Gujarat High Court
State Of Gujarat vs Isubha Bapubha Zala on 22 April, 2025
NEUTRAL CITATION
R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1038 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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STATE OF GUJARAT
Versus
ISUBHA BAPUBHA ZALA & ANR.
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1,2
MR PARTHIV A BHATT(5331) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 22/04/2025
ORAL JUDGMENT
1. The 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 Second Additional Sessions Judge and Special Judge, Dhrangadhra (hereinafter referred to as "the learned Trial Court") in Special Case No. 8/2010 on 16.04.2012, whereby, the learned Trial Court has acquitted the Page 1 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025 NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined respondents for the offence punishable under Sections 323, 504, 506(2) and 114 of IPC and Section 3(1)(10) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act" for short) and Section 135 of the Bombay Police Act.
1.1 The respondents are hereinafter referred to as "the accused" as they 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 13.02.2009, at around 21.30 hours, the complainant - Rameshbhai Vikrambhai Vankar and other witnesses were in the field and at that time, both the accused came to them and asked them why they had allowed the blue bulls and the wild asses to come into the fields. Both the accused abused the complainant and the witnesses and also hurled casts slurs against them and had sticks with them and the complainant filed the complaint under Sections 323, 504, 506(2) and 114 of the IPC, Section 135 of the BP Act and Section 3(1)(10) of the Atrocities Act Page 2 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025 NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined at Jinjuwada Police Station which was registered at Jinjuwada Police Station II - C.R. No. 3003 of 2009 on 14.02.2009 at 03.00 hours.
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 learned Judicial Magistrate First Class, Patdi and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Surendranagar at Dhrangadhra as per the provisions of Section 209 of Code of Criminal Procedure and the case was registered as Special (Atrocity) Case No. 40/2008. 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. 4 was framed against the accused and the statements of the accused were recorded at Exhs. 5 and 6, wherein, the accused denied the contents of Page 3 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025 NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined 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 Babubha Prabhatsinh Zala 27
2 2 Lalabhai Ravabhai Thakor 29
3 3 Rohitkumar Vasudevbhai Patel 30
4 4 Govindbhai Kanabhai Makwana 36
5 5 Rameshbhai Trikambhai Makwana 40
6 6 Maganbhai Kalabhai Makwana 46
7 7 Trikambhai Kuberbhai Makwana 47
8 8 Kiritbhai Ramabhai Parmar 48
DOCUMENTARY EVIDENCE
Sr. No. Particulars Exh.
1 Arrest Panchnama 28
2 Treatment Certificate 31 & 33
3 Yadi 32
4 Treatment Certificate 34 & 35
5 Panchnama of place of offence 37
6 Complaint 41 & 42
7 Letter 49
8 Publication 50
9 Order 51
10 Caste Certificate 52 & 53
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NEUTRAL CITATION
R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025
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2.5 After the learned APP filed the closing pursis, the
further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 were 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 their behalf and stated that a false case has been filed against them. 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 all the accused from the charges levelled against them.
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 Page 5 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025 NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined proved beyond reasonable doubt 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 Ms. Jirga Jhaveri for the appellant State and learned advocate Mr. Parthiv Bhatt for the respondents. 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 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 Page 6 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025 NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined 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. 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".Page 7 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025
NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined 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. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person Page 8 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025 NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined 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.
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NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined
8. In light of the above settled principle of law, the evidence of the prosecution is dissected and the prosecution has examined PW1 - Babubha Prabhatsinh Zala at Exh. 27 and PW2 - Lalabhai Ravabhai Thakor Exh.
29. Both the witnesses are the panch witnesses of the panchnama produced at Exh. 28, whereby both the accused were arrested by the Dy.S.P. Surendranagar and the weapons and sticks used by them in the incident were voluntarily produced by them and seized. Both 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. 8.1 The prosecution has examined PW3 - Rohitkumar Vasudevbhai Patel at Exh. 30 and the witness was working as the Medical Officer at CHC Patadi on 14.02.2009 when at 04.00 am, Maganbhai Kalabhai Makwana came with a police yadi for treatment. In the history, he had stated that he was injured on 13.02.2009 at around 09.30 pm and on examination, he had pain in left wrist joint with tenderness Page 10 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025 NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined and a red abrasion above the right eyelid. Mild bleeding was present and the size was 2 cm x 1 cm. The injury could be caused by a hard and blunt object and the injuries were simple in nature. At the same time, Rameshbhai Trikambhai Makwana had also come for treatment with the same history and he had pain in the right deltoid region, back and forehead. There was no swelling and the injury could be caused by a hard and blunt object. The injuries were simple and the approximate period of recovery was three to five days. During the cross-examination by the learned advocate for the accused, the witness has stated that Maganbhai Kalabhai did not state by what weapon he was injured and the injuries of Rameshbhai Trikambhai on the hand were only complaint of pain which could be imaginary. That if a person was assaulted with a stick, the marks of the stick would remain and on examination of both the injured persons, there were no marks of sticks on their body. The certificates produced at Exh. 31 and Exh. 34 of both the injured respectively do not state the time period before which the injury was sustained. Page 11 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025
NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined 8.2 The prosecution has examined PW4 - Govindbhai Kanabhai Makwana at Exh. 36 and the witness is the panch witness of the panchnama of the place of offence which is produced at Exh. 37. The witness has fully supported the case of the prosecution and during the cross- examination by the learned advocate for the accused, the witness has stated that Rameshbhai Trikambhai Makwana is his brother and he had come to his house to call him. The other panch witness - Harjibhai Dungarbhai was also residing in the same street and he too was called to be a panch witness.
