Gujarat High Court
State Of Gujarat vs Maheshji Khodaji Thakor on 8 January, 2025
NEUTRAL CITATION
R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 415 of 2008
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
MAHESHJI KHODAJI THAKOR & ANR.
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Appearance:
Appearance:
MR. BHARGAV PANDYA, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MADANSINGH O BAROD(3128) 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 : 08/01/2025
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 (ATRO), Gandhinagar (hereinafter referred to as "the learned Trial Court") in Special (ATRO) Case No.51 of 2006 on 23.03.2007, the learned Trial Court has acquitted the respondent for the offence punishable under Sections 323, 504 and 114 of the Page 1 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025 NEUTRAL CITATION R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025 undefined Indian Penal Code, 1860 (hereafter referred to as "I.P.C." for short.) Section 135 of the Gujarat Police Act, and Section 3(1)(10) of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Atrocities Act, for the sake of convenience and brevity). The respondent is hereinafter referred to as "the accused" 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 prosecution are as under:-
2.1 The complainant- Arvindbhai Kantilal Parmar residing in Randheja Village with his mother and was working at Kalptaru Power Transmission, Section 28, Gandhinagar GIDC. The complainant's sister and her three daughters live near his house.
On 18/05/2005, at around 5:00 pm, the complainant's niece, Chandrikaben, was on her way to get her dress stitched when her friend met her and asked why she was looking at Mahesh. As a result, Chandrikaben's grandmother scolded the friend. The next day, at around 10:00 am, the accused, Maheshji Thakor, came to the complainant's house, told the complainant to meet him at the school compound, and then left. In response, the complainant's Page 2 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025 NEUTRAL CITATION R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025 undefined mother went to the accused's house and scolded him. Later, at around 11:00 am, the accused and others came to the complainant's house with sticks, verbally abused him with caste slurs, and struck him with sticks, causing injuries to his back and hands. The present complaint was registered at Pehtapur Police Station, under the provisions of Sections 323, 504 and 114 of the Indian Penal Code, 1860, Section 135 of the Gujarat Police Act and Section 3(1)(10) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as Criminal Case No. 3615 of 2005.
2.2 The Investigating Officer recorded the statements of the connected witnesses and the necessary documents were seized and after completion of investigation the police filed the chargesheet before the Court of the Learned 8th Additional Judicial Magistrate First Class, Gandhinagar and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Sabarkantha as per the provisions of Section 209 of the Code of Criminal Procedure and the case was registered Special Case (ATRO) No. 51 of 2006. 2.3 The accused was duly served with the summons and the accused appeared before the learned Trial Court, and it was Page 3 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025 NEUTRAL CITATION R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025 undefined 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.
ORAL EVIDENCE
Sr. PW Name of the witnesses Exh.
No
1. 1 Arvindbhai Kantilal 9
Parmar
2. 2 Palkeshkumar D Patel 11
3. 3 Savitaben Kantilal Parmar 13
4. 4 Dr. Dalabhai Fusabhai 14
Parmar
5. 5 Parshottambhai Mathurdas 16
Patel
6. 6 Manubhai Ramabhai 18
Chavda
7. 7 Pratapsinh Varvaji Chavda 19
8. 8 Rajendra Vishrambhai 20
Ansari
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NEUTRAL CITATION
R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025
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DOCUMENTARY EVIDENCE
Sr. Particulars Exh.
No.
1. Complaint 10
2. Panchnama of the place of offence 12
3. Injury certificate of the complainant 15
4. Caste certificate of the complainant 17
2.5 After the learned Additional Public Prosecutor filed the
closing pursis at Exh. 21, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded and 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.
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 Page 5 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025 NEUTRAL CITATION R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025 undefined on record and the learned Trial Court has erred in holding that the prosecution has failed to prove the case beyond reasonable doubts. That the learned trial Court has not appreciated the oral and documentary evidence, which clearly proves that the accused has uttered insulting words to the complainant, who belonged to the scheduled caste and the learned trial Court has given undue importance to minor contradictions and omissions. That the impugned judgment and order of acquittal is perverse and deserves to be quashed and set aside.
