Gujarat High Court
State Of Gujarat vs Patel Jivanbhai Polabhai on 7 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 281 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
PATEL JIVANBHAI POLABHAI & ORS.
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Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/02/2025
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 28.10.2009 in Special Atrocity Case No.23 of 2009
passed by the learned Special Judge (Atrocity), Mehsana
(hereinafter referred to as 'the Trial Court'), whereby, the Trial
Court has acquitted the respondents - accused from the offences
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punishable under Sections 323, 504, 506(2) and 114 of the Indian
Penal Code (hereinafter referred to as 'the IPC')and 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. 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 29.10.2008 at around 2:00pm, the complainant
Popatbhai Kanjibhai Senma residing at Narsinhpura came to the
accused No.1 and demanded for an amount of compensation for
the damage caused to the cycle of his son Dhaval, as while the
accused No.1 was reversing his tractor, the cycle was crushed
below the tractor, and at that time, the accused No.1 took a stick
and hit it on the head of the complainant. The complainant fell
down and the accused No.2 had also a stick in his hand and gave a
stick blow on the back of the complainant. That both the accused
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beat the complainant with their sticks and threatened to kill the
complainant and hurled abuses and caste slurs on the complainant
and the complainant filed the complaint with Kadi Police Station
which was registered at II-C.R.No.219 of 2008 under Section 323,
506(2) and 114 of the IPC and under Section 3(1)(10) of the Atrocity
Act.
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 therefore,
after completion of 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. 23 of 2009.
2.2. The accused was duly served with the summons
and the accused appeared before the 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 and
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a charge was framed by the Trial Court at Exh.6 and the
statements of the accused were recorded at Exhs. 7 and 8, 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 11 witnesses and has produced 8 documentary
evidences in support of the case.
2.3. After the closing pursis was submitted by the learned
APP at Exh.22, 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 Trial Court, by the
impugned judgment and order, has acquitted the accused for the
offences punishable under Sections 323, 504, 506(2) and 114 of the
IPC, Section 3(1)(10) of the Atrocity Act and Section 135 of the
B.P.Act.
3. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the Trial Court, the appellant -
State has filed the present appeal mainly stating that the impugned
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judgment and order passed by the Trial Court is contrary to law.
The Trial Court has erred in appreciating the oral as well as
documentary evidence produced by the prosecution in its true
spirit and straightway arrived at the conclusion that the
prosecution has failed to prove the case beyond reasonable doubts.
The Trial Court has failed in appreciating that it is settled legal
position that the evidence of a single witness is sufficient for
conviction if the same is reliable and trustworthy. The Trial Court
has committed a grave error by disbelieving and discarding the
evidence of the witnesses without any cogent reasons even though
the witnesses are reliable and trustworthy. The Trial Court has
failed in considering the evidence produced by the complainant
and the witnesses that the accused have used filthy language in
public. The impugned judgment and order of acquittal passed by
the Trial Court is illegal, invalid, improper, perverse and bad in
law and the same deserves to be quashed and set aside.
4. Heard learned APP Ms.Jirga Jhaveri for the appellant -
State. Though served, the respondents have not appeared either in
person or through an advocate. Perused the impugned judgment
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and order of acquittal and have re-appreciated the entire evidence
of the prosecution on record of the case.
5. Learned APP Ms.Jirga Jhaveri for the appellant - State
has taken this Court through the entire evidence produced by the
prosecution and has vehemently argued that the 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 Trial
Court has not considered the same and has acquitted the accused.
The judgment and order of acquittal passed by the learned Judge
is contrary to law, evidence on record and principles of justice. The
judgment and order of acquittal passed by learned 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.
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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 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 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". (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
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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.
(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.
7.1 The Apex Court in yet another recent decision in case
of Sri Dattatraya Vs. Sharanappa arising out of Criminal Appeal
No. 3257 of 2024 (@ SLP (Crl.) No. 13179 of 2023) observed as
under:
31. The instant case pertains to challenge against concurrent
findings of fact favouring the acquittal of the respondent, it
would be cogent to delve into an analysis of the principles
underlining the exercise of power to adjudicate a challenge
against acquittal bolstered by concurrent findings. The
following broad principles can be culled out after a
comprehensive analysis of judicial pronouncements:
i) Criminal jurisprudence emphasises on the fundamental
essence of liberty and presumption of innocence unless
proven guilty. This presumption gets emboldened by
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virtue of concurrent findings of acquittal. Therefore, this
court must be extracautious while dealing with a
challenge against acquittal as the said presumption gets
reinforced by virtue of a well-reasoned favourable
outcome. Consequently, the onus on the prosecution
side becomes more burdensome pursuant to the said
double presumption.
ii) In case of concurrent findings of acquittal, this Court
would ordinarily not interfere with such view
considering the principle of liberty enshrined in Article
21 of the Constitution of India 1950, unless perversity is
blatantly forthcoming and there are compelling reasons.
iii) Where two views are possible, then this Court would
not ordinarily interfere and reverse the concurrent
findings of acquittal. However, where the situation is
such that the only conclusion which could be arrived at
from a comprehensive appraisal of evidence, shows that
there has been a grave miscarriage of justice, then,
notwithstanding such concurrent view, this Court
would not restrict itself to adopt an oppugnant view.
