Gujarat High Court
State Of Gujarat vs Arjanji Mavjiji Thakore on 20 February, 2025
NEUTRAL CITATION
R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 726 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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STATE OF GUJARAT
Versus
ARJANJI MAVJIJI THAKORE & ORS.
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Appearance:
Mr. Bhargav Pandya, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
MR TUSHAR CHAUDHARY(5316) for the Opponent(s)/Respondent(s) No.
1,2,3
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 20/02/2025
ORAL JUDGMENT
1. The present present appeal is 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 Sessions Judge, Fast Track Court, Deesa Camp at Deodar (hereinafter referred to as "the learned Trial Court") in Special Case No. 142/2009 on Page 1 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined 22.12.2010, whereby, the learned Trial Court has acquitted the respondents for the offence punishable under Sections 323, 504, 506(2) and 114 of IPC and Sections 3(1)(10) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocities Act").
1.1 The respondents are hereinafter referred to as "the accused" 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 On 28.09.2008, the complainant - Narsinhbhai Vahjibhai Parmar (Chamar) was at his home at around 07.30 pm and at that time, the accused came in their jeep and parked the jeep on the road and came to his house and hurled caste slurs on the complainant and told him to come out of the house and said what had he gained by filing a complaint against them and the accused no. 1 and Dashrat Lagha kicked the complainant and caught him and tried to drag him towards the jeep and threatened to kill him. That Page 2 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined at that time, the complainant shouted and Malabhai Tejabhai Mir of his village and his wife came running and got him released from the hold of the accused. All the accused thereafter, went away hurling caste abuses on the complainant and told him that today he was saved and abused him and went away. The complainant told his brother - Jivabhai about the incident and took his brother and went and filed the complaint at the Bhabhar Police Station which was registered at II - C.R. No. 3105/2008 on 28.09.2008 under Sections 323, 504, 506(2) and 114 of 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 charge-
sheet came to be filed before the learned Judicial Magistrate First Class, Deodar and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Banaskantha at Deodar as per the provisions of Section 209 of Code of Criminal Procedure and the case was registered Page 3 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined as Special Case No. 142/2009.
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. 3 was framed against the accused and the statement of the accused were recorded at Exhs. 4, 5 and 6, wherein, all the accused denied 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. No. PW Name of the witness Exh.
1 1 Narsinhbhai Vahjibhai Parmar 8
2 2 Rameshbhai Dahyabhai Thakor 10
3 3 Ranchhodbhai Ravjibhai Thakor 12
4 4 Dr. Jayanand Suleman Pandav 20
5 5 Maljibhai Tejabhai 24
6 6 Ranjitbhai Narsinhbhai Parmar 25
7 7 Navinbhai Jivabhai 27
8 8 Hiraben Narsinhbhai Dalit 32
9 9 Manojkumar Vechatbhai Ozat 34
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NEUTRAL CITATION
R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025
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DOCUMENTARY EVIDENCE
Sr. No. Particulars Exh.
1 Complaint 9
2 Panchnama of place of offence 11
3 Yadi 21
4 Medical Certificate 22
5 Panchnama 23
6 Index 28
7 Report 29
8 Report 30
9 Copy of FIR 31
10 Caste Certificate 35
11 Copy of FIR 36
12 Copy of FIR 37
2.5 After the learned APP filed the closing pursis at Exh.
38, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 were 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 their behalf and stated that a false case has been filed against them. After the arguments of the learned APP and the learned advocate for the accused were heard, the learned Trial Court by the impugned judgement and order was pleased to acquit all the Page 5 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined accused from the charges levelled against them.
3. Being aggrieved and dissatisfied with the judgement and order of acquittal, the appellant State has filed the present appeal mainly stating that the learned Trial Court has not considered the oral evidences of 9 witnesses and the 12 documentary evidences in proper perspective and has erred in holding that the prosecution has failed to prove the case beyond reasonable doubts. The complainant has fully supported the case of the prosecution and the caste certificate of the complainant is produced on record. Moreover, the Medical Officer has also opined that the injuries were possible due to kicks but the learned Trial Court has not considered the same and even though there is nothing on record that the incident has not occurred, the learned Trial Court has disbelieved the case of the prosecution. 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 respondents are improper, perverse and bad Page 6 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined in law and hence, the impugned judgement and order must be quashed and set aside.
4. Heard learned APP Mr. Bhargav Pandya for the appellant State and learned advocate Mr. Tushar Chaudhary for the respondents. 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 submitted that the complainant has fully supported the facts of his complaint and the complaint has been filed on the same day immediately after the incident. The eye witness - Maljibhai Tejabhai has supported the case of the prosecution and even the wife of the complainant who was present, has stated that the accused used caste slurs and assaulted the complainant but the learned Trial Court has not believed the same. The impugned judgement and order is perverse and learned APP has urged this Court to quash and set aside the same and find the respondents Page 7 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined guilty for the offences.
6. Learned advocate Mr. Tushar Chaudhary for the respondents has submitted that the learned Trial Court has appreciated all the evidences and has passed the impugned judgement and order of acquittal which is just and proper and no interference is required in the same. Learned advocate for the respondents has urged this Court to reject the appeal of the appellants.
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 regarding the scope of interference in acquittal appeals 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 Vs. State of M.P. (2006) 10 SCC 313, 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, Page 8 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined 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".
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 Page 9 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined 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. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is 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 Page 10 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined 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.
