Gujarat High Court
State Of Gujarat vs Adambhai Abdulbhai Vagadiya ... on 20 February, 2025
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R/CR.A/1887/2010 JUDGMENT DATED: 20/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1887 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
ADAMBHAI ABDULBHAI VAGADIYA (MUSALMAN) & ANR.
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
JUCKY LUCKY CHAN(8033) for the Opponent(s)/Respondent(s) No. 2
MR DHAVAL M BAROT(2723) for the Opponent(s)/Respondent(s) No. 1
MS PARUL M MAHIDA(11694) 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 Special Judge,
Banaskantha, Palanpur (hereinafter referred to as "the learned Trial
Court") in Special Case No. 8 of 2009 on 28.07.2010, whereby, the
learned Trial Court has acquitted the respondents for the offence
punishable under Section 506(2) of Indian Penal 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.
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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 the complainant Pushpaben Arvindbhai Ninama was working
as Additional Taluka Development Officer in the Taluka Panchayat
Office and on 10/10/2008 16:20 Hrs., while she was working, the
accused entered into her office and was using abusive language and she
went and asked him why he was using abusive language and who was
he? That, he told that he was a reporter of the message and his name was
Aadambhai and he used caste-slurs and told her that he had her recording
and at that time, he threatened to cut her into pieces and throw her in
such way that she would not be found and hence the complainant filed
the complaint at Danta Police Station, which was registered at II-C.R.No.
3080 of 2008 for the offence under Sections 186, 504 and 506(2) of the
IPC and Section 3(1)(10) of the Atrocities Act.
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, Danta and as the said offences against the accused
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was exclusively triable by the Court of Sessions, the case was committed
to the Sessions Court, Banaskantha at Palanpur as per the provisions of
Section 209 of the Code of Criminal Procedure and case was registered
Special Case No. 8 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. 4 was framed
against the accused and the statement of the accused was recorded at
Exh. 5, 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.
ORAL EVIDENCE
Sr. P.W. Name of the witnesses Exh.
No. Nos
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DOCUMENTARY EVIDENCE
Sr. Particulars Exh.
No.
2.5 After the learned Additional Public Prosecutor filed the closing
pursis at Exh. 28, 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 state 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 the accused from all
the charges leveled against him.
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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
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 Ms. Jirga Jhaveri for the appellant State with
Mr. J.L.Chan, learned advocate for the original complainant and learned
advocate Mr. Dhaval Barot for the respondent No.1-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 Ms. Jirga Jhaveri has taken this Court through the
entire evidence of the prosecution on record of the case and submitted
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that it is settled position of law that the evidence of a single witness is
sufficient for conviction, if the same is reliable and trustworthy and in
the instances case, the evidence of all the witnesses are reliable and
trustworthy but the learned trial Court committed a grave error in
disbelieving and disregarding the evidence of the said witnesses. The
learned trial Court has not appreciated the documents and all the
witnesses have supported the say of the complainant but the learned trial
Court has, relied on the minor contradictions and omissions, passed the
impugned order. 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. Dhaval Barot for the respondent No. 1-
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. Learned advocate Mr. J.L.Chan appearing for the original
complainant has adopted the arguments canvassed by the learned
Additional Public Prosecutor appearing for the Appellant-State.
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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 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
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
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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 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.
10. 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 -
Pushpaben Arvindbhai Ninama at Exh. 6 and the witness is the
complainant, who has fully supported the facts of the complaint, which is
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produced at Exh.7. The witness has produced the caste certificate at
Exh.8.
