Gujarat High Court
State Of Gujarat vs Kashiram Bhagabhai on 8 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1436 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
KASHIRAM BHAGABHAI & ORS.
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Appearance:
MS DHWANI TRIPATHI, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 4
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
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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
(hereinafter referred to as 'the Code') against the judgment and the
order dated 23.04.2009 in Special Atrocity Case No.42 of 2008
passed by the learned Presiding officer and Special Judge, Fast
Track Court No.1, Ahmedabad (Rural), Viramgam (hereinafter
referred to as 'the learned Trial Court'), whereby, the learned
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learned Trial Court has acquitted the respondents - accused from
the offences punishable under Sections 504, 323, 324, 294(2), 506(2)
and 114 of the Indian Penal Code (hereinafter referred to as 'the
IPC') and Section 3(1)(10) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to
as 'the Atrocity Act').
1.1 The respondents are hereinafter referred to as 'the
accused' as they stood in the rank and file in the original case, for
the sake of convenience, clarity and brevity.
2. Though served, the respondents have not appeared
either in person and have not engaged a lawyer to make
submissions on their behalf.
3. The relevant facts leading to filing of the present
appeal are as under:
3.1. On 24.07.2003 at around 14:00 hours, the complainant
Ujiben W/o Mafabhai Kachrabhai Senava was present at the
Jhalampura Gram Panchayat Office and Radhaben W/o Manjibhai
and Bharatbhai Somabhai were also present and they were
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discussing issues regarding the development of the village in the
meeting, and at that time, the accused No.2 Bhayrambhai
Boghabhai Koli Patel got angry and started abusing the
complainant. The accused Nos. 1, 3 and 4 started beating the
complainant and the accused No.2 gave a blow with a stick on the
head of the complainant and all the accused also hurled caste
slurs. The complainant filed the complaint before the Viramgam
(Rural) Police Station under Section 504, 506(2) of IPC and Section
3(1)(10) of the Atrocities Act, which was registered at Viramgam
(Rural) Police Station II-C.R.8 of 2003 on 12.04.2003.
3.2. After registration of the FIR, the investigation was
carried out by the concerned Investigating Officer and after having
sufficient material against the accused, a chargesheet came to be
filed before the concerned jurisdictional Magistrate. As the case
was exclusively triable by the Court of Sessions, after completion
of the process under Section 209 of the Cr.P.C., the case was
committed to the Sessions Court and the same was registered as
Special Atrocity Case No.42 of 2008.
3.3. The accused were duly served with the summons and
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the accused appeared before the learned 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 was framed by the learned learned Trial Court at
Exh.6 and the statements of the accused were recorded at Exhs.7 to
9, wherein, the accused denied all the contents of the charge and
the entire evidence of the prosecution was taken on record. The
prosecution has examined 9 witnesses and has produced 8
documentary evidences in support of the case.
3.4. After the closing pursis was submitted by the learned
APP at Exh.30, the further statement of the accused under Section
313 of the Code was recorded. After hearing the arguments of the
learned APP and learned advocate for the accused and after
perusing the documents on record, the learned Trial Court, by the
impugned judgment and order, has acquitted the accused for the
offences punishable under Sections 504, 323, 324, 294(2), 506(2) and
114 of the IPC and Section 3(1)(10) of the Atrocity Act.
4. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the learned Trial Court, the
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appellant - State has filed the present appeal mainly stating that
the impugned judgment and order passed by the learned learned
Trial Court is contrary to law, evidence on record. The learned
learned Trial Court has failed to appreciate that the prosecution
has proved the case beyond reasonable doubt by producing cogent
and reliable evidence. The learned learned Trial Court has not
properly appreciated the oral as well as documentary evidence on
record it its true spirit. The learned learned Trial Court has erred
in acquitting the accused through there are ample and cogent
evidence to connect the accused with the crime and the offences
registered against them. The learned learned Trial Court has also
committed an error in arriving at the conclusion that though the
complainant and the prosecution witnesses have fully supported
the case of the prosecution and there are no material
contradictions, the learned Trial Court has acquitted the accused.
