Gujarat High Court
State Of Gujarat vs Patel Madhabhai Mohanbhai on 24 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1191 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
PATEL MADHABHAI MOHANBHAI & ORS.
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Appearance:
DHWANI TRIPATHI, APP for the Appellant(s) No. 1
MR. YOGENDRA THAKORE(3975) for the Opponent(s)/Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 24/04/2025
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 25.03.2009 in Sessions Case No.115 of 2008 passed by
the learned 2nd Additional Sessions Judge, Mehsana (hereinafter
referred to as 'the learned Trial Court'), whereby, the learned Trial
Court has acquitted the respondents - accused from the offences
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punishable under Sections 323, 324, 506(2) and 114 of the Indian
Penal Code (hereinafter referred to as 'the IPC').
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 relevant facts leading to filing of the present
appeal are as under:
2.1. On 21.08.2006, the complainant Jairambhai Gandabhai
Bharwad had taken eight cows and gone for grazing in the
outskirts of Bechraji on 21.08.2006, and while grazing the cattle, he
reached the outskirts of Kalari (Ganeshpura) on the road towards
village Endala, and when he reached near the lake at around
2:30pm, the accused came rushing towards him, and at that time,
the accused No.1 had a scythe and the accused No.2 had a stick
and they came and asked the complainant as to why he had
allowed his cattle to stray and graze in their fields, and on his
refusal, they all got angry, and the accused No.2 hit him with the
stick on his right leg and on his back, and the accused No.1 gave
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one blow with scythe on his head and all the accused assaulted
him with fists. The complainant started bleeding and fell down
and shouted and from nearby, Ramesh Dhara, Dhara Vira and
Dhana Kamshi came rushing and saved him from further beatings.
The accused threatened to kill him, if he came again with his cattle
and as he was bleeding, he was taken to the Civil Hospital, at
Becharaji and as his injuries were serious, he was referred to the
Civil Hospital, Mehsana for further treatment. While he was
admitted at the Civil Hospital, Mehsana in the Male Ward on Bed
No.2 he had given the complaint before the PSI, Becharaji Police
Station, Camp Mehsana Civil Hospital, which was registered at
Becharaji Police Station I-C.R. No.99 of 2006 under Sections 324,
323, 506(2) and 114 of the IPC.
2.2. 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
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committed to the Sessions Court and the same was registered as
Sessions Case No.115 of 2008.
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 was framed by the learned Trial Court at Exh.2 and the
statements of the accused were recorded at Exhs.3 to 6, 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 10 witnesses and has produced 12 documentary
evidences in support of the case.
2.4. After the closing pursis was submitted by the learned
APP at Exh.41, 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.
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3. 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 erred in appreciating the fact
that the prosecution has proved the case beyond reasonable
doubts. The learned Trial Court has not properly appreciated the
oral as well as documentary evidence on record it its true spirit.
The 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 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.
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4. Heard learned APP Ms.Dhwani Tripathi for the
appellant - State and learned advocate Mr.Yogendra Thakore for
the respondents. Perused the impugned judgment and order of
acquittal and have re-appreciated the entire evidence of the
prosecution on record of the case.
5. 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 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
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offence. Learned APP has urged this Court to allow the present
appeal and impose maximum sentence on the accused.
6. Learned advocate Mr.Yogendra Thakore 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.
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
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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
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.
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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 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
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
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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 Jairambhai Gandabhai Bharwad at Exh.13 and the
witness is the complainant, who has fully supported the contents
of the complaint, which is produced at Exh.14. During the cross-
examination by the learned advocate for the accused, the witness
has stated that Ramesh Dhara Vira and Dhana Kamshi are his
brothers and they too have cows. He was injured at the place
where he was standing and he did not see whether any blood had
fallen on the ground. Ramesh Dhara Vira and the others came after
5 to 10 minutes and he does not know where the accused had
gone. That he did not shout when the accused had come towards
him and he did not try to run away when the accused had come
rushing towards him. That he was unconscious when his brothers
had come and he did not inform the doctor about the names of the
persons who had assaulted him.
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9.1. The prosecution has examined PW-2, Kanaubhai
Rajabhai Bharwad at Exh.15 and the witness is the panch witness
of the panchnnama of the place of offence, which is produced at
Exh.16. During the cross-examination by the learned advocate for
the accused, the witness has stated that the police had come to his
house to call him for the panchnama, and before the panchnama
he has not gone to the lake. At the place of incident, there were no
marks of a struggle or blood found.
9.2. The prosecution has examined PW-3, Manuhai
Lakhabhai at Exh.17 and the witness is the panch witness of the
panchnama, by which, the clothes of the injured were seized by
the police for investigation. 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
suppress the case of the prosecution has come on record.
9.3. The prosecution has examined PW-4, Kishordan
Samratdan Ghadhvi at Exh.21 and PW-9 Thakor Jyantiji Mavaji at
Exh.32. Both the witnesses are the panch witnesses of the
panchnama, by which, the accused were arrested and the
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panchnama is produced at Exh.39. 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.
9.4. The prosecution has examined PW-5 Dharabhai
Virabhai Bharwad at Exh.22, and as per the case of the
prosecution, the witness was an eye-witness to the incident. The
witness has stated that on the date of the incident, he and
Jairambhai were grazing their cows at the Kakrawadi lake and
Jairambai was injured by the accused No.1 with a scythe on his
head and the accused No.2 had injured him with a stick on his
right leg. The other accused had beat him with fists and he ran and
went to the place where the complainant was, and at that time, the
accused had ran away. The complainant Jairambhai was
unconscious, and later on, they were informed that Gandabhai,
Hathibhai Sardulbhai and Karshanbhai Ramsinh had also come
and Jairambhai was taken to the Civil Hospital, Bechraji, and
thereafter, to the Civil Hospital, Mehsana. When he reached the
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place of incident, the accused had left the place and they were
shouting something. During the cross-examination by the learned
advocate for the accused, the witness has stated that he has not
seen the agricultural lands of any of the accused and he had heard
the shouts of Jairambhai. He took about 5 to 10 minutes to reach
the place where Jairambhai was after hearing the shouts and when
he went to the place, Jairambhai had fallen down and the persons,
who had assaulted him, had ran away. The accused had also taken
the cows of Jairambhai from the lake.
