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2025 DIGILAW 1115 (GUJ)

State of Gujarat v. S. G. Basia

2025-09-19

S.V.PINTO

body2025
JUDGMENT : S.V. PINTO, J. 1. This appeal has been filed by the appellant State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal passed by learned 3 rd Additional Sessions Judge Bharuch Camp at Ankleshwar (hereinafter referred to as "the learned Trial Court") in Special (Atrocity) Case No. 43 of 2010 on 26-03-2012 whereby, the learned Trial Court has acquitted the respondents for the offence punishable under Sections 452, 323, 504, 506(2), 342 and 114 of Indian Penal Code, 1860 (hereafter referred to as "IPC" for short) and Section Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “Atrocities Act”). 1.1 The respondents are hereinafter referred to as the accused in the rank and file as they stood in the original case for the sake of convenience, clarity and brevity. 2 . The brief facts that emerge from the record of the case are as under:- 2.1 On 07-02-2001 at 11.30 pm the accused illegally trespassed into the house of the complainant - Chandrakant Bharmalbhai Bhagat at Achhaliya village, abused him, hurled caste-slurs against him and threatened to falsely implicate him in the murder case of Dinesh Bhimsingh. The accused Nos. 1 and 3 caught hold of the complainant and the accused No. 2 assaulted the complainant with fists threatened to kill him and took him to the Ummalla Police Station. The complainant - Chandrakant Bharmalbhai Bhagat filed a private complaint under Section 200 of the Code of Criminal Procedure, 1973 invoking Sections 452, 323, 504, 506 (2) 114 and 342 of the IPC and Section 3 (1) (10) of the Atrocity Act, 1989 before the Court of the Judicial Magistrate First Class, Jhagadia on 09-02-2001. The complaint was registered as Inquiry Case No. 2 of 2001 and the learned Trial Court was pleased to pass an order Court Inquiry under Section 202 of the Code of Criminal Procedure. After the complainant and his witnesses were examined, the learned Trial Court was pleased to take cognizance for the offenses under Sections 452, 323, 504, 506 (2), 114 and 342 of the IPC and Section 3 (1)(10) Atrocity Act,1989 and issued summons to the accused by an order dated 26-02- 2002. After the complainant and his witnesses were examined, the learned Trial Court was pleased to take cognizance for the offenses under Sections 452, 323, 504, 506 (2), 114 and 342 of the IPC and Section 3 (1)(10) Atrocity Act,1989 and issued summons to the accused by an order dated 26-02- 2002. Thereafter, as the matter was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Bharuch camp at Ankleshwar as per the provisions of Section 209 of the Code of Criminal Procedure and case was registered Special (ATRO) Case No. 43 of 2010. 2.2 The accused were duly served with the summons and the accused appeared before the learned Trial Court, and it was verified whether the copies of all the necessary papers were provided to the accused as per the provisions of Section 207 of the Code. A charge at Exh. 8 was framed against the accused and the statements of the accused were recorded at Exhs. 9 to 11, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. 2.3 The prosecution produced oral and documentary evidences to bring home the charge against the accused and after the learned Additional Public Prosecutor filed the closing pursis at Exh. 23 , the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded, wherein, the accused denied all the evidence of the prosecution on record, but produced the record of Criminal Case No. 1242 of 2001 on record. The accused refused to step into the witness box or examine witnesses on their behalf and stated that a false case has been filed against them. After the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the learned trial Court by the impugned judgment and order was pleased to acquit all the accused from all the charges leveled against them. 3 . After the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the learned trial Court by the impugned judgment and order was pleased to acquit all the accused from all the charges leveled against them. 3 . Being aggrieved and dissatisfied with the said judgment and order of acquittal, the appellant - State has filed the present appeal mainly stating that the impugned judgment and order of acquittal passed by the learned Trial Court is contrary to law and evidence on record and the learned Trial Court has not appreciated the fact that all the witnesses have supported the case of the prosecution and during cross-examination, nothing adverse has been elicited in favour of the respondents. The case has been proved beyond reasonable doubts and the prosecution has successfully established the case against the respondents and the judgment and order of acquittal is unwarranted, illegal and without any basis in the eyes of law and the reasons stated while acquitting the respondents are improper, perverse and bad in law. Hence the impugned judgment and order passed by the learned Trial Court deserves to be quashed and set aside. 4. Heard learned APP Mr. Aditya Jadeja for the appellant State and learned advocate Mr. M.M.Pathan for learned advocate Mr. Vicky B. Mehta for the respondent Nos. 1 to 3. Though served, the respondent No. 5 - original complainant has not appeared either in person of through an advocate. Perused the impugned judgement and order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Mr. Aditya Jadeja for the appellant-State has taken this Court through the entire evidence of the prosecution on record of the case and submitted that the judgment and order of acquittal is contrary to law and evidence on record and the learned trial Court has not appreciated the direct and indirect evidence in the case. The complainant has supported the case of the prosecution and the witnesses have identified the accused before the learned trial Court. The prosecution has fully proved the case beyond reasonable doubts but the learned trial Court has relied on minor contradictions and has given undue weightage with regard to the place of incident. The complainant has supported the case of the prosecution and the witnesses have identified the accused before the learned trial Court. The prosecution has fully proved the case beyond reasonable doubts but the learned trial Court has relied on minor contradictions and has given undue weightage with regard to the place of incident. That the order passed by the learned trial Court is illegal, improper and perverse and is required to be quashed and set aside and the appeal of the appellant must be allowed. 