Gujarat High Court
State Of Gujarat vs Jagatsinh Khumansinh Parmar on 20 February, 2025
NEUTRAL CITATION
R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2106 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
JAGATSINH KHUMANSINH PARMAR & ANR.
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Appearance:
MR.BHARGAV PANDYA, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 20/02/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed by the learned 3 rd Additional Sessions Judge, Banaskantha at Palanpur (hereinafter referred to as "the learned Trial Court") in Special (ATRO) Case No. 94 of 2009 on 30.08.2010, whereby, the learned Trial Court has acquitted the respondent-original accused for the offence punishable under Sections 452, 354, 509 and 506(2) of Indian Penal Code, 1860 (hereafter referred Page 1 of 15 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:47:04 IST 2025 NEUTRAL CITATION R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025 undefined to as "IPC" for short) and Section 3(1)(10) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Atrocities Act"). The respondent is 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 That the complainant was working as an Assistant Teacher in the Virampur Primary School and residing at Sujal Vas in Virampura and the accused was working as Teacher at Godiya Village and was residing two houses away from the complainant. The complainant filed the complaint on 10-06-2009, mainly stating that between 01-03-2009 and 06-01-2009, every morning between 09:30 AM to 10:00 AM, the accused used to enter into the house of the complainant in the absence of her husband and would make obscene gesture and make illegal demands from the complainant and threatened the complainant that if she would not surrender to him and if she would tell any-one about his visits, she and her children would not be safe. The accused also tried to molest her and as she was afraid, she proceeded on leave and went to her father's place at Surat and informed her husband about the incident at Surat. That she also gave an application to the District Primary Education Officer and Page 2 of 15 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:47:04 IST 2025 NEUTRAL CITATION R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025 undefined thereafter went to the Amirgadh Police Station and filed the complaint under Sections 452, 354, 509 and 506(2) of the IPC and Sections 3(1) (10) of the Atrocities Act which was registered as I-C.R.No. 49 of 2009 on 10-06-2009.
2.2 The Investigating Officer recorded the statements of the connected witnesses and seized the necessary documents and after completion of investigation, a chargesheet came to be filed before the Court of Judicial Magistrate First Class, Amirgadh and as the said offences against the accused was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Banaskantha as per the provisions of Section 209 of the Code of Criminal Procedure and case was registered Special (ATRO) Case No. 94 of 2009.
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 at Exh. 5 was framed against the accused and the statement of the accused was recorded at Exh. 6, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. 2.4 The prosecution produced the following evidence to bring home the charge against the accused.
Page 3 of 15 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:47:04 IST 2025 NEUTRAL CITATION R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025 undefined ORAL EVIDENCE Sr. P.W. Name of the witnesses Exh. No. Nos 1. 1. Anitaben Chimanbhai Patel 14 2. 2. Dineshkumar Ramanbhai Patel 19 3. 3. Chimanbhai Barjulbhai Patel 20 4. 4. Mahammadkhan Shrekhan 24 5. 5. Mahesanasinh Ratansinh Rathod 28 DOCUMENTARY EVIDENCE Sr. Particulars Exh. No. 1. Complaint 15 2. Caste certificate of complainant 16 3. Application sent to District Primary Education 17 Officer 4. Application to DSP 18 5. Panchnama of scene of offence 22 6. Arrest panchnama 23 7. Crime Report 26 8. Summary Report 27 2.5 After the learned Additional Public Prosecutor filed the closing
pursis at Exh. 29, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded, wherein, the Page 4 of 15 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:47:04 IST 2025 NEUTRAL CITATION R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025 undefined accused denied all the evidence of the prosecution on record. The accused refused to step into the witness box or examine witnesses on their behalf and stated that a false case has been filed against them. After the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the learned trial Court by the impugned judgment and order was pleased to acquit all the accused from all the charges leveled against him.
