Gujarat High Court
State Of Gujarat vs Bhupatbhai Fatabhai Parmar on 10 January, 2025
NEUTRAL CITATION
R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 3 of 2011
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
BHUPATBHAI FATABHAI PARMAR & ORS.
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Appearance:
MR. BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR JAYPRAKASH UMOT(3581) for the Opponent(s)/Respondent(s) No.
1,2,3,4
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 5
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 10/01/2025
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 Additional Sessions Judge, Fast Track Court No. 6, Veraval (hereinafter referred to as "the learned Trial Court") in Sessions Case No. 76 of 2002 on 31/01/2008, whereby, the learned Trial Court has extended the benefit of doubt and acquitted the respondents for the offence Page 1 of 18 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:29:26 IST 2025 NEUTRAL CITATION R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025 undefined punishable under Sections 504, 506(2) and 114 of Indian Penal Code, 1860 (hereafter referred to as "IPC" for short) and Section
391)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Atrocities Act", for short.) 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 The complainant Kalabhai Karshanbhai Senva and the accused have agricultural lands adjacent to each other and civil and criminal litigation regarding the lands are pending before various Courts. On 21.06.2008, at around 11:30 Hrs; the complainant Kalabhai Karshanbhai Senva , his uncle Revabhai Jethabhai, Aunty Sonaben and wife Dahiben went with a tractor to till their agricultural land and at that time all four accused came to the agricultural and abused them and used caste slurs on them and asked them to leave the land. The accused also threatened to kill them, if they entered the land, and as they all were afraid, they went home and the complainant filed the complaint at Kheda Town Police Station, Page 2 of 18 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:29:26 IST 2025 NEUTRAL CITATION R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025 undefined under the provisions of Sections 504, 506(2) and 114 of the Indian Penal Code, 1860 and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989, which was registered as II-C.R.No.146 of 2008 at Kheda Town Police Station.
2.2 The Investigating Officer drew the necessary panchnamas and collected the documents and filed a charge-sheet before the Court of learned Judicial Magistrate First Class, Kheda @ Nadiad and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Veraval as per the provisions of Section 209 of the Code of Criminal Procedure and the case was registered as Special Case (ATRO) No.54 of 2009.
2.3 The accused were 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 statements of the accused were recorded at Exhs. 4 to 7 respectively, wherein, all the accused denied the contents of the charge and the entire evidence of the prosecution was taken on record.
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documentary evidences in support of their case and after the closing pursis was filed at Exh. 32, 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 and refused to step into the witness box or examine Page 4 of 18 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:29:26 IST 2025 NEUTRAL CITATION R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025 undefined the witnesses on their behalf. 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 them.
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 properly appreciated the oral evidence of nine witnesses and the four documentary evidences produced by the prosecution in support of their cases. That the complainant, his uncle Revabhai Jethabhai, Aunty Sonaben and Dahiben - wife of the complainant have fully supported the case of the prosecution and have mentioned about how the incident has taken place but the learned trial Court has not considered the same. The learned trial Court has discarded and disbelieved their evidence and has come to a conclusion that the prosecution has not proved the case beyond reasonable doubts and the impugned judgment and order of acquittal passed by the learned trial Court is illegal, invalid and improper and the same is Page 5 of 18 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:29:26 IST 2025 NEUTRAL CITATION R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025 undefined required to be quashed and set aside.
4. Heard learned APP Mr. Bhargav Pandya for the appellant State and learned advocate Mr. Jayprakash Umot for the respondents. Though served, the respondent No.5 - original complainant 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 of the case and has submitted that the complainant and the witnesses, who were the family members of the complainant have clearly stated that the incident has occurred on 21/06/2008 at about 11:30 Hrs and at that time, the four accused were present and they have been named and identified by the complainant and the witnesses. It is on record that civil litigations as well as criminal litigations are pending between the parties and there are civil litigations regarding the land in question but merely this fact would not be a presumption that a false case has been filed. The prosecution has proved the case beyond reasonable doubts and learned APP has urged this Court to allow the appeal and quash and set aside the judgement and order of acquittal and find the respondents guilty for the said offence.
