Gujarat High Court
State Of Gujarat vs Jesingbhai Motibhai Rathod on 8 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2231 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
JESINGBHAI MOTIBHAI RATHOD & ANR.
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Appearance:
MS. DHWANI TRIPATHI, APP for the Appellant(s) No. 1
HL PATEL ADVOCATES(2034) for the Opponent(s)/Respondent(s) No. 1,2
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 08/04/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant- State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the
judgement and order of acquittal passed by the learned Special (ATRO)
Judge & 8th Additional District & Sessions Judge, Ahmedabad (Rural)
(hereinafter referred to as "the learned Trial Court") in Special (ATRO)
Case No. 61 of 2009 on 21.09.2010, whereby, the learned Trial Court has
acquitted the respondents for the offence punishable under Sections 447,
504, 506(2) read with Section 114 of the Indian Penal Code, 1860 (IPC)
and Sections 3(1)(4)(5)(10) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the
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Atrocities Act).
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 23.06.2007 at around 11:00 a.m., the accused No. 1 was
armed with a firearm, the accused No. 2 with a sword and the accused
No. 3 was armed with a Dhariya and they all illegally trespassed into the
field of the complainant situated in the outskirts of Rajoda Village
bearing survey No. 100, Block No.84 and brought the tractor of the
accused No. 1 and hurled caste slurs and abuses to the complainant and
threatened to break his legs if they would enter into the field. The
accused also threatened to kill the complainant and the complainant filed
the complaint under Sections 447, 504, 506 (2) and 114 of the IPC and
Sections 3(1)(4)(5)(10) of the Atrocities Act at Dholka Police Station,
which was registered at I-C.R.No. 97 of 2007.
2.2] The Investigating Officer recorded the statements of the
connected witnesses and collected the necessary documents and after
completion of investigation the police filed the charge-sheet against the
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accused before the Court of Judicial Magistrate First Class, Dholka and
as the said offences against the accused were exclusively triable by the
Court of Sessions, the case was committed to the learned Special Judge
& Additional Sessions Judge, Ahmedabad Rural as per the provisions of
Section 209 of the Code of Criminal Procedure and the case was
registered Special (ATRO) Case No. 61 of 2009.
2.3] The accused were duly served with the summons and the
accused appeared before the learned Trial Court, and it was verified
whether the copies of all the police papers were provided to the accused
as per the provisions of Section 207 of the Code. A charge at Exh. 5 was
framed against the accused and the statements of the accused were
recorded at Exhs. 6 to 8, wherein, the accused denied all the contents of
the charge and the entire evidence of the prosecution was taken on
record.
2.4] The prosecution produced nine oral evidences and seven
documentary evidences to bring home the charge against the accused and
after the learned Additional Public Prosecutor filed the closing pursis at
Exh.31, the further statement of the accused under Section 313 of the
Code of Criminal Procedure, 1973 were recorded, wherein, the accused
denied all the evidence of the prosecution on record. The accused refused
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to step into the witness box or examine witnesses on their behalf and
stated that a false case has been filed against them. After the arguments
of the learned Additional Public Prosecutor and the learned advocate for
the accused were heard, the learned trial Court by the impugned
judgment and order was pleased to acquit all the accused from the charge
leveled against them.
3. Being aggrieved and dissatisfied with the said judgement
and order of acquittal, the appellant - State has filed the present appeal
mainly stating that the impugned judgement and order of acquittal passed
by the learned Trial Court is contrary to law and evidence on record and
the learned Trial Court has not appreciated the fact that all the witnesses
have supported the case of the prosecution and during cross-examination,
nothing adverse has been elicited in favour of the respondent. The case
has been proved beyond reasonable doubts and the prosecution has
successfully established the case against the respondent and the
judgement and order of acquittal is unwarranted, illegal and without any
basis in the eyes of 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.
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4. Heard learned APP Ms. Dhwani Tripathi for the appellant
State and learned advocate Mr. Rishin Patel for H.L.Patel advocates for
the rspondents. 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. Dhwani Tripathi has taken this Court through the
entire evidence of the prosecution on record of the case and has submitted
that the judgment and order of acquittal is contrary to law and evidence
on record and the learned trial Court has not appreciated the direct and
indirect evidence in the case. The prosecution has fully proved the case
beyond reasonable doubts but the learned trial Court has relied on minor
contradictions and has given undue weightage with regard to the place of
incident. The order passed by the learned trial Court is illegal, improper
and perverse and is required to be quashed and set aside and the appeal of
the appellant must be allowed.
