Gujarat High Court
The State Of Gujarat vs Mahammadzahir Asagarali Saiyed on 21 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 493 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
No
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THE STATE OF GUJARAT
Versus
MAHAMMADZAHIR ASAGARALI SAIYED & ORS.
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Appearance:
MS.JIRGA JHAVEI, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No.
1,2,3,4
MR.RAJESH B SONI(2632) for the Opponent(s)/Respondent(s) No. 2,4
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 21/04/2025
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 learned Special Judge,
(Special) (hereinafter referred to as "the learned Trial Court") in Special
(ATRO) Case No. 31 of 2006 on 28.12.2006, whereby, the learned Trial
Court has acquitted the respondent Nos. 1 to 4 for the offence for the
offence punishable under Sections 143, 147, 149, 332, 323, 504 and
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506(2) of the Indian Penal Code, 1860 (IPC) and Under Sections 3 (1)
(10) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities), Act, 1985. (hereinafter referred to as " the Atrocities 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. The brief facts that emerge from the record of the case are as
under:
2.1] On 28-01-2006, at around 10:00 a.m., all the accused formed an
unlawful assembly at Primary School No. 3, near Mahesana Police
Headquarters, Mahesana and while the complainant Shantaben Motibhai
Rana, was doing her work as a public servant, the accused obstructed her
from doing her work and came into her office. The accused No. 3 caught
hold of the plait of the complainant and the accused, No. 4 slapped her
on her left cheek and all the accused abused the complainant and
threatened to kill her and committed the offence under Sections 143, 147,
332, 323, 504, 506(2), 451, 149 of the I.P.C., and Section 3 (1)(10) of
the Atrocities Act. The complainant filed the complaint at the Mahesana
City Police Station, which was registered at I-C.R.No. 36 of 2006.
2.2] The Investigating Officer recorded the statements of the
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connected witnesses and collected the necessary documents and after
completion of investigation the police filed the chargesheet against the
accused before the Court of Chief Judicial Magistrate, Mahesana and as
the said offences against the accused were exclusively triable by the
Court of Sessions, the case was committed to the Sessions Court,
Mahesana as per the provisions of Section 209 of the Code of Criminal
Procedure and the case was registered Sessios Case No. 31 of 2006.
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.3 was
framed against the accused and the statements of the accused were
recorded at Exhs. 4 to 7, 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 five
documentary evidences to bring home the charge against the accused and
after the learned Additional Public Prosecutor filed the closing pursis at
Exh.27, the further statement of the accused under Section 313 of the
Code of Criminal Procedure, 1973 were recorded, wherein, the accused
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denied all the evidence of the prosecution on record. The accused refused
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 all the
charges 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. 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. Jirga Jhaveri for the appellant State and
Mr. Rajesh B. Soni for the respondents-accused. 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. Jirga Jhaveri 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. That the complainant has
supported the case of the prosecution, which is corroborated by the
deposition of the medical officer and the witnesses have identified the
accused before the learned trial Court. 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. That 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. Learned advocate Mr. Rajesh Soni appearing for the respondents-
original accused submits that the judgment and order has been passed
after appreciation of all the evidence and the learned Trial Court has
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appreciated the evidence in proper perspective and hence, the appeal of
the appellant-State must be rejected.
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
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:
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
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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. 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.
9. In light of the above settled principles of law, the evidence on
record of the case is appreciated and the prosecution has examined the
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Prosecution Witness No. 1 Parbatji Maganji Thakor at Exhibit 12 and
Prosecution Witness No. 2, Bharatkumar Harjivanbhai Makwana at
Exhibit 13. Both the witnesses are the panch witnesses of the panchnama
of the place of offence, which is produced at Exhibit 26. Both the
witnesses have stated that they were called to the Primary School No. 3
and were asked to affix their signatures and the panchnama was ready
when they had gone and only on the say of the police, they had affixed
their signatures. The witnesses have not supported the case of the
prosecution and have been declared hostile and have been cross-
examined at length by the learned APP, but nothing to support the case
of the prosecution has come on record.