3. Being aggrieved and dissatisfied with the said judgement and order of acquittal, the appellant - State has filed the present appeal mainly stating that the impugned judgement 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 favour of the respondent. The case has been proved beyond reasonable doubts and the prosecution has successfully established the case against the respondent and the judgement and order of acquittal is unwarranted, illegal and without any basis in the eyes of law and the reasons stated while acquitting the respondent 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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NEUTRAL CITATION R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025 undefined
4. Heard learned APP Mr. Bhargav Pandya for the appellant State. Though served, none appears on behalf of the respondent(s) 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 Mr. Bhargav Pandya has taken this Court through the entire evidence of the prosecution on record of the case and has submitted that the prosecution has proved the case through the evidence of the complainant who herself was an educated persons and working in Virampur Primary School and as she was afraid of the threats of the accused, she proceeded on leave and went to Surat and informed her husband at Surat about the incident. The complainant and the accused were known to each other and the husband of the complainant and the father of the complainant have also supported the case of the prosecution. That the learned trial Court Court has not appreciated the evidence properly and the accused must be found guilty for the said offence. Learned APP has urged this Court that the impugned judgement and order is improper, perverse and bad in law and is required to be quashed and set aside.
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 Page 6 of 15 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:47:04 IST 2025 NEUTRAL CITATION R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025 undefined 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 v. 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 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. Page 7 of 15 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:47:04 IST 2025
NEUTRAL CITATION R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025 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 a 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. In light on the above settled principles of law and considering the evidence on the prosecution, to bring home the charge against the accused, the prosecution has examined Prosecution Witness No. 1 - Amitaben Chimanbhai Patel at Exh. 14 and the witness is the complainant, who has narrated all details as stated in the complaint. The complainant has produced the complaint at Exh.15 and her caste certificate at Exh.16. The complainant has been cross examined at length by the learned advocate for the accused, wherein, she has stated that if any person wants to come her house from the porch, they had to come Page 8 of 15 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:47:04 IST 2025 NEUTRAL CITATION R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025 undefined from the eastern door in to a Chowk and from there come north to the west of the gold smith shop and from there to Mafabhai Luhar Shop and turn south and enter her house. That the accused was residing with his wife and children and if he would come from the porch, the people residing would see him. That the brother-in-law of the accused used to give tuition to her children and four months prior to the incident, the accused was transferred from her school. That her family and the family of the accused used to go out together and before filing application, she did not tell anyone in the school or in the village about the accused. That she had proceeded on casual leave for two days after the festival of Holi and she and her husband went to Surat and before leaving for Surat, they kept their motorcycle at the house of the accused. That the accused, his wife and children had also gone to their home town and her husband opened the house of the accused and placed his motorcycle inside. On the day before, accused and his wife had come to their house and in the application that she gave to the District Primary Education Officer, she did not state that the accused visited her house every day from 01-03- 2009 to 06-03-2009 in the absence of her husband and that he would make illegal demands and would make obscene gestures to her. The application of the applicant given to the District Primary Education Page 9 of 15 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:47:04 IST 2025 NEUTRAL CITATION R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025 undefined Officer is produced at Exh.17 and the application given to the DSP, Banaskantha at Palanpur is produced at Exh.18.
8.1 The prosecution has examined Prosecution Witness No. 2 - Dineshkumar Ramnbhai Patel at Exh.19 and the witness is the husband of the complainant, who has supported the case of the prosecution.
During the cross examination by the learned advocate for the accused, the witness has stated that after they reached Surat between 08:00 am and 09:00 AM, his wife informed him about the incident. That she did not say anything while they sat in a bus at night and she informed him after they reached home. That he did not know anything about the behaviour of the accused prior to this and before leaving he had placed his motorcycle in the house of the accused. That before they left for Surat on the previous day, the accused and his wife came to their house and they too visited the house of the accused earlier. That, they had taken advise to file the complaint under the Atrocities Act and after they had received the advise, there were told to draft the application to show that an offence under the Atrocities is made out. 8.2 The prosecution has examined Prosecution Witness No. 3 - Chimanbhai Barjilbhai Patel at Exh.20 and the witness is the father of the complainant, who has stated that on 08-03-2009, his daughter had come to his house at Surat and informed him about the incident. That she had Page 10 of 15 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:47:04 IST 2025 NEUTRAL CITATION R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025 undefined filed an application with the District Primary Education Officer and had requested that she be transferred from Virampur and had given the complaint with Amirgadh Police Station.