The impugned judgment and order of acquittal passed by the
learned learned Trial Court is illegal, invalid, improper, perverse
and bad in law and the same deserves to be quashed and set aside.
5. Heard learned APP Ms.Dhwani Tripathi for the
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appellant - State. Though served to the respondents, they have not
appeared either in person or through an advocate. Perused the
impugned judgment and order of acquittal and have re-
appreciated the entire evidence of the prosecution on record of the
case.
6. Learned APP Ms.Dhwani Tripathi for the appellant -
State has taken this Court through the entire evidence produced
by the prosecution and has vehemently argued that the learned
Trial Court has not appreciated the evidence properly and the
prosecution has produced cogent evidence to prove the the case
and has successfully proved the case against the accused but the
learned Trial Court has not considered the same and has acquitted
the accused. The judgment and order of acquittal passed by
learned Trial Court is contrary to law, evidence on record and
principles of justice. The judgment and order of acquittal passed
by learned Trial Court is based on inferences, not warranted by
facts of the case and also on presumption, not permitted by law.
Learned APP has urged this Court to quash and set aside the
impugned judgment and order of acquittal and to find the accused
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guilty for the said offence. Learned APP has urged this Court to
allow the present appeal and impose maximum sentence on the
accused.
7. 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 the case of Chandrappa & Ors. Vs. State of
Karnataka reported in 2007 (4) SCC 415, the Apex Court has
observed as under:
Recently, in Kallu Vs. 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 learned Trial
Court is based on evidence and the view taken is reasonable and
plausible. It will not reverse the decision of the learned 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;
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(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.
(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.
8. It is a settled principle of law that in an appeal against
acquittal, the Appellate Court is circumscribed by limitation that
no interference has to be made in the order of acquittal unless after
appreciation of the evidence produced before the Trial Court, it
appears that there are some manifest illegality of perversity which
could not have been possibly arrived at by the Court. It is also a
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settled principle that there is no embargo on the Appellate Court
to review the evidence but, generally the order of acquittal shall
not be interfered with as the presumption of innocence of the
accused is further strengthened by the order of acquittal. The
golden thread which runs through the web of administration of
justice in criminal cases is that if two views are possible on the
evidence adduced in the case of the prosecution i.e. (i) guilt of the
accused and (ii) his innocence, the view, which is in favour of the
accused, should be adopted, and if the learned Trial Court has
taken the view in favour of the accused, the Appellate Court
should not disturb the findings of the acquittal. The Appellate
Court can interfere with the judgment and order of acquittal only
when there are compelling and substantial reasons and the order is
clearly unreasonable and where the Appellate Court comes to
conclusion that based on the evidence, the conviction is a must.
9. In light of the above, the evidence produced by the
prosecution on record is appreciated and the prosecution has
examined PW-1 Valjibhai Khengarbhai Koli Patel at Exh.10 and the
witness is the panch of the arrest panchama of the accused No.2,
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which is produced at Exh.11. The witness has not supported the
case of the prosecution and has been declared hostile.
9.1. The prosecution has examined PW-2 Ujiben W/o
Mafabhai Kachrabhai Senava at Exh.15 and the witness is the
complainant who has narrated all the fact stated in the complaint,
which is produced at Exh.16. The witness has also produced her
Caste Certificate at Exh.17. The witness has stated that after the
incident, as she was injured on her head, she was taken to the
Government Hospital at Viramgam and five stitches were taken on
her head, but the witness has not identified the muddamal stick
and has stated that as the incident had occurred a long time ago,
she cannot clearly identify the stick. During the cross-examination
by the learned advocate for the accused, the witness has stated that
she cannot read and write and the complaint was not read over
and explained to her. At the time of the incident, Radhaben was
the Sarpanch of the Gram Panchayat and Radhaben was of her
community. The accused No.2 has stated that Manjibhai, the
husband of the Sarpanch Radhaben, was not a member and he
could not be present in the meeting and he must be asked to leave.
