Gujarat High Court
State Of Gujarat vs Maheshji Khodaji Thakor on 8 January, 2025
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R/CR.A/415/2008 JUDGMENT DATED: 08/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 415 of 2008
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
MAHESHJI KHODAJI THAKOR & ANR.
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Appearance:
Appearance:
MR. BHARGAV PANDYA, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MADANSINGH O BAROD(3128) for the Opponent(s)/Respondent(s) No. 2
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 08/01/2025
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 (ATRO), Gandhinagar (hereinafter referred to as "the learned
Trial Court") in Special (ATRO) Case No.51 of 2006 on
23.03.2007, the learned Trial Court has acquitted the respondent for
the offence punishable under Sections 323, 504 and 114 of the
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Indian Penal Code, 1860 (hereafter referred to as "I.P.C." for short.)
Section 135 of the Gujarat Police Act, and Section 3(1)(10) of the
Scheduled Casts and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (hereinafter referred to as the Atrocities Act, for the sake
of convenience and brevity). 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 prosecution are
as under:-
2.1 The complainant- Arvindbhai Kantilal Parmar residing in
Randheja Village with his mother and was working at Kalptaru
Power Transmission, Section 28, Gandhinagar GIDC. The
complainant's sister and her three daughters live near his house.
On 18/05/2005, at around 5:00 pm, the complainant's niece,
Chandrikaben, was on her way to get her dress stitched when her
friend met her and asked why she was looking at Mahesh. As a
result, Chandrikaben's grandmother scolded the friend. The next
day, at around 10:00 am, the accused, Maheshji Thakor, came to
the complainant's house, told the complainant to meet him at the
school compound, and then left. In response, the complainant's
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mother went to the accused's house and scolded him. Later, at
around 11:00 am, the accused and others came to the
complainant's house with sticks, verbally abused him with caste
slurs, and struck him with sticks, causing injuries to his back and
hands. The present complaint was registered at Pehtapur Police
Station, under the provisions of Sections 323, 504 and 114 of the
Indian Penal Code, 1860, Section 135 of the Gujarat Police Act
and Section 3(1)(10) of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 as Criminal Case No. 3615 of
2005.
2.2 The Investigating Officer recorded the statements of the
connected witnesses and the necessary documents were seized and
after completion of investigation the police filed the chargesheet
before the Court of the Learned 8th Additional Judicial Magistrate
First Class, Gandhinagar and as the said offences against the
accused were exclusively triable by the Court of Sessions, the case
was committed to the Sessions Court, Sabarkantha as per the
provisions of Section 209 of the Code of Criminal Procedure and
the case was registered Special Case (ATRO) No. 51 of 2006.
2.3 The accused was duly served with the summons and the
accused appeared before the learned Trial Court, and it was
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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. 5 was framed against the accused and the
statement of the accused was recorded at Exh. 6, 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. PW Name of the witnesses Exh.
No
Parmar
Parmar
Patel
Chavda
Ansari
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DOCUMENTARY EVIDENCE
Sr. Particulars Exh.
No.
2.5 After the learned Additional Public Prosecutor filed the
closing pursis at Exh. 21, the further statement of the accused
under Section 313 of the Code of Criminal Procedure, 1973 was
recorded and 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
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on record and the learned Trial Court has erred in holding that the
prosecution has failed to prove the case beyond reasonable doubts.
That the learned trial Court has not appreciated the oral and
documentary evidence, which clearly proves that the accused has
uttered insulting words to the complainant, who belonged to the
scheduled caste and the learned trial Court has given undue
importance to minor contradictions and omissions. That the
impugned judgment and order of acquittal is perverse and deserves
to be quashed and set aside.
4. Heard learned APP Mr. Bhargav Pandya for the appellant State and
learned advocate Mr. M.O.Barod for the respondent No. 2 -
original complainant. Though served the respondent No. 1, original
accused has not 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 and has submitted that
the oral and documentary evidence prove that the complainant was
a member of the scheduled caste and on the date and time of the
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incident, the respondent has entered into the house of the
complainant and has assaulted him with a stick and the
complainant has fully supported the complaint on record. Witness
Savitaben Kantilal Parmar has also supported the case of the
prosecution and the prosecution has proved the case beyond
reasonable doubts but the learned trial Court has not considered the
same. That in fact, at the time of the incident, as the respondent No.
