Gujarat High Court
State Of Gujarat vs Isubha Bapubha Zala on 22 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1038 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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STATE OF GUJARAT
Versus
ISUBHA BAPUBHA ZALA & ANR.
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1,2
MR PARTHIV A BHATT(5331) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 22/04/2025
ORAL JUDGMENT
1. The appeal is 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 Second Additional Sessions Judge and Special
Judge, Dhrangadhra (hereinafter referred to as "the learned
Trial Court") in Special Case No. 8/2010 on 16.04.2012,
whereby, the learned Trial Court has acquitted the
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respondents for the offence punishable under Sections 323,
504, 506(2) and 114 of IPC and Section 3(1)(10) of Schedule
Caste and Schedule Tribes (Prevention of Atrocities) Act,
1989 (hereinafter referred to as "the Act" for short) and
Section 135 of the Bombay Police Act.
1.1 The respondents are hereinafter referred to as "the
accused" 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 13.02.2009, at around 21.30 hours, the
complainant - Rameshbhai Vikrambhai Vankar and other
witnesses were in the field and at that time, both the
accused came to them and asked them why they had
allowed the blue bulls and the wild asses to come into the
fields. Both the accused abused the complainant and the
witnesses and also hurled casts slurs against them and had
sticks with them and the complainant filed the complaint
under Sections 323, 504, 506(2) and 114 of the IPC, Section
135 of the BP Act and Section 3(1)(10) of the Atrocities Act
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at Jinjuwada Police Station which was registered at
Jinjuwada Police Station II - C.R. No. 3003 of 2009 on
14.02.2009 at 03.00 hours.
2.2 The Investigating Officer recorded the statements of
the connected witnesses and seized the necessary
documents and after completion of investigation, a charge-
sheet came to be filed before the learned Judicial Magistrate
First Class, Patdi and as the said offences against the
accused were exclusively triable by the Court of Sessions,
the case was committed to the Sessions Court,
Surendranagar at Dhrangadhra as per the provisions of
Section 209 of Code of Criminal Procedure and the case was
registered as Special (Atrocity) Case No. 40/2008.
2.3 The accused was 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. 4 was framed against the
accused and the statements of the accused were recorded at
Exhs. 5 and 6, wherein, the accused denied the contents of
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the charge and the entire evidence of the prosecution was
taken on record.
2.4 The prosecution produced the following evidence to
bring home the charge against the accused.
ORAL EVIDENCE
Sr. No. PW Name of the witness Exh.
DOCUMENTARY EVIDENCE
Sr. No. Particulars Exh.
2 Treatment Certificate 31 & 33
4 Treatment Certificate 34 & 35
6 Complaint 41 & 42
10 Caste Certificate 52 & 53
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2.5 After the learned APP filed the closing pursis, 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 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 APP and the learned advocate for the accused were
heard, the learned Trial Court by the impugned judgement
and order was pleased to acquit all the accused from the
charges levelled against them.
3. Being aggrieved and dissatisfied with the said
judgment and order of acquittal, the appellant - State has
filed the present appeal mainly stating that the impugned
judgment 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 the cross-examination, nothing adverse has been
elicited in favor of the respondents. The case has been
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proved beyond reasonable doubt and the prosecution has
successfully established the case against the respondents
and the judgment and order of acquittal is unwarranted,
illegal, and without any basis in the eyes of the 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.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant
State and learned advocate Mr. Parthiv Bhatt for the
respondents. 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 submitted that the complainant has fully
supported the facts of his complaint. The impugned
judgement and order is perverse and learned APP has urged
this Court to quash and set aside the same and find the
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respondent guilty for the offences.
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 regarding the scope of
interference 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 Vs. State of M.P. (2006) 10 SCC 313, 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".
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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
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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.
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 appreciation, 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.
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8. In light of the above settled principle of law, the
evidence of the prosecution is dissected and the
prosecution has examined PW1 - Babubha Prabhatsinh
Zala at Exh. 27 and PW2 - Lalabhai Ravabhai Thakor Exh.
29. Both the witnesses are the panch witnesses of the
panchnama produced at Exh. 28, whereby both the
accused were arrested by the Dy.S.P. Surendranagar and
the weapons and sticks used by them in the incident were
voluntarily produced by them and seized. Both 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.
8.1 The prosecution has examined PW3 - Rohitkumar
Vasudevbhai Patel at Exh. 30 and the witness was working
as the Medical Officer at CHC Patadi on 14.02.2009 when
at 04.00 am, Maganbhai Kalabhai Makwana came with a
police yadi for treatment. In the history, he had stated that
he was injured on 13.02.2009 at around 09.30 pm and on
examination, he had pain in left wrist joint with tenderness
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and a red abrasion above the right eyelid. Mild bleeding was
present and the size was 2 cm x 1 cm. The injury could be
caused by a hard and blunt object and the injuries were
simple in nature. At the same time, Rameshbhai
Trikambhai Makwana had also come for treatment with the
same history and he had pain in the right deltoid region,
back and forehead. There was no swelling and the injury
could be caused by a hard and blunt object. The injuries
were simple and the approximate period of recovery was
three to five days. During the cross-examination by the
learned advocate for the accused, the witness has stated
that Maganbhai Kalabhai did not state by what weapon he
was injured and the injuries of Rameshbhai Trikambhai on
the hand were only complaint of pain which could be
imaginary. That if a person was assaulted with a stick, the
marks of the stick would remain and on examination of
both the injured persons, there were no marks of sticks on
their body. The certificates produced at Exh. 31 and Exh.
