Gujarat High Court
The State Of Gujarat vs Mahammadzahir Asagarali Saiyed on 21 April, 2025
NEUTRAL CITATION
R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 493 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
No
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THE STATE OF GUJARAT
Versus
MAHAMMADZAHIR ASAGARALI SAIYED & ORS.
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Appearance:
MS.JIRGA JHAVEI, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No.
1,2,3,4
MR.RAJESH B SONI(2632) for the Opponent(s)/Respondent(s) No. 2,4
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 21/04/2025
ORAL JUDGMENT
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 Special Judge, (Special) (hereinafter referred to as "the learned Trial Court") in Special (ATRO) Case No. 31 of 2006 on 28.12.2006, whereby, the learned Trial Court has acquitted the respondent Nos. 1 to 4 for the offence for the offence punishable under Sections 143, 147, 149, 332, 323, 504 and Page 1 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined 506(2) of the Indian Penal Code, 1860 (IPC) and Under Sections 3 (1) (10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act, 1985. (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 brief facts that emerge from the record of the case are as under:
2.1] On 28-01-2006, at around 10:00 a.m., all the accused formed an unlawful assembly at Primary School No. 3, near Mahesana Police Headquarters, Mahesana and while the complainant Shantaben Motibhai Rana, was doing her work as a public servant, the accused obstructed her from doing her work and came into her office. The accused No. 3 caught hold of the plait of the complainant and the accused, No. 4 slapped her on her left cheek and all the accused abused the complainant and threatened to kill her and committed the offence under Sections 143, 147, 332, 323, 504, 506(2), 451, 149 of the I.P.C., and Section 3 (1)(10) of the Atrocities Act. The complainant filed the complaint at the Mahesana City Police Station, which was registered at I-C.R.No. 36 of 2006.
2.2] The Investigating Officer recorded the statements of the
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NEUTRAL CITATION
R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025
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connected witnesses and collected the necessary documents and after completion of investigation the police filed the chargesheet against the accused before the Court of Chief Judicial Magistrate, Mahesana and as the said offences against the accused were 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 the case was registered Sessios Case No. 31 of 2006. 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 Exhs. 4 to 7, 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 nine oral evidences and five documentary evidences to bring home the charge against the accused and after the learned Additional Public Prosecutor filed the closing pursis at Exh.27, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded, wherein, the accused Page 3 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined 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 stated 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. 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 respondent. The case has been proved beyond reasonable doubts and the prosecution has successfully established the case against the respondent. 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.
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4. Heard learned APP Ms. Jirga Jhaveri for the appellant State and Mr. Rajesh B. Soni for the respondents-accused. 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. Jirga Jhaveri has taken this Court through the entire evidence of the prosecution on record of the case and has 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, which is corroborated by the deposition of the medical officer 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 respondents- original accused submits that the judgment and order has been passed after appreciation of all the evidence and the learned Trial Court has Page 5 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined 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 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 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". (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 Page 6 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined 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 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 appre- ciation, 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 of the above settled principles of law, the evidence on record of the case is appreciated and the prosecution has examined the Page 7 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined Prosecution Witness No. 1 Parbatji Maganji Thakor at Exhibit 12 and Prosecution Witness No. 2, Bharatkumar Harjivanbhai Makwana at Exhibit 13. Both the witnesses are the panch witnesses of the panchnama of the place of offence, which is produced at Exhibit 26. Both the witnesses have stated that they were called to the Primary School No. 3 and were asked to affix their signatures and the panchnama was ready when they had gone and only on the say of the police, they had affixed their signatures. The witnesses have not supported the case of the prosecution and 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.
9.1] The prosecution has examined Prosecution Witness No. 3 Shantaben Motibhai Rana at Exhibit 14 and the witness is the complainant, who has stated that. On 28.01.2006, she was working as a Principal of the Primary School No. 3 and at the time of the incident, she was in her office. At that time, a student of Class VII, came and told her that one boy had come to the top floor and was abusing the girls and she went up and the class teacher Krishnaben Nayak was present. She asked her about the incident and one boy named Zaheer Ali Asghar Ali was present. She explained to him and told the boy that if he had any work, he should come to her office, and he should not go to the top floor of the Page 8 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined school. The boy abused the girls and told her that the girls were making gestures to him and hence he had come up. The boy went away and after some time, five to six persons, including the mother of the boy and others came and while she was in her office, they into her office and one of the ladies caught her, and the other slapped her. That at that time, the other teachers including Pushpaben Bhavsar came and other labor workers who were working outside, came into the office and told the accused to leave. The accused were abusing her and at that time, Policeman - Narendrabhai and Bhagwatiben - Police Constable were outside and they took the accused away. She had filed the complaint, which is produced at Exhibit 15 and she has produced her caste certificate at Exhibit 16.
