Gujarat High Court
State Of Gujarat vs Mahebubbhai Hanifbhai Multani on 13 February, 2025
NEUTRAL CITATION
R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1630 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
=============================================
Approved for Reporting Yes No
=============================================
STATE OF GUJARAT
Versus
MAHEBUBBHAI HANIFBHAI MULTANI & ORS.
=============================================
Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR BHAVIN S RAIYANI(3855) for the Opponent(s)/Respondent(s) No. 1,2
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 3
=============================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 13/02/2025
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 05.03.2008 in Sessions (Special Atrocity) Case No.183 of 2007 passed by the learned Additional Sessions Judge and Presiding Officer, Main Fast Track Court, Gondal (hereinafter referred to as 'the learned Trial Court'), whereby, the learned Trial Page 1 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined Court has acquitted the respondents - accused from the offences punishable under Sections 323, 324, 341, 504 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') and Section 37(1) and 135 of the Bombay Police Act (hereinafter referred to as 'the B.P.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 25.07.2007, the complainant was in the market near the Pan Cabin of his friend and was speaking to his friend about Airtel business and at about 12:45pm, the accused No.1 came and asked him why he had entered into a love marriage with his sister Shahenaz. The accused No.4 caught him by the collar and other relatives came one by one and caught him and about 9 to 10 persons assaulted and abused him, and hurled caste slurs. The complainant filed the complaint with Gondal Police Station under Page 2 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined Sections 324, 323, 341, 504 and 114 of the IPC, Section 37(1) and 135 of the B.P.Act 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, the process under Section 209 of the Cr.P.C. was undertaken and the case was committed to the Sessions Court and the same was registered as Sessions (Special Atrocity) Case No.183 of 2007. 2.3. The accused was duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of the Code and a charge was framed by the learned Trial Court at Exh.5 and the statements of the accused were recorded at Exhs. 6 and 7, 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 11 witnesses and has produced 14 documentary Page 3 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined evidence in support of the case.
2.3. After the closing pursis was submitted by the learned APP at Exh.35, 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, 324, 341, 504 and 114 of the IPC, Section 3(1)(10) of the Atrocity Act and Section 135 of the B.P.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 natural 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 erred in appreciating the direct and indirect evidence produced in this case connecting the accused Page 4 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined with the crime. The learned Trial Court has erred in appreciating the oral as well as documentary evidence produced by the prosecution in its true spirit and straightway arrived at the conclusion that the prosecution has failed to prove the case beyond reasonable doubts. The learned Trial Court has failed in holding that the prosecution has failed to prove particular words of abuses, which were used by the accused. The learned Trial Court has committed error in giving undue importance to minor omissions and contradictions in the evidence of the prosecution witnesses. 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.
4. Heard learned APP Mr.Bhargav Pandya for the appellant - State. and learned advocate Mr.Bhavin Raiyani for the respondents - 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 Page 5 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined 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 the learned Judge is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by learned Trial Court 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.
6. Learned advocate Mr.Bhavin Raiyani 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 Page 6 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined 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 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 Page 7 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined 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.
(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.
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 is some manifest illegality or 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 Page 8 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined 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 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 Sunilbhai Koshorbhai Solanki at Exh.9 and the witness is the complainant who has stated that at the time of incident the accused No.1 abused him, and beat him with his hand Page 9 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined and with a PVC pipe. That the accused uttered caste slurs and the incident had occurred because he had entered into the love marriage with the sister of the accused. That he had filed the complaint which is produced at Exh.10. During the cross- examination, the witness has stated that he got married on 06.05.2006 and the marriage was registered on 08.05.2006 and he does not know whether the divorce had taken place on 15.05.2006. The witness has stated that at the time of incident, he was working with his uncle and he does not remember the name of the shop where he was standing or the name of his friend with whom he was talking. That he had given the complaint at the Government Hospital, Gondal and as he was afraid, he had named the uncle and other relatives in the complaint.
9.1. The prosecution has examined PW-2 Girishbhai Becharbhai Parmar at Exh.11 and the witness is the uncle of the complainant, who has supported the case of the prosecution and has stated that on 25.07.2007, he was informed on telephone that his nephew was beaten up by his brother in-laws in Parekh Street and he informed the City Police Station. That the police went to Page 10 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined the spot but his nephew was not found and one Hiteshbhai brought his nephew to his office on the motorcycle. That he was injured and was taken to the Government Hospital, Gondal and was admitted and thereafter, was taken to Civil Hospital, Rajkot. During the cross-examination, the witness has stated that the complainant was married to the sister of the accused No.1 and the papers of marriage show the date 08.05.2006 and the papers of divorce show the date 15.05.2006. The marriage had taken place at 'panchnath' temple and he had gone for the registration of the marriage.
9.2. The prosecution has examined PW-3 Hiteshbhai Ramjanambhai Shukla at Exh.12 and the witness has stated that he and the complainant were at the pan shop and at that time, one person came and started quarreling with the complainant but at that time, he received the phone call from his home and he left the place.
