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2025 DIGILAW 232 (GUJ)

State of Gujarat v. Ghanchi Imranbhai Ismailbhai

2025-03-07

S.V.PINTO

body2025
JUDGMENT : S.V. PINTO, J. 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 Additional Sessions Judge, Mehsana (hereinafter referred to as “the learned Trial Court”) in Sessions Case No. 86/2009 on 28.01.2010, whereby, the learned Trial Court has acquitted the respondents for the offence punishable under Sections 323 , 504 , 506(2) and 114 of IPC and Section 135 of Bombay Police Act . 1.1 The respondents are hereinafter referred to as “the accused” 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 31.01.2009, the complainant – Sarfaraz @ Bando Mohammadbhai Mansuri was going in his rickshaw no. GJ- 2-TT-515 along with Shabbirbhai @ Kaliyo Samsubhai Mansuri and Aslambhai Yusufbhai Mansuri to the garage for repairing the rickshaw and between 10.30 am and 11.00 am, when they reached near Sahara Guest House, Kadi, the accused halted their rickshaw and Imranbhai Ismailbhai Ghanchi had a dhoka in his hand and Allarakha Ismailbhai Ghanchi had also a dhoka and abused them as he had got married to a girl from their family. All of them assaulted him and Imranbhai Ismailbhai Ghanchi gave him a blow on his left eye and he started bleeding and fell down and at that time, Shabbirbhai Samsubhai Mansuri and Aslambhai Yusufbhai Mansuri intervened saved him from further beatings. The accused also threatened to kill him and the complaint was filed by the complainant on 05.02.2009 at Kadi Police Station which was registered at II – C.R. No. 39/2009 under Section 323 , 504 , 506(2) of the IPC and Section 135 of the BP 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 Court of the 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. 86/2009. 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 were recorded at Exhs. 3 and 4, wherein, both 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 Dr. Amitkumar H. Kunparani 6 2 2 Sarfaraz @ Bando Mahmadbhai Mansuri 17 3 3 Sabbirbhai @ Kaliyo Samsubhai Mansuri 19 4 4 Aslambhai Yusufbhai Mansuri 20 5 5 Prakashkumar Laxmanbhai Parmar - Dropped -- 6 6 Dahyabhai Aalabhai Gohil 26 7 7 Jagatsinh Takubha Rana 28 8 8 Dineshsingh Pratapsingh Rana 32 DOCUMENTARY EVIDENCE Sr. No. Particulars Exhibit No. 1 Treatment Certificate 7 2 Yadi 8 3 Yadi 9 4 Treatment Papers 16 5 Complaint 18 6 Panchnama 26 2.5 After the learned APP filed the closing pursis at Exh. 38, 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 APP and the learned advocate for the accused were heard, the learned Trial Court by the impugned judgement and order was pleased to acquit all 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 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 respondents are improper, perverse and bad in law and hence, the impugned judgement and order must be quashed and set aside. 4. Heard learned APP Mr. Bhargav Pandya for the appellant State and learned advocate Mr. Aftadbhusein Ansari 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. 5. Learned APP Mr. Bhargav Pandya 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 quashed and set aside the same and find the respondents guilty for the offences. 6. Learned advocate Mr. Aftabhusein Ansari 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. 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 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. That 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. That 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 – Dr. Amitkumar H. Kunparani at Exh. 6 and the witness is the Medical Officer who was on duty at Referral Hospital Kadi on 31.01.2009. The witness has stated that Sarfaraz Mohammadbhai Mansuri was brought by his relatives for treatment and in the history he has stated that he was assaulted by Allarakha Ismail Ghanchi and his man. On examination, there was a lacerated wound on the right side of forehead 5 cm x 0.2 cm x 0.5 cm in size and the wound was muscle deep and there were no any external injuries. After giving primary treatment, he was referred to the Higher Centre for further treatment. The witness has produced the medical certificate at Exh. 7. During the cross-examination, the witness has stated that the injuries were superficial and could be sustained by a fall. After giving primary treatment, he was referred to the Higher Centre for further treatment. The witness has produced the medical certificate at Exh. 7. During the cross-examination, the witness has stated that the injuries were superficial and could be sustained by a fall. The injury of lacerated wound could not be sustained by a hard and blunt substance but by a sharp cutting instruments like a sword, dhariya or a knife and a stick would not fall in the category of a sharp cutting weapon. 