9.1] The prosecution has examined Prosecution Witness No. 3
Shantaben Motibhai Rana at Exhibit 14 and the witness is the
complainant, who has stated that. On 28.01.2006, she was working as a
Principal of the Primary School No. 3 and at the time of the incident, she
was in her office. At that time, a student of Class VII, came and told her
that one boy had come to the top floor and was abusing the girls and she
went up and the class teacher Krishnaben Nayak was present. She asked
her about the incident and one boy named Zaheer Ali Asghar Ali was
present. She explained to him and told the boy that if he had any work,
he should come to her office, and he should not go to the top floor of the
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school. The boy abused the girls and told her that the girls were making
gestures to him and hence he had come up. The boy went away and after
some time, five to six persons, including the mother of the boy and
others came and while she was in her office, they into her office and one
of the ladies caught her, and the other slapped her. That at that time, the
other teachers including Pushpaben Bhavsar came and other labor
workers who were working outside, came into the office and told the
accused to leave. The accused were abusing her and at that time,
Policeman - Narendrabhai and Bhagwatiben - Police Constable were
outside and they took the accused away. She had filed the complaint,
which is produced at Exhibit 15 and she has produced her caste
certificate at Exhibit 16.
During the cross-examination by the learned advocate for the
accused, the witness has stated that she did not know the accused at the
time of the incident, and the incident went on for about 10 minutes. That
there was a time gap of about half an hour between the time that the boy
came into the school and the accused came and thereafter, she went to
the DSP office to give the complaint, and at that time, the DSP was
present. The two teachers were present for the school in the afternoon
shift and in the complaint, she has stated that Pushpaben and Joytabhai
had come from their classes. She was not slapped while she was bringing
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the boy down and she had caught the boy's hand and brought him down.
The incident had occurred in her chamber and at the time of the incident,
the students of Class 1 and Class 6 were down. She did not know the
names of the accused till she had filed the complaint and at the time of
the incident, and all the accused were residing in the police headquarters.
9.2] The prosecution has examined Prosecution Witness No. 4
Pushpaben Mafatlal Bhavsar at Exhibit 17 and the witness has stated that
on 28th January 2006, she was working as a teacher in Mehsana Primary
School No. 3. Her timings for the school were the afternoon shift but as
she had some work of the rojmel, she had come early to the school, and
at that time, two ladies and about six to seven boys came into the school
office. The complainant was also doing some writing work, and one of
the ladies slapped the complainant. That there was a verbal altercation
between the complainant and the persons, who had come, and they were
abusing her, but she does not know them. That she does not know what
was the altercation about and another teacher Joytabhai was with her.
That they all removed the persons from the office, and besides this, she
does not have any knowledge about any other thing.
During the cross-examination by the learned advocate for the
accused, the witness has stated that at the time of the incident, she was
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the class teacher of Class 2, and she had the afternoon shift on the date of
the incident. That she had come earlier to the school on the date of the
incident and she had not come for the work of the electoral roll. That she
did not know any of the accused at the time of the incident.
9.3] The prosecution has examined Prosecution Witness No. 5
Joytaram Maganlal at Exhibit 18 and the witness was working as a
teacher in the school and on the date of incident. The witness has stated
that on 28th January 2006, he was on duty for the afternoon shift, but he
had come to school early and the complainant was the Principal and
working in her office, and at that time about 8 persons came, and the
accused No.3 caught the plait of the complainant and the accused No. 4
slapped the complainant on her left cheek. That he told all the persons to
go outside of the office and he later on came to know that the incident
was regarding the molestation of a student of Class VII.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the police did not come into the
school compound at the time of the incident and the complainant had
come out of her office and come into the compound to inform the
superior officer about the incident. That he and Pushpaben Bhavsar had
gone along with the complainant to the DSP office, where the
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complainant Shantaben told the DSP that she did not want to give a
complaint but he has no knowledge about the same.That no item in the
office was broken at the time of the incident, and the staff persons came
and explained to the persons who had come and removed them from the
office. That the school is situated on a public road and a number of
persons had collected there.
9.4] The prosecution has examined Prosecution Witness No. 6
Narendrasinh Balwantsinh, Buckle No. 677 at Exhibit 19 and the witness
has stated that on 28th June 2006, he was on duty at the Police
Headquarter, where a new temple was being constructed and there was a
hue and cry near the school at around 10.30 am. He and Woman Police
Constable Bhagwatiben had gone tothe place and the accused were
abusing the Principal of the Primary School. He took the accused to City
Police Station and handed them over to Police Inspector Yagnik Saheb.
During the cross-examination by the learned advocate for the
accused, the witness has stated that there were a number of persons
outside of the school compound and the accused were also standing
outside the school compound. They did not go into the school
compound, and he had handed over the accused to Police Inspector
Yagnik. He does not know if any incident had taken place in the school
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office and the school is situated on a public road, and at that time 150 to
200 persons had gathered there. Immediately after he had arrested the
accused, Police Inspector Yagnik had come there and Police Inspector
Yagnik had taken the accused in his jeep but he does not know where he
had taken them. He had caught the persons whom the complainant had
identified.
