Gujarat High Court
State Of Gujarat vs Bharatbhai Baldevbhai Patel on 28 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 896 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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STATE OF GUJARAT
Versus
BHARATBHAI BALDEVBHAI PATEL & ORS.
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR JM BAROT(143) for the Opponent(s)/Respondent(s) No. 1,2,3
RULE UNSERVED for the Opponent(s)/Respondent(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 28/02/2025
ORAL JUDGMENT
1. The present appeal is 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 (Atrocities) and Additional
Sessions Judge, Mehsana (hereinafter referred to as "the
learned Trial Court") in Special Atrocity Case No. 38/2009
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on 15.02.2010, whereby, the learned Trial Court has
acquitted the respondent for the offence punishable under
Sections 323, 403 and 114 of IPC and Sections 3(1)(10) of
Schedule Caste and Schedule Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred to as "the
Atrocities Act").
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 On 14.02.2009, at around 16.30 hours near a
Banyan Tree in village Traswad, the accused nos. 1 and 2
caught hold of the complainant - Rajeshkumar Kuberdas
Solanki and the accused no. 3 gave blows on the right leg of
the complainant with a tommy and in the struggle, the
medal of Saibaba worn by the complainant fell down. The
complainant filed the complaint with the Vadnagar Police
Station under Section 323, 403 and 114 of the IPC and
Section 135 of the B.P. Act and Section 3(1)(10) of the
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Atrocities Act which was registered at Vadnagar Police
Station II - C.R. No. 18 of 2009.
2.2 The Investigating Officer recorded the statements of
the connected witnesses and seized the necessary
documents and after completion of investigation, a charge-
sheet came to be filed before the learned Judicial Magistrate
First Class, Vadnagar and as the said offences against the
accused were exclusively triable by the Court of Sessions,
the case was committed to the Sessions Court, Mehsana as
per the provisions of Section 209 of Code of Criminal
Procedure and the case was registered as Special Atrocities
Case No. 38/2009.
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. A charge at Exh. 5 was framed against the
accused and the statement of the accused were recorded at
Exhs. 6 and 8, wherein, the accused denied the contents of
the charge and the entire evidence of the prosecution was
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taken on record.
2.4 The prosecution produced the following evidence to
bring home the charge against the accused.
ORAL EVIDENCE
Sr. No. PW Name of the witness Exh.
Marwadi
DOCUMENTARY EVIDENCE
Sr. No. Particulars Exh.
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2.5 After the learned APP filed the closing pursis, 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. After the arguments of the learned APP and the
learned advocate for the accused were heard, the learned
Trial Court by the impugned judgement and order was
pleased to acquit the accused from the charges levelled
against him.
3. Being aggrieved and dissatisfied with the judgement
and order of acquittal, the appellant State has filed the
present appeal mainly stating that the learned Trial Court
has not considered the oral and documentary evidences in
proper perspective and has erred in holding that the
prosecution has failed to prove the case beyond reasonable
doubts. The complainant has fully supported the case of the
prosecution and the caste certificate of the complainant is
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produced on record. The learned Trial Court has not
considered the evidences produced on record and even
though there is nothing on record that the incident has not
occurred, the learned Trial Court has disbelieved the case of
the prosecution. 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 and hence, the impugned judgement and order
must be quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant
State and learned advocate Mr. J.M. Barot for the
respondents. 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 that the complainant has fully
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supported the facts of his complaint. The impugned
judgement and order is perverse and learned APP has urged
this Court to quash and set aside the same and find the
respondent guilty for the offences.
6. Learned advocate Mr. J.M. Barot for the respondents
has submitted that the learned Trial Court has appreciated
all the evidences and has passed the impugned judgement
and order of acquittal which is just and proper and no
interference is required in the same. Learned advocate for
the respondent has urged this Court to reject the appeal of
the appellants.
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 regarding the scope of
interference 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 Vs. State of M.P. (2006) 10 SCC 313, this
Court stated:
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"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".
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
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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 presumption
of innocence in favour of the accused and it has finally
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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.
9. In light of the above settled principle of law, the
evidence of the prosecution is dissected and the
prosecution has examined PW1 - Rajeshkumar Kuberdas
Solanki at Exh. 12 and the witness is the complainant who
has narrated the facts of the complaint on oath. The
complainant has stated that while he was being assaulted,
he fell down and he tried to run away and threw stones at
the accused and he ran and went home and informed his
parents. That he was taken to Civil Hospital, Visnagar for
treatment where the accused came for a compromise, but
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he did not compromise the matter and filed the complaint
which is produced at Exh. 13. The caste certificate of the
complainant is produced at Exh. 14. That in his statement
recorded by the police, he has stated that one month ago,
the accused no. 2 had filed a case under the Prohibition Act
against him and the incident has occurred because of that
case. During the cross-examination by the learned advocate
for the accused, the witness has stated that the incident
had occurred in the afternoon and he went to the Visnagar
Hospital at around 06.00 pm. That in his complaint, he has
not stated that the accused had used caste slurs and when
the case under the Prohibition Act was filed against him, he
had pleaded guilty to the office. That he does not know who
had hit him near the eye.
