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2025 DIGILAW 289 (GUJ)

State of Gujarat v. Bakabhai Memabhai Rabari

2025-03-18

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 03.10.2013 in Special Case - Atro. No. 09 of 2012 passed by the learned 2nd Additional Sessions Judge, Anand (hereinafter referred to as ‘the Trial Court’), whereby, the Trial Court has acquitted the respondents from the offences punishable under Sections 323, 504, 447, 506(2) and 114 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 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. The relevant facts leading to filing of the present appeal are as under: 2.1. On 27.10.2011, a cow belonging to some person of the Rabari community had given birth to a calf in front of the stable of the complainant and the complainant had informed them about the same, but they did not come till 17:45 hours. That when the accused came to the stable, the complainant Jagdishbhai Ganeshbhai Rohit asked them why they had come so late and all the accused got angry and abused the complainant and hurled caste abuses and assaulted him with fist and threatened to kill him. The complaint was filed by the complainant at the Borsad Town Police Station under section 323, 504, 447, 506(2) and 114 of the IPC and Section 3(1)(10) of the Atrocity Act, which was registered at Borsad Town Police Station as I-C.R. No.130 of 2011. 2.2. 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 Special Case - Atro. No. 09 of 2012. 2.3. 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 Special Case - Atro. No. 09 of 2012. 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 was framed by the learned Trial Court at Exh.3 and the statements of the accused were recorded at Exhs.4 to 7 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 9 witnesses and has produced 12 documentary evidences in support of the case. 2.4. After the closing pursis was submitted by the learned APP at Exh.48, 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, 504, 447, 506(2) and 114 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 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. Heard learned APP Ms.Jirga Jhaveri for the appellant – State. Though served to the respondents, they 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. Learned Advocate Mr.P.P.Majmudar appearing for the respondent – original accused 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. 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. 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 , 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) …….. 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 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. 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. (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. 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. 9. The prosecution has examined PW-1 Rameshbhai Uttambhai Rohit at Exh.12 and the witness is the panch witness of the panchnama of the place of offence, which is produced at Exh.13. During the cross-examination by the learned advocate for the accused, the witness has stated that when he reached the place of incident, the Panchnama was being written, and after it was fully written, they were asked to affix their signatures and he and the other panch did not dictate the panchnama. 9.1 The prosecution has examined PW-22 Bhartiben Dineshbhai Rohit at Exh.17 and the witness has stated that on 27.10.2011, she was at her home home in the evening at around around 5:30 pm, when the accused had come to their society. The accused No.1 started shouting and inquired where was Jagdish and they went to the stable and all of them started assaulting her brother-in-law Jagdish. She and her mother-in-law Naniben shouted and the neighbours gathered, and at that time, the accused No.1 hurled caste abuses and threatened to kill her brother-in-law. Her brother-in-law had filed the complaint but the police did not record her statement. During the cross-examination by the learned advocate for the accused, the witness has stated that she is residing in front of her brother-in-law Jagdish’s house, and at the time of the incident, about 25 persons had gathered and the incident had occurred in the internal part of the society. That she does not know who was the owner of the cow. 9.2. The prosecution has examined PW-3 Lataben Bharatbhai Rohit at Exh.18 and the witness has supported the case of the prosecution. During the cross-examination by the learned advocate for the accused, the witness has stated that she does not know any of the accused by name. 9.3. The prosecution has examined the complainant PW-4 Jagdishbhai Ganeshbhai Rohit at Exh.22 and the witness has fully supported the contents of the complaint, which is produced at Exh.23. The witness has stated that he had taken treatment from private doctor Vipul C. Patel at Borsad. 9.3. The prosecution has examined the complainant PW-4 Jagdishbhai Ganeshbhai Rohit at Exh.22 and the witness has fully supported the contents of the complaint, which is produced at Exh.23. The witness has stated that he had taken treatment from private doctor Vipul C. Patel at Borsad. During the cross- examination by the learned advocate for the accused, the witness has stated that Rabari Colony and Rabari Tekra are different areas and he does not know whether there is any other person by the name of Bakabhai. That he had relations with the accused No.1 before the incident and the incident had occurred on 27.10.2011 and he had filed the complaint on 01.11.2011. Rameshbhai Uttambhai Rohit and Kantibhai Parshottambhai are residing in his society and he has not mentioned in his complaint that the accused had abused him. That he had given an application on 27.10.2011, but he did not give his caste certificate and when he went for treatment to Dr.Vipulbhai, the police did not give him any Yaadi. That he went for treatment on 27.10.2011 and on the next day of filing of the complaint, he had gone for treatment to Kathana, but he did not give the name of any person, who had assaulted him, to the doctor at Kathana. 