6. Learned advocate learned advocate Mr. M.M.Pathan for the respondent Nos. 1 to 3 submits that the judgment and order has been passed after appreciation of all the evidence and the learned Court has appreciated the evidence in proper perspective and hence, the appeal of the appellant-State must be rejected. 7. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415, wherein, the Apex Court has observed as under:- Recently, in Kallu v. State of M.P. , (2006) 10 SCC 313 : AIR 2006 SC 831 , this Court stated; "While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied) From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 8. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is a presumption of innocence in favour of the accused and it has finally culminated when a case ends in an acquittal. 8. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is a presumption of innocence in favour of the accused and it has finally culminated when a case ends in an acquittal. The learned Trial Court has appreciated all the evidence and when the learned Trial Court has come to a conclusion that the prosecution has not proved the case beyond reasonable doubts, the presumption of innocence in favour of the accused gets strengthened. There is no inhibition to re appreciate the evidence by the Appellate Court but if after re appreciation, the view taken by the learned Trial Court was a possible view, there is no reason for the Appellate Court to interfere in the same.. 9. In light on the above settled principles of law and considering the evidence on the prosecution, to bring home the charge against the accused, the prosecution has examined Prosecution Witness No. 1 - Chandrakant Bharmalbhai Bhagat at Exhibit 12 and he has supported the contents of his complaint, which is produced at Exhibit 13. During the cross-examination by the learned advocate for the accused, the witness has stated that on the day of the incident, he was taken to the Ummalla Police Station and a case under the Prohibition Act was filed by the accused No. 2 against him. He was taken to the hospital for examination and the sample of his blood was taken and he was examined by the Medical Officer at the hospital. He was arrested in a case under the Prohibition Act and his brother-in-law Rameshbhai Sukabhai had come to release him on bail. He had engaged an advocate and the advocate had argued in his bail application and he was released on bail. Thereafter, he had pleaded guilty to the case filed under the Prohibition Act and he was sentenced by the court and fined. After he was released on bail in the Prohibition case, he had filed this complaint on 09-02-2001 and his advocate had typed the complaint and given it to him. Thereafter, he had pleaded guilty to the case filed under the Prohibition Act and he was sentenced by the court and fined. After he was released on bail in the Prohibition case, he had filed this complaint on 09-02-2001 and his advocate had typed the complaint and given it to him. He was an accused in the murder case of Dineshbhai and his wife had intervened but no other person had come to intervene at the time of the incident 9.1 Prosecution Witness No. 2 - Arunaben Chandrakantbhai Bhagat examined at Exhibit 14 as the wife of the complainant and she has supported the case of the prosecution., During the cross examination by the learned advocate for the accused, she has stated that her husband was taken by the police and at the time of the incident, they were residing in a quarter and there were other quarters around. The bus stand of Achhaliya village is at a distance of about 50 feet away and her husband had opened the door and they had searched his house. After she had opened the back door and shouted, Amritbhai and Dhanjibhai woke up and they came to her house and during this time, the accused were trying to take her husband to the Police Station but he was refusing to go with them and they were struggling and pulling each other. The accused had taken her husband to the gypsy vehicle and her husband was arrested in a case under the Prohibition Act and has admitted that she had seen the accused for the first time on the day of the incident. 9.2 Prosecution Witness No. 3 - Dhanjibhai Meriabhai Vasava examined at Exhibit 16 is a neighbour of the complainant and he too has supported the contents of the complaint. During the cross examination, the witness has admitted that the complainant is of his community and is working with him and when he went to the house of the complainant, he found that the police were trying to arrest the complainant in some case but the complainant was refusing to go and there was a struggle between them. He had informed the police that the complainant has not committed any offence and after he had gone, reached the house of the complainant, his wife Ramilaben and thereafter Amritbhai and his wife and thereafter watchman Dahyabhai had come. He had informed the police that the complainant has not committed any offence and after he had gone, reached the house of the complainant, his wife Ramilaben and thereafter Amritbhai and his wife and thereafter watchman Dahyabhai had come. He did not know the accused at the time of the incident. 9.3 Prosecution Witness No. 4 - Ramilaben Dhanjibhai Vasava is a neighbour of the complainant, who has also supported the contents of the complaint. During the cross examination by the learned advocate for the accused, she has admitted that she did not know any of the accused at the time of the incident and she had never seen them earlier. After her husband had returned from attending a wedding on the day of the incident, they had gone to bed and were asleep when the wife of the complainant shouted and she woke her husband and they came to find out what had happened. The police were trying to arrest the complainant but he was refusing to go with them to the Police Station. 