Gujarat High Court
State Of Gujarat vs Hashmukh @ Gulabhai Vallabhbhai ... on 3 June, 2025
NEUTRAL CITATION
R/CR.A/474/2009 ORDER DATED: 03/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 474 of 2009
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STATE OF GUJARAT
Versus
HASHMUKH @ GULABHAI VALLABHBHAI RIBADIA & ANR.
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Appearance:
MR. JAY MEHTA, APP for the Appellant(s) No. 1
MR NILESH I JANI(3558) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 03/06/2025
ORAL ORDER
1. The present appeal has been preferred by the State under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), assailing the judgment and order dated 24.12.2008 passed by the learned Special Judge & Additional Sessions Judge, Junagadh (hereinafter referred to as "the Trial Court") in Atrocity Sessions Case No.7 of 2008 below Exh.37, whereby acquitting charges levelled against accused under Sections 323, 504, 506(2) of the Indian Penal Code, 1860 (for short, " the IPC") and under Section 3(1) (10) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 (for short, "the Act").
2. The short facts emerges from record reads are as under:-
2.1. The complainant, Rajeshbhai Govindbhai Vanjara, a member of the Scheduled Caste community, was allegedly subjected to physical assault by the accused on 14.10.2007 at approximately Page 1 of 11 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:44:57 IST 2025 NEUTRAL CITATION R/CR.A/474/2009 ORDER DATED: 03/06/2025 undefined 10:30 PM in his native village Rajpara, while he was attending a performance of 'Garbi' (a traditional folk dance). It is alleged that the accused not only physically assaulted the complainant but also issued threats to his life and hurled caste-based abusive language, thereby committing offences punishable under the relevant provisions of law.
2.2. Subsequently, the complainant lodged a First Information Report (FIR) on 15.10.2007 at around 18:45 hours with the Visavadar Police Station. Upon registration of the FIR, the investigating officer recorded the statements of the complainant and other material witnesses. Following the investigation, a chargesheet was filed against the accused for the alleged offences.
2.3. The Judicial Magistrate First Class (JMFC), Visavadar, after taking cognizance of the chargesheet, committed the case to the Court of Sessions for trial. In support of the prosecution case, the prosecution examined several witnesses and adduced documentary evidence to substantiate the charges framed against the accused which are as under.
ORAL EVIDENCE P.W. NAME OF THE WITNESS EXH.
1 Rakesh Kumar Ramshakha Sinha 7 2 Rajeshbhai Govindbhai 11 3 Dinashbhai Veerjibhai 13 4 Rambhai Tapubhai 14 5 Pareshbhai Nagjibhai 15 6 Govindbhai Badhabhai 17 7 Dalsibhai Hirabhai Damor 18 8 Popatbhai Lakhmanbhai Rahuliya 18 Page 2 of 11 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:44:57 IST 2025 NEUTRAL CITATION R/CR.A/474/2009 ORDER DATED: 03/06/2025 undefined 9 Vitthalbhai Ranchhodbhai Vikani 28 10 Punjabhai Dhakhabhai Meghani 30 11 Mangalsinh Mafatlal Parmar 32 DOCUMENTARY EVIDENCE Sr. PARTICULARS EXH. No. 1 Original Medical Certificate from the Medical 8
Officer of Visavadar regarding the injuries sustained by Rajembhai Govindbhai 2 The original case of Rajeshbhai Govindbhai 9 3 Original Complaint 12 4 Record of the crime in the station diary as per 20 the text. Original list of those sent to work 5 Original list of vists to be made in case of an 21 offence.
6 Xerox Copy of the special report of the 22atrocity case 7 Xerox Copy of the station diary extract dated 23 15.10.2007 of Visavadar Police Station 8 Social Welfare Officer, District Panchayat, 24 Junagad stating that Vanzara Rajesh Kumar Govindbhai is a Hindu Chamar by caste 9 Original Panchanma of the place to be built 28 10 Original Panchanama regarding the arrest of 31 the accused 11 Xerox copy of the complaint sent to the First 33 Class Magistrate of Visavadar 12 Original order to investigate M.M. Parmar for 34 atrocity crimes 13 Certificate of completion of written and 35 physical evidence of the complainant, signed by the Special P.P. 2.4. Upon conclusion of the trial, the learned Trial Court held that the prosecution failed to establish the charges levelled against the Page 3 of 11 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:44:57 IST 2025 NEUTRAL CITATION R/CR.A/474/2009 ORDER DATED: 03/06/2025 undefined accused beyond reasonable doubt, and accordingly, the accused was acquitted of all charges.