During the cross-examination by the learned advocate for the
accused, the witness has stated that prior to Danta, she was working at
Vadali as a Mamlatdar and she had given the payment of check dam to
Rachnatmak Sangh. That the supervision of check dam is done by her
office and the check dams, for which, the payment was done, was
supervised by Shri R.P.Padhyar. That the payment was to be given after
the Supervisor and committee's completion report and she had not visited
the check dams before payment. That she had visited Jambera check
dam, Rupvas check dam and Rinchhidi check dam. That she had paid
Vasantbhai Bhatod for one check dam and the works of check dam of
Jambera, Rupvas and Rinchhdi and Jumfadi were to be paid at the rate of
Rs.69,000/- per check dam. That the work was under Shri R.P.Padhiyar
and the completion report was also submitted. The incident had occurred
at 04:20 Hrs and she filed the complaint at 06:05 Hrs at Danta Police
Station but she did not inform Danta Police Station on the telephone
about the incident. That, at the time of incident, all the staff members had
gathered and she had mentioned in the complaint that all the people had
gathered. That when the accused was abusing her, he was saying, he had
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a recording with him. That, she was given a vehicle by the Taluka
Panchayat and she could reach the Police Station in 10 minutes.
10.1 The prosecution has examined Prosecution Witness No.2 -
Kanjibhai Hemrajbhai Chaudhary at Exh.20 and the witness is the eye-
witness to the incident as he was working with the complainant and has
suffered the case of the prosecution.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the accused was a reporter of the
message and at the time of the incident, the accused had told the
complainant that he had a recording.
10.2 The prosecution has examined Prosecution Witness No. 3 -
Devendrabhai Babhubhai Vaniya at Exh.21 and the witness is the eye-
witness as he was working in the same office.
During the cross examination by the learned advocate for the
accused, the witness has stated that when Bhatiya and Chaudhary were
having discussion, he was not present and no-one had come there hearing
loud shouts of parties. That only three of them would hear what was
being said.
10.3 The prosecution has examined Prosecution Witness No. 4 -
Keshabhai Punjabhai Rathod at Exh. 22 and this witness has recorded the
complaint of the complainant.
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During the cross examination of the learned advocate for the
accused, the witness has stated that the complainant came at around
06:05 Hrs.and she had not produced any documents while filing the
complaint.
10.4 The prosecution has examined Prosecution Witness No. 5 -
Silvester Khandas Mekwan at Exh. 27 and the witness is the
Investigating Officer who has narrated all the procedure in detail that he
had undertaken during investigation for the offence.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the accused had produced a railway
ticket and he had made a statement before the police that the accused had
told the complainant that he has his recording. During investigation, it
was found that the accused had the recording of the complainant but he
has not investigated about the same and the Investigating Officer has also
not investigated what was the recording about.
11. On minute dissection of the entire evidence of the prosecution, the
infirmities in the evidence have come on record and there is no iota of
evidence that at the time of the incident, the accused used caste-slurs and
the accused was well aware of the caste of the complainant. The caste of
the complainant has not been proved by the prosecution and the caste
certificate of the complainant is produced at at Exh.8 and in the
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deposition of the complainant. The Investigating Officer has not recorded
the statement of any competent authority, who had issued the caste
certificate of the accused to the complainant and there is no evidence as
to whether the complainant was in fact a member of the Scheduled Caste
or Scheduled Tribe.
11.1 The evidence that emerges on record is that the complainant was
in-charge of making the payment for check-dams and it appears that the
complainant had made some payment where the work was not concluded
and the accused had a recording of the same but the IO has not
investigated about this aspect and hence the recordings have not come on
record. Moreover, the witnesses that have been examined by the
prosecution are subordinates to the complainant and the exact words
used by the complainant, have not been mentioned by the complainant or
the witnesses and there is no consistency in the evidence. Apparently, the
incident had occurred at 04:20 Hrs and the complainant had a
government vehicle and she had a mobile and the Police Station was
only ten minutes away but she did not immediately go to the police
station, but reached at 06:05 Hrs. The learned trial Court has appreciated
the oral and documentary evidence and the view taken by the learned
trial Court seems to be plausible one and the prosecution has has not
proved beyond reasonable doubts.
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12. 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
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, Banaskantha, Palanpur in Special Case No. 8 of
2009 on 28.07.2010 is hereby confirmed.
14. Bail bond stands cancelled. Record and proceedings be sent back to
the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VVM