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That the accused No.2 had given this suggestion, there was a
verbal altercation and while the altercation was going on,
Manjibhai Maganbhai Senava, Chikabhai Gandabhai Senava,
Amrutbhai Maganbhai Senava, Bababhai Pasabhai Senava and
Mahadevbhai Raghubhai Senava, all came into the Gram
Panchayat Office.
9.2. The prosecution has examined PW-3 Bharatkumar
Somabhai Parekh at Exh.18 and the witness has stated that at the
time of the incident, the complainant Ujiben was a member of the
Jhalampara Gram Panchayat and he was working as the Talati-
cum-Mantri of Jhalampara Gram Panchayat. On the date of the
incident, there was a meeting at 1:00 hours in the afternoon and
the incident had occurred at around 2:00pm. The Sarpanch was
Radhaben and Kailashben was the Deputy Sarpanch and the
accused Bhayrambhai Boghabhai Koli Patel, Karshanbhai,
Khengarbhai Bharwad, Chikabhai Haribhai Koli Patel and Jivabhai
Jayrambhai and others were members. That Ujiben told
Bhayrambhai Boghabhai Koli Patel that he had misappropriated
the money from her society and they had a verbal altercation and
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the atmosphere became tense and the accused No.2 went home
and brought a stick and gave a blow on the head of Ujiben. That he
had immediately left the place, and later on, he came to know that
Ujiben was taken to the Government Hospital at Viramgam for
treatment. During the cross-examination by the learned advocate
for the accused, the witness has stated that the police had recorded
his statement about 15 days after the incident on 16.03.2008.
9.3. The prosecution has examined PW-4 Radhaben W/o
Manjibhai Maganbhai Senava at Exh.19 and the witness was the
Sarpanch of Jhalampara Gram Panchayat at the time of the
incident. The witness has stated that at the time of the incident, the
accused No.2 had used caste slurs and they had a verbal
altercation and the accused No.2 had given a blow on her head.
During the cross-examination by the learned advocate for the
accused, the witness has stated that her husband was present in
the meeting and the accused No.2 had objected to his presence and
had stated that her husband should not be present in the meeting
as he was not a member and had asked him to leave and objected
to his presence. That after this was said, the verbal alteration
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started and Manjibhai Maganbhai, Chikkabhai Gandabhai,
Amratbhai Maganbhai, Bababhai Pasabhai, Mahadevbhai
Kanubhai etc. came into the room. That Bhayrambhai Boghabhai
Koli Patel, the accused No.2, had given an application in the office
of the Taluka Development Officer that she was misappropriating
the work of the Gram Panchayat and the accused Gagjibhai
Jerambhai had also given an application against her in the office of
the District Development Officer.
9.4. The prosecution has examined PW-5 Karshanbhai
Khengarbhai Bharwad at Exh.20 and as per the case of the
prosecution, the witness was present at the time of the incident
and is an eye-witness to the incident. The witness has not
supported the case of the prosecution and has been declared
hostile and has been cross-examined at length by the learned APP,
but nothing to support the case of the prosecution has come on
record. During the cross-examination by the learned advocate for
the accused, the witness stated that Manjibhai, the husband of the
Sarpanch Radhaben, was present in the meeting and the accused
No.2 had objected to his presence and the verbal altercation took
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place, and thereafter, the meeting was dissolved and no procedure
was undertaken in this meeting.
9.5. The prosecution has examined Amratbhai Ramabhai
Senava at Exh.22 and the witness was working as the P.S.O. in
Viramgam (Rural) Police Station on 24.07.2003 and he had
recorded the complaint of the complainant and had registered the
same as Viramgam Police Station 1-C.R.No.35 of 2003, under
Sections 323, 320, 504, 506(2) and 114 of the IPC and Section 3(1)
(10) of the Atrocities Act. During the cross-examination by the
learned advocate for the accused, the witness stated that the
complainant Ujiben came to file the complaint along with
Sarpanch Radhaben and many other persons and the complainant
Ujiben was illiterate.
9.6. The prosecution has examined PW-7 Poonamji Chaturji
Thakur at Exh.24 and the witness is the Investigating Officer, who
had filed the charge sheet against the accused.
