Gujarat High Court
State Of Gujarat vs Kishorbhai Khodabhai Bhatti on 20 February, 2025
NEUTRAL CITATION
R/CR.A/320/2009 JUDGMENT DATED: 20/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 320 of 2009
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
KISHORBHAI KHODABHAI BHATTI & ANR.
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR PRAVIN GONDALIYA(1974) for the Opponent(s)/Respondent(s) No. 1,2
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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 Judge, Gondal (hereinafter referred to as "the learned Trial
Court") in Sessions Case No. 93 of 2008 on 09-01-2009, whereby, the
learned Trial Court has acquitted the respondents for the offence
punishable under Section 3(1)(10) of the Scheduled Caste and Scheduled
Tribe (Prevention of Atrocities) Act, 188 (hereafter referred to as
"Atrocities Act" for short).
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1.1 The respondents are 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 accused No. 1 is the husband of deceased Geeta and accused
No. 2 is mother-in-law of deceased Geeta. The accused No. 1 and the
deceased were married for more than five years and since last one year,
the accused were physically and mentally harassing the deceased and on
17/12/2007, at around 08:30 pm, the deceased sprinkled kerosene on
herself and committed suicide. The complaint was filed by Rajeshbhai
Govindbhai Makwana at Gondal Taluka Police Station under Section
Section 3(1)(10) of the Atrocities Act and which was registered as II-C.
R.No.3094 of 2008.
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, Gondal and as the said offences against the
accused were exclusively triable by the Court of Sessions, the case was
committed to the Sessions Court, Rajkot as per the provisions of Section
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209 of the Code of Criminal Procedure and case was registered Sessions
Case No. 93 of 2008.
2.3 The accused were 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. A charge at Exh. 4 was framed
against the accused and the statements of the accused were recorded at
Exhs. 5 and 6 respectively, 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. 24, the further statement of the accused under Section 313
of the Code of Criminal Procedure, 1973 were 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
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 them under the Atrocities Act but
found the accused guilty for the offence under Section 6 of the Protection
of Civil Rights Act.
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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 the 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 and
learned advocate Mr. Pravin Gondaliya for the respondents-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 has
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submitted that the prosecution has produced oral evidences of nine
witnesses and fifteen documentary evidences but the learned trial Court
has not appreciated the evidence and has wrongly come to the conclusion
that the prosecution has not proved the case beyond reasonable doubts.
The reasons given by the learned trial Court are shaky and there are no
cogent reasons to arrive at the conclusion that the charge against the
accused are not proved. The learned trial Court has not appreciated the
entire evidence in proper perspective. 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. Pravin Gondaliya for the respondents 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
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:
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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.
(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.
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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
Rajeshbhai Govindbhai Makwana at Exh. 11 and the witness is the
complainant, who has stated that the persons of his caste are not allowed
to get a hair-cut and he along with Mansukhbhai Badhabhai Tapda,
Mohanbhai Chanabhai Makwana and Bhalabhai Muljibhai Sarvaiya and
two to four other persons went to Chandan Hair Art to have a hair cut.
The accused No. 1 was the owner of the Chandan Hair Art and they
requested the accused No. 1 to give them a hair-cut, he refused and
caught hold of their arms and pushed them out of the shop. Verbal
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altercations took place and the complainant threatened to file a
complaint. That the complainant and others went to the next shop and the
same treatment was repeated. The second shop belonged to the accused
No. 2 and the complainant filed the complaint which is produced at Exh.
During the cross examination by the learned advocate for the
accused, the witness has stated that in the village the shops close by
08:00 - 08:30 pm and he had gone to have a hair-cut at around 09:00 to
09:30 pm. That in the village generally people return home after closing
the shop and a number of persons sit outside in the front portion of the
shops. That when the complainant reached the shop, only the employee
was present and Khodabhai Sukhabhai and others were also present.
Govindbhai was the employee of the shop and he did not give the name
of Govindbhai in the complaint as he was innocent. That there was no
verbal altercation with raised voices and when he went to the next shop,
Rameshbhai Nanjibhai, the clerk of the Gram Panchayat was present.
That no verbal altercation had taken place at the second shop and besides
refusing to give them a hair- cut, no other discussion had taken place.
That they returned home thereafter, and Kalubhai Harjibhai Makwana,
Manjibhai Jethabhai, Amrishbhai Jinabhai, Rajubhai Nathubhai
Makwana, Manubhai Harjibhai, Rameshbhai, Keshubhai Somabhai and
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Bhimjibhai Tejabhai Vankar are of his caste and they all regularly have a
hair cut at the shops of the accused. That the accused No. 1 is a devotee
of the goddess and on 27/05/2008, he had gone to Nana Akadiya Village
for a function of the goddess and the accused No. 2 was not present.
