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2025 DIGILAW 145 (GUJ)

State of Gujarat v. Vaghela Mansanghji Muluji

2025-02-20

S.V.PINTO

body2025
JUDGMENT : 1. The present present appeal is filed by the appellant State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed by the learned Special Judge (Atrocity), Mehsana (hereinafter referred to as “the learned Trial Court”) in Special Atrocity Case No. 17/2007 on 05.10.2007, whereby, the learned Trial Court has acquitted the respondent for the offence punishable under Sections 323 , 504 and 506(2) of IPC and Sections 3(1)(10) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Atrocities Act”). 1.1 The respondent is hereinafter referred to as “the accused” as he stood in the original case for the sake of convenience, clarity and brevity. 1.2 The respondent no. 2 – original complainant has expired during the pendency of the appeal on 15.09.2012 and the death certificate of the respondent no. 2 has been produced on record. 2. The brief facts that emerge from the record of the case are as under: 2.1 On 22.11.2006, at around 08.30 pm, the complainant Jiviben w/o Somabhai Maganbhai Senma was alone at home as her husband and sons had gone outside and both her daughters-in-law had gone to the hospital. Her sister-in- law was at home and she was sitting outside when the accused came to her house and asked about her son – Babubhai and she told him that her son had gone to Kadi. That the accused told her to send her son to meet him whenever he returns and if he does not come, he would be killed and showed a knife to the complainant and hurled caste slurs on the complainant and threatened to kill her and went away. That her nephew Kishorbhai came and she narrated the events to him and he went to meet the accused at his hotel and at that time, the accused abused him, threatened to kill him and slapped him and he came home and told her what had taken place. That after some time, the accused was roaming in front of their street with a farsi in his hand and as her son Babubhai had a contract of digging work near Vidaj village and the contract was not given to the complainant, he had a grudge and the incident has occurred. That after some time, the accused was roaming in front of their street with a farsi in his hand and as her son Babubhai had a contract of digging work near Vidaj village and the contract was not given to the complainant, he had a grudge and the incident has occurred. The complainant filed the complaint at Kadi Police Station which was registered at II – C.R. No. 163/2006 under Sections 323 and 506(2) of IPC and Section 3(1)(10) of the Atrocities Act and Section 135 of the Bombay Police Act. 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 learned Judicial Magistrate First Class, Kadi and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Mehsana as per the provisions of Section 209 of Code of Criminal Procedure and the case was registered as Special Atrocity Case No. 17/2007. 2.3 The accused was 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 and a charge at Exh. 2 was framed against the accused and the statement of the accused was recorded at Exh. 3, wherein, the accused denied the contents of the charge and the entire evidence of the prosecution was taken on record. 2.4 The prosecution produced the following evidence to bring home the charge against the accused. ORAL EVIDENCE S. No. PW Name of the witness Exh. 1 1 Dr. Patel Bakulbhai Prabhudas 5 2 2 Jiviben Somabhai Jadav 10 3 3 Ishwarbhai Bhalabhai Senma 13 4 4 Kanuji Gopalji Vaghela 14 5 5 Kaushikkumar Fulshankar Joshi 15 6 6 Navalsinh Babusinh Rathod 16 7 7 Shirish Chhotalal Patel 18 8 8 Kamleshbhai Dineshbhai Vidja 20 9 9 Mayanksinh Ajitsinh Chavda 22 DOCUMENTARY EVIDENCE S. No. Particulars Exh. 1 Medical Certificate 6 2 Medical Certificate 7 3 Complaint 11 4 Caste Certificate 12 5 Depute Order 17 6 Message 19 7 Panchnama 21 8 Panchnama 23 9 Publication 24 10 Caste Certificate 25 3. 1 Medical Certificate 6 2 Medical Certificate 7 3 Complaint 11 4 Caste Certificate 12 5 Depute Order 17 6 Message 19 7 Panchnama 21 8 Panchnama 23 9 Publication 24 10 Caste Certificate 25 3. After the learned APP filed the closing pursis at Exh.26, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, the accused denied all the evidence of the prosecution on record. The accused denied to step into the witness box or examine witnesses on their behalf and stated that a false case has been filed against him. After the arguments of the learned APP and the learned advocate for the accused were heard, the learned Trial Court by the impugned judgement and order was pleased to acquit the accused from the charges levelled against them. 4. Being aggrieved and dissatisfied with the judgement and order of acquittal, the appellant State has filed the present appeal mainly stating that the learned Trial Court has not considered the oral evidences of 9 witnesses and the 10 documentary evidences in proper perspective and has erred in holding that the prosecution has failed to prove the case beyond reasonable doubts. The prosecution has successfully established the case against the respondents and the judgement 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 and hence, the impugned judgement and order must be quashed and set aside. 5. Heard learned APP Mr. Bhargav Pandya for the appellant State and learned advocate Mr. O.I. Pathan for the respondents. