Gujarat High Court
State Of Gujarat vs Shetansinh @ Chetansinh Jaswantsinh ... on 21 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1251 of 2010
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
SHETANSINH @ CHETANSINH JASWANTSINH VAGHELA & ORS.
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Appearance:
MS DHWANI TRIPATHI, APP for the Appellant(s) No. 1
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No. 2
MR J G VAGHELA(3971) for the Opponent(s)/Respondent(s) No. 1
RULE NOT RECD BACK for the Opponent(s)/Respondent(s) No. 2
UNSERVED EXPIRED (R) for the Opponent(s)/Respondent(s) No. 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
(hereinafter referred to as 'the Code') against the judgment and the
order dated 17.06.2009 in Special Atrocity Case No.230 of 2007
passed by the learned Presiding Officer and Additional Sessions
Judge, 2nd Fast Track Court, Deesa Camp at Deodar (hereinafter
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referred to as 'the learned Trial Court'), whereby, the learned Trial
Court has acquitted the respondents - accused from the offences
punishable under Sections 323, 325 and 114 of the Indian Penal
Code (hereinafter referred to as 'the IPC'), Section 3(1)(10) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (hereinafter referred to as 'the Atrocity Act') and Section
135 of the B.P.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. As per the order passed by a Coordinate Bench of this
Court, bailable warrants were issued to the each of the
respondents. As per the communication of learned 4th Additional
Sessions Judge, District Banaskantha at Palanpur dated 03.12.2022,
as per report of the Deodar Police Station the bailable warrant had
been served upon the respondent No. 1 - original accused No. 1
and as per the certificate of Sarpanch of village Forana, Taluka
Deodar, District Banaskantha dated 25.11.2022, the respondent
No.2 namely Laxmansinh @ Lakhubha Bhurji Sodha has expired
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on 25.11.2022 and the copy of the death certificate of the accused
No.2 has been submitted along with the report of the Police
Inspector, Deodar Police Station. The same is taken on record, and
hence, the appeal qua, the respondent No.2 stands disposed of as
abated.
3. The relevant facts leading to filing of the present
appeal are as under:
3.1. On 11.08.2006 at around 6:00am, the complainant
Rameshbhai Dhanabhai Majirana had gone to answer nature's call
near his agricultural field, and at that time, both the accused came
and asked him, from whom, had he taken money to release the
mortgage of the land, which was mortgaged to them earlier. The
accused No.2 took the stick and hit the complainant on the elbow
of his left hand and the accused No.1 assaulted the complainant
with the stick and gave him 2 to 3 blows on the shin of the left leg
and he sustained a fracture and as he started shouting, his wife
Naviben and son Obambhai came running and the accused took
their sticks and ran away. The complaint was filed by the
complainant Rameshbhai Dhanabhai Majirana at Deodar Police
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Station under Sections 323, 325 and 114 of the IPC, Section 135 of
the B.P.Act and Section 3(1)(10) of the Atrocities Act, which was
registered as Deodar Police Station I-CR No.64 of 2006.
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, the 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.230 of 2007.
3.3. 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 was framed by the learned Trial Court at Exh.5 and the
statements of the accused were recorded at Exhs.6 and 7
respectively, wherein, the accused denied all the contents of the
charge and the entire evidence of the prosecution was taken on
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record. The prosecution has examined 13 witnesses and has
produced 12 documentary evidences in support of the case.
3.4. After the closing pursis was submitted by the learned
APP at Exh.51, 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.
4. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the learned Trial Court, the
appellant - State has filed the present appeal mainly stating that
the impugned judgment and order passed by the learned Trial
Court is contrary to law, evidence on record and principles of
justice. The learned Trial Court has not properly appreciated the
oral as well as documentary evidence on record it its true spirit.
The the learned Trial Court has erred in coming to conclusion that
the learned Trial Court has failed to prove the case of the
prosecution beyond the reasonable doubt. The learned Trial Court
has erred in acquitting the accused through there are ample and
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cogent evidence to connect the accused with the crime and the
offences registered against them. The 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 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
appellant - State and learned advocate Mr.J.G.Vaghela for the
accused. 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
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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 Judge 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 guilty for the said
offence. Learned APP has urged this Court to allow the present
appeal and impose maximum sentence on the accused.
7. Learned advocate Mr.J.G.Vaghela for the respondents
- original accused has submitted that the learned Trial Court has
appreciated all the evidence in true perspective and has not
committed any error in acquitting the accused. Therefore, no
interference of this Court is required in the impugned judgment
and the order of acquittal passed by the learned Trial Court and
has urged this Court to reject the appeal.
8. At the outset, before discussing the facts of the present
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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 learned 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
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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
learned 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 learned
Trial Court.
