Research › Search › Judgment

Gujarat High Court · body

2025 DIGILAW 267 (GUJ)

State of Gujarat v. Balvantsinh Jesangbhai Chavda

2025-03-13

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 3 rd Additional District and Sessions Judge, Ahmedabad (Rural) Mirzapur (hereinafter referred to as "the learned Trial Court") in Special (ATRO) Case No. 4 of 2011 on 29.09.2012, whereby, the learned Trial Court has acquitted the respondents for the offence punishable under Sections 323 , 504 , 506(2) and 114 of Indian Penal Code, 1860 (hereafter referred to as " IPC " for short) and Section 3(1)(10) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1881 (hereinafter referred to the “Atrocities 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 8-11-2010, at around 15:00 hours, Bhagwanbhai Kanjibhai Jadhav, the brother of the complainant Khodabhai Kanjibhai Jadhav had engaged the Chhakda rickshaw of Ashokbhai Vaja to go to Tagdi and the same Chakda rickshaw was also engaged by Badvantsinh Jesinghbhai Chavda to go to Tagdi. The relatives of Balvantsinh Jesingbhai were sitting in the Chhakda rickshaw and when it was brought for the complainant and others Balvantsinh Jesinghbhai Chavda told them that Ashokbhai Vaja would take them later but as Bhagwanbhai had to go by train to Ahmedabad and they had a verbal altercation at that time. Thereafter, on 11-11-2010, at around 8.30 am, when the complainant Khodabhai Kanjibhai Jadhav was returning after answering nature's call, all the accused met him near the school and hurled caste abuses and told him that he could not sit in the Chhakda rickshaw with them as it would not be befitting to them and abused him. That they all had sticks in their hands and the accused No. 2 gave him a blow on the ankle of the left leg, the accused No. 1 gave him a blow on the hand and the accused No. 3 gave him a blow on the right leg. The complainant shouted and his wife Kamlaben and his Sister-in-law Paluben Naranbhai came rushing and saved him. The complainant shouted and his wife Kamlaben and his Sister-in-law Paluben Naranbhai came rushing and saved him. At that time the accused No. 2 also gave a blow with a stick to his wife Kamlaben but the complainant caught the stick with his hand and it did not hit his wife. The complainant filed the complaint on 12-11- 2010, under Sections 323 , 504 , 506(2) and 114 of the IPC and Section 3(1)(10) the Atrocities Act, which was registered at Dhanduka Police Station, II- C.R.No. 59 of 2010. 2.2] The Investigating Officer recorded the statements of the connected witnesses and collected necessary documents and after completion of investigation the police filed chargesheet before the Court of Chief Judicial Magistrate, Ahmedabad (Rural) and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Special Judge (ATRO), Ahmedabad Rural as per the provisions of Section 209 of the Code of Criminal Procedure and case was registered Special (ATRO) Case No. 04 of 2011. 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 of Criminal Procedure, 1973 . A charge at Exh. 3 was framed against the accused and the statements of the accused were recorded at Exhs.4 to 6, 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 has produced the following oral evidences in support of their case. Sr. No. P.W. Particulars Exh. 1. 1 Khodabhai Kanjibhai 8 2. 2 Maganbhai Parmarbhai Rathod 11 3. 3 Kamlaben Khodabhai 13 4. 4 Nareshbhai Bhagwanbhai Jadav 14 5. 5 Dr. Bhaveshbhai Hadiyal 15 6. 6 Daulatsinh Natubhai Dodiya 18 7. 7 Vishnubhai Nathabhai 20 8. 8 Dashrathbhai Joravarsinh Vaghela 21 2.5] The prosecution has produced the following documentary evidences in support of their case. Sr. No. Particulars Exh. 1 Complaint 9 2 Caste Certificate of Complainant 10 3 Panchnama of place of offence 12 4 MLC Certificate 17 5 Arrest Panchnama 19 2.6] After the closing pursis was filed at Exh. 8 Dashrathbhai Joravarsinh Vaghela 21 2.5] The prosecution has produced the following documentary evidences in support of their case. Sr. No. Particulars Exh. 1 Complaint 9 2 Caste Certificate of Complainant 10 3 Panchnama of place of offence 12 4 MLC Certificate 17 5 Arrest Panchnama 19 2.6] After the closing pursis was filed at Exh. 23, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded and 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 the accused from all the charges leveled against him. 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 cross-examination, nothing adverse has been elicited in favour of the respondent. The case has been proved beyond reasonable doubts and the prosecution has successfully established the case against the respondent 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. Ashish Dagli 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 judgment and order of acquittal is contrary to law and evidence on record and the learned trial Court has not appreciated direct and indirect evidence in the case. The complainant has supported the case of the prosecution, which is corroborated by the deposition of the medical officer and the witnesses have identified the accused before the learned trial Court. The complainant has supported the case of the prosecution, which is corroborated by the deposition of the medical officer and the witnesses have identified the accused before the learned trial Court. The prosecution has fully prove the case beyond reasonable doubts but the learned trial Court has relied on minor contradictions and has given undue weightage with regard to the place of incident. That the order passed by the learned trial Court is illegal, improper and perverse and is required to be quashed and set aside and the appeal of the appellant must be allowed. 