10.1 The prosecution has examined Prosecution Witness No. 2 Ratabhai
Surabhai Khit at Exh: 13 and the prosecution has examined Prosecution
Witness No. 6 Pravinbhai Kanjibhai Bavariya at Exh:19 and these
witnesses are the panch-witnesses of panchnama of place of offence,
which is produced at Exh. 14. Both the witnesses have not supported the
case of the prosecution and have stated that they had merely affixed their
signatures on the panchnama as per the say of the police. The witnesses
have been declared hostile and have been cross examined at length by the
learned Additional Public Prosecutor but nothing to support the case of
the prosecution has come on record.
10.2 The prosecution has examined Prosecution Witness No. 3
Bhalabhai Modjibhai Survaiya at Exh: 15 and this witness is the eye
witness, who was along with the complainant at the time of the incident.
The witness has stated that he had gone along with the complainant and
three and four other persons to have a haircut at the shop of the accused
No. 1 and they have this problem for many years and nobody gives them
a hair cut. The accused No. 1 refused to give them a hair-cut and nothing
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else happened besides this. The accused No. 1 did not use any caste slurs
and they went to the next shop and they were refused. That nobody said
anything relating to their caste and they all went back home. During the
cross examination by the learned advocate for the accused, the witness
has stated that the other persons from his caste go to the shop of the
accused to have a hair-cut and the accused have never refused him or the
complainant for any hair-cut.
10.3 The prosecution has examined Prosecution Witness No. 4
Mohanbhai Chanabhai Makwana at Exh: 16 and this witness is the eye-
witness, who, as per the case of the prosecution, was along with the
complainant and others at the time of the incident. The witness has stated
that when they went, the accused refused to cut their hair and the accused
No. 1 also used the caste-slurs and said that he would not cut their hair.
During the cross examination by the learned advocate for the
accused, the witness has stated that he did not name the persons, who
were present with him, in the statement before the Police and he did not
go in the shop but he was standing outside. That as he was standing
outside, he does not know what conversation had taken place between the
complainant and the accused and he did not have any conversation with
the accused. That the shop in his village closed by 08:00 pm to 08:30 pm
and they had gone to the shop of the accused at around 09:00 pm to 09:30
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pm. That, at that time, there were about ten to fifteen persons in the shop.
10.4 The prosecution has examined Prosecution Witness No. 5
Khodabhai Juthabhai Dholakiya at Exh: 17 and the witness is eye-
witness, who, as per the case of the prosecution, was along with the
complainant and the others but the witness has not supported the case of
the prosecution and has stated that he goes to the shop of the accused No.
1 and the accused No. 1 has never refused to give any one a hair-cut. The
witness has been declared hostile and has been cross examined at length
but nothing to support the case of the prosecution has come on record.
10.5 The prosecution has examined Prosecution Witness No. 7 S.B.
Rawat at Exh. 20 and the witness is the Investigating Officer, who has
narrated in detail all the procedure undertaken by him during the
investigation.
During the cross examination by the learned advocate for the
accused, the witness has stated that, in the complaint, it was mentioned
that Rameshbhai Thummar a Clerk of the Gram Panchayat was getting a
shave at the time of the incident and he had heard the conversation and
Rameshbhai Thummar was an important witness but he did not record the
statement of the Ramehsbhai Thummar. That there are many residential
houses and shops at the place of the incident and he has not recorded the
statements of any neighbors or shop owners at the place of incident. That
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the incident occurred in the main bazar but he cannot point to the exact
place where the incident has occurred.
11. On minute dissection of the entire evidence of the prosecution, as
per the case of the prosecution, the complainant and other four to five
persons had gone to have a hair-cut at the shop of the accused and the
accused had refused to give them a hair-cut. The complainant has filed
the case under the Atrocities Act but there is no iota of evidence that the
accused had used any caste slurs against the complainant and others.
Prosecution Witness No. 5 Khodabhai Juthabhai Dholakiya, who was
present at the time of incident has not supported the case of the
prosecution and has been declared hostile and other eye witness-
prosecution witnesses No. 3 - Bhalabhai Modjibhai Survaiya and
Prosecution Witness No. 4 - Mohanbhai Chanabhai Makwana have
stated that no caste slurs were used at the time of incident. Moreover, the
complainant and the witnesses have stated that they and other members
of their caste regularly go to the shops of the accused to have a hair cut
and shave and they have never been refused. In the complaint,
Rameshbhai Thammar, the clerk of the Gram Panchayat was present at
the place of offence and he would be an independent witness, but his
statement has not come on record and the investigating officer has not
recorded his statement during investigation. Moreover, it has also
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emerged on record that the incident has occurred in the main bazar and at
that time a number of persons were out side and also in the shop, but the
evidence of any independent witnesses has come on record.
11.1 The learned trial Court has rightly found the accused not
guilty for the offence under the Atrocities Act and as far as granting of
probation under Section 6 of the Protection of Civil Rights Act is
concerned, the order has been passed on 09/01/2009 and the accused
have been released on a probation for a period of one year which the year
would have concluded on 09/01/2010, as the time period of the probation
is also concluded, no further discussion is required in this matter.
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
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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 Additional Sessions Judge, Gondal in Sessions Case No. 93 of
2008 on 09-01-2009, 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