9.4. The prosecution has examined PW-5 Dr.Vipul Chandubhai Patel at Exh.26 and the witness has stated that on 28.10.2011, while he was at his clinic at around 9:00pm, Jagdishbhai Ganeshbhai Rohit came for treatment with a complaint of pain in his neck, ear and chest. That he had treated him and on examination, there were no external injuries. The witness has produced the medical certificate at Exh.27. During the cross-examination by the learned advocate for the accused, the witness has stated that in the certificate produced that Exh.27, there is no mention of any date, time, place or names of any of the persons, who had assaulted the patient and he had not intimated the police about the treatment given to the patient on 28.10.2011. That in the certificate, there is no mention about any pain in the ear and the complaints of pain could be imaginary. A person could have pain, if he falls on any hard and blood substance. 9.5. The prosecution is examined PW-6 Dr.Sohanlal Devilal Dharkuliya at Exh.32 and the witness was working as the Medical Officer at Kathana Primary Health Centre. A person could have pain, if he falls on any hard and blood substance. 9.5. The prosecution is examined PW-6 Dr.Sohanlal Devilal Dharkuliya at Exh.32 and the witness was working as the Medical Officer at Kathana Primary Health Centre. On 02.01.2011, when Jagdishbhai Ganeshbhai Rohit, resident of Borsad, had come with a police Yaadi for treatment. The Yadi was given for treatment at the Davol Primary Health Centre, but as per the say of injured, there was no doctor present at Davol, and hence, she had come for treatment to the Kathana Primary Health Center. In the history, the patient stated that his neck was pressed and he was beaten by fists and on examination, there were no marks of injury, but the patient had a complaint of pain in the right ear and he was advised to show it to the ENT surgeon. The witness has produced the case papers and the medical certificate at Exhs. 34 and 35 respectively. During the cross-examination by the learned advocate for the accused, the witness has stated that the patient did not give the names of any persons, who had assaulted him, and there is no mention of any date, time, place or any names of persons in the certificate. On examination, he did not find any marks of injury on the patient and the details in the column of nature of injury and time of injury are blank. The pain complained by the patient could be imaginary and only an ENT Surgeon could give the exact reasons for pain in the ear. 9.6. PW-7 Ratnabhai Burabhai examined at Exh.36 is the P.S.O. Town Police Station, who has registered the complaint of the complainant at Borsad Town Police Station I-C.R.No.130 of 2011. During the cross-examination, the witness has stated that the complainant did not produce any caste certificate at the time of filing of the complaint. 9.7. PW-8 Bismillahhhan Jabajkhan Pathan examined at Exh.40 is the Investigating Officer, who has narrated in detail the procedure that was undertaken by him during investigation of the offence. During the cross-examination by the learned advocate for the accused, the witness has stated that the incident had occurred on 27.10.2011 and the complaint was filed on 01.11.2011. That he had not verified the caste certificate and he had received the inquiry papers along with the application dated 27.10.2011. During the cross-examination by the learned advocate for the accused, the witness has stated that the incident had occurred on 27.10.2011 and the complaint was filed on 01.11.2011. That he had not verified the caste certificate and he had received the inquiry papers along with the application dated 27.10.2011. The witnesses Naniben, Lataben and Bhartiben are the relatives of the complainant and witness Kamlaben is the neighbour and of the same caste of the complainant. That he did not investigate about the owner of the cow and he did not record the statements of any independent witnesses. 9.8. The prosecution has examined PW-9 Jagatsinh Takhubha Rana at Exh.47 and the witness is the Police Inspector before whom the complaint of the complainant was recorded on 01.11.2011. During the cross-examination by the learned advocate for the accused, the witness has stated that the incident had occurred on 27.10.2011 and an application was given by the complainant on the same day, but no statements were recorded from 27.10.2011 to 01.11.2011. The complainant did not give his caste certificate at the time of filing of the complete. 10. On minute appreciation of the entire evidence of the prosecution, the incident has occurred on 27.10.2011 and the complaint has been filed on 01.11.2011 and there is no reason mentioned for the delay in filing the FIR. The complainant has stated that he knew the accused No.1 prior to the incident and the complainant went for treatment on 28.10.2011 to the hospital of PW-5 Dr.Vipul Chandubhai Patel, and thereafter, on 02.11.2011 to Community Health Center, Kathana before PW-6 Dr. Sohanlal Devilal Dhakruliya, but the complainant has not named any of the assailants before both the Medical Officers and both the witnesses have stated that no injuries were found on the body of the complainant. As per the case of the prosecution, the incident has occurred in a residential area, but no independent witnesses are examined and only the mother and sisters-in-law of the complainant have been examined. There are major contradictions in the evidence of the witnesses and the say of the complainant is not supported by any cogent and convincing evidence. 11. 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. 11. 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. 12. The impugned judgment and the order dated 03.10.2013 in Special Case - Atro. No. 09 of 2012 passed by the learned 2nd Additional Sessions Judge, Anand is hereby confirmed. 13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.