Gujarat High Court
State Of Gujarat vs Bodubhai Umarbhai Sipai on 2 August, 2025
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R/CR.A/1098/2012 JUDGMENT DATED: 02/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1098 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
BODUBHAI UMARBHAI SIPAI & ORS.
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Appearance:
MS. C.M. SHAH, APP for the Appellant(s) No. 1
MR BJ TRIVEDI(921) for the Opponent(s)/Respondent(s) No. 1,2,3,4
MS JIGNASA B TRIVEDI(3090) for the Opponent(s)/Respondent(s) No.
1,2,3,4
RULE SERVED for the Opponent(s)/Respondent(s) No. 5
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 02/08/2025
ORAL JUDGMENT
1. The appeal is filed by the appellant State under
Section 378 of the Code of Criminal Procedure, 1973 against
the judgement and order of acquittal passed by the learned
Additional Sessions Judge, Dhoraji (hereinafter referred to
as "the learned Trial Court") in Sessions Case No. 74/2009
on 17.04.2012, whereby, the learned Trial Court has
acquitted the respondents for the offence punishable under
Sections 323, 324, 504 and 506(2) read with Section 114 of
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the Indian Penal Code, 1860 and Section 3(1)(10) of
Schedule Caste and Schedule Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred to as "the Atrocity
Act" for short).
1.1 The respondents are hereinafter referred to as "the
accused" in the rank and file 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 27.01.2009, at around 06.15 pm, the complainant
- Narsinhbhai Bijalbhai Devra went to the tea stall of
Kanubhai situated opposite Bhagwat Singhji's Girls School
in Dhoraji with his friends Raju Bagda, Bharat Sondarva
and Vijay Kishan. At that time, while they were drinking tea,
Taufiq - the servant of Kanubhai was present and the
complainant asked Taufiq who was demolishing the house
next to the tea stall and the accused nos. 1 and 2 who were
present started abusing the complainant and asked the
complainant who was he to inquire about the same. The
accused no. 1 telephoned and called the other accused and
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the accused nos. 3 and 4 came and started abusing the
complainant. The accused no. 3 had a knife and gave one
blow on the left side of the head of the complainant with the
knife. The accused no. 4 had an iron claw and gave a punch
on the left side of the head of the complainant with the iron
claw and the accused nos. 1 and 2 beat the complainant
with fists. The complainant started shouting and his friends
intervened and the accused threatened to kill him. The
complainant filed the complaint before the Dhoraji City
Police Station under Sections 324, 323, 504, 506(2) and 114
of the Indian Penal Code and Section 3(1)(10) of the Atrocity
Act and Section 135 of the BP Act which came to be
registered as Dhoraji City Police Station I - C.R. No. 10 of
2009.
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 Court of the Judicial
Magistrate First Class, Dhoraji and as the said offences
against the accused were exclusively triable by the Court of
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Sessions, the case was committed to the Sessions Court,
Dhoraji as per the provisions of Section 209 of Code of
Criminal Procedure and the case was registered as Sessions
Case No. 74/2009.
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. 11 was framed against the
accused and the statement of the accused was recorded at
Exhs. 12, 13, 14 and 15 wherein, the accused denied the
contents of the charge and the entire evidence of the
prosecution was taken on record.
2.4 The prosecution examined 17 witnesses and produced
14 documentary evidences on record in support of their
case and after the learned Additional Public Prosecutor filed
the closing pursis, the further statement of the accused
under Section 313 of the Code of Criminal Procedure, 1973
was recorded and after the arguments of the learned
Additional Public Prosecutor and the learned advocate for
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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 respondent. The case has been 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 respondents 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. C.M. Shah for the appellant
State, learned advocate Mr. B.J. Trivedi for the respondent
nos. 1 to 4. Though served, the respondent no. 5 has not
remained present either in person or through an advocate.
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. C.M. Shah 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
respondent guilty for the offences.
5.1 Learned advocate Mr. B.J. Trivedi for the respondent
nos. 1 to 4 has submitted that the learned Trial Court has
appreciated the evidence and passed the impugned
judgement and order and no interference is required hence,
the appeal may be rejected.
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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".
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;
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(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 trial court.
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(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.
8. To bring home the charge against the accused, the
prosecution has examined PW1 - Manishbhai Kanubhai
Bhalara at Exh. 19 and PW10 - Hiralal Madhuram at Exh.
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32. Both the witnesses are the panch witnesses of the
panchnama of the place of offence which is produced at
Exh. 20. 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 PW2 - Deepsinh Narubha Chudasma examined at
Exh. 21 and PW12 - Vitthalbhai Jeevarajbhai Hirpara
examined at Exh. 35 are the panch witnesses of the arrest
panchnama, by which the accused nos. 1, 2 and 3 were
arrested and produced at Exh. 22 but both the panch
witnesses have not supported the case of the prosecution
and have been declared hostile and during the lengthy
cross-examination by the learned APP, nothing to the case
of the prosecution has come on record.