9. 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 learned 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 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
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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.
10.1. The prosecution has examined PW-1 Devsibhai
Bhemabhai Sodha at Exh.15 and PW-2 Ratabhai Ajabhai Wajir at
Exh,17. Both the witnesses are the panch witnesses of the arrest
panchnama produced at Exh.16, whereby, the accused No.1 was
arrested and he had voluntarily given the stick that was used in
the incident. Both the witnesses have not supported the case of the
prosecution and have stated that they had merely affixed their
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thumb impression on the panchnama.
10.2. The prosecution has examined PW-3 Naviben
Rameshbhai at Exh.25 and the witness has stated that her husband,
the complainant, had gone to answer nature's call towards his field
and she heard him shouting, she ran and went and saw both the
accused assaulting her husband with sticks. That her son Ambo
Pramobhai and Bhavabhai also ran and came and the accused saw
them and ran away. Her husband was injured on the leg and hand
and he was taken to the Government Hospital at Deodar and he
had filed the complaint. During the cross-examination by the
learned advocate for the accused, the witness has stated that their
agricultural field has been mortgaged with the accused and they
are cultivating the same and are taking crops in three seasons.
There is a bore well for irrigation in the land and she had gone
along with her husband while he was filing the complaint. That
they had given the name of one accused as they did not know the
name of the other accused and they had stated that the other
accused was the sister's son of the accused No.2, but she does not
know how many nephews the accused No.2 has.
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10.3. The prosecution has examined PW-4 Premabhai
Rameshbhai at Exh.26 and the witness has stated that their field
was mortgaged to the accused for a period of five years, but
thereafter, they had released the land from mortgage. That the
accused were having a grudge and they wanted to know where
they had brought the money from and when his father had gone to
answer nature's call, he suddenly heard him shouting and his
mother and brothers went running and they saw that the accused
were assaulting his father with sticks. That his father had
sustained a fracture on his leg. During the cross-examination by
the learned advocate for the accused, the witness has stated that
the residence of the accused is near the field, which was
mortgaged to them and next to that is the waste land. That when
he reached the place of incident, the accused had already left and
he saw his father lying on the ground. The incident has occurred at
around 6:00am, and at that time, it was a little dark.
10.4. The prosecution has examined PW-5 Bavabhai
Ramsibhai at Exh.28 and the witness is the brother-in-law of the
complainant, who has supported the case of the prosecution and
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has stated that when he heard the shouts and reached the place,
the accused had beaten his brother-in-law and gone away. During
the cross-examination by the learned advocate for the accused, the
witness has stated that he does not know for how long period was
the mortgaged deed executed and the agricultural land was still in
the possession of the accused. That when he went to the place of
incident, only his brother-in-law was at that place and there was
no other person with him.
10.5. The prosecution has examined PW-6 Ambabhai
Rameshbhai at Exh.30 and the witness is the son of the
complainant, who has supported the case of the prosecution.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the mortgage was released
about 2 ½ years earlier and when he went to the place of incident,
his father was lying on the ground, and thereafter, the other
persons came running. That his father had informed him that the
accused had assaulted him and he had gone along with his father
to file the complaint. That they had taken Mafaji Darbar along with
them and his father could not speak while he was at the police
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station and Mafaji Darbar told the police to write the complaint,
and hence. the police had written the complaint.
10.6. PW-7 Dr. Mehulbhai Dalpatbhai Modh examined at
Exh.31 is the Medical Officer, having his medical practice in the
name of Ashirwad Hospital and is an M.S. Orthopedic Surgeon.
The witness has stated that on 11.08.2006 at around 10:00am,
Rameshbhai Dhanabhai Majirana was brought to him with a
referred chit from CHC, Deodar and he had a fracture on the left
leg. The fracture was a grade-III fracture and there was also an
injury on the left elbow. The injury was by a hard and blunt
substance and could be sustained by a stick. The relatives of the
injured had stated that he was injured in an assault at 6:00am. The
Medical Certificate has been produced at Exh.32 and during the
cross examination by the learned advocate for the accused, the
witness has stated that if a person was injured by the horns of a
bullock, the person could sustain such type of injuries and the
injured did not name any person as the persons who had assaulted
him.
10.7. PW-8 Raichandbhai Sendhabhai Devipujak examined
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at the Exh.35 has stated that he is residing near the place of the
complainant and he has not seen that the complainant had a fight
with any person. 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.
10.8. PW-9, Amratlal Harjivanbhai A.S.I., Buckle No.1371,
examined at the Exh.36 was the PSO of Deodar Police Station, who
had registered the complaint of the complainant at Station Diary
Entry No.7. on 11.08.2007.