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6. Learned advocate Mr. Jayprakash Umot for the respondents has submitted that the prosecution failed to provide sufficient evidence to prove the charges beyond reasonable doubt. He has submitted that it is on record that there were disputes between the parties regarding the agricultural lands, which are situated adjacent to each other and a civil suit has also been filed between them and complaints under Atrocities Act has been filed between them and if the evidence of the complainant and the Prosecution Witness No. 3 Dahiben Kalibhai Senva and Prosecution Witness No. 4 Revabhai Jethabhai are perused, there is no consistency in the words that were alleged to have been used by the accused at the time of the incident. Admittedly, the complaint has been filed against four accused but none of the witnesses have stated that as to what words were used by which accused and who had actually used the caste slurs. The prosecution has examined three independent witnesses Prosecution Witness No. 5 Pravinbhai Chimanbhai Sharma, Prosecution Witness No. 6, Parshottambhai Chhotabhai Parmar and Prosecution Witness No. 7 Sirajsinh Pratapsinh Rana but they have not spoken the exact words that was used by the accused and the prosecution has not proved beyond reasonable doubts that the incident has occurred and the learned advocate Mr. Umot urges this Page 7 of 18 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:29:26 IST 2025 NEUTRAL CITATION R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025 undefined Court to dismiss the appeal of the appellant.
7. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of 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.
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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 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 Page 9 of 18 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:29:26 IST 2025 NEUTRAL CITATION R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025 undefined 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 criminal trial 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;
(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. 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. That 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. That there is no inhibition to re Page 10 of 18 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:29:26 IST 2025 NEUTRAL CITATION R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025 undefined appreciate the evidence by the Appellate Court but if after re appre- ciation, 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 on the above settled principles on law considering the evidence on the prosecution, the prosecution has examined Prosecution Witnesses No. 1 Kalabhai Karshanbhai Senva at Exh.13 and the witness is the original complainant, who has filed the complaint, which is produced at Exh. 14. The witness has stated that on 21/06/2008, while they had gone to till their agricultural land, the incident had occurred and all four accused came and abused them and used caste slurs and they were forced to leave the agricultural land as they were afraid. The accused also threatened to break their legs and hence they left the land and went at home. Thereafter, the complainant had filed the complaint before the Kheda Town Police Station.
During the cross examination, the complainant has admitted that the accused have filed civil cases for encroachment before the learned Civil Court, Kheda on 06/05/2007, which is registered as Civil Case No. 15 of 2007 and the Exh.1 of the suit is produced at Page 11 of 18 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:29:26 IST 2025 NEUTRAL CITATION R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025 undefined Exh.16. The wife of the complainant has filed the complaint at Kheda Police Station against the mother of the accused and others and a copy of the FIR and charge sheet is produced at Exh. 17. A Chapter Case was also filed by Revabhai Jethabhai Senva, the uncle of the complainant and the documents of the chapter case are produced at Exh.18. The son of the complainant Pravinbhai Kalabhai Senva has filed a complaint under Sections 504, 506(2) and 114 of the IPC and Section 3(1)(10) of the Atrocities Act, against the daughter-in-law of the accused and others and the copy of the complaint is produced at Exh. 19. The complainant has also admitted that the relation between the parties has turned sour because of the dispute regarding the agricultural land and in the complaint, he has not stated that accused used caste slurs against him and others.
9.1 The prosecution has examined Prosecution Witness No. 2 Amitbhai Chimanbhai Sharma at Exh. 20 and the witness is the panch-witness of the panchnama of place of offence, which is produced at Exh. 21. The witness has stated that he was called to be a panch witness and he had gone to the land of the complainant where half of the land was tilled with a tractor and the other half of the land was not tilled. That the panchnama was drawn in his Page 12 of 18 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:29:26 IST 2025 NEUTRAL CITATION R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025 undefined presence and other panch-witness Jayantibhai Budhabhai Senva was with him.
9.2 The prosecution has examined Prosecution Witness No. 3 Dahiben Kalabhai Senva at Exh.22 and Prosecution Witness No. 4 Revabhai Jethabhai at Exh.24 and the witnesses are the wife and uncle of the complainant respectively and as per the case of the prosecution, both the witnesses were present on the date of incident with the complainant along with others have gone to till the field. The witnesses have supported the case of the prosecution and have stated that the incident has occurred where they were threatened by the accused and caste-slurs were used against them.
During the cross examination, both the witnesses have admitted to the various litigation pending between them regarding the land in question and also to the criminal litigations pending between the parties.
