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Gujarat High Court · body

2025 DIGILAW 952 (GUJ)

State of Gujarat v. Dhanjibhai Haribhai Desai

2025-09-01

S.V.PINTO

body2025
JUDGMENT : S.V. PINTO, J. 1. The appeal is filed by the appellant State under Section 378 of the Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed by the learned 5th Additional Sessions Judge, Banaskantha at Deesa (hereinafter referred to as “the learned Trial Court”) in Special Case No. 44/2010 on 20.11.2013, whereby, the learned Trial Court has acquitted the respondent for the offence punishable under Sections 323 , 504 and 506(2) of Indian Penal Code, 1860 , Section 135 of the BP Act and Sections 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 The accused was the Talati Cum Mantri of Abloon Gram Panchayat, Taluka Kakrej, District Banaskatha and Lakshmiben Virambhai Parmar - the mother of the complainant Jeevanbhai Virambhai Parmar was the Sarpanch of Abloon Gram Panchayat. On 15.09.2009, at around 10.00 am, the accused had called for a meeting regarding the RCC Road of the village and the accused had come to drop his mother for the meeting and on seeing the complainant, the accused got agitated and started abusing the complainant. The complainant told the accused that he had come to drop his mother and the accused took a stick and assaulted the complainant on the fingers and thumb of his left hand and on his left shoulder and threatened to kill the complainant and also hurled caste slurs against him. The complainant - Jeevanbhai Virambhai Parmar filed a complaint at the Shihori Police Station under Section s 323 , 504, 506(2) of the Indian Penal Code, 1860 , Section 135 of the BP Act and Section 3(1)(10) of the Atrocities Act which came to be registered at Shihori Police Station - I C.R. No. 3082 of 2009. The complainant - Jeevanbhai Virambhai Parmar filed a complaint at the Shihori Police Station under Section s 323 , 504, 506(2) of the Indian Penal Code, 1860 , Section 135 of the BP Act and Section 3(1)(10) of the Atrocities Act which came to be registered at Shihori Police Station - I C.R. No. 3082 of 2009. 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, Shihori 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 as per the provisions of Section 209 of Code of Criminal Procedure and the case was registered as Special Case No. 44/2010. 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. 5 was framed against the accused and the statement of the accused was recorded at Exh. 6 wherein, the accused denied the contents of the charge and the entire evidence of the prosecution was taken on record. 2.4 The prosecution examined 11 witnesses and produced 11 documentary evidences on record in support of his case and after the learned Additional Public Prosecutor filed the closing pursis, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. 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 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 respondent. The case has been proved beyond reasonable doubt and the prosecution has successfully established the case against the respondent 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. C.M. Shah for the appellant State, learned advocate Mr. Pankaj Chaudhary for the respondent no. 1 and learned advocate Mr. Pathik Acharya for the respondent no. 2. 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. C.M. Shah with learned advocate Mr. Pathik Acharya have jointly 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. 5.1 Learned advocate Mr. Pankaj Chaudhary for the respondent no. 1 has submitted that the learned Trial Court has appreciated the evidence and passed the impugned judgement and order and no interference is required hence, the appeal may be rejected. 6. 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. 7. To prove the offence against the accused, the prosecution has in all examined eleven witnesses. PW1 – Hargovindbhai Maljibhai Desai examined at Exh. 6 and PW2 – Mulchandbhai Harising Dabhi examined at Exh. 7. To prove the offence against the accused, the prosecution has in all examined eleven witnesses. PW1 – Hargovindbhai Maljibhai Desai examined at Exh. 6 and PW2 – Mulchandbhai Harising Dabhi examined at Exh. 8 are the panch witnesses of the arrest panchnama which is produced at Exh. 7. Both the witnesses have not supported the case of the prosecution and have been declared hostile. 7.1 PW3 – Khengarbhai Mafabhai Valmiki examined at Exh. 11 and PW4 – Vaktabhai Kanjibhai Valmiki examined at Exh. 13 are the panch witnesses of the arrest panchnama produced at Exh. 12. Both the witnesses have supported the case of the prosecution, but during the cross-examination have admitted that they had merely affixed their signatures on a ready panchnama and besides identification of their signature, they have no knowledge of any other aspect. 