9.1 The prosecution has examined PW2 - Mafabhai
Kachrabhai Vankar at Exh. 17 and the witness has stated
that he is a handicapped person and is residing at Traswad
and every afternoon he goes to the Banyan Tree to sit at
that place. On the day of the incident, he was sitting at
around 04.00 pm and the accused came and sat near the
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Banyan tree and were talking and his nephew - the
complainant came and at that time, the accused no. 2 told
him why he was giving abuses and his nephew told them to
beat him. That all the accused assaulted his nephew and
the accused no. 3 had a tommy by which a blow was given
on the right leg of the complainant. That he does not know
whether the complainant had gone to the hospital for
treatment. During the cross-examination by the learned
advocate for the accused, the witness has stated that he
was aware that the accused no. 2 was the Sarpanch and
the Sarpanch had removed the encroachment of Arvindbhai
who is the cousin of the complainant. That he has weak
eyesight and he did not see on which part of the leg did the
accused no. 3 hit the complainant.
9.2 The prosecution has examined PW3 - Gargiben
Pankajbhai Patel at Exh. 20 and the witness is the Medical
Officer of General Hospital Visnagar who has stated that
she was on duty on 14.02.2009 and at around 06.10 pm,
Rajubhai Kuberbhai Solanki was brought for treatment. In
the history, he had stated that Bharatbhaibhai Patel,
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Somabhai Shankarbhai and Prafulbhai Somabhai had
assaulted him in the evening at around 04.30 with a
hockey and Prafulbhai Somabhai had hit him with a
tommy. On examination, the following injuries were found
on the body of the injured.
1. Red contusion on lower part of right thigh,
transverse size 6 cm x 3 cm.
2. Small, superficial abrasion over skin of mid 1/3rd
of lower orbital margin.
The injuries could occur with a hard and blunt object
and the witness has produced the medical certificate at
Exh. 21. During the cross-examination by the learned
advocate for the accused, the witness has stated that both
the injuries were simple and could occur if a person falls on
a hard substance. There was no swelling and if a person is
hit with a hockey or a tommy, a mark would be found at
the place where the assault has taken place.
9.3 The prosecution has examined PW4 - Hiraben
Kuberbhai Solanki at Exh. 22 and the witness is the
mother of the complainant who has stated that on
14.02.2009, her son was returning home after collecting his
wages and the accused called him and threatened him and
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assaulted him. That he was taken to the Visnagar Hospital
for treatment. During the cross-examination by the
accused, the witness has stated that she came to know
about the incident when her son came home and he was
kept for five days at the Visnagar Hospital.
9.4 The prosecution has examined PW5 - Takhaji Nathaji
Thakor at Exh. 24 and is the witness of the panch witness
of the place of offence which is produced at Exh. 25. The
witness has not supported the case of the prosecution has
been declared hostile.
9.5 The prosecution has examined PW6 - Mukesh
Mohanbhai Patel at Exh. 26 and PW7 - Ishwarji Bhawanji
Thakor at Exh. 28 and both the witnesses are the panch
witnesses of the arrest panchnama of the accused produced
at Exh. 27. Both the witnesses have not supported the case
of the prosecution and have been declared hostile.
9.6 The prosecution has examined PW8 - Poonamchand
Narayanchand Marwadi at Exh. 29 and PW9 - Prahladbhai
Shambhubhai Patel at Exh. 31 and both the witnesses are
the panch witnesses of the panchnama regarding the body
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of the complainant which is produced at Exh. 30. Both the
witnesses have not supported the case of prosecution and
have been declared hostile and have been cross examined
at length by learned APP.
9.7 The prosecution has examined PW10 - Sarifkhan
Rasidkhan Pathan at Exh. 33 and the witness is the PSO
who has registered the complaint of the complainant at
Vadnagar II C.R. No. 18 of 2009 at Station Diary Entry No.
2 of 2009 and has produced the extract of the Station Diary
at Exh. 34.
9.8 The prosecution has examined PW11 - Khimjibhai
Tulji Baranda at Exh. 37 and the witness is the
Investigating Officer who has narrated in detail the
procedure that he had undertaken during investigation of
the offence. During the cross-examination by the learned
advocate for the accused, the witness has stated that in the
complaint and in the statement of Mafaji and Hiraben it is
not mentioned that the accused had used any caste slurs
and there was a dispute between the accused and the
complainant earlier wherein the accused had filed a case
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under the Prohibition Act against the complainant. That in
the panchnama of the body of the complainant, it is
mentioned that there was a cotton thread and a string of
beads in the neck of the complainant and there was a
medal in the cotton thread.
10. On reappreciation of the entire evidence of the
prosecution the complaint does not disclose any caste slurs
used by the accused at the time of the incident and in the
evidence it has emerged that there was a dispute between
the parties earlier as the accused had filed a case under the
Prohibition Act against the complainant. Admittedly, the
incident has occurred in the public place but there are no
independent witnesses examined regarding the incident.
The learned Trial Court has appreciated each and every
evidence and on re-appreciation of the entire evidence, the
prosecution has not proved the case beyond reasonable
doubts.
11. In view of the settled position of law in the decisions of
Chandrappa (supra), the learned Trial Court has
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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.
12. The impugned judgement and order of acquittal
passed by the learned Special Judge (Atrocities) and
Additional Sessions Judge, Mehsana in Special Atrocity
Case No. 38/2009 on 15.02.2010, is hereby confirmed.
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13. Bail bond stands cancelled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
SD/-
(S. V. PINTO,J)
VASIM S. SAIYED