9.5. The prosecution has examined PW-6, Pravinkumar
Popatlal Soni at Exh.24 and the witness was working as the
Medical Officer at General Hospital, Mehsana on 21.08.2006, when
the injured Jairambhai Gandabhai Bharwad was brought for
treatment at 18:55 hours. The witness has stated that in the history,
he had stated that he had received assaulted injury by scythe and
lathi today at 2:30pm at take on Endala Road by Madhabhai
Mohanbhai Patel and 10 others. On examination, the injured had a
stitched wound over a mid parietal region 5.0cm in length and the
wound was anterior post-in diversion in direction. There was a
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contusion on the left scapular region 4.0cm, which was reddish
and oblique in direction and he had sustained a contusion on right
mid thigh 3cm X 4cm, which was reddish in color. The X- ray
showed nothing particular and the injured was admitted to the
hospital and discharged on 24.08.2006. The medical certificate is
produced at Exh.26. During the cross-examination by the learned
advocate for the accused, the witness has stated that injury no.1
was a stitched wound and was not in the original form and injury
nos.2 and 3 could be sustained by a hard and blunt object.
9.6. The prosecution has examined PW-7, Kanubhai
Ramabhai Rathod at Exh.28, and the witness was working as
Medical Officer at the Primary Health Center Bechraji on
21.08.2006 at around 16:00hours when Jairambhai Gandabhai
Bharwad was brought for treatment. In the history, he had stated
that he was assaulted. He had received assaulted injury by stick
and scythe at 2:00pm, and on examination, there was a CLW over
scalp slightly left side, vertical, which was 3cm X 1cm X 1cm in
size and swelling over right upper back and middle of center left
thigh. The patient was referred to Civil Hospital, Mehsana for
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further treatment. The witnesses has produced the Medical
Certificate at Exh.29 and during the cross-examination, the witness
has stated that when the patient was brought to him for treatment,
he did not have any head gear such as a cap or a turban and an
injury with a stick or a pipe would leave a mark, but there were no
such injuries on the body of the injured. Injury no.1 could be
sustained by a fall and injury nos. 2 and 3 could be sustained, if a
person falls on the ground, on which, there are stones. He did not
verify as to whether there were any foreign substance in injury
no.1 by a magnifying glass.
9.7. The prosecution has examined PW-8 Kantibhai
Virabhai Raval at Exh.30 and the witness is the panch witness of
the panchnama, by which, the clothes of the injured were seized
during investigation. The panchnama is produced at Exh.31.
9.8. The prosecution has examined PW-9 Jayantiji Mavaji
Thakor at Exh.32 and the witness is the panch witness of the
panchnama and the witness has been declared hostile and during
the cross-examination by the learned APP, nothing has come on
record to support the case of the prosecution.
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9.9. The prosecution has examined PW-10 Bupatsinh
Shankarsinh Ravat at Exh.33 and the witness was working as a
P.S.O. at Becharaji Police Station and he has registered the
complaint of the complainant Jairambhai Gandabhai.
9.10. The prosecution has examined PW-11 Dipakbhai
Gulablal Gor at Exh.37 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 he had also
investigated Bechraji Police Station I-C.R.98 of 2006 and a joint
panchnama of both the offenses was drawn by him and as per the
panchnama, the place of offense was the northern edge of the
agricultural land of Ranchhodlal Mafatlal Panchal, where green
gram was grown and blood stains were found and marks of the
legs of cattle were also found. On the southern side of the field,
where the crop of cotton was grown, the marks of cattle were
found and the same has been noted in the panchnama and blood
stained mud was seized during investigation. No incriminating
material was seized during the panchnama produced at Exh. 38.
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10. On minute appreciation of the entire evidence of the
prosecution, it has transpired that the case was a cross case of the
offense registered at Becharaji Police Station I-C.R.No.98 of 2006
under Sections 307, 325, 323, 147, 148 and 149 of the IPC and the
place of offense was near the Kakrawadi lake in village Kalari near
the Narmada canal. There are major contradictions in the evidence
of the complainant and PW-5 Dharabhai Virabhai and as per the
case of the prosecution, at the time of the incident, Dharabhai
Virabhai Bharwad, Rameshbhai Dharabhai, and Dhanabhai
Kamshibhai had come, but they have not been examined before
the learned Trial Court. There are contradictions in the medical
certificates and it is not clear as to which which portion of the
shoulder or upper back was injured. The accused were known to
the injured prior to the incident, but he has not named the accused
before the Medical Officers PW- 7 Kanubhai Ramabhai Rathod or
PW-6 Pravinbhai Poptabhai Soni, and in fact, in the Medical
Certificate produced at Exh.26, the injured has stated that he was
assaulted by 10 persons, but only four persons have been
chargesheeted. The version of the complainant seems exaggerated
and not believable and in the opinion of both the medical officers,
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the injuries could be sustained by a fall or a hit on the ground, on
which, there were stones. The there is no iota of evidence about the
presence of the accused at the place of offense and the entire
evidence has been discussed in detail by the learned Trial Court.
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
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 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.
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12. The impugned judgment and the order dated
25.03.2009 in Sessions Case No.115 of 2008 passed by the learned
2nd Additional Sessions Judge, Mehsana 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