During the cross-examination by the learned advocate for the accused, the witness has stated that she did not know the accused at the time of the incident, and the incident went on for about 10 minutes. That there was a time gap of about half an hour between the time that the boy came into the school and the accused came and thereafter, she went to the DSP office to give the complaint, and at that time, the DSP was present. The two teachers were present for the school in the afternoon shift and in the complaint, she has stated that Pushpaben and Joytabhai had come from their classes. She was not slapped while she was bringing Page 9 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined the boy down and she had caught the boy's hand and brought him down. The incident had occurred in her chamber and at the time of the incident, the students of Class 1 and Class 6 were down. She did not know the names of the accused till she had filed the complaint and at the time of the incident, and all the accused were residing in the police headquarters. 9.2] The prosecution has examined Prosecution Witness No. 4 Pushpaben Mafatlal Bhavsar at Exhibit 17 and the witness has stated that on 28th January 2006, she was working as a teacher in Mehsana Primary School No. 3. Her timings for the school were the afternoon shift but as she had some work of the rojmel, she had come early to the school, and at that time, two ladies and about six to seven boys came into the school office. The complainant was also doing some writing work, and one of the ladies slapped the complainant. That there was a verbal altercation between the complainant and the persons, who had come, and they were abusing her, but she does not know them. That she does not know what was the altercation about and another teacher Joytabhai was with her. That they all removed the persons from the office, and besides this, she does not have any knowledge about any other thing.
During the cross-examination by the learned advocate for the accused, the witness has stated that at the time of the incident, she was Page 10 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined the class teacher of Class 2, and she had the afternoon shift on the date of the incident. That she had come earlier to the school on the date of the incident and she had not come for the work of the electoral roll. That she did not know any of the accused at the time of the incident. 9.3] The prosecution has examined Prosecution Witness No. 5 Joytaram Maganlal at Exhibit 18 and the witness was working as a teacher in the school and on the date of incident. The witness has stated that on 28th January 2006, he was on duty for the afternoon shift, but he had come to school early and the complainant was the Principal and working in her office, and at that time about 8 persons came, and the accused No.3 caught the plait of the complainant and the accused No. 4 slapped the complainant on her left cheek. That he told all the persons to go outside of the office and he later on came to know that the incident was regarding the molestation of a student of Class VII.
During the cross-examination by the learned advocate for the accused, the witness has stated that the police did not come into the school compound at the time of the incident and the complainant had come out of her office and come into the compound to inform the superior officer about the incident. That he and Pushpaben Bhavsar had gone along with the complainant to the DSP office, where the Page 11 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined complainant Shantaben told the DSP that she did not want to give a complaint but he has no knowledge about the same.That no item in the office was broken at the time of the incident, and the staff persons came and explained to the persons who had come and removed them from the office. That the school is situated on a public road and a number of persons had collected there.
9.4] The prosecution has examined Prosecution Witness No. 6 Narendrasinh Balwantsinh, Buckle No. 677 at Exhibit 19 and the witness has stated that on 28th June 2006, he was on duty at the Police Headquarter, where a new temple was being constructed and there was a hue and cry near the school at around 10.30 am. He and Woman Police Constable Bhagwatiben had gone tothe place and the accused were abusing the Principal of the Primary School. He took the accused to City Police Station and handed them over to Police Inspector Yagnik Saheb.
During the cross-examination by the learned advocate for the accused, the witness has stated that there were a number of persons outside of the school compound and the accused were also standing outside the school compound. They did not go into the school compound, and he had handed over the accused to Police Inspector Yagnik. He does not know if any incident had taken place in the school Page 12 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined office and the school is situated on a public road, and at that time 150 to 200 persons had gathered there. Immediately after he had arrested the accused, Police Inspector Yagnik had come there and Police Inspector Yagnik had taken the accused in his jeep but he does not know where he had taken them. He had caught the persons whom the complainant had identified.
9.5] The prosecution has examined Prosecution Witness No. 7 Ashaben Narsinhbhai Bhangi at Exhibit 20 and the witness has stated that on 28th January, 2006, she was studying in standard 7 of the school. That one boy was looking at her and she asked him why he was looking at her and he came into the school and threatened her. She went and told the Principal and her friend Falguni also came and the Principal shouted at him and took him down. There was a hue and cry down and she does not know any other thing.
