Gujarat High Court
State Of Gujarat vs Patel Narendrabhai Manibhai @ Baghlo on 3 February, 2025
NEUTRAL CITATION
R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 194 of 2010
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 NARENDRABHAI MANIBHAI @ BAGHLO
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Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR ABHIJIT RATHOD(12976) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 03/02/2025
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 08.10.2009 in Special Atrocity Case No.18 of 2016 passed by the learned Special Judge (Atrocity), 3 rd Fast Track Court, Mehsana camp at Visnagar (hereinafter referred to as 'the learned Trial Court'), whereby, the learned Trial Court has Page 1 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined acquitted the respondent - accused from the offences punishable under Sections 504 and 507 of the Indian Penal Code (hereinafter referred to as 'the IPC')and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Atrocities Act'). The respondent is hereinafter referred to as 'the accused' as he 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. The complainant Raghunath Savabhai Parmar has filed the complaint stating that on 23.11.2008, he was at his home and at around 7:45pm, there was a call on his mobile and his daughter Shilpa picked up the phone and the person from the opposite end gave caste slurs and asked his daughter where he was. That his daughter gave him the phone and the person from the opposite end told him that his men have closed his liquor and gambling dens in Aslali, Ahmedabad and he was to kill him and his gambling den was still functioning and if he had the guts to get it Page 2 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined closed. When the complainant had asked him his name the person told that his name was Narendrakumar Manilal Patel @ Vaga Dada, residing at Aslali, Ahmedabad and he had called him from Mobile No.9825452506 at about 19:46 hours. The complainant filed the complaint being II-C.R.No.202 of 2008 registered with Unjha Police Station for the offence punishable under Sections 504 and 507 of the IPC and under Section 3(1)(x) of the Atrocities Act on 23.11.2008 .
2.2. 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 and a charge was framed by the learned Trial Court at Exh.3 and the statements of the accused were recorded at Exh.4, 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 6 witnesses and has produced 5 documentary evidences in support of the case.
2.3. After the closing pursis was submitted by the learned Page 3 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined APP at 21, 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, acquitted the accused for the offences punishable under Sections 504 and 507 of the IPC and under Section 3(1)(x) of the Atrocity Act.
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 and the same is based on inferences not warranted by facts of the case and also on presumption not permitted by law. The learned Trial Court has not considered the direct or indirect evidence produced in this case connecting the accused with the crime and has also not appreciated the oral as well as documentary evidence on record and has straightway arrived at the conclusion that the prosecution has failed to prove the case Page 4 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined beyond reasonable doubts. The learned Trial Court has erred in considering minor omissions and contradictions in the evidence of the prosecution and the learned Trial Court has given much weightage to these minor omissions and contradictions. That the reasons given by the learned Trial Court appreciating the evidence and while acquitting the accused, are not proper and are perverse and bad in law, and hence, the impugned judgment and order deserves to be quashed and set aside.
4. Heard learned APP Mr. Bhargav Pandya for the appellant - State and learned advocate Mr.Abhijit Rathod for the respondent - accused. 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 Mr.Bhargav Pandya 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 case and has successfully proved the case against the accused but the Page 5 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined learned Trial Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by the learned Judge is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by learned 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 offence. Learned APP has urged this Court to allow the present appeal and impose maximum sentence on the accused.
6. Learned advocate Mr.Abhijit Rathod for the 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 judgement 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 Page 6 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined 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 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 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 Page 7 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined 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.
7.1 The Apex Court in yet another recent decision in case of Sri Dattatraya Vs. Sharanappa arising out of Criminal Appeal No. 3257 of 2024 (@ SLP (Crl.) No. 13179 of 2023), has observed as under:
31. The instant case pertains to challenge against concurrent findings of fact favouring the acquittal of the respondent, it would be cogent to delve into an analysis of the principles underlining the exercise of power to adjudicate a challenge against acquittal bolstered by concurrent findings. The following broad principles can be culled out after a comprehensive analysis of judicial pronouncements:
i) Criminal jurisprudence emphasises on the fundamental essence of liberty and presumption of innocence unless proven guilty. This presumption gets emboldened by virtue of concurrent findings of acquittal. Therefore, this court must be extracautious while dealing with a challenge against acquittal as the said presumption gets reinforced by virtue of a well-reasoned favourable outcome. Consequently, the onus on the prosecution Page 8 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined side becomes more burdensome pursuant to the said double presumption.
