Gujarat High Court
State Of Gujarat vs Manilal Parsottambhai Pandya on 3 December, 2021
Bench: Samir J. Dave
R/CR.A/893/2008 JUDGMENT DATED: 03/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 893 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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STATE OF GUJARAT
Versus
MANILAL PARSOTTAMBHAI PANDYA
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Appearance:
MR DHARMESH DEVNANI, APP for the Appellant(s) No. 1
MR Y S JOSHI(3991) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 03/12/2021
ORAL JUDGMENT
1. The present appeal, under Section 378 (1)(3) of the Code of
Criminal Procedure, 1973, is filed against the judgment and
order of acquittal dated 13.09.2007 passed by the learned
Sessions Judge, Godhra, District Panchmahal, in Special
(Atrocity) Case No. 11 of 2007, whereby, the accused was
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acquitted for the offences under Sections 323, 504, 506(2)
and 427 of the IPC and under Section 3(1)(10) of the Atrocity
Act.
2. The facts of the prosecution case in brief are as under:
2.1 On 06.09.2006, a complaint was registered by Valabhai
Punjabhai Chamar, who was discharging his duties as a
"Sarpanch" of Village Bamrola. The respondent accused is a
member of the Panchyat.
2.2 That on 06.09.2006 at about 9.00 am, the respondent
accused got excited as regards repairing of work of pipe line
of maholla and gave filthy absuses to the complainant
relating to his caste by using works like "sala chamadiya,
bhangi, dheda' with clear intention to insult the complainant
in public at large. The accused person has also given a slap as
well as kick and fist blows to the complainant and thereby
caused injuries. At the relevant point of time, Jayantibhai
Balmukund Shukla, Mahendra Kalidas Pandya and
Surendrabhai Ishwarbhai Pandya have also given kick and
fist blows to the complainant as well as torn off the cloths of
the complainant and also caused serious injuries. In the
meantime, the prosecution witness Ramabhai Kanabhai came
to the place of incident and save the complainant from
further beating. The accused also administered threat to
cause death of complainant. Hence, the complainant lodged
the complaint.
2.3 Necessary investigation was carried out and statements of
witnesses were recorded. Ultimately, charge-sheet was filed
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before the Court of learned Chief Judicial Magistrate,
Lunawada.
2.4 As the case was exclusively triable by the Sessions Court, the
same was committed to the Court of learned Special Judge,
Panchmahal under Section 209 of Cr.P.C. The case was
numbered as Atrocity Case No.11 of 2007. The trial was
initiated against the respondents-accused
2.5 To prove the guilt against the accused the prosecution has
examined the following witnesses:
P.W.1 Valabhai Rupabhai Chamar Exh.5
P.W.2 Hirabhai Nathabhai Exh.8
P.W.3 Lalabhai Udabhai Malivad Exh.9
P.W.4 Shanabhai Khanabhai Chamar Exh.10
P.W.5 Ramabhai Kanabhai Chamar Exh.11
P.W.6 Dineshchandra Hirabhai Solanki Exh.12
P.W.7 Karansinh Mansinh Exh.13
P.W.8 Dr. Iswarbhai Dalabhai Makwana Exh.14
Exh.9 Kalidas Devabhai Exh.17
Exh.10 Jashwantkumar Ramjibhai Exh.19
2.6 In order to support the case the prosecution has produced the
following documents:
Exh.6 Complaint
Exh.7 Caste certificate
Exh.15 Valabhai's M.L.C.
