State Of Gujarat vs Nadiyabhai Hirabhai Vasava

S.H.Vora, J

Feeling aggrieved and dissatisfied with the judgment and order dated 27.7.2022 passed by the learned 2nd Addl. Sessions Judge, Surat in Sessions Case No.227 of 2017 for the offences under sections 307, 323, 325, 326, 504, 506(2), 114 of IPC and also u/s 135 of the G.P. Act, the applicant – State of Gujarat has preferred this application to grant leave to appeal as provided under section 378(1)(3) of the Code of Criminal Procedure, 1973 (“the Code” for short) inter alia challenging the judgment and order of acquittal in favour of the respondents accused..

The prosecution case in brief is that on 19.8.2016, at about 11:00 a.m., the accused persons came to the farm of the complainant with weapons and said that even though, you are not allowed to plough the field, why do you often come to the field and plough the field. Thereafter, the accused No.3 inflicted stick blow on the head of witness Naranbhai, the accused No.4 inflicted stick blow on the hand of witness Naranbhai and accused Nos.1 & 2 had beaten witness Naranbhai. When the complainant and his father tried to intervene, the accused persons also inflicted stick blows on the complainant and his father. Thereafter, the complainant lodged the complaint with regard to the incident before Umarpada Police Station, which was registered as I – C.R. No.23 of 2016 for the offences under sections 307, 323, 325, 326, 504, 506(2), 114 of IPC.

In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence in form of medical evidence and drawn various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the respondents accused, charge-sheet came to be filed in the Court of learned JMFC, Umarpada. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Surat as provided under section 209 of the Code.

Upon committal of the case to the Sessions Court, Surat, learned Sessions Judge framed charge at Exh.6 against the respondents accused for the aforesaid offence. The respondents accused pleaded not guilty and claimed to be tried

In order to bring home charge, the prosecution has examined 19 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 4 of the impugned judgment and order.

On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondents accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the respondents accused denied all incriminating circumstances appearing against them as false and further stated that they are is innocent and false case has been filed against them. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondents accused of the offences, for which he was tried, as the prosecution failed to prove the case beyond reasonable doubt.

We have heard learned APP Ms. Shah appearing for the applicant State, considered the papers of oral and documentarty evidence placed before the Court.

While assailing the impugned judgment and order and seeking leave to appeal, learned APP placed heavy reliance upon the oral depositions of PW 6 Devjibhai Vasava, PW 14 Naranbhai Vasava, PW 16 Natvarbhai Vasava and PW 17 Dr. Umeshbhai Chaudhary. Normally, the injured witnesses are star witnesses in the offence of present nature and there will be a little room to disbelieve the version of the injured witnesses as they are direct victim of the crime. In the case on hand, there are three injured witnesses including one PW 9 Mr. Ashok Vasava, who turned hostile. The other labourers, who were eye witnesses as per the prosecution case, have also not supported the prosecution case. Thus, the entire prosecution case rests on the deposition of three injured witnesses and Dr. Umeshbhai Chaudhary.

8.1 We have minutely gone through the deposition of all the three injured witnesses. It is noticed by us that PW 14 Naranbhai deposed that all the four accused persons inflicted stick blows upon him and to other witnesses on account of land dispute arising out of Will of his grandfather. It is admitted by said witness that he was bleeding and also blood was on his clothes. He further deposed that after the incident, he could not speak. Whereas, Dr. Chaudhary examined at Exh.33 in terms deposed that said witness gave history to the effect that four persons inflicted injuries with stick. Identical history was given by injured Natvarbhai Vasava. Importantly, both the injured witnesses though knowing accused persons very well being family members, but on account of land dispute, did not disclose the name of the accused persons. It appears that injured witness Naranbhai is not disclosing true facts before the Court, because in his evidence, he deposed that he was not in a position to speak after the incident, whereas Dr. Chaudhary categorically deposed before the Court that said injured witness gave history and he was fully conscious. As such, there was no reason on the part of inured witness Naranbhai to give such contradictory version with regard to his own condition.

8.2 Apart from it, neither blood stained clothes were recovered nor was any blood found at the scene of offence. The other witness namely Natvarbhai gave different version and in contrast to the version disclosed by injured Naranbhai. Said witness assigned different role to each accused persons and he further deposed that when his son PW 5 Jitendra Vasava came at the scene of offence, all the accused persons ran away. Whereas, said PW 5 Jitendra Vasava examined at Exh.17 deposed before the Court that when he reached at the spot, the accused were not present nor has he seen the occurrence of the incident.

8.3 Now, coming to the third injured witness Devjibhai Vasava, examined at Exh.18, he was fully conscious after the incident, but he admitted in his cross-examination that he does not know as to when and where the incident occurred and also the name of the hospital where he was taken. On combined reading of the deposition of all the three material witnesses, the same are full of inconsistency and contradictory on the material aspect of the case and all three injured witnesses assigned absolutely inconsistent role to each of the accused persons vis-a-vis deposition of the Medical Officer. Under the circumstances, the learned trial Judge has rightly acquitted the respondents accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal.

It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the 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. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us 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 v. State of Haryana, reported in AIR 1995 SC 280, 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."

As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.

Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.

In view of the above and for the reasons stated above, present application for leave to appeal fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, captioned Criminal Appeal also deserves to be dismissed and is accordingly dismissed.