State of Gujarat vs Jesangbhai Mavjibhai Chaudhary and Another

J.R. Vora, J.—The present appeal is preferred u/s 378 of the Criminal Procedure Code by the State against the judgment and order

delivered by learned Judicial Magistrate, First Class, Chanasma on 6th July, 1998 in Criminal Case No. 396 of 1994 whereby the present

respondents being accused of the said Criminal Case came to be acquitted by the Trial Court for the offences punishable under Sections 323, 504,

506(2) and 114 of the Indian Penal Code as well as for the offence punishable u/s 135 of the Bombay Police Act.

According to the prosecution case in brief, the incident occurred on 4th January, 1993 at about 11-00 a.m. The First Information Report of the

same came to be filed by the complainant - Valjibhai Virabhai before Chanasma Police Station on 5th January, 1993 at about 7.15 p.m.

Accordingly, complainant - Valjibhai resided, at the relevant time, at Village : Dhinoj, Taluka : Chanasma and was doing agriculture work. In the

Maholla in which the residential house of the complainant is situated, opposite of this house, manger and open godowns for storage of cattle food

were situated. Those open godowns were belonging to the father of the accused No. 1 Chaudhari Mavjibhai Motibhai. They had stored cattle

food in the open godown. On the day of the incident i.e. on 4th January, 1993, complainant and his family had put their clothes outside the house

on string for drying down and at about 11-00 a.m., accused No. 1 and his wife accused No. 2 were cleaning cattle food in their open godown. On

account of this and on account of dust of cattle food, the clothes of the complainant had become dirty and, therefore, the complainant and his

daughter and his wife requested both the accused that had they informed the complainant, they would have removed the clothes from the string

which were being dried. On account of this, accused No. 1 and accused No. 2 both excited and accused No. 2 Galalben started abusing Nitaben

daughter of the complainant. In this process, accused No. 1 took out a stick and inflicted blows on the head of wife of the complainant. One blow

was given on the head and other on finger of right hand of the wife of the complainant. Complainant came out of the house and noticed the incident

and, thereafter, both the accused threatened the wife of the complainant and daughter Nitaben to kill. The wife of the complainant was taken to

Lanava Government Hospital and since the complainant was assisting his wife who was injured could not file complaint earlier.

On crime being registered, a charge-sheet came to be filed against both the accused for the abovesaid offences. The charge was framed vide

Ex.4 and accused pleaded not guilty and, therefore, the prosecution examined as many as fourteen witnesses to prove its case and produced on

record documentary evidence. After recording the statements of the accused u/s 313 of the Criminal Procedure Code, the learned Trial Judge

came to the above conclusion, after hearing both the sides and hence this appeal.

Learned APP Mr. L.R.Pujari for the appellant - State was heard, while learned advocate Ms. Sunita S. Memon for the respondents is not

present when the matter is called out.

Learned APP Mr. L.R.Pujari for the appellant - State submitted that learned Trial Judge erred in acquitting the accused because the learned

Magistrate did not properly appreciate the oral as well as documentary evidence. Complainant - Valjibhai is an eye witness and learned Trial

Judge erred in not accepting explanation given by him for late filing of the FIR. The learned Trial Judge ought to have believed the deposition of

injured witness Viriben Valjibhai examined at Ex.30 who stated that accused No. 1 inflicted blows of stick upon her head and finger. Learned Trial

Judge also could not properly appreciate the evidence of Dr. Pareshkumar Mohanbhai who proved the injuries upon the injured. The evidence of

injured witness is corroborated by the medical evidence and hence, the acquittal of the accused is required to be set aside and appeal be allowed.

This Court has gone through the Record & Proceedings of the Trial Court. On going through the evidence on record, it is found that at the time

of incident, prosecution witness Valjibhai Ex.19 - complainant though deposed about the incident, but stated that at the time of incident, he was in

his house and on hearing shout, he came out and accused ran away. The Trial Court did not believe this witness as an eye witness for this reason.

He admitted that there was crowd of 25-50 persons gathered there and in fact, who inflicted blow, he could not say. The injured Viriben was

examined at Ex.30. The contradiction between her statement before the police and her deposition before the Court is proved. She has not stated

before the police that the accused gave threatened her to kill. The panchas of panchnama of scene of offence have turned hostile. The panchas of

panchnama of discovery of weapon i.e. stick also have turned hostile. The prosecution witness Nitaben has been examined at Ex.31 as an eye

witness. After stating about the incident, she stated that in fact, who had inflicted blow on her mother, she could not say. She and her father

intervened and her mother was rescued as soon as according to the witness, she reached at the scene of offence, accused ran away. The Trial

Court did not believe this witness because there were contradictions in her deposition as she stated that though the accused No. 1 inflicted blows

on hand and head of her mother, but actually, she could not say that on which part of that limb blows were inflicted. The theory that she and her

father intervened in the quarrel is not the original prosecution case. She deposed in contradiction of what was deposed by her father. The

prosecution witness Dr. Pareshkumar Patel has been examined at Ex.32. According to him, he examined the injured on 4th January, 1993 at

Primary Health Centre of Lanava at about 12 a.m. She had C.L.W on head and fracture of right metacarpal finger. In his deposition, he admitted

that there was no fracture on metacarpal bone and, therefore, no reliance was placed by the Trial Court upon this witness also. There was

contradiction as to the fracture in the certificate and deposition of Doctor, in fact there was no fracture of metacarpal in X-Ray and even then, he

noted that fracture in the certificate. No other witnesses supported the prosecution case.

This Court has undertaken the whole appreciation of the evidence and has reached to the conclusion that the learned Trial Judge has properly

appreciated the evidence and has reached to the possible conclusion from the evidence that in the above said circumstances, when there are

contradictions in the depositions of the witnesses including the injured and the medical officer, accused were entitled to acquittal.

In view of the unsatisfactory evidence led by the prosecution, this Court is of the considered opinion that no illegality is committed by the Trial

Court in acquitting the accused of the offences with which they are charged and this Court is in complete agreement with the findings, ultimate

conclusion and resultant order of acquittal recorded by the Trial Court, as, in view of this Court, no other conclusion is possible except the one

reached by the Trial Court.

It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellate Court cannot substitute

its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record,

palpably wrong, manifestly erroneous or demonstrably unsustainable. (See Ramesh Babulal Doshi Vs. State of Gujarat, In the instant case, the

learned APP has not been able to point out to this Court as to how the findings recorded by the learned Trial Court are perverse, contrary to

material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

In the case of Ram Kumar Vs. State of Haryana, , Supreme Court has held as under:

The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and

379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should

give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in

favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived

at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order

acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court

should not disturb the order of acquittal.

On overall appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the Trial Court for acquitting the

accused. Suffice it to say that the Trial Court has given cogent and convincing reasons for acquitting the accused and the learned APP has failed to

dislodge the reasons given by the learned trial Judge. The main reasons for not believing is late filing of the FIR for which the explanation is not

worthy of acceptance.

For the reasons stated above, the appeal stands dismissed.