2 had assaulted the complainant with a stick, he had suffered an
injury and the medical certificate is produced at Exh: 15 and the
medical officer has also opined that the injuries were sustained one
to two hours before the complainant had come to the hospital. The
learned trial Court has not considered this aspect and learned
Additional Public Prosecutor has urged this Court to set aside the
judgment and order of acquittal and convict the respondent No. 1
for the offences.
6. Though rule has been served to the respondent No.1, no one
appears on behalf of the respondent No.1 either in person or
through advocate.
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
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in the case of Mallappa & Ors. Vs. State of Karnataka passed in
Criminal Appeal No.1162 of 2011 on 12.02.2024, wherein, the
Apex Court has observed in Para Nos. 24 to 26, as under:
"24. We may firstly discuss the position of law regarding
the scope of intervention in a criminal appeal. For, that is
the foundation of this challenge. It is the cardinal principle
of criminal jurisprudence that there is a presumption of
innocence in favour of the accused, unless proven guilty.
The presumption continues at all stages of the trial and
finally culminates into a fact when the case ends in
acquittal. The presumption of innocence gets concertized
when the case ends in acquittal. It is so because once the
Trial Court, on appreciation of the evidence on record, finds
that the accused was not guilty, the presumption gets
strengthened and a higher threshold is expected to rebut the
same in appeal.
25. No doubt, an order of acquittal is open to appeal and
there is no quarrel about that. It is also beyond doubt that in
the exercise of appellate powers, there is no inhibition on
the High Court to re-appreciate or re-visit the evidence on
record. However, the power of the High Court to re
appreciate the evidence is a qualified power, especially
when the order under challenge is of acquittal. The first and
foremost question to be asked is whether the Trial Court
thoroughly appreciated the evidence on record and gave due
consideration to all material pieces of evidence. The second
point for consideration is whether the finding of the Trial
Court is illegal or affected by an error of law or fact. If not,
the third consideration is whether the view taken by the
Trial Court is a fairly possible view. A decision of acquittal
is not meant to be reversed on a mere difference of opinion.
What is required is an illegality or perversity.
1. It may be noted that the possibility of two views in a
criminal case is not an extraordinary phenomenon. The 'two
views theory' has been judicially recognized by the Courts
and it comes into play when the appreciation of evidence
results into two equally plausible views. However, the
controversy is to be resolved in favour of the accused. For,
the very existence of an equally plausible view in favour of
innocence of the accused is in itself a reasonable doubt in
the case of the prosecution.
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Moreover, it reinforces the presumption of innocence. And
therefore, when two views are possible, following the one
in favour of innocence of the accused is the safest course of
action. Furthermore, it is also settled that if the view of the
Trial Court, in a case of acquittal, is a plausible view, it is
not open for the High Court to convict the accused by re
appreciating the evidence. If such a course is permissible, it
would make it practically impossible to settle the rights and
liabilities in the eyes of law. In Selvaraj v. State of
Karnataka,
"13. Considering the reasons given by the trial Court and on
appraisal of the evidence, in our considered view, the view
taken by the trial Court was a possible one. Thus, the High
Court should not have interfered with the judgment of
acquittal. This Court in Jagan M. Seshadri v. State of T.N.
[(2002) 9 SCC 639] has laid down that as the appreciation
of evidence made by the trial Court while recording the
acquittal is a reasonable view, it is not permissible to
interfere in appeal. The duty of the High Court while
reversing the acquittal has been dealt with by this Court,
thus:
"9. ...We are constrained to observe that the High Court
was dealing with an appeal against acquittal. It was required
to deal with various grounds on which acquittal had been
based and to dispel those grounds. It has not done so.
Salutary principles while dealing with appeal against
acquittal have been overlooked by the High Court. If the
appreciation of evidence by the trial Court did not suffer
from any flaw, as indeed none has been pointed out in the
impugned judgment, the order of acquittal could not have
been set aside. The view taken by the learned trial Court
was a reasonable view and even if by any stretch of
imagination, it could be said that another view was
possible, that was not a ground sound enough to set aside an
order of acquittal."" (emphasis supplied) In Sanjeev v.
