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2025 DIGILAW 238 (GUJ)

State of Gujarat v. Valkubhai Babubhaivala

2025-03-07

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 (hereinafter referred to as ‘the Code’) against the judgment and the order dated 21.01.2010 in Sessions Case No.144 of 2008 passed by the learned Presiding Officer and Additional Sessions Judge, Fast Track No.5, Rajkot (hereinafter referred to as ‘the learned Trial Court’), whereby, the learned Trial Court has acquitted the respondents – accused from the offences punishable under Sections 323, 324, 186 and 34 of the Indian Penal Code (hereinafter referred to as ‘the IPC’) and under Section 135 of the B.P.Act. The respondents are hereinafter referred to as ‘the accused’ as they stood in the rank and file in the original case, for the sake of convenience, clarity and brevity. 2. During pendecy of the present appeal, the respondent No.1 – original accused No.1 Valkubhai Babubhai Vala has expired on 19.04.2023. Copy of the death certificate is produced and the same is taken on record, and hence, the present appeal qua respondent No.1 herein – original accused No.1 stands disposed of as infructuous. 3. The relevant facts leading to filing of the present appeal are as under: 3.1. The complainant Ambalal Laljibhai Patel unarmed Police Head Constable, Rajkot Taluka Police Station filed the complaint on 02.05.1993 stating that he along with constable Dilipsinh Pathubha were in patrolling on Raiya Road, Vitrak Society and Neminath Society area on the main road and on 17:30 hours, they reached the Gandhigram area and at around 18:00 hours, they received a secret information that Kathi Valkubhai Babubhai Vada has liquor in his house, and at that time, when they were near the street of Rakesh Pan they saw Kathi Valkubhai Babubhai coming and they shouted and halted him and told him that they wanted to conduct a prohibition raid at his house. That he took an open knife from his waist and tried to assault the complainant Ambalal Laljibhai Patel but he was caught by constable Dilipsinh Pathubha and he tried to hit the complainant and the complainant caught the knife with his left hand and he was injured on his last two fingers and palm of his left hand which started bleeding. That other persons were gathered there and Rakesh Soni had a sickle in his hand, Manglubhai, the brother of Kathi Valkubhai Babubhai, had open knife in his hand and they both had tried to assault the complainant and police constable Dilipsinh and both of them sustained injuries and they all ran away. The complainant filed the complaint at I-C.R.No. 189 of 1993 with Rajkot Taluka Police Station under Section 333, 324, 34, 186 of the IPC and under Section 135 of the B.P.Act, on 02.05.1993. 3.2. After registration of the FIR, the investigation was carried out by the concerned Investigating Officer and after having sufficient material against the accused, the chargesheet came to be filed before the concerned jurisdictional Magistrate. As the case was exclusively triable by the Court of Sessions therefore, after completion of process under Section 209 of the Cr.P.C., the case was committed to the Sessions Court and the same was registered as Sessions Case No.144 of 2008. 3.3. 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 was framed by the learned Trial Court at Exh.16 and the statements of the accused were recorded at Exhs.17 to 20 respectively, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution has examined 10 witnesses and has produced 10 documentary evidence in support of the case. 3.4 After the closing pursis was submitted by the learned APP at Exh.48, the further statements of the accused under Section 313 of the Code were recorded. After hearing the arguments of the learned APP and learned advocate for the accused and after perusing the documents on record, the learned Trial Court, by the impugned judgment and order, has acquitted the accused for the offences punishable under Sections 323, 324, 186 and 34 of the IPC and Section 135 of the B.P.Act. 4. After hearing the arguments of the learned APP and learned advocate for the accused and after perusing the documents on record, the learned Trial Court, by the impugned judgment and order, has acquitted the accused for the offences punishable under Sections 323, 324, 186 and 34 of the IPC and Section 135 of the B.P.Act. 4. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the appellant – State has filed the present appeal mainly stating that the impugned judgment and order passed by the learned Trial Court is contrary to law, evidence on record and principles of natural justice and the same is based on inferences not warranted by facts of the case and also on presumption not permitted by law. The learned Trial Court has erred in appreciating the direct and indirect evidence produced in this case connecting the accused with the crime. The learned Trial Court has erred in appreciating the oral as well as documentary evidence produced by the prosecution in its true spirit and straightway arrived at the conclusion that the prosecution has failed to prove the case beyond reasonable doubts.The impugned judgment and order of acquittal passed by the learned Trial Court is illegal, invalid, improper, perverse and bad in law and the same deserves to be quashed and set aside. 5. Heard learned APP Mr.Bhargav Pandya for the appellant – State and learned advocate Mr.Suratj Matieda for learned advocate Mr.P.P.Majmudar the respondents. Perused the impugned judgment and order of acquittal and have re- appreciated the entire evidence of the prosecution on record of the case. 6. Learned APP Mr.Bhargav Pandya for the appellant – State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the learned Trial Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the case and has successfully proved the case against the accused but the learned Trial Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by the learned Judge is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by learned Judge is based on inferences, not warranted by facts of the case and also on presumptions, not permitted by law. The judgment and order of acquittal passed by the learned Judge is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by learned Judge is based on inferences, not warranted by facts of the case and also on presumptions, not permitted by law. Learned APP has urged this Court to quash and set aside the impugned judgment and order of acquittal and to find the accused guilty for the said offence. Learned APP has urged this Court to allow the present appeal and impose maximum sentence on the accused. 