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2025 DIGILAW 231 (GUJ)

State of Gujarat v. Jentilal Khodabhai Rabadiya

2025-03-07

S.V.PINTO

body2025
JUDGMENT : S.V. PINTO, J. 1. The 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 and Additional Sessions Judge, Jamnagar (hereinafter referred to as “the learned Trial Court”) in Special Atrocity Case No. 33/2006 on 22.06.2007, whereby, the learned Trial Court has acquitted the respondent for the offence punishable under Sections 354 of IPC and Section 3(1)(11) 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. 2. The brief facts that emerge from the record of the case are as under: 2.1 On 04.04.2006, the complainant - Manjuben wife of Rameshbhai Bhalabhai Patar was going on the road from Moridad village to Kharedi Village and was on the bridge a little away from Dadvi Village, and at that time, the accused caught the arm of the complainant with the intention of outraging her modesty and it was within the knowledge of the accused that the complainant is a member of the Scheduled Caste and hence, the complainant filed the complaint under Section 354 of the IPC and Section 3(1)(10) Atrocities Act on 17.04.2006 which was registered at Kalavad Police Station I – C.R. No. 45 of 2006. 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, Kalawad and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Jamnagar as per the provisions of Section 209 of Code of Criminal Procedure and the case was registered as Special Atrocity Case No. 33/2006. 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 and a charge at Exh. 5 was framed against the accused and the statement of the accused was recorded at Exh. 5 was framed against the accused and the statement of the accused was recorded at Exh. 6, 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 Sr. No. PW Name of the witness Exh. 1 1 Manjuben Rameshbhai 7 2 2 Mansukhbhai Nathabhai 8 3 3 Lakhuben Bhalabhai 9 4 4 Rameshbhai Chanabhai 10 5 5 Kuldipsinh Bhupatsinh Jadeja 12 6 6 Kishorebhai Radhavbhai 18 7 7 Chandrasinh Bhikhubhai Zala 19 8 8 Rameshchandra Mohanbhai Pandey 22 9 9 Amrutbhai Lallubhai Desai 25 DOCUMENTARY EVIDENCE Sr. No. Particulars Exh. 1 Panchnama of place of offence 13 2 Arrest panchnama 14 3 Caste certificate of complainant 15 4 Caste certificate of accused 16 5 Wireless message 20 6 Station Diary 21 7 Order of investigation to Dy.S.P Mr. Pandey 23 8 Yadi 24 9 Order of investigation to Dy.S.P Mr. Desai 26 2.5 After the learned APP filed the closing pursis, 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. 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. 3. 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 and documentary evidences in proper perspective and has erred in holding that the prosecution has failed to prove the case beyond reasonable doubts. The complainant has fully supported the case of the prosecution and the caste certificate of the complainant is produced on record. The learned Trial Court has not considered the evidences produced on record and even though there is nothing on record that the incident has not occurred, the learned Trial Court has disbelieved the case of the prosecution. The complainant has fully supported the case of the prosecution and the caste certificate of the complainant is produced on record. The learned Trial Court has not considered the evidences produced on record and even though there is nothing on record that the incident has not occurred, the learned Trial Court has disbelieved the case of the prosecution. 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 and hence, the impugned judgement and order must be quashed and set aside. 4. Heard learned APP Ms. Jirga Jhaveri for the appellant State and learned advocate Mr. U.M Shastri for the respondent. 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 submitted that the complainant has fully supported the facts of his complaint. The impugned judgement and order is perverse and learned APP has urged this Court to quash and set aside the same and find the respondent guilty for the offences. 6. Learned advocate Mr. U.M Shastri for the respondent 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 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 regarding the scope of interference 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 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. 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". 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. (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. 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 of the above settled principle of law, the evidence of the prosecution is dissected and the prosecution has examined PW1 Manjuben Rameshbhai – at Exh. 7 and the witness is the complainant who has stated that the incident occurred on the 4 th but she does not know the month when it had occurred and on that day, she and Kanchan were going to Moridad village from Rajkot at 08.00 am. That they reached Moridad village and went to her father-in-law’s house and she left her sister Kanchan and left for Rajkot after having lunch and tea. That she was walking from Moridad to Dadvi village and it was between 03.30 pm – 04.00 pm and at that time, one person came on the motorcycle and told her to sit on the motorcycle. She refused and he told her that he knew her brother-in-law and to sit on the motorcycle and hence, she sat on the motorcycle. That she was walking from Moridad to Dadvi village and it was between 03.30 pm – 04.00 pm and at that time, one person came on the motorcycle and told her to sit on the motorcycle. She refused and he told her that he knew her brother-in-law and to sit on the motorcycle and hence, she sat on the motorcycle. After