Gujarat High Court
State Of Gujarat vs Mangabhai Manabhai Bharthari on 16 December, 2024
NEUTRAL CITATION
R/CR.A/1144/2008 JUDGMENT DATED: 16/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1144 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
=========================================
Approved for Reporting Yes No
x x
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STATE OF GUJARAT
Versus
MANGABHAI MANABHAI BHARTHARI & ORS.
================================================================
Appearance:
MR YUVRAJ BRAHMBHATT APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2
MR HARSHAL S PATEL FOR MR TUSHAR CHAUDHARY(5316) for the
Opponent(s)/Respondent(s) No. 1,3,4
UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 16/12/2024
ORAL JUDGMENT
1. Present appeal is filed by the appellant – State of
Gujarat under Section 378(1)(3) of the Criminal
Procedure Code, 1973 against the impugned judgment
and order dated 18.12.2007 passed by the learned
Additional Sessions Judge, Fast Track Court No.5,
Palanpur (hereinafter be referred to as “the trial Court”)
in Special Case No. 167 of 2007 whereby, the trial Court
has acquitted the accused for the offences punishable
under Sections 147, 148, 149, 323, 504, 506(2) and 325
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etc. of the Indian Penal Code (“IPC” for short) read with
Section 135 of Bombay Police Act and Sections 3(1), (5)
(10) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (hereinafter be
referred to as the “Atrocities Act”).
2. Brief facts of the present case, in nutshell, are as
under:-
2.1 The complainant Chamanbhai Bhagvanbhai Parmar
registered FIR being I-C.R.No.93/1997 with Chhapi Police
Station, at Palanpur, Dist: Banaskantha against the
accused for the offence punishable under Sections 147,
148, 149, 323, 325, 504 and 506(2) of the Indian Penal
Code and Sections 3(1), (5) (10) of the Atrocity Act,
mentioning that the complainant is having land
admeasuring 4 acres and 9 gunthas and is having land
bearing Survey No.27 situated in the sim of Nagpura
Village, which has been purchased by sale deed dated
23.10.1996 from Bharthari Mana Shiva, resident of
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Nagpuravala and since then, complainant is possessing
the said land.
2.2 In that year, the said land was given to his nephew of
Rajput Javanji Ramaji on crops share basis. Therefore,
they cultivated castor and vetch in the monsoon season
and they are served some, land for farming of mustard.
On 19.10.1997, the complainant and his nephew
Sanjaykumar Naranbhai, Sabatkhan Imamkhan and
Javanji Ramaji Rajput went to their said field for farming
of mustard and for watering of mustard and they saw
caster and Bhadred near the well.
2.3 At that time, at about 11:00 hours, Bharthri Mana
Shiva of village Nagpura by possessing a stick, Chaman
Mana, Dalpat Mana and Jayanti Mana, Gangarana by
possessing a stick and Madar Mana by possessing iron
pipe came from slope side and they gave filthy abuses to
them. Suddenly, they got provoked and Bharthari Mana
Shiva inflicted a stick blow on back of the complainant
and Chaman Mana inflicted a stick blow on near the right
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ear of the complainant and Dalpat Mana inflicted blow on
right wrist of the complainant. On hearing that shout his
nephew Sanjaykumar and other persons intervened and
saved the complainant and Madar Mana inflicted iron
pipe blow on wristleft of his nephew Sanjaykumar.
Second time, inflicted iron pipe blow on left bavla of his
nephew Sanjaykumar and Manga Mana inflicted a stick
blow on knee of Sanjay and at the same time, Jayanti
Mana inflicted a stick blow on left hand of Sanjay and
after shouting, they went with their weapons by giving
flighty abuses and threatened to them. Therefore, the
complainant registered a complaint against the accused
persons.
2.4 After completion of investigation the police has filed
chargesheet before the Judicial Magistrate First Class,
Palanpur for the offence punishable under Sections 147,
148, 149, 323, 504, 506(2) and 325 of Indian Penal Code
and Section 3(1),(5)(10) of the Atrocity Act, 1989. Then
after, the matter was committed to the Hon’ble Sessions
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Court and case was registered as Special Case No.
