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2025 DIGILAW 572 (GUJ)

State Of Gujarat v. Udesinh Jivatsinh Parmar

2025-06-26

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 learned 3 rd Additional Sessions Judge (Special) Judge, Mahesana at Visnagar (hereinafter referred to as "the learned Trial Court") in Special (Atrocity) Case No. 07 of 2012 on 16.05.2013, whereby, the learned Trial Court has acquitted the respondents for the offence punishable under Sections 323 , 324, 504, 506(2) and 114 of INDIAN PENAL CODE , 1860 (hereafter referred to as "IPC" for short) and Section 3(i)(ix) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “Atrocities Act”). 1.1 The respondents are hereinafter referred to as the accused in the rank and file 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 14-01-2012, the complainant - Nareshbhai Mohanbhai Parmar (Chamar) went to the shop of the accused to buy a kite and asked the accused for the price of a kite. The accused No. 1 told him that one kite cost Rs.5/- and two kites would cost Rs.10/- and the complainant told him to give two kites for Rs.8/-. The accused got angry and started abusing the complainant and the complainant told them not to abuse him but the accused No. 2 took an iron crowbar from the shop and hit it on the behind portion of the head of the complainant and the accused Nos. 2 and 3 hit the complainant with fists. The accused also threatened to kill the complainant and hurled caste slurs against him and the complainant filed the complaint at Satlasana Police Station under Sections 323 , 324, 504, 506(2) and 114 of IPC and Section 3(i)(ix) of the Atrocities Act, which was registered at Satlasana Police Station I – C.R.No. 4 of 2012. The accused also threatened to kill the complainant and hurled caste slurs against him and the complainant filed the complaint at Satlasana Police Station under Sections 323 , 324, 504, 506(2) and 114 of IPC and Section 3(i)(ix) of the Atrocities Act, which was registered at Satlasana Police Station I – C.R.No. 4 of 2012. 2.2 The Investigating Officer recorded the statements of the connected witnesses and seized the necessary documents and after completion of investigation, a chargesheet came to be filed before the Court of Judicial Magistrate First Class Satlasana and as the said offences against the accused was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Mahesana as per the provisions of Section 209 of the Code of Criminal Procedure and case was registered Special (Atrocities) Case No. 07 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. A charge at Exh. 3 was framed against the accused and the statements of the accused were recorded at Exh. 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 produced fourteen oral evidences and ten documentary evidences to bring home charge against the accused and after the learned Additional Public Prosecutor filed the closing pursis at Exh. 39, 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 state that a false case has been filed against them. 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 all the accused from all the charges leveled against them. 3. 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 all the accused from all the charges leveled against them. 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 respondents. The case has been proved beyond reasonable doubts and the prosecution has successfully established the case against the respondents 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. Chetna Shah for the appellant State and learned advocate Mr. Rajesh B. Soni appearing for the respondent Nos. 1, 2 and 3. 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. Chetna Shah has taken this Court through the entire evidence of the prosecution on record of the case and submitted that the judgment and order of acquittal is contrary to law and evidence on record and the learned trial Court has not appreciated the direct and indirect evidence in the case. That the complainant has supported the case of the prosecution and the witnesses have identified the accused before the learned trial Court. The prosecution has fully proved 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. Rajesh Soni appearing for the respondent Nos. 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. Rajesh Soni appearing for the respondent Nos. 1,2 and 3 submits that the judgments 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 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. 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. In light on the above settled principles of law and considering the evidence on the prosecution, to bring home the charge against the accused, the prosecution has examined Prosecution Witness No.1 Nareshbhai Mohanbhai Parmar and the witness is the complainant, who has fully supported the facts of the complaint, which is produced at Exh. 9. The complainant has also produced his caste certificate at Exhibit 10 and the complainant has stated that when he went to the shop to buy the kite, the accused No. 1 told him to leave the shop and abused him and the accused No. 1 hit him on the head with the iron crowbar. The accused, Nos. 2 and 3 hit him with fists and he was unconscious. He was taken to the Civil Hospital at Mahesana for treatment and at the time of the incident, the accused No. 1 had the weapon in his hand with, which he was assaulted. During the cross-examination by the learned advocate for the accused, the witness has stated that there was no one with him at the time of the incident and the shop of the accused No. 1 is a grocery shop. He does not know, who brought him to the hospital and he was unconscious when the doctor was treating him after he regained consciousness, he told the doctor about the incident. 