Smt. Vimlabai vs Sheetal And Others

Prem Narayan Singh, J

The present petitioner is preferred under Section 372 of the Coe of Criminal Procedure, 1973 being against the order dated 11.05.2023 passed by the learned Special Judge (Atrocities Act), District Badwani in Special Case (Atrocities) No.44/2021 whereby the respondents Sheetal, Basanti, Chhaya, Pinki, Mayuri, Mahendra @ Kalu and Anita have been acquitted from the charges under Sections 294, 147, 452/149, 323/149, 427/149 & 506 (Part-II) of IPC and Sections 3(1)(r), 3(1)(dha), 3(1)(dh) and Section 3(2)(va) of SC & ST (Atrocities) Act.

Brief facts of the case are that the complainant Vimlabail runs a shop of general store, on 10.08.2021 at about 11:00 am, when she was working in her shop, resident of Niwali, Sheetal, Basanti, Chhaya, Pinki, Mayuri, Mahendra @ kalu and Anita W/o Rameshchandra entered in her shop and started to abuse her, they throw the goods of the shop, which got broken. On being stopped by the complainant, one Chhaya Rathore caught her hair and took out from the shop. At that time, Basanti Rathore assaulted her by chappal, due to which, the complainant received injuries on back, head and face. All the respondents have scuffled with her. Pull her saari, tried to tear her blowse and all accused her by saying that she is balayati, chamarati. All respondents said that why is she demanding number of her daughter-in-law Sheetal and also said that they had only beaten her, later, they will kill her and destory her shop. Thereafter, complainant an FIR bearing Crime No. 02/2021 at Police Station Azak, Badwani.

Learned counsel for the appellant has submitted that in this case there was a CD prepared by son of victim and the same was produced before the trial Court which could not run due to scratches on CD. The CD is having evidence but it was not produced before the learned trial Court, hence, it prayer for taking on record of the CD, should be accepted by this Court as evidence under Section 65(B) of Evidence Act.

Learned counsel for the respondents has submitted that as per para No. 32 of the judgment of the learned trial Couirt, prosecution witness No. 3 Anil was unable to answer the question as to whether on which number, video was viral. She also submitted that the present appeal has been filed on 10.07.2023 and I.A. Nos. 4391/2024 and 4392/2024 have been filed on 12.03.2024 for taking document (CD) on record after a delay of 9 months, hence, such type of evidence cannot be taken on record.

Learned Dy. Govt. Advocate has also supported the contentions of the respondent Nos. 1 & 7.

In view of the rival submissions of learned counsel for parties, matter has been considered.

So far as the applications I.A. Nos. 4391/2024 filed under Section 391 of Cr.P.C. and 4392/2024 filed under Section 65(B) of Evidence Act is concerned, it emerged as admitted fact that this case was finally decided by the learned trial Court on 11.05.2023 and present appeal has been filed on 10.07.2023 and these applications have been filed on 12.03.2024 that means after a delay of 09 months from the date of filing of this appeal. No specific reasons have been assigned by the appellant in this regard in their applications.

In addition to that, in context of this appeal for relevancy of these applications, I have gone through the record. It is found that the said complainant Vimla (PW-1) as well as her son Anil (PW-3) have not graphically corroborated the facts of the said CD in their statements. In this regard, the learned trial Court has also made his observation in para Nos. 32 and 33 of the judgment. Anil (PW-3) himself has conceded in para No. 14 of his statement that he has not prepared the CD of Article A-1. Further, he has stated that CD was prepared by the shopkeeper but he was unable to specify the name of the shopkeeper. He has also stated that when the shopkeeper has prepared the CD, he himself had not seen the material of CD by playing it. In this way, the certificate filed under Section 65B Evidence Act and applications filed by Anil (PW-3), are of no value. Hence, I.A. Nos. 4391/2024 & 4392/2024 are hereby rejected.

Now, coming to the contentions raised in this appeal, I have gone through the whole testimonies of prosecution witnesses namely Vimlabai (PW-1), Govind (PW-2), Anil (PW-3), Sundar (PW-4), Dr. Rakesh Patidar (PW-5), Chetan Borse (PW-6), Pradeep Senani (PW-7), Muradiya (PW-8), Nathusingh Randha (PW-9), the learned trial Court having adopted its quantified and analytical approach concluded that the prosecution is unable to prove its case beyond reasonable doubt. I did not figure out any shortcomings and flow in the whole judgment with regard to acquittal of the respondents.

In view of aforesaid, this Court does not find any error in the impugned judgment of acquittal. It is to note here that in an appeal against acquittal, the Hon'ble Supreme Court in the case of State Vs. K. Narsimhachary reported in (2005) 8 SCC 364 said that as per well settled principle, if two views are possible, the appellate Court should not interfere with the findings of acquittal recorded by the lower Court; it can only be interpreted where the material on record leads to sole inescapable conclusion of the guilt of accused. In the case of T. Subramanian Vs. State of Tamil Nadu, (2006) 1 SCC 401, the Apex Court has reiterated the same principle relying upon said judgment and by interfering in appeal the judgment of the High Court was set aside restoring the judgment of the trial court acquitting the accused. In the case of K. Prakashan vs. P.K. Surenderan, (2008) 1 SCC 258, the Apex Court has observed that in case two views are possible, the appellate Court shall not reverse the judgment of acquittal only because the another view may be possibly taken.

Also, the principal laid down by Hon'ble Supreme Court in another case law of Gopal Singh and others Vs. State of M.P., 2010 6 SCC 407, in same context, is also worth referable as under :-

"It is now well settled that if the trial court's judgment is well based on the evidence and the conclusion drawn in favour of the accused was possible thereof, the High Court would not be justified in interfering on the premise that a different view could also be taken and though the High Court was entitled to reappraise the evidence there should be substantial and compelling reasons for setting aside an acquittal order and making one of conviction."

The Apex Court has further held in the case of Mahavir Singh Vs. State of M.P., (2016) 10 SCC 220 that in the cases of acquittal by the court of law, the court has to be very cautious in interfering in an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The relevant paras 11 and 12 of the said judgment of Mahavir Singh (supra) quoted as under:-

"11. We have heard the learned counsel on either side at length and perused the material available on record. Now it is imperative to look into the scope of interference by the appellate Court in an appeal against acquittal and whether the High Court was justified in convicting the accused under Section 302, IPC by reversing the order of acquittal passed by the Trial Court.

In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent Court after a full-fledged trial, and once the Trial Court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate Court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate Court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate Court while passing an order has to give clear reasoning for such a conclusion."

In upshot of the aforesaid settled legal propositions, this Court does not find any illegality or perversity in the impugned judgment of the acquittal passed by the learned trial Court. There are no compelling and substantial grounds available on record by which the judgment of acquittal can be interfered.

Accordingly, this criminal appeal filed by the appellant warranting no interference and is hereby dismissed.