Gujarat High Court
State Of Gujarat vs Zalori Iqbalbhai Karimbhai on 28 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1827 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
ZALORI IQBALBHAI KARIMBHAI & ANR.
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Appearance:
MS.JIRGA JHAVERI, APP for the Appellant(s) No. 1
DHRUVIK K PATEL(7769) for the Opponent(s)/Respondent(s) No. 2
MR PRATIK B BAROT(3711) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 28/02/2025
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 & Special Judge, Fast Track Court No. 2, Patan (hereinafter
referred to as "the learned Trial Court") in Special (ATRO) Case No. 40
of 2008 on 23.07.2010, whereby, the learned Trial Court has given the
benefit of doubts acquitted the respondent for the offence punishable
under Sections 504, 506(2) and 186 of the Indian Penal Code, 1860
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(hereafter referred to as "IPC" for short) and Section 3(1)(10) of the
Scheduled Tribes and Scheduled Castes (Prevention of Atrocities) Act,
1989 (hereafter referred to as "the Atrocities Act" for short) and Section
135 of the Bombay Police 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.
2. The brief facts that emerge from the record of the case are as
under:
2.1 On 18-12-2007, at around 9.30 a.m., the accused had placed sofa
sets, chairs, etc. on the public space in Siddhpur town, Opposite 360
window house in the area belonging to the Nagarpalika and had made an
encroachment and the complainant and witnesses went to remove the
encroachment, and at that time, the accused got angry and abused the
complainant and witnesses and obstructed the duty of the public servant.
The accused took a sword and threatened to kill them and as ther were
members of the Scheduled Caste in the team, the accused uttered caste-
slurs and the complainant Dharmendrakumar N. Ghori, Surveyor,
Siddhpur Nagar Palika filed a complaint before the Siddhpur Police
Station on the same day, which was registered at Siddhpur Police Station,
under Sections 504, 506(2) and 186 of IPC, Section 3 (1)(10) of the
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Scheduled Tribes and Scheduled Castes (Prevention of Atrocities), Act
and Section 135 of Bombay Police Act.
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 the learned Judicial Magistrate, First Class,
Siddhpur and as the said offences against the accused were exclusively
triable by the Court of Sessions, the case was committed to Sessions the
case was committed to the Sessions Court, as per the provisions of
Section 209 of the Code of Criminal Procedure and the case was
registered Special (ATRO) Case No. 40 of 2008.
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. 10 was
framed against the accused and the statement of the accused was
recorded at Exh. 11, 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 twelve oral evidences and eight
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 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 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
and learned advocate Mr. Pratik Barot for respondent No. 1. 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 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 which is
the parental home of the deceased. 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 must be allowed.
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6. Learned advocate Mr. Pratik Barot appearing for the respondent-
original accused submits that the judgment and order has been passed
after appreciation of all the evidence and the learned Court has
appreciated the evidence in proper perspective and hence, the appeal of
the appellant-State must be rejected.
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
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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.
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-
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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 Dharmendra Niranjan N. Ghori at Exh. 18,
who has supported the facts of the complaint. The witness has stated that
when he and other officers went to remove any encroachment on 18th
February, 2007, the accused got angry and started abusing and threatened
to kill them but he went back to the office and thereafter gave a written
complaint to the Police Station, which is produced at Exh. 19.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the place is a public place, and it is a
cross-road, which has five to seven shops on the north side and the shops
open at 8:00 am, and there is a shopping centre on the other side,
wherein, there are eight to ten shops. That after the incident, he has not
gone to the place and no notice was given to anyone to remove the
encroachment. That there is no map produced to show the area that was
encroached and the police did not come with them, while they had gone
to remove the encroachments. That a number of persons had gathered
there and as everyone was shouting, it could not be clearly made out as to
who was speaking what words. The police Choki is at a distance of 200 to
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300 meters from the place of incident and he did not send any person to
the police Choki at the time of the incident.
9.1 The prosecution has examined Prosecution Witness No. 2
Jigarbhai Jeevanbhai Patel at Exh. 20, and the witness was working as the
Chief Officer in the Siddhpur Nagar Palika and he has supported the case
of the prosecution.
During the cross-examination by the learned for the accused, the
witness has stated that there was no application filed by any person to
remove the encroachment and the accused was orally instructed to
remove the encroachment three days prior to the incident. That the office
of the Nagar Palika is at a distance of 100 to 150 meters from the place of
incident, and before going to remove any encroachments, they are
required to take police bandobast, but he had not given any application
for police bandobast on the previous day and had not informed the police
that they were going to remove the encroachments on the day of the
incident. That at the time of the incident, a number of persons had
gathered, and he had a mobile, but he did not call the police from his
mobile.
9.2 The prosecution has examined Prosecution Witness No. 3 Rajput
Dhrujarsingh Nainji at Exh. 21 and the witness was working as a Sanitary
Inspector and was a part of the team that had gone to remove the
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encroachments. The witness has stated that when they had gone to
remove the encroachment on 18-12-2007, the accused had abused them
and as the atmosphere grew tense, they returned to the office.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the work of removing the
encroachments is of the surveyor, and his work is regarding the
sanitation. That they did not receive any information that the
encroachment made by the accused had to be removed in writing and 7-8
persons had gone to remove the encroachment. That at the time of the
incident, a number of persons had gathered, and he does not know who
was uttering what words in the crowd.
