Gujarat High Court
State Of Gujarat vs Jagatsinh Khumansinh Parmar on 20 February, 2025
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R/CR.A/2106/2010 JUDGMENT DATED: 20/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2106 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
JAGATSINH KHUMANSINH PARMAR & ANR.
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Appearance:
MR.BHARGAV PANDYA, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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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 3 rd Additional
Sessions Judge, Banaskantha at Palanpur (hereinafter referred to as "the
learned Trial Court") in Special (ATRO) Case No. 94 of 2009 on
30.08.2010, whereby, the learned Trial Court has acquitted the
respondent-original accused for the offence punishable under Sections
452, 354, 509 and 506(2) of Indian Penal Code, 1860 (hereafter referred
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to as "IPC" for short) and Section 3(1)(10) of the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter
referred to as "Atrocities Act"). The respondent is hereinafter referred to
as the accused in the rank and file as they 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 the complainant was working as an Assistant Teacher in the
Virampur Primary School and residing at Sujal Vas in Virampura and the
accused was working as Teacher at Godiya Village and was residing two
houses away from the complainant. The complainant filed the complaint
on 10-06-2009, mainly stating that between 01-03-2009 and 06-01-2009,
every morning between 09:30 AM to 10:00 AM, the accused used to
enter into the house of the complainant in the absence of her husband and
would make obscene gesture and make illegal demands from the
complainant and threatened the complainant that if she would not
surrender to him and if she would tell any-one about his visits, she and
her children would not be safe. The accused also tried to molest her and
as she was afraid, she proceeded on leave and went to her father's place
at Surat and informed her husband about the incident at Surat. That she
also gave an application to the District Primary Education Officer and
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thereafter went to the Amirgadh Police Station and filed the complaint
under Sections 452, 354, 509 and 506(2) of the IPC and Sections 3(1)
(10) of the Atrocities Act which was registered as I-C.R.No. 49 of 2009
on 10-06-2009.
2.2 The Investigating Officer recorded the statements of the connected
witnesses and seized the necessary documents and after completion of
investigation, a chargesheet came to be filed before the Court of Judicial
Magistrate First Class, Amirgadh and as the said offences against the
accused was exclusively triable by the Court of Sessions, the case was
committed to the Sessions Court, Banaskantha as per the provisions of
Section 209 of the Code of Criminal Procedure and case was registered
Special (ATRO) Case No. 94 of 2009.
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. 5 was framed
against the accused and the statement of the accused was recorded at
Exh. 6, 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.
3. Application sent to District Primary Education 17
Officer
2.5 After the learned Additional Public Prosecutor filed the closing
pursis at Exh. 29, the further statement of the accused under Section 313
of the Code of Criminal Procedure, 1973 were recorded, wherein, the
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accused denied all the evidence of the prosecution on record. The
accused refused to step into the witness box or examine witnesses on
their behalf and stated that a false case has been filed against them. 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 the cross-
examination, nothing adverse has been elicited in favour of the
respondent. The case has been proved beyond reasonable doubts and the
prosecution has successfully established the case against the respondent
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.
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4. Heard learned APP Mr. Bhargav Pandya for the appellant State.
Though served, none appears on behalf of the respondent(s) either in
person or through an advocate. 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 has
submitted that the prosecution has proved the case through the evidence
of the complainant who herself was an educated persons and working in
Virampur Primary School and as she was afraid of the threats of the
accused, she proceeded on leave and went to Surat and informed her
husband at Surat about the incident. The complainant and the accused
were known to each other and the husband of the complainant and the
father of the complainant have also supported the case of the
prosecution. That the learned trial Court Court has not appreciated the
evidence properly and the accused must be found guilty for the said
offence. 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. 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
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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
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 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.
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(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. 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.
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.
8. 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 -
Amitaben Chimanbhai Patel at Exh. 14 and the witness is the
complainant, who has narrated all details as stated in the complaint. The
complainant has produced the complaint at Exh.15 and her caste
certificate at Exh.16. The complainant has been cross examined at length
by the learned advocate for the accused, wherein, she has stated that if
any person wants to come her house from the porch, they had to come
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from the eastern door in to a Chowk and from there come north to the
west of the gold smith shop and from there to Mafabhai Luhar Shop and
turn south and enter her house. That the accused was residing with his
wife and children and if he would come from the porch, the people
residing would see him. That the brother-in-law of the accused used to
give tuition to her children and four months prior to the incident, the
accused was transferred from her school. That her family and the family
of the accused used to go out together and before filing application, she
did not tell anyone in the school or in the village about the accused. That
she had proceeded on casual leave for two days after the festival of Holi
and she and her husband went to Surat and before leaving for Surat, they
kept their motorcycle at the house of the accused. That the accused, his
wife and children had also gone to their home town and her husband
opened the house of the accused and placed his motorcycle inside. On the
day before, accused and his wife had come to their house and in the
application that she gave to the District Primary Education Officer, she
did not state that the accused visited her house every day from 01-03-
2009 to 06-03-2009 in the absence of her husband and that he would
make illegal demands and would make obscene gestures to her. The
application of the applicant given to the District Primary Education
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Officer is produced at Exh.17 and the application given to the DSP,
Banaskantha at Palanpur is produced at Exh.18.
