Gujarat High Court
State Of Gujarat vs Bhikhabhai Tapubhai Devipujak on 7 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 875 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
BHIKHABHAI TAPUBHAI DEVIPUJAK & ORS.
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Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 6
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3,4,5
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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 29.01.2010 in Special S.C.S.T.Case No.23 of 2009
passed by the learned Special Judge and Additional Sessions
Judge, District Kheda at Nadiad (hereinafter referred to as 'the
Trial Court'), whereby, the Trial Court has acquitted the
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respondents - accused from the offences punishable under
Sections 354, 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'). 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 11.01.2008 at around 18:00 hours, the complainant
Manjulaben had gone to answer nature's call in the outskirts of
village Dhadal, and at that time, the accused No.1 came from
behind and caught hold of Manjulaben and dragged her, and at
that time, the accused Nos. 2, 3 and 4 along with accused No.1
abused the complainant and the accused No.4 threatened to kill
the complainant and all the accused hurdles caste slurs on the
complainant. The complainant filed the complaint at Kheda Town
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Police Station, which was registered at I-C.R.No.3 of 2008 on
12.01.2008 under Section 354, 504, 506(2) and 114 of the IPC and
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 S.C.S.T.Case No.23 of 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 and
a charge was framed by the learned Trial Court at Exh.5 and the
statements of the accused were recorded at Exhs.6 to 10
respectively, wherein, the accused denied all the contents of the
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charge and the entire evidence of the prosecution was taken on
record. The prosecution has examined 9 witnesses and has
produced 3 documentary evidences in support of the case.
2.4. After the closing pursis was submitted by the learned
APP at Exh.26, 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 for the
offences punishable under Sections 323, 504 and 114 of the IPC and
Section 3(1)(10) of the Atrocity 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
judgment and order passed by the Trial Court is contrary to law,
evidence on record and principles of justice. The Trial Court has
not properly appreciated the oral as well as documentary evidence
on record it its true spirit. The Trial Court has erred in acquitting
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the accused through there are ample and cogent evidence to
connect the accused with the crime and the offences registered
against them. The 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 Trial
Court has acquitted the accused. 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 Mr. Bhargav Pandya for the
appellant - State. Though served to the respondents, they have not
appeared either in person or through an advocate. 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 Mr.Bhargav Pandya for the appellant -
State has taken this Court through the entire evidence produced
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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 learned Judge 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 offence.
Learned APP has urged this Court to allow the present appeal and
impose maximum sentence on the accused.
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:
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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
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
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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.
6.1 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
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
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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]
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
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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.]
7. 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 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 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
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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.
8. In light of the above, the evidence produced by the
prosecution on record is appreciated and the prosecution has
examined PW-1 Narendragir Sukhdevgiri Goswami at Exh.12 and
PW-2 Umedbhai Udabhai Parmar at Exh.14 both the witnesses are
the panch witnesses of the panchnama of the place of offence
which is produced at Exh.13. Both the witnesses have stated that
while they were passing by on the road, the police called them and
asked them to affix their signatures on the panchnama and they
had affixed their signatures but, they had not gone to any place
with the police and no panchnama has been drawn in their
presence. The witnesses have not supported the case of the
prosecution and have been declared hostile and cross-examined by
the learned APP but, nothing to support the case of the
prosecution has come on record.
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8.1. The prosecution has examined PW-3 Manjulaben
Sureshbhai Nayak at Exh.17 and the witness is the complainant,
who has stated that at the time of incident, she was going to
answer nature's call and the daughter of her brother in-law was
with her, and at that time, the accused No.1 caught her and
dragged her. That she shouted and her niece came and they
returned home. After they returned home, she went to scold the
wife of the accused No.1 and after scolding the wife of the accused
No.1, she came back home, and at that time, all the accused
threatened to kill her. On the next date, she went and filed a
complaint, which is produced at Exh.18. That all the accused
abused her and hurled caste slurs on her. During the cross-
examination by the learned advocate for the accused, the witness
has stated that she is residing at village Dhadal for the last 15 years
and the place where they are residing is not frequented by any
person. That her husband is a truck driver and two days prior to
the incident, Goblej Police had taken her husband and had taken
him to Kheda Town Police Station where there was a case
registered against him and he was put in the lock-up. That her
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husband was released on the next day and the accused were also
arrested and released on the next day. That in the year 2004, she
had filed the case under the Atrocity Act against the accused and
they have a dispute for the last 5 to 6 years. That in her statement
before the police, she did not mention that the accused abused any
caste slurs against her.
8.2. The prosecution has examined PW-4 Sumtritaben
Subhashbhai Nayak at Exh.19 and the witness is the eye-witness of
the incident and niece of the complainant. The witness has stated
on the day of the incident, she and the complainant had gone to
answer the nature's call, and at that time, the accused No.1 came
from behind and caught the complainant. That both of them
shouted and the accused No.1 released the complainant and ran
away. During the cross-examination by the learned advocate for
the accused, the witness has stated that she is aware that the
accused and the complainant have cross cases filed against them
and on a number of occasions, the police has come and taken
Sureshbhai and the accused. After Sureshbhai was taken, she
came to know that liquor was found from the house of Sureshbhai
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and the place where they had gone to answer nature's call is not
frequented by any persons. That on the previous day, the police
had taken Sureshbhai and other accused and they were kept in
lock-up and they were released on the next day.