they went a little ahead, the person caught her arm and showed her ?1000/- and made illegal demands from her. That she shouted and the person halted the motorcycle and at that time, Mansukhbhai Nathubhai and some other person came and the person took his motorcycle and ran away and Mansukhbhai Nathubhai took her to village Moridad to her father-in-law’s place. She filed the complaint on the say of her father-in-law, mother- in-law and uncle Raghavji and later on came to know that the person who had given her the lift and caught her arm and made illegal demands was the accused. The complaint was filed ten to twelve days after the incident and she did not want to file the complaint but the accused was stating that he had given her money and hence, she decided to file the complaint. During the cross-examination by the learned advocate for the accused, the complainant has stated that there is a Police Outpost in Kharedi village which is near to the bus stand. That she waited for a bus to go from Moridad village to Kharedi village but as she could not get any vehicle, she went walking. She did not ask the accused his name, and she had seen the accused for the first time on the day of the incident. She came to know the name of the accused ten to twelve days after the incident and she does not know who had told her the name of the accused. She does not know who was the person with Mansukhbhai and does not know from which village he had come. She cannot say how long she sat with the accused on the motorcycle and the motorcycle was going at medium pace. That she jumped down from the motorcycle and sustained an injury on her leg but she did not tell the police about the injury and did not take any treatment for the same. She cannot say how long she sat with the accused on the motorcycle and the motorcycle was going at medium pace. That she jumped down from the motorcycle and sustained an injury on her leg but she did not tell the police about the injury and did not take any treatment for the same. Mansukhbhai and the boy came after the accused took his motorcycle and went away and she told Mansukhbhai that the person on the motorcycle had caught her hand and showed her money and Mansukhbhai had told her that the person was Jayantibhai Khodabhai. 9.1 The prosecution has examined PW2 – Mansukhbhai Nathabhai at Exh. 8 and as per the case of the prosecution, the witness is the person who had reached the place where the complainant was at the time of the incident. The witness has stated that his masonry work was going on in the Government Hospital opposite Kharedi Bus Stand and he had gone to the hotel at around 03.30 pm to have tea and Ramesh Chano Shekhva was with him. While they were standing below the Neem Tree which is also the Bus Stand of Kharedi village and Hirabhai Ugabhai was also with them, and the complainant came and started crying near Hirabhai Ugabhai and told him that the motorcyclist was harassing her from the past two hours. They saw the accused on the motorcycle and as the complainant was crying, Hirabhai asked him to call the accused. That in the meantime, the accused took the motorcycle and went away and he and Ramesh Chana went on the motorcycle to call the accused. That 2 kms away from Kharedi village, they halted the accused and asked him to come to the place where the complainant was standing and the accused told them that he does not know her and went away towards that Dadvi village and they came back to the bus stand. During the cross-examination by the learned advocate for the accused, the witness has stated that he has friendly relations with the complainant and her in-laws and they are his distant relatives. That the accused is a contractor of watersheds and other government constructions in and around Kharedi village and he telephoned Kishorebhai who came to the bus stand and took the complainant. That when the complainant and Hirabai Ugabhai were talking, 30 to 40 persons had gathered. That the accused is a contractor of watersheds and other government constructions in and around Kharedi village and he telephoned Kishorebhai who came to the bus stand and took the complainant. That when the complainant and Hirabai Ugabhai were talking, 30 to 40 persons had gathered. 9.2 The prosecution has examined PW3 - Lakhuben Bhalabhai at Exh. 9 and the witness has stated that on the day of the incident, the complainant and her sister Kanchan had come to their house from Rajkot and the complainant was going walking towards Kharedi village to catch a bus to Rajkot. That Mansukhbhai and Rameshbhai brought her at around 09.00 pm and Kishorebhai was also with them and they all came on a motorcycle and the complainant started crying and told her about the incident. The complainant also told her that after she started shouting and had a physical struggle, Mansukhbhai Nathabhai and Rameshbhai Channabhai came and released her and Mansukhbhai Nathabhai took her to Kharedi village. During the cross-examination by the learned advocate for the accused, the witness stated that her husband returned at around 06.00 pm. 9.3 The prosecution has examined PW4 - Rameshbhai Chanabhai at Exh. 10 and the witness has stated that he was at the bus stand having tea with Mansukhbhai Nathabhai at around 03.30 pm and Hirabhai Ugabhai was sitting and at that time, the complainant came crying and told Hirabhai that the person was harassing her for the past two hours and the accused was standing at a distance of about hundred feet away. Hirabhai asked Mansukhbhai to call the accused and as the complainant pointed towards the accused, he took his motorcycle and went away and the witness and Mansukhbhai went on the motorcycle and halted accused about 1½ km on the Dadvi road. When he went to park his motorcycle, the accused took his motorcycle and went away and he does not know what conversation had taken place between Mansukhbhai and the accused. That they returned to the bus stand and Mansukhbhai telephoned Kishorebhai from the STD and after sometime Kishorebhai came, and Kishorebhai and Vallabhbhai took Manjuben to Moridad village. During the cross-examination by the learned advocate for the accused, the witness has stated that Kishorebhai, Vallabhbhai and Manjuben went on one motorcycle to Moridad village and he and Mansukhbhai did not have any conversation with the complainant. During the cross-examination by the learned advocate for the accused, the witness has stated that Kishorebhai, Vallabhbhai and Manjuben went on one motorcycle to Moridad village and he and Mansukhbhai did not have any conversation with the complainant. 