8.1 The prosecution has examined Prosecution Witness No. 2 -
Dineshkumar Ramnbhai Patel at Exh.19 and the witness is the husband
of the complainant, who has supported the case of the prosecution.
During the cross examination by the learned advocate for the
accused, the witness has stated that after they reached Surat between
08:00 am and 09:00 AM, his wife informed him about the incident. That
she did not say anything while they sat in a bus at night and she informed
him after they reached home. That he did not know anything about the
behaviour of the accused prior to this and before leaving he had placed
his motorcycle in the house of the accused. That before they left for Surat
on the previous day, the accused and his wife came to their house and
they too visited the house of the accused earlier. That, they had taken
advise to file the complaint under the Atrocities Act and after they had
received the advise, there were told to draft the application to show
that an offence under the Atrocities is made out.
8.2 The prosecution has examined Prosecution Witness No. 3 -
Chimanbhai Barjilbhai Patel at Exh.20 and the witness is the father of the
complainant, who has stated that on 08-03-2009, his daughter had come
to his house at Surat and informed him about the incident. That she had
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filed an application with the District Primary Education Officer and had
requested that she be transferred from Virampur and had given the
complaint with Amirgadh Police Station.
During the cross examination by the learned advocate for the
accused, the witness has stated that he too was a teacher and he was well
aware about the place to file the complaint. The application to the
District Education Primary Officer was prepared by his son-in-law at
Palanpur and his son is working at Tharad. That his son-in-law was
working at Palanpur and his daughter had tried to get transfer to any
place near Palanpur. That his son-in-law was commuting from Virampur
to Palanpur. That while they were residing at Virampur, his daughter had
two children and she had a mail to work for her at home.
8.3 The prosecution has examined Prosecution Witness No. 4 -
Mahammadkhan Sherkhan at Exh. 24 and the witness is the PSO, who
has registered the complaint of the complainant.
8.4 The prosecution has examined Prosecution Witness No. 5 -
Mahendrasinh Ratansinh Rathod at Exh.28 and the witness is the
Investigating Officer, who has deposed about the manner in which he has
investigated the offence.
During the cross-examination by the learned advocate for the
accused, the witness has stated that, during investigating, he did not find
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that the complainant had given any application to the Dy.S.P. but she had
given an application to the District Primary Education Officer and the
DSP as she has stated that in her complaint. That he did not inquire
whether the application sent to the DSP, Palanpur was sent to Amirgadh
Police Station and he did not go to the District Primary Education Officer
to inquire about the application of the complainant. That he had recorded
the statements of neighbors but they did not support the case of the
prosecution and he had not recorded the statements of the family of
residing in the same building. That, 01/03/2009, was a Sunday and the
husband of complainant would be at home but he did not inquire about
the same and during investigation, it was found that the complainant
resided with her husband and two children.
9. On minute dissection of the entire evidence of the prosecution, it
appears that the complainant is an educated person and was working as a
Assistant Teacher in Virampur Primary School and as per her say, the
incident has occurred from 01-03-2009 to 06-03-2009 but the complaint
has been filed on 10-03-2009. PW No. 2 Dineshkumar Ramanbhai Patel,
the husband of the complainant has clearly admitted that they had taken
advice regarding filing of the complaint and as per the advice that they
had received, they drafted the application so that a case under the
Atrocities Act would made out. There is no explanation regarding the
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delay in filing of the complaint and during the cross examination, it has
emerged on record that there were good family relation between the
family members of the complainant and the family members of the
accused and they used to visit each other houses and also go for outings.
Moreover, the children of the complainant also resided with her and it is
admitted that she had she had kept one maid to help her with the
household work but there is nothing on record to suggest as to where the
other household members were during the incident. That even the day
before that she left for Surat, the accused and his wife had come to visit
the complainant's house and her husband at her house and while they
were leaving for Surat, the complainant and her husband had kept their
motorcycle in the house of the accused. Moreover, if the complaint and
the deposition of the complainant is perused, she has merely stated that
the accused used to make illegal demands from her but she has not
specified as to what obscene gestures or what illegal demands was in fact
made by the accused. The Investigating Officer has recorded the
statements of the neighbors but none of the neighbors have supported the
case of the prosecution and hence there is no evidence of any
independent witnesses that has come on record. There is no iota of
evidence to suggest that the accused had at any point of time, entered
into the house of the complainant and the conduct of the complainant,
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immediately after the incident, is also doubtful. The complainant states
that from 01-03-2009 to 06-03-2009, the accused used to visit her house
every morning between 09:00 AM and 10:00 AM in the absence of her
husband, but it is surprising that she has not intimated her husband about
the visit of the accused when the husband of the complainant came back
in the evening. It was only after when they reached at Surat on the next
date that the complainant told her husband about the behavior of the
accused and thereafter on their return, the husband of the complainant
went to take advice and thereafter the complaint was filed. It clearly
transpires that the complaint is filed as an afterthought and if in fact the
accused had threatened the complainant, she would have immediately
informed her husband about the incident.
10. In view of the settled position of law in the decisions of
Chandrappa (supra) and Sri Dattatraya (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
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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.
11. The impugned learned 3rd Additional Sessions Judge, Banaskantha
at Palanpur in Special (ATRO) Case No. 94 of 2009 on 30.08.2010, 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)
VVM
