Gujarat High Court
The State Of Gujarat vs Latifkha Umarkha Sindhi on 27 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1599 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
No
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THE STATE OF GUJARAT
Versus
LATIFKHA UMARKHA SINDHI & ORS.
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR SADIK A ANSARI(5388) for the Opponent(s)/Respondent(s) No. 1,2,3,4
UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 5
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 27/02/2025
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,
Fast Track Court No. 4, Bharuch (hereinafter referred to as "the learned
Trial Court") in Special (ATRO) Case No. 6 of 2005 on 18.03.2006,
whereby, the learned Trial Court has given the benefit of doubts
acquitted the respondents for the offence punishable under Sections 325
and 114 of Indian Penal Code, 1860 (hereafter referred to as "IPC" for
short) and Section 3(1)(10) of the Scheduled Tribes and Scheduled
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Castes (Prevention of Atrocities) Act, 1989 (hereafter referred to as "the
Atrocities Act" for short)
1.1] The respondents are hereinafter referred to as "the accused" 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 On 06-05-2004, the complainant - Gemabhai Mangadbhai Vasava,
had gone to purchase fish on his cycle at around 11:00 am and while he
was returning at 06:00 pm, he was cutting the branches of trees for his
goats in the outskirts of village Sarbhan and at that time, four watchmen
came and asked him why he was cutting the branches and all four of
them, assaulted him with sticks on his legs. That they lifted and took him
and left him at the bus stand of Sarbhan village. Rajendrabhai Ambalal
Patel who was known to him, took him to a private hospital at Sarbhan
Village for treatment. That he does not know who those persons were
and as his injuries were serious, he was referred to SSG Hosptial for
further treatment. The complainant filed the complaint at Raopura Police
Station, Vadodara City, under Sections 325, 114 of the IPC and Section
3(1)(10) of the Scheduled Casts and Scheduled Tribe (Prevention of
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Atrocities), Act, 1881, Section 135 of the Bombay Police Act, which was
registered at I-C.R.No. 36 of 2004.
2.2] The Investigating Officer recorded the statements of the
connected witnesses and collected the necessary documents and after
completion of investigation the police filed the chargesheet against the
accused before the Court of learned Judicial Magistrate, First Class,
Amod and as the said offences against the accused were exclusively
triable by the Court of Sessions, the case was committed to the Sessions
Court, Bharuch as per the provisions of Section 209 of the Code of
Criminal Procedure and the case was registered Special (ATRO) Case
No. 6 of 2005.
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 and a charge at Exh. 3 was framed
against the accused and the statements of the accused were recorded at
Exhs. 4 to 7, 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 twenty oral evidences and twelve
documentary evidences to bring home the charge against the accused and
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after the learned Additional Public Prosecutor filed the closing pursis, 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 .
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 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
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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.
Though served the respondents, none has appeared 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 submitted
that the judgment and order of acquittal is contrary to law and evidence
on record and the learned trial Court has not appreciated the direct and
indirect evidence in the case. That the complainant has supported the case
of the prosecution, which is corroborated by the deposition of the medical
officer and the witnesses have identified the accused before the learned
trial Court. The prosecution has fully proved the case beyond reasonable
doubts but the learned trial Court has relied on minor contradictions and
has given undue weightage with regard to the place of incident. That the
order passed by the learned trial Court is illegal, improper and perverse
and is required to be quashed and set aside and the appeal of the appellant
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must be allowed.
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:
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
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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.
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. That 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 of the above settled principles of law, the evidence on
record of the case is appreciated and the prosecution has examined
Prosecution Witness No. 1 Ravjibhai Lavkhadbhai at Exh. 14 and
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Prosecution Witness No. 2 Bhupendrabhai Chhaganbhai Patel at Exh. 16.
Both the witnesses are the panch-witnesses of the arrest panchnama by
which the accused Nos. 1 to 3 were arrested. Both the witnesses have
stated that they have merely affixed their signatures on the ready
panchnama on 10-05-2004 at Amod Cross Roads while they were going
on a motorcycle and they have not gone with the police to any place of
incident. That, no persons have voluntarily produced any weapons in their
presence. The witnesses have not supported the case of the prosecution
and have been declared hostile and during cross-examination by the
learned APP, nothing to support the case of the prosecution have come on
record.