9.1 The prosecution has examined Prosecution Witness No. 2 - Khengarsinh Rangusinh Parmar at Exh. He does not know, who brought him to the hospital and he was unconscious when the doctor was treating him after he regained consciousness, he told the doctor about the incident. 9.1 The prosecution has examined Prosecution Witness No. 2 - Khengarsinh Rangusinh Parmar at Exh. 14 and the witness has stated that the incident had occurred between the complainant and the accused No. 1 and at that time, he was on the terrace of the shop of Ranjitsinh and was flying a kite. That he heard the sound of shouting and came and saw that the accused No. 1 had hit the complainant on his head and the complainant was bleeding. The complainant was taken to the hospital after he was taken home and at the time of the incident, besides the complainant and the accused, there were other people standing by. During the cross-examination by the learned advocate for the accused, the witness has stated that the shop of Ranjitsinh is situated opposite to the shop of the accused No. 1 and there is a distance of about 100 feet between both the shops. That he and another person were on the terrace of the shop of Ranjitsinh but Ranjitsinh was not on the terrace and there were many people flying kites on the terraces and there was a lot of shouting going on. There was a dispute between Ranjitsinh and the accused about the elections. 9.2 The prosecution has examined Prosecution Witness No. 3 - Somsinh Sendhusinh Parmar at Exh. 15 and the witness has stated that on 14-01-2012, he was on Ranjitsinh terrace flying kites as it was the kite flying day and the accused had a verbal altercation and fight with the complainant. The accused No. 2 had a weapon in his hand and the accused Nos. 1 and 3 beat the complainant with fists and he had intervened and separated them. The complainant was injured on his head and as someone informed his family members and he was taken to the hospital. During the cross-examination by the learned advocate for the accused, the witness has stated that at the time of the incident, he was flying kites and two to three persons were sitting on the terrace and talking and the place was at a distance of about 100 feet from the place where he was. During the cross-examination by the learned advocate for the accused, the witness has stated that at the time of the incident, he was flying kites and two to three persons were sitting on the terrace and talking and the place was at a distance of about 100 feet from the place where he was. When he went to the place of incident, the complainant told him to take him to the hospital and the accused No. 2 has filed a criminal case under Sections 323 , 504 etc. of the IPC, which is pending before the Court of Judicial Magistrate First Class, Satlasana and is registered as Criminal Case No. 1676 of 2010. . The wife of the accused No. 1 is the Sarpanch of the village. 9.3 The prosecution has examined Prosecution Witness No. 4 - Ramilaben Nareshbhai Parmar at Exh. 16 and the witness is the wife of the complainant who has supported the case of the prosecution. The witness has stated that she was at her home and she does not know what has occurred but some boys came to tell her that a quarrel has taken place and she went and saw that her husband was injured. That he was taken to hospital and he had filed the complaint. During the cross examination by the learned advocate for the accused, the witness has stated that she is not an eyewitness to the incident and her husband was present at the shop at the time of the incident. 9.4 The prosecution has examined Prosecution Witness No. 5 - Majulaben Mahendrabhai Parmar at Exh. 17 and the witness is the sister- in-law of the complainant who has stated that she does not know how the incident has occurred. During the cross examination by the learned advocate for the accused, the witness has stated that there is an open space near the shop of Shivssinh Halusinh and the complainant was lying at that place. 9.5 The prosecution has examined Prosecution Witness No. 6 - Jitubhai Naranbhai Chamar at Exh. 18 and as per the case of the prosecution, the witness is an eyewitness to the incident but the witness has not supported the case of the prosecution and has stated that he does not know how the incident has occurred. 9.5 The prosecution has examined Prosecution Witness No. 6 - Jitubhai Naranbhai Chamar at Exh. 18 and as per the case of the prosecution, the witness is an eyewitness to the incident but the witness has not supported the case of the prosecution and has stated that he does not know how the incident has occurred. The witness 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. 9.6 The prosecution has examined Prosecution Witness No. 7 - Dr. Kamleshkumar Pitamberbhai Itadariya at Exh. 19 and the witness was working as a Medical Officer at Civil Hospital, Mahesana on 14-01- 2012. The witness has stated that the complainant Nareshbhai Mohanbhai Parmar was brought at about 4.56 hours in the evening and in the history he had stated that at around 1.30 in the afternoon Govindsinh and Udesinh had assaulted him with a sword or a stick on his head at Kanediya village. On examination, there was a CLW of 1 cm X 0.5 cm on the occipital region which was oblique and the patient was conscious and he was admitted in the male surgical ward. The patient was discharged on 16-01-2012 and the injury were simple and could be by a hard and blunt substance. During the cross-examination by the learned advocate for the accused, the witness has stated that the patient had in the history stated that he was assaulted by a sword or a stick and if a person would fall on the ground and hit a hard and blunt substance, he could sustain an injury like the complainant. 