1. The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 2.2.1993 passed by the learned Special Judge, Kachhchh at Bhuj, in Criminal Case No.16 of 1990, whereby the accused have been acquitted from the charges leveled against them.
2. The brief facts of the prosecution case are as under:
2.1 As per the case of the complainant, the accused – present respondent was holding the post of Managing Director of Kachhchh Jilla Sahkari Bank during the time of September – October, 1990 and the complainant was member of Khedut Sahkari Mandli of Khadir area. The Mandali proposed for financial assistance before the said Bank and that was sanctioned. As per the knowledge of the complainant, the accused stopped the said loan proceedings by sending telegram and injustice was caused to the members of the Mandali and therefore, the members started hunger strike. During the strike process, the complainant along with other persons met the accused in the bank, where the accused got exited and abused about the caste of the complainant and other persons on the issue stopping the loan. As per the complainant, the accused threatened for dire consequences to the complainant and therefore, the complaint was lodged against the accused for the offences punishable under Sections 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 506(2) of the Indian Penal Code. Thereafter, necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondents were arrested and, ultimately, chargesheet was filed against him before the court of learned Judicial Magistrate First Class. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court, which was numbered as Sessions Case No.16 of 1990. The trial was initiated against the respondent accused.
2.2 To prove the case against the present accused, the prosecution has examined, in all 4 witnesses and also produced several documentary evidence.
2.3 At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 2.2.1993.
3. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant State has preferred the present appeal.
4. It is submitted by learned APP that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondent. Learned APP has also taken this court through the oral as well as the entire documentary evidence.
5. Learned APP Ms. Punani for the appellant – State submitted that the complainant produced caste certificate at Exhibit 10 and affidavit at Exhibit 11 showing the caste of the complainant. This is a case against the member of Schedule Caste and Scheduled Tribes and it is established through the evidence of witnesses examined during the trial that the accused had uttered the words against the caste of the complainant and other persons and therefore, the ingredients under Section 3(1) (10) of the Atrocities Act are proved. She further submitted that the learned Special Judge ought to have considered the certificate pertaining to the caste of the complainant in true spirit, but the same has not been considered and therefore, the order of acquittal is required to be dismissed and the accused may be punished for the charges levelled against him. The incident was occurred at public place and therefore, the say of the eyewitnesses is required to be believable and there is no reason to disbelieve the case of the prosecution by the learned Special Judge.
6. As against this, learned advocate Mr. Anandjiwala appearing on behalf of the respondent – accused, read the charge and submitted that this is a case under the provisions of the Atrocities Act and just to prove the alleged offence, it is duty of the prosecution to prove main ingredients of Section 3(1)(10) of the Act against the accused. The incident was not occurred at public place, but the incident took place in the Chamber as per the complaint. He also read the contents of the affidavit at Exhibit 11 and certificate at Exhibit 10 regarding caste of the complainant. From the contents of affidavit, it appears that the age of the complainant is altered by striking with pen. When the contents of the caste certificate are not proved beyond reasonable doubt, then the question of commission of the offence under the Act is not said to be committed by the accused. The witnesses examined by the trial Court are interested witnesses and the chit which was given to the peon before the incident at the chamber of accused, about the name of the complainant which was wrongly stated by the complainant himself, then it can be said that the accused has not committed any offence under the Act. He further submitted that learned Special Judge rightly acquitted the accused and therefore, no interference is required to be called for by this Court.
7. I have perused the record and considered the submissions made by the parties. From the charge, it appears that the complainant is belonging to the Scheduled Caste, but it is duty of the prosecution to prove the same by documentary evidence. As per the say of the complainant, P.W.1, he affirmed one affidavit just to change the name and date of birth and certificate of Caste, both were not proved by the complainant before the trial Court. The original name of the complainant is Fuda Sumar and the name was not liked by him, he affirmed one affidavit on stamp paper. That name was changed by the complainant as Nagji Sumar Parmar from Fuda Sumar. The affidavit was affirmed on 24.8.1992 and the incident took place on 1.10.1990. Therefore, affidavit and Caste certificate create doubt and it is not proved that the complainant is a member of Scheduled Caste or Tribes and the Caste Harijan was not in the prescribed Schedule at that time. Besides the incident was occurred in the chamber of the accused, where the complainant himself and his own persons were there and the said place cannot be said to a public place, as except the persons of the complainant, no one was there, who can say that the accused uttered such words about caste of the complainant and threatened to kill him. I have perused the judgment and order passed by the learned Special Judge and I have also perused ingredients of Section 506(2) of the Indian Penal Code. Therefore, the learned Special Judge has rightly acquitted the accused from the charges levelled against him.
8. At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court laid down the following principles:
“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 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 curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis 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.”
9. Thus, it is a settled principle that while exercising appellate power, even 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.
10. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
11. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned APP for the appellantState. Thus, from the evidence itself, it is established that the prosecution has not proved its case beyond reasonable doubt.
12. Learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
13. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him.
14. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
15. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed. Bail bond, if any, stands cancelled. Record and proceedings to be sent back to trial Court, forthwith.
(Z.K. SAIYED, J.) ynvyas