CR.A/1451/2005 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1451 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 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 Versus KOMALSINH SURENDRASINH TOMAR & ORS ========================================= Appearance : MR DIPEN A DESAI APP for Appellant MR SALIM M SAIYED for Respondents ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 25/03/2008 CR.A/1451/2005 2/9 JUDGMENT ORAL JUDGMENT :(Per : HONOURABLE MR.JUSTICE J.R.VORA) 1. Instant Appeal is preferred by the State under Section 378 of the Code of Criminal Procedure, 1973, against the judgment and order delivered by Additional Sessions Judge, Second Fast Track Court at Navsari, on 21st of January, 2005, in Sessions Case No. 45 of 2004, whereby all the five present respondents being accused of the said Sessions Case, came to be acquitted by the Trial Court for the charges levelled against them under Sections 120-B, 341, 395 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act. 2. Learned APP Mr. Dipen A. Desai was heard on behalf of the State. Leave to Appeal granted. Appeal is Admitted. Learned Advocate Mr.Salim M Saiyed for the respondents waived service of admission. 3. Learned Counsels appearing in the Appeal requested this Court to dispose of this Appeal finally as the Record and Proceedings of the Trial Court are available with this Court and that they would provide extra copies of the evidence recorded during the trial and the documents produced on record. In the facts and circumstances of the matter, the request is granted and Appeal is heard finally. CR.A/1451/2005 3/9 JUDGMENT 4. Learned APP Mr. Dipen A Desai for the State and learned Advocate Mr. Salim M. Saiyed for the respondents were heard in respect of this Appeal in detail. 5. According to prosecution case, the incident in question occurred on 1st of July, 2004 at about 23.30 hours at Navsari Town near Cotton Mill. According to the case of complainant - Rajakbhai Ishakbhai Shaikh, he was doing the business of fast food on lorry. On 1st of July, 2004, after closing his business at about 23.00 hours, along with his wife Suraiyabhanu he was going to his house in one rickshaw. When this rickshaw reached near the gate of Cotton Mill, he found that, in the midst of the road, two persons were standing and they halted the rickshaw. Therefore, complainant Rajakbhai Ishakbhai Shaikh came out of the said rickshaw and requested said standing persons to be on side of the road. In the meantime, some persons came behind the rickshaw and out of said persons, one person caught hold of the complainant from his neck and with waist belt, complainant was hit. Two persons were holding the complainant, one person took out Rs. 400/- from the shirt pocket of the complainant. During this scuffle, one Police personnel reached near the spot and, therefore, except one person, all others ran away. At that time, wife of the complainant and one watchman of Cotton Mill were present. One person was CR.A/1451/2005 4/9 JUDGMENT apprehended by police man and he was taken to police station where he disclosed his name to be Komalsinh Surendrasinh Tomar, who is accused No.1. Thereafter, complainant offered his complaint and stated that before few days he had a dispute with the accused about the amount of food provided to the accused. This complaint was recorded by Navsari Town Police Station PI Mr. B.D. Vaishnav and crime was registered against the accused. Investigation was carried out by the same PI and charge sheet came to be filed against the accused in the Court of learned Judicial Magistrate, Navsari. The case thereafter was committed to the Court of Sessions and made over to the Trial Court and was registered as Sessions Case No. 45 of 2004. The learned Trial Judge framed charges against all the accused vide Exhibit-1 and each of the accused respondents pleaded not guilty. Therefore, they were put to trial. 6. Prosecution examined Rajakbhai Ishakbhai Saiyedbhai at Exhibit-10; Suraiyabhanu at Exhibit-12 and Chandradev Baburav Pande at Exhibit-21 as eye witnesses. Prosecution also examined Sunilbhai Shankarrav Bhole at Exhibit-13 and Pratapbhai Ratanbhai Rana at Exhibit-15 as being panch witnesses of panchnama Exhibit-14 and Exhibits 16 to 19. Panchnama Exhibit – 14 is the panchnama of apprehending accused No.1 Komalsinh Surendrasinh Tomar by police CR.A/1451/2005 5/9 JUDGMENT and panchnama from Exhibits 16 to 19 are the panchnamas of arrest of remaining accused. Second panch of panchnamas from Exhibits 16 to 19 Vasantbhai Uttambhai Rana is examined by the prosecution at Exhibit-20. Prosecution also examined Bhaskarbhai Sajjanbhai Sardar at Exhibit-22, who apprehended the accused No.1 from the spot and the Investigating Officer B.D. Vaishnav at Exhibit-23. Thus, in all, the prosecution examined nine witnesses and produced on record besides panchnamas, FIR at Exhibit-11, panchnama of place of offence at Exhibit-24 and a xerox copy of Notification under Section 135 of the Bombay Police Act at Exhibit – 25. 