ii) In case of concurrent findings of acquittal, this Court would ordinarily not interfere with such view considering the principle of liberty enshrined in Article 21 of the Constitution of India 1950, unless perversity is blatantly forthcoming and there are compelling reasons.
iii) Where two views are possible, then this Court would not ordinarily interfere and reverse the concurrent findings of acquittal. However, where the situation is such that the only conclusion which could be arrived at from a comprehensive appraisal of evidence, shows that there has been a grave miscarriage of justice, then, notwithstanding such concurrent view, this Court would not restrict itself to adopt an oppugnant view. [Vide State of Uttar Pradesh v. Dan Singh]
iv) To adjudge whether the concurrent findings of acquittal are 'perverse' it is to be seen whether there has been failure of justice. This Court in Babu v. State of Kerala clarified the ambit of the term 'perversity' as "if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/admissible material. The finding may also be said to be perverse if it is 'against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality."
v) In situations of concurrent findings favoring accused, interference is required where the trial court adopted an incorrect approach in framing of an issue of fact and the appellate court whilst affirming the view of the trial court, lacked in appreciating the evidence produced by the accused in rebutting a legal presumption. [Vide Rajesh Jain v. Ajay Singh]
vi) Furthermore, such interference is necessitated to safeguard interests of justice when the acquittal is based on some irrelevant grounds or fallacies in re-appreciation of any fundamental evidentiary material or a manifest error of law or in cases of non-adherence to the Page 9 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined principles of natural justice or the decision is manifestly unjust or where an acquittal which is fundamentally based on an exaggerated adherence to the principle of granting benefit of doubt to the accused, is liable to be set aside. Say in cases where the court severed the connection between accused and criminality committed by him upon a cursory examination of evidences. [Vide State of Punjab v. Gurpreet Singh and Others and Rajesh Prasad v. State of Bihar.]
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 trial Court has Page 10 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined 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 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 Raghunath Savabhai Parmar at Exh.7 and the witness is the complainant, who has fully supported the facts as stated in the complaint, which is produced at Exh.8. During the cross-examination by the learned advocate for the accused, the witness has stated that he does not know how long the accused spoke to him on his mobile and he had not heard the words uttered by the person on the phone to his daughter. That no one else had heard the conversation between him and the accused and he had not given any evidence to the Investigating Officer that his nephew Hitesh Narottam had given any application in the police station. The witness has stated that a PASA warrant was issued Page 11 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined against him with the allegantion that he was running a gambling den.
9.1. The prosecution has examined PW-2 Shilpaben Raghunath Parmar at Exh.9 and the witness is the daughter of the complainant, who has stated that on 23.11.2008 at around 7:45pm, she was at her house, when her father's mobile rang and she picked up the phone and the voice from the opposite end gave a caste slur and asked where her father was. She asked him who was calling and he said that he was Narendra Patel, her father and was calling from Aslali, Ahmedabad. She informed her father and her father had filed a complaint at Unjha Police Station. During the cross-examination by the learned advocate for the accused, the witness has stated that she gave the telephone to her father within 10 to 20 seconds and as her father was in other room, he did not hear what was spoken to her on the phone.
9.2. The prosecution has examined PW-3 Kamleshbhai Danabhai Solanki at Exh.10 and the witness is the son in-law of the complainant, who has supported the case of the complainant. The witness has stated that when the phone came, he was sitting to Page 12 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined have his dinner and his sister in-law had picked up the phone and somebody was abusing her on the phone and she gave the phone to her father who told him to record the conversation but when he started to record the conversation, the person from the opposite end switched off the phone. That his father in law had later on told him that the person had called from Aslali, Ahmedabad. 9.3. The prosecution has examined PW-4 Shantaben Ratnaji Gameti at Exh.11 and the witness is the PSO who has registered the complaint of the complainant. 9.4. The prosecution has examined PW-5 Kalaji Maljibhai Varu at Exh.13 and the witness is the Investigating Officer who had taken over the investigation of Unjha Police II-C.R.No.202 of 2008. The witness has recorded the statement of the daughter of the complainant and seized the telephone bill and had called for the phone call details. During the cross-examination, the witness has stated that Section 3(1)(x) of the Atrocities Act would be applicable if a person has been intentionally insulted in a public place and in this case, the accused did not insult the complainant in a public place. That in the statement of witness Shilpaben, the Page 13 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined said fact is not stated and Shilpaben is the daughter of the complainant.
