Gujarat High Court
State Of Gujarat vs Vaghela Mansanghji Muluji on 20 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 963 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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STATE OF GUJARAT
Versus
VAGHELA MANSANGHJI MULUJI & ANR.
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Appearance:
Mr. Bhargav Pandya, APP for the Appellant(s) No. 1
O I PATHAN(7684) for the Opponent(s)/Respondent(s) No. 1
UNSERVED EXPIRED (R) 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. The present present appeal is 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 Special Judge (Atrocity),
Mehsana (hereinafter referred to as "the learned Trial
Court") in Special Atrocity Case No. 17/2007 on 05.10.2007,
whereby, the learned Trial Court has acquitted the
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respondent for the offence punishable under Sections 323,
504 and 506(2) of IPC and Sections 3(1)(10) of Schedule
Caste and Schedule Tribes (Prevention of Atrocities) Act,
1989 (hereinafter referred to as "the Atrocities Act").
1.1 The respondent is hereinafter referred to as "the
accused" as he stood in the original case for the sake of
convenience, clarity and brevity.
1.2 The respondent no. 2 - original complainant has
expired during the pendency of the appeal on 15.09.2012
and the death certificate of the respondent no. 2 has been
produced on record.
2. The brief facts that emerge from the record of the case
are as under:
2.1 On 22.11.2006, at around 08.30 pm, the complainant
Jiviben w/o Somabhai Maganbhai Senma was alone at
home as her husband and sons had gone outside and both
her daughters-in-law had gone to the hospital. Her sister-in-
law was at home and she was sitting outside when the
accused came to her house and asked about her son -
Babubhai and she told him that her son had gone to Kadi.
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That the accused told her to send her son to meet him
whenever he returns and if he does not come, he would be
killed and showed a knife to the complainant and hurled
caste slurs on the complainant and threatened to kill her
and went away. That her nephew Kishorbhai came and she
narrated the events to him and he went to meet the accused
at his hotel and at that time, the accused abused him,
threatened to kill him and slapped him and he came home
and told her what had taken place. That after some time,
the accused was roaming in front of their street with a farsi
in his hand and as her son Babubhai had a contract of
digging work near Vidaj village and the contract was not
given to the complainant, he had a grudge and the incident
has occurred. The complainant filed the complaint at Kadi
Police Station which was registered at II - C.R. No.
163/2006 under Sections 323 and 506(2) of IPC and
Section 3(1)(10) of the Atrocities Act and Section 135 of the
Bombay Police Act.
2.2 The Investigating Officer recorded the statements of
the connected witnesses and seized the necessary
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documents and after completion of investigation, a charge-
sheet came to be filed before the learned Judicial Magistrate
First Class, Kadi and as the said offences against the
accused were exclusively triable by the Court of Sessions,
the case was committed to the Sessions Court, Mehsana as
per the provisions of Section 209 of Code of Criminal
Procedure and the case was registered as Special Atrocity
Case No. 17/2007.
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 at Exh. 2 was framed against the
accused and the statement of the accused was recorded at
Exh. 3, wherein, the accused denied 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. No. PW Name of the witness Exh.
DOCUMENTARY EVIDENCE
Sr. No. Particulars Exh.
3. After the learned APP filed the closing pursis at Exh.
26, the further statement of the accused under Section 313
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of the Code of Criminal Procedure, 1973 was recorded,
wherein, the accused denied all the evidence of the
prosecution on record. The accused denied to step into the
witness box or examine witnesses on their behalf and stated
that a false case has been filed against him. After the
arguments of the learned APP and the learned advocate for
the accused were heard, the learned Trial Court by the
impugned judgement and order was pleased to acquit the
accused from the charges levelled against them.
4. Being aggrieved and dissatisfied with the judgement
and order of acquittal, the appellant State has filed the
present appeal mainly stating that the learned Trial Court
has not considered the oral evidences of 9 witnesses and the
10 documentary evidences in proper perspective and has
erred in holding that the prosecution has failed to prove the
case beyond reasonable doubts. The prosecution has
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 respondents are
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improper, perverse and bad in law and hence, the impugned
judgement and order must be quashed and set aside.
5. Heard learned APP Mr. Bhargav Pandya for the
appellant State and learned advocate Mr. O.I. Pathan for the
respondents. Perused the impugned judgement and order of
acquittal and have reappreciated the entire evidence of the
prosecution on record of the case.