167/2007.
2.5. The accused pleaded not guilty to the charge and
claimed to be tried. The prosecution, therefore, led
evidence. The prosecution has examined as many as 14
witnesses and also produced documentary evidence. At
the conclusion of the trial, and after hearing both the
sides the Additional Sessions Judge and Fast Track Court
No.5, Palanpur has passed an order dated 18.12.2007 in
Special Case No. 167/2007, acquitting all the accused
from the charges of offences against the offence
punishable under Sections 147, 148, 149, 323, 504,
506(2) and 325 of Indian Penal Code and Sections 3(1),(5)
(10) of the Atrocity Act, 1989.
2.6 Being aggrieved by and dissatisfied with the
aforesaid judgment and order of acquittal the appellant –
State of Gujarat has preferred this Appeal.
3. At this juncture it is noted herein that before the trial
commenced original accused nos. 1 and 2 passed away
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therefore, trial was abated qua original accused Nos. 1
and 2. Further, during pendency of present Appeal, based
upon the report of the Talati-cum-Mantri, which was
produced by learned APP Ms. Shah, stating that original
accused No.4 Jayantibhai Manabhai Bharthari – present
respondent No. 2 passed away and therefore, vide order
dated 19.4.2023 present appeal was abated qua the said
respondent as well. So now present appeal survives only
for present respondent Nos. 1, 3 and 4.
4. Heard Yuvraj Brahmbhatt learned Additional
Public Prosecutor for the appellant – State of Gujarat and
Mr. Harshal S. Patel, learned counsel on behalf of Mr.
Tushar M. Chaudhary, learned Counsel for the respondent
– accused at length.
5. Mr. Brahmbhatt, learned Additional Public
Prosecutor for the appellant – State of Gujarat, while
referring to the entire oral as well as documentary
evidence, has assailed the impugned judgment and order
and has submitted that the trial Court has not taken into
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consideration the evidence connecting the accused to the
alleged offence in its proper perspective. He has
submitted that the trial Court ought to have believed that
the prosecution has been able to prove the charges
levelled against the accused. While referring to the
evidence of the witnesses and the material collected
against the accused, Mr. Brahmbhatt learned Additional
Public Prosecutor has submitted that the prosecution has
established the case against the accused by examining
the witnesses who have supported the case of the
prosecution, however, the trial Court has discarded and
disbelieved the evidence of the witnesses and failed to
appreciate the statutory presumption.
5.1 Mr. Brahmbhatt, learned Additional Public
Prosecutor for the appellant – State of Gujarat, has
submitted that witnesses have supported the case of the
prosecution and the medical certificate and medical
evidence have also supported the case of the prosecution
and police witnesses have also supported the case of the
prosecution, however the trial Court has completely
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overlooked oral as well as the documentary evidence and
also the evidence of the Investigating Officer while
passing the impugned judgment and order. He has
submitted that the injured Sanjay Parmar has received a
serious injury and having a fracture on his hand the same
was corroborated with the evidence of the concerned
doctor, however, trial Court has not considered this
aspect and has committed serious error of law and on
facts. He has also further submitted that the trial Court
has ignored the fact that there was an ongoing dispute
between the parties and civil as well as criminal
proceedings were pending between the parties however,
the trial Court has not considered the facts of the present
case while passing the impugned judgment and order of
acquittal. He has also contended that so far as the offence
under Sections 3(1),(5)(10) of the Atrocity Act is
concerned, the trial Court has not even discussed at all
the evidence or allegation with regard to the said offence.
5.2 According to his submission, the trial Court ought
to have convicted the accused and ought to have imposed
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necessary sentence. He has prayed to allow the present
appeal and to quash and set aside the impugned
judgment and order of acquittal.