34 of both the injured respectively do not state the time
period before which the injury was sustained.
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8.2 The prosecution has examined PW4 - Govindbhai
Kanabhai Makwana at Exh. 36 and the witness is the
panch witness of the panchnama of the place of offence
which is produced at Exh. 37. The witness has fully
supported the case of the prosecution and during the cross-
examination by the learned advocate for the accused, the
witness has stated that Rameshbhai Trikambhai Makwana
is his brother and he had come to his house to call him.
The other panch witness - Harjibhai Dungarbhai was also
residing in the same street and he too was called to be a
panch witness.
8.3 The prosecution has examined PW5 - Rameshbhai
Trikambhai Makwana at Exh. 40 and the witness is the
complainant who has filed the complaint which is produced
at Exh. 41. The witness has fully supported the contents of
the complaint and during the cross-examination, he has
stated that the accused no. 1 has a field which he is
cultivating for the past one year and the accused no. 2 has
his own field. That he was cultivating cumin seeds in his
field and in the open space; blue bulls roam about freely.
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That his field is not fenced and the fields of the accused are
also not fenced. The forest area starts to the north of their
fields and when he had cultivated the cumin seeds, they
were staying at the field. That prior to this incident, he did
not have any quarrel with the accused and on the day of
the incident, no blue bulls or wild asses had come to the
field. That he did not intimate the forest department about
the wild asses and no damage was done to his cumin seeds
crops. That after he had filed the complaint, he had
received an amount of Rs. 6000/- from the government.
8.4 The prosecution has examined PW6 - Maganbhai
Kalabhai Makwana at Exh. 46 and as per the case of the
prosecution, the witness is an eyewitness and was also
injured in the incident. The witness has stated that he was
working in the field of Trikambhai Kuberbhai and the
complainant Rameshbhai was also working in the field and
at around 10.00 pm to 10.30 pm, the accused had come
with sticks and assaulted them. Rameshbhai came to save
him and he too was assaulted and besides this, nothing
else had taken place. The witness has not supported the
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case of the prosecution and has been declared hostile and
has been cross examined at length by the learned APP.
During the cross examination by the learned advocate for
the accused, the witness has stated that the field of the
accused no. 1 is near to the field of the complainant and
there are no lights at the fields. At the time of the incident,
it was dark and they could not see anyone's face. That after
the incident, the complainant Rameshbhai identified the
accused no. 1 and near the place of incident is the area of
the Forest Department. That he and Rameshbhai were
alone in the field at the time of the incident and
Rameshbhai had filed the complaint and he has no ill
feelings to the accused no. 1. That he did not tell the
Medical Officer by what weapon he was assaulted and after
the incident, as he was afraid, he ran away home. That he
did not name the accused as the person who had assaulted
him.
8.5 The prosecution has examined PW7 - Trikambhai
Kuberbhai Makwana at Exh. 47 and the witness is the
father of the complainant who has stated that on the night
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of the incident, he was sleeping and at about 10.00 pm, his
son Ramesh woke him and told him that the accused had
assaulted him and hurled caste slurs against him. That
Maganbhai Kalabhai who was with Rameshbhai was also
assaulted and Rameshbhai told him that he wanted to go to
Jinjuwada Police Station. That he went with Rameshbhai to
Jinjuwada Police Station and the complaint was filed.
During the cross-examination by the learned advocate for
the accused, the witness has stated that he has gone to the
field often and the field of the accused no. 1 is adjacent to
the field of Rameshbhai. At the time of the incident, the
crop of cumin seeds was cultivated in the field and the
accused no. 1 had also cultivated cumin seeds in his field.
That he did not witness the incident and has no personal
knowledge about the same.
8.6 The prosecution has examined PW8 - Kiritbhai
Ramabhai Parmar at Exh. 48 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
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accused, the witness has stated that he had not collected
the revenue record of the fields of the accused and the
complainant and he does not know to whom does the land
belong to or who is the owner of the land.
9. On minute appreciation of the entire evidence of the
prosecution, as per the say of the complainant, the incident
has occurred on 13.02.2009 at 21.30 hours and
immediately thereafter, the complainant and the injured
witness had gone to the Police Station and had taken the
police yadi and had gone to the Community Health Centre,
Patadi for treatment. It is pertinent to note that the
complainant and the witness were known to the accused as
the field of the accused no. 1 was near to the field of the
complainant and both of them were staying in the field as
they had cultivated cumin seeds and the blue bulls and
wild asses would come in the fields. But before the Medical
Officer, the complainant or Maganbhai Kalabhai Makwana
has not named the accused as the persons who had
assaulted them. The complainant has stated that on the
date of the incident, the blue bulls and wild ass did not
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come to the field and he did not inform the Forest
Department that any animals had come and there was no
damage to crops on the date of the incident. The medical
evidence also does not support the say of the complainant
and the eyewitness Maganbhai Kalabhai Makwana
examined at Exh. 46 has not fully supported the case of the
prosecution and has not stated that the accused had
hurled caste slurs and abused them at the time of the
incident. The medical evidence also does not support the
case of the complainant and all the evidence has been
discussed by the learned Trial Court in a detailed manner.
10. 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 acquitting the accused of the
charges leveled against them. The findings recorded by the
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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 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 Second Additional Sessions Judge
and Special Judge, Dhrangadhra in Special Case No.
8/2010 on 16.04.2012, is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J)
VASIM S. SAIYED
