Gujarat High Court
State Of Gujarat vs Koli Dungarbhai Khegarbhai on 20 February, 2025
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R/CR.A/1634/2008 JUDGMENT DATED: 20/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1634 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting NoYes
No
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STATE OF GUJARAT
Versus
KOLI DUNGARBHAI KHEGARBHAI & ANR.
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Appearance:
MR.BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR MAHESH K POOJARA(5879) for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 20/02/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant State under Section
378(1)(3) of the Code of Criminal Procedure, 1973 against the
judgement and order of acquittal passed by the learned Additional
Sessions & Special Judge, Dhrangadhra (hereinafter referred to as "the
learned Trial Court") in Special Case No. 10 of 2005 on 03.03.2008,
whereby, the learned Trial Court has acquitted the respondents for the
offence punishable under Sections 323, 504 and 506(2) of Indian Penal
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Code, 1860 (hereafter referred to as "IPC" for short) and Section 3(1)(10)
of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities),
1989.
1.1 The respondent is hereinafter referred to as the accused in the rank
and file as he 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 That on 02-09-2004, the complainant Hirabhai Khetabhai Parmar
was going from the house of the Sarpanch and in the main Bazar, the
accused was standing with a stick in his hand and while the complainant
passby, the accused started abusing the complainant and used caste-slurs
and threatened to kill him and held his hair and dragged him, as a result
of which, the complainant sustained abrasion on the elbow of his left
hand. That Dhirajlal Nagardas, Goga Dayaram and Kavabhai Jodhabhai
Bharwad came and did not allow the accused to beat him and the
released the accused. Both of them went away to their respective houses.
That after some tome, once again, the accused came to the house of the
complainant and abused him and at that time his wife and Kavabhai
Jodhabhai Bharwad came and the accused went away. That, prior to the
incident, the accused and the complainant had a verbal altercation about
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the road and hence the incident has occurred. The complainant filed the
complaint at Patadi Police Station under Sections 323, 504 and 506(2) of
the IPC 1860 and Section 3(1) (10) of Atrocities Act, which was
registered as II-C.R.No.10 of 2005 on 02-09-2004.
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 Learned Judicial
Magistrate First Class, Patadi and as the said offences against the
accused was exclusively triable by the Court of Sessions, the case was
committed to the Sessions Court, Dhrangadhra as per the provisions of
Section 209 of the Code of Criminal Procedure and case was registered
Special Case No. 10 of 2005.
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 at Exh. 8 was framed
against the accused and the statement of the accused was recorded at
Exh. 9, wherein, the accused denied all the contents of the charge and the
entire evidence of the prosecution was taken on record.
2.4 The prosecution produced the following evidence to bring home
the charge against the accused.
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ORAL EVIDENCE
Sr. P.W. Name of the witnesses Exh.
No. Nos
DOCUMENTARY EVIDENCE
Sr. Particulars Exh.
No.
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2.5 After the learned Additional Public Prosecutor filed the closing
pursis at Exh. 33, the further statement of the accused under Section 313
of the Code of Criminal Procedure, 1973 was recorded, wherein, the
accused denied all the evidence of the prosecution on record. The
accused refused to step into the witness box or examine witnesses on his
behalf and stated that a false case has been filed against him. After the
arguments of the learned Additional Public Prosecutor and the learned
advocate for the accused were heard, the learned trial Court by the
impugned judgment and order was pleased to acquit all the accused from
all the charges leveled against him.
3. Being aggrieved and dissatisfied with the said judgement and
order of acquittal, the appellant - State has filed the present appeal
mainly stating that the impugned judgement 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 cross-examination,
nothing adverse has been elicited in favour of the respondents. The case
has been proved beyond reasonable doubts and the prosecution has
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successfully established the case against the respondents and the
judgement and order of acquittal is unwarranted, illegal and without any
basis in the eyes of law and the reasons stated while acquitting the
respondent 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.
4. Heard learned APP Mr. Bhargav Pandya for the appellant State and
learned advocate Mr. Mahesh Poojara for the respondent-accused.
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 Mr. Bhargav Pandya has taken this Court through the
entire evidence of the prosecution on record of the case and submitted
that the prosecution has proved the case beyond reasonable doubts and
has examined thirteen witnesses and has produced seven documents in
support of their cases but the learned trial Court has not appreciated the
evidence in proper perspective. That the complainant has fully supported
the case of the prosecution, as narrated by him in the FIR and has clearly
mentioned about the alleged incident has occurred but the learned trial
Court has discarded and disbelieved the evidence of the complainant.
