Sanjeev J.Thaker, J
1. Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 16.08.2010, passed by the learned Presiding Officer and Additional Sessions Judge, Fast Track Court No.2, Ahmedabad(Rural), Viramgam, in Special (Atrocity) Case No.6 of 2010, for the offences punishable under Sections Sections 323, 504 and 114 of the Indian Penal Code, Section 135 of the Bombay Police Act and Sections 3(1)(10) of the Atrocity Act, the appellant – State of Gujarat has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short, “the Code”).
2. The prosecution case as unfolded during the trial before the lower Court is that on 08.03.2007, in the evening complainant along with his cousin brother after crossing road near Sachana Bus Stand going for nature's call and at that time accused persons armed with stick stood near the Bus Stand and having seen the complainant humiliated him about his caste in public place and asked that why did they come here even though they have been denied and started abusing him. Thereafter, complainant asked him as to why did he abuse him, accused Kantibhai gave stick blow on left side leg of complainant and accused - Dhirubhai slapped him. Whereas, Harshadbhai, cousin brother of complainant who intervened to save complainant also beaten by accused Amratbhai with stick and injured on his finger as well as accused caught hold his neck. Thus the accused insulted the complainant and caused injuries with stick and insulted about his caste of complainant and humiliated him in public place.
3. After investigation, sufficient prima facie evidence was found against the accused person/s and therefore charge-sheet was filed in the competent criminal Court. Since the offence alleged against the accused person/s was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court where it came to be registered as Special (Atrocity) Case No.6 of 2010. The charge was framed against the accused person/s. The accused pleaded not guilty and came to be tried.
4. In order to bring home the charge, the prosecution has examined the witnesses and also produced various documentary evidence before the trial Court, which are described in the impugned judgment.
5. After hearing both the parties and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the accused for the offences for which they were charged, by holding that the prosecution has failed to prove the case beyond reasonable doubt.
6. Learned APP for the appellant – State has pointed out the facts of the case and having taken this Court through both, oral and documentary evidence, recorded before the learned trial Court, would submit that the learned trial Court has failed to appreciate the evidence in true sense and perspective; and that the trial Court has committed error in acquitting the accused. It is submitted that the learned trial Court ought not to have given much emphasis to the contradictions and/or omissions appearing in the evidence and ought to have given weightage to the dots that connect the accused with the offence in question. It is submitted that the learned trial Court has erroneously come to the conclusion that the prosecution has failed to prove its case. It is also submitted that the learned Judge ought to have seen that the evidence produced on record is reliable and believable and it was proved beyond reasonable doubt that the accused had committed an offence in question. It is, therefore, submitted that this Court may allow this appeal by appreciating the evidence led before the learned trial Court.
7. As against that, learned advocate for the respondent/s would support the impugned judgment passed by the learned trial Court and has submitted that the learned trial Court has not committed any error in acquitting the accused. The trial Court has taken possible view as the prosecution has failed to prove its case beyond reasonable doubt. Therefore, it is prayed to dismiss the present appeal by confirming the impugned judgment and order passed by the learned trial Court.
8. I have heard the submissions made by the learned advocates for the respective parties and also gone through the oral and documentary evidence, independently and dispassionately.
8.1. There is no justification given by the prosecution of not filing the complaint on the same day. If the complaint produced vide Exhibit 28, dated 08.03.2007, is taken into consideration, the said complaint is filed by Laljibhai and the complaint at Exhibit 13, dated 09.03.2007, has been filed by Nagjibhai. There are a lot of contradictions in both the complaints. In the complaint vide Exhibit 28, dated 08.03.2007, there is no reference of abuse made about the caste of the complainant and the complaint filed vide Exhibit 13 states about abuse to the caste but does not state that the complainants were physically assaulted.
8.2. If the complaint produced vide Exhibit 28 is taken into consideration, the said complaint does not refer as to which of the accused had assaulted with the stick and it is only on the next day after the incident, details of the assault have been stated.
8.3. The prosecution has also not justified as to why in the complaint produced vide Exhibit 28, dated 08.03.2007 there is no mention of assault to the caste having not been stated in the said complaint and why the said fact have been stated only in the subsequent complaint Exhibit 13 dated 09.03.2007.
