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2025 DIGILAW 268 (GUJ)

State of Gujarat v. Pratapbhai Dahyabhai Thakore

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 (hereinafter referred to as ‘the Code’) against the judgment and the order dated 27.05.2010 in Atrocity Cri. Case No.30 of 2008 passed by the learned Special Judge, Court No.18 Ahmedabad (hereinafter referred to as ‘the Trial Court’), whereby, the Trial Court has acquitted the respondents – accused from the offences punishable under Sections 323, 294(2) and 506(2) of the Indian Penal Code (hereinafter referred to as ‘the IPC’) and Section 3(1) (10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the Atrocity Act’). The respondent is hereinafter referred to as ‘the accused’ as he stood in the rank and file in the original case, for the sake of convenience, clarity and brevity. 2. The relevant facts leading to filing of the present appeal are as under: 2.1. The complainant Jaynarayanbhai Bhajanrao Mahar and the accused are residing in the same area and on 09.08.2003 at about 2:00pm, the complainant was passing in front of the house of the accused and as there was a rain fall, the passage in front of the house of the accused was full of mud and had water logging and the complainant climbed on to the “Otla” of the accused to pass by, and at that time, the accused got angry and abused the complainant and hurled caste abuses and caught hold neck of the complainant and beat him with fists. As there was a hue and cry, a mob gathered and the complainant was saved by the members of the mob. The complainant filed a private complaint before the Chief Metropolitan Magistrate and after inquiry, the learned Metropolitan Magistrate, Court No,7, registered the complaint of the complainant as Criminal Case No.4530 of 2003. The statements of the witnesses were recorded and the committal order was pased on 06.09.2008 and the case was registered as Special Atrocity Act No.30 of 2008 before the City Sessions Court, Ahmedabad. 2.2. The statements of the witnesses were recorded and the committal order was pased on 06.09.2008 and the case was registered as Special Atrocity Act No.30 of 2008 before the City Sessions Court, Ahmedabad. 2.2. 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 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.3 and the statements of the accused were recorded at Exh.4, 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 4 witnesses and has produced one documentary evidences in support of the case. 2.3. After the closing pursis was submitted by the learned APP at Exh.15, the further statement of the accused under Section 313 of the Code was 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, 294(2) and 506(2) of the IPC and Section 3(1)(10) of the Atrocity Act. 3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the Trial Court, the appellant – State has filed the present appeal mainly stating that the impugned judgment and order passed by the Trial Court is contrary to law, evidence on record and principles of justice. The Trial Court has not properly appreciated the oral as well as documentary evidence on record it its true spirit. The Trial Court has erred in acquitting the accused through there are ample and cogent evidence to connect the accused with the crime and the offences registered against them. The Trial Court has also committed an error in arriving at the conclusion that though the complainant and the prosecution witnesses have fully supported the case of the prosecution and there are no material contradictions, the Trial Court has acquitted the accused. The impugned judgment and order of acquittal passed by the Trial Court is illegal, invalid, improper, perverse and bad in law and the same deserves to be quashed and set aside. 4. The impugned judgment and order of acquittal passed by the Trial Court is illegal, invalid, improper, perverse and bad in law and the same deserves to be quashed and set aside. 4. Heard learned APP Ms.Jirga Jhaveri for the appellant – State. Though served, the respondents have not appeared either in person or through an advocate. Perused the impugned judgment and order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Ms.Jirga Jhaveri for the appellant – State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the Trial Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the the case and has successfully proved the case against the accused but the Trial Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by learned Judge is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by Judge is based on inferences, not warranted by facts of the case and also on presumption, 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. 6. 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. 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 ac- quittal 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 cir- cumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an ap- pellate 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 in- terfere 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 avail- able 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 acquit- tal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. Firstly, the presumption of innocence avail- able 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 acquit- tal, 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. 7. 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 Trial Court, it appears that there are some manifest illegality of 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. 