(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. By way of present appeal, the State of Gujarat has challenged the judgment and order dated 20.9.1991 passed by learned Additional Sessions Judge, Palanpur, Banaskantha District in Sessions Case No.47 of 1989 by which the respondentsaccused were acquitted from the charges under Sections 147, 148, 149, 307, 323, 186, 225, 332 and 333 of Indian Penal Code.
2. The facts arising from the case are as under:
2.1 That one Jaisunglal Keshavlal, an Unarmed Head Constable working with Shihori Police Station of Banaskantha District lodged a complaint on 20.10.1988 against the present respondents and alleged that when the complainant along with other police personnel visited an area namely Gharechavas of Village Shihori of Taluka Kankrej, pursuant to an information received from PSO that some disturbance is going on in Gharechavas, the respondentsaccused persons attacked the police party with the sticks when the police personnel tried to catch a person namely Bhatuji Hathiji, who was found in a drunken condition. Pursuant to the attacked, several police personnels were injured.
2.2 The said complaint was investigated, and after having been found sufficient material against the accused persons, chargesheet was filed in the Court of learned JMFC at Shihori, who in turn committed the case in the Court of Sessions Judge at Palanpur of District Banaskantha since the case was triable by the Sessions Judge.
2.3 After perusing the deposition of the witnesses as well as the documentary evidence, the trial court came to the conclusion that the prosecution has failed in establishing its case with full proof and, therefore, acquitted the accused persons extending the benefit of doubt in their favour.
3. Learned APP Mr.L.B.Dabhi appearing for the appellant State has assailed the judgment on the ground that the learned Judge ought to have accepted the version of the injured police officers whose deposition before the Court are supported by the medical evidence. He further submitted that the learned Judge has given much weightage on the lapses by police officers which are having less importance in the entire investigation. He has further submitted that the learned Judge has erred in coming to the conclusion that there was a lapse on the part of the police personnel in not identifying the accused persons and, therefore, submitted that the judgment and order of acquittal be quashed and set aside and the accused be convicted and appropriate sentence may be awarded to the accused persons.
4. On the other hand, learned advocate Ms.Sushma Sunil Shah appearing for the respondents No.1 to 3 submitted that, perusing the deposition as well as the documentary evidence, it emerges that the way in which the entire incident has been narrated by the complainant, it becomes doubtful that the incident took place in the manner which the complainant as well as witnesses have described it in their depositions. She further submitted that the learned Judge has rightly put weightage on nonmentioning the names of the accused persons by Police Constable Rameshbhai Jamabhai who posed himself as an eyewitness to the incident. She further submits that Police Constable Rameshbhai Jamabhai did not disclose the names of the respondentsaccused persons but had declared that a mob of Rabari community had attacked before PSO Jagtidan when he asked for more police force at Police Station. She further submits that PSO Jagtidan Govindan, though informed by Rameshbhai, has not written down the information supplied by Police Constable Rameshbhai Jamabhai in a nature of FIR, but sends more police personnel at the place of the incident and, therefore, the trial court was right in observing that the conduct of the police officers is under doubt and one of the reason for acquittal does not require any interference by this Court. She has further submitted that the genesis of the incident has not come on record since it surfaces from the deposition of several witnesses that there was some incident in which a lady of Rabari community was teased by some police officer and, therefore, the incident in question took place. In absence of the genesis of the incident, the trial court has rightly observed that whatever deposed by the witnesses the true facts have not come on record and, therefore, rightly acquitted the accused persons extending the benefit of doubt in their favour.
4.1 She has submitted that it is an established principle of law that when two views are possible, the benefit should go in favour of the accused, and when the same is granted in favour of the accused, the scope and ambit of the appeal by the State would be very narrow. That means if the appellate court finds that the judgment in the acquittal appeal is contrary to the evidence, palpably erroneous or a view which could not have been taken by the lower court, the appellate court should be restrained from interfering with the judgment of acquittal. In support of her submission, she has relied upon the judgment of Hon'ble Apex Court in the case of STATE OF RAJASTHAN VS. SHERA RAM @ VISHNU DUTTA, reported in 2011(3) GLH 802 as well as another judgment of Hon'ble Apex Court in the case of DHANPAL VS.
STATE OF MADRAS BY PUBLIC PROSECUTOR reported in 2010(1) GLH 119.
5. We have examined the Record & Proceedings and we have gone through the deposition of the witnesses and the doctors, and perused the documentary evidence which has come on record of the case.
Jaisunglal Keshavlal, P.W.3 Exh.34, Head Constable of Shihori Police Station who lodged the FIR Exh.35 has deposed that one PSO Jagtidan Govindan informed him at about 19:30 hours that he has received an information from one Popatji Keshaji that some scuffle is going on in Gharechavas and asked them to visit along with police personnel. This witness along with another Police Constables Mohanbhai Galabhai, Rameshbhai Jamabhai, Abadkhan Dadamiya and Mohd.Yusuf Nazirmiya reached at the place of incident where the incident was going on. When they reached at the place of incident, they did not find any person but only one Bhatuji Hathiji in drunken condition who questioned the Police Officers about non assisting the real offender. Since he was in drunken condition, police tried to arrest him and therefore he started abusing the police personnel. When they started legal procedure of arresting him, at that time, the accused persons came and tried to take away the drunkard. At that time the accused persons gave stick blows to one Police Constable Mohanbnhai Galabhai and other police constable. Since there was hue and cry at the place of incident, about 20 to 25 persons gathered at the place of incident, he asked Police Constable Rameshbhai Jamabhai to reach the police station and asked for more help. Now considering the deposition of Rameshbhai Jamabhai P.W.11 Exh.53, it appears that he knows all these accused persons. It has come on record that he reached at Shihori Police Station and informed PSO Jagtidan of Shihori Police Station about the incident. He has admitted in his crossexamination that when he reached at the police station for more help in a nature of police force, he was aware about the accused persons by their names but did not inform the PSO about the same. Now Jagtidan Govindan P.W.5 Exh.40 has admitted that Police Constable Rameshbhai had not declared the names of the accused persons. It is true that police personnels are injured in this incident, but it becomes doubtful that only the accused – respondents gave the stick blows. As stated hereinabove, when crowd of 2030 persons gathered at the time of incident, giving particular names given at the time of recording the FIR, creates doubt.
In view of this factual aspects, the conduct of police witnesses creates doubt about the involvement of the respondentsaccused. The theory put forward by the prosecution is of a different nature which is contrary to the natural conduct of the witnesses. The trial court has rightly observed that the accused were entitled for acquittal since the prosecution failed in bringing the correct facts of the entire incident.
6. We are in agreement with the principle laid down by the Apex Court in the case of State of Rajasthan (supra) as well as in the case of Dhanpal (supra), that when the view taken by the trial court is possible and plausible, we would not like to interfere with the same. The reasoning part of the trial court in the judgment is neither contrary to evidence nor palpably erroneous which would call the appellate court for interference.
7. In the result, the appeal is dismissed. The judgment and order dated 20.9.1991 rendered by learned Additional Sessions Judge, Palanpur, Banaskantha District in Sessions Case No.47 of 1989 is confirmed.
( A.L. DAVE, J. ) syed/ ( A.J. DESAI, J. )