9.1 The prosecution has examined Prosecution Witness No. 3 Dr.
Suketu S. Dave at Exh.17 and the witness is the Orthopedic Surgeon at
Bharuch Hospital. The witness has stated that on 02-06-2004, Gemabhai
Mangabhai Vasava was brought to his hospital with history of assault by
opposite party.The patient had taken primary treatment at SSG hospital,
Vadodara and had come for further treatment. On examination, the
following injuries were found on his body (i) fracture of left humerous
bone treated at Vadodara, (ii) open wound with fracture of tribia / fobula
on the right leg (iii) fracture of upper 1/4 tibia and fobula on the left side.
The witness has produced the injury certificate of the complainant at Exh.
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18 and has stated that the injuries could be sustained with a hard and
blunt object.
8.3 The prosecution has examined Prosecution Witness No. 4
Bhupendrabhai Chaturbhai at Exh.19 and the witness is the panch witness
of the panchnama produced at Exh.50. The witness has not supported the
case of the prosecution and has been declared hostile. During the lengthy
cross examination by the learend Additional Public Prosecutor nothing to
support the case of the prosecution have come on record.
8.4 The prosecution has examined Prosecution Witness No. 5
Gemabhai Mangalbhai Vasava at Exh.22 and the witness is the
complainant who has stated that four watchmen had beat him on legs with
sticks and had abused him with caste-slurs and had thrown him at the
Sarbhan Bus-Station. That he was admitted to Sayaji Hospital and he was
operated upon and had thereafter gone to Bharuch Hospital for further
treatment. The complainant has indentified the accused before the Court
and has produced the complaint at Exh. 23.
During the cross examination by the learned advocate for the
accused, the witness has stated that he did not take any instrument or any
weapon with him when he went to cut the branches. The road from
Dhamnat to Palej is a pakka road and many persons come to this place to
take branches for their goats. The incident did not occur near the field of
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Bhupendrabhai and the shrubs that is given to goats are with thrones
which are generally cut with a long bamboo with a shart weapon tied at
the end. That he had borrowed a sickle from some persons to cut the
branches and he had climbed on the tree and was cutting the branches.
When the accused came, he had the sickle with him , which fell down
when they assaulted him. That he shouted but no one came from and he
did not tell his son anything about the incident. That he did not know the
names of the accused at the time of the incidnet and he did not know
which village they were from. That he was not called by the Police for
any test identification parade and in the complaint, he has not described
the persons who had assaulted him.
8.5 The prosecution has examined Prosecution Witness No. 6 Hirlal
Shamjibhai at Exh.24 and the witness has produced the caste certificate of
the accused at Exh. 25. During the cross examination by the learned
advocate for the accused, the witness has stated that complainant did not
file the application for the caste certificate and besides the school leaving
certificate and affidavit, no other documents had been collected. That
generally the school leaving certificate and affidavit is required for a
caste certificate but the complainant is not educated and he did not
demand for any documents. That merely on the basis of the application,
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the caste certificate was issued and he does not know who had prepared
the certificate.
8.6 The prosecution has examined Prosecution Witness No. 7
Maheshbhai Ishwarbhai at Exh.31 and the witness has stated that on 06-
05-2004, he was at the outskirts of the village and he heard one person
crying and on asking he was told that the village people had assaulted
him. That he took him to the hospital at Sarbhan and from there, the
doctor had referred him for further treatment to SSG hospital, Vadodara.
That he took the inujured to SSG Hospital, Vadodara and the injured had
sustained injury on his leg but did not tell him who had assaulted him.
During the cross examination by the learned advocate for the
accused, the witness has stated that he had seen the injured on the
outskirts of the village and the place is a thickly populated area. That he
did not know that who was the injured person and when he was asked, he
had stated that the village people had assaulted him.
8.7 The prosecution has examined Prosecution Witness No. 8
Rajendrabhai Ambalal Patel at Exh.32 and the witness had taken the
injuried to the hosptial and he has stated that on 06-05-2004, when he was
coming to Sarbhan village, he saw the injured lying on the cross roads.
