quarrel, the accused again CR.A/706/2008 3/7 JUDGMENT came to Uma Theatre in Kalol, Dist. Gandhinagar and has quarrel and scuffle with the complainant and his brother and other prosecution witnesses wherein the accused caused voluntarily grievous bodily hurts and injuries by iron pipe, wooden stick, sward etc. out of sudden excitement and used abusive language with regard to the caste of the complainant in public with an intention to get the complainant excited. 5. In connection with the aforesaid facts of incident, the complaint was lodged in Kalol Taluka Police Station, Dist. Gandhinagar being 1st FIR No. 156/2004 dated 26.6.2004. Thereafter, the police has carried out the investigation and collected the evidence during the investigation and against all the accused – respondents police has filed the charge- sheet before the learned Judicial Magistrate First Class, Kalol. As the offence charged against the accused – respondents were exclusively triable by the Court of Sessions, it was committed to the Court of Sessions, Gandhinagar vide order dated 17.7.2006.So, the said case was placed before the learned trial Judge and charge was framed against the present respondents – accused. They have pleaded not guilty to the charges levelled against them and claimed to be tried. 6. During the course of trial, the prosecution has examined, in all, 20 witnesses and also produced on record the documentary evidence in support of its case As to bring home the charges levelled against CR.A/706/2008 4/7 JUDGMENT the accused, the prosecution has, after examining the witnesses, further statements of the accused under sec. 313 of CrPC were recorded, in which, the accused have denied the case of prosecution in toto. 7. On conclusion of the trial, the learned Special Judge has acquitted all the accused from the charges levelled against them vide impugned judgment and order dated 29.11.2006. 8. Being aggrieved and dissatisfied with the judgment and order of Special Court, rendered in Special Atrocity Case No. 33 of 2006 by the learned Special Judge, Gandhinagar at Kalol, the appellant- State has preferred this appeal. 9. Heard the Mr KC Shah learned APP for the appellant-State. Mr Shah has contended that the order of acquittal is contrary to law and against the evidence on record and committed an error in acquitting the respondents – accused. He contended that the learned Judge has not considered the documentary as well as oral evidence produced by the prosecution. He has contended that the learned Judge ought to have appreciated the version of prosecution witnesses. No doubt, the witnesses were declared hostile by the prosecution, but in chief-examination the involvement of the present respondents-accused was established by the prosecution before the trial court. Mr. Shah has also contended that the judgment of learned Judge is without application of mind and CR.A/706/2008 5/7 JUDGMENT he has not considered the legal aspects of the evidence produced by the prosecution. He has read the panchnama as well as documentary evidence and medical certificate and contended that the evidence of the police cannot be discarded only on the point that they are interested witnesses. He has contended that the prosecution has established presence of the respondents-accused in unlawful assembly and also common intention of the members of unlawful assembly. It is also contended that the deadly weapons were also in the possession of the present respondents and when presence and common intention of the members of unlawful assembly is established, then the evidence of police officer is required to be considered in favour of the prosecution. 10. We have fully heard Mr KC Shah learned APP.We have also gone through the judgment and order passed by the trial court as well as documents produced on record. It is true that the complainant and other witnesses, who are witnesses of the case, have turned hostile. It is true that the complaint was lodged by the I.O. It is also true that the panchnama of scene of offence as well as recovery of muddamal articles. Even the medical certificate of the injured witnesses were proved through the oral evidence of I.O. We have also considered the ingredients of provisions of sec. 143, 147, 148, 149, 323, 325, 504 and 506(2) of IPC. We have also considered the provisions of sec. 34 and 114 of IPC as well as sec. 3(1)(10) of Atrocity Act. CR.A/706/2008 6/7 JUDGMENT 11. From the oral evidence led by the prosecution, it clearly appears that all the prosecution witnesses have not supported the prosecution case. They did not even utter a single word against the allegations levelled against the present respondents-accused. We have also considered the charge framed against the respondents – accused, we are of the opinion that when the star and material witnesses have not supported the prosecution case, the learned Special Judge has rightly acquitted the respondents. We have also considered the provisions of sec. 143 and 149 of IPC. We have also perused the ingredients of the said provisions of law. We have not found any overt act of the present respondents-accused, and even the presence of respondents-accused in unlawful assembly. 12. The Apex Court in number of decisions held that “it is not the duty of the appellate Court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial Court.” The said law is laid down by the Apex Court in the case of GIRIJANANDINI DEVI 7 ORS. VS. BIJENDRA NARAIN CHOUDHARY, reported in AIR 1967 SC 1124 and in (2) in the case of STATE OF KARNATAKA VS. HEMAREDDY 7 ANR., reported in AIR 1981 SC 1417. 13. As observed and discussed hereinabove, in our opinion, the prosecution could not establish its case beyond reasonable doubt. The learned Special Judge CR.A/706/2008 7/7 JUDGMENT has rightly acquitted the accused and we are of the opinion that no other conclusion except the one reached by the learned Special Judge is possible. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of acquittal. 14. In th result, leave to Appeal refused. Appeal is accordingly dismissed. The judgment and order dated 29.11.2006 rendered by the learned Special Judge in Special Atrocity Case No. 33 of 2006 is confirmed. The Appeal is dismissed accordingly. 15. In view of above, Criminal Misc. Application No. 12417/2007 is rejected. (A.M. KAPADIA, J.) (Z.K. SAIYED, J.) mandora/