8.2 PW3 - Taufiqbhai Bashirbhai Ghachi examined at Exh.
23 is the eyewitness who was present at the tea stall of
Kanubhai and as per the case of the prosecution, the
complainant was talking and joking with this witness but
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the witness has not supported the case of the prosecution
and has stated that he does not know of any quarrel that
had taken place between the complainant and the accused.
He had gone out and when he returned to the tea stall, he
came to know about the incident but he has not witnessed
anything. The witness has been declared hostile and cross-
examined at length by the learned APP but nothing to
support the case of the complainant has come on record.
8.3 PW4 - Prafulbhai Karamshibhai Chowatia examined at
Exh. 24 was having a Pav Bhaji Shop in the name of Mayur
Pav Bhaji near Sagar Paan and as per the case of the
prosecution, he was an eyewitness but he has stated that
there was some commotion outside the paan shop and a
number of persons had gathered and as he was afraid, he
closed his shop and went away.
8.4 PW5 - Narshibhai Bijalbhai Devra is the complainant
examined at Exh. 25 and he has narrated the facts as
stated in the complaint which is produced at Exh. 26 but
the witness has not fully supported the contents of the
complaint and he has been declared hostile and cross-
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examined by the learned APP. In the cross-examination by
the learned advocate for the accused, the complainant has
stated that at the place of offence, there are a number of
offices of travels and paan bidi and other shops and in the
opposite side there are fruits carts and tea stalls. In the
evening, there are a number of ice-cream stalls at the place
and in the front is a government hospital. At the time of the
incident, his friends Raju, Bharat and Vijay were present
and two to three labourers were also present. His friends
were of his same caste and none of them had heard what
words were uttered by the accused. The witness has
admitted that during the incident, none of the accused had
hurled caste slurs against him. The witness has also
admitted that he is working as a home guard and is also a
member of a music band and as he is working as a home
guard, he is known to the police and the home guard office
is very near to the place of incident. There are traffic
constables at the crossroads near the place of incident and
near the Girls' High School and Rajkot Cooperative Bank,
constables are present. As the incident had occurred in the
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evening, there were a number of persons and vehicles
passing by and he has received about Rs. 2500/- as
compensation from the government as the case was filed
under the Atrocity Act.
8.5 PW6 - Vijaykumar Kishanbhai Chaudhury examined at
Exh. 27 is an eyewitness as per the case of the prosecution.
The witness has stated that on 27.01.2009, a quarrel had
taken place between the complainant and the accused near
the tea stall of Kanubhai at Dhoraji at around 06.00 pm and
five to six persons had gone to the shop to have tea. At that
time, a quarrel had taken place and he had intervened and
separated them and they all had tea together. After some
time, the nephew of the accused no. 1 came and asked the
complainant why he was abusing his uncle and they
assaulted the complainant and the accused no. 3 had an
iron claw. The witness has not fully supported the case of
the prosecution and has been declared hostile and has been
cross-examined by the learned APP. In the cross-
examination by the learned advocate for the accused, the
witness has stated that at the time of the incident, it was
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evening and 250 to 300 persons were present at that place
as there is plenty of traffic at that time of the day. A number
of persons had gathered there and there are cross-cases
filed by the complainant and the accused against each
other.
8.6 PW7 - Bharatbhai Naranbhai Sondaarva examined at
Exh. 28 is also an eyewitness as per the case of the
prosecution and has supported the case of the prosecution.
During the cross-examination, the witness has stated that
normally at the place of incident, there are about 100 to 150
people present and at the place of incident, there are offices
of travel agencies, pan shops, medical stores, ice cream
shops, etc., and there are also fruit carts and a continuous
flow of people and traffic. A number of persons had gathered
there and there were many persons from their community,
but he does not know their names.
8.7 PW8 - Rajubhai Madhabhai Bagda examined at Exh.
29 is an eyewitness as per the case of the prosecution but
the witness has not supported the case of the prosecution
and has been declared hostile. In the cross-examination by
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the learned advocate for the accused, the witness has stated
that there were only four persons present at the time of the
incident and Rambhai was not present with them. Vijaybhai
had intervened between the complainant and the accused
no. 1 and a compromise had taken place and they had all
had tea together and the complainant and the accused no. 1
did not catch each other's collar or abuse each other.