That, no one was present and he does not know, who had assaulted the
injured and as the injured wanted to hospital, he and Mahesbhai had taken
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him to Sarbhan hospital and from there to the hospital at Vadodara. The
witness has not supported the case of the prosecution and has been
declared hostile and during the cross examination by the learend APP,
nothing to support the case of the prosecution, has come on record.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the wife and son Sanjay of the injured
had come to village Sarbhan and the injured had stated that he had a
verbal altercation in the outskirts of Dhamnat village but he did not name
the persons who had assaulted him. That no police man had come while
they were with the injured at Sarbhan village and at Vadodara.
8.8 The prosecution has examined Prosecution Witness No. 9
Sanjaybhai Gemabhai Vasava at Exh.33 and the witness is the son of the
injured and he has stated that on 06-05-2004, his father had gone to
purchase fish and as he did not get fish, he went to cut the branches for
the goats. That, Maheshbhai and Rajendrabhai told him that his father
was beaten up by four watchmen and he went to look his father, but he
found the cycle of his father in the outskrits of village Khodva. That on
the road , he met one Bharwad who told him that, one person of Dhamnat
village had beaten his father and taken him on his horse. That he came
back home and went to the hospital and from there he was taken to SSG
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Hospital at Vadodara where he was treated for twenty seven days. That
his father had told him that the persons had hurled caste-slurs at him.
During the cross examination by the learned advocate for the
accused, the witness has stated that when he went to the hospital, the
ambulance was ready and in his statement before the police, the witness
has stated that some Sindhis had assaulted his father.
8.9 The prosecution has examined Prosecution Witness No. 10
Dharmisthaben Gemabhai Vasava at Exh. 34 and the witness is the wife
of the complainant and she has supported the case of the prosecution and
has stated that her husband was assaulted by the accused. During the
cross examination by the learned advocate for the accused, the witness
has stated that her husband was unconcious till he was taken to Vadodara
and had regained consciousness on the third day. That she has no
personal knowledge of the incident and they do not have any agricultural
land in the outskirts of Sarbhan and Dhamnat villages.
8.10 The prosecution has examined Prosecution Witness No. 11
Gordhanbhai Parshootambhai Makwana at Exh. 36 and the Prosecution
Witness No. 12 Pravinbhai Shanubhai Rana at Exh. 38. Both the
witnessess are the panch-witnesses of the arrest panchnama ofthe accused
No. 4 produced at Exh. 37. Both the witnesses have stated that the police
had asked him to affix him signatures on the ready panchnama and no
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persons had been arrested in their presence and no weapons had been
seized from any persons during any panchnama. The witnesses have not
supported the case of the prosecution and have been declared hostile and
have been cross examined by the learned APP but nothing to support the
case of the prosecution have come on record.
8.11 The prosecution has examined Prosecution Witness No. 13
Bhagwansinh Dungarsinh, Head Constable Buckle No. 1604, Raopura
Police Station at Exh.39 and is the witness has recorded the information
from SSG hospital and informed the ASI Shri Narendrasinh Chhatrasinh
about the incident.
8.12 The prosecution has examined Prosecution Witness No. 14
Pooonamchand Dhanabhai Baranda at Exh. 40 and the witness is the
initial Investigating Officer, who has narrated in detail all the procedure
that was undertaken by him.
8.13 The prosecution has examined Prosecution Witness No. 15 Dr.
Atulbhai B. Gupta at Exh. 44 and the witness is the Medical Officer, who
was working at SSG Hospital at Vadodara on 07-05-2004. The witness
has stated that the complainant Gemabhai Mangabhai Vasava was
brought for treatment on 07-05-2004 at 12:55 am with alleged history of
assault with Dhariya by the watchmen at around 06:00pm on 06-05-2004.
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The injured has suffered left and right tibia fracture and fracture on the
right humerous and the medical certificate has been produced at Exh.45.
8.14 The prosecution has examined Prosecution Witness No. 16
Narendrasinh Chhtatrasinh, ASI Raopura Police Station, at Exh. 46 and
the witness is the PSO, who has registered the complaint of the
complainant.
