By way of present appeal, filed under Section 378 of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment and order of acquittal dated 9.7.1993 passed by the learned Special Judge & Additional Sessions Judge, Palanpur at Banaskantha, in Special Case No.45 of 1992. The said case was registered against the respondents-original accused for the offences punishable under Sections 143, 147, 148, 149, 323, 324 and 426 of the Indian Penal Code, under Section 135 of the Bombay Police Act and under Section 3(1)(10) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act.
According to the prosecution case, on 9.1.1992 at about 17:30 hours the accused persons formed an unlawful assembly illegally near Bus-stand of Dhanera Village, Dist. Banaskantha and common intention of the assembly was to cause injury to Harijan Purshottam Galba and thereby committed offence punishable under Sections 147 and 148 of the Indian Penal Code. The accused persons armed with iron rod and stick assaulted Harijan Purshottam Galba on head, elbow of hand and on back and thereby committed an offence punishable under Section 323 of the Indian Penal Code. On the same day accused persons torn shirt of the complainant and caused damage of Rs.10/- and thereby committed an offence punishable under Section 426 of the Indian Penal Code. On the day of offence as per Notification of District Magistrate there was ban to move with weapon, yet the accused persons moved with iron rod, stick and khilasari and thereby committed an offence punishable under Section 135 of the Bombay Police Act. The accused persons insulted Harijan Purshottam Galba with deliberate intention and threatened him and thereby committed an offence punishable under Section 3(1)(10) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act.
Thereafter, investigation was carried out and statements of several witnesses were recorded. During the course of investigation, accused persons were arrested and, ultimately, charge-sheet came to be filed against them in the Court of learned Special Judge.
Thereafter, charge came to be framed and explained to the accused persons, to which the accused persons pleaded not guilty and claimed to be tried.
In order to bring home the charges against the accused persons, prosecution has examined several witnesses and also produced documentary evidence.
Thereafter, after filing closing pursis by the prosecution, further statements of the accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused persons have denied the case of the prosecution and submitted that a false case is filed against them.
At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondents - accused.
Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 9.7.1993 passed by the learned Special Judge & Additional Sessions Judge, Palanpur at Banaskantha, in Special Case No.45 of 1992, the appellant - State has preferred the present appeal before this Court.
Heard Mr.K.P.Raval, learned APP for the appellant - State and Mr.Ajay Thakkar, learned advocate appearing for Mr.Yogesh Lakhani, for the respondents.
Mr.Raval has contended that the judgment and order passed by the learned Judge is contrary to law and evidence on record. He has contended that the learned Judge has not properly appreciated oral as well as documentary evidence adduced by the parties in its proper perspectives.
He has contended that the learned Judge has erred in acquitting the respondents though there are direct and indirect evidence to connect the respondents with the crime in question. The learned Judge has erred in discarding the evidence of the complainant Purshottambhai whose evidence get corroboration from the FIR which was lodged immediately after the incident. The complainant himself has received injury and therefore, his presence at the time of the incident cannot be doubted.
He has contented that the evidence of the complainant is supported by eye witness Davjibhai and Mepaji. Both of them are independent witness and they have no grudge against the respondents. The medical evidence also corroborated the evidence of the prosecution witnesses. Though no identification parade was conducted by the police, the witnesses have identified the accused persons in the Court. The learned Judge has erred in holding that there was unlawful assembly amongst the accused to cause injuries to the complainant.
He has contended that the learned Judge has taken irrelevant facts into consideration while appreciating the evidence of prosecution witnesses and thereby acquitted the respondents. The circumstantial evidence also corroborated to the evidence of eye-witnesses. The learned Judge has given more weightage to the minor omission and contradiction in the evidence of prosecution witnesses though they do not go to the root of prosecution case. Lastly, he has read observations of the learned Judge and contended that observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside.
Heard Mr.Ajay Thakkar, learned advocate appearing for Mr.Yogesh Lakhani, for the respondents. He has read medical evidence and contended that looking to the evidence of the complainant injured he has disclosed in the complaint as well as oral evidence that more than four to five blows of iron rod and stick were given to him. He has referred to head injury of the present complainant and contended that in the medical evidence the doctor has disclosed that only one injury is found on the head of the injured person. He has contended that when the injury is not disclosed as per his oral version then alleged charge framed against the respondents cannot be proved only on the immaterial evidence of the complainant. He has also contended that as per ingredients of Section 143 of the Indian Penal Code common object is required to be proved and established through oral version of the witnesses. He has contended that when the common object is not proved then case of acquittal can be considered by the Appellate authority. He has contended that the learned Judge has rightly acquitted the respondents accused. He has, therefore, prayed to dismiss the appeal.
I have gone through the impugned judgment and order passed by the learned trial Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the accused. I have also considered the submissions advanced by the learned advocates for the respective parties.
So far as main ingredient of common object is concerned, I have minutely perused oral evidence of the complainant and witnesses. They are unable to establish the case that what was common object of the member of assembly and when the common object is not established the question regarding Sections 147, 148 and 149 of the Indian Penal Code cannot come in the way of acquitting respondents. For the offence punishable under Sections 323, 324 and 426 of the Indian Penal Code is concerned, it should be proved with cogent evidence. So far as evidence of the complainant is concerned, sufficient contradictory versions is proved through cross-examination of defence. So far as evidence of the medical expert is concerned, injury is also not proved beyond reasonable doubt. Both the panchas have turned and have been declared hostile. The learned Judge has rightly observed that presence and identification of the respondents - accused is not proved.
In a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
"16. From the aforesaid decisions, it is apparent that 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 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 any of the accused is connected with the commission of the crime he is charged with."
Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
It is settled legal position that in an acquittal Appeal, the Appellate Court is not required to re-write the Judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondents - accused and adopting the said reasons as well as the reasons aforesaid, in my view, the impugned Judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this Appeal requires to be dismissed.
In the result, the Appeal is hereby dismissed. The impugned Judgment and order dated 9.7.1993 passed by the learned Special Judge & Additional Sessions Judge, Palanpur at Banaskantha, in Special Case No.45 of 1992 acquitting the respondents - accused, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.K.SAIYED, J.) kks Top