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2025 DIGILAW 834 (GUJ)

State Of Gujarat v. Baldevbhai Devsibhai Makwana

2025-08-02

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 passed by the learned Additional Sessions Judge, Ahmedabad (Rural), Viramgam (hereinafter referred to as ‘the learned Appellate Court’) in Criminal Appeal No.3 of 2011 on 30.06.2012, whereby, the learned Appellate Court has quashed and set aside the judgment and order passed by the learned Additional Chief Judicial Magistrate, Viramgam, (hereinafter referred to as ‘the learned Trial Court), in Criminal Case No. 1723 of 2006 on 18.05.2011, whereby, the learned Trial Court convicted and sentenced the respondent - original accused to simple imprisonment of 1 year and fine of Rs.700/-, and in default, simple imprisonment of 7 days for the offence punishable under Section 354 of the INDIAN PENAL CODE (hereinafter referred to as ‘the IPC’). 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 relevant facts leading to filing of the present appeal are as under: 2.1. On 16.09.2006 at around 2:00a.m., the complainant, Savitaben, wife of Baldevbai, was sleeping with her children in front of her house at village Thuleta, and at that time, the accused came and caught the hand of the complainant and told her that he wanted to outrage her modesty and tried to do so. As the complainant shouted, her daughters got up and started shouting and the accused fled from the spot. The complainant filed the complaint at the Viramgam Rural Police Station under Section 354 of the IPC, which came to be registered as Viramgam Rural Police Station I-C.R.No.55 of 2006. 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 charge sheet came to be filed against the accused before the Court of Judicial Magistrate, First Class, Viramgam and came to be registered as Criminal Case No, 1723 of 2006. 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. 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 was framed by the learned Trial Court at Exh.3 and the statement of the accused was 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 examined 07 witnesses and produced 06 documentary evidences in support of the case. 2.4. After the closing pursis was submitted by the learned APP, the further statement of the accused under Section 313 of the Code was recorded wherein the accused denied the evidence on record. 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 dated 18.05.2011, was pleased to convict the accused for the offence under Section 354 of the IPC. 2.5. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the accused preferred Criminal Appeal No.3 of 2011 before the learned Sessions Court, Ahmedabad (Rural), at Viramgam, whereby, the appeal preferred by the accused came to be allowed and the learned Additional Sessions Judge, Ahmedabad (Rural), at Viramgam quashed and set aside the judgment and order dated 18.05.2011 in Criminal Case No. 1723 of 2006 passed by the learned Additional Chief Judicial Magistrate, Viramgam and acquitted the accused from the offence with which he was convicted. 3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court, the appellant – State has filed the present appeal mainly stating that the impugned judgment and order passed by the learned Appellate Court is illegal, arbitrary and without properly appreciating the facts of the case and the materials available on record. The learned Appellate Court has erred in appreciating the evidence and without there being cogent and substantial reasons, acquitted the accused. The learned Appellate Court has erred in appreciating the evidence and without there being cogent and substantial reasons, acquitted the accused. The learned Appellate Court has erred in appreciating the oral as well as the documentary evidences produced by the prosecution in its true spirit and straightway arrived at the conclusion that the prosecution has failed to prove the case beyond reasonable doubts, and therefore, the order of acquittal passed by the learned Appellate Court requires to be quashed and set aside. 4. Heard learned APP Ms.C.M.Shah for the appellant – State and learned advocate Mr.Mousam Yagnik for the respondent - accused. Perused the impugned judgment and order of acquittal passed by the Appellate Court as well as judgment and order of conviction passed by the learned Trial Court and have re-appreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Ms.C.M.Shah for the appellant – State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the learned Appellate Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the case and has successfully proved the case against the accused but the learned Appellate Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by the learned Appellate Court is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by learned Appellate Court 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.Mousam Yagnik for the respondent – original accused has submitted that the learned Appellate 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 Appellate Court and has urged this Court to reject the appeal. 7. Therefore, no interference of this Court is required in the impugned judgment and the order of acquittal passed by the learned Appellate Court and has urged this Court to reject the appeal. 