[Vide State of Uttar Pradesh v. Dan Singh]
iv) To adjudge whether the concurrent findings of acquittal
are 'perverse' it is to be seen whether there has been
failure of justice. This Court in Babu v. State of Kerala
clarified the ambit of the term 'perversity' as
"if the findings have been arrived at by ignoring
or excluding relevant material or by taking into
consideration irrelevant/admissible material. The
finding may also be said to be perverse if it is
'against the weight of evidence', or if the finding
so outrageously defies logic as to suffer from the
vice of irrationality."
v) In situations of concurrent findings favoring accused,
interference is required where the trial court adopted an
incorrect approach in framing of an issue of fact and the
appellate court whilst affirming the view of the trial
court, lacked in appreciating the evidence produced by
the accused in rebutting a legal presumption. [Vide
Rajesh Jain v. Ajay Singh]
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vi) Furthermore, such interference is necessitated to
safeguard interests of justice when the acquittal is based
on some irrelevant grounds or fallacies in re-appreciation
of any fundamental evidentiary material or a manifest
error of law or in cases of non-adherence to the
principles of natural justice or the decision is manifestly
unjust or where an acquittal which is fundamentally
based on an exaggerated adherence to the principle of
granting benefit of doubt to the accused, is liable to be set
aside. Say in cases where the court severed the
connection between accused and criminality committed
by him upon a cursory examination of evidences. [Vide
State of Punjab v. Gurpreet Singh and Others and Rajesh
Prasad v. State of Bihar.]
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
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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 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.
9. In light of the above, the evidence produced by the
prosecution on record is appreciated and the prosecution has
examined PW-1 Shantilal Jadavjibhai Patel at Exh.10 and PW-2
Amratlal Mahadevbhai Patel Exh.12. Both the witnesses are the
panch witnesses of the panchnama produced at Exh.11, by which,
both the accused were arrested by the Investigating Officer and the
weapons used by the accused were seized during investigation
but, both the panch witnesses have stated that while they were
passing by the Mehsana Police Head Quarter, they were called by
the police and asked to affix their signatures on the panchnama,
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which was already prepared. That they affixed their signatures
without reading the same and no person has been arrested in their
presence and no weapons have been seized from any person in
their presence. The witnesses have been declared hostile and
during the lengthy cross-examination by the learned APP, nothing
to support the case of the prosecution has come on record.
9.1. The prosecution has examined PW-3 Popatbhai
Kanjibhai Senma at Exh.14 and the witness is the complainant,
who has filed the complaint, which is produced at Exh.28. The
witness has narrated the facts as stated in the complaint and has
stated that after he was injured, he had gone to the Government
Hospital, Kadi where the injury on his head was bandage and
stitches were taken, and from there, he was referred to Mehsana
but, he did not have money, and hence, he went to home. That he
called the police to his home and and he was taken to Kadi Police
Station, and from there, he went to Bhagyoday Hospital, Kadi for
treatment, and thereafter, to Civil Hospital, Mehsana but, as X-ray
machine was not working at Civil Hospital, Mehsana, he was
taken to Civil Hospital, Ahmedabad. That the accused have filed a
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complaint against him and the complainant has identified the
muddamal sticks. During the cross-examination by the learned
advocate for the accused, the witness has stated that he has not
filed any complaint about the damage caused to the cycle of his
son Dhaval. That he had repaired his cycle at Kadi but he does not
know the name of shop keeper and the shop keeper had told him
that the cycle would be repaired for Rs.250/-. That he did not go to
bring the cycle till the date of his deposition and the incident went
on for almost about 30 minutes and 3 to 5 persons had gathered at
that time. That he had informed the doctor about the incident
while he was taken treatment.
9.2. The prosecution has examined PW-4 Amratben
Popatbhai Senma at Exh.15 and the witness is the wife of the
complainant, who has fully supported the case of the prosecution.
During the cross-examination by the learned advocate for the
accused, the witness has stated that she does not know where the
cycle was kept for repairing and they had a dispute with the
accused since the cycle was damaged. That they had gone to the
house of the accused No.1 and while they were talking for about
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30 minutes, about 100 persons including Ambalal Bhudarbhai,
Harshadbhai Ratilal, Jivanbhai Polabhai and Dhirajbhai Jivanbhai
and others had gathered but they did not intervene while her
husband was being beaten by the accused. That when they went
home, the police van had come to their house as the persons from
Patel community had filed a complaint about liquor to the police.
That her husband does not consume liquor and no cases under the
Prohibition Act are registered against her husband.
9.3. The prosecution has examined PW-5 Bhikhabhai
Lavjibhai Senma at Exh.16 and the witness is the panch witness of
the panchnama of the place of offence, which is produced at
Exh.17.