6. As against that Mr. Harshal S. Patel, learned
counsel appearing on behalf of Mr. Tushar Chaudhary,
learned Counsel for the respondents accused has
submitted that the prosecution measurably failed to
establish the charges levelled against present
respondents and therefore, trial court has not committed
an error while passing the impugned judgment and order
of acquittal, mainly on the ground that the genesis of the
incident was suppressed by the prosecution. He has
submitted that neither original informant – complainant
was examined by the prosecution nor independent
witnesses were examined by the prosecution. He has
submitted that the panch witnesses have not also
supported and they have declared hostile and even from
their cross examinations the prosecution has not culled
out any details with regard to the incident. He has
submitted that the first doctor who has examined the
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injured, first in point of time, at chhapi has stated in the
evidence that he has examined the injured at 6.00 O’clock
at chhapi P.H.C. and has given a preliminary treatment
and then he has referred Sanjay Parmar for further
treatment at civil hospital, Palanpur, particularity in the
orthopedic department. He has submitted that in turn the
doctor of Palanpur civil hospital has deposed before the
Court that with refer chit and with police yadi, the injured
Sanjaybhai Parmar had come to the Palanpur Civil
Hospital at 4.00 p.m. and he had examined the
Sanjaybhai Parmar. He has submitted that there was
material variance which goes to rout of the case and
therefore, under such circumstances narrated herein
above, he urges that the trial Court has not committed
any error while passing impugned judgment and order of
acquittal.
6.1 Mr. Harshal S. Patel, learned counsel for the
respondents has further contended that in fact though
the land was already sold to the present accused,
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however, they were forcefully entered in to the
agriculture land, which is in possession of the original
accused and for that four day’s prior to date of incident,
also one another complaint was registered by the
Chamanbhai Bhagvanbhai Parmar. He has also submitted
that before the concerned Civil Court a civil Suit is also
pending by and between the parties with regard to
cancellation of the sale deed executed by the informant in
favour of present respondents and under such
circumstances, the trial Court has after appreciating the
evidence of all the concerned witnesses has rightly
passed the impugned judgment and order of acquittal in
favour of present respondents, which is in consonance
with the settled legal principal and just and proper.
6.2 In view of the above submissions, learned Counsel for
the respondents submits that the impugned judgment and
order of trial Court is in consonance with the settled legal
principle and the same may be confirmed and present
appeal filed against the acquittal of the respondents
accused may be dismissed.
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7. This Court has perused the judgment and order of
acquittal rendered by the trial Court and carefully
considered the rival contentions, evidence and material
placed on record.
8. It appears from the record that on 19.10.1997 as per
the case of the prosecution, P.W. 6 Jawanuj Ramaji Rajput
Exh.32 has deposed that he was cultivating the land on
behalf of the complainant and therefore, he went to the
agriculture field and at that time Sanjay Narandas
Parmar and Sabatkhan Imamkhan also accompanied to
him. When they reached to the agriculture filed to see the
agriculture crop, at that time, six accused persons in
connivance with each other joined an unlawful assembly
and have tried to raise quarrel and in the spur of that
moment, all the accused persons have used their weapons
and caused the injuries to the informant Chamanbhai
Bhagvanbhai Parmar and his nephew Sanjaybhai Parmar.
How and in what manner the accused have assaulted also
mentioned. In the same breath, in cross examination, P.W.
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6 Jawanuj Ramaji Rajput Exh.32 has stated that he was
not aware that whether this land was sold to the present
respondents accused by the informant. He has stated that
for the same, the co-sharer of the said agriculture land
namely the sons of Chamanbhai Bhagvanbhai Parmar
have raised objection and therefore, a civil suit for
cancellation of the said sale deed executed by
Chamanbhai Bhagvanbhai Parmar in favour of present
respondents was under challenge. He has also admitted
that prior to the date of incident, before four day’s also
one another FIR was registered by the Chamanbhai
Bhagvanbhai Parmar wherein he was witness to the
incident. Even, in the said sale deed also he was one of
the witnesses to the sale transaction. So meaning thereby
he was aware that the subject parcel of land was already
sold by Chamanbhai Bhagvanbhai Parmar to the present
respondents, however he has stated incorrect facts in his
chief examination.
