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2025 DIGILAW 212 (GUJ)

State of Gujarat v. Kishorbhai Khodabhai Bhatti

2025-03-05

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 judgement and order of acquittal passed by the learned Additional Sessions Judge, Gondal (hereinafter referred to as "the learned Trial Court") in Sessions Case No. 93 of 2008 on 09-01-2009, whereby, the learned Trial Court has acquitted the respondents for the offence punishable under Section 3(1)(10) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 188 (hereafter referred to as "Atrocities Act" for short). 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 27th May, 2008 at around 09:30 pm, the complainant Rajeshbhai Govindbhai Makwana (Vankar) went into Chandan Hair Art for a hair cut and at that time, the accused No. 1 abused him with casteslurs and refused to give him a hair cut and asked him to leave the shop. Mansukhbhai Badhabhai Dafda, Mohanbhai Chanabhai Makwana and Bhalabhai Muljibhai Sarvaiya were also with him and Khodabhai Patel and another one Patel person of the village were sitting the shop. The complainant left Chandan Hair Art and went to the next shop where the accused No. 2 refused to cut their hair and abused them with caste-slurs. That both the accused refused to give the complainant and others with him a hair cut as they belonged to the scheduled caste and the complaint was filed by the complainant at Gondal Taluka Polic Station under Section 3(1)(10) of the Atrocities Act and which was registered as IIC.R.No. 3094 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 chargesheet came to be filed before the Court of Judicial Magistrate First Class, Gondal and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Rajkot as per the provisions of Section 209 of the Code of Criminal Procedure and case was registered Sessions Case No. 93 of 2008. 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. 4 was framed against the accused and the statements of the accused were recorded at Exhs. 5 and 6 respectively, 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 the following evidence to bring home the charge against the accused. ORAL EVIDENCE Sr. No. P.W. Nos Name of the witnesses Exh. 1. 1. Rajeshbhai Govindbhai Makwana 11 2. 2. Ratabhai Surabhai Khit 13 3. 3. Bhalabhai Muljibhai Sarvaiya 15 4. 4. Mohanbhai Ganabhai Makwana 16 5. 5. Khodabhai Juthabhai Pokiya 18 6. 6. Pravinbhai Kanjibhai Bavariya 19 7. 7. Somabhai Babarbhai Rawat 20 DOCUMENTARY EVIDENCE Sr. No. Particulars Exh. 1. Complaint 12 2. Panchnama of scene of offence 14 3. Caste Certificate 18 4. Investigating Depute Order 21 5. Investigating Report 22 2.5 After the learned Additional Public Prosecutor filed the closing pursis at Exh. 24, 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 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 under the Atrocities Act but found the accused guilty for the offence under Section 6 of the Protection of Civil Rights Act. 3. 3. Being aggrieved and dissatisfied with the said judgement and order of acquittal, the appellant - State has filed the present appeal mainly stating that the impugned judgement 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 the 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 judgement and order of acquittal is unwarranted, illegal and without any basis in the eyes of law and the reasons stated while acquitting the respondent 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. Jirga Jhaveri for the appellant State and learned advocate Mr. Pravin Gondaliya for the respondents-accused. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Ms. Jirga Jhaveri has taken this Court through the entire evidence of the prosecution on record of the case and has submitted that the prosecution has produced oral evidences of nine witnesses and fifteen documentary evidences but the learned trial Court has not appreciated the evidence and has wrongly come to the conclusion that the prosecution has not proved the case beyond reasonable doubts. The reasons given by the learned trial Court are shaky and there are no cogent reasons to arrive at the conclusion that the charge against the accused are not proved. The learned trial Court has not appreciated the entire evidence in proper perspective. Learned APP has urged this Court that the impugned judgement and order is improper, perverse and bad in law and is required to be quashed and set aside. 6. Learned advocate Mr. Pravin Gondaliya for the respondents has submitted that the learned Trial Court has appreciated all the evidences and passed the judgement and order of acquittal which is just and proper and no interference is required in the same and learned advocate for the respondents has urged this court to reject the appeal of the appellant. 7. 6. Learned advocate Mr. Pravin Gondaliya for the respondents has submitted that the learned Trial Court has appreciated all the evidences and passed the judgement and order of acquittal which is just and proper and no interference is required in the same and learned advocate for the respondents has urged this court to reject the appeal of the appellant. 