Gujarat High Court
State Of Gujarat vs Mahebubbhai Hanifbhai Multani on 13 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1630 of 2008
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
MAHEBUBBHAI HANIFBHAI MULTANI & ORS.
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Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR BHAVIN S RAIYANI(3855) for the Opponent(s)/Respondent(s) No. 1,2
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 13/02/2025
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 05.03.2008 in Sessions (Special Atrocity) Case No.183
of 2007 passed by the learned Additional Sessions Judge and
Presiding Officer, Main Fast Track Court, Gondal (hereinafter
referred to as 'the learned Trial Court'), whereby, the learned Trial
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Court has acquitted the respondents - accused from the offences
punishable under Sections 323, 324, 341, 504 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 37(1) and 135 of the Bombay Police Act (hereinafter
referred to as '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 25.07.2007, the complainant was in the market near
the Pan Cabin of his friend and was speaking to his friend about
Airtel business and at about 12:45pm, the accused No.1 came and
asked him why he had entered into a love marriage with his sister
Shahenaz. The accused No.4 caught him by the collar and other
relatives came one by one and caught him and about 9 to 10
persons assaulted and abused him, and hurled caste slurs. The
complainant filed the complaint with Gondal Police Station under
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Sections 324, 323, 341, 504 and 114 of the IPC, Section 37(1) and 135
of the B.P.Act 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, the process under
Section 209 of the Cr.P.C. was undertaken and the case was
committed to the Sessions Court and the same was registered as
Sessions (Special Atrocity) Case No.183 of 2007.
2.3. The accused was 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 and 7, 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 14 documentary
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evidence in support of the case.
2.3. After the closing pursis was submitted by the learned
APP at Exh.35, 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, 324, 341, 504 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 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
natural justice and the same is based on inferences not warranted
by facts of the case and also on presumption not permitted by law.
The learned Trial Court has erred in appreciating the direct and
indirect evidence produced in this case connecting the accused
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with the crime. The learned 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 learned Trial Court has failed in holding
that the prosecution has failed to prove particular words of abuses,
which were used by the accused. The learned Trial Court has
committed error in giving undue importance to minor omissions
and contradictions in the evidence of the prosecution witnesses.
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.
4. Heard learned APP Mr.Bhargav Pandya for the
appellant - State. and learned advocate Mr.Bhavin Raiyani for the
respondents - accused. 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 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 the
learned Judge is contrary to law, evidence on record and principles
of justice. The judgment and order of acquittal passed by learned
Trial Court 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.
6. Learned advocate Mr.Bhavin Raiyani for the 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 judgement and the order of acquittal
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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 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
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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.
(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.
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 is some manifest illegality or 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
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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
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 Sunilbhai Koshorbhai Solanki at Exh.9 and the
witness is the complainant who has stated that at the time of
incident the accused No.1 abused him, and beat him with his hand
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and with a PVC pipe. That the accused uttered caste slurs and the
incident had occurred because he had entered into the love
marriage with the sister of the accused. That he had filed the
complaint which is produced at Exh.10. During the cross-
examination, the witness has stated that he got married on
06.05.2006 and the marriage was registered on 08.05.2006 and he
does not know whether the divorce had taken place on 15.05.2006.
The witness has stated that at the time of incident, he was working
with his uncle and he does not remember the name of the shop
where he was standing or the name of his friend with whom he
was talking. That he had given the complaint at the Government
Hospital, Gondal and as he was afraid, he had named the uncle
and other relatives in the complaint.
9.1. The prosecution has examined PW-2 Girishbhai
Becharbhai Parmar at Exh.11 and the witness is the uncle of the
complainant, who has supported the case of the prosecution and
has stated that on 25.07.2007, he was informed on telephone that
his nephew was beaten up by his brother in-laws in Parekh Street
and he informed the City Police Station. That the police went to
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the spot but his nephew was not found and one Hiteshbhai
brought his nephew to his office on the motorcycle. That he was
injured and was taken to the Government Hospital, Gondal and
was admitted and thereafter, was taken to Civil Hospital, Rajkot.
During the cross-examination, the witness has stated that the
complainant was married to the sister of the accused No.1 and the
papers of marriage show the date 08.05.2006 and the papers of
divorce show the date 15.05.2006. The marriage had taken place at
'panchnath' temple and he had gone for the registration of the
marriage.
9.2. The prosecution has examined PW-3 Hiteshbhai
Ramjanambhai Shukla at Exh.12 and the witness has stated that he
and the complainant were at the pan shop and at that time, one
person came and started quarreling with the complainant but at
that time, he received the phone call from his home and he left the
place.
9.3. The prosecution has examined PW-4 Rampravesh
Mahendra Shah at Exh.13 and the witness is the Medical Officer
working at Government Hospital, Gondal, who had treated the
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complainant. The witness has stated that on 25.07.2007 at around
12:30hours, Sunil Kishorbhai Solanki was brought without yadi for
treatment and in the history, he had given alleged physical assault
and on examination, there was an abrasion over right the elbow
1cm X 1cm which was red colour. The X-ray of right thigh and X-
ray of left leg was taken but no abnormality was detected and in
the X-ray of right left, there was an old healed fracture. The patient
was referred for expert opinion to Civil Hospital, Rajkot and the
injury certificate of the complainant is produced at Exh.14. During
the cross-examination, the witness has stated that the complainant
did not name the persons who had assaulted him and there was no
injury on the scalp but the complainant had complaint of pain over
the scalp. That no fresh injuries were found on the right thigh or
right leg.
