AI Structured Summary
Not yet generated for this judgment
Judgment
Sr. No.,Particulars,Exh. No.
1,Complaint,08
2,Panchnama of the crime scene,10
3,Panchama of the seizure of clothes of the injured,11
4,Medical certificate of the injured Tapankumar from Shardha Hospital,13
5,"Medical certificate of the accused from Civil Hospital, Ahmedabad",22
6,Panchnama of the weapon used in the crime,25
7,Catalogue,26
8,Telephone Wardhi (Information),27
9,Report of the spot examination by D.F.S.,28
10,Note of Mudammal receipt,29
11,Acknowledgment receipt regarding acceptance of Mudammal,30
12,Closing Pursis,
version by supporting the FIR at Exh. 8 but eventually he was declared hostile by the trial Court and during his deposition he admitted that settlement,,
was arrived between the accused and the complainant. The learned Trial Court has also examined the witness Mr. Jigneshbhai Narayanbhai Bhavsar,,
at Exh. 16 who also turned hostile. The learned trial Court has considered the evidence of Dr. Rajatbhai Keshavlal Engineer at Exh. 12 and Dr.,,
Nitinbhai Mulchandbhai Parmar at Exh. 21, both have supported the version that they had treated Tapan who is the son of the complainant and they",,
have also produced the medical certificate / certificate of treatment vide Exh. 13 and 22. The prosecution has also examined the Investigating Officer,,
Mr. Mulrajsinh Ranjitsinh Vaghela at Exh. 24 and he has narrated the process of investigation done by him in pursuant to the complaint filed by the,,
complainant. The trial Court has rightly found that when the prosecution has failed to establish the case from the independent witnesses more,,
particularly from the complainant, the evidence which is recorded of the Medical Officers as well as Investigating Officer is not sufficient to convict",,
the accused also when the settlement is arrived between the parties and the fact that other witnesses turned hostile it is difficult to convict the accused,,
on the material available on the record of the matter during the trial.,,
Before the evidence is scrutinized it is necessary for the prosecution to prove intention and knowledge of the accused person and should not rely,,
merely on nature of injury. It is not necessary that injury which is capable of causing death should have been occurred by blow of weapon inflicted by,,
the accused. What is material to attract the offence under section 307 of IPC is the guilty intention and knowledge with which all the acts are done,,
irrespective of its results. In order to attract the offence under section 307 of the IPC we have minutely examined the oral evidence of all the,,
prosecution witnesses and we have found that all the witnesses deposed before the Court are not supporting the case of the prosecution under section,,
307 and 323 of IPC and they are not disclosing the intention or knowledge of the accused at the time of the offence so as to constitute that there is,,
anything on the part of the respondent to commit the act or attempt to commit murder.,,
Ms. Chetna Shah, learned APP had submitted that the son of the complainant had received injury on the head but he was not examined by the",,
prosecution. It is relevant to note that the complainant who is father of the injured has been examined but he has been declared hostile during the trial,,
as settlement is arrived between the parties as per the pursis filed at Exh. 9. Therefore, the intention and knowledge are the matters of inference from",,
the totality of the circumstances and cannot be measured merely from the results. In fact the doctor who treated the injured person opined that the,,
injured person Tapan received injury which are normal injuries and he was conscious when he came for the treatment. So if we look into the nature of,,
injury as assessed by the doctor it becomes evident that the injured Tapan had received simple injury. Hence, the doctors are only giving the version",,
about the treatment they have given to Tapan as recorded hereinabove the prosecution is duty bound to establish intention and knowledge on the part,,
of the respondent accused which in the present case after considering the record of the matter we found it is not proved and based on such evidence,,
learned Trial Judge has rightly recorded the finding of acquittal as prosecution has failed to establish essential ingredients of section 307 and 323 of the,,
IPC for which the respondent accused was charged and tried. Thus, on our own analysis and re-appreciation of the evidence we do not find any",,
infirmity or compelling reasons to interfere with the order of acquittal recorded by the learned trial Court.,,
It is a cardinal principal of criminal jurisprudence that in an acquittal appeal if other view is possible, then also the appellate Court cannot substitute",,
its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably",,
wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the",,
learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on",,
record, palpably wrong, manifestly erroneous or demonstrably unsustainable.",,
In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:",,
 “The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under,,
Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is",,
desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility,,
of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the",,
slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled,,
law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the",,
same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal.""",,
As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in,,
the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment",,
of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's",,
interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court",,
should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.",,
In the very recent judgment reported in 2021 (15) SCALE Pg. 184 in the case of Mohan @ Srinivas @ Seena @ Tailor Seena V/s. State of,,
Karnataka, the hon’ble Apex Court has observed the scope of section 378 of the Code as under:-",,
“Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that,,
can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, presumption of",,
innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as",,
there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which",,
is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of",,
not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial Court is both possible and plausible",,
view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty",,
along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a,,
certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while",,
dealing with a case of an acquittal.,,
Every case has its own journey towards the truth and it is the Court’s role undertake. Truth has to be found on the basis of evidence available,,
before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An,,
Appellate Court shall not expect the trial Court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if,,
a trial Court decides a case on its own merits despite its sensitivity.,,
At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the",,
Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to",,
be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one",,
rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it,",,
should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.â€,,
Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of,,
appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.",,
In view of the above and for the reasons stated above, present application for leave to appeal being Criminal Misc. Application No. 19895 of 2021",,
fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, Criminal Appeal",,
No.1650 of 2021 also deserves to be dismissed and is accordingly dismissed.,,