8.3 The prosecution has examined PW5 - Rameshbhai Trikambhai Makwana at Exh. 40 and the witness is the complainant who has filed the complaint which is produced at Exh. 41. The witness has fully supported the contents of the complaint and during the cross-examination, he has stated that the accused no. 1 has a field which he is cultivating for the past one year and the accused no. 2 has his own field. That he was cultivating cumin seeds in his field and in the open space; blue bulls roam about freely. Page 12 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025
NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined That his field is not fenced and the fields of the accused are also not fenced. The forest area starts to the north of their fields and when he had cultivated the cumin seeds, they were staying at the field. That prior to this incident, he did not have any quarrel with the accused and on the day of the incident, no blue bulls or wild asses had come to the field. That he did not intimate the forest department about the wild asses and no damage was done to his cumin seeds crops. That after he had filed the complaint, he had received an amount of Rs. 6000/- from the government. 8.4 The prosecution has examined PW6 - Maganbhai Kalabhai Makwana at Exh. 46 and as per the case of the prosecution, the witness is an eyewitness and was also injured in the incident. The witness has stated that he was working in the field of Trikambhai Kuberbhai and the complainant Rameshbhai was also working in the field and at around 10.00 pm to 10.30 pm, the accused had come with sticks and assaulted them. Rameshbhai came to save him and he too was assaulted and besides this, nothing else had taken place. The witness has not supported the Page 13 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025 NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined case of the prosecution and has been declared hostile and has been cross examined at length by the learned APP. During the cross examination by the learned advocate for the accused, the witness has stated that the field of the accused no. 1 is near to the field of the complainant and there are no lights at the fields. At the time of the incident, it was dark and they could not see anyone's face. That after the incident, the complainant Rameshbhai identified the accused no. 1 and near the place of incident is the area of the Forest Department. That he and Rameshbhai were alone in the field at the time of the incident and Rameshbhai had filed the complaint and he has no ill feelings to the accused no. 1. That he did not tell the Medical Officer by what weapon he was assaulted and after the incident, as he was afraid, he ran away home. That he did not name the accused as the person who had assaulted him.
8.5 The prosecution has examined PW7 - Trikambhai Kuberbhai Makwana at Exh. 47 and the witness is the father of the complainant who has stated that on the night Page 14 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025 NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined of the incident, he was sleeping and at about 10.00 pm, his son Ramesh woke him and told him that the accused had assaulted him and hurled caste slurs against him. That Maganbhai Kalabhai who was with Rameshbhai was also assaulted and Rameshbhai told him that he wanted to go to Jinjuwada Police Station. That he went with Rameshbhai to Jinjuwada Police Station and the complaint was filed. During the cross-examination by the learned advocate for the accused, the witness has stated that he has gone to the field often and the field of the accused no. 1 is adjacent to the field of Rameshbhai. At the time of the incident, the crop of cumin seeds was cultivated in the field and the accused no. 1 had also cultivated cumin seeds in his field. That he did not witness the incident and has no personal knowledge about the same.
8.6 The prosecution has examined PW8 - Kiritbhai Ramabhai Parmar at Exh. 48 and the witness is the Investigating Officer who has narrated in detail the entire procedure undertaken by him during investigation. During the cross-examination by the learned advocate for the Page 15 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025 NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined accused, the witness has stated that he had not collected the revenue record of the fields of the accused and the complainant and he does not know to whom does the land belong to or who is the owner of the land.
9. On minute appreciation of the entire evidence of the prosecution, as per the say of the complainant, the incident has occurred on 13.02.2009 at 21.30 hours and immediately thereafter, the complainant and the injured witness had gone to the Police Station and had taken the police yadi and had gone to the Community Health Centre, Patadi for treatment. It is pertinent to note that the complainant and the witness were known to the accused as the field of the accused no. 1 was near to the field of the complainant and both of them were staying in the field as they had cultivated cumin seeds and the blue bulls and wild asses would come in the fields. But before the Medical Officer, the complainant or Maganbhai Kalabhai Makwana has not named the accused as the persons who had assaulted them. The complainant has stated that on the date of the incident, the blue bulls and wild ass did not Page 16 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025 NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined come to the field and he did not inform the Forest Department that any animals had come and there was no damage to crops on the date of the incident. The medical evidence also does not support the say of the complainant and the eyewitness Maganbhai Kalabhai Makwana examined at Exh. 46 has not fully supported the case of the prosecution and has not stated that the accused had hurled caste slurs and abused them at the time of the incident. The medical evidence also does not support the case of the complainant and all the evidence has been discussed by the learned Trial Court in a detailed manner.
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 Page 17 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025 NEUTRAL CITATION R/CR.A/1038/2012 JUDGMENT DATED: 22/04/2025 undefined 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 Second Additional Sessions Judge and Special Judge, Dhrangadhra in Special Case No. 8/2010 on 16.04.2012, is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J) VASIM S. SAIYED Page 18 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:19:19 IST 2025