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case. 6. Learned APP Mr. Bhargav Pandya has taken this Court through the entire evidence of the prosecution on record of the case and has submitted that the prosecution has proved the case beyond reasonable doubts and the complainant has fully supported the case of the prosecution. The nephew of the complainant has also supported the case of the prosecution but the learned Trial Court has not appreciated the same properly. The nephew of the complainant has also supported the case of the prosecution but the learned Trial Court has not appreciated the same properly. As the prosecution has proved the case beyond reasonable doubts, learned APP has urged this Court to allow the appeal as the impugned judgement and order is improper, perverse and bad in law and to quash and set aside the same and find the respondents guilty for the offences. 7. Learned advocate Mr. O.I. Pathan for the respondents has submitted that the learned Trial Court has appreciated all the evidences and has passed the impugned judgement and order of acquittal which is just and proper and no interference is required in the same. Learned advocate for the respondents has urged this Court to reject the appeal of the appellants. 8. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court regarding the scope of interference in acquittal appeals in the case of Chandrappa & Ors. Vs. State of Karnataka, 2007 (4) SCC 415 , wherein, the Apex Court has observed as under: Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313 , 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". 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. (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. 9. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is presumption of innocence in favour of the accused and it has finally culminated when a case ends in an acquittal. 9. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is 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 reappreciate 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. 10. In light of the above settled principle of law, the evidence of the prosecution is dissected and the prosecution has examined PW1 – Dr. Bakulbhai Prabhubhai Patel at Exh. 5. The witness is the Medical Officer who has produced the medical certificate of the complainant at Exh. 6 and the medical certificate of witness – Kishorbhai Bhalabhai Senma at Exh. 7. The witness has stated that while he was on duty at CHC Kadi, the complainant – Jiviben Somabhai Senma and Kishorebhai Bhalabhai Senma had come for treatment on 25.11.2006 at 12.50 pm. Jiviben Somabhai Senma has given the history herself and had stated that on 23.11.2006 at night, Mansangji Maluji Vaghela had kicked her with his shoes on her leg and the incident had taken place between 07.00 to 08.00 in the evening. On examination, an abrasion was present at front side of left leg nearly 5 cms above ankle joint – two in number, one was 2 cms x 0.3 cms and other was 1 cm x 0.4 cms. The skin of the abrasion was brown in colour and Kishorebhai Bhalabhai Senma had given the history himself stating that Mansangji Maluji Vaghela had slapped him on 23.11.2006. On examination, there were no bruises or abrasion on his body and during the cross- examination, the witness has stated that the injuries could be self inflicted as there was no evidence of any injury of Jiviben. 10.1 The prosecution has examined PW2 – Jiviben Somabhai Jadav at Exh. 10 and the witness is the complainant who has narrated the facts as stated in the complaint. 10.1 The prosecution has examined PW2 – Jiviben Somabhai Jadav at Exh. 10 and the witness is the complainant who has narrated the facts as stated in the complaint. During the cross-examination by the learned advocate for the accused, the witness has stated that she does not know when her son had started the gutter work of Vidaj village and she had never seen the accused prior to the incident and she did not know him. That she did not ask the name of the accused when he had come to her house and the accused came and asked her where her son Babu was. That when she shouted, no one came and her daughter-in-law was at home at that time. That Kishore came after half an hour and her son Babu came the next morning while she was brushing her teeth. That she was to file the complaint only after her son had agreed to file the complaint and thereafter, they went to Police Station and while she was giving the complaint, her son Babu was present. That in the complaint, she has not stated that the accused had shown her a knife and hurled caste slurs at her and she had also not stated that the accused had abused her and hit her. The caste certificate of the complainant is produced at Exh. 12. 10.2 The prosecution has examined PW3 – Ishwarbhai Bhalabhai Senma at Exh. 13 and the witness is the nephew of the complainant who has stated that after he came home, he asked the complainant why she was sad and she told him that Mansangji Mulji of the village had come and abused her and threatened to kill her and thereafter, he went to the hotel of the accused and at that time, the accused told him that he did not have any work with him but to send his brother and slapped him twice on the cheek. That he returned home and the police has recorded the statement. During the cross-examination by the learned advocate for the accused, the witness has stated that he does not know why the accused has come to his house and on the day of the incident, he did not think of filing the complaint. That he returned home and the police has recorded the statement. During the cross-examination by the learned advocate for the accused, the witness has stated that he does not know why the accused has come to his house and on the day of the incident, he did not think of filing the complaint. That when he went to the hotel of the accused, there were no customers and on the way back from the hotel, he did not tell any person about the incident. That in the statement before the police, he had not stated that he saw his aunt sitting sad and asked her and she narrated the incident and told him that the accused had come. That he had not told the doctor that he was slapped twice on his cheek. 