State Of Gujarat vs Arvindbhai @ Lotiya Kalidas ...
2022 Latest Caselaw 8104 Guj

     R/CR.A/1068/2010                                JUDGMENT DATED: 19/09/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1068 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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1     Whether Reporters of Local Papers may be allowed                    No
      to see the judgment ?

2     To be referred to the Reporter or not ?                             No

3     Whether their Lordships wish to see the fair copy                   No
      of the judgment ?

4     Whether this case involves a substantial question                   No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                          STATE OF GUJARAT
                                Versus
             ARVINDBHAI @ LOTIYA KALIDAS BARIYA & 3 other(s)
==========================================================
Appearance:
MR. RONAK RAVAL, APP for the Appellant(s) No. 1
RICHA SHAH(7541) for the Opponent(s)/Respondent(s) No. 1,2,3,4
==========================================================

    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                 Date : 19/09/2022

                                 ORAL JUDGMENT

1. The present Appeal is preferred by the Appellant - State of

Gujarat under Section 378(1)(3) of the Criminal procedure Code,

1973, against the impugned judgment and order passed in Atrocity

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Case No. 42 of 2008 by the learned Special Judge and 2 nd Additional

Sessions Judge, Vadodara dated 25.3.2010, recording the acquittal

of the Respondents / Original Accused Persons for the charges under

Sections 323, 504, 114 of the Indian Penal Code and Section 3(1)

(10) of the Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989 (hereinafter referred to as "the Atrocities Act")

and Section 135 of the B.P. Act.

2. The Appeal was Admitted on 17.1.2011. During the course of

hearing, learned Advocate Ms. Richa Shah, appearing on behalf of

the Respondent Nos. 1 to 4 has submitted that Respondent No.4 -

Kalidas Narrotambhai Bariya has expired. She has placed on record

the death certificate.

3. In view of the statement made by learned Advocate Ms. Richa

Shah that Respondent No.4 - Kalidas Narrotambhai Bariyha has

expired, the Appeal stands abated qua Respondent No.4 and the

Appeal is now confined to Respondent Nos. 1 to 3.

4. The brief facts leading to the filing of this Appeal are that the

complainant Manilal Nathabhai Solanki residing at Kavitha, Taluka

Sankheda, District Vadodara is working as Branch Post Master at the

relevant time and his wife Jyotsnaben was a member of Kavitha

Gram Panchayat and also Chairman of Justice Committee of Local

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Panchayat. One Karsanbhai Tadvi is Sarpanch of the said Gram

Panchayat. That on 16.5.2008, a raid was conducted by Bodeli

Police at Kavitha Village and the Respondent No.1 - Arvindbhai @

Lotiya Kalidas Bariya was suspecting the complainant for the same.

That on 16.5.2008 in the field of one Karsanbhai Bariya, wood was

cut but it was not known as to who had cut the wood and a three

wheeler cycle was found from the said place which was handed over

to the Sarpanch Karsanbhai Tadvi by Karsanbhai Bariya and it was

found that the said cycle was of Respondent No.1. A complaint to

the said effect was also given at Morkhala Thana and on the date of

the incident i.e. on 17.5.2008 at 6:30 pm some people gathered at

the place of the sarpanch viz. Dy. Sarpanch Ajay Gopalbhai,

Sarpanch Karsanbhai Tadvi, Karsanbhai Bariya and the

Respondents, the Complainant and others. The complainant asked

Karsanbhai Bariya as to what to be done with regard to the cycle

and thereupon Respondent No.1 got excited and called the

complainant as "Khalpa" and also used some abusive language and

said the complainant not to speak anything in case of Bariya

community and the Respondent No.1 also assaulted the

complainant and other Respondents aided and abetted him. The

Respondent No.1 also threw a stone to the complaint due to which

blood clotted below. The Respondents also torn off bush shirt and

banyan of the complainant. On the aforesaid facts, a complaint

was given by the complainant on 17.5.2008 at Bodeli Police Station.

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5. Upon such FIR being filed, investigation started and the

Investigating Officer recorded statements of as many as 10

witnesses and produced number of documentary evidence, and

after completion of the investigation, Charge-sheet was filed against

the accused persons for the offences in question. The case was

committed to the Sessions Court and the learned Sessions Judge

framed the Charge. Since the accused did not plead guilty, trial was

proceeded against the accused. Vide impugned judgment and order

dated 25.3.2010, the learned Sessions Judge acquitted the accused

persons. Being aggrieved by the same, the State has preferred the

present appeal.

6. Heard, learned APP Mr. Ronak Raval for the appellant - State

and learned Advocate Ms. Richa Shah for the Respondents / Original

Accused.

7. The learned Additional Public Prosecutor Mr. Ronak Raval has

mainly contended that the learned trial Judge has erred in holding

that the prosecution has failed to prove its case beyond reasonable

doubt. The learned APP submitted that the impugned judgment of

the trial Court is based on presumptions and inferences and

thereby, it is against the facts and the evidence on record. The

learned APP further submitted that the learned trial Judge has failed

to appreciate the evidence on record in its true and proper

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perspective and thereby, has erred in recording the acquittal of the

respondents - original accused.

