Gujarat High Court
State Of Gujarat vs Bodubhai Umarbhai Sipai on 2 August, 2025
NEUTRAL CITATION
R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1098 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
BODUBHAI UMARBHAI SIPAI & ORS.
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Appearance:
MS. C.M. SHAH, APP for the Appellant(s) No. 1
MR BJ TRIVEDI(921) for the Opponent(s)/Respondent(s) No. 1,2,3,4
MS JIGNASA B TRIVEDI(3090) for the Opponent(s)/Respondent(s) No.
1,2,3,4
RULE SERVED for the Opponent(s)/Respondent(s) No. 5
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 02/08/2025
ORAL JUDGMENT
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 Additional Sessions Judge, Dhoraji (hereinafter referred to as "the learned Trial Court") in Sessions Case No. 74/2009 on 17.04.2012, whereby, the learned Trial Court has acquitted the respondents for the offence punishable under Sections 323, 324, 504 and 506(2) read with Section 114 of Page 1 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025 NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined the Indian Penal Code, 1860 and Section 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 respondents are hereinafter referred to as "the accused" in the rank and file 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 27.01.2009, at around 06.15 pm, the complainant
- Narsinhbhai Bijalbhai Devra went to the tea stall of Kanubhai situated opposite Bhagwat Singhji's Girls School in Dhoraji with his friends Raju Bagda, Bharat Sondarva and Vijay Kishan. At that time, while they were drinking tea, Taufiq - the servant of Kanubhai was present and the complainant asked Taufiq who was demolishing the house next to the tea stall and the accused nos. 1 and 2 who were present started abusing the complainant and asked the complainant who was he to inquire about the same. The accused no. 1 telephoned and called the other accused and Page 2 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025 NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined the accused nos. 3 and 4 came and started abusing the complainant. The accused no. 3 had a knife and gave one blow on the left side of the head of the complainant with the knife. The accused no. 4 had an iron claw and gave a punch on the left side of the head of the complainant with the iron claw and the accused nos. 1 and 2 beat the complainant with fists. The complainant started shouting and his friends intervened and the accused threatened to kill him. The complainant filed the complaint before the Dhoraji City Police Station under Sections 324, 323, 504, 506(2) and 114 of the Indian Penal Code and Section 3(1)(10) of the Atrocity Act and Section 135 of the BP Act which came to be registered as Dhoraji City Police Station I - C.R. No. 10 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, Dhoraji and as the said offences against the accused were exclusively triable by the Court of Page 3 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025 NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined Sessions, the case was committed to the Sessions Court, Dhoraji as per the provisions of Section 209 of Code of Criminal Procedure and the case was registered as Sessions Case No. 74/2009.
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. 11 was framed against the accused and the statement of the accused was recorded at Exhs. 12, 13, 14 and 15 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 17 witnesses and produced 14 documentary evidences on record in support of their 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 and after the arguments of the learned Additional Public Prosecutor and the learned advocate for Page 4 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025 NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined 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 respondent. The case has been 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 respondents 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. C.M. Shah for the appellant State, learned advocate Mr. B.J. Trivedi for the respondent nos. 1 to 4. Though served, the respondent no. 5 has not remained present either in person or through an advocate. 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 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 respondent guilty for the offences.
5.1 Learned advocate Mr. B.J. Trivedi for the respondent nos. 1 to 4 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.
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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".
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;
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NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined (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 trial court.
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NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined (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.
8. To bring home the charge against the accused, the prosecution has examined PW1 - Manishbhai Kanubhai Bhalara at Exh. 19 and PW10 - Hiralal Madhuram at Exh. Page 9 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025
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32. Both the witnesses are the panch witnesses of the panchnama of the place of offence which is produced at Exh. 20. 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 PW2 - Deepsinh Narubha Chudasma examined at Exh. 21 and PW12 - Vitthalbhai Jeevarajbhai Hirpara examined at Exh. 35 are the panch witnesses of the arrest panchnama, by which the accused nos. 1, 2 and 3 were arrested and produced at Exh. 22 but both the panch witnesses have not supported the case of the prosecution and have been declared hostile and during the lengthy cross-examination by the learned APP, nothing to the case of the prosecution has come on record.