7. Learned advocate Mr.Suratj Matieda for learned advocate Mr.P.P.Majmudar for the respondents has submitted that the learned Trial Court has appreciated all the evidence in true perspective and has not committed any error in acquitting the accused. Therefore, no interference of this Court is required in the impugned judgment and the order of acquittal passed by the learned Trial Court and has urged this Court to reject the appeal. 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 in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415 , the Apex Court has observed as under: Recently, in Kallu Vs. 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) …….. 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. It is a settled principle of law that in an appeal against acquittal, the Appellate Court is circumscribed by limitation that no interference has to be made in the order of acquittal unless after appreciation of the evidence produced before the learned Trial Court, it appears that there are some manifest illegality or perversity which could not have been possibly arrived at by the Court. It is also a settled principle that there is no embargo on the Appellate Court to review the evidence but, generally the order of acquittal shall not be interfered with as the presumption of innocence of the accused is further strengthened by the order of acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case of the prosecution i.e. (i) guilt of the accused and (ii) his innocence, the view, which is in favour of the accused, should be adopted, and if the trial Court has taken the view in favour of the accused, the Appellate Court should not disturb the findings of the acquittal. The Appellate Court can interfere with the judgment and order of acquittal only when there are compelling and substantial reasons and the order is clearly unreasonable and where the Appellate Court comes to conclusion that based on the evidence, the conviction is a must. 10. In light of the above, the evidence produced by the prosecution on record is appreciated and the prosecution has examined PW-1 Shabbirbhai Husenbhai Kadri at Exh.21 and PW-2 Jagdishbhai Ramjibhai Barot at Exh.23. Both the witnesses are the panch witnesses of the panchnama of the place of offence, which is produced at Exh.22 and both the witnesses have stated that they were halted and asked to affix their signatures on a ready panchnama. Both the witnesses have been declared hostile and have been cross examined at length by learned APP but nothing to support the case of the prosecution has come on record. 10.1. The prosecution has examined PW-3 Vallabhbhai Bhanabhai Patel at Exh.24 and the witness is the panch witness of the arrest panchnama of the accused No.1 which is produced at Exh.25. The witness has not supported the case of the prosecution and has been declared hostile and has been cross-examined at length by the learned APP but nothing to support the case of the prosecution has come on record. 10.2. The witness has not supported the case of the prosecution and has been declared hostile and has been cross-examined at length by the learned APP but nothing to support the case of the prosecution has come on record. 10.2. The prosecution has examined PW-4 Ambalal Laljibhai Haripara at Exh.27 and the witness is the complainant, who has stated that on 02.05.1993 he and police constable Dilipsinh Pathubha were in patrolling and while they were at the street of Rakesh Pan, they received a secret information about liquor being stored at Valkubhai Babubhai’s house, and at that time, Valkubhai Babubhai was passing by and they halted him and told him that they wanted to conduct a raid at his house but, he got angry and took out a knife and assaulted. That the complainant sustained injuries on his little finger and palm, and at that time, the other accused Manglubhai Babubhai, Rakesh Mangilal Soni and his sister Vasantba came and assaulted them wherein Manglubhai had a knife and Rakesh Soni had a sickle. That they collectively ensured that Valkubhai Babubhai was released and they all ran away. The complainant and police constable Dilipsinh were admitted to Civil Hospital, Rajkot for treatment and he filed the complaint, which is produced at Exh.28. The witness has identified all the weapons before the learned Trial Court. During the cross- examination by the learned advocate for the accused, the witness has stated that he has to make an entry in the roll call and the police station diary, if they go outside of the area and he did not inform his superior officer about the secret information received by him. That while there were in patrolling, he did not have a wireless with him and he was in civil dress. That 10 minutes after the incident, he had informed the Control Room about the incident and he did not have a telephone with him at that time. That he has to maintain a patrol book and the diary was at the police station. That many persons were at the place of incident on Gandhigram main road and many vehicles were also passing by and near S.K. Pan, there are number of resident houses and shops and there are number of residences and shops near Rakesh Pan also. That he has to maintain a patrol book and the diary was at the police station. That many persons were at the place of incident on Gandhigram main road and many vehicles were also passing by and near S.K. Pan, there are number of resident houses and shops and there are number of residences and shops near Rakesh Pan also. That in the complaint, he has not mentioned whether Rakesh Pan was open and whether there were other persons who were standing there. The complaint is filed 2½ hours late and every constable and head constable has to keep a patrol book with them. 10.3. The prosecution has examined PW-5 Dilipsinh Pathubha Jadeja at Exh.31 and the witness is the police constable, who was along with the complainant on the date of the incident and the injured in the incident. The witness has supported the case of the prosecution and during the cross-examination by the learned advocate for the accused, the witness has stated that he had the patrol book with him on 02.05.1993 but he could not produce it today before the learned Trial Court. That there was a machine for sugarcane juice at S.K. chowk and he did not wear his police uniform at the time of the incident. 