8. Learned APP Mr. Ronak Raval referred to the judgment and

order as well as the testimony of number of witnesses and also the

documentary evidence. Learned APP has submitted that the

judgment and order of acquittal passed by the learned Judge is

contrary to law, evidence on record and principles of natural justice,

hence the same deserves to be quashed and set aside by this

Hon'ble Court. It is further contended that the judgment and order

of acquittal passed by the Court of learned Judge is based on

inference not warranted by facts of the case and also on

presumption not permitted by law and that the learned Judge ought

to have seen that there are direct and indirect evidence connecting

Respondent with crime produced in this case. In spite of the fact,

learned Judge without appreciating oral as well as documentary

evidence on record of the case, straight way arrived at the

conclusion that the prosecution has failed to prove its case beyond

reasonable doubt for the alleged offence under Sections 323, 504,

114 of the Indian Penal Code and Section 3(1)(10) of the Scheduled

Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989

(hereinafter referred to as "the Atrocities Act") and Section 135 of

the B.P. Act.

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9. Learned APP has further submitted that the learned Sessions

Judge has failed to appreciate that prosecution has proved its case

beyond reasonable doubt that the accused person, with intention to

insult the complainant in public at large, has given filthy abuse to

the complainant relating to his caste and beaten the complainant

and that the learned Sessions Judge has committed error in holding

that the incident has taken place in public and at the relevant point

of time, independent witnesses were available, inspite of the fact no

independent witnesses are examined by the prosecution, and

merely interested witnesses have been examined.

10. Learned APP has therefore submitted that the learned Judge

has committed error in giving undue weightage to minor omissions

and contradictions in the evidence of prosecution witnesses and

therefore the reasons given by the learned Judge while appreciating

the evidence as well as while acquitting the accused are improper,

perverse and bad in law. Therefore, it is submitted that the present

Appeal may be allowed.

11. Learned Advocate Ms. Richa Shah for the Respondents /

Original Accused has heavily contended that in the present case,

the material placed is not examined. It is therefore submitted that

the learned Sessions Judge has rightly arrived at the acquittal of the

Respondents / Original Accused Persons, and therefore, there is no

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requirement of interference by this Hon'ble Court.

12. In view of the submissions made by the learned APP Mr. Ronak

Raval for the Appellant - State of Gujarat and learned Advocate Ms.

Richa Shah for the Respondents / Original Accused Persons, it is

required to be considered whether the impugned judgment and

order can be sustained or not.

13. Having heard the arguments advanced by the learned APP Mr.

Ronak Raval for the Appellant - State and learned Advocate Ms.

Richa Shah for the Respondents, before we advert to the merits of

the case, it would be worthwhile to refer to the scope of this Appeal.

13.1 It is well settled by catena of decisions that an appellate

Court has full power to review, re-appreciate and consider the

evidence upon which the order of acquittal is founded. However,

the Appellate Court must bear in mind that in case of acquittal,

there is prejudice 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 reaffirmed and strengthened

by the trial Court.

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13.2 Further, 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. Further,

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 arrive at would not be arrived

at by any reasonable person, and therefore, the decision is to be

characterized as perverse.

13.3 Merely because two views are possible, the Court of appeal

would not take the view which would upset the judgment 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.

That the duty is cast upon the appellate Court, in such

circumstances, to re-appreciate the evidence to arrive to just

decision on the basis of material placed on record to find out

whether the accused is connected with the commission of the crime

with which he is charged.

14. In Mallikarjun Kodagali (Dead) represented through

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Legal Representatives v. State of Karnataka and Others,

(2019) 2 SCC 752, the Apex Court has observed that:

"The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".

15. Yet in another decision in Chaman Lal v. The State of

Himachal Pradesh, rendered in Criminal Appeal No. 1229 of

2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court

has observed as under:

"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside

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a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the

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slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42)

"(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

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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."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court

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must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20)

"20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

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(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

   9.2      When the findings of fact recorded by a court can be
   held to         be    perverse         has     been         dealt      with       and
   considered in paragraph 20             of the aforesaid decision, which
   reads as under:

"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of

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irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum- Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636)."

            (emphasis supplied)

            9.3      It is further observed, after following the decision
            of     this   Court   in   the    case   of   Kuldeep        Singh      v.

Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:

"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC

228. In the case before this Court, the High Court interfered with the order of acquittal passed by the

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learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233)

"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion.

Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied

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that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court.

While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416)

"8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non- compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably

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unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."

31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to

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reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 809-

10) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well- established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which

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had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the

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interest of justice, lest the administration of justice be brought to ridicule."

(emphasis supplied)."

16. To substantiate the charges levelled against the Accused

Persons, the prosecution has testified PW-1 - Manilal Nathabhai

Solanki at Exh.13, who was at the relevant time working as Branch

Postmaster at Kavitha Gram Panchayat in the year 1997. The

complaint is tendered by him at Exh. 14. In cross-examination he

has admitted that no scuffle has taken place with any other accused

person and that his wife who is Chairman of the Nyaya Samiti who

was also not present at the captioned occurrence. Further, it is also

stated that they have gathered to settle the issue. Further, it is also

come on record that there were some rivalry between the

complainant and the accused persons. Earlier the cases were

registered.