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 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:
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Recently, in Kallu v. State of M.P., (2006) 10 SCC 313 : AIR 2006
SC 831, 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 it decides to interfere, it should assign reasons for differing
with the decision of the trial court". (emphasis supplied)
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 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.
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(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 appre-
ciation, the view taken by the learned Trial Court was a possible view,
there is no reason for the Appellate Court to interfere in the same.
8. In light of the above settled principles of law, the evidence on
record of the case is appreciated and the prosecution has examined
Prosecution Witness No. 1 Dhulabhai Bhanabhai at Exhibit 10 and the
witness is the complainant, who has stated that on the day of the
incident, he was at his field and at that time the accused came armed with
revolver, sword and dhariya and hurled caste abuses at him and told him
to leave the field. They even threatened to kill him and he went home
and thereafter went to the police station and filed the complaint, which is
produced at Exhibit 11. He had also given his caste certificate, which is
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produced at Exhibit 12.
During the cross examination by the learned advocate for the
accused, the witness has stated that he had given a typed complaint and
there is a civil dispute regarding the same land pending in the Civil Court
at Dholka filed by the accused Nos. 1 and 2 against him. He had filed an
appeal before the District Court against the order passed against him in
the Civil Suit and the field of the accused is at the western side of survey
No. 100. The accused did not injure him or his brother Vasrambhai and at
the time of the incident Jesingbhai did not have a pipe.
8.1 The prosecution has examined Prosecution Witness No. 2
Varambhai Bhanabhai Parmar at Exhibit 14 and the witness is the brother
of the complainant, who has supported the case of the prosecution. The
witness has stated that he was along with his brother working in the field
when the incident has occurred.
During the cross examination by the learned advocate for the
accused, the witness has stated that his signature is not affixed in the
complaint, which is produced at Exhibit 11, even though the typed
complaint has been filed by Dhulabhai Bhanabhai and by him. His
brother had gone to the Navsarjan Trust after filing the complaint and he
has a Civil Dispute regarding the same field with the accused and they
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have not been given any injunction order by the Civil Court.
8.2 The prosecution has examined Prosecution Witness No. 3
Laljibhai Malabhai Parmar at Exhibit 17 and Prosecution Witness No.4
Vijaykumar Mafatlal Parmar at Exhibit 19. Both the witnesses are the
panch-witnesses of the panchnama of the place of offence, which is
produced at Exhibit 18. Both the panch-witnesses have not supported the
case of the prosecution and have been declared hostile.
During the cross examination by the learned advocate for the
accused, the Prosecution Witness No. 3 Laljibhai Melabhai Parmar has
stated that the complainant had called him to affix his signature on the
panchnama and he did not dictate the panchnama. He did not read the
panchnama and as the complainant belonged to his village, community
and street, he had affixed his signature on the panchnama as per the say
of the complainant.
8.3 The prosecution has examined Prosecution Witness No. 5
Jagdishbhai Jeetendrai Pathak at Exhibit 20 and Prosecution Witness No.
6 Lavjibhai Amarabai Vaghela at Exhibit 22. Both the witnesses are the
panch-witnesses of the arrest panchnama of the accused, which is
produced at Exhibit 21. Both the witnesses have not supported the case
of the prosecution and have been declared hostile and have been cross
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examined at length by the learned Additional Public Prosecution but
nothing to support the case of the prosecution has come on record.
8.4 Prosecution Witness No. 7 Jaswantsinh Ranjitsinh examined at
Exhibit 23 was working as the PSO in Dholka Police Station on
18.07.2007 from 18:00 hours to 20:00 hours and the written complaint of
the complainant Dhulabhai was received by post and he had registered
the complaint, which is produced at Exhibit 11.
During the cross examination by the learned advocate for the
accused, the witness has stated that the complainant was not present when
he had registered the complaint and he was given the complaint to
register by his Superior Officer. The complainant has not affixed his
signature in his presence and hence he cannot identify the signature of the
complainant.
8.5 Prosecution Witness No. 8 Bhailalbhai Tulsibhai Karolia examined
at Exhibit 27 was working as the Police Inspector at Dholka Police
Station on 26-06-2007 when the written application by the complainant
was received and he had forwarded the application to the PSO for
registering the complaint.
8.6 The prosecution has examined Prosecution Witnees No. 9
Jitendrasinh Dilawarsinh Zala at Exhibit 28 and the witness is the
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Investigating Officer, who has narrated in detail the procedure undertaken
by him during investigation.
