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TMI Blog2022 (3) TMI 1548X X X X Extracts X X X X X X X X Extracts X X X X ..... the presumption of his innocence is further reaffirmed and strengthened by the trial Court. On re-appreciation of evidence, it is clear that the there was quarrel of the minor son with Dhanji and at the time of quarrel no witness was present as per the case of the complainant, when the complainant' wife Sonalben had gone to scold, the accused insulted against her caste. However, the wife of the complainant has not lodged any complaint. The complaint is filed on the next day. There is no reasonable explanation for lodging the complaint belatedly. The delay is not explained in the complaint or in the evidence, prima facie it appears that the complaint itself is suspicious. Further though the incident had happened in the public state, other independent witness is not examined. In absence of corroboration to the witnesses, the complainant's complaint is doubtful. The prosecution has failed to prove the case beyond reasonable doubt and trial court has not committed any error or illegality in acquitting the accused. The Criminal Appeal being devoid of merits is dismissed. - Hon'ble Judges Rajendra M. Sareen, J. For the Appellant : R.C. Kodekar, APP For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to commit the Case to the Court of Sessions and the case was transferred and placed for trial before the Additional Sessions Judge, FTC-3, Deesa, which has been numbered as Special (Atro.) Case No. 45 of 2007. Thereafter, charge was framed against him for the offence punishable Under Sections 504, 506(2), 114 of the Indian Penal Code and Sections 3(1)(10) of the Atrocity Act, 1989. The accused person pleaded not guilty to the charges and claimed to be tried. The prosecution therefore laid evidence. The Prosecution has examined 7 witnesses as well as produced 6 documentary evidences on the record of the case. At the conclusion of the trial, Additional Sessions Judge, FTC-3, Deesa, Palanpur was pleased to acquit all the accused persons - respondents from the charges of offences against him punishable under Sections 504, 506(2), 114 of the Indian Penal Code and Sections 3(1) (10) of the Atrocity Act, 1989. Hence this appeal. 3. Heard the learned advocates for the respective parties and perused the impugned judgment and order of acquittal. Re-appreciated the entire evidence on record. Since the respondent No. 3 died during the pendency of the proceedings, present appeal stands abate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard incident occurred, the accused persons driven out the boy Dhanji and it is also possible that on the next day false complaint is filed. 5.2. The complainant Ishvarvbhai Nagaji is examined at Ex.14, from the evidence of the complainant it is clear that the complainant was not present at the time of incident. The incident took place before 5 months and at that time the complainant was not at home and he had come to house afternoon and then his wife has told the story that his son had gone to take kite in the adjoining field and the quarrel had happened and when the wife of the complainant had gone for scolding the accused, they used filthy language and used the words against his caste. However, at that time complainant was not present and the complainant filed the complaint listening the story from his wife. The wife of the complainant has not given the complaint after the incident and therefore, the complaint itself is suspicious. It can be believed that even in the complaint the words Sale Kandao have been added subsequently because it clearly transpires that after writing the complaint, the words sala kandao have been added subsequently and therefore, the complaint is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot is also doubtful. If evidence of this witness is believed, evidence of other witness are required to be discarded. Her evidence as an eye witness is not trustworthy. In cross examination she has stated that at the time of incident she was nearby and accused said that mat bolo. She also stated that it is not true that when son had come to the house, she was at home her son had informed about the incident. She has stated that wife of her son had informed about the incident. Thus, from the statement before the police her evidence is doubtful she cannot be said to be eye witness. It appears that as she is mother of the complainant, she has tried to support the case of the complainant, however, her evidence in any manner cannot be considered as eye witness. 5.5. Dhanjibhai Ishvarbhai is examined at Ex.18 who is minor son of the complainant aged 6 years. Evidence of this witness was recorded in questionnaires on oath. He stated that he was flying kite, and kite had gone to the field of the accused and accused Thano run behind him and so he came to house crying and he informed about the incident to his mother. They in their evidence has disclosed the name of other witness and accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:- 6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632: 8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed by this Court in the case of Shivaji Sahebrao, 1973) 2 SCC 793, as is clear from the following observations : Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations. 9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court. 8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under: 36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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