6. Learned APP Mr. Bhargav Pandya has taken this Court
through the entire evidence of the prosecution on record of
the case and has submitted that the prosecution has proved
the case beyond reasonable doubts and the complainant
has fully supported the case of the prosecution. The nephew
of the complainant has also supported the case of the
prosecution but the learned Trial Court has not appreciated
the same properly. As the prosecution has proved the case
beyond reasonable doubts, learned APP has urged this
Court to allow the appeal as the impugned judgement and
order is improper, perverse and bad in law and to quash
and set aside the same and find the respondents guilty for
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the offences.
7. Learned advocate Mr. O.I. Pathan for the respondents
has submitted that the learned Trial Court has appreciated
all the evidences and has passed the impugned judgement
and order of acquittal which is just and proper and no
interference is required in the same. Learned advocate for
the respondents has urged this Court to reject the appeal of
the appellants.
8. At the outset, before discussing the facts of the
present case, it would be appropriate to refer to the
observations of the Apex Court regarding the scope of
interference in acquittal appeals 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 Vs. State of M.P. (2006) 10 SCC 313, 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
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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".
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
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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.
9. The law with regard to acquittal appeals is well
crystallized and in acquittal appeals, there is presumption
of innocence in favour of the accused and it has finally
culminated when a case ends in an acquittal. The learned
Trial Court has appreciated all the evidence and when the
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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
reappreciate 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.
10. In light of the above settled principle of law, the
evidence of the prosecution is dissected and the
prosecution has examined PW1 - Dr. Bakulbhai
Prabhubhai Patel at Exh. 5. The witness is the Medical
Officer who has produced the medical certificate of the
complainant at Exh. 6 and the medical certificate of witness
- Kishorbhai Bhalabhai Senma at Exh. 7. The witness has
stated that while he was on duty at CHC Kadi, the
complainant - Jiviben Somabhai Senma and Kishorebhai
Bhalabhai Senma had come for treatment on 25.11.2006 at
12.50 pm. Jiviben Somabhai Senma has given the history
herself and had stated that on 23.11.2006 at night,
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Mansangji Maluji Vaghela had kicked her with his shoes on
her leg and the incident had taken place between 07.00 to
08.00 in the evening. On examination, an abrasion was
present at front side of left leg nearly 5 cms above ankle
joint - two in number, one was 2 cms x 0.3 cms and other
was 1 cm x 0.4 cms. The skin of the abrasion was brown in
colour and Kishorebhai Bhalabhai Senma had given the
history himself stating that Mansangji Maluji Vaghela had
slapped him on 23.11.2006. On examination, there were no
bruises or abrasion on his body and during the cross-
examination, the witness has stated that the injuries could
be self inflicted as there was no evidence of any injury of
Jiviben.
10.1 The prosecution has examined PW2 - Jiviben
Somabhai Jadav at Exh. 10 and the witness is the
complainant who has narrated the facts as stated in the
complaint. During the cross-examination by the learned
advocate for the accused, the witness has stated that she
does not know when her son had started the gutter work of
Vidaj village and she had never seen the accused prior to
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the incident and she did not know him. That she did not
ask the name of the accused when he had come to her
house and the accused came and asked her where her son
Babu was. That when she shouted, no one came and her
daughter-in-law was at home at that time. That Kishore
came after half an hour and her son Babu came the next
morning while she was brushing her teeth. That she was to
file the complaint only after her son had agreed to file the
complaint and thereafter, they went to Police Station and
while she was giving the complaint, her son Babu was
present. That in the complaint, she has not stated that the
accused had shown her a knife and hurled caste slurs at
her and she had also not stated that the accused had
abused her and hit her. The caste certificate of the
complainant is produced at Exh. 12.
10.2 The prosecution has examined PW3 - Ishwarbhai
Bhalabhai Senma at Exh. 13 and the witness is the nephew
of the complainant who has stated that after he came
home, he asked the complainant why she was sad and she
told him that Mansangji Mulji of the village had come and
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abused her and threatened to kill her and thereafter, he
went to the hotel of the accused and at that time, the
accused told him that he did not have any work with him
but to send his brother and slapped him twice on the
cheek. That he returned home and the police has recorded
the statement. During the cross-examination by the learned
advocate for the accused, the witness has stated that he
does not know why the accused has come to his house and
on the day of the incident, he did not think of filing the
complaint. That when he went to the hotel of the accused,
there were no customers and on the way back from the
hotel, he did not tell any person about the incident. That in
the statement before the police, he had not stated that he
saw his aunt sitting sad and asked her and she narrated
the incident and told him that the accused had come. That
he had not told the doctor that he was slapped twice on his
cheek.
