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2025 DIGILAW 450 (GUJ)

State of Gujarat v. Koli Harchandbhai Kamabhai

2025-06-13

S.V.PINTO

body2025
JUDGMENT : S.V. PINTO, J. 1. The 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, 3 rd Fast Track Court, Deesa Camp at Diyodar (hereinafter referred to as “the learned Trial Court”) in Special Case No. 130/2007 on 07.11.2007, whereby, the learned Trial Court has acquitted the respondent extending benefit of doubt for the offence punishable under Sections 323 and 504 of IPC and Section 3(1)(10) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Act” for short). 1.1 The respondent is hereinafter referred to as “the accused” as he 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 25.06.2007, at around 15.30 hours, the accused met the complainant - Ishwarbhai Pasabhai Dalit (Chauhan) at village Sanavia and asked him why he had given an application against him in the Tharad Police Station regarding a prohibition case and got angry and abused the complainant. The accused also hurled caste slurs and beat the complainant with fists and the complainant filed a complaint under Sections 323 and 504 of the IPC and Section 3(1)(10) of the Atrocity Act before the Tharad Police Station which was registered at II – C.R. No. 3084 of 2007. 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 learned Judicial Magistrate First Class, Tharad and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Banaskantha at Palanpur as per the provisions of Section 209 of Code of Criminal Procedure and the case was registered as Special Case No. 130/2007. 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. A charge at Exh. 1 was framed against the accused and the statement of the accused was recorded at Exh. A charge at Exh. 1 was framed against the accused and the statement of the accused was recorded at Exh. 2, wherein, 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 S. No. PW Name of the witness Exh. 1 1 Ishwarbhai Pasabhai Dalit 6 2 2 Rajput Jamabhai Manjibhai 8 3 3 Varghabhai Panabhai Dalit 9 4 4 Mavjibhai Bhalabhai Chauhan 10 5 5 Bhikhabhai Bhagwandas Patel 13 DOCUMENTARY EVIDENCE S. No. Particulars Exh. 1 Complaint 7 2 Panchnama of place of offence 11 3 Panchnama of body of accused 12 4 Birth Certificate of complainant 14 5 Report 15 6 Special Report 16 7 Closing pursis 17 2.5 After the learned APP filed the closing pursis, 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 said judgment and order of acquittal, the appellant - State has filed the present appeal mainly stating that the impugned judgment 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 the cross-examination, nothing adverse has been elicited in favor of the respondents. The case has been proved beyond reasonable doubt and the prosecution has successfully established the case against the respondents and the judgment and order of acquittal is unwarranted, illegal, and without any basis in the eyes of the 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. Hence the impugned judgment and order passed by the learned Trial Court deserves to be quashed and set aside. 4. Heard learned APP Ms. Dhwani Tripathi for the appellant State. Though served the respondents have not appeared either in person or through their advocates. 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. Dhwani Tripathi 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 quash and set aside the same and find the respondent guilty for the offences. 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 regarding the scope of interference in acquittal appeals in the case of Chandrappa & Ors. Vs. State of Karnataka, 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. 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". 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. 7. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is presumption of innocence in favour of the accused and it has finally culminated when a case ends in an acquittal. 7. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is 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. 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. 8. In light of the above settled principle of law, the evidence of the prosecution is dissected and the prosecution has examined PW1 – Ishwarbhai Pasabhai Dalit (Chauhan) at Exh. 6 and the witness is the complainant who has stated that on 25.6.2007, he had gone to purchase household articles at Tharad and had returned at around 03.30 pm to his village Sanavia and at the entrance of the village, he met the accused who asked him why he had filed an application against him for consumption of liquor at the Tharad Police Station. The complainant denied that he had diled any complaint and stated that he had merely accompanied the Sarpanch to the Police Station. The accused started abusing the complainant and hurled caste slurs at him and beat him with fists. The complainant