10.3 The prosecution has examined PW4 – Kanuji Gopalji Vaghela at Exh. 14 and the witness is panch witness of the panchnama of the place of offence produced at Exh. 21. The witness has not supported the case of the prosecution and has been declared hostile. 10.4 The prosecution has examined PW5 – Kaushikkumar Fulshankar Joshi at Exh. 15 and the witness is the panch witness of the arrest panchnama of the accused but the witness has not supported the case of the prosecution and has been declared hostile. 10.5 The prosecution has examined PW6 – Navalsinh Balusinh Rathod at Exh. 16 is the PSO, Kadi Police Station who has registered the complaint of the complainant. 10.6 The prosecution has examined PW7 – Shirishbhai Chhotalal Patel at Exh. 18 who is the Police Sub Inspector, Kadi Police Station who had recorded the complaint of the complainant produced at Exh. 11. During the cross-examination by the learned advocate for the accused, the witness has stated that when the complainant came to give the complaint, there were two to three persons with her but he does not know who they were and he did not asked their names. That he did not give any yadi to the complainant for taking treatment and he did not inquire whether the complainant wanted to go for treatment or not. 10.7 The prosecution has examined PW8 – Kamleshbhai Dinesbhai Virja at Exh. 20 and the witness is the panch witness of the panchnama of the place of offence which is produced at Exh. 21. 10.7 The prosecution has examined PW8 – Kamleshbhai Dinesbhai Virja at Exh. 20 and the witness is the panch witness of the panchnama of the place of offence which is produced at Exh. 21. The witness has supported the case of the prosecution and the place was offence was in front of the house of the complainant. 10.8 The prosecution has examined PW9 – Mayanksinh Ajitsinh Chavda at Exh. 22 and the witness is the Investigating Officer who has narrated in detail the procedure that was undertaken by during investigation. During the cross-examination by the learned advocate for the accused, the witness has stated that he had recorded the statement of Baubhai and it was his opinion that the incident had occurred because of Babubhai. That at the time of the incident, the accused was an elected member from Kadi Taluka and the work that was being done by Babubhai was from the Taluka Panchayat Grant. That he did not visit the place where the work was going on. 11. On minute dissection of the entire evidence of the prosecution, the incident as per the complainant has occurred on 22.11.2006 at 08.00 pm and the complainant has filed the complaint on 23.11.2006. There is no reason given for delay in filing the complaint and the complainant has stated that she was sitting alone in front of the house when the accused came to inquire about her son and she did not know who the accused was and she did not ask him his name. As per the complainant, after about half an hour, her nephew Kishorbhai came and she told him that the accused had come but she has not revealed as to how she came to know that it was the accused who had come to inquire about her son Babu. That immediately, her nephew Kishorbhai went to the hotel of the accused but there is no clarity as to how he had identified that it was the accused who had come to inquire about Babubhai. The complaint has been filed against the accused by name and there is no Test Identification Parade on record to prove as to how the complainant has identified the accused. Moreover, the incident has occurred in front of the house, when it is the case of the complainant that there was no one around. The complaint has been filed against the accused by name and there is no Test Identification Parade on record to prove as to how the complainant has identified the accused. Moreover, the incident has occurred in front of the house, when it is the case of the complainant that there was no one around. Hence, except for the bald allegation of the complainant that the accused had hurled caste slurs, there is no independent witness to corroborate the say of the complainant. The complainant had stated that her daughter-in-law was at home but even though she shouted, no one came and hence, there is no evidence to support the say of the complainant. The complainant and witness Kishorbhai have gone to CHC Kadi on 25.11.2006, three days after the incident when they have named the accused as the person who had assaulted them but there were no injury marks found on the complainant as well as the witness. If the complaint produced at Exh. 11 is perused, the complainant does not say that the accused had assaulted her by kicking her but before the Medical Officer, she has stated that the accused kicked her with his shoes twice. Hence, there were major contradictions in the evidence of the complainant and the same is not independently corroborated by any evidence. 12. In view of the settled position of law in the decisions of 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. 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 judgement and order of acquittal passed by the learned Special Judge (Atrocity), Mehsana in Special Atrocity Case No. 17/2007 on 05.10.2007, is hereby confirmed. 14. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.