9.4 Prosecution Witness No. 5 - Amritbhai Dayabhai Patel examined at Exhibit 16 is also a neighbour of the complainant, who has supported the case of the complainant. During the cross examination by the learned advocate for the accused, he has stated that in the court inquiry, he has not stated that the accused had hurled any caste-slurs against the complainant and when he reached the place of incident, Dhanjibhai and his wife Ramilaben were already present. Watchman Dahyabhai had come thereafter and when he reached the place of offence, a struggle was going on between the police and the complainant and the police wanted to take the complainant with them but the complainant was refusing to go with them to the Police Station. He had seen the accused taking the complainant towards the jeep. 9.5 Prosecution Witness No. 6 - Ramilaben Amritbhai examined at Exh.19 is a neighbour of the complainant, who has supported the case of the complainant. During the cross examination by the learned advocate for the accused, she has stated that she did not know any of the accused and she had never seen them and when she reached the place of incident, her husband – Dhanjibhai and his wife and others were present. During the cross examination by the learned advocate for the accused, she has stated that she did not know any of the accused and she had never seen them and when she reached the place of incident, her husband – Dhanjibhai and his wife and others were present. Watchman Dahyabhai had come thereafter and when she reached the place of incident, the police were taking the complainant to the jeep but the complainant was refusing to go with them and there was a verbal altercation going on. The police had forcibly taken the complainant to the jeep. 10. After the evidence of the prosecution was closed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein, the accused have denied the entire evidence and have stated that on 07-02-2001, they were patrolling as it was a combing night and they found the complainant Chandrakant Bharmalbhai Bhagat intoxicated and hurling abuses. They called two panch witnesses and inquired his name and a panchnama between 23:00 Hrs. and 23:30 Hrs. was drawn. His house was nearby and his wife Arunaben Vasava was present and she was informed about the procedure under Section 120 of the Prohibition Act, a search of the house was undertaken but no intoxicants were found. They had arrested the person and were trying to take him to the Ummalla Police Station but he was refusing to go with them and hence he was forcibly taken to the Police Station and thereafter was sent for medical examination and a case under the Prohibition Act was filed against him. After the investigation, the charge-sheet was filed before the Court of the Judicial Magistrate First Class, Jaghadia, which came to be registered as Criminal Case No.1242 of 2001 and after the said Chandrakant Bharmalbhai Bhagat – the complainant of this case was summoned in that case by the Trial Court, he had pleaded guilty and was convicted by the Judicial Magistrate First Class Jhagadia. When he was produced before the Judicial Magistrate First Class, Jhagadia, he did not file any complaint about any ill treatment but filed the false private case two days after he was released. When he was produced before the Judicial Magistrate First Class, Jhagadia, he did not file any complaint about any ill treatment but filed the false private case two days after he was released. The accused have produced the copy of the plea of Chandrakant Bharmalbhai Vasava recorded in Summary Case No. 1242 of 2001 at Exh.25 where he has pleaded guilty and he was sentenced to till rising of the Court and fine of Rs. 20/- for the offence under Section 66(1)(b) and in default, simple imprisonment for five days and till rising of the Court and fine of Rs.25/- and in default, simple imprisonment for five days for the offence under Section 85(1)(3) of the Prohibition Act. The accused have also produced the panchnama that was drawn in Criminal Case No. 1242 of 2001 at Exhibit 30. 11. On minute appreciation of the entire evidence of the prosecution on record, it has emerged that on 07-02-2001, the complainant was intoxicated and was making a public nuisance and the accused had arrested him and filed a case under Section 66(1)(b) and 85 (1)(3) Prohibition Act. The complainant in that case was the accused No. 2 and the complainant was arrested , sent for medical examination and produced before the learned Judicial Magistrate First Class, Jhagadia and at the time of his production before the learned Magistrate, he did not make any complaint of ill treatment and was released on bail. After the investigation was concluded, a charge sheet was filed before the court of the Judicial Magistrate First Class, Jhagadia, which came to be registered as Criminal Case No. 1242 of 2001. The complainant has admitted that, at the time of his arrest, he was taken for medical examination to the medical officer who had examined him and thereafter, he had appeared before the Trial Court for the prohibition case and had pleaded guilty to the offence and the plea and judgement in that case has been produced at Exhibit 25. The witnesses examined on behalf of the complainant are all neighbours and of the same caste of the complainant and they have all stated that at the time of the incident, the police had arrested the complainant and he was refusing to go with them in the vehicle and none of the witnesses have stated that the accused had assaulted the complainant. It is also on record that the complainant was arrested in the case under the Prohibition Act and he was produced before the Judicial Magistrate First Class but there was no complaint of ill-treatment made before the learned Judicial Magistrate First Class Jhagadia. It has also emerged on record that none of the witnesses had earlier seen any of the accused and the complaint has been filed by the complainant two days after his release on bail in the Prohibition Act. There is no evidence that the accused were present as none of the witnesses have identified that it was the accused who were present to arrest the complainant at the time of the offence. 12. In view of the settled position of law in Chandrappa (Supra), the learned trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. 13. The impugned judgment and order of acquittal passed by learned 3 rd Additional Sessions Judge, Bharuch Camp at Ankleshwar in Special (Atrocity) Case No. 43 of 2010 on 26-03-2012 , is hereby confirmed. 14. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.