9.4 The prosecution has examined PW5 - Kuldipsinh Bhupatsinh Jadeja at Exh. 12 and the witness is the panch witness of the panchnama of the place of offence which is produced at Exh. 13. 9.5 The prosecution has examined PW6 - Kishorebhai Radhavbhai at Exh. 18 and the witness has stated that at around 05.30 pm, he was on the road between Wadala and Nikava on his motorcycle and Prembhai phoned him and told him that somebody was harassing a lady from his village and he went to the hotel under the Neem tree at Kharedi near the bus stand and about 50 persons had gathered and he met Hirabhai and the complainant who was crying. Hirabhai took his motorcycle and he and Hirabhai took the complainant to her house. The complainant was the wife of his younger brother and he did not ask her anything and he left her at her house at Moridad village and went away. During the cross- examination by the learned advocate for the accused, the witness has stated that Premjibhai who called him from his mobile is of Kharedi village. 9.6 The prosecution has examined PW7 - Chandrasinh Bhikhubhai Zala at Exh. 19 and the witness is the PSO, Kalawad Police Station who has registered the offence. 9.7 The prosecution has examined PW8 - Rameshchandra Mohanbhai Pandey at Exh. 22 and the witness is the Investigating Officer who has recorded the statements of some witnesses, seized the motorcycle of the accused and arrested the accused and filed the chargesheet before the concerned Magistrate Court. 9.8 The prosecution has examined PW9 - Amrutbhai Lallubhai Desai at Exh. 25 and the witness is the Investigating Officer who has recorded the statements of the connected witnesses and drawn the panchnama of the place of offence which is produced at Exh. 13. 9.9 The prosecution has examined PW10 – Gambhirsinh Natubha Zala at Exh. 29 and the witness was working as the PSI in Kalawad Police Station when the complainant came to register her complaint which was taken down by the witness and the complaint is produced at Exh. 30. 13. 9.9 The prosecution has examined PW10 – Gambhirsinh Natubha Zala at Exh. 29 and the witness was working as the PSI in Kalawad Police Station when the complainant came to register her complaint which was taken down by the witness and the complaint is produced at Exh. 30. During the cross-examination by the learned advocate for the accused, the witness has stated that the complainant came to file the complaint 14 days after the incident. 10. On reappreciation of the entire evidence of the prosecution it has come on record that the incident as per the say of the complainant has occurred on 04.04.2006 and the complaint has been filed on 17.04.2006. The complainant has stated that she did not know the accused at the time of the incident and later on from the village people she came to know the name of the accused and as per the complainant, the incident occurred on the road from village Moridad to village Kharedi but in the evidence of PW2 - Mansukhbhai Nathabhai, PW4 - Rameshbhai Chanabhai and PW6 - Kishorebhai Raghavbhai, the witnesses were at the tea stall under the Neem Tree at Kharedi Bus Stand, when they saw the complainant crying at that place. The complainant has stated that she was at the place of incident and she started shouting and at that time PW2 - Mansukhbhi Nathabhai and one another person came but the say of the complainant is not corroborated by any evidence of any witnesses. There are major contradictions in the deposition of the complainant and the other witnesses and even the place of offence is not clearly proved as to where has the incident occurred. It appears that there are major contradictions even in the time when the complainant reached home and PW3 – Lakhuben Bhalabhai states that the complainant was brought at around 09.00 pm by Kishorebhai, whereas, the complainant states that she reached home with Mansukhbhai Nathabhai, and her father-in-law had come home in the evening. During investigation, no Test Identification Parade was conducted even though the complainant did not know the accused and she has not disclosed the name of the person from whom she came to know the name of the accused. During investigation, no Test Identification Parade was conducted even though the complainant did not know the accused and she has not disclosed the name of the person from whom she came to know the name of the accused. Considering the contradiction and exaggerations in the deposition of the complainant and the other witnesses, the learned Trial Court has rightly deemed it appropriate to pass the impugned judgement and order of acquittal. 11. 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. 12. The impugned judgement and order of acquittal passed by the learned Special Judge and Additional Sessions Judge, Jamnagar in Special Atrocity Case No. 33/2006 on 22.06.2007, is hereby confirmed. 13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.