Gujarat High Court
State Of Gujarat vs Motibhai Chelabhai Desai on 24 July, 2025
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 971 of 2012
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
MOTIBHAI CHELABHAI DESAI & ORS.
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Appearance:
MS. C.M. SHAH, APP for the Appellant(s) No. 1
APURVA DAVE(3777) for the Opponent(s)/Respondent(s) No. 1,2
MR HARSHIL G BHAVSAR(11263) for the Opponent(s)/Respondent(s) No. 3
MR RUTURAJ NANAVATI(5624) for the Opponent(s)/Respondent(s) No. 3
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 24/07/2025
ORAL JUDGMENT
1. The 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 Special Judge and Additional Sessions Judge, Court No. 5, City Civil and Sessions Court, Ahmedabad (hereinafter referred to as "the learned Trial Court") in Special Sessions Case (Atro) No. 16/2005 on 09.03.2012, whereby, the learned Trial Court was pleased acquit the Page 1 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025 NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 undefined respondents extending benefit of doubt for the offence punishable under Sections 294(b) and 506(2) of Indian Penal Code and Section 3(1)(10) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocity Act" for short). 1.1 The respondents are hereinafter referred to as "the accused" in the rank and file as they stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1 On 20.03.2002, at around 12.00 noon, the accused were playing cricket at the entrance of the street and the complainant - Jayantibai Parsottambhai Parmar was passing by on his bicycle and the accused no. 1 ran to collect the ball and deliberately dashed against the complainant and abused him. All the accused got together and assaulted the complainant and the accused no. 2 abused the complainant with caste slurs and climbed onto the roof of the house of the accused and hurled caste slurs and told the complainant to vacate his house within the Page 2 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025 NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 undefined next 15 days or he would be killed. All the accused abetted the offence and the complainant filed a private complaint before the Chief Metropolitan Magistrate, Ahmedabad City under Sections 323, 294B, 506(2) and 114 of the Indian Penal Code, Section 135(1) of the BP Act and Section 3(1) (10) of the Atrocities Act on 22.03.2002 which was registered as M Case No. 1 of 2022. The learned Chief Metropolitan Magistrate was pleased to pass an order under Section 156(3) of the Code of Criminal Procedure and sent the case for inquiry to the Bapunagar Police Station.
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 Court of the Metropolitan Magistrate, Ahmedabad which came to be registered as Criminal Cae No. 470 of 2002. As the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the City Civil and Sessions Court, Ahmedabad as per the provisions of Section 209 of Code of Criminal Procedure and the case was Page 3 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025 NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 undefined registered as Special Sessions Case (Atro) No. 16/2005. 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. A charge at Exh. 8 was framed against the accused and the statements of the accused were recorded at Exhs. 9, 10 and 11 wherein, the accused denied the contents of the charge and the entire evidence of the prosecution was taken on record.
2.4 The prosecution examined 8 witnesses and produced 3 documentary evidences on record in support of their case and after the learned Additional Public Prosecutor filed the closing pursis, 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 was pleased to convict the accused nos. 1 and 2 for the offence under Section 323 and sentenced them to imprisonment till rising of the Court Page 4 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025 NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 undefined and fine of Rs. 500/- and in default, simple imprisonment for a period of seven days and has acquitted the respondents extending benefit of doubt for the offence punishable under Sections 294(b) and 506(2) of Indian Penal Code and Section 3(1)(10) of the Atrocity Act. The learned Trial Court was pleased to acquit the accused no. 3 from all the offences levelled against him.
3. Being aggrieved and dissatisfied with the said judgment and order of acquittal under Section 298(B) and 506(2) of the Indian Penal Code and Section 3(1)(10) of the Atrocity Act, the appellant - State has filed the present appeal mainly stating that the impugned judgment and order of acquittal passed by the learned Trial Court is contrary to law and evidence on record and the learned Trial Court has not appreciated the fact that all the witnesses have supported the case of the prosecution and during the cross-examination, nothing adverse has been elicited in favor of the respondents. The case has been proved beyond reasonable doubt and the prosecution has successfully established the case against the respondents and the Page 5 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025 NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 undefined judgment and order of acquittal is unwarranted, illegal, and without any basis in the eyes of the 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. C.M. Shah for the appellant State, learned advocate Mr. Apurva Dave for respondent nos. 1 and 2 and learned advocate Mr. Ruturaj Nanavati with learned advocate Mr. Harshil Bhavsar for the respondent no. 3. Though served, none has appeared on behalf of the respondent no. 4 to make any submissions. 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. C.M. Shah 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. The impugned Page 6 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025 NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 undefined judgement and order is perverse and learned APP has urged this Court to quash and set aside the same and find the respondent guilty for the offences.
6. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court 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, 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 Page 7 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025 NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 undefined 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 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 Page 8 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025 NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 undefined 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.
7. 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 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.