16.1 The Prosecution has testified PW-2 Kavashyabhai Muljibhai

Bheel at Exh.15, who appears to be the panch witness. He has

stated that he has put his thumb impression.

16.2 The Prosecution has testified PW-3 Karshanbhai Devjibhai

Tadvi at Exh.19. He was Sarpanch at the Kavitha Gram Panchayat

at the respective time. It is stated that when the persons

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accumulated at that time some scuffle has taken place. He has

also admitted that even after completion of the offence being

Sarpanch he has not informed to the Police. He has also stated that

for seven days the complainant has not met him.

16.3 The Prosecution has testified PW-4 Karshanbhai Occhavbhai

Bariya at Exh.20. He is also resident of Kavitha Village and is

residing there with his family. The learned Trial Court has also

declared this witness as hostile witness.

16.4 The prosecution has testified PW-5 Ajaybhai Gopalbhai Patel

at Exh.21. He appears to be the Deputy Sarpanch at Kavitha Gram

Panchayat. He has also admitted that the complainant has also filed

complaint against his uncle. He has also stated that to register the

complaint, the Sarpanch and he himself have attended the

concerned place.

16.5 The prosecution has testified PW-6 Yogesh Mohanbhai Solanki

at Exh.23. He also happens to be the resident of Kavitha Village.

After completion of occurrence Manilal attended his residence. He

has admitted that he has not intervened in the so called scuffle and

therefore on such grounds the learned Special Judge has rightly and

meticulously arrived at the conclusion that there are contradictions

including it appears that there is some special object behind filing

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the complaint and most of the witnesses are the interested

witnesses and therefore the prosecution has failed to prove its case

beyond reasonable doubt.

16.6 The prosecution has testified PW-8 Dr. Garvikant Arvind Shah

at Exh.25. He has admitted in cross-examination as Medical Officer

of Suryaghoda PHE that when he examined the injured person, at

that time, as such there were no marks of injury. Further, the

concerned injured person has also not stated that he has taken the

treatment in the private dispensary. Further, this witness has also

admitted that he has not stated about the age of injuries. Upon

such premises, the learned Special Judge has rightly arrived at the

benefit of doubt to the accused persons for acquittal.

16.7 The Prosecution has testified PW-9 Ashokbhai Valabhai Vadkar

at Exh.28. He appears to be the staff of Bodeli Police Station. He

has admitted in the cross-examination that if any person is injured,

in that case the injured person is supposed to be taken at the

hospital. He has also admitted that the blood was not come out

when the complainant came before him. He has also admitted that

while registering the complaint, the complainant was not

accompanied with Sarpanch and Deputy Sarpanch. Therefore, here

also, in the opinion of this Court that earlier both Sarpanch and

Deputy Sarpanch has stated that they have accompanied the

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complainant, upon such premises it creates doubts and

contradictions, and therefore also the learned Special Judge has

rightly awarded the benefit of doubt in the case of the prosecution.

16.8 The Prosecution has testified PW-10 Virjibhai Jivabhai Katara

at Exh.30. He appears to be Dy.S.P. In the Vadodara District SC ST

Cell in the year 2008. He tried to depose as per his investigation.

He has admitted that the place of occurrence is exactly at the

opposite side of the residence of Sarpanch. He has also admitted

that as such there were no resolution for conducting the meeting at

the place of occurrence by the Panchayat.

17. Upon such premises, in the opinion of this Court, the learned

Sessions Judge has rightly arrived at the acquittal of the accused

persons.

18. Thus, on re-appreciation and reevaluation of the oral as well

as documentary evidence on record, as referred to herein above, it

transpires that there are contradictions and omissions in the

evidence of the prosecution witnesses. The learned trial Judge has

observed that on considering the evidence on record there appears

no trustworthy evidence on record to prove the charge levelled

against the accused and the prosecution has failed to bring home

the charges levelled against the accused inasmuch as the

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ingredients of the offence alleged are not fulfilled. This Court has

gone through in detail the impugned judgment and order and found

that the learned trial Judge has meticulously considered the

depositions of all the witnesses and came to the conclusion that the

prosecution has failed to prove the case against the accused

persons beyond reasonable doubt and in the considered opinion of

this Court, the learned trial Judge has rightly come to such a

conclusion, which does not call for any interference at the hands of

this Court.

19. In view of the aforesaid discussion and observations, in the

considered opinion of this Court, the prosecution has failed to bring

home the charge against accused for want of sufficient material.

The findings recorded by the learned trial Judge do not call for any

interference. Resultantly, in fleri, the appeal fails and is dismissed

accordingly. Impugned judgment and order dated 25.3.2010, passed

in Atrocity Case No. 42 of 2008 by the learned Special Judge and 2 nd

Additional Sessions Judge, Vadodara, recording the acquittal of the

Respondent Nos. 1 to 3 / Original Accused Nos. 1 to 3 is confirmed.

Bail bond, if any, shall stand cancelled. R&P, if received, be

transmitted back forthwith.

(A. C. JOSHI,J) 130 / J.N.W