Gujarat High Court
State Of Gujarat vs Patel Madhabhai Mohanbhai on 24 April, 2025
NEUTRAL CITATION
R/CR.A/1191/2009 JUDGMENT DATED: 24/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1191 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
PATEL MADHABHAI MOHANBHAI & ORS.
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Appearance:
DHWANI TRIPATHI, APP for the Appellant(s) No. 1
MR. YOGENDRA THAKORE(3975) for the Opponent(s)/Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 24/04/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') against the judgment and the order dated 25.03.2009 in Sessions Case No.115 of 2008 passed by the learned 2nd Additional Sessions Judge, Mehsana (hereinafter referred to as 'the learned Trial Court'), whereby, the learned Trial Court has acquitted the respondents - accused from the offences Page 1 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025 NEUTRAL CITATION R/CR.A/1191/2009 JUDGMENT DATED: 24/04/2025 undefined punishable under Sections 323, 324, 506(2) and 114 of the Indian Penal Code (hereinafter referred to as 'the IPC'). 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 21.08.2006, the complainant Jairambhai Gandabhai Bharwad had taken eight cows and gone for grazing in the outskirts of Bechraji on 21.08.2006, and while grazing the cattle, he reached the outskirts of Kalari (Ganeshpura) on the road towards village Endala, and when he reached near the lake at around 2:30pm, the accused came rushing towards him, and at that time, the accused No.1 had a scythe and the accused No.2 had a stick and they came and asked the complainant as to why he had allowed his cattle to stray and graze in their fields, and on his refusal, they all got angry, and the accused No.2 hit him with the stick on his right leg and on his back, and the accused No.1 gave Page 2 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025 NEUTRAL CITATION R/CR.A/1191/2009 JUDGMENT DATED: 24/04/2025 undefined one blow with scythe on his head and all the accused assaulted him with fists. The complainant started bleeding and fell down and shouted and from nearby, Ramesh Dhara, Dhara Vira and Dhana Kamshi came rushing and saved him from further beatings.
The accused threatened to kill him, if he came again with his cattle and as he was bleeding, he was taken to the Civil Hospital, at Becharaji and as his injuries were serious, he was referred to the Civil Hospital, Mehsana for further treatment. While he was admitted at the Civil Hospital, Mehsana in the Male Ward on Bed No.2 he had given the complaint before the PSI, Becharaji Police Station, Camp Mehsana Civil Hospital, which was registered at Becharaji Police Station I-C.R. No.99 of 2006 under Sections 324, 323, 506(2) and 114 of the IPC.
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, after completion of the process under Section 209 of the Cr.P.C., the case was Page 3 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025 NEUTRAL CITATION R/CR.A/1191/2009 JUDGMENT DATED: 24/04/2025 undefined committed to the Sessions Court and the same was registered as Sessions Case No.115 of 2008.
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.2 and the statements of the accused were recorded at Exhs.3 to 6, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution has examined 10 witnesses and has produced 12 documentary evidences in support of the case.
2.4. After the closing pursis was submitted by the learned APP at Exh.41, 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, has acquitted the accused. Page 4 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025
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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 erred in appreciating the fact that the prosecution has proved the case beyond reasonable doubts. The learned Trial Court has not properly appreciated the oral as well as documentary evidence on record it its true spirit. The learned Trial Court has erred in acquitting the accused through there are ample and cogent evidence to connect the accused with the crime and the offences registered against them. The learned Trial Court has also committed an error in arriving at the conclusion that though the complainant and the prosecution witnesses have fully supported the case of the prosecution and there are no material contradictions, the learned Trial Court has acquitted the accused. The impugned judgment and order of acquittal passed by the learned Trial Court is illegal, invalid, improper, perverse and bad in law and the same deserves to be quashed and set aside.
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4. Heard learned APP Ms.Dhwani Tripathi for the appellant - State and learned advocate Mr.Yogendra Thakore for the respondents. 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.Dhwani Tripathi for the appellant - State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the learned Trial Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the 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 learned Trial Court is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by 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 Page 6 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025 NEUTRAL CITATION R/CR.A/1191/2009 JUDGMENT DATED: 24/04/2025 undefined offence. Learned APP has urged this Court to allow the present appeal and impose maximum sentence on the accused.
6. Learned advocate Mr.Yogendra Thakore for the respondents - original accused has submitted that the learned Trial 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 Trial Court and has urged this Court to reject the appeal.
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 the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415, the Apex Court has observed as under:
Recently, in Kallu Vs. 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 learned Trial Court is based on evidence and the view taken is reasonable and Page 7 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025 NEUTRAL CITATION R/CR.A/1191/2009 JUDGMENT DATED: 24/04/2025 undefined plausible. It will not reverse the decision of the learned 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 learned 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 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 learned 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 learned Trial Court.Page 8 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025
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8. 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 learned 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 Page 9 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025 NEUTRAL CITATION R/CR.A/1191/2009 JUDGMENT DATED: 24/04/2025 undefined and the order is clearly unreasonable and where the Appellate Court comes to conclusion that based on the evidence, the conviction is a must.