9.4. The prosecution has examined PW-5 Hirenbhai
Sureshbhai Chhatbar at Exh.15 and the witness is the eye witness
to the incident, who has stated that the complainant had taken a
cigaratte and on the next date, he had a quarrel near his shop a
little away but he does not know with whom the quarrel had taken
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place. The witness has not supported the case of the prosecution.
During the lengthy cross-examination by the learned advocate for
the accused, nothing has come on record to support the case of the
prosecution.
9.5. The prosecution has examined PW-6 Vinubhai
Becharbhai Parmar at Exh.25 and PW-7 Bashirmiya Kadarmiya
Kazi at Exh.27. Both the witnesses are the panch witnesses of the
arrest panchnama produced at Exh.26. Both the witnesses have
stated that they were not called as panch witnesses and had
merely affixed their signatures on the panchnama which is
produced at Exh.26.
9.6. PW-8 Arjunbhai Rupsangbhai Parmar examined at
Exh.28 is the in-charge PSO who had recorded the complaint of the
complainant. During the cross-examination, the witness has stated
that in the complaint, the complainant had stated the name of one
accused and 9-10 other persons who had assaulted him.
9.7. PW-9 Ramnikbhai Harilal Lakhtariya examined at
Exh.29 was working as PSO, who had registered the complaint of
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the complainant at I-C.R.80 of 2007 under Sections 323, 324, 341,
504 and 114 of the IPC, Section 3(1)(10) of the Atrocity Act and
Section 135 of the B.P.Act.
9.8. PW-10 Gautam Manilal Parmar examined at Exh.31 is
the Investigating Officer who had investigated the offence and has
narrated in detail the entire procedure undertaken by him during
investigation. In the cross-examination, he has stated that he had
recorded the further statement of the complainant and statements
of the connected witnesses and in the complaint, it was mentioned
that 9-10 persons had assaulted the complainant. In the further
statement on 27.07.2007, the name of three persons were given.
That the complainant did not give the name of the son of the uncle
of the accused No.1 but, on investigation, it was found that he was
aged 7 years and was falsely implicated by the complainant in the
offence.
9.9 The prosecution has examined PW-11 Dr.Janmejay
Krishnachandra Nathwani at Exh.32 and the witness is the
Medical Officer, who was on duty at Civil Hospital, Rajkot on
25.07.2007, when the complainant was brought for treatment. The
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witness has stated that in the history the complainant has stated
that he was beaten up by a stick and he had a complaint of pain on
right thigh and right leg and on examination, there was an
abrasion on the elbow, dorsum aspect 3cm X 1cm with clotted
blood. The X-ray was taken but no abnormality was detected and
the medical certificate is produced at Exh.33. During the cross-
examination, the witness has stated that the patient did not give
the names of the persons, who had assaulted him, in the history
and the abrasion on dorsum of the elbow could be sustained when
a person had fallen down from a motorcycle. That no external
injury was found on the right leg of the complainant and the
fracture in the right tibia was an old fracture.
10. On minute appreciation of the entire evidence of the
prosecution, the eye witnesses PW-3 and PW-5 have not supported
the case of the prosecution and the PW-2, the uncle of the
complainant, is not an eye witness to the incident. Admittedly, it
appears that the complainant was married to the sister of the
accused No.1 on 08.05.2006 and a divorce had taken place on
15.05.2006 and there was a dispute between the complainant and
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the accused. In the complaint, the complainant had stated that the
accused No.1 and 9-10 other persons had assaulted him but
during investigation, it was found that no other persons had
assaulted the complainant and he had falsely implicated the others
including the 7 years old child of the uncle of the accused No.1. It
is on record that the complainant knew the accused No.1 from
prior to the incident as he had a love marriage with the sister of
the accused No.1 but, he has not named the accused No.1 as the
assailant before the Medical Officer, Gondal as well as the Medical
Officer, Rajkot. Moreover, the complainant has stated that he was
assaulted by a PVC pipe but in the history before the Medical
Officer at Rajkot, he had stated that he was assaulted by a stick.
The medical evidence does not corroborates the say of the
complainant and in the Medical Certificate produced at Exh.14 and
Exh.33 no injuries are seen on the complainant and the say of the
complainant is not corroborated by the medical evidence. There is
no evidence on record to show that the incident as narrated by the
complainant has taken place or that the accused had assaulted the
complainant and had used any abusive caste slurs at the time of
incidents.
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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.
12. The impugned judgment and the order dated
05.03.2008 in Sessions (Special Atrocity) Case No.183 of 2007
passed by the learned Additional Sessions Judge and Presiding
Officer, Main Fast Track Court, Gondal is hereby confirmed.
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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