9.3 The prosecution has examined Prosecution Witness No. 4,
Imtiazbhai Nanubhai Jalori at Exh. 22 and Prosecution Witness No. 5
Sikandar Akbarbhai at Exh. 24. Both the witnesses are the panch
witnesses of the arrest panchnama produced at Exh. 23, but the witnesses
have not supported the case of the prosecution and have been declared
hostile.
9.4 The prosecution has examined Prosecution Witness No. 6
Jayantilal Bhagwandas Makwana at Exh. 25 and the witness was a
member of the team that had gone to remove the encroachments on the
date of the incident. The witness has stated that, at the time of the
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incident, the accused had taken a sword and was swinging the same and
stating that if anyone had touched him, he would cut their hands and he
was hurling abuses.
During the cross examination by the learned advocate for the
accused, the witness has stated that 200 to 500 persons had gathered, and
he cannot say as to who was speaking what words in the crowd. That he
had affixed his signature on the say of the Chief Officer, and in the
statement before the police, he has not stated that the accused had stated
that he would cut their hands.
9.5 The prosecution has examined Prosecution Witness No. 7
Prahaladbhai Manilal Rathore at Exh. 26 and the witness was the driver
of the Nagarpalika and had gone along with the tractor and trolley at the
time of the incident, but the witness has stated that he had gone to the
office but had not gone to the place of incident. The witness has not
supported the case of the prosecution and has been declared hostile.
9.6 The prosecution has examined Prosecution Witness No.8
Sureshkumar Chhaganlal at Exh. 27, and Prosecution Witness No. 9
Sureshbhai Natwarlal Bhil at Exh. 29. Both the witnesses are the panch-
witnesses of the panchnama of the place of offence, which is produced at
Exh. 28, and both the witnesses have not supported the case of the
prosecution, and have been declared hostile.
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9.7 The prosecution has examined Prosecution Witness No. 11
Jeevanbhai Mahpatbhai at Exh. 31 and the witness is the PSO, who has
registered the complaint at Siddhpur Police Station, II-C.R.No. 220 of
2007 under Sections 504, 506 (2) of the IPC, and Section 3 (1)(10) of the
Atrocities Act.
9.8 The investigating officer Prosecution Witness No. 12
Raghavendrasinh Vatsh, who has been examined at Exh. 36, and he has
narrated in detail the entire procedure that was undertaken by him during
investigation.
During the cross examination by the learned advocate for the
accused, the witness has stated that there are a number of shops
surrounding the place of incident, and he had recorded the statements of
the shopkeepers but they did not support the case of the prosecution, and
hence have not been shown as witnesses in the charge sheet. He has also
stated that he had recorded the statement of Jayanthibhai Bhagwandas,
but he had not produced any caste certificate, and he had not recorded the
statements of any persons while seizing the caste certificate. That he had
not verified whether the caste certificate produced at Exh. 37 belongs to
the same Jayanthibhai Bhagwandas, whose statement had been recorded,
and whether they are one and the same persons.
10. On minute appreciation of the entire evidence of the prosecution,
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the case of the prosecution is that the accused, at the time of the incident,
when the complainant and other team members of the Sidhpur Nagar
Palika had gone to the place of offense to remove the encroachments, had
used abuses and caste slurs and had taken the sword and threatened to kill
them. There is no documentary evidence to show that the complainant
and other team members had in fact gone to the place of incident to
remove the encroachment, and there is no map produced on record to
show that any encroachment was in fact done by the accused. The
eyewitnesses, Prosecution Witness No. 7 Prahaladbhai Manilal Rathore
and Prosecution Witness No. 10 Babubhai Shankarbhai, who as per the
case of the prosecution, were members of the team that had gone to
remove the encroachment, have not supported the case of the prosecution
and have been declared hostile. There is no iota of evidence in the form
of independent witnesses, though a number of witnesses were present to
prove that any such incident has occurred. Admittedly, the complainant
and the Chief Officer did not take police assistance before going to
remove the encroachments, and during the cross-examination it has
emerged on record that the police Choki was nearly at a distance of 150
meters from the place of incident, and the Chief Officer had his mobile
phone with him but no person was sent to the police choki to call the
police and no call was made from the mobile regarding the incident to the
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police and after the entire team returned to the office, the written
complaint was filed, which appears to be as an afterthought. There is no
iota of evidence to support the case of the prosecution, and the
Investigating Officer has admitted that the caste certificate produced at
Exh. 27 has not been seized from the person, who is said to be of the
scheduled caste, and there is no verification as to whether the caste
certificate is of the same person. Moreover, no statements of any person
have been recorded regarding the caste certificate, and the entire evidence
does not support the case of the prosecution beyond reasonable terms.
11. 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.
12. The impugned judgement and order of acquittal passed by the
learned Additional Sessions & Special Judge, Fast Track Court No. 2,
Patan in Special (ATRO) Case No. 40 of 2008 on 23.07.2010, is hereby
confirmed.
13. Bail bond stands cancelled. Record and proceedings be sent back to
the concerned Trial Court forthwith.
(S. V. PINTO, J.)
VVM
