Gujarat High Court
State Of Gujarat vs Adambhai Abdulbhai Vagadiya ... on 20 February, 2025
NEUTRAL CITATION
R/CR.A/1887/2010 JUDGMENT DATED: 20/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1887 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
ADAMBHAI ABDULBHAI VAGADIYA (MUSALMAN) & ANR.
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
JUCKY LUCKY CHAN(8033) for the Opponent(s)/Respondent(s) No. 2
MR DHAVAL M BAROT(2723) for the Opponent(s)/Respondent(s) No. 1
MS PARUL M MAHIDA(11694) for the Opponent(s)/Respondent(s) No. 2
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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 Special Judge, Banaskantha, Palanpur (hereinafter referred to as "the learned Trial Court") in Special Case No. 8 of 2009 on 28.07.2010, whereby, the learned Trial Court has acquitted the respondents for the offence punishable under Section 506(2) of Indian Penal Code, 1860 (hereafter referred to as "IPC" for short) and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), 1989. Page 1 of 13 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:50 IST 2025
NEUTRAL CITATION R/CR.A/1887/2010 JUDGMENT DATED: 20/02/2025 undefined 1.1 The respondent is hereinafter referred to as the accused in the rank and file as he 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 Pushpaben Arvindbhai Ninama was working as Additional Taluka Development Officer in the Taluka Panchayat Office and on 10/10/2008 16:20 Hrs., while she was working, the accused entered into her office and was using abusive language and she went and asked him why he was using abusive language and who was he? That, he told that he was a reporter of the message and his name was Aadambhai and he used caste-slurs and told her that he had her recording and at that time, he threatened to cut her into pieces and throw her in such way that she would not be found and hence the complainant filed the complaint at Danta Police Station, which was registered at II-C.R.No. 3080 of 2008 for the offence under Sections 186, 504 and 506(2) of the IPC and Section 3(1)(10) of the Atrocities Act.
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, Danta and as the said offences against the accused Page 2 of 13 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:50 IST 2025 NEUTRAL CITATION R/CR.A/1887/2010 JUDGMENT DATED: 20/02/2025 undefined was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Banaskantha at Palanpur as per the provisions of Section 209 of the Code of Criminal Procedure and case was registered Special Case No. 8 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. 4 was framed against the accused and the statement of the accused was recorded at Exh. 5, 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.
ORAL EVIDENCE Sr. P.W. Name of the witnesses Exh.
No. Nos 1. 1. Pushpaben Arvindbhai Ninama 6 2. 2. Kanjibhai Hemrajbhai Chaudhary 20 3. 3. Devendrabhai Babubhai Vaniya 21 4. 4. Keshabhai Punjabhai Rathod 22 5. 5. Silvester Khandas Mekwan 27 Page 3 of 13 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:50 IST 2025 NEUTRAL CITATION R/CR.A/1887/2010 JUDGMENT DATED: 20/02/2025 undefined DOCUMENTARY EVIDENCE Sr. Particulars Exh. No. 1. Complaint 7 2. Panchnama of scene of offence 11 3. Arrest panchnama 12 4. Caste Certificate of the complainant 8 5. Appointment order of the complainant 9 6. Report of PSI to Dy.S.P. 23 7. Wireless Message 24 8. Report of Offence 25 2.5 After the learned Additional Public Prosecutor filed the closing
pursis at Exh. 28, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, the accused denied all the evidence of the prosecution on record. The accused refused to step into the witness box or examine witnesses on his behalf and state that a false case has been filed against him. 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 the accused from all the charges leveled against him.
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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 cross-examination, nothing adverse has been elicited in favour of the respondents. The case has been proved beyond reasonable doubts and the prosecution has successfully established the case against the respondents 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.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant State with Mr. J.L.Chan, learned advocate for the original complainant and learned advocate Mr. Dhaval Barot for the respondent No.1-accused. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case.
5. Learned APP Ms. Jirga Jhaveri has taken this Court through the entire evidence of the prosecution on record of the case and submitted Page 5 of 13 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:50 IST 2025 NEUTRAL CITATION R/CR.A/1887/2010 JUDGMENT DATED: 20/02/2025 undefined that it is settled position of law that the evidence of a single witness is sufficient for conviction, if the same is reliable and trustworthy and in the instances case, the evidence of all the witnesses are reliable and trustworthy but the learned trial Court committed a grave error in disbelieving and disregarding the evidence of the said witnesses. The learned trial Court has not appreciated the documents and all the witnesses have supported the say of the complainant but the learned trial Court has, relied on the minor contradictions and omissions, passed the impugned order. 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. Learned advocate Mr. Dhaval Barot for the respondent No. 1- accused has submitted that the learned Trial Court has appreciated all the evidences and passed the judgement and order of acquittal which is just and proper and no interference is required in the same and learned Advocate for the respondents has urged this court to reject the appeal of the appellant.
7. Learned advocate Mr. J.L.Chan appearing for the original complainant has adopted the arguments canvassed by the learned Additional Public Prosecutor appearing for the Appellant-State. Page 6 of 13 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:50 IST 2025
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8. 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, 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 Page 7 of 13 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:50 IST 2025 NEUTRAL CITATION R/CR.A/1887/2010 JUDGMENT DATED: 20/02/2025 undefined 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.