shouted and his cousin - Vardhabhai Panabhai came and released him from the clutches of the accused. That he took his elder brother - Shivabhai Pasabhai and went to Tharad Police Station and filed the complaint which is produced at Exh. 7. During the cross examination by the learned advocate for the accused, the witness has stated that the application regarding the consumption of liquor was given one month prior to the incident and he had gone along with the Sarpanch - Rajput Jama Manji to the Tharad Police Station. That when the incident occurred, he and the accused were alone and thereafter, the others had come. 8.1 The prosecution has examined PW2 – Rajput Jamabhai Manjibhai at Exh. That when the incident occurred, he and the accused were alone and thereafter, the others had come. 8.1 The prosecution has examined PW2 – Rajput Jamabhai Manjibhai at Exh. 8 and the witness has stated that one month prior to the incident he and the complainant had gone to the Tharad Police Station to give an application about the sale of liquor and on the next day when his statement was recorded, he came to know about the incident. During the cross examination by the learned advocate for the accused, the witness has stated that they had named the accused and 10 to 11 other persons in the application and while the police had conducted raids in the village, no liquor was found from the accused. 8.2 The prosecution has examined PW3 – Vardhabhai Panabhai Dalit at Exh. 9 and the witness has stated that on the date of the incident at around 03.00 pm, while he was near the shop of Rajnibhai Khetsibhai, he saw the accused and the complainant having a verbal altercation and the accused had hurled caste slurs against the complainant. That he intervened and separated them and took the complainant home and the complaint was filed by the complainant at Tharad Police Station. During the cross examination by the learned advocate for the accused the witness has stated that the complainant is his cousin brother and at the time of the incident he was alone near the shop. 8.3 The prosecution has examined PW4 – Maujibhai Bhalabhai Chauhan at Exh. 10 and the witness is the panch witness of the panchnama of the place of offence which is produced at Exh. 11. The witness has supported the case of the prosecution and has identified his signature and the signature of panch no. 2 and during the cross examination by the learned advocate for the accused the witness was has stated that the place of incident was shown by the police and he and the police were alone at that place. The police had prepared the papers and had asked him to affix the signature and the complainant was his relative. 8.4 The prosecution has examined PW5 – Bhikhabhai Bhagwandas Patel at Exh. 13 and the witness is the Investigating Officer who has narrated in detail the procedure undertaken by him during investigation. The police had prepared the papers and had asked him to affix the signature and the complainant was his relative. 8.4 The prosecution has examined PW5 – Bhikhabhai Bhagwandas Patel at Exh. 13 and the witness is the Investigating Officer who has narrated in detail the procedure undertaken by him during investigation. During the cross examination by the learned advocate for the accused the witness has stated that he did not investigate about the application given by the complainant regarding the sale of liquor in the village. 9. On minute appreciation of the entire evidence of the prosecution , as per the case of the prosecution the incident has occurred on 25.06.2007 at the entrance of the village near the shop of Rajnibhai Khetsibhai and as per the panchnama produced at Exh. 11, it was an open place and there was a grocery shop besides the shop of Rajnibhai Khetsibhai Shah. Besides the complainant, the only eyewitness is PW3 - Vardhabhai Panabhai Dalit who is the cousin brother of the complainant and no other independent witnesses have been examined by the prosecution. The genesis of the incident is with regard to the application given by the complainant and the Sarpanch one month prior to the incident at Tharad Police Station regarding sale of liquor in the village but the Investigating Officer - PW5 Bhikhabhai Bhagwandas Patel has stated that he has not investigated about the application and hence, there is no iota of evidence as to whether such an application was given at the Police Station and pursuant to the application whether any raid was conducted in the village and whether the accused was in fact involved in any activity of sale of liquor. 10. 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 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. 11. The impugned judgement and order of acquittal passed by the learned Additional Sessions Judge, 3 rd Fast Track Court, Deesa Camp at Diyodar in Special Case No. 130/2007 on 07.11.2007, is hereby confirmed. 12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.