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2025 DIGILAW 588 (GUJ)

State Of Gujarat v. Habibbhai Husenbhai Abhesora

2025-06-27

S.V.PINTO

body2025
JUDGMENT : S.V. Pinto, J. 1. This 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 6 th Additional Sessions Judge, and Special Judge Jamnagar (hereinafter referred to as “the learned Trial Court”) in Special Atrocity Case No. 14/2010 on 31.01.2014, whereby, the learned Trial Court has acquitted the respondents extending benefit of doubt for the offence punishable under Sections 323 , 504, 506(1) and 114 of INDIAN PENAL CODE and Section 3(1)(10) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Atrocity 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 09.02.2010, between 08.30 pm to 09.00 pm, the complainant - Anilbhai Valjibhai Rathod and his friends had made a small bonfire in front of the mill of Dhirubhai at village Sanosara and were warming themselves when the minor son of the accused dashed his cycle with the complainant. The complainant asked him to keep his cycle away but the minor son got angry and abused the complainant and assaulted him. At that time, the accused came and assaulted the complainant and hurled caste slurs against him and threatened to kill him. The complainant filed the complaint at Kalawad Police Station under Sections 323 , 504, 506(2), 114 of the INDIAN PENAL CODE and Section 3(1)(10) of the Atrocity Act which was registered at Kalawad Police Station II – C.R. No. 29 of 2010. 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 Court of the Judicial Magistrate First Class, Kalawad and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Jamnagar as per the provisions of Section 209 of Code of Criminal Procedure and the case was registered as Special Atrocity Case No. 14/2010. 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. 8 was framed against the accused and the statement of the accused was recorded at Exhs. 9, 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 Sr. No. PW Name of the witness Exh. 1 1 Bhagwanjibhai Thakarshibhai 24 2 2 Bhimjibhai Ranabhai Chauhan 26 3 3 Yashpal Bhimjibhai Babariya 30 4 4 Narendrakumar Khimjibhai 31 5 5 Chetankumar Bhikhabhai Rathod 32 6 6 Vijay Rameshbhai Rathod 33 7 7 Valjibhai Nathabhai Rathod 34 8 8 Asmitaben Valjibhai Rathod 42 9 9 Anil Valjibhai Rathod 43 10 10 Dr. Rohit Popatlal Nakum 45 11 11 Vasantben Valjibhai Nathabhai 49 12 12 Narendrasinh Bahadursinh Jadeja 54 DOCUMENTARY EVIDENCE Sr. No. Particulars Exh. 1 Complaint 44 2 Panchnama of the place of offence 25 3 Arrest accused 27 4 Arrest panchnama 28 5 Message 55 6 Order 57 7 Caste Certificate of the complainant 61 8 Caste certificate of the accused 63/64 9 Caste certificate of Valjibhai 65 10 Treatment Certificate 47/48 2.5 After the learned APP filed the closing pursis, the further statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 was 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 his behalf and stated that a false case has been filed against him. 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 the accused from the charges levelled against him. 3. 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 the accused from the charges levelled against him. 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 doubts 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 Mr. Pranav Dhagat for the appellant State. Though served the respondents has not appeared either in person or through his advocate. 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 Mr. Pranav Dhagat has taken this Court through the entire evidence of the prosecution on record of the case and has submitted that the complainant has fully supported the facts of his complaint and the witnesses too have supported the case of the prosecution. 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 reported in 2007 (4) SCC 415 , wherein, the Apex Court has observed as under: Recently, in Kallu Vs. Vs. State of Karnataka reported in 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". 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. (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. 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 – Bhagwanjibhai Thakarshibhai at Exh. 24 and PW2 - Bhimjibhai Ranabhai Chauhan at Exh. 26. Both the witnesses are the panch witnesses of the case of the panchnama of the place of offence which is produced at Exh. 25. The witnesses have not supported the case of the prosecution and have stated that they had merely affixed their signature son the panchnama. The witnesses have been declared hostile and have been cross examined by the learned APP. 8.1 The prosecution has examined PW3 – Yashpal Bhimjibhai Babariya at Exh. 30 and the witness has stated that the incident had occurred between the complainant and the minor son of the accused and at that time when the incident started he was present but thereafter he went away. 8.1 The prosecution has examined PW3 – Yashpal Bhimjibhai Babariya at Exh. 30 and the witness has stated that the incident had occurred between the complainant and the minor son of the accused and at that time when the incident started he was present but thereafter he went away. The incident had occurred where they had made a small bonfire and were warming themselves, but he does not know what had happened thereafter. He does not know whether any caste slurs were used and he was not present when the complainant was assaulted. The witness has not supported the case of the prosecution and 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. During the cross examination by the learned advocate for the accused, the witness has stated that no verbal altercation, physical assault or quarrel had taken place between the complainant and the accused. 