During the cross-examination by the learned advocate for the accused, the witness has stated that she did not know the boy before the incident and she did not have any relations of talking to him. 9.6] The prosecution has examined Prosecution Witness No. 8 Heenabanu Mehboobbhai Sheikh at Exhibit 21 and the witness was also studying in standard 7 in the school. On the date of the incident, the Page 13 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined witness has stated that her friend was being threatened by the boy and her friend had gone to tell the Principal and the Principal came and shouted at the boy and took him away. That she does not know what had happened thereafter.
During the cross-examination by the learned advocate for the accused, the witness has stated that the boy was looking at them from down and hence they asked him why he was looking at them and she did not tell the police that the boy had threatened them. 9.7] The prosecution has examined Prosecution Witness No. 9 Rajendrabhai Bhanuprasad Yagnik at Exhibit 23 and the witness was working as a PSI, Mehsana City Police Station on 28th January 2006. The witness has stated that he had received information that there was a fight and he immediately went to the primary school, and the complainant Shantaben Motibhai Rana had recorded her complaint, which he had taken down, and at that time the accused were present at the place and he had caught them.
During the cross-examination by the learned advocate for the accused, the witness has stated that he does not know where the complainant had written the complaint from, and he was at the school for about 15 to 20 minutes. The PSO had informed him about the incident at Page 14 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined the primary school and he does not know whether the DSP was present at the DSP office. That he had taken his government vehicle and gone to the primary school.
9.8] The prosecution has examined Prosecution Witness No. 10 Mayanksinh Ajitsinh Chavda at Exhibit 25 and the witness is the Investigating Officer, who has narrated in detail the procedure undertaken by him during investigation.
During the cross-examination by the learned advocate for the accused, the witness has stated that the complainant had stated that caste abuses were used towards her but witness Pushpaben did not support the say of the complainant. That he had recorded the statements of the witnesses and he had gone to the place of incident immediately at 12.35 hours.
10] On minute appreciation of the entire evidence of the prosecution, it is the case of the complainant that the accused abused her and used caste slurs but none of the witnesses have stated what abusive words or what caste slurs were used by the accused. There are a number of contradictions with regard to the number of persons that were present in the office of the complainant on the date of the incident. Admittedly, there are two incidents, the first one which occurred on the top floor, Page 15 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined where the accused No. 1was abusing the girls and the second had occurred in the office after half an hour. There are major contradictions with regard to the arrival of Prosecution Witness No. 6 Narendrasinh Balwantsinh, who had gone to the school and the witness has stated that the place of incident and the accused were outside of the gate of the school. The second incident as narrated by the complainant has occurred in her office, which is not a public place and the complainant has named Prosecution Witness No. 4 Pushpaben Mafatlal Bhavsar and Prosecution Witness No. 5 Joytaram Maganlal as eyewitnesses to the incident but both the witnesses have not fully supported the case of the prosecution and have clearly stated that they could not identify the accused as they were not known to them from the beginning. As per the case of the prosecution, many persons had gathered but no independent witnesses have been examined by the prosecution and the presence of Prosecution Witness No. 4 Pushpaben Mafatlal Bhavsar and Prosecution Witness No. 5 Joytaram Maganlal is also doubtful as both of them have stated that they were in the afternoon session of the school. The complainant has categorically stated that she does not remember the abusive words used by the accused and all the witnesses have stated that they were not known to the accused. There is no consistency with regard to the chronology of the incident or with regard to the actual occurrence of the Page 16 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined incident and Prosecution Witness No. 9 Police Inspector Rajendrakumar Bhanuprasad Yagnik has stated that he has taken the complaint at the school, whereas, the complainant, Shantaben Motibhai Rana has stated that the complaint was taken down at the DSP office. The entire evidence is discussed by the learned Trial court and the offence has not been proved beyond reasonable doubts.
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 extending benefit of doubt and acquitting the accused of the charges leveled against him. 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 extending benefit of doubt and 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 Page 17 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 22:22:53 IST 2025 NEUTRAL CITATION R/CR.A/493/2007 JUDGMENT DATED: 21/04/2025 undefined resultantly, the same is dismissed.
12] The impugned judgement and order of acquittal passed by the learned Special Judge, (Special) in Special (ATRO) Case No. 31 of 2006 on 28.12.2006, is hereby confirmed.
13] Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
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