9.7. The prosecution has examined PW-8 Dr. Mitesh
Ajaykumar Shah at Exh.26 and the witness has stated that
Dr.R.P.Verma was working as a Medical Officer on 24.07.2003 in
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the Community Health Center at Viramgam and thereafter, he was
dismissed from service. As per the medical papers on 24.07.2003 at
around 14:45 hours, Ujiben Mafabhai Senava was brought for
treatment and she had given a history of assault with a hard and
blunt substance and had a injury on her head. As per the injuries,
there was a CLW with skin abrasion at the right parietal region of
head 2cmX2cm at skin layer, and there was a blood clot with pain
and swelling. The injury was a simple injury and the Medical
Certificate is produced at Exh.27. During the cross-examination by
the learned advocate for the accused, the witness has stated that if
a person while running dashes against a door or any wooden edge
corner, they would sustain an injury as the injured.
9.8. The prosecution has examined PW-9 Trikambhai
Shankardas Patel at Exh.29 and the witness was the Dy.S.P.,
Viramgam (Rural) Police Station, who has investigated the offence
and narrated the entire procedure that was undertaken by him
during investigation. During the cross-examination by the learned
advocate for the accused, the witness has stated that he has not
recorded the further statement of the complainant Ujiben and he
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had not drawn a panchnama of the house of accused No.2.
9. On minute appreciation of the entire evidence of the
prosecution, as per the case of the complainant, the accused had
used caste slurs and had threatened to kill the complainant at the
time of the incident, but PW-3 Bharatkumar Somabhai Parekh, the
Talati-cum-Mantri, who was present in the meeting, has not stated
anything about caste slurs that were used by the accused or the
threat to kill given by the accused. PW-4 Radhaben, W/o of
Manjibhai Maganbhai Senava, who was the Sarpanch, at the time
of the incident, has also not stated that the accused had used any
caste slurs and had threatened to kill the complainant and during
her cross-examination, it has come record that she was the
Sarpanch of Jhalampara Gram Panchayat and her husband
Manjibhai was present in the meeting, even though, he was not a
member and the accused No.2 and others had objected to his
presence. A verbal altercation had rose as her husband Manjibhai
was asked to leave, and thereafter, she had accompanied the
complainant Ujiben went to the police station. PW-5 Karshanbhai
Khengarbhai Bharward, who is an independent witness, has not
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supported the case of the prosecution and has been declared
hostile and admittedly, as it was a meeting, many persons were
present in the meeting, but none of the eye witnesses have been
examined before the learned Trial Court. If the Medical Certificate
produced that Exh.27 is perused, the complainant has not named
any of the accused as the assailants and has not named the weapon
before the Medical Officer and in the further statement of the
accused recorded under Section 313 of the Cr.P.C., the accused
have produced copies of the complaints filed by the accused
against the Sarpanch. The evidence that has emerged on record is
that there was enmity between the accused and Sarpanch
Radhaben and there were a number of complaints filed between
them, and thereafter, the Sarpanch had accompanied the
complainant to the Police Station and the complainant did not
know what was written in the complaint, and neither was the
complaint read over and explained to her.
11. In view of the above, the learned Trial Court has
appreciated the entire evidence in proper perspective and there
does not appear to be any infirmity and illegality in the impugned
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judgment and order of acquittal. The learned Trial Court has
appreciated all the evidence and this Court is of the considered
opinion that the learned Trial Court was completely justified in
acquitting the accused of the charges leveled against them. The
findings recorded by the learned Trial Court are absolutely just
and proper and no illegality or infirmity has been committed by
the learned Trial Court and this Court is in complete agreement
with the findings, ultimate conclusion and the resultant order of
acquittal recorded by the 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.
12. The impugned judgment and the order dated
23.04.2009 in Special Atrocity Case No.42 of 2008 passed by the
learned Presiding officer and Special Judge, Fast Track Court No.1,
Ahmedabad (Rural), Viramgam is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned learned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S.KAZI