During the cross examination by the learned advocate for the
accused, the witness has stated that in the written complaint, it was not
mentioned at what time and on what date the incident had occurred, but
the details were mentioned by the complainant in his further statement. In
the complaints at Exhibit 11, the names of two persons as the complainant
was mentioned and two persons had affixed their signatures on the
application. He had recorded the statement of the complainant on
18.07.2007 and the complainant had stated that the incident had occurred
on 23.06.2007. There was no mention that any incident has occurred on
24.06.2007 and there was no explanation regarding the delay in filing of
the complaint. During investigation, it was found that there was a civil
dispute between the parties and the accused had an injunction order in
their favour. During investigation it was not found that any of the accused
had a firearm with them at the time of the incident and the complainant
had not produced any documentary evidence to show that the field was in
his name. The complainant had stated that the field was in the name of his
father but he was in possession of the same.
9. On minute appreciation of the entire evidence of the prosecution, it
appears that as per the written complaint produced by the complainant at
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Exhibit 11, the incident has occurred on 24.06.2007 but the date of the
incident is not mentioned in the complaint. The offence has been
registered on 18.07.2007 and the document, which is the written
complaint given by the complainant at Exhibit 11 is given by the
complainant and his brother Prosecution Witness No. 2 Vasrambhai
Bhanabhai Parmar. The written complaint has also been signed by both
the complainant and Prosecution Witness No. 2 Vasrambhai Bhanabhai,
but Prosecution Witness No. 2 Vasrambhai Bhanabhai has categorically
denied his signature on Exhibit 11. There is no reason mentioned for the
delay in filing the complaint and it has come on record that there are civil
disputes pending between the parties and Regular Civil Suit No. 209 of
2008 has been filed by the accused Nos. 1 and 2 against the complainant
and his brothers on 13.06.2007. After application for ad interim
injunction was also preferred by the accused Nos. 1 and 2 before the
learned Principal Civil Judge, Dholka and by an order dated 13.06.2008,
ad- interim injunction was granted and thereafter, after the complainant
and his brothers had appeared, after hearing the parties, the injunction
application was allowed in favour of the accused Nos. 1 and 2 by an order
dated 20.03.2009. Being aggreived by this order, the complainant and his
brothers had filed Civil Misc.Appeal No. 56 of 2009 before the District
Court, Ahmedabad (Rural) and by a judgment and order dated
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08.01.2010, the Additional District Judge and the Presiding Officer, Fast
Track Court No. 1, Ahmedabad (Rural) was pleased to reject the appeal
of the complainant and his brothers. In the entire evidence of the
prosecution, there are no independent witnesses examined to prove that
the incident has occurred and in the evidence of the Investigating Officer,
it has emerged on record that no firearm was found from the accused at
the time of the incident. This itself creates a huge doubt on the say of the
complainant and only the complainant and his brother are examined as
witnesses and in light of the civil disputes pending between the
complainant and his brother and the accused, the say of the complainant
is not believable. Moreover, the complainant has stated that all the three
accused had weapons with them but the complainant or his brother were
not injured and in light of the fact that the Civil Court, Dholka and
thereafter the District Court, Ahmedabad (Rural) had granted the
injunction in favor of the accused, the complainant and his brother could
not have entered into the field which was the disputed suit property. There
is nothing on record to prove that the accused had illegally trespassed into
the field and had abused and hurled casts slurs against the complainant
and the entire evidence has been appreciated by the learned Trial Court.
10. In view of the settled position of law in the decisions of
Chandrappa (supra), the learned trial Court has appreciated the entire
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evidence in proper perspective and there does not appear to be any
infirmity and illegality in the impugned judgment and order of acquittal.
The learned Trial Court has appreciated all the evidence and this Court is
of the considered opinion that the learned Trial Court was completely
justified in extending benefit of doubt and acquitting the accused of the
charges leveled against him. The findings recorded by the learned Trial
Court are absolutely just and proper and no illegality or infirmity has
been committed by the learned trial Court and this Court is in complete
agreement with the findings, ultimate conclusion and the resultant order
of extending benefit of doubt and acquittal recorded by the learned Trial
Court. This Court finds no reason to interfere with the impugned
judgment and order and the present appeal is devoid of merits and
resultantly, the same is dismissed.
11. The impugned judgement and order of acquittal passed by the
learned Special (ATRO) Judge & 8th Additional District & Sessions
Judge, Ahmedabad (Rural) in Special (ATRO) Case No. 61 of 2009 on
21.09.2010 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)
VVM