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Exh.18 Panchanama of Shirt as Muddamal
Exh.20 Office copy of paper of Social Welfare Department
Exh.21 Panchnama of Scene of Offence
2.7 At the end of trial, after recording the statement of the
accused under Section 313 of Cr.P.C and hearing arguments
on behalf of prosecution and the defence, the learned Special
Judge acquitted the respondent accused from all the charges
leveled against him by judgement and order dated
13.09.2007
2.8 Being aggrieved and dissatisfied with the aforesaid judgement
and order passed by the Sessions Court the appellant-State
has preferred the present appeal
3. Mr. Dharmesh Devnani, learned APP, submitted that the
judgement and order of the Special Judge is against the
provisions of law. The Special Judge has not properly
considered the evidence led by the prosecution and looking to
the provisions of law itself, it is established that the
prosecution has proved the whole ingredients of the evidence
against the respondent accused. Learned APP has also taken
this Court through the oral as well as the entire documentary
evidence. He submitted that P.W.1-complainant-Valabhai
Rupabhai Chamar, who was examined at Exh.6, has fully
supported the case of the prosecution as narrated in the
complaint. The complainant clearly mentioned how the
incident has occurred and what the accused did at the time of
incident. He further submitted that P.W.5 namely Ramabhai
Kanabhai Chamar, who was examined at Exh.11 and P.W.7
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namely Kalidas Devabhai, who was examined at Exh. 20,
have support the case of the prosecution by identifying the
accused person. He further submitted that from the
deposition of P.W.8 Dr. Ishwarbhai Dalabhai Makwana who
was examined at Exh. 14, it transpires that the complainant
has received three injuries. Learned APP submitted that there
was no reason for the Sessions Judge to disbelieve the
prosecution case and to acquit the respondent -accused.
4. At the outset it is required to be noted that the principles
which would govern and regulate the hearing of appeal by
this Court against an order of acquittal passed by the trial
Court have been very succinctly explained by the Apex Court
in a catena of decisions. In the case of M.S. Narayana Menon
@ Mani Vs. State of Kerala & Anr, reported in (2006) 6 SCC
39, the Apex Court has narrated about the powers of the
High Court in appeal against the order of acquittal. In para
54 of the decision, the Apex Court has observed as under:
"54. In any event the High Court entertained an appeal treating
to be an appeal against acquittal, it was in fact exercising
the revisional jurisdiction. Even while exercising an
appellate power against a judgement of acquittal, the High
Court should have borne in mind the well-settled
principles of law that where two view are possible, the
appellate court should not interfere with the finding of
acquittal recorded by the court below."
5. Further, in the case of Chandrappa Vs. State of Karnataka,
reported in (2007) 4 SCC 415 the Apex Court laid down the
following principles:
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"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,
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 curtain
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in
the nature of flourishes of language to emphasis 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
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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."
6. Thus, it is a settled principle that while exercising appellate
power, even 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. Even in a recent decision of the Apex Court in the case of
State of Goa V. Sanjay Thakran & Anr. Reported in (2007) 3
SCC 75, the Court has reiterated the powers of the High
Court in such cases. In para 16 of the said decision the Court
has observed as under:
"16. From the aforesaid decisions, it is apparent that while
exercising the powers in appeal against the order of
acquittal the Court of appeal would not ordinarily interfere
with the order of acquittal unless the approach of the
lower Court is vitiated by some manifest illegality and the
conclusion arrived at would not be arrived at by any
reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are
possible, the Court of appeal would not take the view
which would upset the judgement delivered by the Court
below. However, the appellate court has a power to review
the evidence if it is of the view that the conclusion arrived
at by the Court below is perverse and the Court has
committed a manifest error of law and ignored the
material evidence on record. A duty is cast upon the
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appellate court, in such circumstances, to re-appreciate the
evidence to arrive to a just decision on the basis of material
placed on record to find out whether any of the accused is
connected with the commission of the crime he is charged
with."
8. Similar principle has been laid down by the Apex Court in
the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors,
reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead)
by LRs Vs. state of MP, reported in 2007 AIR SCW 5589.
Thus, the powers which this Court may exercise against an
order of acquittal are well settled.