2.5. Today, present appeal taken up for final hearing. The Court heard the submissions of the learned Additional Public Prosecutor, Mr. Jay Mehta, appearing on behalf of the State. Although duly served, none appeared on behalf of the complainant and so accused. It is pertinent to note that, as per the record, the complainant had personally appeared before this Court on 16.12.2024 and sought time to engage legal representation. On such request, the matter was adjourned to 28.02.2025.
2.6. It further appears that learned advocate Mr. Nilesh Jani, who was representing the respondent, remained absent on the said date. Consequently, this Court, vide order dated 03.04.2025, passed the following order:--
"Mr. Nilesh Jani, learned counsel for the respondents has filed leave note. As per the Gujarat High Court Rules 1993, sick-note or leave-note is not entertained in the Criminal Matters. However, in the interest of justice, as a last chance, the matter is adjourned.
On next date of hearing, learned Counsel for the respondents shall remain present before the Court or make alternative arrangement to proceed with the matter"
2.7. When the matter was taken up for hearing, none appeared on behalf of the respondent. Therefore, with the assistance of learned Additional Public Prosecutor, Mr. Mehta, this Court proceeded to hear the appeal and according decided it finally by this judgement.
3. Learned APP Mr. Jay Mehta submitted that the learned Trial Court failed to properly appreciate the evidence of the complainant Page 4 of 11 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:44:57 IST 2025 NEUTRAL CITATION R/CR.A/474/2009 ORDER DATED: 03/06/2025 undefined and other prosecution witnesses, and consequently, erroneously acquitted the accused of the charges, which are grave and serious in nature.
3.1. He further contended that the Trial Court committed a manifest error in observing that the injuries sustained by the complainant could have been caused during agricultural work, despite no evidence on record suggesting that the complainant had sustained such injuries while engaged in farming activities.
3.2. Learned APP Mr. Mehta further submitted that the complainant had categorically deposed that the accused inflicted injuries upon his person and used caste-based abusive language, knowing that the complainant belongs to a Scheduled Caste community. Therefore, the offences under Section 323 of the IPC as well as the relevant provisions of the Act stood duly proved by the prosecution, and the accused ought to have been convicted accordingly.
3.3. He further submitted that the evidence of the complainant, corroborated by the testimony of his cousin, Mr. Dineshbhai Virjibhai (Prosecution Witness No. 3), clearly established that the accused had criminally intimidated the complainant by issuing threats to his life. As such, the charges under Sections 504 and 506 IPC stood proved beyond reasonable doubt.
3.4. The learned APP also contended that minor contradictions in the testimony of prosecution witnesses, or the fact that some witnesses may not have fully supported the prosecution case, do not, by themselves, render the entire prosecution version unreliable.
Page 5 of 11 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:44:57 IST 2025NEUTRAL CITATION R/CR.A/474/2009 ORDER DATED: 03/06/2025 undefined Hence, the Trial Court erred in granting undue benefit to the accused, which resulted in an erroneous acquittal.
3.5. In light of the above submissions, the learned APP urged this Hon'ble Court to allow the present appeal and set aside the judgment of acquittal rendered by the Trial Court.
4. Before adverting to the merits of the present appeal, it is apposite to recapitulate the settled position of law as enunciated by the Hon'ble Supreme Court of India in a catena of decisions, wherein the Court has laid down guiding principles and criteria to be considered while adjudicating appeals against acquittal.
4.1. One of the recent pronouncement, in which, the Supreme Court of India in a case of Babu Sahebagouda Rudragoudar and Others vs. State of Karnataka, 2024 8 SCC 149 has held as under :-
"39. This Court in the case of Rajesh Prasadv. State of Bihar and Another, 2022 3 SCC 471 encapsulated the legal position covering the field after considering variousearlier judgments and held as below:-
"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [ Chandrappa v. State of Karnataka, 2007 4 SCC 415 ] "
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:-
(1) An appellate court has full power to review, re- appreciate and reconsider the evidence upon which the order of acquittal is founded.Page 6 of 11 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:44:57 IST 2025
NEUTRAL CITATION R/CR.A/474/2009 ORDER DATED: 03/06/2025 undefined (2) The Criminal Procedure Code, 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 emphasise 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 is 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."
40. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, 2023 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: -
"8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re- appreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after re- appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court Page 7 of 11 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:44:57 IST 2025 NEUTRAL CITATION R/CR.A/474/2009 ORDER DATED: 03/06/2025 undefined cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-
41.1 That the judgment of acquittal suffers from patent perversity;
41.2 That the same misreading/omission to evidence on record; is based on a consider material.
41.3 That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
42. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
4.2. Now adverting to the core issue arising from the present appeal, it is pertinent to examine whether the prosecution has successfully established the case beyond reasonable doubt or not?.