7. Though the learned Trial Judge observed in the judgment that further statements of each of the accused were recorded under Section 313 of the Code of Criminal Procedure, but rojkam of 13th of January, 2005 reveals that the statements of the accused were not required to be recorded and hence not recorded. A purshi was submitted by the accused that muddamal of belt and Rs. 400/- were not recovered from them and that the muddamal did not belong to them. So, they did not claim the muddamal. 8. While re-appreciating the evidence, we find that complainant Rajakbhai Ishakbhai Shaikh, Exhibit-10; Suraiyabhanu CR.A/1451/2005 6/9 JUDGMENT Rajakbhai Ishak Shaikh, wife of the complainant, examined at Exhibit-12 and Chandradev Uttambhai Pande, examined at Exhibit -21, all the three eye witnesses did not support the prosecution case. All the three were considered hostile and learned APP was permitted to cross-examine each of these three witnesses, but nothing supporting the prosecution could be elicited. Rajakbhai Ishakbhai Shaikh denied the fact that anyone from the accused was apprehended at the spot and that though he was attacked by 8 to 10 persons, but he could not say that they were the accused. Same is the deposition of Suraiyabhanu Rajjakbhai Ishakbhai Shaikh. While, Chandradev Baburav Pande, examined at Exhibit-21, did not support the prosecution case in any respect. All the panch witnesses examined at Exhibits 13, 15 and 20 did not support the panchnamas at Exhibits 14, 16, 17, 18, 19 and 24. Bhaskarbhai Sajjanbhai Sardar, examined at Exhibit – 22, deposed that on the day of the incident, he was in patrolling and found near the gate of Cotton Mill that some quarrel was going on. At that time, he noticed some persons running away from there and he apprehended one person. Complainant was present, who stated to him that some four to five persons had beaten him and had robbed him and had taken away Rs. 400/- from him. Therefore, accused No.1 was apprehended and was taken to the police station and complainant offered his complaint. Bharatkumar Dayaramdas Vaishanav, Investigating Officer, is examined at CR.A/1451/2005 7/9 JUDGMENT Exhibit – 23, and he stated that he had recorded the complaint of the complainant and got the crime registered. PW-9 Ratanbhai Mahadubhai, examined at Exhibit-26, is the then PSO, who registered the offence. 9. This is all the evidence of the prosecution during the trial. 10. While appreciating the evidence, we found that there is no iota of evidence against the accused for the charges levelled against each of them. None of the eye witnesses has supported the prosecution case and so far as accused No.1 is concerned, it is doubtful firstly whether he was apprehended from the spot and secondly if at all he was apprehended from the spot, whether he was participating in that quarrel in beating the complainant. This is so because Bhaskarbhai Sajjanbhai Sardar, Exhibit-22, Police Constable, failed to establish the fact that the accused No.1 was participating in the said quarrel in beating the complainant. No other evidence is available in support of this witness. Secondly, the identification of all the accused has been done in the police station through panchnamas by the complainant. There is no other evidence against the accused. 11. The learned Trial Judge, as mentioned in para-18 of the CR.A/1451/2005 8/9 JUDGMENT judgment, acquitted all the accused for the aforesaid reasons that prosecution failed to establish the case against the accused because none of the eye witnesses supported the prosecution case and no corroboration is found to the deposition of witness Bhaskarbhai Sajjanbhai Vaishnav. 12. This is an Appeal against the order of acquittal. The scope of the appeal against the order of acquittal is well defined. The order of the acquittal cannot ordinarily be interfered with even if the second legitimate view is possible from the same evidence recorded during the trial than the view taken by the Trial Court, unless and until, the appellate court comes to the conclusion that the findings of the Trial Court are perverse, manifestly erroneous, palpably wrong and demonstrably unsustainable. 13. We have thoroughly gone through the Record and Proceedings of the Trial Court. We have considered the broad probabilities and vital features of the matter. We have re-appreciated the evidence on record and, therefore, we come to the conclusion that in any case the view taken by the Trial Court cannot be termed as perverse or palpably wrong so as to call for the interference by this Court in the order of acquittal. No interference is therefore warranted in CR.A/1451/2005 9/9 JUDGMENT the judgment and order impugned in this Appeal. Hence the following Order : “Appeal stands dismissed “. (J. R. VORA, J.) (M. R. SHAH, J.) pnnair