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Gujarat High Court · body

2025 DIGILAW 912 (GUJ)

State Of Gujarat v. Nathu Bhimji Rabari

2025-08-21

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 3rd Additional Special Judge (Atrocity), District Kutch @ Bhuj (hereinafter referred to as ‘the learned Trial Court’) in Special Case (Atrocity) No.08 of 2015 on 28.04.2016, whereby, the learned Trial Court has acquitted the respondents – accused from the offences punishable under Sections 323 , 504, and 114 of the INDIAN PENAL CODE (hereinafter referred to as ‘the IPC’) and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the Atrocities Act’). 1.1. 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 26-09-2014, the complainant, Hirbai, wife of Nanjibhai Karamshibhai Garwa, a resident of village Mota Angiya, Taluka Nakhatrana, District Kutch, was sitting at the bus stand of village Mota Angiya, waiting for her daughter, Vasantaben, who had gone to Mata Na Madh for darshan, and at that time, the accused came and hurled caste slurs against the complainant and kicked her in her stomach. The complainant, Hirbai, wife of Nanjibhai Karamshibhai Garwa, filed the complaint at the Nakhatrana Police Station under sections 323, 504, 114 of the IPC and Section 3(1)(x) of the Atrocity Act, which came to be registered at Nakhatrana Police Station, II-C.R.No.74 of 2014. 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 (Atrocity) No.08 of 2015. 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. 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 was framed by the learned Trial Court at Exh.3 and the statement of the accused was recorded at Exh.4 and Exh.5 respectively, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution examined 10 witnesses and produced 09 documentary evidences in support of the case. 2.4. After the closing pursis was submitted by the learned APP at Exh.30, 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, acquitted the accused. 3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the appellant – State has filed the present appeal mainly stating that the impugned judgment and order passed by the learned Trial Court is contrary to law, evidence on record and principles of justice. The learned Trial Court has not considered the direct or indirect evidence produced in this case connecting the accused with the crime and has also not appreciated the oral as well as documentary evidence on record and has straightway arrived at the conclusion that the prosecution has failed to prove the case beyond reasonable doubts. The learned Trial Court has erred in considering minor omissions and contradictions in the evidence of the prosecution and the learned Trial Court has given much weightage to these minor omissions and contradictions. That the reasons given by the learned Trial Court appreciating the evidence and while acquitting the accused, are not proper and are perverse and bad in law, and hence, the impugned judgment and order deserves to be quashed and set aside. 4. Heard learned APP Ms.C.M.Shah for the appellant – State and learned advocate Sanjivkumar T. Patel for the respondent Nos.1 and 2. Though served, the respondent no. 3 – original complainant has not appeared either in person or through an advocate. 4. Heard learned APP Ms.C.M.Shah for the appellant – State and learned advocate Sanjivkumar T. Patel for the respondent Nos.1 and 2. Though served, the respondent no. 3 – original complainant has 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.C.M.Shah for the appellant – State has taken this Court through the entire evidence produced by the prosecution and have vehemently argued that the learned Trial 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 Trial Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by the learned Judge is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by learned 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 learned advocate Mr.Sanjivkumar T. Patel the respondents – original accused has submitted that the learned Trial Court has appreciated all the evidence in true per- spective and has not committed any error in acquitting the ac- cused. 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. 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 learned 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. 8. In light of the above, the evidence produced by the prosecution on record is appreciated and the prosecution has examined PW-1 Dr. Rajiv Radharam Mallik at Exh.7. The witness is the Medical Officer, who has produced the medical certificate of the complainant, Hirbai Nanjibhai Garwa, at Exh.8. The witness has stated that on 26.09.2014, while he was on duty at Community Health Center in Nakhatrana, at around 6.50p.m., a patient named Hirbai Nanjibhai Garwa came for treatment, and in the history, she had stated that she was assaulted by Nathabai with fists in her stomach. On examination, she did not have any external injuries and she was referred to G.K. General Hospital, Bhuj. During the cross-examination, the witness has stated that he has not described the injuries in the certificate produced at Exh.8 and only on the basis of her complaint of pain, she was referred to G.K.General Hospital, Bhuj. 8.1. PW-2 Dr. Thakarshi Khatau Bhanushali, examined at Exh.9, is the Medical Officer, who was on duty at G.K.General Hospital, Bhuj, and he has produced the medical certificate of the complainant, Hirbai Nanjibhai Garwa, at Exh.10. The witness has stated that when the patient came with complaint of abdominal pain, Ultra Sonography Test was done, but no abnormality was detected and she did not have any external injuries. 