8.8 PW9 - Amjadbhai Alibhai Motalia examined at Exh. 30
and PW11 - Kishorbhai Vinubhai Chudasma examined at
Exh. 33 are the panch witnesses of the arrest panchnama
produced at Exh. 31, whereby, the accused no. 4 was
arrested. The panch witnesses have not supported the case
of the prosecution and have been declared hostile.
8.9 PW13 - Dr. Bhaveshbhai Pursottambhai Jivani
examined at Exh. 36 is the Medical Officer who has stated
that on 27.01.2009, he was on duty at the Srimati Heeraben
Ishwarbhai Government Hospital, Dhoraji and at around
06.30 pm, Narsibhai Bijalbhai was brought by Bharatbhai
Sondarwa for treatment. In the history, he has stated that
he was assaulted with a knife before 15 minutes at Galaxy
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Crossroads and was injured. He had complained of
giddiness, pain in the head and stomach and was
conscious. On examination, he had CLW of 1 cm x 0.1 cm,
skin deep on the left parietal region of the scalp which was
bleeding and he was given primary treatment and referred
to the Government Hospital, Junagadh for further
treatment. The witness has produced the medical certificate
at Exh. 37. During the cross-examination, the witness has
stated that the patient did not give the names of the persons
who had assaulted him and did not say that he was injured
with an iron fist. The injury that was caused could not be
caused by a sharp knife and it was possible if a person fell
down on a stone. In the history, the patient had stated that
he was assaulted by a knife but the injury of a CLW could
not be done by a knife.
8.10 PW14 - Mansukhlal Muljibhai Gajara examined at
Exh. 40 was working as a Clerk at the Mamlatar Office and
he has produced the notification of Additional District
Magistrate Rajkot at Exh. 41. As per the document
produced at Exh. 41, the carrying of arms was banned
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between the period from 01.12.2008 to 31.12.2008.
8.11 PW15 - Harishchandra Jatashankar Vyas examined at
Exh. 42 is the PSO who has registered the complaint.
8.12 PW16 - Nathabhai Polabhai Badwa examined at Exh.
44 was working as a PSI at the Dhoraji Police Station on
27.01.2009 and he had gone to the hospital as a Yadi was
received at the Police Station and had recorded the
complaint of the complainant. During the cross-
examination, the witness has stated that at the time of
recording of the complaint, the complainant was fully
conscious and the complainant did not name the accused
no. 2 in the complaint. The clothes of the complainant were
not bloodstained when the complaint was being recorded
and the complainant was an accused in Sessions Case No.
32 of 2011.
8.13 PW17 - Somabhai Babarbhai Rawat examined at Exh.
49 is the Investigating Officer who has narrated in detail the
procedure undertaken by him during investigation. During
the cross-examination, the witness has stated that the
notification is produced at Exh. 41 is for the period from
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01.12.2008 to 31.12.2008.
9. On appreciation of the entire evidence of the
prosecution, as per the complaint of the complainant, PW3
- Taufiqbhai Bashirbhai Ghachi, PW6 - Vijaykumar
Kishanbhai Chaudhury, PW7 - Bharatbhai Naranbhai
Sondarva and PW8 - Rajubhai Madhabhai Bagda were
present at the place of incident and they are all
eyewitnesses to the incident but PW3 - Taufiqbhai
Bashirbhai Ghachi, PW6 - Vijaykumar Kishanbhai
Chaudhuryand and PW8 - Rajubhai Madhabhai Bagda
have not supported the case of the prosecution and have
been declared hostile. The complainant himself has been
declared hostile and has not fully supported the contents of
his complaint. The only witness that supports the case of
the prosecution to some extent is PW7 - Bharatbhai
Naranbhai Sondarva but during the cross examination he
has admitted that the place where the incident has
occurred was a very public place and there were a number
of persons who had gathered there but he has not named
any independent witnesses who were present and who
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could have been examined before the learned Trial Court. It
has also emerged on record that the notification produced
at Exh. 41 is for the period from 01.12.2008 to 31.12.2008
and the incident has occurred on 27.01.2009. Hence, the
notification is prior to the date of offence and there is no
notification on record covering the date of offence.
Admittedly, the incident has occurred at around 06.15 pm
and there were a number of persons present there but no
independent witnesses have been examined by the
prosecution. The medical evidence does not support the say
of the complainant and even the presence of the accused at
the place of incident altogether or later, is not established.
None of the witnesses have stated that the accused had
used any of the caste slurs and the case has not been
proved by the prosecution beyond reasonable doubts. There
are major contradictions in the evidence of the witnesses
and they have not supported the case of the prosecution
and the learned Trial Court has discussed all the evidence
in great detail.
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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
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 Additional Sessions Judge, Dhoraji
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in Sessions Case No. 74/2009 on 17.04.2012 , is hereby
confirmed.
12. Bail bond stands cancelled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VASIM S. SAIYED
