Gujarat High Court
State Of Gujarat vs Bhikhabhai Tapubhai Devipujak on 7 February, 2025
NEUTRAL CITATION
R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 875 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
BHIKHABHAI TAPUBHAI DEVIPUJAK & ORS.
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Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 6
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/02/2025
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 29.01.2010 in Special S.C.S.T.Case No.23 of 2009 passed by the learned Special Judge and Additional Sessions Judge, District Kheda at Nadiad (hereinafter referred to as 'the Trial Court'), whereby, the Trial Court has acquitted the Page 1 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025 NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined respondents - accused from the offences punishable under Sections 354, 504, 506(2) and 114 of the Indian Penal Code (hereinafter referred to as 'the IPC') and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Atrocity Act'). 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 11.01.2008 at around 18:00 hours, the complainant Manjulaben had gone to answer nature's call in the outskirts of village Dhadal, and at that time, the accused No.1 came from behind and caught hold of Manjulaben and dragged her, and at that time, the accused Nos. 2, 3 and 4 along with accused No.1 abused the complainant and the accused No.4 threatened to kill the complainant and all the accused hurdles caste slurs on the complainant. The complainant filed the complaint at Kheda Town Page 2 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025 NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined Police Station, which was registered at I-C.R.No.3 of 2008 on 12.01.2008 under Section 354, 504, 506(2) and 114 of the IPC and Section 3(1)(10) of the Atrocity Act.
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 therefore, after completion of process under Section 209 of the Cr.P.C., the case was committed to the Sessions Court and the same was registered as Special S.C.S.T.Case No.23 of 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 and a charge was framed by the learned Trial Court at Exh.5 and the statements of the accused were recorded at Exhs.6 to 10 respectively, wherein, the accused denied all the contents of the Page 3 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025 NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined charge and the entire evidence of the prosecution was taken on record. The prosecution has examined 9 witnesses and has produced 3 documentary evidences in support of the case. 2.4. After the closing pursis was submitted by the learned APP at Exh.26, 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 for the offences punishable under Sections 323, 504 and 114 of the IPC and Section 3(1)(10) of the Atrocity Act.
3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the Trial Court, the appellant - State has filed the present appeal mainly stating that the impugned judgment and order passed by the Trial Court is contrary to law, evidence on record and principles of justice. The Trial Court has not properly appreciated the oral as well as documentary evidence on record it its true spirit. The Trial Court has erred in acquitting Page 4 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025 NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined the accused through there are ample and cogent evidence to connect the accused with the crime and the offences registered against them. The 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 Trial Court has acquitted the accused. The impugned judgment and order of acquittal passed by the Trial Court is illegal, invalid, improper, perverse and bad in law and the same deserves to be quashed and set aside.
4. Heard learned APP Mr. Bhargav Pandya for the appellant - State. Though served to the respondents, they have not appeared either in person or through an advocate. 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 Page 5 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025 NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined by the prosecution and has vehemently argued that the 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 Trial Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by learned Judge 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 offence. Learned APP has urged this Court to allow the present appeal and impose maximum sentence on the accused.
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 in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415, the Apex Court has observed as under:
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NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined 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 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 Page 7 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025 NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined 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.
6.1 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) 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 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 Page 8 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025 NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined 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 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 Page 9 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025 NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined 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.]
7. 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 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 taken the view in favour of the accused, the Appellate Court should not disturb the findings of the acquittal. The Appellate Court can Page 10 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025 NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined 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.
8. In light of the above, the evidence produced by the prosecution on record is appreciated and the prosecution has examined PW-1 Narendragir Sukhdevgiri Goswami at Exh.12 and PW-2 Umedbhai Udabhai Parmar at Exh.14 both the witnesses are the panch witnesses of the panchnama of the place of offence which is produced at Exh.13. Both the witnesses have stated that while they were passing by on the road, the police called them and asked them to affix their signatures on the panchnama and they had affixed their signatures but, they had not gone to any place with the police and no panchnama has been drawn in their presence. The witnesses have not supported the case of the prosecution and have been declared hostile and cross-examined by the learned APP but, nothing to support the case of the prosecution has come on record.
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NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined 8.1. The prosecution has examined PW-3 Manjulaben Sureshbhai Nayak at Exh.17 and the witness is the complainant, who has stated that at the time of incident, she was going to answer nature's call and the daughter of her brother in-law was with her, and at that time, the accused No.1 caught her and dragged her. That she shouted and her niece came and they returned home. After they returned home, she went to scold the wife of the accused No.1 and after scolding the wife of the accused No.1, she came back home, and at that time, all the accused threatened to kill her. On the next date, she went and filed a complaint, which is produced at Exh.18. That all the accused abused her and hurled caste slurs on her. During the cross- examination by the learned advocate for the accused, the witness has stated that she is residing at village Dhadal for the last 15 years and the place where they are residing is not frequented by any person. That her husband is a truck driver and two days prior to the incident, Goblej Police had taken her husband and had taken him to Kheda Town Police Station where there was a case registered against him and he was put in the lock-up. That her Page 12 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025 NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined husband was released on the next day and the accused were also arrested and released on the next day. That in the year 2004, she had filed the case under the Atrocity Act against the accused and they have a dispute for the last 5 to 6 years. That in her statement before the police, she did not mention that the accused abused any caste slurs against her.