8. In light of the above, the evidence produced by the prosecution on record is appreciated and the prosecution has examined PW-1 Jaynarayanbhai Bhajanrao Mahar at Exh.8 and the witness is the complainant, who has fully supported the facts of the complaint. During the cross-examination by the learned advocate for the accused, the witness has stated that he had given the complaint on the same day before the Metropolitan Magistrate Court after 3:00pm. During the cross-examination by the learned advocate for the accused, the witness has stated that he had given the complaint on the same day before the Metropolitan Magistrate Court after 3:00pm. The police station is at a distance of 5 to 10 minutes away from his house if a persons goes walking and he does not know whether the accused had filed any applications against him at the Amraiwadi Police Station, Municipal Commissioner office and before the Hon’ble Chief Minister. That no treatment was taken for the incident with the accused and every one in his street know him as ‘Marathi’. 8.1. The prosecution has examined PW-2 Bindaprasad Hiralla Koli at Exh.12 and the witness has stated that he is known to the complainant as the complainant stays in the same area and he is known to the accused also. The incident has occurred on 09.08.2003 and he had gone to buy a soap at the grocery shop and suddenly, he heard a quarrel between the complainant and the accused and the accused hurled the caste slurs, and thereafter, he went away to his house. He had gone to the Metropolitan Magistrate Court along with the complainant and another witness Sureshbhai and he does not know to what caste the complainant belong. During the cross-examination by the learned advocate for the accused, the witness has stated that he lives near the police station and he does not know whether there was any dispute between the complainant and the accused regarding the door. The complainant had taken him to the Court and he had come to the Court along with the complainant and Sureshbhai and they had tea together. 8.2. The prosecution has examined PW-3 Sureshbhai Ramsing Rajput at Exh.13 and the witness has stated that he is known to the complainant and the accused and there was a dispute between the complainant and the accused. He was at home and he heard someone shouting and came out and saw the complainant and the accused assaulting each other. There was mud on the road as it had rain and he was not present before the quarrel had taken place but he later on came to know that the quarrel was because of the mud on the road. The accused was abusing the complainant and he had intervened and separated them. There was mud on the road as it had rain and he was not present before the quarrel had taken place but he later on came to know that the quarrel was because of the mud on the road. The accused was abusing the complainant and he had intervened and separated them. The complainant had told him to come to the Court and during cross-examination by the learned advocate for the accused, the witness has stated that he came to the Court with the complainant as the complainant had called him to the Court. 8.3 The prosecution has examined PW-4 Jitendrabhai Dashrathbhai Tiwari at Exh.14 and the witness has stated that the complainant was known to him and he did not know the accused prior to the incident. On the day of the incident, he had gone to the house of the complainant to call him as his rickshaw was not working and while they were returning, as there was water logging in front of the house of the accused, they stepped on to the “Otla” of the accused and 3 to 4 persons were sitting and, out of them, one person started abusing them and the person, who was abusing them was present before the Court. The accused started assaulting the complainant and he and 2-3 other persons came and separated them. During the cross-examination by the learned advocate for the accused, the witness has stated that he does not know when the complainant had filed the complaint. 9. On minute appreciation of the entire evidence of the prosecution, the only evidence that is on record is the say of the complainant and his friend and there are no independent witnesses to the incident. The complainant has stated that the police station is at a walking distance of about 5-10 minutes from his house and immediately, after the incident, he could have gone to the police station and filed the complaint, but for the reasons best known to the complainant, he has not gone to the police station and has gone to the Metropolitan Magistrate Court and filed the complaint. The complainant has not given any reasons why he did not prefer to go to the police station and went to file a private complaint before the Court of the Metropolitan Magistrate, Court No.7. The complainant has not given any reasons why he did not prefer to go to the police station and went to file a private complaint before the Court of the Metropolitan Magistrate, Court No.7. The complainant has stated that immediately after the incident he started shouting and a mob of persons had gathered there but no independent witnesses have been called by the complainant before the learned Trial Court. As per the say of the complainant, there was water logging on the road and hence, the complainant had stepped on the “Otla” of the accused but there is no panchnama or any evidence on record to prove that in fact, there was water logging and rain on the previous day and hence, the complainant had to step on to the “Otla” of the accused. The learned Trial Court has appreciated the evidence and considered all the contradictions in the deposition of the complainant and the witnesses and has appreciated the entire evidence in proper perspective. 10. In view of the above, the 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 Trial Court has appreciated all the evidence and this Court is of the considered opinion that the Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the 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. 11. The impugned judgment and the order dated 27.05.2010 in Atrocity Cri. Case No.30 of 2008 passed by the learned Special Judge, Court No.18 Ahmedabad is hereby confirmed. 12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.