7.2 PW5 – Jivanbhai Virmabhai Parmar examined at Exh. 17 is the complainant who has narrated the facts stated in his complaint which is produced at Exh. 18. During the cross-examination by the learned advocate for the accused, the witness has stated that at the time of the incident when he went to the office, Kasturji and Khemabhai, Shardaben Kasturji, Deputy Sarpanch - Tinuben Chhagaji, Member - Sohani Roopsingji, Keshaji Darjanji and others were present and in all around 15 to 20 persons were present. He did not inform the police about the presence of the others and he did not know what was the meeting called for. The accused had informed him that the meeting was regarding the RCC Road and it was called to close down the work of the RCC Road. The people of the village did not like the road which was up to the cremation ground and at the time of the incident, he was in the panchayat room with around ten persons. One Pashabhai Umedbhai Harijan was also present who was a member and Deputy Sarpanch Shardaben Kasturji was also present. After going from the Panchayat Office, he went home and waited for about half an hour at home and did not go to the Police Station but went to one Prakashbhai Joshi to get the application typed. He told Prakashbhai Joshi that he wanted to file an application under the Atrocity Act and he did not go to the Police Station earlier. He told Prakashbhai Joshi that he wanted to file an application under the Atrocity Act and he did not go to the Police Station earlier. He was the President of the Dalit Adhikar Sangh and was responsible for any issue about any Dalit. He was the President for the past year and in the complaint, he did not state that the accused had assaulted him with a stick on his head and on his fingers. 7.3 PW6 – Parvatiben w/o Jivanbhai Virmabhai Parmar examined at Exh. 19 is the wife of the complainant but she is not an eyewitness to the incident and she came to know about the incident from her husband. 7.4 PW7 – Laxmiben w/o Virmabhai Ranabhai Parmar examined at Exh. 20 is the mother of the complainant and she has stated that on the day of the incident, there were about 25 persons present and the accused had abused her son and she had told them that her son had come to drop her and they asked him to leave. The accused assaulted her son with fists and hurled caste slurs and told him to leave the office or he would kill him and thereafter assaulted him with a stick on his head and back. Shardaben and Kasturji intervened and saved them. During the cross-examination, the witness has admitted that she does not know the amount of grant received for the road and she had not affixed her signature on any application regarding the road. Dineshbhai - the son of Pashabhai was also present and she does not know who had locked the Panchayat Office. They had gone to Sihori and had gone to Thara for treatment and thereafter to Sihori but they did not inform the doctor at Thara that there was a quarrel. She does not know how did her son filed the complaint and they did not go to any place besides the Police Station at Thara. At the time of the incident, around 25 persons were in the office of the Gram Panchayat. 7.5 PW8 – Khemabhai Valabhai Parmar examined at Exh.21 is an eyewitness to the incident who has supported the case of the prosecution. During the cross-examination by the learned advocate for the accused, the witness has stated that there were many persons in the Gram Panchayat and the complainant is his brother. 7.5 PW8 – Khemabhai Valabhai Parmar examined at Exh.21 is an eyewitness to the incident who has supported the case of the prosecution. During the cross-examination by the learned advocate for the accused, the witness has stated that there were many persons in the Gram Panchayat and the complainant is his brother. Dhanjibhai Jeevanbhai and his mother - Kasturji Karsanbhai and others were present and every person has a stick in their house as was shown to him. 7.6 PW9 – Piyushbhai Amrutlal Modi examined at Exh. 22 is the Medical Officer who was on duty at the Primary Health Centre, Sihori on 15.09.2009. The witness has stated that he had examined Jeevanbhai Virambhai Parmar and found that there was contusion about 1 cm x 1 cm on the left shoulder and tenderness at the left index finger which could be caused by a hard and blunt substance and the recovery would be within seven to ten days if no complication arose. The witness has produced the medical certificate at Exh. 24. During the cross-examination, the witness has stated that in the history, the patient did not name any person as the assaulter and in the medical certificate, he has not mentioned the colour of the bruise. The injury could be self-inflicted and the injury no. 2 i.e. tenderness at left index finger could be imaginary. 