8.2. The prosecution has examined PW-4 Sumtritaben Subhashbhai Nayak at Exh.19 and the witness is the eye-witness of the incident and niece of the complainant. The witness has stated on the day of the incident, she and the complainant had gone to answer the nature's call, and at that time, the accused No.1 came from behind and caught the complainant. That both of them shouted and the accused No.1 released the complainant and ran away. During the cross-examination by the learned advocate for the accused, the witness has stated that she is aware that the accused and the complainant have cross cases filed against them and on a number of occasions, the police has come and taken Sureshbhai and the accused. After Sureshbhai was taken, she came to know that liquor was found from the house of Sureshbhai Page 13 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025 NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined and the place where they had gone to answer nature's call is not frequented by any persons. That on the previous day, the police had taken Sureshbhai and other accused and they were kept in lock-up and they were released on the next day. 8.3. The prosecution has examined PW-5 Ramilaben Bachubhai Nayak at Exh.20 is the neighbour of the complainant who had supported the case of the prosecution and has narrated the incident that had occurred that the complainant and her niece Sumitraben had gone to answer nature's call. The witness has stated that after the complainant returned home, she went to scold the wife of the accused No.1 and after she returned, all the accused came and threatened her. During the cross-examination by the learned advocate for the accused, the witness has admitted that the accused and the complainant are having a fight for last 6 to 7 years and they have filed complaints against each other and similar case was filed about 5 years ago. That the complainant had taken Rs.20,000/- for compromise and the accused No.4 had filed the complaint against her at Kheda Town Police Station. Page 14 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025
NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined 8.4. The prosecution has examined PW-6 Sureshbhai Damabhai Nayak at Exh.21 and the witness is the husband of the complainant who has supported the case of the prosecution. During the cross-examination, the witness has stated that earlier he had filed Atrocity Case No.6 of 2005, and prior to that, the relation with the accused was good and after they were acquitted, the relation had been spoiled. That a case was filed against him and Kantibhai Abhesinh Nayak that 7 boxes of liquor were found, and at that time, the father of the accused No.1 was his surety. That two days prior to the incident, he and the accused were taken by Goblej Police, and from there, they were taken to Kheda Police Station and they were placed in lock-up and were released on the next day. That he and his wife did not like that the accused were released on the next day.
8.5. The prosecution has examined PW-7 Manilal Sukarbhai Gavit at Exh.22 and the witness is the District Vigilance Officer, who had issued the caste certificate of the complainant and has produced the extract of the Register at Exh.23, wherein, at Sr.No.48, the details of the caste certificate issued to the Page 15 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025 NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined complainant are mentioned. During the cross-examination, the witness has stated that the caste certificate is given on the basis of School Leaving Certificate and the caste and sub-caste is written in the School Leaving Certificate is verified with the Schedule. The original School Leaving Certificate is taken by them but he has not produced the other documents before the Trial Court. 8.6. PW-8 Vimlaben Mangalbhai Solanki is examined at Exh.24 and the witness is the PSO, who had registered the complaint of the complainant at Kheda Town Police at I-C.R.No.3 of 2008.
8.7. The prosecution has examined PW-9 Nareshbhai Harjibhai Patel at Exh.25 and the witness is the Investigating Officer, who has narrated in detail all the procedure that was undertaken by him during investigation. During the cross- examination, the witness has stated that in the complaint, no caste slurs were used, and hence, the complaint was filed under Sections 504, 506(2), 354 and 114 of the IPC and during investigation, it was found that there were a number of cases pending between both the Page 16 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025 NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined parties.
9. On minute appreciation of the entire evidence of the prosecution, as per the case of the complainant, the complainant and her niece went to answer nature's call at a secluded place where the incident of the accused No.1 catching hold of the complainant from behind has occurred. Admittedly at this place, there were no other persons present beside the complainant and her niece and the next incident has occurred in full public view but, no independent witnesses have been examined by the prosecution. PW-5 Ramilaben Bachubhai has been examined at Exh.20 but, during the cross-examination, it has emerged that the accused No.4 had filed a complaint against her and it cannot be said that she would depose independently as she had axe to grind with the accused No.4. Moreover, it has also come on record that innumberable cases have been filed between the complainant and the accused and there was an existing enmity between them and, immediately, prior to the incident, the husband of the complainant and the accused were arrested by the Goblej Police and taken to Kheda Police Station and they were placed in the same lock-up. Page 17 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025
NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined That all of them were released on the next day and the husband of the complainant has stated that they were not happy that the accused were released. That manner, in which, the incident has occurred, as narrated by the complainant, is not believable in light of the fact that innumerable cases have been filed against them and cases under the atrocity cases have also been filed by the complainant against them.
10. In view of the above, the 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 Trial Court has appreciated all the evidence and this Court is of the considered opinion that the Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Trial Court. This Court finds no reason to interfere with the impugned judgment Page 18 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:01:57 IST 2025 NEUTRAL CITATION R/CR.A/875/2010 JUDGMENT DATED: 07/02/2025 undefined and order and the present appeal is devoid of merits and resultantly, the same is dismissed.
11. The impugned judgment and the order dated 29.01.2010 in Special S.C.S.T.Case No.23 of 2009 passed by the learned Special Judge and Additional Sessions Judge, District Kheda at Nadiad 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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