During the cross examination by the learned advocate for the accused, the witness has stated that he too was a teacher and he was well aware about the place to file the complaint. The application to the District Education Primary Officer was prepared by his son-in-law at Palanpur and his son is working at Tharad. That his son-in-law was working at Palanpur and his daughter had tried to get transfer to any place near Palanpur. That his son-in-law was commuting from Virampur to Palanpur. That while they were residing at Virampur, his daughter had two children and she had a mail to work for her at home. 8.3 The prosecution has examined Prosecution Witness No. 4 - Mahammadkhan Sherkhan at Exh. 24 and the witness is the PSO, who has registered the complaint of the complainant. 8.4 The prosecution has examined Prosecution Witness No. 5 - Mahendrasinh Ratansinh Rathod at Exh.28 and the witness is the Investigating Officer, who has deposed about the manner in which he has investigated the offence.
During the cross-examination by the learned advocate for the accused, the witness has stated that, during investigating, he did not find Page 11 of 15 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:47:04 IST 2025 NEUTRAL CITATION R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025 undefined that the complainant had given any application to the Dy.S.P. but she had given an application to the District Primary Education Officer and the DSP as she has stated that in her complaint. That he did not inquire whether the application sent to the DSP, Palanpur was sent to Amirgadh Police Station and he did not go to the District Primary Education Officer to inquire about the application of the complainant. That he had recorded the statements of neighbors but they did not support the case of the prosecution and he had not recorded the statements of the family of residing in the same building. That, 01/03/2009, was a Sunday and the husband of complainant would be at home but he did not inquire about the same and during investigation, it was found that the complainant resided with her husband and two children.
9. On minute dissection of the entire evidence of the prosecution, it appears that the complainant is an educated person and was working as a Assistant Teacher in Virampur Primary School and as per her say, the incident has occurred from 01-03-2009 to 06-03-2009 but the complaint has been filed on 10-03-2009. PW No. 2 Dineshkumar Ramanbhai Patel, the husband of the complainant has clearly admitted that they had taken advice regarding filing of the complaint and as per the advice that they had received, they drafted the application so that a case under the Atrocities Act would made out. There is no explanation regarding the Page 12 of 15 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:47:04 IST 2025 NEUTRAL CITATION R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025 undefined delay in filing of the complaint and during the cross examination, it has emerged on record that there were good family relation between the family members of the complainant and the family members of the accused and they used to visit each other houses and also go for outings. Moreover, the children of the complainant also resided with her and it is admitted that she had she had kept one maid to help her with the household work but there is nothing on record to suggest as to where the other household members were during the incident. That even the day before that she left for Surat, the accused and his wife had come to visit the complainant's house and her husband at her house and while they were leaving for Surat, the complainant and her husband had kept their motorcycle in the house of the accused. Moreover, if the complaint and the deposition of the complainant is perused, she has merely stated that the accused used to make illegal demands from her but she has not specified as to what obscene gestures or what illegal demands was in fact made by the accused. The Investigating Officer has recorded the statements of the neighbors but none of the neighbors have supported the case of the prosecution and hence there is no evidence of any independent witnesses that has come on record. There is no iota of evidence to suggest that the accused had at any point of time, entered into the house of the complainant and the conduct of the complainant, Page 13 of 15 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:47:04 IST 2025 NEUTRAL CITATION R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025 undefined immediately after the incident, is also doubtful. The complainant states that from 01-03-2009 to 06-03-2009, the accused used to visit her house every morning between 09:00 AM and 10:00 AM in the absence of her husband, but it is surprising that she has not intimated her husband about the visit of the accused when the husband of the complainant came back in the evening. It was only after when they reached at Surat on the next date that the complainant told her husband about the behavior of the accused and thereafter on their return, the husband of the complainant went to take advice and thereafter the complaint was filed. It clearly transpires that the complaint is filed as an afterthought and if in fact the accused had threatened the complainant, she would have immediately informed her husband about the incident.
10. In view of the settled position of law in the decisions of Chandrappa (supra) and Sri Dattatraya (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 Page 14 of 15 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:47:04 IST 2025 NEUTRAL CITATION R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025 undefined 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 learned 3rd Additional Sessions Judge, Banaskantha at Palanpur in Special (ATRO) Case No. 94 of 2009 on 30.08.2010, is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 15 of 15 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:47:04 IST 2025