8.2 PW3 - Taufiqbhai Bashirbhai Ghachi examined at Exh. 23 is the eyewitness who was present at the tea stall of Kanubhai and as per the case of the prosecution, the complainant was talking and joking with this witness but Page 10 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025 NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined the witness has not supported the case of the prosecution and has stated that he does not know of any quarrel that had taken place between the complainant and the accused. He had gone out and when he returned to the tea stall, he came to know about the incident but he has not witnessed anything. The witness has been declared hostile and cross- examined at length by the learned APP but nothing to support the case of the complainant has come on record. 8.3 PW4 - Prafulbhai Karamshibhai Chowatia examined at Exh. 24 was having a Pav Bhaji Shop in the name of Mayur Pav Bhaji near Sagar Paan and as per the case of the prosecution, he was an eyewitness but he has stated that there was some commotion outside the paan shop and a number of persons had gathered and as he was afraid, he closed his shop and went away.
8.4 PW5 - Narshibhai Bijalbhai Devra is the complainant examined at Exh. 25 and he has narrated the facts as stated in the complaint which is produced at Exh. 26 but the witness has not fully supported the contents of the complaint and he has been declared hostile and cross- Page 11 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025
NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined examined by the learned APP. In the cross-examination by the learned advocate for the accused, the complainant has stated that at the place of offence, there are a number of offices of travels and paan bidi and other shops and in the opposite side there are fruits carts and tea stalls. In the evening, there are a number of ice-cream stalls at the place and in the front is a government hospital. At the time of the incident, his friends Raju, Bharat and Vijay were present and two to three labourers were also present. His friends were of his same caste and none of them had heard what words were uttered by the accused. The witness has admitted that during the incident, none of the accused had hurled caste slurs against him. The witness has also admitted that he is working as a home guard and is also a member of a music band and as he is working as a home guard, he is known to the police and the home guard office is very near to the place of incident. There are traffic constables at the crossroads near the place of incident and near the Girls' High School and Rajkot Cooperative Bank, constables are present. As the incident had occurred in the Page 12 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025 NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined evening, there were a number of persons and vehicles passing by and he has received about Rs. 2500/- as compensation from the government as the case was filed under the Atrocity Act.
8.5 PW6 - Vijaykumar Kishanbhai Chaudhury examined at Exh. 27 is an eyewitness as per the case of the prosecution. The witness has stated that on 27.01.2009, a quarrel had taken place between the complainant and the accused near the tea stall of Kanubhai at Dhoraji at around 06.00 pm and five to six persons had gone to the shop to have tea. At that time, a quarrel had taken place and he had intervened and separated them and they all had tea together. After some time, the nephew of the accused no. 1 came and asked the complainant why he was abusing his uncle and they assaulted the complainant and the accused no. 3 had an iron claw. The witness has not fully supported the case of the prosecution and has been declared hostile and has been cross-examined by the learned APP. In the cross- examination by the learned advocate for the accused, the witness has stated that at the time of the incident, it was Page 13 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025 NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined evening and 250 to 300 persons were present at that place as there is plenty of traffic at that time of the day. A number of persons had gathered there and there are cross-cases filed by the complainant and the accused against each other.
8.6 PW7 - Bharatbhai Naranbhai Sondaarva examined at Exh. 28 is also an eyewitness as per the case of the prosecution and has supported the case of the prosecution. During the cross-examination, the witness has stated that normally at the place of incident, there are about 100 to 150 people present and at the place of incident, there are offices of travel agencies, pan shops, medical stores, ice cream shops, etc., and there are also fruit carts and a continuous flow of people and traffic. A number of persons had gathered there and there were many persons from their community, but he does not know their names.