8.15 The prosecution has examined Prosecution Witness No. 17
Jaswantsinh Ratansinh, ASI Buckle No. 955, Amod Police Station at
Exh. 47. The witness has stated that on 07-05-2004, he was at the
Sarbhan Out Post when the offence at C.R.No.I-36 of 2004 under
Sections 325 and 114 ofthe IPC and Section 135 of the Gujarat Police
Act, was regsitered and had been sent to him for investigation and he had
prepared the panchnama of the place of offence, recorded the statements
of the connected witnesses and arrested all the accused. That he had
collected the medical certicicates of the complainant and had handed over
the further investigation to PSI C.B.Patel.
During the cross examination by the learned advocate for the
accused, the witness has stated that the complainant had merely stated
that the watchmen had assaulted him and at the Darbhan Beat, there are
thirty villages and every village has a different watchman. That the
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further statement of the complainant has been recorded and no test
ientification parade was conducted during investigation.
8.16 The prosecution has examined Prosecution Witness No. 18
Dineshchandra Chandulal, Buckle No. 1279 at Exh.50, and the witness
was working as PSO, Amod Police Station, and he had registered the
offence , which was received from Raopura Police Station at Amod
Police Station, C.R.No. I-36 of 2004.
8.17 The prosecution has examined Prosecution Witness No. 19
Chandravadan Bhailalbhai Patel at Exh. 51 and the witness was working
as PSI, Amod Police Station and he has investigated the offence. The
witness has stated that on recording the further statement of the
complainant, under Section 3(1)(10) of the Atrocities Act, was made out
and hence the further investigation was handed over to Dy.S.P. (SCST
Cell ). That the wife of the complainant had filed a private case before
Amod Court and the initial investigation was done by the Dy.S.P.,
Jambusar and thereafter, Dy.S.P. (SCST Cell), Bharuch.
8.18 The prosecution has examined Prosecution Witness No. 20
Dilipbhai Buckle No. 2666, Head Constable, Raopura Police Station, at
Exh. 56 and the witness has recorded the complaint of the complainant
under Sections 325 and 114 ofthe IPC and Section 135 of the Gujarat
Police Act. The witness has stated that the information was received from
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hospital duty, Head Constable Bhagwanbhai Dungarbhai and when the
complaint of the complainant - Gemabhai was taken, his son was present.
That the complainant did not identify any of the persons who had
assaulted him.
9. On minute appreciation of the entire evidence of the prosecution,
as per the case of the prosecution, the complainant was assaulted in the
outskirts of village Dhamnat by some unknown persons but the
complainant has not named the persons who had assaulted him. There is
nothing on record to show that the accused were the same persons who
had assaulted the complainant and there is nothing on record to conclude,
as to how the identity of the accused came to be known the complainant.
Admittedly, there are no eye-witnesses to the incident and even the place
of offence is not conclusive as to whether it had occurred in the outskirts
of Sarbhan Village or in the outskirts of Dhamnat village. Prosecution
Witness No. 8 Rajendrabhai Ambalal Patel is the witness, who had found
the complainant injured and had taken him to the hospital at Sarbhan and
thereafter to the SSG hospital at Vadodara but Prosecution Witness No.
10 Dharmistha Gemabhai Vasava, the wife of the complainant has stated
that the complainant was unconscious for three days and he regained
consciousness after three days. During investigation, no test identification
parade was conducted and the evidence of the complainant does not seem
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to inspire confidence and there is no iota of evidence as to whether the
accused had assaulted the complainant. The learned Trial Court has
discussed all the oral as well as documentary evidences in detail and has
concluded that the contradictory evidence of the complainant and the
witnesses cannot be relied upon and it cannot be said that the prosecution
has proved his case beyond reasonable doubts. Moreover, the view taken
by the learned Trial Court in acquitting the accused is fairly possible and
there is no illegality and perversity in the impugned judgment and order
of acquittal.
10. 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 extending benefit of doubt and acquitting the accused of the
charges levelled against him. 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
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of extending benefit of doubt and 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 judgement and order of acquittal passed by the
learned Special Judge, Fast Track Court No. 4, Bharuch (hereinafter
referred to as "the learned Trial Court") in Special (ATRO) Case No. 6 of
2005 , 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
