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2025 DIGILAW 1126 (GUJ)

State of Gujarat v. Devjibhai Ambabhai Tidani

2025-09-23

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 Additional Sessions Judge, Morbi (hereinafter referred to as "the learned Trial Court ") in Special (Atrocity) Case No. 02 of 2009 on 21.01.2012, whereby, the learned Trial Court has acquitted the respondents for the offence punishable under Sections 143, 147, 148, 149, 323 and 504 of Indian Penal Code, 1860 (hereafter referred to as "IPC" for short) and Section Section 3(1)(10) 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 14-10-2008, at around 14:00 Hrs., the complainant was at her home at around 02.00 pm and she came to know that the members of the Gram Panchayat were removing the encroachment that was made by her husband and the cattle of persons belonging to the Bharwad community were left into the field and she and her sons went to the place, which was in village Palasadi, Taluka Wankaner and at that time the accused formed an unlawful assembly and armed themselves with sticks and abused the complainant and assaulted her and the witnesses. The accused also hurled derogatory caste-slurs against them and the complainant filed a complaint at the Wankaner Taluka Police Station under Sections 143, 147, 148, 149, 323 and 504 of the IPC and Section 3 (1)(10) of the Atrocity Act which came to be registered at Wankaner Police Station I-C.R.No.53 of 2008. 2.2 The Investigating Officer recorded the statements of the connected witnesses and seized the necessary documents and after completion of investigation, a charge-sheet came to be filed before the Court of the Judicial Magistrate First Class, Morbi and as the said offences against the accused was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Morbi as per the provisions of Section 209 of the Code of Criminal Procedure and case was registered Special (Atrocities) Case No. 02 of 2009. 2.3 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 police papers were provided to the accused as per the provisions of Section 207 of the Code. A charge at Exh. 7 was framed against the accused and the statements of the accused were recorded at Exhs. 8 to 18, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. 2.4 The prosecution produced five oral and eleven documentary evidences to bring home the charge against the accused and after the learned Additional Public Prosecutor filed the closing pursis at Exh. 41, 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. The accused refused to step into the witness box or examine witnesses on their behalf and state 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. 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 Ms. Chetna Shah for the appellant State, learned advocate Mr. Yatin Soni for the respondent Nos. 1 to 10 and learned advocate Ms. Hence the impugned judgment and order passed by the learned Trial Court deserves to be quashed and set aside. 4. Heard learned APP Ms. Chetna Shah for the appellant State, learned advocate Mr. Yatin Soni for the respondent Nos. 1 to 10 and learned advocate Ms. Bhavana Acharya for the respondent No.11. Perused the impugned judgment and order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Ms. Chetna Shah for the appellant-State and learned advocate Ms. Bhavana Acharya for the respondent No. 11 have jointly 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. That 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. Yatin Soni for the respondent Nos. 1 to 10 - accused submits that the judgments 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. 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 ". (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, reappreciate 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 . 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. The Trial Court has appreciated all the evidence and when the 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 Davuben Laljibhai at Exhibit 21 and the witness is the complainant, who has narrated the facts as stated in the complaint. The witness has stated that she was injured on the left leg and right leg and her son Ashwin was also assaulted on the right leg. They had gone to the Wankaner Government Hospital and the police had recorded her complaint, which is produced at Exhibit 22. In the cross-examination, the witnesses admitted that the place that was encroached was the place of the Check Dam in and the ownership of the Gram Panchayat and it was given as a Cattle Grazzing land to the cattle owners for grazing. They had illegally entered into the land and an application was filed by the cattle owners in the Gram Panchayat and a number of persons had encroached on the Cattle Grazzing land. They had illegally entered into the land and an application was filed by the cattle owners in the Gram Panchayat and a number of persons had encroached on the Cattle Grazzing land. They were given a notice by the Gram Panchayat to remove the encroachments and the procedure for removal of the encroachment was undertaken by the Gram Panchayat. In spite of the notice, they did not remove the encroachment and at the time of removal of the encroachment the Circle Inspector was present with police arrangement. She was unconscious after she was assaulted and she does not know what happened thereafter and besides her sons, there were no other persons present. She had received some amount from the government for filing the complaint and she was admitted in the hospital for eight days as an indoor patient. 