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9. So the said witness being P.W. 6 Jawanuj Ramaji Rajput
Exh.32 has no regard to the truth and he has stated
incorrect story before the Court and therefore, while
appreciating the evidence of this witness, the trial Court
has rightly discarded and dislodged the evidence of the
prosecution.
10. Even in the same manner, the doctor of the
Palanpur Hospital P.W. 8 – Dr. Babulal Kantilal Solanki
Exh. 35 has deposed before the Court in his chief-
examination that he was treating the injured viz.
Sanjaybhai Parmar on reference by the P.H.C. Chhapi and
with the refer note, the injured Sanjaybhai was referred
to the Civil Hospital, Palanpur on 28.10.1997 i.e. on next
day and at 4.00 p.m. on next day, he has examined the
Sanjaybhai, wherein he has found one fracture injury
received on the hand of the injured Sanjaybhai Parmar. In
fact, the very doctor who has recorded the said fact while
recording history, has mentioned that the assault caused
by “Bharthari” but not mentioned the full name of
“Bharthari” because all the six accused are Bharthari. In
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fact, at the first instance, the injured before the First
doctor at P.H.C. Chhapi, had not stated anything with
regard to the name of the assailants and it was merely
stated before the doctor that he was assaulted.
11. However, while referring the injured Sanjaybhai
Parmar to the Palanpur Civil Hospital, the Civil Hospital
in turns recorded that history of assaulted at 10.30 a.m.
by Bharthari. In fact, in that history, the doctor has not
stated that yesterday i.e. on 19.10.1997 the assault was
made and he was examined the injured on the next day.
12. So all these details create serious doubts of the
veracity in the depositions of both the doctors and
therefore, under such circumstances, the trial Court has
rightly passed the impugned judgment and order of
acquittal while appreciating the evidence produced by the
prosecution in a nature which does not inspire any
confidence.
13. It is also relevant to note herein that the manner
in which the incident explained by the informant and the
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injured Sanjaybhai Parmar Ex.33, P.W. 6-Javanji Ramaji
Rajput being an interested person and P.W. 9-Sabatkhan
Imamkhan at Exh.39, their depositions do not inspire any
confidence and therefore, under such circumstances the
Trial Court has not committed any error while passing the
impugned judgment and order of acquittal.
14. In fact, P.W.9 – Sabatkhan Imammkhan was tried to
corroborate the case of the prosecution neither he is
resident of village Pilucha nor he is having any
agriculture land in village Pilucha and he is resident of
village Bokhala however, how he has reached to village
Pilucha and for what reason he accompanied to the
injured, the said fact does not inspire any confidence and
therefore, trial Court has rightly discarded and dislodged
the evidence of P.W.9. Except these two independent
witnesses, no other independent witnesses have been
examined by the prosecution. Under such circumstances,
the prosecution measurably failed to produce any cogent
and reliable evidence before the Trial Court and thus, in
my opinion, under the circumstances, narrated herein
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above, present appeal is devoid of any merits and the
same deserve to be set dismissed.
15. It is also relevant to refer to the decision of the
Hon’ble Supreme Court in the case of Shajan Skaria Vs.
State of Kerala reported in AIR 2024 SC 4557 for the
purpose of considering the provision of Section 3(1)(x) of
the Atrocity Act. The relevant paragraph of this decision
are as under:-
“56. It is relevant to note that Section 3(1)(r) of the Act, 1989 is
similarly worded as the erstwhile Section 3(1)(x) of the Act, 1989
which was in force prior to its substitution with effect from
26.01.2016.
58. We say so for the reason that all insults or intimidations to a
member of the Scheduled Caste or Scheduled Tribe will not
amount to an offence under the Act, 1989 unless such insult or
intimidation is on the ground that the victim belongs to Scheduled
Caste or Scheduled Tribe. There is nothing in the transcript of
the uploaded video to indicate even prime facie that those
allegations were made by the appellant only on account of the
fact that the complainant belongs to a Scheduled Caste. From the
nature of the allegations made by the appellant, it appears that he
is at inimical terms with the complainant. His intention may be to
malign or defame him but not on the ground or for the reason
that the complainant belongs to a Scheduled Caste.