9. In light of the above, the evidence produced by the prosecution on record is appreciated and the prosecution has examined PW-1 Jairambhai Gandabhai Bharwad at Exh.13 and the witness is the complainant, who has fully supported the contents of the complaint, which is produced at Exh.14. During the cross- examination by the learned advocate for the accused, the witness has stated that Ramesh Dhara Vira and Dhana Kamshi are his brothers and they too have cows. He was injured at the place where he was standing and he did not see whether any blood had fallen on the ground. Ramesh Dhara Vira and the others came after 5 to 10 minutes and he does not know where the accused had gone. That he did not shout when the accused had come towards him and he did not try to run away when the accused had come rushing towards him. That he was unconscious when his brothers had come and he did not inform the doctor about the names of the persons who had assaulted him.
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NEUTRAL CITATION R/CR.A/1191/2009 JUDGMENT DATED: 24/04/2025 undefined 9.1. The prosecution has examined PW-2, Kanaubhai Rajabhai Bharwad at Exh.15 and the witness is the panch witness of the panchnnama of the place of offence, which is produced at Exh.16. During the cross-examination by the learned advocate for the accused, the witness has stated that the police had come to his house to call him for the panchnama, and before the panchnama he has not gone to the lake. At the place of incident, there were no marks of a struggle or blood found.
9.2. The prosecution has examined PW-3, Manuhai Lakhabhai at Exh.17 and the witness is the panch witness of the panchnama, by which, the clothes of the injured were seized by the police for investigation. The witness has not supported the case of the prosecution and has been declared hostile, and has been cross examined at length by the learned APP, but nothing to suppress the case of the prosecution has come on record. 9.3. The prosecution has examined PW-4, Kishordan Samratdan Ghadhvi at Exh.21 and PW-9 Thakor Jyantiji Mavaji at Exh.32. Both the witnesses are the panch witnesses of the panchnama, by which, the accused were arrested and the Page 11 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025 NEUTRAL CITATION R/CR.A/1191/2009 JUDGMENT DATED: 24/04/2025 undefined panchnama is produced at Exh.39. 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.
9.4. The prosecution has examined PW-5 Dharabhai Virabhai Bharwad at Exh.22, and as per the case of the prosecution, the witness was an eye-witness to the incident. The witness has stated that on the date of the incident, he and Jairambhai were grazing their cows at the Kakrawadi lake and Jairambai was injured by the accused No.1 with a scythe on his head and the accused No.2 had injured him with a stick on his right leg. The other accused had beat him with fists and he ran and went to the place where the complainant was, and at that time, the accused had ran away. The complainant Jairambhai was unconscious, and later on, they were informed that Gandabhai, Hathibhai Sardulbhai and Karshanbhai Ramsinh had also come and Jairambhai was taken to the Civil Hospital, Bechraji, and thereafter, to the Civil Hospital, Mehsana. When he reached the Page 12 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025 NEUTRAL CITATION R/CR.A/1191/2009 JUDGMENT DATED: 24/04/2025 undefined place of incident, the accused had left the place and they were shouting something. During the cross-examination by the learned advocate for the accused, the witness has stated that he has not seen the agricultural lands of any of the accused and he had heard the shouts of Jairambhai. He took about 5 to 10 minutes to reach the place where Jairambhai was after hearing the shouts and when he went to the place, Jairambhai had fallen down and the persons, who had assaulted him, had ran away. The accused had also taken the cows of Jairambhai from the lake.