9. In light of the above settled principle of law, the evidence of the prosecution is dissected and the prosecution has examined PW1 - Narsinhbhai Vahjibhai Parmar at Exh. 8. the witness is the complainant who has fully supported the complaint and has stated that earlier, the accused had assaulted his son and he had filed the complaint on 05.09.2008 and another complaint was also filed and the FIR is produced on record. The offences were registered at Bhabhar Police Station II - C.R. No. 3096/2008 and Bhabhar Police Station I - C.R. No. 48/2008. The complainant has identified his signature on the complaint produced at Exh. 9. During the cross- examination by the learned advocate for the accused, the Page 11 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined witness has stated that he went to the hospital on the next day at around 04.00 pm and he and the accused no. 1 had a dispute regarding the truck as his truck was seized by the police in Radhanpur and he thought that the truck was seized because of the accused no. 1.
9.1 The prosecution has examined PW2 - Rameshbhai Dahyabhai Thakor at Exh. 10 and PW3 - Ranchhodbhai Ravjibhai Thakor at Exh. 12. Both the witnesses are the panch witnesses of the panchnama of the place of offence produced at Exh. 11 and both the witnesses have stated that while they were passing on the road, the police had called them and asked them to affix their signatures on the panchnama and they have not gone to any place with the police to draw any panchnama. The witnesses have not supported the case of the prosecution and have been declared hostile and during the cross-examination by the learned APP, nothing to support the case of the prosecution has come on record.
9.2 The prosecution has examined PW4 - Dr. Jayanand Suleman Pandav at Exh. 20 and the witness is the Medical Page 12 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined Officer who has treated the complainant on 20.09.2008 at 04.00 pm when the complainant come to CHC Bhabhar for treatment with a police yadi. In the history, the complainant had stated that he was assaulted on 28.09.2008 at about 07.30 pm with kicks by Arjanbhai and others and on examination, he had complained of pain over right lateral iliac region and over right lumber region but there were no external marks of injury detected and no tenderness was found. The witness has produced the medical certificate at Exh. 22. During the cross- examination by the learned advocate for the accused, the witness has stated that the injury could be imaginary. 9.3 The prosecution has examined PW5 - Maljibhai Tejabhai at Exh. 24 and the witness is an eye witness who has supported the case of the complainant. During the cross-examination by the learned advocate for the accused, the witness has stated that he is doing the business of sheep and goats at Barwala and the Thakor's of the village had come to evict him from the village and from that time, he does not have any relationship with the accused. That Page 13 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined he had come to the Court with the complainant to give his deposition and the police had read over the facts of the incident to him.
9.4 The prosecution has examined PW6 - Ranjit Narsinhbhai Parmar at Exh. 25 and the witness is the son of the complainant who has not supported the case of the prosecution. The witness has been declared hostile and has been cross-examined by the learned APP but nothing to support the case of the prosecution has come on record. 9.5 The prosecution has examined PW7 - Navinbhai Jivabhai at Exh. 27 and the witness is the PSO who has registered the complaint of the complainant. 9.6 The prosecution has examined PW8 - Hiraben Narsinhbhai at Exh. 32 who is the wife of the complainant and she has supported the case of the prosecution. During the cross-examination by the learned advocate for the accused, the witness has stated that her husband and the accused no. 1 had a dispute about the truck since long and there are no houses near their house as they are residing in the field. That she and her husband were not pleased with Page 14 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined the police as her son had filed a complaint but the police did not do any procedure regarding the complaint. That her husband and her brother-in-law had filed five to seven complaints against the accused.
9.7 The prosecution has examined PW9 - Manojkumar Vechatbhai Ozat at Exh. 34 and the witness is the Investigating Officer who has narrated in detail the procedure that was undertaken by him during investigation of the offence. During the cross-examination by the learned advocate for the accused, the witness has stated that witness Ranjitbhai Narsinhbhai Parmar is the son of the complainant and the complainant had stated that his son Ranjit was present at the time of the incident. That during investigation, he had only recorded the statements of the family members of the complainant and no statements of any neighbours were recorded. The witness has produced the caste certificate of the complainant at Exh. 35.
10. On minute dissection of the entire evidence of the prosecution, the infirmities in the evidence of the prosecution have come on record and the incident has Page 15 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined occurred on 28.09.208 at 19.30 hours at the house of the complainant and the complainant had gone on the next date i.e. on 29.08.2008 at 04.00 pm to the hospital. As per the complainant, his son - PW6 - Ranjitbhai was present but the son has not supported the case of the prosecution even though he was an eye witness to the incident, has been declared hostile. There is no medical evidence to support the case of the prosecution and in the complaint produced at Exh. 9, the complainant has not stated that he was abused, whereas, the eye witness Maljibhai Tejabhai states that the accused abused the complainant. The evidence of PW5 - Maljibhai Tejabhai appears to be exaggerated and there are major contradictions in the evidence of the complainant and the eye witness. Moreover, in the evidence of PW8 - Hiraben Narsinhbhai, it has come on record that the complainant and his brother has filed five to seven cases against the accused and it is also on record that the complainant and the accused no. 1 were having a dispute regarding the truck of the complainant which was seized by the Radhanpur Police and the Page 16 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined complainant had a doubt that the truck was seized because of the accused no. 1. Moreover, even though, the complainant had filed the complaint on 28.09.2008 and had named all the accused in the complaint, while taking treatment before the Medical Officer, he had not named all the accused.
11. In view of the settled position of law in the decisions of Chandrappa (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 Page 17 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025 NEUTRAL CITATION R/CR.A/726/2011 JUDGMENT DATED: 20/02/2025 undefined 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 judgement and order of acquittal passed by the learned Sessions Judge, Fast Track Court, Deesa Camp at Deodar in Special Case No. 142/2009 on 22.12.2010, is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J) VASIM S. SAIYED Page 18 of 18 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:49:33 IST 2025