4. Heard learned APP Mr. Bhargav Pandya for the appellant State and learned advocate Mr. M.O.Barod for the respondent No. 2 - original complainant. Though served the respondent No. 1, original accused has not appeared 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 and has submitted that the oral and documentary evidence prove that the complainant was a member of the scheduled caste and on the date and time of the Page 6 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025 NEUTRAL CITATION R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025 undefined incident, the respondent has entered into the house of the complainant and has assaulted him with a stick and the complainant has fully supported the complaint on record. Witness Savitaben Kantilal Parmar has also supported the case of the prosecution and the prosecution has proved the case beyond reasonable doubts but the learned trial Court has not considered the same. That in fact, at the time of the incident, as the respondent No. 2 had assaulted the complainant with a stick, he had suffered an injury and the medical certificate is produced at Exh: 15 and the medical officer has also opined that the injuries were sustained one to two hours before the complainant had come to the hospital. The learned trial Court has not considered this aspect and learned Additional Public Prosecutor has urged this Court to set aside the judgment and order of acquittal and convict the respondent No. 1 for the offences.
6. Though rule has been served to the respondent No.1, no one appears on behalf of the respondent No.1 either in person or through advocate.
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 Page 7 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025 NEUTRAL CITATION R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025 undefined in the case of Mallappa & Ors. Vs. State of Karnataka passed in Criminal Appeal No.1162 of 2011 on 12.02.2024, wherein, the Apex Court has observed in Para Nos. 24 to 26, as under:
"24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concertized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to re appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
1. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The 'two views theory' has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution.Page 8 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025
NEUTRAL CITATION R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025 undefined Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by re appreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka, "13. Considering the reasons given by the trial Court and on appraisal of the evidence, in our considered view, the view taken by the trial Court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial Court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial Court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial Court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."" (emphasis supplied) In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:-
"7. It is well settled that: -
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial Court in acquitting the accused must be dealt with, in case the Page 9 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025 NEUTRAL CITATION R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025 undefined appellate Court is of the view that the acquittal rendered by the trial Court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.) 7.2. With an order of acquittal by the trial Court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.) 7.3. If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala)."
7.1 In Para - 36, the Apex Court, in the case of Mallappa (Supra), has observed as under:-
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:-
(i) Appreciation of evidence is the core element of a criminaltrial and such appreciation must be comprehensive
- inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;Page 10 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025
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(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.
8. In light of the above, the entire evidence of the proseuction is reappreciated and the Prosecution has examined Prosecution Witness No 1- Arvindkumar Kantibhai Parmar - the original complainant at Exh:9 and the complainant has narrated the facts as stated in the complaint, which is produced at Exh;10. As per the complainant, one incident had occurred on 18/05/2005, wherein, his niece was going to the tailor and some altercation had taken place with the accused. That on the next day, while the complainant was sleeping in the house, the accused came, assaulted him and abused him and also made slurs on his caste.
During the cross-examination, the complainant has stated that he was asleep when the accused came to his house at 10:00 a.m. and that he did not know what happened at that time. He further stated that at the time of the incident, about twenty to twenty-five people had gathered, and even though the Pethapur Police Station was nearby, he went to the Civil Hospital in Gandhinagar before proceeding to the police station. The complainant has admitted that Page 11 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025 NEUTRAL CITATION R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025 undefined the complaint does not refer to any caste slur used by the accused, nor does it state that the accused had abused him. 8.1 The Prosecution has examined Prosecution witness No. 2 Palkeshbhai Dilipbhai Patel at Exh:11 and the witness is the panch witness of the panchnama of the place of offence, produced at Exh: 12 and he has fully supported the case of the prosecution. The panchnama is produced at Exh: 12 and the place of offence , which is a place in front of the house of the complainant below a neem tree and at the time of the panchnama, no incriminating circumstances were found at the place of incident but the complainant produced a three feet long stick, which was seized by the Investigating Officer.
8.2 The Prosecution Witness No. 3 Savitaben Kantilal Parmar has been examined at Exh:13 and the witness is the mother of the complainant, who has stated that she had witnessed the incident but during the cross-examination, she has categorically stated that she is not an eye-witness to the incident and after everyone had dispersed, she had arrived at the scene of offence. That her son had been admitted in the hospital for two days and in her statement, before the Investigating Officer, she has not stated any caste-slur Page 12 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025 NEUTRAL CITATION R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025 undefined that was used by the accused. That, she does not know where the stick had gone from her house.