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NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 undefined
8. In light of the above settled principle of law, the evidence of the prosecution is dissected and the prosecution has examined PW1 - Jayantibhai Parsottambhai Parmar at Exh. 23 and the witness is the complainant who has supported the facts of the complaint which is produced at Exh. 24. The complainant has also produced his caste certificate at Exh. 25. During the cross examination by the learned advocate for the accused the complainant has admitted that the complaint was typed and at that time, his advocate was with him and his advocate had taken him to the typist. He was friends with the accused nos. 1 and 2 and in the complaint he has not stated that caste slurs were used by the accused no. 2. The advocate had asked him to bring his caste certificate and his friends had told him that the advocate was a good advocate and in the complaint he had named five persons as the accused.
8.1 PW2 - Parshottambai Popatbhai Parmar examined at Exh. 26 is the father of the complainant and he has supported the case of the prosecution but in the cross Page 10 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025 NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 undefined examination he has admitted that he was at home at the time of the incident and is not an eyewitness to the incident and came to know about the incident from his son. 8.2 PW3 - Jashwantbai Popatbhai Parmar examined at Exh. 27, as per the case of the prosecution is an eyewitness but the witness has not supported the case of the prosecution and has been declared hostile. 8.3 PW4 - Dahiben Popatbhai Parmar examined at Exh. 28 is the mother of the complainant and during the cross examination she has admitted that at the time of the incident she was making chapatis and she does not know what had transpired outside of the house. 8.4 PW5 - Shaileshbhai Maganbhai Parmar examined at Exh. 29 is an eyewitness as per the case of the prosecution but the witness has not supported the case of the prosecution and has been declared hostile and has categorically stated that he has not witnessed the incident. 8.5 PW7 - Dhanjibhai Pitambarbhai Solanki examined at Exh. 34 is the PSO who has registered the complaint and the witness has stated that on 20.03.2002, the complainant Page 11 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025 NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 undefined had come and given a complaint which was under Section 323 and 114 of the Indian Penal Code and it was registered in the NC Register. The witness has produced the copy of the NC complaint at Exh. 35. During the cross examination the witness has stated that when the complainant came to the Police Station he was not bleeding from the mouth and in the complaint he had not stated that any caste slurs were used by any of the accused.
8.6 PW6 - Gamiti Lakshmanbhai Nathaji examined at Exh. 33 and PW8 - Lavjibhai Kanabhai Pranami examined at Exh. 36 are the Investigating Officers who have investigated the offence. PW6 - Gamiti Lakshmanbhai Nathaji has admitted that no panchnama of the place of offence was drawn and PW8 - Lavjibhai Kanabhai Pranami has stated that the incident was of the year 2002 but he had received the papers for investigation in the year 2007. No panchnama of the place of offence was drawn and in the complaint the name of the accused no. 3 was not mentioned but only Rajubhai was written. There was no evidence found that the accused no. 3 was a tenant of Page 12 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025 NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 undefined Motibhai Chelabhai and no Test Identification Parade of the accused no. 3 was done during investigation.
9. One minute appreciation of the entire evidence of the prosecution, the incident as per the complainant, has occurred on 20.03.2002 and immediately thereafter the NC Complaint was filed at the Bapunagar Police Station which is produced at Exh. 35. In the complaint the incident has occurred at 12.00 noon and the complaint has been given at 18.00 hours and an NC Complaint under Section 323 and 114 of the Indian Penal Code has been registered against three persons. Thereafter, the complainant has filed the private complaint before the Court of the Chief Metropolitan Magistrate on 22.03.2002 and it appears that at the time of writing of the complaint, the advocate of the complainant was present and in the NC Complaint which is the first information about the incident, there are no allegations under the Atrocity Act. There are no allegations that any of the accused abused the complainant and even in the examination in chief of the complainant, the complainant does not state that any caste slurs or abuses Page 13 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025 NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 undefined were hurled by any of the accused. Moreover, if the evidence of the complainant is perused there is an exaggeration as he says he was admitted for five days whereas in the medical certificate produced at Exh. 30, it is mentioned that the complainant was treated as an outdoor patient and there was only one CLW 6 cm x 1.05 cm on his chest. It is pertinent to note that the Medical Officer has not been examined by the prosecution before the learned Trial Court and as per the complaint of the complainant, the accused were playing cricket at 12.00 in the afternoon at the entrance of the street and at that time there were number of persons who were passing by as also residents of the street but none of the independent witnesses have been examined. The eye witnesses that have been examined at Exh. 27 - Jashwantbhai Popatbhai, Parmar and PW5 - Shaileshbhai Maganbhai Parmar have both turned hostile and not supported the case of the prosecution and the father of the complainant examined as PW2 - Parshottambhai Popatbhai Parmar at Exh. 26 and the mother of the complainant PW4 - Dahiben Parshottambhai Page 14 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025 NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 undefined Parmar examined at Exh. 28 are not eyewitnesses to the incident and are hearsay witnesses who have clearly stated that they have not witnessed the incident. The learned Trial Court has discussed the entire evidence in detail and has given reasons as to why the prosecution has not proved the case beyond reasonable doubts.
10. 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 15 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025 NEUTRAL CITATION R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025 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.
11. The impugned judgement and order of acquittal passed by the learned Special Judge and Additional Sessions Judge, Court No. 5, City Civil and Sessions Court, Ahmedabad in Special Sessions Case (Atro) No. 16/2005 on 09.03.2012, is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VASIM S. SAIYED Page 16 of 16 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 01:08:05 IST 2025