The caste certificate of the complainant is produced and the prosecution
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has proved that the complainant was a member of scheduled caste and
the accused had abused him using caste-slurs. The learned trial Court has
mainly relied on minor contradictions and omissions, committed an error
in disbelieving and discarding the witnesses' evidence, and resulted in a
grave miscarriage of justice. Learned APP has urged this Court that the
impugned judgement and order is improper, perverse and bad in law and
is required to be quashed and set aside.
6. Learned advocate Mr. Mahesh Poojara for the respondent-accused
has submitted that the learned Trial Court has appreciated all the
evidences and passed the judgement and order of acquittal which is just
and proper and no interference is required in the same and learned
Advocate for the respondents has urged this court to reject the appeal of
the appellant.
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, wherein, the Apex Court has observed as under:
Recently, in Kallu v. 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
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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 phraseology 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. The law with regard to acquittal appeals is well crystallized and in
acquittal appeals, there is a presumption of innocence in favour of the
accused and it has finally culminated when a case ends in an acquittal.
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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.
9. In light on the above settled principles of law and considering the
evidence on the prosecution, to bring home the charge against the
accused, the prosecution has examined Prosecution Witness No. 1 -
Hirabhai Khetabhai Parmar at Exh.11 and the witness is the complainant
who has fully supported the case as narrated in the complaint.
During the cross-examination by the learned advocate for the
accused, the witness has stated that his field is just besides the field of
the accused and they are neighbors for the past twenty years. That he has
to pass by the field of the accused to go to his field and there is a dispute
regarding the road between them. That the Sarpanch of the village Satish
Bharwad is his friend and he has filed similar case against Kesha Soma
Kodi in Surendranagar, in which, the accused has been acquitted. That,
besides the road dispute, there is no dispute between them.
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9.1 The prosecution has examined Prosecution Witness No. 2 -
Tadsibhai Mohanbhai at Exh.15 and the witness is the panch witness of
the panchnama of place of offence, which is produced at Exh.16.
9.2 The prosecution has examined Prosecution Witness No. 3 -
Dhanjibhai Kanabhai at Exh. 17 and Prosecution Witness No. 4 -
Sukhabhai Lakhabhai at Exh. 18 and theses witnesses are the panch
witness of the arrest panchnama of the accused produced at Exh. 18.
Both the witnesses have not supported the case of the prosecution and
have been declared hostile and during the lengthy cross-examination by
the learned advocate for the accused, nothing to support the case of the
prosecution has come on record.
9.3 The prosecution has examined Prosecution Witness No. 5 -
Madhuben W/o Hirabhai at Exh. 20 and the witness is the wife of the
complainant, who has stated that that on the day of the incident, her
husband came back home in the evening and after some time, the
accused came and abused her husband and threatened to kill him. That
Kavabhai Bharwad came and the accused went away.
During the cross-examination by the learned advocate for the
accused, the witness has stated that their field and the field of the accused
are adjacent to each other. That the incident has occurred because of the
dispute of the road. That her husband came home in the evening and
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informed her about the incident and showed her that his elbow was
bleeding. That her husband had also told her that the accused had beat
him with a stick.
9.4 The prosecution has examined Prosecution Witness No. 6 -
Satishbhai Vihabhai at Exh.21 and as per the case of the prosecution, the
witness is in eye witness to the incident and he has stated that on the day
of the incident, later on, he came to know that the complainant and the
accused had an altercation. That, he does not know what was the
altercation about. The witness has not supported the case of the
prosecution and has been declared hostile and during the cross
examination by the learned APP, nothing to support the case of the
prosecution has come on record.
9.5 The prosecution has examined Prosecution Witness No. 7 -
Kavabhai Jodhabhai at Exh. 22 and the witness has stated that on the day
of incident, between 08:00 am and 09:00 am, he was going to his field
and was passing by the field of the accused and he saw the accused, the
complainant and others gathered there. That when he went there, he
heard the accused threatening to kill the complainant and abusing the
complainant but the accused did not assault the complainant in his
presence. That, in his presence, the accused did not catch the hair of the
complainant and drag him and they were merely having a verbal
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altercation and he intervened and sent them to their respective homes.
That both the parties have a dispute regarding the way through the field
and during the cross-examination by the learned advocate for the
accused, the witness has stated that at the time of the incident, the owners
and labourers of the neighboring fields were present. That the incident
has not occurred in his presence and when he reached the place, the
quarrel was already over and he came to know about the quarrel from the
persons, who had gathered there. That, the field is situated about half a
mile away from the field and it would take about half an hour to come to
the village from the field.