9.5. The prosecution has examined PW-6, Pravinkumar Popatlal Soni at Exh.24 and the witness was working as the Medical Officer at General Hospital, Mehsana on 21.08.2006, when the injured Jairambhai Gandabhai Bharwad was brought for treatment at 18:55 hours. The witness has stated that in the history, he had stated that he had received assaulted injury by scythe and lathi today at 2:30pm at take on Endala Road by Madhabhai Mohanbhai Patel and 10 others. On examination, the injured had a stitched wound over a mid parietal region 5.0cm in length and the wound was anterior post-in diversion in direction. There was a Page 13 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025 NEUTRAL CITATION R/CR.A/1191/2009 JUDGMENT DATED: 24/04/2025 undefined contusion on the left scapular region 4.0cm, which was reddish and oblique in direction and he had sustained a contusion on right mid thigh 3cm X 4cm, which was reddish in color. The X- ray showed nothing particular and the injured was admitted to the hospital and discharged on 24.08.2006. The medical certificate is produced at Exh.26. During the cross-examination by the learned advocate for the accused, the witness has stated that injury no.1 was a stitched wound and was not in the original form and injury nos.2 and 3 could be sustained by a hard and blunt object. 9.6. The prosecution has examined PW-7, Kanubhai Ramabhai Rathod at Exh.28, and the witness was working as Medical Officer at the Primary Health Center Bechraji on 21.08.2006 at around 16:00hours when Jairambhai Gandabhai Bharwad was brought for treatment. In the history, he had stated that he was assaulted. He had received assaulted injury by stick and scythe at 2:00pm, and on examination, there was a CLW over scalp slightly left side, vertical, which was 3cm X 1cm X 1cm in size and swelling over right upper back and middle of center left thigh. The patient was referred to Civil Hospital, Mehsana for Page 14 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025 NEUTRAL CITATION R/CR.A/1191/2009 JUDGMENT DATED: 24/04/2025 undefined further treatment. The witnesses has produced the Medical Certificate at Exh.29 and during the cross-examination, the witness has stated that when the patient was brought to him for treatment, he did not have any head gear such as a cap or a turban and an injury with a stick or a pipe would leave a mark, but there were no such injuries on the body of the injured. Injury no.1 could be sustained by a fall and injury nos. 2 and 3 could be sustained, if a person falls on the ground, on which, there are stones. He did not verify as to whether there were any foreign substance in injury no.1 by a magnifying glass.
9.7. The prosecution has examined PW-8 Kantibhai Virabhai Raval at Exh.30 and the witness is the panch witness of the panchnama, by which, the clothes of the injured were seized during investigation. The panchnama is produced at Exh.31. 9.8. The prosecution has examined PW-9 Jayantiji Mavaji Thakor at Exh.32 and the witness is the panch witness of the panchnama and the witness has been declared hostile and during the cross-examination by the learned APP, nothing has come on record to support the case of the prosecution. Page 15 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025
NEUTRAL CITATION R/CR.A/1191/2009 JUDGMENT DATED: 24/04/2025 undefined 9.9. The prosecution has examined PW-10 Bupatsinh Shankarsinh Ravat at Exh.33 and the witness was working as a P.S.O. at Becharaji Police Station and he has registered the complaint of the complainant Jairambhai Gandabhai. 9.10. The prosecution has examined PW-11 Dipakbhai Gulablal Gor at Exh.37 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 he had also investigated Bechraji Police Station I-C.R.98 of 2006 and a joint panchnama of both the offenses was drawn by him and as per the panchnama, the place of offense was the northern edge of the agricultural land of Ranchhodlal Mafatlal Panchal, where green gram was grown and blood stains were found and marks of the legs of cattle were also found. On the southern side of the field, where the crop of cotton was grown, the marks of cattle were found and the same has been noted in the panchnama and blood stained mud was seized during investigation. No incriminating material was seized during the panchnama produced at Exh. 38. Page 16 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025
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10. On minute appreciation of the entire evidence of the prosecution, it has transpired that the case was a cross case of the offense registered at Becharaji Police Station I-C.R.No.98 of 2006 under Sections 307, 325, 323, 147, 148 and 149 of the IPC and the place of offense was near the Kakrawadi lake in village Kalari near the Narmada canal. There are major contradictions in the evidence of the complainant and PW-5 Dharabhai Virabhai and as per the case of the prosecution, at the time of the incident, Dharabhai Virabhai Bharwad, Rameshbhai Dharabhai, and Dhanabhai Kamshibhai had come, but they have not been examined before the learned Trial Court. There are contradictions in the medical certificates and it is not clear as to which which portion of the shoulder or upper back was injured. The accused were known to the injured prior to the incident, but he has not named the accused before the Medical Officers PW- 7 Kanubhai Ramabhai Rathod or PW-6 Pravinbhai Poptabhai Soni, and in fact, in the Medical Certificate produced at Exh.26, the injured has stated that he was assaulted by 10 persons, but only four persons have been chargesheeted. The version of the complainant seems exaggerated and not believable and in the opinion of both the medical officers, Page 17 of 19 Uploaded by F.S. KAZI(HC01075) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 03:32:39 IST 2025 NEUTRAL CITATION R/CR.A/1191/2009 JUDGMENT DATED: 24/04/2025 undefined the injuries could be sustained by a fall or a hit on the ground, on which, there were stones. The there is no iota of evidence about the presence of the accused at the place of offense and the entire evidence has been discussed in detail by the learned Trial Court.
11. 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 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.
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12. The impugned judgment and the order dated 25.03.2009 in Sessions Case No.115 of 2008 passed by the learned 2nd Additional Sessions Judge, Mehsana is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned learned Trial Court forthwith.
Sd/-
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