7. As per the settled principles of law in acquittal appeal, the evidence of the prosecution on record is re-appreciated and PW-1, Savitaben Baldevbhai Harijan, examined at Exh.8, is the complainant and she has narrated the facts of the complaint, which is produced at Exh.9. As per the say of the complainant, she was sleeping in the bed with her two daughters, and at that time, the accused came and caught her wrist and the incident has occurred. Her niece, Hiralben Nanjibhai, was also sleeping nearby, and as her daughters and her niece got up and her mother-in-law and father-in-law came, the accused fled from the spot. In the cross- examination by the learned advocate for the accused, the complainant has stated that when the accused had caught hold of her hand, the light was switched on and as her daughters got up, he ran away. She had informed her mother-in-law and father-in- law about the incident and her husband was not at home and she telephoned her husband and called him. 7.1 PW-6, Hiralben Nanjibhai, examined at Exh.23, is the niece of the complainant, and she has supported the case of the prosecution and has stated that when the accused came and caught hold of the hand of her auntie, she shouted, but nobody came and she caught him, but he ran away. During the cross- examination, the witness has stated that she could not sleep and was awake and at the time of the incident, it was winter. 7.2. PW-3, Roopabhai Dudabhai, examined at Exh.19, is the father-in-law of the complainant and he has stated that the complainant and her daughters were at their house which is at a distance of two to four houses away from their house and at around 12.30 midnight, he heard the children shouting, he and his wife Kadviben came and the complainant informed them about the incident. During the cross-examination, the witness has admitted that he has weak eyes and he resides at a distance away from the house of the complainant. 7.3 PW-4, Kadviben Roopabhai, examined at Exh.20, is the mother-in-law of the complainant and she has not supported the case of the prosecution and has been declared hostile. During the cross-examination, the witness has admitted that he has weak eyes and he resides at a distance away from the house of the complainant. 7.3 PW-4, Kadviben Roopabhai, examined at Exh.20, is the mother-in-law of the complainant and she has not supported the case of the prosecution and has been declared hostile. 7.4 PW-2 Kalusha Mahammadsha, examined at Exh.17 and PW-5, Amrutbhai Dhirubhai, examined at Exh.21, are the panch witnesses of the panchnama of the place of offence, which is produced at Exh.18. Both the witnesses have not supported the case of the prosecution and have been declared hostile. 7.5. PW-7, Poonamji Chaturji, examined at Exh.25, is the Investigating Officer, who has narrated the procedure undertaken by him during investigation. 8. On minute appreciation of the entire evidence of the prosecution, as per the case of the complainant, the incident has occurred at 2:00am, but father-in-law of the complainant, PW-3, Roopabhai Dhulabhai, has stated that the incident has occurred at 12.30. There are no independent eyewitnesses to the incident, and the sole eyewitness, PW-6 Hiralben Nanjibhai, has narrated a different story from the complainant, and she has stated that they caught hold of the accused, but he fled from the spot. The complainant has stated that her father-in-law, PW-3, Roopabhai Dhulabhai and mother- in-law, PW-4, Kadviben Roopabhai, were the eyewitnesses to the incident, but PW-4, Kadviben Roopabhai, has not supported the case of the prosecution and has been declared hostile. The complainant has stated that her husband was out and when he came, they went to file the complaint, but it appears that the father-in-law and mother-in-law of the complainant were present, but no efforts to file the complaint have been made by the complainant. Moreover, the complaint has been filed after a delay of six days, and no reasons for delay in filing of the complaint have been mentioned by the complainant. If the entire evidence is minutely appreciated, there are major contradictions in the deposition of all the witnesses. The learned Sessions Court has appreciated the entire evidence in detail, and the learned Appellate Court has passed the impugned judgment order, which is just and proper. 9. In view of the above, the learned Appellate 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. 9. In view of the above, the learned Appellate 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 Appellate Court has appreciated all the evidence and this Court is of the considered opinion that the learned Appellate Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the learned Appellate Court are absolutely just and proper and no illegality or infirmity has been committed by the learned Appellate Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Appellate Court. This Court finds no reason to interfere with the impugned judgment and order passed by the learned Appellate Court and the present appeal is devoid of merits and resultantly, the same is dismissed. 10. The impugned judgment and the order passed by the learned Additional Sessions Judge, Ahmedabad (Rural), Viramgam in Criminal Appeal No.3 of 2011 on 30.06.2012 is hereby confirmed. 11. Bail bond stands cancelled. Record and proceedings be sent back to the learned Appellate Court forthwith.