9.4. The prosecution has examined PW-6 Dhavalkumar
Popatbhai Senma at Exh.19 and the witness is the son of the
complainant, who has supported the case of the prosecution.
During the cross-examination, the witness has stated that he had
kept the cycle on the road in front of the shop of Lakshmanbhai
and a number of vehicles passed by the road. That after his cycle
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was damaged, he did not meet the accused No.1 and he did not
demand for any amount for repairing of the cycle from the accused
No.1. That his cycle was given to the shop of Dilabhai at Kadi for
repairing but, it was not repaired till date and he was not informed
about the cost of repairing. That on the day of the incident, he did
not go to the house of the accused No.1.
9.5. PW-7 Dr. Ridhesh Baldevbhai Patel has been examined
at Exh.20 and the witness is the Medical Officer, who was working
as RMO at Bhagyoday Hospital, Kadi on 30.10.2008. The witness
has stated that while he was on duty the complainant was brought
for treatment with a history of assault and he had taken primary
treatment at CHC, Kadi. That he had a bandaged injury on the
head but he did not open the bandage and he was admitted on
30.10.2008 and discharged on the next date. The witness has
produced the medical certificate at Exh.21. During the cross-
examination, the witness has stated that in the certificate, it is not
mentioned as to what time the patient had come for treatment and
the witness has merely stated that he was assaulted and no names
were mentioned in the history.
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9.6. The prosecution has examined PW-8 Akashkumar
Maheshbhai at Exh.23 and the witness is the Medical Officer at
CHC, Kadi on 29.10.2008. The witness has stated that at around
3:30 in the afternoon, the complainant was brought for treatment
and on examining, he found that the complainant was drunk and
was not in proper senses. That he had injury on his back and on
his left side of his head, which was a CLW 2.5cm X 0.5cm on his
left parietal region of his head. That he was referred to Civil
Hospital, Ahmedabad for further treatment and the injuries could
be caused by a hard and blunt substance. During the cross-
examination, the witness has stated that the patient did not
mention when, at what place and by how many persons he was
assaulted and did not give any details about the weapons.
9.7. PW-9 Dilawarkhan Azamkhan Pathan, the PSO of
Kadi Police Station, is examined at Exh.24/A and the witness had
registered the FIR of the complainant with Kadi Police Station at
II-C.R.No.219 of 2008 under Sections 323, 504, 506(2) and 114 of the
IPC and Section 135 of the B.P.Act and Section 3(1)(10) of the
Atrocity Act.
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9.8. The prosecution has examined PW-10 Dilipkumar
Madhavrao Ralegavkar at Exh.27 and the witness was working as
PSI in Kadi Police Station and he has stated that on 29.10.2008, the
complainant had come to file the complaint and he has registered
the complaint, which is produced at Exh.28. During the cross-
examination, he had stated that he did not go to CHC, Kadi to take
the complaint of the complainant.
9.9. PW-11 Khimjibhai Saluji Baranda has been examined
at Exh.30 and the witness is the Investigating Officer, who had
narrated in detail all the procedure that had undertaken by him
during investigation of the offence. During the cross-examination,
the witness has stated that the complainant did not file any
complaint regarding damage caused to the cycle and he did not
investigate in which store the cycle was given for repairing and
what was the cost.
10. On minute appreciation of the entire evidence of the
prosecution, the offence had occurred on 29.10.2008 in the
afternoon and in the evidence, it has transpired that after the
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incident, the complainant was taken to CHC, Kadi for treatment at
3:30pm and before the Medical Officer, the complainant has not
named the person, who has assaulted him, the time and place
where he was assaulted and the weapons, by which, he was
assaulted. The Medical Officer, on examination, found that the
complainant had consumedalcohol and was not well oriented and
cooperative and an FIR under the Prohibition Act was registered
against the complainant. As far as the evidence of the complainant
is concerned, the complainant and his wife have been examined
and the complainant has admitted that 4 to 5 persons had gathered
and his wife has stated that about 100 persons had gathered but
there is no independent eye witness to the incident. As per the
complaint, the incident had occurred when the complainant went
to the house of the accused No.1 for demanding the amount of
compensation for the cycle of Dhaval, son of the complainant,
which was damaged by the accused No.1 while he was reversing
the tractor but, there is no iota of evidence that the cycle was
damaged by the complainant. The complainant has not mentioned
the name of the shop where he had given the cycle for repairing
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and it appears that even after a long time, the complainant had not
brought the cycle back after repairing. Moreover, the caste
certificate of the complainant has been produced at Exh.31 in the
deposition of the Investigation Officer and no Competent
Authority is examined to show that the complainant was, in fact,
of a scheduled caste. There is no iota of evidence that the incident
has occurred at the time and place as stated by the complainant
and the only evidence that emerges is that at the time of incident
and thereafter, when the complainant went to take treatment, he
had consumed liquor and was not oriented and cooperative before
the Medical Officer.
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
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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.
12. The impugned judgment and the order dated
28.10.2009 in Special Atrocity Case No.23 of 2009 passed by the
learned Special Judge (Atrocity), Mehsana is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S.KAZI