9.3 The prosecution has examined Prosecution Witness No. 5 Pravinbhai Chimanbhai Sharma at Exh.25 and the witness is the driver of the tractor that was taken by the complainant and others for tilling the land. The witness has stated that he had gone to the agricultural land and there was verbal altercations and quarrel and the accused No. 3 had asked him to take out the tractor from the Page 13 of 18 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:29:26 IST 2025 NEUTRAL CITATION R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025 undefined land and hence he took the tractor and went away. Besides this, nothing else had occurred and the witness has identified the accused before the learned Court. The witness has not supported the case of the prosecution and has been declared hostile and during the cross examination, nothing to support the case of the prosecution that abusive language or caste slurs were used by the accused has come on record.
9.4 The prosecution has examined Prosecution Witness No. 6 Parshottambhai Chhotabhai Parmar at Exh. 26 and the witness has stated that on the date of the incident, he was at his agricultural land and the tractor had come to his land and after tilling his land, the same tractor had gone to the land of the complainant and that he too was present at that place. That, at that time, the accused came and abused the complainant and they took the tractor and left. During the cross examination, the witness has stated that the agricultural land of the complainant is adjacent to his land and his brother Gopal has taken the land of the complainant on mortgage and he is doing administration of the same. The witness has also admitted that the main dispute between the parties is regarding the land and any incident that occurs between them is with regard to Page 14 of 18 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:29:26 IST 2025 NEUTRAL CITATION R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025 undefined the land in question.
9.5 The prosecution has examined the Prosecution Witness No. 7 Sirajsinh Pratapsinh Rana at Exh. 27 and the witness has stated that he had gone with his tractor to the field of the complainant and after he had taken two rounds, the accused came and told him to leave the field as the field was theirs and that he took the tractor and went away and at that time no other person was present except a young boy. The witness has not been cross-examined by the learned advocate for the accused.
9.6 The prosecution has examined the Prosecution Witness No. 8 Lalitaben Dhudabhai at Exh. 29 and the witness was working as PSO in Kheda Town Police Station, who has recorded the complaint of the complainant and registered the complaint at II- C.R.No. 138 of 2008 under Sections 504, 506(2) and 114 of the Indian Penal Code, 1860 and Section 3(1)(10) of the Atrocities Act, 1989.
9.7 The prosecution has examined Prosecution Witness No. 9 Manoj Manglaji Balat at Exh.31 and the witness is the Investigating Officer, who has narrated in detail the entire evidence that was undertaken during investigation.
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During the cross examination, it was found that the main dispute between the complainant and the accused is with regard to the land and there are litigation pending between them including a civil suit.
10. On minute appreciation of the entire evidence of the prosecution, it transpires that that it is on record that there were disputes between the parties regarding the agricultural lands, which are situated adjacent to each other and a civil suit has also been filed between them and the complaints under the prevention of Atrocities Act has been filed between them. If the evidence of the complainant and the Prosecution Witness No. 3 Dahiben Kalibhai Senva and Prosecution Witness No. 4 Revabhai Jethabhai are perused, there is no consistency in the words that were alleged to have been used by the accused at the time of the incident. Admittedly, the complaint has been filed against four accused but none of the witnesses have stated that as to what words were used by which accused and who had actually used the caste slurs. The prosecution has examined three independent witnesses Prosecution Witness No. 5 Pravinbhai Chimanbhai Sharma, Prosecution Witness No. 6, Parshottambhai Chhotabhai Parmar and Prosecution Witness No. 7 Sirajsinh Pratapsinh Rana but they too have not spoken the exact words that Page 16 of 18 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:29:26 IST 2025 NEUTRAL CITATION R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025 undefined was used by the accused and the prosecution has not proved beyond reasonable doubts that the incident has occurred.
11. The learned Trial Court has discussed all the oral as well as documentary evidences and has observed that the independent witnesses, who are present at the place of incident, have not supported the case of the prosecution and hence the possibility that the complaint has been filed merely because of the civil litigation and other proceedings pending between the parties cannot be ruled out.
12. 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 extending benefit of doubt and acquitting the accused of the charges 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 extending Page 17 of 18 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:29:26 IST 2025 NEUTRAL CITATION R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025 undefined benefit of doubt and 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 Additional Sessions Judge, Fast Track Court No. 6, Veraval in Sessions Case No. 76 of 2002 on 31/01/2008, is hereby confirmed.
14. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
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