10.9. The prosecution has examined PW-10 Dr. Pravinbhai
Nathalal Solanki at Exh.41 and the witness was working as a
Medical Officer in the Referral Hospital, Deodar on 11.06.2008. The
witness has stated that Rameshbhai Dhanabhai Majirana, residing
at village Forana, was brought with the yadi of the Deodar Police
Station and in the history, he had stated that Lakshmansingh
Darbar had assaulted him with a stick on 11.06.2006 at around
6:00am. On examinination, the patient was conscious and he had
the following injuries; (i) Diffuse swelling on left leg lower 1/3
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part with some deformity and tenderness was present. Clinically
there was a fracture of left lower leg, both bones with fracture, left
tibia and left fibula, (ii) Diffuse swelling on left lower leg upper
1/3 part lateral aspect, clinically fracture of left fibula, upper 1/3,
(iii) Diffused tender swelling on left elbow and left forearm upper
1½ part. The patient was referred to General Hospital, Palanpur
for expert opinion and management and the Medical Certificate is
produced at Exh.. 43. The witness has stated that the injuries were
possible by a hard and blunt substance and the age of injury was
within 24 hours. During the cross-examination by the learned
advocate for the accused, the witness has stated that if a person
was working in the field and a bullock picks him up and dashed
him to the ground, he could sustain such type of injuries.
10.10. The prosecution has examined PW-11, Jayantibhai
Mansingbhai at Exh.44 and PW-12 Dineshbhai Pethabhai at
Exh.46. Both the witnesses are the panch witnesses of the arrest
panchnama, by which, the accused No.2 was arrested and the
same is produced at Exh.45. The witnesses have not supported
the case of the persecution and have been declared hostile and
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cross-examined at length by the learned APP.
10.11. The prosecution has examined PW-13 Sylvester
Khandas Macwan at Exh.47 and the witness is the Investigating
Officer who has narrated in detail the entire procedure undertaken
by him during investigation. During the cross-examination by the
learned advocate for the accused, the witness has stated that
during investigation it was found that there was no document
executed for release of the mortgage and the Mortgage Deed was
seized from the complainant.
11. On minute appreciation of the entire evidence of the
prosecution, the complainant has expired during trial, and hence,
the complainant has not been examined before the learned Trial
Court. Admittedly, there are no eye witnesses to the incident and
PW-3 Naviben Rameshbhai, PW-4 Premabhai Rameshbhai, PW-5
Bavabhai Rameshbhai and PW-6 Ambabhai Rameshbhai have
stated that they heard the complainant shouting and they went,
and at that time, there were no other persons besides the
complainant. The evidence that has emerged on record is also that
it was dark and at 6:00am early in the morning and they did not
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see any other persons there except that the complainant
Rameshbhai Dhanabhai had sustained injuries on his leg. PW-8.
Raichandbhai Sendhabhai Devipujak is the only independent eye
witness, but he has turned hostile and he has not supported the
case of the prosecution and he has categorically stated that he did
not hear any fight of Rameshbhai Dhanabhai with any other
person. Immediately after the incident, the complainant was taken
to the Referral Hospital for treatment and thereafter to the
Ashirwad Hospital, but the complainant has not named any of the
persons as the assaulters in the history before PW-7, Dr.
Mehulbhai Dalpatbhai Modh. In the history before the Medical
Officer at the Referral Hospital, Deodar, the complainant has
named the accused No.2, but the history was given by himself
wherein he has named only the accused No.2 the person, who has
assaulted him. As per the case of the prosecution, the grudge of
the accused was that the agricultural land of the complainant was
mortgaged to the accused and the complainant had released the
mortgage and had paid them the amount and they were upset
about the release of the mortgage and they were asking him as to
whom he had got the money for release of the mortgage, but the
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Investigating Officer has clearly stated that he did not find any
deed whereby the mortgage was released. The Mortgage Deed
was found from the custody of the complainant and there is no
evidence on record that the Mortgage Release Deed of the land
was executed between the parties. Moreover, if the Caste
Certificate, which is produced at Exh.48, is perused, it shows the
surname of the complainant as Bhil, but in the complaint, the
complainant is shown as Rameshbhai Dhanabhai Majirana. No
witnesses have been examined to prove the Caste Certificate
produced at Exh.48 and the learned Trial Court has discussed the
entire evidence in proper perspective.
12. 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
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
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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 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.
13. The impugned judgment and the order dated
17.06.2009 in Special Atrocity Case No.230 of 2007 passed by the
learned Presiding Officer and Additional Sessions Judge, 2nd Fast
Tract Court, Deesa camp at Deodar is hereby confirmed.
14. 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