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 acquittal appeals 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". (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. (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 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. 10. 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 Rajeshbhai Govindbhai Makwana at Exh. 11 and the witness is the complainant, who has stated that the persons of his caste are not allowed to get a hair-cut and he along with Mansukhbhai Badhabhai Tapda, Mohanbhai Chanabhai Makwana and Bhalabhai Muljibhai Sarvaiya and two to four other persons went to Chandan Hair Art to have a hair cut. 11 and the witness is the complainant, who has stated that the persons of his caste are not allowed to get a hair-cut and he along with Mansukhbhai Badhabhai Tapda, Mohanbhai Chanabhai Makwana and Bhalabhai Muljibhai Sarvaiya and two to four other persons went to Chandan Hair Art to have a hair cut. The accused No. 1 was the owner of the Chandan Hair Art and they requested the accused No. 1 to give them a hair-cut, he refused and caught hold of their arms and pushed them out of the shop. Verbal altercations took place and the complainant threatened to file a complaint. That the complainant and others went to the next shop and the same treatment was repeated. The second shop belonged to the accused No. 2 and the complainant filed the complaint which is produced at Exh. 12. During the cross examination by the learned advocate for the accused, the witness has stated that in the village the shops close by 08:00 – 08:30 pm and he had gone to have a hair-cut at around 09:00 to 09:30 pm. That in the village generally people return home after closing the shop and a number of persons sit outside in the front portion of the shops. That when the complainant reached the shop, only the employee was present and Khodabhai Sukhabhai and others were also present. Govindbhai was the employee of the shop and he did not give the name of Govindbhai in the complaint as he was innocent. That there was no verbal altercation with raised voices and when he went to the next shop, Rameshbhai Nanjibhai, the clerk of the Gram Panchayat was present. That no verbal altercation had taken place at the second shop and besides refusing to give them a hair- cut, no other discussion had taken place. That they returned home thereafter, and Kalubhai Harjibhai Makwana, Manjibhai Jethabhai, Amrishbhai Jinabhai, Rajubhai Nathubhai Makwana, Manubhai Harjibhai, Rameshbhai, Keshubhai Somabhai and Bhimjibhai Tejabhai Vankar are of his caste and they all regularly have a hair cut at the shops of the accused. That the accused No. 1 is a devotee of the goddess and on 27/05/2008, he had gone to Nana Akadiya Village for a function of the goddess and the accused No. 2 was not present. That the accused No. 1 is a devotee of the goddess and on 27/05/2008, he had gone to Nana Akadiya Village for a function of the goddess and the accused No. 2 was not present. 10.1 The prosecution has examined Prosecution Witness No. 2 Ratabhai Surabhai Khit at Exh: 13 and the prosecution has examined Prosecution Witness No. 6 Pravinbhai Kanjibhai Bavariya at Exh:19 and these witnesses are the panch-witnesses of panchnama of place of offence, which is produced at Exh. 14. Both the witnesses have not supported the case of the prosecution and have stated that they had merely affixed their signatures on the panchnama as per the say of the police. The witnesses have been declared hostile and have been cross examined at length by the learned Additional Public Prosecutor but nothing to support the case of the prosecution has come on record. 10.2 The prosecution has examined Prosecution Witness No. 3 Bhalabhai Modjibhai Survaiya at Exh: 15 and this witness is the eye witness, who was along with the complainant at the time of the incident. The witness has stated that he had gone along with the complainant and three and four other persons to have a haircut at the shop of the accused No. 1 and they have this problem for many years and nobody gives them a hair cut. The accused No. 1 refused to give them a hair-cut and nothing else happened besides this. The accused No. 1 did not use any caste slurs and they went to the next shop and they were refused. That nobody said anything relating to their caste and they all went back home. During the cross examination by the learned advocate for the accused, the witness has stated that the other persons from his caste go to the shop of the accused to have a hair-cut and the accused have never refused him or the complainant for any hair-cut. 10.3 The prosecution has examined Prosecution Witness No. 4 Mohanbhai Chanabhai Makwana at Exh: 16 and this witness is the eye- witness, who, as per the case of the prosecution, was along with the complainant and others at the time of the incident. The witness has stated that when they went, the