10.4. The prosecution has examined PW-6 Bhupendra Shantilal Gadhiya at Exh.32 and the witness is the panch witness of the discovery panchnama produced at Exh.33. The witness has not supported the case of the prosecution and has been declared hostile. 10.5. The prosecution has examined PW-7 Pruthvisinh Bahadursinh Jadeja at Exh.34 and the witness is PSO, who has recorded the complaint of the complainant. 10.6. PW-8 Jayantilal Harjibhai Karia examined at Exh.37 is the Medical Officer, who has stated that on 02.05.1993, he was present at Civil Hospital, Rajkot as Medical Officer and at about 7:40pm, the complainant Ambalal Laljibhai came with history of assault with a knife at arount 6:00pm for treatment. He had sustained an abrasion on the medial side of distal and of 1 st , 2 nd , 3 rd and 4 th fingers and he had complaint of vertigo. That he had admitted the patient in the private ward as he had complaint of giddiness and had discharged on 03.05.1993. At the same time, police constable Dilipsinh Takhubha Jadeja was brought for treatment at 7:40 hours with history of assault. That he had admitted the patient in the private ward as he had complaint of giddiness and had discharged on 03.05.1993. At the same time, police constable Dilipsinh Takhubha Jadeja was brought for treatment at 7:40 hours with history of assault. That he was conscious and his temperature and pulse was normal. That the patient was conscious, his temperature, pulse and breathing was normal and he had sustained injury on the palm and had tenderness on the nose and abrasion on the right side of the face, which was 2cm X 1cm vertical below right side and was red in colour. The patient was advised admission but, he refused to take treatment as an indoor patient and both the patients had sustained injuries with a hard and blunt substance. The witness has produced the medical certificates of the complainant and the injured witness at Exh.38. During the cross-examination by the learned advocate for the accused, the witness has stated that if a person fell down, they would sustain such type of injuries. 10.7. PW-9 Rajeshbhai Maganbhai Ghaghada is examined at Exh.39, who is an eye witness but he had stated that he does not know anything about the incident and he has merely identified the accused and has stated that he knows them as they are his neighbours. The witness has been declared hostile and has been cross-examined by the learned Additional Public Prosecution. 10.8. The prosecution has examined PW-10 Viththalbhai Govindbhai Raval at Exh.40 and the witness has narrated the procedure that was undertaken during investigation. During the cross-examination, the witness has stated that every head constable has to keep a patrol book compulsorily and and has to keep a note as to when a person is coming for duty and whether he is going at some other place on duty. That the complainant Ambalal Laljibhai and police constable Dilipsinh Pathubha have not submitted any documentary evidence to show that they were on patrolling duty on 02.05.1993. 10.9 PW-11 Vahimbhai Jakinbhai Siddiqui examined at Exh.46 is the Crime Writer Head, who has stated that he had recorded that complaint of the complainant which is produced at Exh.47. 11. That the complainant Ambalal Laljibhai and police constable Dilipsinh Pathubha have not submitted any documentary evidence to show that they were on patrolling duty on 02.05.1993. 10.9 PW-11 Vahimbhai Jakinbhai Siddiqui examined at Exh.46 is the Crime Writer Head, who has stated that he had recorded that complaint of the complainant which is produced at Exh.47. 11. On minute appreciation of the entire evidence of the prosecution, as per the case of the prosecution, the complainant Ambalal Laljibhai Patel Unarmed Police Head Constable and Constable Dilipsinh Pathubha were on patrolling in the Vitrak Society and Neminath Society area, but it has emerged on record that if they were in patrolling, it would be absolutely essential for them to have the patrol book with them and make a note of the place where they were in the patrol book but, they have not produced any such patrol book on record. Moreover, both the witness have stated that they were in civil clothes and were without uniform and they did not intimate the police station or any superior officer about the secret information that they had received. Admittedly, the offence has occurred in front of Rajesh Pan and at that time, many independent witnesses were present, but none of the independent witnesses have been examined before the learned Trial Court and have not supported the case of the prosecution. PW-9 Rajeshbhai Maganbhai, who is independent eye witness has turned hostile and has categorically stated that he does not know anything that has taken place on the date of incident. Moreover, as both the complainant and constable Dilipsinh Pathubha were injured, they were taken for treatment to Government Hospital, Rajkot and were treated by PW-8 Jayantilal Harjibhai Karia but it is pertinent to note that they did not intimate the names of the persons, who assaulted them to the medical officer and did not state the place where they assaulted and the medical officer has opined that there was possibility of sustaining similar injuries, if a person fell down. 12. In view of the above, 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. 12. In view of the above, 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 judgment and the order dated 21.01.2010 in Sessions Case No.144 of 2008 passed by the learned Presiding Officer and Additional Sessions Judge, Fast Track No.5, Rajkot is hereby confirmed. 14. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.