State of H.P., the Hon'ble Supreme Court analyzed the
relevant decisions and summarized the approach of the
appellate Court while deciding an appeal from the order of
acquittal. It observed thus:-
"7. It is well settled that: -
7.1. While dealing with an appeal against acquittal, the
reasons which had weighed with the trial Court in
acquitting the accused must be dealt with, in case the
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appellate Court is of the view that the acquittal rendered by
the trial Court deserves to be upturned (see Vijay Mohan
Singh v. State of Karnataka5, Anwar Ali v. State of H.P.)
7.2. With an order of acquittal by the trial Court, the normal
presumption of innocence in a criminal matter gets
reinforced (see Atley v. State of U.P.)
7.3. If two views are possible from the evidence on record,
the appellate Court must be extremely slow in interfering
with the appeal against acquittal (see Sambasivan v. State of
Kerala)."
7.1 In Para - 36, the Apex Court, in the case of Mallappa (Supra), has
observed as under:-
"36. Our criminal jurisprudence is essentially based on the
promise that no innocent shall be condemned as guilty. All
the safeguards and the jurisprudential values of criminal
law, are intended to prevent any failure of justice. The
principles which come into play while deciding an appeal
from acquittal could be summarized as:-
(i) Appreciation of evidence is the core element of a
criminaltrial and such appreciation must be comprehensive
- inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may
result in a miscarriage of justice and is in itself a ground of
challenge;
(iii) If the Court, after appreciation of evidence, finds that
two views are possible, the one in favour of the accused
shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible
view mere possibility of a contrary view shall not justify the
reversal of acquittal;
(v) If the appellate Court is inclined to reverse the
acquittal in appeal on a re-appreciation of evidence, it must
specifically address all the reasons given by the Trial Court
for acquittal and must cover all the facts;
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(vi) In a case of reversal from acquittal to conviction, the
appellate Court must demonstrate an illegality, perversity or
error of law or fact in the decision of the Trial Court.
8. In light of the above, the entire evidence of the proseuction is
reappreciated and the Prosecution has examined Prosecution
Witness No 1- Arvindkumar Kantibhai Parmar - the original
complainant at Exh:9 and the complainant has narrated the facts as
stated in the complaint, which is produced at Exh;10. As per the
complainant, one incident had occurred on 18/05/2005, wherein,
his niece was going to the tailor and some altercation had taken
place with the accused. That on the next day, while the complainant
was sleeping in the house, the accused came, assaulted him and
abused him and also made slurs on his caste.
During the cross-examination, the complainant has stated that he
was asleep when the accused came to his house at 10:00 a.m. and
that he did not know what happened at that time. He further stated
that at the time of the incident, about twenty to twenty-five people
had gathered, and even though the Pethapur Police Station was
nearby, he went to the Civil Hospital in Gandhinagar before
proceeding to the police station. The complainant has admitted that
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the complaint does not refer to any caste slur used by the accused,
nor does it state that the accused had abused him.
8.1 The Prosecution has examined Prosecution witness No. 2
Palkeshbhai Dilipbhai Patel at Exh:11 and the witness is the panch
witness of the panchnama of the place of offence, produced at
Exh: 12 and he has fully supported the case of the prosecution. The
panchnama is produced at Exh: 12 and the place of offence , which
is a place in front of the house of the complainant below a neem
tree and at the time of the panchnama, no incriminating
circumstances were found at the place of incident but the
complainant produced a three feet long stick, which was seized by
the Investigating Officer.
8.2 The Prosecution Witness No. 3 Savitaben Kantilal Parmar
has been examined at Exh:13 and the witness is the mother of the
complainant, who has stated that she had witnessed the incident
but during the cross-examination, she has categorically stated that
she is not an eye-witness to the incident and after everyone had
dispersed, she had arrived at the scene of offence. That her son had
been admitted in the hospital for two days and in her statement,
before the Investigating Officer, she has not stated any caste-slur
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that was used by the accused. That, she does not know where the
stick had gone from her house.