accused refused to cut their hair and the accused No. 1 also used the caste-slurs and said that he would not cut their hair. The witness has stated that when they went, the accused refused to cut their hair and the accused No. 1 also used the caste-slurs and said that he would not cut their hair. During the cross examination by the learned advocate for the accused, the witness has stated that he did not name the persons, who were present with him, in the statement before the Police and he did not go in the shop but he was standing outside. That as he was standing outside, he does not know what conversation had taken place between the complainant and the accused and he did not have any conversation with the accused. That the shop in his village closed by 08:00 pm to 08:30 pm and they had gone to the shop of the accused at around 09:00 pm to 09:30 pm. That, at that time, there were about ten to fifteen persons in the shop. 10.4 The prosecution has examined Prosecution Witness No. 5 Khodabhai Juthabhai Dholakiya at Exh: 17 and the witness is eye- witness, who, as per the case of the prosecution, was along with the complainant and the others but the witness has not supported the case of the prosecution and has stated that he goes to the shop of the accused No. 1 and the accused No. 1 has never refused to give any one a hair-cut. The witness has been declared hostile and has been cross examined at length but nothing to support the case of the prosecution has come on record. 10.5 The prosecution has examined Prosecution Witness No. 7 S.B. Rawat at Exh. 20 and the witness is the Investigating Officer, who has narrated in detail all the procedure undertaken by him during the investigation. During the cross examination by the learned advocate for the accused, the witness has stated that, in the complaint, it was mentioned that Rameshbhai Thummar a Clerk of the Gram Panchayat was getting a shave at the time of the incident and he had heard the conversation and Rameshbhai Thummar was an important witness but he did not record the statement of the Ramehsbhai Thummar. That there are many residential houses and shops at the place of the incident and he has not recorded the statements of any neighbors or shop owners at the place of incident. That there are many residential houses and shops at the place of the incident and he has not recorded the statements of any neighbors or shop owners at the place of incident. That the incident occurred in the main bazar but he cannot point to the exact place where the incident has occurred. 11. On minute dissection of the entire evidence of the prosecution, as per the case of the prosecution, the complainant and other four to five persons had gone to have a hair-cut at the shop of the accused and the accused had refused to give them a hair-cut. The complainant has filed the case under the Atrocities Act but there is no iota of evidence that the accused had used any caste slurs against the complainant and others. Prosecution Witness No. 5 Khodabhai Juthabhai Dholakiya, who was present at the time of incident has not supported the case of the prosecution and has been declared hostile and other eye witness- prosecution witnesses No. 3 - Bhalabhai Modjibhai Survaiya and Prosecution Witness No. 4 - Mohanbhai Chanabhai Makwana have stated that no caste slurs were used at the time of incident. Moreover, the complainant and the witnesses have stated that they and other members of their caste regularly go to the shops of the accused to have a hair cut and shave and they have never been refused. In the complaint, Rameshbhai Thammar, the clerk of the Gram Panchayat was present at the place of offence and he would be an independent witness, but his statement has not come on record and the investigating officer has not recorded his statement during investigation. Moreover, it has also emerged on record that the incident has occurred in the main bazar and at that time a number of persons were out side and also in the shop, but the evidence of any independent witnesses has come on record. Moreover, it has also emerged on record that the incident has occurred in the main bazar and at that time a number of persons were out side and also in the shop, but the evidence of any independent witnesses has come on record. 11.1 The learned trial Court has rightly found the accused not guilty for the offence under the Atrocities Act and as far as granting of probation under Section 6 of the Protection of Civil Rights Act is concerned, the order has been passed on 09/01/2009 and the accused have been released on a probation for a period of one year which the year would have concluded on 09/01/2010, as the time period of the probation is also concluded, no further discussion is required in this matter. 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. The impugned judgement and order of acquittal passed by the learned Additional Sessions Judge, Gondal in Sessions Case No. 93 of 2008 on 09-01-2009, is hereby confirmed. 14. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.