9.5. The prosecution has examined PW-6 Khimjibhai Saluji Baranda at Exh.17 and the witness is the Investigating Officer who had taken over the investigation from PW-5 Kalabhai Maljibhai Varu. The witness has stated that during investigation, he had called for the phone details of the accused and has produced the bill at Exh.20. During the cross-examination, the witness has stated that prior to the incident, the complainant and the accused had a conversation for three times which is evident from the document produced at Exh.20. That the complainant had called the accused and no explanation for the same was given. That Section 3(1)(10) of the Atorcity Act would be applicable if any person is insulted at a public place and in the complaint, it was not evident that any insult had taken place in any public place.
10. On minute appreciation of the entire evidence of the prosecution, the accused has been charged for the offence under Section 3(1)(x) of the Atrocity Act, which reads as under : Page 14 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025
NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined " 3. Punishments for offences of atrocities.--
[1] Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe:-
(i) xxx xxx xxx
(ii) xxx xxx xxx
(iii) xxx xxx xxx
(iv) xxx xxx xxx
(v) xxx xxx xxx
(vi) xxx xxx xxx
(vii) xxx xxx xxx
(viii) xxx xxx xxx
(ix) xxx xxx xxx
(x) intentionally insults or intimidates with intent to
humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;"
11. As per the case of the prosecution, the accused had called the complainant on his mobile number on 23.07.2008 at 19:46 hours and when the accused called the mobile phone of the complainant, PW-2 Shilpa Raghunath Parmar, daughter of the complainant, had picked up the phone and the initial conversation is supposed to have been with PW-2. Thereafter, she gave the phone call to her father, the complainant, and it is on record that the complainant did not hear the caste slurs used by the accused on the phone. Besides the bald allegations of the complainant, there is no other evidence that any such words were used or incident had taken place and PW-3 Kamleshbhai Danabhai Solanki, son in-law of the complainant, who was present in the house, has not uttered any such words that were used by the Page 15 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined accused and has not stated that the complainant or his daughter had told him that such an incident has occurred. The witness has merely stated he was asked to record the conversation, by the time, he began to record the conversation, the telephone was switch off by the person from the opposite end. 11.1 As far as the offence under Section 3(1)(x) of the Atrocities Act is concerned, the intentional insult or intimidation with intention to humiliate a member of the Schedule Caste of Schedule Tribe has to be within a public place and the Investigating Officers, examined as PW-5 and PW-6, have both stated that there was no intentional insult in any public place by the accused. Moreover, the verbal altercation between the accused and the complainant is with regard to the closure of some liquor and gambling dens that were being run by the accused but there is no iota of evidence regarding the same on record. There is nothing to suggest that the accused was ever running any liquor or gambling dens and that the complainant had in any manner filed any application to get the same closed. The document produced at Exh.20 shows the phone call details between the complainant and Page 16 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined the accused and there is no clarification as to what were conversation between them that had taken place earlier. Moreover, the caste certificate of the complainant is produced at Exh.18 but the prosecution has not examined any competent authority to prove the contents of the caste certificate. In view of the above, as there is no evidence to this effect, the contents of the document produced at Exh.18 are not proved.
12. 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 Page 17 of 18 Uploaded by F.S. KAZI(HC01075) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 23:21:44 IST 2025 NEUTRAL CITATION R/CR.A/194/2010 JUDGMENT DATED: 03/02/2025 undefined reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed.
13. The impugned judgment and the order dated 08.10.2009 in Special Atrocity Case No.18 of 2016 passed by the learned Special Judge (Atrocity), 3rd Fast Track Court, Mehsana camp at Visnagar is hereby confirmed.
14. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) F.S.KAZI.....
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