[Cites 16, Cited by 0]

Gujarat High Court

State Of Gujarat vs Khatki Bhatti Faruq @ Ishi Musabhai on 4 December, 2025

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                            R/CR.A/1903/2008                                          JUDGMENT DATED: 04/12/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/CRIMINAL APPEAL NO. 1903 of 2008


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR.JUSTICE SANJEEV J.THAKER
                       ==========================================================

                                    Approved for Reporting                           Yes            No

                       ==========================================================
                                                   STATE OF GUJARAT
                                                         Versus
                                       KHATKI BHATTI FARUQ @ ISHI MUSABHAI, & ANR.
                       ==========================================================
                       Appearance:
                       MS SHRUTI PATHAK, APP for the Appellant(s) No. 1
                       BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
                       NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
                       RULE SERVED for the Opponent(s)/Respondent(s) No. 1
                       ==========================================================

                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                           Date : 04/12/2025

                                                          ORAL JUDGMENT

1. Feeling aggrieved by and dissatisfied with the

judgment and order of acquittal dated 11.04.2008 passed by

the learned Special Judge Dhrangdhra, in Special Case No.28

of 2005 for the offences punishable under Sections 323 and

354 of the Indian Penal Code and Section 3(1)11 of the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, the appellant - State of Gujarat has preferred

this appeal under Section 378 of the Code of Criminal

Procedure, 1973 (for short, "the Code").

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2. The prosecution case, as unfolded during the trial

before the lower Court, is that on 20.06.2007, at about 11:00

a.m., when she went for toilet at public toilet, the accused

entered into the toilet forcefully and caused injuries to her

and tried to commit rape. Therefore, the complainant lodged

a complaint against the present accused with the Dhrangdhra

City Police Station being C.R.- I No.61 of 2005 for the

offences punishable under Sections 323 and 354 of the Indian

Penal Code and Section 3(1)10 of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Act.

3. After investigation, sufficient prima facie evidence

was found against the accused person/s and therefore charge-

sheet was filed in the competent criminal Court for the

offences punishable under Sections 323 and 354 of the Indian Penal Code and Section 3(1)11 of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Act. Since the

offence alleged against the accused person/s was exclusively

triable by the Court of Sessions, the learned Magistrate

committed the case to the Sessions Court where it came to

be registered as Special Case No.28 of 2005. The charge was

framed against the accused person/s. The accused pleaded not

guilty and came to be tried.

4. In order to bring home the charge, the prosecution

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has examined the witnesses and also produced various

documentary evidence before the trial Court, which are

described in the impugned judgment.

5. After hearing both the parties and after analysis

of evidence adduced by the prosecution, the learned trial

Judge acquitted the accused for the offences for which they

were charged, by holding that the prosecution has failed to

prove the case beyond reasonable doubt.

6. Learned APP for the appellant - State has pointed

out the facts of the case and having taken this Court

through both, oral and documentary evidence, recorded before

the learned trial Court, would submit that the learned trial

Court has failed to appreciate the evidence in true sense and perspective; and that the trial Court has committed error in

acquitting the accused. It is submitted that the learned trial

Court ought not to have given much emphasis to the

contradictions and/or omissions appearing in the evidence and

ought to have given weightage to the dots that connect the

accused with the offence in question. It is submitted that

the learned trial Court has erroneously come to the

conclusion that the prosecution has failed to prove its case. It

is also submitted that the learned Judge ought to have seen

that the evidence produced on record is reliable and

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believable and it was proved beyond reasonable doubt that

the accused had committed an offence in question. It is,

therefore, submitted that this Court may allow this appeal by

appreciating the evidence led before the learned trial Court.

7. Though served, none appears for the respondents,

including the original complainant.

8. In the aforesaid background, considering the oral

as well as documentary evidence on record, independently and

dispassionately and considering the impugned judgment and

order of the trial Court, the following aspects weighed with

the Court :

8.1 The Court has taken into consideration the testimony of P.W.1 - Gitaben Rameshbhai, who has been

examined vide Exh.12, whereby it transpires that there are

lot of contradictions and discrepancies in her oral evidence.

In her testimony, she has stated that she did not know the

accused and the accused also did not know her and/or her

caste. The fact also remains that the incident had taken

place on 20.06.2005 and there is no justification coming

forward from the prosecution as to why the complaint was

not filed on the same day, but was filed on the second day

of alleged incident.

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8.2 Vide Exh.15, the prosecution has examined P.W.2 -

Dr.Mangalsinh Ramsing Parmar, who is R.M.O. at Shri

Mahatma Gandhi Hospital and from his deposition also, it

transpires that the complainant had visited on 21.06.2005,

whereas the incident had taken place on 20.06.2005. The

prosecution has also examined P.W.3 - Halimaben

Fatemahmmad at Exh.18, who is alleged to have come to

rescue the complainant when the said incident had occurred.