8.3 The prosecution has examined Prosecution witness No. 4
Dr. Dalabhai Fusabhai Parmar at Exh:14 and the witness is the
Medical Officer who has treated the complainant. The witness has
stated that on 19/05/2005, at around 11:30 am, the complainant
had come for treatment, and in the history, he had stated that Tinaji
Khodaji Thakore had assaulted him with stick. The complainant
had sustained an irregular contused abrasion on the right side of
the neck on the lateral aspect, tenderness on the posterior aspect of
the right elbow, vertical red contusion on left scapular region and
an irregular abrasion on the anterior aspect of the right side of the
neck.
During the cross examination, the witness has admitted that he has
not sent any message to the Pethapur Police Station and the injury
sustained by the complainant were simple injuries and could be
sustained by any hard and blunt object.
8.4 The prosecution has examined Prosecution Witness No. 5
Parshottambhai Mathurdas Patel at Exh: 16 and the witness is the
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Social Welfare Officer and he has produced the caste certificate of
the complainant at Exh: 17.
8.5 The prosecution has examined the Prosecution Witness No.
6 Manubhai Ramabhai Chavda at Exh: 18. This witness is the
uncle of the complainant, who has stated that the accused had
assaulted his nephew and he had taken his nephew to the hospital
and thereafter they had gone to Pethapur Police Station where his
nephew has filed the complaint.
During the cross-examination, this witness has stated that he was
at home, while the assault and altercation had taken place.
8.5 The prosecution has examined Prosecution Witness No. 7
Pratapsinh Varvaji Rathod at Exh: 19 and the witness was working
as PSI, Pethapur Police Station and he had recorded the complaint
of the complainant and registered the same at Pethapur Police
Station being II-C.R.No. 28 of 2005 and the investigation was
deputed to the Dy.S.P., Gandhinagar.
During the cross-examination, the witness has stated that in the
complaint, the complainant had not mentioned any
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caste-slur/remarks made by the complainant and the medical
papers did not disclose the name of the accused.
8.6 The prosecution has examined Prosecution Witness No. 8
Rajendra Vishrambhai Ansari, who has been examined at Exh: 20
and the witness is the Investigating Officer, who has narrated in
detail all the procedure that was undertaken by him during the
investigation of the offence.
During the cross-examination, the witness has stated that in the
complaint, there was no caste-slur mentioned by the complainant
and there was no mention that the complainant had given the
accused any verbal shouting and the original certificate of the caste
of the complainant was not seized during the investigation. The
stick alleged to have been used in the incident, was not seized
from the accused and the witness has also not stated that the
accused had used any caste slur at the time of the incident. There
was no evidence in the investigation that any incident had occurred
on 18/05/2005 between Chandrikaben and her four friends and the
accused.
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9. On appreciation of the entire evidence of the prosecution, the
offence is under Section 3(1)(10) of the Atrocities Act and the
genesis of the incident is shown to be the incident that had
occurred on 18/05/2005 but there is no iota of evidence that any
kind of incident had occurred on 18/05/2005. The complaint that
has been produced at Exh;10 does not disclose any abusive words
or caste slurs used by the accused and none of the witnesses have
stated that the accused had used any abusive words or caste slur at
the time of incident. It is on record that that the complainant did
not go to the Police Station but went to the hospital and thereafter
went to the Police Station to give the complaint and in the history
before the Medical officer, the complainant has not stated the name
of the accused as the person who had assaulted him. It is also on
record that the stick alleged to have been used by the accused has
been seized from the complainant at the time of the panchnama of
the place of offence and there are contradictions regarding the
place of offence in the complaint as also the deposition of the
complainant. There is also evidence that, at the time of the
incident, about twenty to twenty five people had gathered but no
independent witness have been examined by the prosecution and
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no witnesses have also been examined regarding the incident that
had occurred on 18/05/2005.
10. The learned trial Court has discussed the entire evidence and has
appreciated all the oral as well as documentary evidences and has
concluded that the prosecution has falsely tried to involve the
accused in the offence and important witnesses have not been
examined. Moreover, the deposition of the complainant Savitaben
and witness Manubhai are contradictory to each other and the
learned trial Court has concluded that the prosecution has failed to
prove the offence beyond reasonable doubts and passed the
impugned judgement and order of acquittal, which is well
reasoned.
11. In view of the settled position of law in the decisions of Mallappa
(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
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leveled 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 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 (ATRO), Gandhinagar in Special (ATRO)
Case No.51 of 2006 on 23.03.2007 is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be sent back to
the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VVM