8.2 The prosecution has examined PW4 – Narendrakumar Khimjibhai at Exh. 31 and as per the case of the prosecution, the witness was an eyewitness to the incident. The witness has stated that he does not know between whom the incident has occurred and at that time the entire village was present. That he went away from there and has no knowledge about the incident. The witness has not supported the case of the prosecution and has been declared hostile but nothing to support the case of the prosecution has come on record during the cross examination by the learned APP. 8.3 The prosecution has examined PW5 – Chetankumar Bhikhabhai Rathod at Exh. 32 and the witness has stated that he does not know anything about the incident. He is known to the complainant and he does not know who was present at the time of the incident. The witness has been declared hostile and has been cross examined by the learned APP but nothing to support the case of the prosecution has come on record. 8.4 PW6 – Vijay Rameshbhai Rathod examined at Exh. 33 has also stated that he does not know anything about the incident. The witness has been declared hostile and has been cross examined by the learned APP but nothing to support the case of the prosecution has come on record. 8.4 PW6 – Vijay Rameshbhai Rathod examined at Exh. 33 has also stated that he does not know anything about the incident. As per the case of the prosecution, the witness is an eyewitness to the incident but has not supported the case of the prosecution and has been declared hostile and nothing to support the case of the prosecution has come on record during the cross examination by the learned APP. 8.5 PW7 – Valjibhai Nathabhai Rathod examined at Exh. 34 is the father of the complainant and he has stated that somebody came to tell him that his son was assaulted and he ran and found that his daughter Asmita unconscious. He called the 108 ambulance and his daughter Asmita and son Anil were taken to the Government Hospital at Kalawad. After they came to the hospital, the accused and others came and threatened to kill them and hurled caste abuses at them. His son Anil was injured in the head and legs and hands and elbow, and his daughter Asmita was injured in the chest. They both were taken to G.G. Hospital, Jamnagar and at the time of the incident 50 to 60 persons had gathered there. The accused had threatened them and used caste slurs against them. During the cross examination by the learned advocate for the accused, the witness has stated that before the Medical Officer, his daughter or son had not named any of the accused and as someone came to call him, he went to the place where the incident has occurred. He does not know who came to call him but 50 to 60 persons were at the spot and amongst them were Narendra, Ketan, Karo and Bhailo. He reached to the spot after the incident had occurred and he is not an eyewitness to the incident and prior to this incident they have filed three cases against the accused and their family members. They have also filed four cases under the Atrocities Act against some Patels of the village. 8.6 The prosecution has examined PW8 – Asmitaben Valjibhai Rathod at Exh. They have also filed four cases under the Atrocities Act against some Patels of the village. 8.6 The prosecution has examined PW8 – Asmitaben Valjibhai Rathod at Exh. 42 and the witness has stated that her brother Anil and others were warming themselves on a small bonfire at the village and she was at her house and her brother Mayur came to call him. She and her younger sister Usha went to the place of incident and Anil was lying down. The accused were hurling caste slurs and asking them to leave the village and while she was taking her brother, the accused gave her a kick in the stomach and she fell unconscious. They were taken to Kalawad Hospital and her brother had filed the complaint. During the cross- examination by the learned advocate for the accused, the witness has stated that she does not know the name of the accused and she used to call him uncle. When the police had asked her, she did not give the name of the accused but had named him as uncle and the incident had occurred at around 08.30 pm and she regained consciousness on the next day at about 9 o'clock. She did not inform the Medical Officer any history about the incident. Her father and mother came to the place of incident after the incident had taken place and at that time she was unconscious and she did not tell her parents any facts about the incident. 8.7 The prosecution has examined PW9 – Anilbhai Valjibhai Rathod at Exh. 43 and the witness is the complainant who has supported the facts of the complaint which is produced at Exh. 44. The witness has stated that he along with his friends Yashpal, Narendra, Vijay and Chetan made a small bonfire and were warming themselves and the minor son of the accused came with his cycle and he was injured with the cycle on his leg. The minor son of the accused hurled caste slurs and abuses at him and as the accused came to know about the incident, he came and assaulted him. His sister Asmita came to save him but she too was assaulted. The minor son of the accused hurled caste slurs and abuses at him and as the accused came to know about the incident, he came and assaulted him. His sister Asmita came to save him but she too was assaulted. The accused asked them to leave the village and someone called 108 ambulance and he and his sister Asmita were taken to the Civil Hospital at Kalawad and he filed the complaint which is produced at Exh. 44. During the cross examination by the learned advocate for the accused, the witness has stated that besides the five of them, there were other persons at the place of incident and there are two shops and a flour mill at the place of incident. The two shops are pan shops and the shop owners are known to them. One shop belongs to Balibhai and the other to Bahadurbhai. That when the accused came and assaulted him, none of his four friends who were present there, intervened and before the incident, they have had some quarrels with the accused. 