9.5] The prosecution has examined Prosecution Witness No. 7
Ashaben Narsinhbhai Bhangi at Exhibit 20 and the witness has stated
that on 28th January, 2006, she was studying in standard 7 of the school.
That one boy was looking at her and she asked him why he was looking
at her and he came into the school and threatened her. She went and told
the Principal and her friend Falguni also came and the Principal shouted
at him and took him down. There was a hue and cry down and she does
not know any other thing.
During the cross-examination by the learned advocate for the
accused, the witness has stated that she did not know the boy before the
incident and she did not have any relations of talking to him.
9.6] The prosecution has examined Prosecution Witness No. 8
Heenabanu Mehboobbhai Sheikh at Exhibit 21 and the witness was also
studying in standard 7 in the school. On the date of the incident, the
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witness has stated that her friend was being threatened by the boy and
her friend had gone to tell the Principal and the Principal came and
shouted at the boy and took him away. That she does not know what had
happened thereafter.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the boy was looking at them from
down and hence they asked him why he was looking at them and she did
not tell the police that the boy had threatened them.
9.7] The prosecution has examined Prosecution Witness No. 9
Rajendrabhai Bhanuprasad Yagnik at Exhibit 23 and the witness was
working as a PSI, Mehsana City Police Station on 28th January 2006.
The witness has stated that he had received information that there was a
fight and he immediately went to the primary school, and the
complainant Shantaben Motibhai Rana had recorded her complaint,
which he had taken down, and at that time the accused were present at
the place and he had caught them.
During the cross-examination by the learned advocate for the
accused, the witness has stated that he does not know where the
complainant had written the complaint from, and he was at the school for
about 15 to 20 minutes. The PSO had informed him about the incident at
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the primary school and he does not know whether the DSP was present at
the DSP office. That he had taken his government vehicle and gone to
the primary school.
9.8] The prosecution has examined Prosecution Witness No. 10
Mayanksinh Ajitsinh Chavda at Exhibit 25 and the witness is the
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 the complainant had stated that caste
abuses were used towards her but witness Pushpaben did not support the
say of the complainant. That he had recorded the statements of the
witnesses and he had gone to the place of incident immediately at 12.35
hours.
10] On minute appreciation of the entire evidence of the
prosecution, it is the case of the complainant that the accused abused her
and used caste slurs but none of the witnesses have stated what abusive
words or what caste slurs were used by the accused. There are a number
of contradictions with regard to the number of persons that were present
in the office of the complainant on the date of the incident. Admittedly,
there are two incidents, the first one which occurred on the top floor,
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where the accused No. 1was abusing the girls and the second had
occurred in the office after half an hour. There are major contradictions
with regard to the arrival of Prosecution Witness No. 6 Narendrasinh
Balwantsinh, who had gone to the school and the witness has stated that
the place of incident and the accused were outside of the gate of the
school. The second incident as narrated by the complainant has occurred
in her office, which is not a public place and the complainant has named
Prosecution Witness No. 4 Pushpaben Mafatlal Bhavsar and Prosecution
Witness No. 5 Joytaram Maganlal as eyewitnesses to the incident but
both the witnesses have not fully supported the case of the prosecution
and have clearly stated that they could not identify the accused as they
were not known to them from the beginning. As per the case of the
prosecution, many persons had gathered but no independent witnesses
have been examined by the prosecution and the presence of Prosecution
Witness No. 4 Pushpaben Mafatlal Bhavsar and Prosecution Witness
No. 5 Joytaram Maganlal is also doubtful as both of them have stated
that they were in the afternoon session of the school. The complainant
has categorically stated that she does not remember the abusive words
used by the accused and all the witnesses have stated that they were not
known to the accused. There is no consistency with regard to the
chronology of the incident or with regard to the actual occurrence of the
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incident and Prosecution Witness No. 9 Police Inspector Rajendrakumar
Bhanuprasad Yagnik has stated that he has taken the complaint at the
school, whereas, the complainant, Shantaben Motibhai Rana has stated
that the complaint was taken down at the DSP office. The entire evidence
is discussed by the learned Trial court and the offence has not been
proved beyond reasonable doubts.
11] In view of the settled position of law in the decisions of
Chandrappa (supra), 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 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
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resultantly, the same is dismissed.
12] The impugned judgement and order of acquittal passed by the
learned Special Judge, (Special) in Special (ATRO) Case No. 31 of 2006
on 28.12.2006, is hereby confirmed.
13] Bail bond stands cancelled. Record and proceedings be sent back to
the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VVM