59. In the aforesaid context, we may refer to and rely upon a
three-Judge Bench decision of this Court in Hitesh Verma (supra).
The relevant observations are reproduced below:
“13. The offence under Section 3(1)(r) of the Act would indicate
the ingredient of intentional insult and intimidation with an intent
to humiliate a member of a Scheduled Caste or a Scheduled
Tribe. All insults or intimidations to a person will not be an
offence under the Act unless such insult or intimidation is on
account of victim belonging to Scheduled Caste or Scheduled
Tribe. The object of the Act is to improve the socio-economic
conditions of the Scheduled Castes and the Scheduled Tribes asPage 17 of 26
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they are denied number of civil rights. Thus, an offence under the
Act would be made out when a member of the vulnerable section
of the society is subjected to indignities, humiliations and
harassment. The assertion of title over the land by either of the
parties is not due to either the indignities, humiliations or
harassment. Every citizen has a right to avail their remedies in
accordance with law. Therefore, if the appellant or his family
members have invoked jurisdiction of the civil court, or that
Respondent 2 has invoked the jurisdiction of the civil court, then
the parties are availing their remedies in accordance with the
procedure established by law. Such action is not for the reason
that Respondent 2 is a member of Scheduled Caste.
xxx xxx xxx
17. In another judgment reported as Khuman Singh v. State of
M.P. [Khuman Singh v. State of M.P., (2020) 18 SCC 763 : 2019
SCC OnLine SC 1104], this Court held that in a case for
applicability of Section 3(2)(v) of the Act, the fact that the
deceased belonged to Scheduled Caste would not be enough to
inflict enhanced punishment. This Court held that there was
nothing to suggest that the offence was committed by the
appellant only because the deceased belonged to Scheduled
Caste. The Court held as under:
“15. As held by the Supreme Court, the offence must be such so
as to attract the offence under Section 3(2)(v) of the Act. The
offence must have been committed against the person on the
ground that such person is a member of Scheduled Caste and
Scheduled Tribe. In the present case, the fact that the deceased
was belonging to “Khangar” Scheduled Caste is not disputed.
There is no evidence to show that the offence was committed only
on the ground that the victim was a member of the Scheduled
Caste and therefore, the conviction of the appellant-accused
under Section 3(2)(v) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act is not sustainable.”
18. Therefore, offence under the Act is not established merely on
the fact that the informant is a member of Scheduled Caste unless
there is an intention to humiliate a member of Scheduled Caste or
Scheduled Tribe for the reason that the victim belongs to such
caste. In the present case, the parties are litigating over
possession of the land. The allegation of hurling of abuses is
against a person who claims title over the property. If such person
happens to be a Scheduled Caste, the offence under Section 3(1)
(r) of the Act is not made out.” (Emphasis supplied)
60. Thus, the dictum as laid aforesaid is that the offence under
Section 3(1)(r) of the Act, 1989 is not established merely on the
fact that the complainant is a member of a Scheduled Caste or a
Scheduled Tribe, unless there is an intention to humiliate such a
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member for the reason that he belongs to such community. In
other words, it is not the purport of the Act, 1989 that every act
of intentional insult or intimidation meted by a person who is not
a member of a Scheduled Caste or Scheduled Tribe to a person
who belongs to a Scheduled Caste or Scheduled Tribe would
attract Section 3(1)(r) of the Act, 1989 merely because it is
committed against a person who happens to be a member of a
Scheduled Caste or Scheduled Tribe. On the contrary, Section
3(1)(r) of the Act, 1989 is attracted where the reason for the
intentional insult or intimidation is that the person who is
subjected to it belongs to a Scheduled Caste or Scheduled Tribe.