9. 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.
10. 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 - Pushpaben Arvindbhai Ninama at Exh. 6 and the witness is the complainant, who has fully supported the facts of the complaint, which is Page 8 of 13 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:50 IST 2025 NEUTRAL CITATION R/CR.A/1887/2010 JUDGMENT DATED: 20/02/2025 undefined produced at Exh.7. The witness has produced the caste certificate at Exh.8.
During the cross-examination by the learned advocate for the accused, the witness has stated that prior to Danta, she was working at Vadali as a Mamlatdar and she had given the payment of check dam to Rachnatmak Sangh. That the supervision of check dam is done by her office and the check dams, for which, the payment was done, was supervised by Shri R.P.Padhyar. That the payment was to be given after the Supervisor and committee's completion report and she had not visited the check dams before payment. That she had visited Jambera check dam, Rupvas check dam and Rinchhidi check dam. That she had paid Vasantbhai Bhatod for one check dam and the works of check dam of Jambera, Rupvas and Rinchhdi and Jumfadi were to be paid at the rate of Rs.69,000/- per check dam. That the work was under Shri R.P.Padhiyar and the completion report was also submitted. The incident had occurred at 04:20 Hrs and she filed the complaint at 06:05 Hrs at Danta Police Station but she did not inform Danta Police Station on the telephone about the incident. That, at the time of incident, all the staff members had gathered and she had mentioned in the complaint that all the people had gathered. That when the accused was abusing her, he was saying, he had Page 9 of 13 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:50 IST 2025 NEUTRAL CITATION R/CR.A/1887/2010 JUDGMENT DATED: 20/02/2025 undefined a recording with him. That, she was given a vehicle by the Taluka Panchayat and she could reach the Police Station in 10 minutes. 10.1 The prosecution has examined Prosecution Witness No.2 - Kanjibhai Hemrajbhai Chaudhary at Exh.20 and the witness is the eye- witness to the incident as he was working with the complainant and has suffered the case of the prosecution.
During the cross-examination by the learned advocate for the accused, the witness has stated that the accused was a reporter of the message and at the time of the incident, the accused had told the complainant that he had a recording.
10.2 The prosecution has examined Prosecution Witness No. 3 - Devendrabhai Babhubhai Vaniya at Exh.21 and the witness is the eye- witness as he was working in the same office.
During the cross examination by the learned advocate for the accused, the witness has stated that when Bhatiya and Chaudhary were having discussion, he was not present and no-one had come there hearing loud shouts of parties. That only three of them would hear what was being said.
10.3 The prosecution has examined Prosecution Witness No. 4 - Keshabhai Punjabhai Rathod at Exh. 22 and this witness has recorded the complaint of the complainant.
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NEUTRAL CITATION R/CR.A/1887/2010 JUDGMENT DATED: 20/02/2025 undefined During the cross examination of the learned advocate for the accused, the witness has stated that the complainant came at around 06:05 Hrs.and she had not produced any documents while filing the complaint.
10.4 The prosecution has examined Prosecution Witness No. 5 - Silvester Khandas Mekwan at Exh. 27 and the witness is the Investigating Officer who has narrated all the procedure in detail that he had undertaken during investigation for the offence.
During the cross-examination by the learned advocate for the accused, the witness has stated that the accused had produced a railway ticket and he had made a statement before the police that the accused had told the complainant that he has his recording. During investigation, it was found that the accused had the recording of the complainant but he has not investigated about the same and the Investigating Officer has also not investigated what was the recording about.
11. On minute dissection of the entire evidence of the prosecution, the infirmities in the evidence have come on record and there is no iota of evidence that at the time of the incident, the accused used caste-slurs and the accused was well aware of the caste of the complainant. The caste of the complainant has not been proved by the prosecution and the caste certificate of the complainant is produced at at Exh.8 and in the Page 11 of 13 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:50 IST 2025 NEUTRAL CITATION R/CR.A/1887/2010 JUDGMENT DATED: 20/02/2025 undefined deposition of the complainant. The Investigating Officer has not recorded the statement of any competent authority, who had issued the caste certificate of the accused to the complainant and there is no evidence as to whether the complainant was in fact a member of the Scheduled Caste or Scheduled Tribe.
11.1 The evidence that emerges on record is that the complainant was in-charge of making the payment for check-dams and it appears that the complainant had made some payment where the work was not concluded and the accused had a recording of the same but the IO has not investigated about this aspect and hence the recordings have not come on record. Moreover, the witnesses that have been examined by the prosecution are subordinates to the complainant and the exact words used by the complainant, have not been mentioned by the complainant or the witnesses and there is no consistency in the evidence. Apparently, the incident had occurred at 04:20 Hrs and the complainant had a government vehicle and she had a mobile and the Police Station was only ten minutes away but she did not immediately go to the police station, but reached at 06:05 Hrs. The learned trial Court has appreciated the oral and documentary evidence and the view taken by the learned trial Court seems to be plausible one and the prosecution has has not proved beyond reasonable doubts.
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12. 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 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.
13. The impugned judgement and order of acquittal passed by the learned Special Judge, Banaskantha, Palanpur in Special Case No. 8 of 2009 on 28.07.2010 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) VVM Page 13 of 13 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:50 IST 2025