9.3. The prosecution has examined PW-4 Rampravesh Mahendra Shah at Exh.13 and the witness is the Medical Officer working at Government Hospital, Gondal, who had treated the Page 11 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined complainant. The witness has stated that on 25.07.2007 at around 12:30hours, Sunil Kishorbhai Solanki was brought without yadi for treatment and in the history, he had given alleged physical assault and on examination, there was an abrasion over right the elbow 1cm X 1cm which was red colour. The X-ray of right thigh and X- ray of left leg was taken but no abnormality was detected and in the X-ray of right left, there was an old healed fracture. The patient was referred for expert opinion to Civil Hospital, Rajkot and the injury certificate of the complainant is produced at Exh.14. During the cross-examination, the witness has stated that the complainant did not name the persons who had assaulted him and there was no injury on the scalp but the complainant had complaint of pain over the scalp. That no fresh injuries were found on the right thigh or right leg.
9.4. The prosecution has examined PW-5 Hirenbhai Sureshbhai Chhatbar at Exh.15 and the witness is the eye witness to the incident, who has stated that the complainant had taken a cigaratte and on the next date, he had a quarrel near his shop a little away but he does not know with whom the quarrel had taken Page 12 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined place. The witness has not supported the case of the prosecution. During the lengthy cross-examination by the learned advocate for the accused, nothing has come on record to support the case of the prosecution.
9.5. The prosecution has examined PW-6 Vinubhai Becharbhai Parmar at Exh.25 and PW-7 Bashirmiya Kadarmiya Kazi at Exh.27. Both the witnesses are the panch witnesses of the arrest panchnama produced at Exh.26. Both the witnesses have stated that they were not called as panch witnesses and had merely affixed their signatures on the panchnama which is produced at Exh.26.
9.6. PW-8 Arjunbhai Rupsangbhai Parmar examined at Exh.28 is the in-charge PSO who had recorded the complaint of the complainant. During the cross-examination, the witness has stated that in the complaint, the complainant had stated the name of one accused and 9-10 other persons who had assaulted him. 9.7. PW-9 Ramnikbhai Harilal Lakhtariya examined at Exh.29 was working as PSO, who had registered the complaint of Page 13 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined the complainant at I-C.R.80 of 2007 under Sections 323, 324, 341, 504 and 114 of the IPC, Section 3(1)(10) of the Atrocity Act and Section 135 of the B.P.Act.
9.8. PW-10 Gautam Manilal Parmar examined at Exh.31 is the Investigating Officer who had investigated the offence and has narrated in detail the entire procedure undertaken by him during investigation. In the cross-examination, he has stated that he had recorded the further statement of the complainant and statements of the connected witnesses and in the complaint, it was mentioned that 9-10 persons had assaulted the complainant. In the further statement on 27.07.2007, the name of three persons were given. That the complainant did not give the name of the son of the uncle of the accused No.1 but, on investigation, it was found that he was aged 7 years and was falsely implicated by the complainant in the offence.
9.9 The prosecution has examined PW-11 Dr.Janmejay Krishnachandra Nathwani at Exh.32 and the witness is the Medical Officer, who was on duty at Civil Hospital, Rajkot on 25.07.2007, when the complainant was brought for treatment. The Page 14 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined witness has stated that in the history the complainant has stated that he was beaten up by a stick and he had a complaint of pain on right thigh and right leg and on examination, there was an abrasion on the elbow, dorsum aspect 3cm X 1cm with clotted blood. The X-ray was taken but no abnormality was detected and the medical certificate is produced at Exh.33. During the cross- examination, the witness has stated that the patient did not give the names of the persons, who had assaulted him, in the history and the abrasion on dorsum of the elbow could be sustained when a person had fallen down from a motorcycle. That no external injury was found on the right leg of the complainant and the fracture in the right tibia was an old fracture.
10. On minute appreciation of the entire evidence of the prosecution, the eye witnesses PW-3 and PW-5 have not supported the case of the prosecution and the PW-2, the uncle of the complainant, is not an eye witness to the incident. Admittedly, it appears that the complainant was married to the sister of the accused No.1 on 08.05.2006 and a divorce had taken place on 15.05.2006 and there was a dispute between the complainant and Page 15 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025 NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined the accused. In the complaint, the complainant had stated that the accused No.1 and 9-10 other persons had assaulted him but during investigation, it was found that no other persons had assaulted the complainant and he had falsely implicated the others including the 7 years old child of the uncle of the accused No.1. It is on record that the complainant knew the accused No.1 from prior to the incident as he had a love marriage with the sister of the accused No.1 but, he has not named the accused No.1 as the assailant before the Medical Officer, Gondal as well as the Medical Officer, Rajkot. Moreover, the complainant has stated that he was assaulted by a PVC pipe but in the history before the Medical Officer at Rajkot, he had stated that he was assaulted by a stick. The medical evidence does not corroborates the say of the complainant and in the Medical Certificate produced at Exh.14 and Exh.33 no injuries are seen on the complainant and the say of the complainant is not corroborated by the medical evidence. There is no evidence on record to show that the incident as narrated by the complainant has taken place or that the accused had assaulted the complainant and had used any abusive caste slurs at the time of incidents.
Page 16 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025
NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined
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.
12. The impugned judgment and the order dated 05.03.2008 in Sessions (Special Atrocity) Case No.183 of 2007 passed by the learned Additional Sessions Judge and Presiding Officer, Main Fast Track Court, Gondal is hereby confirmed. Page 17 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025
NEUTRAL CITATION R/CR.A/1630/2008 JUDGMENT DATED: 13/02/2025 undefined
13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) F.S.KAZI Page 18 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:07:35 IST 2025