We say so because the object behind the enactment of the Act,
1989 was to provide stringent provisions for punishment of
offences which are targeted towards persons belonging to the SC/
ST communities for the reason of their caste status.
a. Meaning of the expression “intent to humiliate” appearing in
Section 3(1)(r) of the Act, 1989
61. The words “with intent to humiliate” as they appear in the
text of Section 3(1)(r) of the Act, 1989 are inextricably linked to
the caste identity of the person who is subjected to intentional
insult or intimidation. Not every intentional insult or intimidation
of a member of a SC/ST community will result into a feeling of
caste-based humiliation. It is only in those cases where the
intentional insult or intimidation takes place either due to the
prevailing practice of untouchability or to reinforce the
historically entrenched ideas like the superiority of the “upper
castes” over the “lower castes/untouchables”, the notions of
‘purity’ and ‘pollution’, etc. that it could be said to be an insult or
intimidation of the type envisaged by the Act, 1989.
62. We would like to refer to the observations of this Court in
Ram Krishna Balothia (supra) to further elaborate upon the idea
of “humiliation” as it has been used under the Act, 1989. It was
observed in the said case that the offences enumerated under the
Act, 1989 belong to a separate category as they arise from the
practice of ‘untouchability’ and thus the Parliament was
competent to enact special laws treating such offences and
offenders as belonging to a separate category. Referring to the
Statements of Objects and Purposes of the Act, 1989 it was
observed by this Court that the object behind the introduction of
the Act, 1989 was to afford statutory protection to the Scheduled
Castes and the Scheduled Tribes, who were terrorised and
subjected to humiliation and indignations upon assertion of their
civil rights and resistance to the practice of untouchability. For
this reason, mere fact that the person subjected to insult or
intimidation belongs to a Scheduled Caste or Scheduled Tribe
would not attract the offence under Section 3(1)(r) unless it was
the intention of the accused to subject the concerned person to
caste-based humiliation.
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70. In our considered view, it is in a similar vein that the term
‘humiliation’ as it appears in Section 3(1)(r) of the Act, 1989 must
be construed, that is, in a way that it deprecates the infliction of
humiliation against members of the Scheduled Castes and
Scheduled Tribes wherein such humiliation is intricately
associated with the caste identity of such members.
73. A two-Judge Bench of this Court in Ramesh Chandra Vaishya
(supra) explained that for an act of intentional insult to attract the
offence under erstwhile section 3(1)(x) of the Act, 1989 (which is
identical to Section 3(1)(r) of the Act, 1989) it was necessary that
the insult is laced with casteist remarks. Relevant observations is
extracted hereinbelow:
“18. […] The legislative intent seems to be clear that every insult
or intimidation for humiliation to a person would not amount to
an offence under section 3(1)(x) of the SC/ST Act unless, of
course, such insult or intimidation is targeted at the victim
because of he being a member of a particular Scheduled Caste or
Tribe. If one calls another an idiot (bewaqoof) or a fool (murkh) or
a thief (chor) in any place within public view, this would obviously
constitute an act intended to insult or humiliate by user of
abusive or offensive language. Even if the same be directed
generally to a person, who happens to be a Scheduled Caste or
Tribe, per se, it may not be sufficient to attract Section 3(1)(x)
unless such words are laced with casteist remarks. […]”
16. In view of the above, the allegation made by the
prosecution that the accused persons have intentionally
humiliate and insulted the informant by his community
does not inspire any confidence because from the oral
evidence of the relevant wittiness, nothing come on
record to establish that the accused have insulted and
humiliate the informant by his community and caste.
17. Therefore, the story put forward by the prosecution
was rightly disbelieved by the trial Court and after
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examining oral as well as documentary evidence and
going through the evidence of the witnesses, the trial
Court has rightly passed the impugned judgment and
order of acquittal. Considering the overall facts and
circumstances of the case and perusing the impugned
judgment and order of the trial Court, it transpires that
the trial Court has not committed any error of facts and
law in passing the impugned judgment and order of
acquittal.
18. It is well settled by catena of decisions that the an
Appellate Court has full power to review, re-appreciate
and reconsider the evidence upon which the order of
acquittal is founded. However, Appellate Court 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
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presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial Court.
19. Further, 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. Further, while exercising the powers in
appeal against the order of acquittal, the Court of appeal
would not ordinarily interfere with the order of acquittal
unless the approach of the lower Court is vitiated by
some manifest illegality and the conclusion arrived at
would not be arrived at by any reasonable person and,
therefore, the decision is to be characterized as perverse.