6. Learned advocate Mr. Ashish Dagli appearing for the respondents-original accused submits that the judgment and order has been passed after appreciation of all the evidence and the learned Court has appreciated the evidence in proper perspective and hence, the appeal of the appellant-State must be rejected. 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". 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.. 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. 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. 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. The prosecution has examined Prosecution Witness No. 1 Khodabhai Kanjibhai at Exhibit 8 and the witness is the complainant, who has supported the facts of the complaint on oath. During the cross-examination by the learned advocate for the accused, the witness has stated that Ashokbhai Ganeshbhai has a chhakda and the accused No. 1 had engaged the rickshaw and he had filled the rickshaw with persons and luggage and come to the outskirts of the village. That the incident regarding the engaging of the rickshaw had occurred on 8-11-2010 and there was no incident on 9-11-2010 and 10- 11-2010. That on 8-11-2010, Ashokbhai had told him that he would drop the accused at Tagdi, and thereafter, come and take them and on that day, two to four persons from his street were present. When the incident occurred, a number of persons had gathered and his wife and brothers had taken him to the hospital. He did not inform the doctor that the accused had assaulted him and he was immediately discharged from the hospital. 9.1 The prosecution has examined Proseuction Witness No. 2 Maganbhai Parmarbhai Rathod at Exhibit 11 and the witness is the panch witness of the panchnama of the place of offence, which is produced at Exhibit 12. 9.2 The prosecution has examined Prosecution Witness No.3 Kamlaben Khodabhai at Exhibit 13 and the witness is the wife of the complainant, who has stated that all the three accused had come with sticks near the panchayat office and had abused her husband and hurled caste slurs and her husband has filed the complaint which was recorded on 13-11-2010. 9.2 The prosecution has examined Prosecution Witness No.3 Kamlaben Khodabhai at Exhibit 13 and the witness is the wife of the complainant, who has stated that all the three accused had come with sticks near the panchayat office and had abused her husband and hurled caste slurs and her husband has filed the complaint which was recorded on 13-11-2010. During the cross-examination by the learned advocate for the accused, the witness has stated that at the time of the chhakda incident, she was not sitting in the chhakda and the chhakda had gone to the house of the accused No. 1 and everyone was seated in the Chhakda, which was being driven by Ashokbhai of their street. That as they were getting late for the train, they told them to allow them to sit in the chhakda and on the same day, caste slurs were hurled at them but they did not file any complaint or any application about the incident. That at the time when the incident had occurred at the panchayat office with her husband, she heard the sound at a distance of about 200 feet and many persons had gathered but she does not know, who they were and she was not injured in the incident. 9.3 The prosecution has examined Prosecution Witness No. 4 Nareshbhai Bhagwanbhai Jadav at Exh.14 and the witness is the nephew of the complainant, who has stated that on 8-11-2010, there was a simple verbal argument between his uncle and the accused No.2 and his uncle had told him that if he was in a hurry, he could engage a Maruti car. That they sat in a chhakda and came to Tagdi Railway Station and on the 10th, he once again went to his uncle's house and stayed the night. On the next morning, while he was watching T.V. he heard shouts at the panchayat office and he went there, and at that time, the simple verbal altercation had concluded. That later on, he came to know that the accused had assaulted his uncle and the incident was informed to him by his uncle. On the next morning, while he was watching T.V. he heard shouts at the panchayat office and he went there, and at that time, the simple verbal altercation had concluded. That later on, he came to know that the accused had assaulted his uncle and the incident was informed to him by his uncle. During the cross-examination by the learned advocate for the accused, the witness has stated that he does have personal knowledge about the incident on 8-11-2010 and he does not know whether his uncle had gone to the police station or to the hospital on the date of the incident. 