8.3. The prosecution has examined PW-5 Ramilaben
Bachubhai Nayak at Exh.20 is the neighbour of the complainant
who had supported the case of the prosecution and has narrated
the incident that had occurred that the complainant and her niece
Sumitraben had gone to answer nature's call. The witness has
stated that after the complainant returned home, she went to scold
the wife of the accused No.1 and after she returned, all the accused
came and threatened her. During the cross-examination by the
learned advocate for the accused, the witness has admitted that the
accused and the complainant are having a fight for last 6 to 7 years
and they have filed complaints against each other and similar case
was filed about 5 years ago. That the complainant had taken
Rs.20,000/- for compromise and the accused No.4 had filed the
complaint against her at Kheda Town Police Station.
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8.4. The prosecution has examined PW-6 Sureshbhai
Damabhai Nayak at Exh.21 and the witness is the husband of the
complainant who has supported the case of the prosecution.
During the cross-examination, the witness has stated that earlier
he had filed Atrocity Case No.6 of 2005, and prior to that, the
relation with the accused was good and after they were acquitted,
the relation had been spoiled. That a case was filed against him
and Kantibhai Abhesinh Nayak that 7 boxes of liquor were found,
and at that time, the father of the accused No.1 was his surety.
That two days prior to the incident, he and the accused were taken
by Goblej Police, and from there, they were taken to Kheda Police
Station and they were placed in lock-up and were released on the
next day. That he and his wife did not like that the accused were
released on the next day.
8.5. The prosecution has examined PW-7 Manilal
Sukarbhai Gavit at Exh.22 and the witness is the District Vigilance
Officer, who had issued the caste certificate of the complainant
and has produced the extract of the Register at Exh.23, wherein, at
Sr.No.48, the details of the caste certificate issued to the
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complainant are mentioned. During the cross-examination, the
witness has stated that the caste certificate is given on the basis of
School Leaving Certificate and the caste and sub-caste is written in
the School Leaving Certificate is verified with the Schedule. The
original School Leaving Certificate is taken by them but he has not
produced the other documents before the Trial Court.
8.6. PW-8 Vimlaben Mangalbhai Solanki is examined at
Exh.24 and the witness is the PSO, who had registered the
complaint of the complainant at Kheda Town Police at I-C.R.No.3
of 2008.
8.7. The prosecution has examined PW-9 Nareshbhai
Harjibhai Patel at Exh.25 and the witness is the Investigating
Officer, who has narrated in detail all the procedure that was
undertaken by him during investigation. During the cross-
examination, the witness has stated that in the complaint, no caste
slurs were used, and hence, the complaint was filed under Sections
504, 506(2), 354 and 114 of the IPC and during investigation, it was
found that there were a number of cases pending between both the
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parties.
9. On minute appreciation of the entire evidence of the
prosecution, as per the case of the complainant, the complainant
and her niece went to answer nature's call at a secluded place
where the incident of the accused No.1 catching hold of the
complainant from behind has occurred. Admittedly at this place,
there were no other persons present beside the complainant and
her niece and the next incident has occurred in full public view
but, no independent witnesses have been examined by the
prosecution. PW-5 Ramilaben Bachubhai has been examined at
Exh.20 but, during the cross-examination, it has emerged that the
accused No.4 had filed a complaint against her and it cannot be
said that she would depose independently as she had axe to grind
with the accused No.4. Moreover, it has also come on record that
innumberable cases have been filed between the complainant and
the accused and there was an existing enmity between them and,
immediately, prior to the incident, the husband of the complainant
and the accused were arrested by the Goblej Police and taken to
Kheda Police Station and they were placed in the same lock-up.
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That all of them were released on the next day and the husband of
the complainant has stated that they were not happy that the
accused were released. That manner, in which, the incident has
occurred, as narrated by the complainant, is not believable in light
of the fact that innumerable cases have been filed against them and
cases under the atrocity cases have also been filed by the
complainant against them.
10. In view of the above, the 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 Trial Court has appreciated
all the evidence and this Court is of the considered opinion that
the Trial Court was completely justified in acquitting the accused
of the charges leveled against them. The findings recorded by the
Trial Court are absolutely just and proper and no illegality or
infirmity has been committed by the trial Court and this Court is
in complete agreement with the findings, ultimate conclusion and
the resultant order of acquittal recorded by the Trial Court. This
Court finds no reason to interfere with the impugned judgment
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and order and the present appeal is devoid of merits and
resultantly, the same is dismissed.
11. The impugned judgment and the order dated
29.01.2010 in Special S.C.S.T.Case No.23 of 2009 passed by the
learned Special Judge and Additional Sessions Judge, District
Kheda at Nadiad 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)
F.S.KAZI