9. It is also a settled legal position that in acquittal appeal, the
appellate court is not required to re-write the judgement or
to give fresh reasoning, when the reasons assigned by the
Court below are found to be just and proper. Such principle
is laid down by the Apex Court in the case of State of
Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417
wherein it is held as under:
".... & This court has observed in Girija Nandini Devi V.
Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967
SC 1124) that it is not the duty of the appellate court
when it agrees with the view of the trial court on the
evidence to repeat the narration of the evidence or to
reiterate the reasons given by the trial court expression of
general agreement with the reasons given by the Court the
decision of which is under appeal, will ordinarily suffice.
10. Thus, in case the appellate court agrees with the reasons and
the findings given by the Trial court, then the discussion of
evidence is not necessary.
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11. This Court has gone through the judgement and order passed
by the trial court. This Court has also perused record and
proceedings and oral as well as documentary evidence led by
the trial court and also considered the submissions made by
learned Advocate for the appellant.
12. The trial Court after appreciation of the evidence found that
after considering the deposition of the complainant that it
cannot be proved that the accused has only slapped and torn
off his cloths except this, nothing transpires more from the
record. It is pertinent to note that on the day of incident, the
complainant has received three injuries and in connection
with the injuries, he has produced medical certificate at
Exh.15, but it is to be noted that the complainant has given
complaint on 06.09.2006 and has taken medical treatment
on 07.09.2006 and has not given any explanation as to why
he has taken treatment on the next. It is also pertinent to note
that there is no corroboration with the depositions of the
private witnesses with regard to the torn off the cloths of the
complainant. Even, the accused has used filthy language
against the complainant insulting him but the same is not
also corroboration with depositions of the private witnesses.
Almost, the private witnesses have been turned hostile.
13. So far as Section 3(1)(10) of Atrocity Act is concerned, it also
transpires that the P.W.2 namely Hirabhai Nathbhai, PW.3
namely Lalabhai Udabhai Malivad, P.W.5 namely Shanabhai
Khanabhai and P.W.6 namely Dineshbhai Hirabhai Solanki
do not support the case of the prosecution. It also appears
that Ramakbhai Kanabhai, in the deposition, has supported
the case of the prosecution with regard to the atrocity but in
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his statement recorded before the police, no such words
supporting the say of the prosecution. It is also not proved
that the accused uttered humiliating words against the caste
of the complainant.
14. It appears from the record that the members of the panchayat
wanted to bring the motion of no confidence against the
sanpanch and had also given notice to the T.D.O. in
connection with the same and therefore, the said fact might
have hurt the sarpanch. The complainant, in his cross-
examination, has deposed that he has withdrawn the
complaint against those three persons, who had assured him
not to sign in the notice of no confidence. Therefore, there is
discrepancy in the depositions of the complainant and the
same is not believable.
15. In this fact situation, the learned Special Judge has found that
there are serious lacunae in the prosecution case and the
prosecution has failed to establish the case against the
respondent. There are contradictory statements in the
complaint and the witnesses. Therefore, the trial court has
given the benefit of doubt to the accused and this Court does
not find any reason to interfere with the said findings.
16. Thus, from the evidence itself, it is established that the
prosecution has not proved its case beyond reasonable doubt.
Learned APP is not in a position to show any evidence to take
a contrary view of the matter or that the approach of the trial
court is vitiated by some manifest illegality or that the
decision is perverse or that the trial court has ignored the
material evidence on record.
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17. In the above view of the matter, this Court is of the
considered opinion that the trial court was completely
justified in acquitting the respondent of the charges leveled
against him. This Court finds that the findings recorded by
the trial court are absolutely just and proper and in recording
the said findings, no illegality or infirmity has been
committed by it.
18. This Court is, therefore, in complete agreement with the
findings, ultimate conclusion and the resultant order of
acquittal recorded by the court below and hence find no
reasons to interfere with the same. Hence the appeal is hereby
dismissed.
19. Record and Proceedings to be sent to the trial Court.
Sd/-
(SAMIR J. DAVE, J)
"F.S. KAZI.....