9.4 The prosecution has examined Prosecution Witness No. 5 Dr. Bhaveshbhai Hadiyal at Exh.15 and the witness is the Medical Officer who has treated the complainant. The witness has stated that while he was on duty at Referral Hospital, Dhanduka, as a Medical Officer, a patient named Khodabhai Kanjibhai Jadhav had come for treatment at 6.20 pm, and in the history, he had stated that on 11-11-2010, he was assaulted by fists and kicks near the school at 8.30 am. The witness has produced the treatment papers at Exh.16 and on examination, there was a bruise on the lateral aspect, mid of right thigh, 1" X 1" and there was a bruise 2" X 2" on the left mid calf muscle. There was no tenderness and no pain, and the medical certificate is produced at Exh.17. During the cross-examination by the learned advocate for the accused, the witness has stated that the patient did not name the person who had assaulted him and the injuries were simple in nature. The injuries of the injured could be self-inflicted and the patient came twenty four hours, after the incident had occurred, for treatment. 9.5 Prosecution Witness No. 6 Daulatsinh Natubhai Dodiya examined at Exhibit 18 is the panch witness of the arrest panchnama produced at Exh.19. The witness has not supported the case of the prosecution and has been declared hostile. 9.7 Prosecution Witness No. 7 Vishnubhai Nathabhai examined at Exhibit 20 is the PSO who has recorded the complaint of the complainant, which is produced at Exhibit 9. 9.8 The prosecution has examined Prosecution Witness No. 8 Dashrathbhai Joravarsinh Vaghela at Exhibit 21 and the witness is the Investigating Officer who has narrated the procedure that was undertaken by him during investigation. 9.8 The prosecution has examined Prosecution Witness No. 8 Dashrathbhai Joravarsinh Vaghela at Exhibit 21 and the witness is the Investigating Officer who has narrated the procedure that was undertaken by him during investigation. During the cross-examination by the learned advcoate for the accused, the witness has stated that the place of incident was the public road near the primary school and the office of the Gram Panchayat but he has not recorded the statements of any teachers or staff. 10. On minute appreciation of the entire evidence of the prosecution, the incident has occurred on 11-11-2010 at 08:30 and the complaint was filed on 12-11-2010 and there is no reasons for delay in filing the complaint. The complainant has gone for medical treatment on 12-11- 2010 at 06:20 and in the history before the Medical Officer he has not named the person who had assaulted him. The prosecution has not examined any eye-witnesses to the incident and PW.3 Kamlaben Khodabhai , the wife of the complainant is not an eye-witness to the incident and Prosecution Witness No. 4 Nareshbhai Bhagwanbhai Jadhav the nephew of the complainant has clearly stated that there was only a simple verbal altercation between the complainant and the accused and when he reached there, the verbal altercation was over and he is not an eye witness to the incident. As per the case of the prosecution, the incident has occurred near the primary school and the Gram Panchayat Office but no eye-witnesses have been examined and the genesis of the incident is the incident has occurred on 8-11-2010 when the brother of the complainant as well as accused No. 1 had both engaged the Chhakda Rickshaw of Ashokbhai Vaja to go to Tagdi and the first incident has occurred in the presence of Ashokbhai Vaja and others, who were sitting in the Chhakda rickshaw but the prosecution has not examined Ashokbhai Vaja or any other independent witnesses regarding the incident that has occurred on 8-11-2010. As per the complainant, the Chhakda rickshaw of Ashokbhai Vaja was hired by his brother Bhagwanbhai Kanjibhai Jadhav and the incident on 8-11-2010 had occurred in the presence of his brother Bhagwanbhai Kanjibhai Jadhav, but the said Bhagwanbhai Kanjibhai Jadhav has not been examined as a witness before the learned trial Court. 11. As per the complainant, the Chhakda rickshaw of Ashokbhai Vaja was hired by his brother Bhagwanbhai Kanjibhai Jadhav and the incident on 8-11-2010 had occurred in the presence of his brother Bhagwanbhai Kanjibhai Jadhav, but the said Bhagwanbhai Kanjibhai Jadhav has not been examined as a witness before the learned trial Court. 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 extending benefit of doubt and acquitting the accused of the charges leveled against him. 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 extending benefit of doubt and 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 3 rd Additional District and Sessions Judge, Ahmedabad (Rural), Mirzapur in Special (ATRO) Case No. 4 of 2011 on 29.09.2012, is hereby confirmed. 13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.