9.6 The prosecution has examined Prosecution Witness No. 8 -
Mangabhai Dilabhai at Exh. 24 and Prosecution Witness No. 9 - Dhirjlal
Nagardas at Exh. 25. Both the witnesses are the eye-witnesses to the
incident but both the witnesses have not supported the case of the
prosecution and have been declared hostile and have categorically stated
that no incident has occurred in their presence. Both the witnesses have
been cross-examined at length by the learned Additional Public
Prosecutor, but both the witnesses have stated that they have not heard
the accused abusing or hurling caste-slurs against the complainant or the
accused assaulting the complainant.
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9.7 The prosecution has examined Prosecution Witness No. 10
- Dr. Gopalbhai Somabhai Makwana at Exh. 29 and the witness is the
Medical Officer, who was present at the Community Health Center,
Patadi on 02-09-2004. When the complainant - Hirabhai Khetabhai came
for treatment at 01:10 pm. In the history, the complainant stated that he
was beaten with a stick at 08:45 am and on examination, there was a
bruise of 0.5 cm X 3 cm on left hand near the elbow. The injury was
simple and fresh and was possible with a hard and blunt substance.
During the cross examination by the learned advocate for the
accused, the witness has stated that injury that was found on the patient
could be sustained, if a person had fallen down accidentally and it could
also be self - inflicted. That if a person was caught by his hair and
dragged on the road, a person would sustain bruises on both his legs, on
the soles of his feet, ankles etc. and the complainant did not have any
such type of injury.
9.8 The prosecution has examined Prosecution Witness No. 11
- Dr. Abdulbhai Ladbhai Saiyed at Exh. 28 and the witness was working
as a PSO in Patadi Police Station, who had recorded the complaint of the
complainant and registered the FIR at I-C.R.No. 36 of 2004.
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9.9 The prosecution has examined Prosecution Witness No. 12
- Becharbhai Arjanbhai Solanki at Exh. 30 and the witness is the Head
Constable, who had drawn the panchnama of the place of offence, which
is produced at Exh. 16.
9.10 The prosecution has examined Prosecution Witness No. 13 -
Gulammayuddin Umarmiya Kazi at Exh. 31 and the witness is the
Investigating Officer, who has narrated in detail all the procedure that he
had undertaken during the investigation of the offence.
10. On minute dissection of the entire evidence of the
prosecution, as per the case of the prosecution, the place of offence is the
main bazar of village and the incident has occurred on 02-09-2004 at
08:45 am and the second incident had taken place near the house of the
complainant. As per the case of the prosecution, Prosecution Witness No.
7 Kavabhai Jodhabhai is the eye-witness to the incident and even in the
complaint, the complainant has stated that Dhirajlal Nagardas, Gopalbhai
Somabhai Makwana and Kavabhai Jodhabhai were the eye-witnesses to
the incident that had occurred in the main Bazar but the said Kavabhai
Jodhabhai has stated that the incident has occurred near the field while
he was going to his field , which is almost half and hour away from the
main bazar and hence the place of incident as stated by the complainant
and as stated by eye-witnesses Kavabhai Jodhabha are two different
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places and the facts of the complaint of the complainant are not
corroborated by the said witness.
10.1 As per the case of the prosecution, Prosecution Witness No. 8 -
Magabhai Dilabhai at Exh. 24 and Prosecution Witness No. 9 - Dhirajlal
Nagardas were also present at the time of the incident, which occurred in
the main Bazar but both the witnesses have not supported the case of the
prosecution and they have been declared hostile and they have stated that
no such incident has occurred in their presence. Hence, the say of the
complainant is not corroborated by the evidence of the independent-
witnesses.
10.2 The Medical Officer, who has been examined at Prosecution
Witness No. 10 Dr. Gopalbhai Somabhai Makwana has examined the
complainant but even before the medical officer even though the
complainant knew the accused for the past twenty years and was
neighbour, he did not name the accused as the person who had assaulted
and had stated that he was assaulted with a stick at 08:45 am. There was
only one 0.5 cm X 3 cm abrasion on the left elbow of the complainant
whereas Prosecution Witness No. 5 Madhuben Wife of Hirabhai has
stated that she had seen bruises on the chest of her husband and he had
told her that the accused had assaulted him with a stick but the say of the
witness is not corroborated by the medical evidence. Moreover, the
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complainant has stated that, the accused caught him by his hair and
dragged him but there are no bruises or abrasion on the legs of hands of
the complainant and hence the say of the complainant also does find
support even in the evidence of the medical officer.
11. 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.
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12. The impugned judgement and order of acquittal passed by the
learned Additional Sessions & Special Judge, Dhrangadhra in Special
Case No. 10 of 2005 on 03.03.2008, 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)
VVM