There were lot of discrepancies and contradictions in her

deposition. The prosecution has not been able to prove that

the said witness was present when the said incident had

occurred and it has also not come on record that the accused

had abused the complainant about her caste.

8.3 The prosecution has also not been able to prove

the fact that the commission of the offence has taken place

in a public toilet.

The husband of the complainant viz., Ramesh

Natha - P.W.4 has been examined at Exh.19. The said

witness was neither the eye-witness nor he was present at

the time of incident. He was not even at his residence when

the said incident has happened. It is only his mother, who

has informed him about the said incident.

The mother-in-law of the complainant - Manjuben

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Nathabhai, P.W.5, has been examined vide Exh20. In her

deposition, she has stated that she knew the accused.

The fact remains that the victim did not know the

accused and it is only mother-in-law of the victim -

Halimaben Fatemahammad - PW.3, who had informed her

about the name of the accused.

8.4 If the testimony of the P.W.7 - Chhotubha Vashaji

Vala, PSO, who has been examined vide Exh.22, is taken

into consideration, he has deposed that the complainant,

while giving her statement, has not stated that she was ever

assaulted by the accused; and that the accused had tried to

molest the complainant. The said witness has also deposed

that the complainant has not stated that the accused had

abused about her caste.

8.5 Therefore, the prosecution has not proved the case

against the accused for the offence as alleged. Moreover, as

per the observations made by the Hon'ble Apex Court in the

case of Sajan Sakhariya Vs. State of Kerala and others

reported in AIR 2024 SC 4557, every insult or intimidation

would not amount to an offence under Section 3(1)(x) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989, unless such insult or intimidation is

started at a victim because he is a member of a particular

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Scheduled Castes or Scheduled Tribes. Therefore, from the

allegations made in the complaint, the prosecution has not

proved that the accused is guilty of an offence under the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989.

8.6 The trial Court, while considering the evidences in

detail, has observed that the prosecution has failed to prove

the case against the accused beyond reasonable doubt. While

discussing the evidence in detail, the trial court has found

that the only allegation against the accused is of speaking

indecent words against the caste of the complainant. The

trial Court has gone into the evidence in detail and has

come to the conclusion that the accused are not guilty of the

alleged offence.

9. Further, learned APP is not in a position to show

any evidence to take a contrary view in the matter or that

the approach of the Court below is vitiated by some manifest

illegality or that the decision is perverse or that the Court

below has ignored the material evidence on record. In above

view of the matter, this Court is of the considered opinion

that the Court below was completely justified in passing

impugned judgment and order.

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10. Considering the impugned judgment, the trial

Court has recorded that there was no direct evidence

connecting the accused with the incident and there are

contradictions in the depositions of the prosecution witnesses.

In absence of the direct evidence, it cannot be proved that

the accused are involved in the offence. Further, the motive

of the accused behind the incident is not established. The

trial Court has rightly considered all the evidence on record

and passed the impugned judgment. The trial Court has

rightly evaluated the facts and the evidence on record.

11. It is also a settled legal position that in acquittal

appeal, the appellate court is not required to re-write the

judgment or to give fresh reasoning, when the reasons

assigned by the Court below are found to be just and proper. Such principle is down by the Apex Court in the case of

State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC

1417 wherein it is held as under:

"... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to

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repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

12. Thus, in case the appellate court agrees with the

reasons and the opinion given by the lower court, then the

discussion of evidence at length is not necessary.

13. In the case of Ram Kumar v. State of Haryana,

reported in AIR 1995 SC 280, Supreme Court has held as

under:

"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right

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of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same

cannot entirely and effectively be dislodged

or demolished, the High Court should not

disturb the order of acquittal."

14. As observed by the Hon'ble Supreme Court in the

case of Rajesh Singh & Others vs. State of Uttar Pradesh

reported in (2011) 11 SCC 444 and in the case of

Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the trial

Court is found to be perverse, the acquittal cannot be upset.

It is further observed that High Court's interference in such

appeal in somewhat circumscribed and if the view taken by

the trial Court is possible on the evidence, the High Court

should stay its hands and not interfere in the matter in the

belief that if it had been the trial Court, it might have

taken a different view.

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15. In the case of Chandrappa v. State of Karnataka,

reported in (2007) 4 SCC 415, the Hon'ble Apex Court has

observed as under:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the 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 Criminal Procedure Code, 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

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more in the nature of "flourishes of language" to emphasise 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 is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

16. Considering the aforesaid facts and circumstances

of the case and law laid down by the Hon'ble Supreme Court

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while considering the scope of appeal under Section 378 of

the Code of Criminal Procedure, 1973 no case is made out to

interfere with the impugned judgment and order of acquittal.

17. In view of above facts and circumstances of the

case, on my careful re-appreciation of the entire evidence, I

found that there is no infirmity or irregularity in the

findings of fact recorded by learned trial Court and under