7.7 PW10 – Manilal Mohanlal ASI, Buckle No. 1031 examined at Exh. 25 was working at the PSO at Sihori Police Station and he has registered the complaint. 7.8 PW11 – Zalabhai Manjibhai Varsat examined at Exh. 29 is the Investigating Officer who has narrated in detail the procedure undertaken by him during investigation. During the cross-examination, the witness has stated that surrounding the Panchayat Office, there are other residential houses and there is the road towards Gangapur in the north side which is teeming with people using the road. When he had inquired from the complainant, he had stated that there were five to seven persons present in the office at the time of the incident and the complainant had stated that he had a quarrel with the Dineshbhai and he has not recorded the statement of any Dineshbhai during investigation. When he had inquired from the complainant, he had stated that there were five to seven persons present in the office at the time of the incident and the complainant had stated that he had a quarrel with the Dineshbhai and he has not recorded the statement of any Dineshbhai during investigation. The complainant had named Khemabhai Valabhai in the complaint but he had not recorded the statement of Khemabhai Valabhai and during investigation, it was found that there was a quarrel between the complainant and one Dineshbhai but he did not inquire about the same. The witness has produced a letter of the accused sent to the Taluka Development Officer, Taluka Panchayat Office at Shihori dated 15.09.2009, wherein, he has stated that while the meeting regarding the RCC Road was going on, the complainant i.e. Jeevanbhai Parmar - the son of the Sarpanch Lakshmiben Virambhai came into the meeting and started abusing the members and there was a dispute, and the complainant i.e. the son of the Sarpanch threatened to file a complaint of dacoity against him but he came out of the office and thereafter, the Sarpanch and her son threatened to file a case under the Atrocity Act against him and the report was sent for information to the Taluka Development Officer. The witness has also produced the caste certificate of the complainant at Exh. 32 and the notification under Section 37(1) of the Bombay Police Act of the Additional District Magistrate, Banaskantha at Exh. 33. 8. On minute appreciation of the entire evidence of the prosecution as per the complainant, the incident has occurred in the office of the Abloon Gram Panchayat when the meeting regarding the RCC Road was going on. The complainant has himself stated that his mother - Lakshmiben Virambhai Parmar was the Sarpanch and he had gone to the office to drop his mother for the meeting but it appears that he was inside the office when the meeting was going on and he was asked to leave the meeting as he was not a member of the Gram Panchayat and the incident has occurred. The Investigating Officer - PW11 - Zalabhai Manjibhai Varsad has stated that during investigation it was found that there was a quarrel between Dinesh Parshottambhai and the complainant, and the presence of Dinesh Parshottambhai has also emerged in the evidence of the complainant and his mother PW7 - Lakshmiben Virambhai and it appears that as the accused intervened as he was the Talati Cum Mantri and had called the meeting and had thereafter stopped the meeting, the complainant and his mother the Sarpanch Lakshmiben Virambhai had threatened to file a case under the Atrocity Act against the accused. During the evidence it has also emerged that there were the other members present but none of the members have been examined as a witness and Dinesh Parshottambhai has not been examined as a witness by the prosecution. In the complaint the complainant has also stated that Kasturji Tarsangji Chauhan was present and he intervened and saved him but the said Kasturji Tarsangji Chauhan has not been examined by the prosecution. The complainant has not named PW8 - Khemabhai Valabhai as a witness and he has been examined and he has stated that he is the brother of the complainant. The prosecution has not examined any independent witnesses even though they were present in the office of the Gram Panchayat and the document produced by the Investigating Officer at Exh. 31 has been written on the same day by the accused to the Taluka Development Officer giving a report about the incident. 9. In view of the settled position of law, 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. 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. 10. The impugned judgement and order of acquittal passed by the learned 5th Additional Sessions Judge, Banaskantha at Deesa in Special Case No. 44/2010 on 20.11.2013, is hereby confirmed. 11. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.