Merely because two views are possible, the Court of
appeal would not take the view which would upset the
judgment delivered by the Court below. However, the
Appellate Court has a power to review the evidence if it is
of the view that the conclusion arrived at by the Court
below is perverse and the Court has committed a
manifest error of law and ignored the material evidence
on record. A duty is cast upon the Appellate Court, in
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such circumstances, to re-appreciate the evidence to
arrive to a just decision on the basis of material placed
on record to find out whether the accused are connected
with the commission of the crime with which he is
charged.
20. The scope and principles are enunciated by the
Hon’ble Apex Court in case of Chandrappa and others
Vs. State of Karnataka reported in (2007) 4 SCC 415,
more particularly paragraph Nos. 42 and 43, which
was subsequently re-affirmed by the Hon’ble Apex Court
Rajesh Prasad Vs. State of Bihar and another,
reported in [2022] 3 SCC 471, wherein, the Hon’ble
Apex Court has enunciated the general principles in case
of acquittal, more particularly in paragraph No. 26 the
general principles are set out by the Hon’ble Apex Court
based upon various decisions of the Hon’ble Apex Court.
Then in case of Babu Sahebagouda Rudragoudar Vs.
State of Karnataka, reported in AIR 2024 SC 2252 =
(2024) 8 SCC 149, the Hon’ble Apex Court has dealt
with the similar issue, more particularly, in paragraph
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Nos. 37 to 40. Hence, I am in complete agreement with
the findings recorded by the trial Court.
21. It is also worthwhile to refer to the recent decision of
the Hon’ble Supreme Court in the case of Ramesh vs.
State of Karnataka, reported in [2024] 9 SCC 169,
wherein the Hon’ble Supreme Court has held and
observed in paras-20 and 21 as under:-
“20. At this stage, it would be relevant to refer to the general
principles culled out by this Court in Chandrappa and others vs.
State of Karnataka , regarding the power of the appellate Court
while dealing with an appeal against a judgment of acquittal. The
principles read thus:
“42. …. (1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the order of
acquittal is founded.
(2) The Code of Criminal Procedure, 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 emphasize 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
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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.
21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of
this Court pointed out that it would be essential for the High
Court, in an appeal against acquittal, to clearly indicate firm and
weighty grounds from the record for discarding the reasons of the
Trial Court in order to be able to reach a contrary conclusion of
guilt of the accused. It was further observed that, in an appeal
against acquittal, it would not be legally sufficient for the High
Court to take a contrary view about the credibility of witnesses
and it is absolutely imperative that the High Court convincingly
finds it well-nigh impossible for the Trial Court to reject their
testimony. This was identified as the quintessence of the
jurisprudential aspect of criminal justice. Viewed in this light, the
brusque approach of the High Court in dealing with the appeal,
resulting in the conviction of Appellant Nos. 1 and 2, reversing
the cogent and well-considered judgment of acquittal by the Trial
Court giving them the benefit of doubt, cannot be sustained.”
22. Considering the entire evidence on record, it clearly
appears that there is no credible evidence to connect the
present accused with the alleged crime and the evidence
on record is not so convincing to prove beyond
reasonable doubt that the accused has committed the
alleged crime. Therefore, the accused cannot be
convicted on the evidence on record.
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23. On perusal of the impugned judgment and order, it
clearly transpires that the trial Court has not committed
any error of fact and law in appreciating the evidence on
record and in acquitting the accused from the charges
levelled against them. Even on reappreciation of the
evidence, it clearly transpires that the prosecution has
miserably failed to prove the charge levelled against the
accused beyond reasonable doubt. Therefore, the
impugned judgment and order of the trial Court is
sustainable and the present appeal is liable to be
dismissed.
24. In view of the above, the present appeal is devoid of
merits and it deserves to be dismissed. Resultantly, it is
dismissed. The impugned judgment and order of acquittal
passed by the trial Court is hereby confirmed. Bail bond
stands cancelled. Record and proceedings be sent back to
the concerned Trial Court forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
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