8.8 The prosecution has examined PW10 - Dr. Rohit Popatlal Nakum at Exh. 45 and the witness was working as a Medical Officer and has stated that on 09.10.2010, at around 09.00 pm, Asmitaben Valjibhai and Anilbhai Valjibhai of village Makrani Sanosra were brought to him for treatment. Asmitaben was afraid and had not sustained any injury and on examination there were no visible injuries on her. Anilbhai was also injured in an assault and he had sustained a small bruise over the right foot, a small bruise over left forehead and a bruise over the right cheek adjoining the right ear. The injuries were simple and both the injured had not mentioned anything in the injury except that they were assaulted. Asmitaben was afraid and she did not give any history. The witness has produced the injury certificate of the complainant Anilbhai Valjibhai at Exh. 47 and the injury certificate of Asmitaben Valjibhai at Exh. 48. During the cross-examination by the learned advocate for the accused, the witness has stated that if a person is hit with an uneven surfaced stone, a laceration or a CLW could be sustained. The injuries of Anilbhai were simple and he had no grievous injuries. He was primarily treated and discharged and Asmitaben did not have any injuries on her. During the cross-examination by the learned advocate for the accused, the witness has stated that if a person is hit with an uneven surfaced stone, a laceration or a CLW could be sustained. The injuries of Anilbhai were simple and he had no grievous injuries. He was primarily treated and discharged and Asmitaben did not have any injuries on her. Asmitaben was conscious when she had come to the hospital. 8.9 The prosecution has examined PW11 - Vasantben Valjibhai Mathabhai at Exh. 49 and the witness is the mother of the complainant who has supported the case of the prosecution but she has stated that she was at her house when the incident has occurred and is not an eyewitness to the incident. Her son Mayur came to call her and her daughters Asmita and Usha came to the place of incident before them. 9. On minute appreciation of the entire evidence of the prosecution, as per the case of the prosecution, the complainant was at the place of incident along with PW3 - Yashpal Bhimjibhai Babariya, PW4 - Narendrakumar Khimjibhai, PW5 - Chetankumar Bhikhabhai and PW6 - Vijaybhai Rameshbhai. All the four witnesses were friends of the complainant and were present at the place of incident and eyewitnesses to the incident but none of them have supported the case of the prosecution and they have been declared hostile. PW7 - Valjibhai Nathabhai Rathod and PW11 - Vasanthben Valjibhai Nathabhai are the parents of the complainant and they are not eyewitnesses to the incident and they have reached the place of incident after the incident had occurred. PW8 - Asmitaben Valjibhai Rathod is the sister of the complainant who has reached the place after the incident but she has stated that she was injured and the accused had kicked her in her stomach but in the deposition and evidence produced by PW10 - Dr. Rohit Popatlal Nakum and the medical certificate of Asmitaben produced at Exh. 48, there was no visible injury on her and there is no iota of evidence that she was injured. The only evidence on record is that she was afraid and could not give any history before the Medical Officer. Rohit Popatlal Nakum and the medical certificate of Asmitaben produced at Exh. 48, there was no visible injury on her and there is no iota of evidence that she was injured. The only evidence on record is that she was afraid and could not give any history before the Medical Officer. As per the evidence on record, 50 to 60 persons were at the spot, as the place of incident is a public place and there were two shops which were pan shops but no independent witnesses have been examined before the learned Trial Court. None of the independent eye witnesses have supported the case of the prosecution and both the complainant and his sister Asmitaben have not named the accused before the Medical Officer and have merely stated that they had sustained some assaulted injury. Both the witnesses were known to the accused and as per the evidence of PW7 - Valjibhai Nathabhai Rathod, they have earlier filed complaints against the accused and they have also filed four criminal cases under the Atrocity Act against four Patels of the village. There is no evidence on record to prove beyond reasonable doubts that the incident has occurred and the entire evidence is discussed in detail by the learned Trial Court. 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 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 6 th Additional Sessions Judge, and Special Judge Jamnagar in Special Atrocity Case No.14/2010 on 31.01.2014, is hereby confirmed. 12. 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 6 th Additional Sessions Judge, and Special Judge Jamnagar in Special Atrocity Case No.14/2010 on 31.01.2014, is hereby confirmed. 12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.