9.1 Prosecution Witness No.2 Ashwinbhai Laljibhai examined at Exhibit 24 is the son of the complainant and has supported the case of the prosecution. During the cross-examination by the learned advocate for the accused, the witness has admitted that when he reached the spot his mother was unconscious and he too was taken to the hospital but he was immediately discharged. After the incident has occurred his uncle and others had come. 9.2 Prosecution Witness No.3 Laljibhai Vasrambhai examined at Exhibit 25 is the husband of the complainant and not an eyewitness to the incident. He has stated that when he returned home from the neighboring village, he was informed about the incident. In the cross-examination, the witness has admitted that he is not an eyewitness to the incident and he was illegally tilling the gram panchayat land and was given a notice from the gram panchayat to remove the encroachment. 9.3 Prosecution Witness No.4 Pramodrai Chhabildas Joshi examined at Exhibit 28 is the Medical Officer who was on duty at Community Health Center, Wankaner on 14-10-2008 when Devuben Laljibhai Chamar was brought for treatment. 9.3 Prosecution Witness No.4 Pramodrai Chhabildas Joshi examined at Exhibit 28 is the Medical Officer who was on duty at Community Health Center, Wankaner on 14-10-2008 when Devuben Laljibhai Chamar was brought for treatment. In the history, she had given a history of assaulted injury and on examination she had a bruise on right maxillary region 4 cm x 2 cm, which was oblique and reddish, a bruise on the right thigh one third part 6 cm x 4 cm oblique, reddish posteriorly, a bruise on the left leg one third part lower 6 cm x 2 cm oblique reddish and a bruise on the left leg one third part 6 cm x 2 cm oblique reddish posteriorly. The injuries were simple and could be caused by a hard and blunt substance and would heal within 10 days if no complications occur. The witness has produced the medical certificate of Devuben at Exhibit 29. At the same time, Ashwinbhai Laljibhai Chamar was also brought for treatment and he had given a history of assaulted injury. On examination, there was a bruise 6 cm x 3 cm on the posterior aspect of right knee oblique which was a simple injury and could be caused by a hard and blunt substance. The injury could heal within 7 to 10 days if no complications arose. The witness has produced the medical certificate of Ashwinbhai Laljibhai Chamar at Exhibit 30 and the case papers of Devuben Laljibhai and Ashwinbhai Laljibhai Chamar at Exhibit 29 and Exhibit 31 respectively. During the cross examination by the learned advocate for the accused, the witness has stated that the patients did not take treatment for 8 days from him. 9.4 Prosecution Witness No.5 Somabhai Babarbhai Rawat examined Exhibit 34 is the Investigating Officer, who has narrated the entire procedure undertaken by him during investigation. In the cross examination, he has admitted that the complainant and witnesses had illegally encroached the land and they were given a notice to remove the same and the encroachment was removed in the presence of the police, but no incident of assault had taken place. The witness has produced the panchnama of the place of offence at Exhibit 36 and the arrest panchnama at Exh. 37. 10 . The witness has produced the panchnama of the place of offence at Exhibit 36 and the arrest panchnama at Exh. 37. 10 . On minute appreciation of the entire evidence of the prosecution, the only witnesses that have been examined before the learned Trial Court are the complainant - Prosecution Witness No.1 Devuben Laljjbhai and her son Prosecution Witness No.2 Ashwin Laljibhai Chamar. Prosecution Witness No.3 Laljibhai Vasrambhai is not an eyewitness to the incident and the accused No. 1 is the Sarpanch and accused No. 2 is the Deputy Sarpanch. The evidence that has emerged on record, is that the husband of the complainant - Prosecution Witness No.3 Laljibhai Vasrambhai had encroached on government land and they were given a notice to remove the encroachments, but they did not remove the encroachments. The cattle owners were given that particular land for cattle grazing and they had given an application to remove the encroachment and the encroachment was removed in the presence of the police. The complainant has stated that she had given an application to till the land, but there is no such application on record and moreover the complaint has been filed against 11 accused in all but there are no specific allegations as to who had uttered what words. Admittedly, at the time of the incident, there would be independent witnesses, but no such independent witnesses have been examined before the learned Trial Court . The complainant and Prosecution Witness No.2 Ashwinbhai Laljibhai had taken treatment before the Medical Officer but they had not named any of the accused as the person who had assaulted them before the Trial Court and there is no evidence as to who has inflicted the blows on the complainant or Prosecution Witness No.2 Ashwinbhai Laljibhai. It has also come on record that the encroachment was removed by the accused Nos. 1 and 2 in the presence of police witnesses and there is no evidence on record to prove the case of the prosecution beyond reasonable doubts. 11. In view of the settled position of law, 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. 11. In view of the settled position of law, 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. 12 . The impugned judgment and order of acquittal passed by learned Additional Sessions Judge, Morbi in Special (Atrocity) Case No. 02 of 2009 on 21.01.2012, is hereby confirmed. 13 . Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.