8.4. If the contradiction between the complaint filed vide Exhibit 28 and the complaint filed vide Exhibit 30 are taken into consideration, vide Exhibit 28 it has been stated that at the time of incident, Laljibhai was accompanied with his nephew Bharatbhai Bikhabhai Chamar and there were in all three people and in the complaint filed vide Exhibit 13, dated 09.03.2007, it has been stated that the complainant was accompanied with only Bharatbhai Bhikhubhai Chamar. In Exhibit-13, it has been stated that the accused had assaulted him and thereafter ran away and vide Exhibit 28 it has been stated that at the time of the incident, Bharatbhai Bhikhubhai Chamar had intervened and had saved him from the assault.
8.5. Vide Exhibit-13 there is no mention that the accused had threatened the complainant of his life. The prosecution has also not proved the case by any independent evidence. From the testimony of the complainant Nagjibhai Bhikhubhai at Exhibit-12, it is come in the cross-examination that near the place of incident, there is a house of Devabhai Amrabhai and other shops are situated but neither Devabhai Amrabhai or any other persons were examined by the prosecution. The statement of Devabhai Amrabhai was also not taken by the prosecution. From the evidence of Nagjibhai Bhikhubhai Makwana vide Exhibit-12, it has come on record that he has filed a complaint on the next day i.e. 09.03.2007, vide Exhibit-13 only after discussing with his family members.
8.6. If the evidence of prosecution witness no.7 Laljibhai Gandabhai Makwana who has been examined vide Exhibit 27 is taken into consideration, he has given a different version of the entire incident. From the evidence vide Exhibit 28, it has not been stated that which of the accused had abused the complainant of his caste and as to which of the accused had threatened the complainant of his life and/ or had physically assaulted the complainant.
8.7. Even from the medical evidence of the Doctor Umangbhai Avdheshkumar Mishra at Exhibit 21, the prosecution has not been able to prove the fact of any external physical assault on the complainant.
8.8. Therefore, the prosecution has not proved the case against the accused for the offence punishable under Section 323, 504 and 114 of the Indian Penal Code, 1860 and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Moreover, as per the observations made by the Hon’ble Apex Court in the case of Sajan Sakhariya Vs. State of Kerala and others reported in AIR 2024 SC 4557, every insult or intimidation would not amount to an offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, unless such insult or intimidation is started at a victim because he is a member of a particular Scheduled Castes or Scheduled Tribes. Therefore, from the allegations made in the complaint, the prosecution has not proved that the accused is guilty of offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
8.9. The trial Court while considering the evidences in detail has observed that the prosecution has failed to prove the case against the accused beyond reasonable doubt. While discussing the evidence in detail, the trial court has found that the only allegation against the accused is of speaking indecent words against the caste of the complainant. However from a perusal of records, it appears that the said utterance does not constitute an offence under the provisions of the Atrocity Act. The trial Court has gone into the evidence in detail and has come to the conclusion that the accused are not guilty of the alleged offence.
9. Further, learned APP is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In above view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order.
10. Considering the impugned judgment, the trial Court has recorded that there was no direct evidence connecting the accused with the incident and there are contradictions in the depositions of the prosecution witnesses. In absence of the direct evidence, it cannot be proved that the accused are involved in the offence. Further, the motive of the accused behind the incident is not established. The trial Court has rightly considered all the evidence on record and passed the impugned judgment. The trial Court has rightly evaluated the facts and the evidence on record.
11. It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
“… This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.”
12. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence at length is not necessary.
13. 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."
14. 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 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 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.
15. In the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415, the Hon’ble Apex Court has observed as under:
“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”,
“very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
16. 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, 1973 no case is made out to interfere with the impugned judgment and order of acquittal.
17. In view of above facts and circumstances of the case, on my careful re-appreciation of the entire evidence, I found that there is no infirmity or irregularity in the findings of fact recorded by learned trial Court and under the circumstances, the learned trial Court has rightly acquitted the respondents - accused for the elaborate reasons stated in the impugned judgment and I also endorse the view/finding of the learned trial Court leading to the acquittal.
18. In view of the above and for the reasons stated above, the present Criminal Appeal fails to prove its case and the same deserves to be dismissed and is dismissed, accordingly. Record & Proceedings be remitted to the concerned trial Court forthwith.