8.7 PW8 - Rajubhai Madhabhai Bagda examined at Exh. 29 is an eyewitness as per the case of the prosecution but the witness has not supported the case of the prosecution and has been declared hostile. In the cross-examination by Page 14 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025 NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined the learned advocate for the accused, the witness has stated that there were only four persons present at the time of the incident and Rambhai was not present with them. Vijaybhai had intervened between the complainant and the accused no. 1 and a compromise had taken place and they had all had tea together and the complainant and the accused no. 1 did not catch each other's collar or abuse each other. 8.8 PW9 - Amjadbhai Alibhai Motalia examined at Exh. 30 and PW11 - Kishorbhai Vinubhai Chudasma examined at Exh. 33 are the panch witnesses of the arrest panchnama produced at Exh. 31, whereby, the accused no. 4 was arrested. The panch witnesses have not supported the case of the prosecution and have been declared hostile. 8.9 PW13 - Dr. Bhaveshbhai Pursottambhai Jivani examined at Exh. 36 is the Medical Officer who has stated that on 27.01.2009, he was on duty at the Srimati Heeraben Ishwarbhai Government Hospital, Dhoraji and at around 06.30 pm, Narsibhai Bijalbhai was brought by Bharatbhai Sondarwa for treatment. In the history, he has stated that he was assaulted with a knife before 15 minutes at Galaxy Page 15 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025 NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined Crossroads and was injured. He had complained of giddiness, pain in the head and stomach and was conscious. On examination, he had CLW of 1 cm x 0.1 cm, skin deep on the left parietal region of the scalp which was bleeding and he was given primary treatment and referred to the Government Hospital, Junagadh for further treatment. The witness has produced the medical certificate at Exh. 37. During the cross-examination, the witness has stated that the patient did not give the names of the persons who had assaulted him and did not say that he was injured with an iron fist. The injury that was caused could not be caused by a sharp knife and it was possible if a person fell down on a stone. In the history, the patient had stated that he was assaulted by a knife but the injury of a CLW could not be done by a knife.
8.10 PW14 - Mansukhlal Muljibhai Gajara examined at Exh. 40 was working as a Clerk at the Mamlatar Office and he has produced the notification of Additional District Magistrate Rajkot at Exh. 41. As per the document produced at Exh. 41, the carrying of arms was banned Page 16 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025 NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined between the period from 01.12.2008 to 31.12.2008. 8.11 PW15 - Harishchandra Jatashankar Vyas examined at Exh. 42 is the PSO who has registered the complaint. 8.12 PW16 - Nathabhai Polabhai Badwa examined at Exh. 44 was working as a PSI at the Dhoraji Police Station on 27.01.2009 and he had gone to the hospital as a Yadi was received at the Police Station and had recorded the complaint of the complainant. During the cross- examination, the witness has stated that at the time of recording of the complaint, the complainant was fully conscious and the complainant did not name the accused no. 2 in the complaint. The clothes of the complainant were not bloodstained when the complaint was being recorded and the complainant was an accused in Sessions Case No. 32 of 2011.
8.13 PW17 - Somabhai Babarbhai Rawat examined at Exh. 49 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 the notification is produced at Exh. 41 is for the period from Page 17 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025 NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined 01.12.2008 to 31.12.2008.
9. On appreciation of the entire evidence of the prosecution, as per the complaint of the complainant, PW3
- Taufiqbhai Bashirbhai Ghachi, PW6 - Vijaykumar Kishanbhai Chaudhury, PW7 - Bharatbhai Naranbhai Sondarva and PW8 - Rajubhai Madhabhai Bagda were present at the place of incident and they are all eyewitnesses to the incident but PW3 - Taufiqbhai Bashirbhai Ghachi, PW6 - Vijaykumar Kishanbhai Chaudhuryand and PW8 - Rajubhai Madhabhai Bagda have not supported the case of the prosecution and have been declared hostile. The complainant himself has been declared hostile and has not fully supported the contents of his complaint. The only witness that supports the case of the prosecution to some extent is PW7 - Bharatbhai Naranbhai Sondarva but during the cross examination he has admitted that the place where the incident has occurred was a very public place and there were a number of persons who had gathered there but he has not named any independent witnesses who were present and who Page 18 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025 NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined could have been examined before the learned Trial Court. It has also emerged on record that the notification produced at Exh. 41 is for the period from 01.12.2008 to 31.12.2008 and the incident has occurred on 27.01.2009. Hence, the notification is prior to the date of offence and there is no notification on record covering the date of offence. Admittedly, the incident has occurred at around 06.15 pm and there were a number of persons present there but no independent witnesses have been examined by the prosecution. The medical evidence does not support the say of the complainant and even the presence of the accused at the place of incident altogether or later, is not established. None of the witnesses have stated that the accused had used any of the caste slurs and the case has not been proved by the prosecution beyond reasonable doubts. There are major contradictions in the evidence of the witnesses and they have not supported the case of the prosecution and the learned Trial Court has discussed all the evidence in great detail.
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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 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 Additional Sessions Judge, Dhoraji Page 20 of 21 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:05:42 IST 2025 NEUTRAL CITATION R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025 undefined in Sessions Case No. 74/2009 on 17.04.2012 , is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
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