9.7 The prosecution has examined Prosecution Witness No. 8 - Ranjitsinh Mansinh Parmar at Exh. 21 and Prosecution Witness No. 9 - Rahusinh Rangusinh Parmar at Exh. 23. Both the witnesses are the panch witnesses of the panchnama of the place of offence which is produced at Exh.22. The witnesses have not supported the case of the prosecution and have stated that they had merely affixed the signatures on a ready panchnama on the say of the police. The witnesses have been declared hostile and have been cross-examined at length by the learned APP, but nothing to support the case of the prosecution has come on record. The witnesses have not supported the case of the prosecution and have stated that they had merely affixed the signatures on a ready panchnama on the say of the police. The witnesses have been declared hostile and have been cross-examined at length by the learned APP, but nothing to support the case of the prosecution has come on record. 9.8 The prosecution has examined Prosecution Witness No. 10 - Rajendrasinh Vidhwansinh Zala at Exh. 24 and Prosecution Witness No.11 - Vakhatsinh Ramsinh Zala at Exh. 27. Both the witnesses are the panch witnesses of the arrest panchnama produced at Exh.-25, whereby the accused were arrested and the iron crowbar used in the incident was recovered from the accused. The witnesses have not supported the case of the prosecution and have merely stated that they had affixed their signature on a ready panchnama and no persons were arrested in their presence and nothing was recovered from any person in their presence. The witnesses have been declared hostile and have been cross-examined at length by the learned APP but nothing to support the case of the prosecution has come on record. 9.9 The prosecution has examined Prosecution Witness No. 12 - Chandubhai Ramabhai Raval at Exh.30 and the witness was working as an Unarmed ASI at the Satlasana Police Station and he had gone to the Civil Hospital, Mahesana where the complainant was admitted and on 14-01-2012 and he had recorded the complaint of the complainant which is produced at Exhibit-11. 9.10 The prosecution has examined Prosecution Witness No. 13 - Baldevbhai Dhulabhai at Exh. 32 and the witness was working as the PSO and he has registered the complaint of the complainant at Satlasana Police Station I-C.R.No.4 of 2012 under Sections 324 , 323, 504 and 506 (2) of the IPC and Section 135 of the GP Act and Section 3 (i) (x) of the Atrocity Act. 9.11 The prosecution has examined Prosecution Witness No. 14 - Jagatsinh Kachrusinh Rathod at Exh. 35 and the witness is the Investigating Officer, who has narrated the entire procedure undertaken by him during investigation. During the cross-examination by the learned advocate for the accused, the witness has stated that the facts narrated by the complainant in his examination-in-chief have not been stated in the complaint and the witnesses has not stated that the accused had caught hold of the complainant. 10. During the cross-examination by the learned advocate for the accused, the witness has stated that the facts narrated by the complainant in his examination-in-chief have not been stated in the complaint and the witnesses has not stated that the accused had caught hold of the complainant. 10. On minute appreciation of the entire evidence of the prosecution, Prosecution Witness No. 1 Nareshbhai Mohanbhai Parmar, the complainant, in the examination-in-chief has not uttered any caste slurs and has not stated that the accused had used any caste slurs at the time of the incident. As per the complaint, the accused No. 2 had assaulted the complainant with a crowbar on his head but in the examination-in-chief, the complainant has stated that he was assaulted by the accused No. 1 and has also stated that the weapon was in the hand of the accused No. 1, whereas, in the complaint, he has stated that the weapon was with the accused No. 2. Before the Medical Officer, the complainant has stated in the history that he was assaulted by a sword or a stick and he has not stated that he was assaulted by a crowbar and there are major contradictions in the complaint as well as in the deposition of the complainant before the learned trial Court. Prosecution Witness No. 2, Khengarsinh Rangusinh Parmar has stated that the incident has occurred between the accused No. 1 and the complainant and he has not named the other two accused as the assaulters and has stated that they were merely standing along with other members of the public. Prosecution Witness No. 3 Somsinh Sendhusinh Parmar does not state as to who had actually assaulted the complainant on his head and Prosecution Witness No. 4 Ramilaben Nareshbhai Parmar and Prosecution Witness No. 5, Manjulaben Mahendrabhai Parmar are not the eyewitnesses to the incident. As per the case of the prosecution, Prosecution Witness No. 6 Jeetubhai Naranbhai Parmar was an eyewitness to the incident but he has not supported the case of the prosecution and has been declared hostile. On appreciation of the entire evidence of the prosecution, there are major contradictions in the deposition of the complainant and the evidence that has emerged on record and all the evidence has been discussed in detail by the learned trial Court. 11. On appreciation of the entire evidence of the prosecution, there are major contradictions in the deposition of the complainant and the evidence that has emerged on record and all the evidence has been discussed in detail by 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 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. 12. The impugned judgement and order of acquittal passed by learned 3 rd Additional Sessions Judge (Special) Judge, Mahesana at Visnagar in Special (Atrocity) Case No. 07 of 2012 on 16.05.2013, is hereby confirmed. 13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.