From the evidence adduced, it emerges that the complainant was allegedly physically assaulted by the accused on 14.10.2007 during nighttime hours in village Rajpara, Taluka Visavadar, District Junagadh. The incident stated to have been occurred in an open public place, namely Bhavani Garbi Chowk, where a folk dance event (Garbi) was organized, and the complainant was allegedly assaulted during the course of that event.
Page 8 of 11 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:44:57 IST 2025NEUTRAL CITATION R/CR.A/474/2009 ORDER DATED: 03/06/2025 undefined 4.3. To support its case, the prosecution examined several witnesses, including two independent witnesses--P.W.4 Rambhai Tapubhai and P.W.5 Pareshbhai Nagjibhai. The presence of these witnesses appears to be natural and credible, as they were amongst the organizers of the Garbi event held in the said village. However, both of these witnesses, in their oral testimonies, categorically denied the occurrence of the alleged incident took place on 14.10.2007. As such they have not supported the case of prosecution rather it casts serious doubt on the case of prosecution.
4.4. It is true that the complainant's cousin, P.W.3 Dineshbhai Virjibhai, supported the prosecution case in his testimony. However, his presence at the scene is questionable, as there is no reference to him in either the complainant's police statement or the First Information Report (FIR). The absence of his name at the initial reporting stage weakens the credibility of his testimony. Thus, the prosecution's version is not corroborated by any independent or impartial witness. As such he was not even knowing accused having so admitted such fact in his cross-examination.
4.5. The prosecution also examined the complainant's father, Govindbhai Badhabhai, who, undisputedly, was not an eyewitness to the incident. Nonetheless, during his cross-examination, he admitted that villagers jointly participate in Garbi performances. He asserted that there are two types of Garbi organized in the village:-
a. One at Garbi Chowk, where all women from the village participate collectively, and b. Another at Garbi Chaura, which is attended exclusively by Page 9 of 11 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:44:57 IST 2025 NEUTRAL CITATION R/CR.A/474/2009 ORDER DATED: 03/06/2025 undefined members of the Patel community, where, according to him, instances of untouchability are prevalent.
4.6. He further deposed that his son - the complainant, was physically assaulted near Garbi Chaura, yet admitted that he was not present at the scene of offence during the time of the alleged assault. While his testimony sheds light on potential social discrimination within the village, it does not substantiate the actual occurrence of the alleged incident, particularly as the complainant himself stated that the incident took place at Garbi Chowk, not at Garbi Chaura. Given that Garbi Chowk was a public venue attended by individuals of various social backgrounds, it is implausible to suggest that the accused could have openly assaulted and humiliated the complainant on caste grounds in the presence of a mixed gathering.
4.7. Turning to the medical evidence, the Medical Certificate (Exh.
8) issued by the Medical Officer at CSC, Visavadar, indicates that the complainant was admitted to the hospital on 15.10.2007 at around 5:30 PM for treatment of injuries allegedly inflicted by the accused. However, during cross-examination, the complainant stated that he was admitted to the hospital at approximately 10:30 AM on the same date. This inconsistency between the medical record and his oral testimony further undermines the credibility of the prosecution's case and raises serious doubt regarding the veracity of the version put forward by the complainant.
4.8. The panch witnesses examined during the trial turned hostile and did not support the case of the prosecution. Consequently, apart from the oral testimony of the complainant, there is no Page 10 of 11 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:44:57 IST 2025 NEUTRAL CITATION R/CR.A/474/2009 ORDER DATED: 03/06/2025 undefined independent or corroborative evidence on record to implicate the accused in the commission of the alleged offence.
4.9. It is also relevant to note that although the alleged incident occurred on 14.10.2007, the First Information Report (FIR) was lodged only on 15.10.2007 at around 18:45 hours at Visavadar Police Station, which is located hardly at distance of 10 kilometers from the village of Rajpara. The unexplained delay in lodging the FIR is a material factor that casts further doubt on the veracity and spontaneity of the complaint, and deserves to be taken into consideration while assessing the credibility of the prosecution case.
4.10. Upon re-appreciation of the entire evidence and in view of the aforementioned glaring inconsistencies and deficiencies in the prosecution case, the reasons assigned by the learned Trial Court while acquitting the accused appear to be just, reasonable, well- founded, and in consonance with the settled principles of criminal jurisprudence and procedural law. Therefore, this Court finds no justifiable ground to interfere with the impugned judgment of acquittal. Hence, this Court is of the considered opinion that the present appeal is devoid of merit and deserves to be dismissed. Accordingly, the appeal stands DISMISSED.
5. Resultantly, the impugned judgment and order of acquittal passed by the learned trial Court is hereby confirmed. Bail bonds shall stand cancelled. The record and proceedings, if requisitioned, shall be returned to the concerned trial Court forthwith.
(MAULIK J.SHELAT,J) MANISH MISHRA Page 11 of 11 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:44:57 IST 2025