8.2. The witness has stated that when the patient came with complaint of abdominal pain, Ultra Sonography Test was done, but no abnormality was detected and she did not have any external injuries. 8.2. PW-3, Hirbai Nanjibhai Garwa, examined at Exh.11, is the complainant, who has supported the contents of a complaint, which is produced at Exh.12. During the cross- examination by the learned advocate for the accused, the witness has stated that the bus station is on the Bhuj-Nakhatrana Highway and the temple of Lord Shiva is nearby and the pujari is at the temple during the day. There are tea-stalls and a street of persons of the Muslim Community nearby. The road has constant traffic, and at the time of the incident, there were many people sitting at the hotel. She had gone to the hospital in a Chhakda. 8.3. PW-4, Nanjibhai Karamshibhai Garwa, examined at Exh.13, is the husband of the complainant and he has supported the case of the prosecution, but during the cross-examination by the learned advocate for the accused, he has stated that he was at his home at the time of the incident and he has no personal knowledge about the incident. 8.4. PW-5, Shantilal Nanjibhaibhai Garwa, examined at Exh.14 and PW-6, Maniben Shantilal Garwa, examined at Exh.15, are the son and daughter-in-law of the complainant, who, both have supported the case of the prosecution, but both of them are hearsay witnesses and have admitted that they were at their house at the time of the incident and they have no personal knowledge about the incident. 8.5. PW-7, Kailashbhai Nagjibhai Chaudhury, examined at Exh.16, was working as the clerk at the Mamlatdar office and he has produced the caste certificate of the complainant at Exh.17. During the cross-examination by the learned advocate for the accused, the witness has stated that he does not know on what basis was the caste certificate given. On perusal of the caste certificate of the complainant, it is dated 30.09.2014, that is, after the complaint was filed on 26.09.2014. 8.6. PW-8, Govindbhai Sehbabhai Chaudhury, examined at Exh.18, was the PSO, who has registered the complaint. 8.7. PW-9 Karshanbhai Valjibhai Dafda, examined at Exh.19, was working as a P.S.I. at the Nakhatrana Police Station and he has recorded the complaint of the complainant. 8.8. 8.6. PW-8, Govindbhai Sehbabhai Chaudhury, examined at Exh.18, was the PSO, who has registered the complaint. 8.7. PW-9 Karshanbhai Valjibhai Dafda, examined at Exh.19, was working as a P.S.I. at the Nakhatrana Police Station and he has recorded the complaint of the complainant. 8.8. PW-10, Becharbhai Raichandbhai Patel, examined at Exh.24, 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 Janvajog Entry No.187 of 2014 was filed and as per the Janvajog Entry, the incident has occurred at the house of the complainant and not at the bus stand. The witness has recorded the statement of Mithubhai Ashabhai and he has stated that he did not intervene or separate the people and he had not witnessed the quarrel. 9. On minute appreciation of the entire evidence of the prosecution, as per the say of the complainant, the incident has occurred at the bus stand and there were tea-stalls, a temple and a hotel and many persons were present there but no eye- witnesses have been examined by the prosecution. PW-4, Nanjibhai Karamshibhai Garwa, PW-5, Shantilal Nanjibhaibhai Garwa and PW-6, Maniben Shantilal Garwa are the husband, son and daughter-in-law of the complainant, but they are not eye- witnesses to the incident and the incident has occurred on 26.09.2014, whereas, the Caste Certificate which is produced at Exh.17 is dated 30.09.2014 i.e. after the date of complaint. There are major contradictions in the evidence of the witnesses and as per the complainant, one Mithubhai Rabari was an eyewitness but the Investigating Officer has stated that he had recorded the statement of the said Mithubhai Rabari, but in the statement, he has stated that he was not an eyewitness to the incident. The said Mithubhai Rabari has not been examined as a witness before the learned Trial Court. 10. In view of the above, 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 judgment and the order passed by the learned 3rd Additional Special Judge (Atrocity), District Kutch @ Bhuj in Special Case (Atrocity) No.08 of 2015 on 28.04.2016 is hereby confirmed. 12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.