8.3 The prosecution has examined Prosecution witness No. 4 Dr. Dalabhai Fusabhai Parmar at Exh:14 and the witness is the Medical Officer who has treated the complainant. The witness has stated that on 19/05/2005, at around 11:30 am, the complainant had come for treatment, and in the history, he had stated that Tinaji Khodaji Thakore had assaulted him with stick. The complainant had sustained an irregular contused abrasion on the right side of the neck on the lateral aspect, tenderness on the posterior aspect of the right elbow, vertical red contusion on left scapular region and an irregular abrasion on the anterior aspect of the right side of the neck.
During the cross examination, the witness has admitted that he has not sent any message to the Pethapur Police Station and the injury sustained by the complainant were simple injuries and could be sustained by any hard and blunt object.
8.4 The prosecution has examined Prosecution Witness No. 5 Parshottambhai Mathurdas Patel at Exh: 16 and the witness is the Page 13 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025 NEUTRAL CITATION R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025 undefined Social Welfare Officer and he has produced the caste certificate of the complainant at Exh: 17.
8.5 The prosecution has examined the Prosecution Witness No. 6 Manubhai Ramabhai Chavda at Exh: 18. This witness is the uncle of the complainant, who has stated that the accused had assaulted his nephew and he had taken his nephew to the hospital and thereafter they had gone to Pethapur Police Station where his nephew has filed the complaint.
During the cross-examination, this witness has stated that he was at home, while the assault and altercation had taken place. 8.5 The prosecution has examined Prosecution Witness No. 7 Pratapsinh Varvaji Rathod at Exh: 19 and the witness was working as PSI, Pethapur Police Station and he had recorded the complaint of the complainant and registered the same at Pethapur Police Station being II-C.R.No. 28 of 2005 and the investigation was deputed to the Dy.S.P., Gandhinagar.
During the cross-examination, the witness has stated that in the complaint, the complainant had not mentioned any Page 14 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025 NEUTRAL CITATION R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025 undefined caste-slur/remarks made by the complainant and the medical papers did not disclose the name of the accused. 8.6 The prosecution has examined Prosecution Witness No. 8 Rajendra Vishrambhai Ansari, who has been examined at Exh: 20 and the witness is the Investigating Officer, who has narrated in detail all the procedure that was undertaken by him during the investigation of the offence.
During the cross-examination, the witness has stated that in the complaint, there was no caste-slur mentioned by the complainant and there was no mention that the complainant had given the accused any verbal shouting and the original certificate of the caste of the complainant was not seized during the investigation. The stick alleged to have been used in the incident, was not seized from the accused and the witness has also not stated that the accused had used any caste slur at the time of the incident. There was no evidence in the investigation that any incident had occurred on 18/05/2005 between Chandrikaben and her four friends and the accused.
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9. On appreciation of the entire evidence of the prosecution, the offence is under Section 3(1)(10) of the Atrocities Act and the genesis of the incident is shown to be the incident that had occurred on 18/05/2005 but there is no iota of evidence that any kind of incident had occurred on 18/05/2005. The complaint that has been produced at Exh;10 does not disclose any abusive words or caste slurs used by the accused and none of the witnesses have stated that the accused had used any abusive words or caste slur at the time of incident. It is on record that that the complainant did not go to the Police Station but went to the hospital and thereafter went to the Police Station to give the complaint and in the history before the Medical officer, the complainant has not stated the name of the accused as the person who had assaulted him. It is also on record that the stick alleged to have been used by the accused has been seized from the complainant at the time of the panchnama of the place of offence and there are contradictions regarding the place of offence in the complaint as also the deposition of the complainant. There is also evidence that, at the time of the incident, about twenty to twenty five people had gathered but no independent witness have been examined by the prosecution and Page 16 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025 NEUTRAL CITATION R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025 undefined no witnesses have also been examined regarding the incident that had occurred on 18/05/2005.
10. The learned trial Court has discussed the entire evidence and has appreciated all the oral as well as documentary evidences and has concluded that the prosecution has falsely tried to involve the accused in the offence and important witnesses have not been examined. Moreover, the deposition of the complainant Savitaben and witness Manubhai are contradictory to each other and the learned trial Court has concluded that the prosecution has failed to prove the offence beyond reasonable doubts and passed the impugned judgement and order of acquittal, which is well reasoned.
11. In view of the settled position of law in the decisions of Mallappa (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 Page 17 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025 NEUTRAL CITATION R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025 undefined leveled against him. 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 judgement and order of acquittal passed by the learned Special Judge (ATRO), Gandhinagar in Special (ATRO) Case No.51 of 2006 on 23.03.2007 is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 18 of 18 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:28:34 IST 2025