10.3 The prosecution has examined PW4 - Kanuji
Gopalji Vaghela at Exh. 14 and the witness is panch
witness of the panchnama of the place of offence produced
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at Exh. 21. The witness has not supported the case of the
prosecution and has been declared hostile.
10.4 The prosecution has examined PW5 -
Kaushikkumar Fulshankar Joshi at Exh. 15 and the
witness is the panch witness of the arrest panchnama of
the accused but the witness has not supported the case of
the prosecution and has been declared hostile.
10.5 The prosecution has examined PW6 - Navalsinh
Balusinh Rathod at Exh. 16 is the PSO, Kadi Police Station
who has registered the complaint of the complainant.
10.6 The prosecution has examined PW7 -
Shirishbhai Chhotalal Patel at Exh. 18 who is the Police
Sub Inspector, Kadi Police Station who had recorded the
complaint of the complainant produced at Exh. 11. During
the cross-examination by the learned advocate for the
accused, the witness has stated that when the complainant
came to give the complaint, there were two to three persons
with her but he does not know who they were and he did
not asked their names. That he did not give any yadi to the
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complainant for taking treatment and he did not inquire
whether the complainant wanted to go for treatment or not.
10.7 The prosecution has examined PW8 -
Kamleshbhai Dinesbhai Virja at Exh. 20 and the witness is
the panch witness of the panchnama of the place of offence
which is produced at Exh. 21. The witness has supported
the case of the prosecution and the place was offence was
in front of the house of the complainant.
10.8 The prosecution has examined PW9 -
Mayanksinh Ajitsinh Chavda at Exh. 22 and the witness is
the Investigating Officer who has narrated in detail the
procedure that was undertaken by during investigation.
During the cross-examination by the learned advocate for
the accused, the witness has stated that he had recorded
the statement of Baubhai and it was his opinion that the
incident had occurred because of Babubhai. That at the
time of the incident, the accused was an elected member
from Kadi Taluka and the work that was being done by
Babubhai was from the Taluka Panchayat Grant. That he
did not visit the place where the work was going on.
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11. On minute dissection of the entire evidence of the
prosecution, the incident as per the complainant has
occurred on 22.11.2006 at 08.00 pm and the complainant
has filed the complaint on 23.11.2006. There is no reason
given for delay in filing the complaint and the complainant
has stated that she was sitting alone in front of the house
when the accused came to inquire about her son and she
did not know who the accused was and she did not ask him
his name. As per the complainant, after about half an hour,
her nephew Kishorbhai came and she told him that the
accused had come but she has not revealed as to how she
came to know that it was the accused who had come to
inquire about her son Babu. That immediately, her nephew
Kishorbhai went to the hotel of the accused but there is no
clarity as to how he had identified that it was the accused
who had come to inquire about Babubhai. The complaint
has been filed against the accused by name and there is no
Test Identification Parade on record to prove as to how the
complainant has identified the accused. Moreover, the
incident has occurred in front of the house, when it is the
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case of the complainant that there was no one around.
Hence, except for the bald allegation of the complainant
that the accused had hurled caste slurs, there is no
independent witness to corroborate the say of the
complainant. The complainant had stated that her
daughter-in-law was at home but even though she shouted,
no one came and hence, there is no evidence to support the
say of the complainant. The complainant and witness
Kishorbhai have gone to CHC Kadi on 25.11.2006, three
days after the incident when they have named the accused
as the person who had assaulted them but there were no
injury marks found on the complainant as well as the
witness. If the complaint produced at Exh. 11 is perused,
the complainant does not say that the accused had
assaulted her by kicking her but before the Medical Officer,
she has stated that the accused kicked her with his shoes
twice. Hence, there were major contradictions in the
evidence of the complainant and the same is not
independently corroborated by any evidence.
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12. 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.
13. The impugned judgement and order of acquittal
passed by the learned Special Judge (Atrocity), Mehsana in
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Special Atrocity Case No. 17/2007 on 05.10.2007, is hereby
confirmed.
14. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J)
VASIM S. SAIYED