9.1 The prosecution has examined PW2 – Sarfaraz @ Bando Mahmadbhai Mansuri at Exh. 17 and the witness is the complainant who has stated that he was driving rickshaw no. GJ-2-TT-515 which belonged to his father Mohammed Rasool and on 31.01.2009 between 10.30 am and 11.00 am, when he was on the road near Sahara Guest House, Kadi with Shabbirbhai Samsubhai Mansuri and Aslambhai Yusufbhai Mansuri, the accused halted his rickshaw and assaulted him. The accused had sticks and hit him with the stick on the left eye. That Aslam and Shabbir intervened and saved him and while the accused were leaving, they threatened to kill him. That he had gone to the Government Hospital at Kadi and in the hospital, the members of the public who were present ran to beat him, and hence, he escaped. The complaint at Exh. 18 was filed at Kadi Police Station. During the cross-examination by the learned advocate for the accused, the witness has stated that Fakir Mohammad Sulaiman Ghanchi has filed a complaint about the same incident on 31.01.2009 which is under section 302, 143, 147, 148 and 149 of the IPC and Section 135 of the BP Act and it is a cross-case of this case. The incident has occurred on 31.01.2009 and he had filed the complaint on 05.02.2009. 9.2 The prosecution has examined PW3 – Sabbirbhai @ Kaliyo Samsubhai Mansuri at Exh. 19 and the witness is an eye witness to the incident who was along with the complainant at the time of the incident. The witness has supported the case of the prosecution and has stated that as all three of the accused started assaulting them and Imran and ran behind him. That he ran away from the place of incident and the four of them kept on fighting. The witness has supported the case of the prosecution and has stated that as all three of the accused started assaulting them and Imran and ran behind him. That he ran away from the place of incident and the four of them kept on fighting. That later on, he came to know that Allarakha expired in the incident and Allarakha had a dhoka in his hand and he did not take any treatment. During the cross-examination by the learned advocate for the accused, the witness has stated that the murder of Allarakha was by a knife and he is an accused in that caseand Fakir Mohammed had given the complaint regarding the incident. 9.3 The prosecution has examined PW4 – Aslambhai Yusufbhai Mansuri at Exh. 20 and the witness is the eye witness to the incident. The witness has supported the case of the prosecution and has stated that at the time of the incident, a number of persons gathered and they went away. During the cross-examination by the learned advocate for the accused, the witness has stated that Sarfraz was driving rickshaw no. GJ-2-TT-515 and Shabbirbhai, Sirajbhai, Javed and he were also present in the rickshaw and in all five of them were in the rickshaw. Sessions Case No. 54/2009 was pending before the Court which was regarding the assault on Allarakha and the case was posted to 09.12.2009. 9.4 The prosecution has examined PW6 – Dahyabhai Aalabhai Gohil and the witness is the panch witness of the arrest panchnama produced at Exh. 26. 9.5 The prosecution has examined PW7 – Jagatsinh Takubha Rana at Exh. 28 and the witness is the Police Inspector, Kadi Police Station who has recorded the complaint of the complainant which is produced at Exh. 18. During the cross-examination by the learned advocate for the accused, the witness has stated that the complaint was taken on 05.02.2009 for the incident which occurred on 31.01.2009. An offence under Sections 147, 148, 149 and 302 of the IPC and Section 135 of the BP Act registered at Kadi Police Station I – C.R. 21/2009 was pending against the complainant and four other persons. 9.6 The prosecution has examined PW8 - Dineshsingh Pratapsingh Rana at Exh. 32 and the witness is the Investigating Officer who has narrated in detail all the procedure undertaken by him during investigation. 9.6 The prosecution has examined PW8 - Dineshsingh Pratapsingh Rana at Exh. 32 and the witness is the Investigating Officer who has narrated in detail all the procedure undertaken by him during investigation. During the cross-examination by the learned advocate for the accused, the witness has stated that the offence under Sections 143, 147, 148, 149 and 302 of the IPC and Section 135 of the BP Act was pending against the complainant - Aslam Yusufbhai, Sirajbhai Rasoolbhai, Javedbhai Yusufbhai and Shabbirbhai Rasoolbhai and was registered at Kadi Police Station I – C.R. No. 21/2009 and they all were arraigned as accused in that matter. 10. On minute dissection of the entire evidence of the prosecution, the infirmities in the evidence of the prosecution have come on record and admittedly, the incident has occurred on 31.01.2009 and the present case is a cross case of a case filed under Sections 143, 147, 148, 149 and 302 of the IPC and Section 135 of the BP Act registered at Kadi Police Station I – C.R. No. 21 of 2009 against the complaintant and ten others. The complaint has been filed on 05.02.2009 after a delay of five days and there are no independent witnesses to the incident except the persons who are the accused of Kasi Police Station I-C.R. No. 21/2009. The complainant, PW3 - Shabbirbhai @ Kaliyo Samsubhai Mansuri and PW4 - Aslambhai Yusufbhai Mansuri are all accused in the cross case which is filed for the murder of Allarakha and as per the medical certificate, the treatment was taken on 31.01.2009 at 12.00 noon but no reasons for delay filing of the complaint have been given. In the medical history before the Medical Officer, the complainant has not named the person as the assaulters and it clearly appears that the present case is filed a counter blast to the cross case registered at Kadi Police Station I – C.R. No. 21 of 2009. 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. 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 Additional Sessions Judge, Mehsana in Sessions Case No. 86/2009 on 28.01.2010, is hereby confirmed. 13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.