Gujarat High Court
State Of Gujarat vs Mukeshbhai Krushnakant Shah on 8 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 881 of 2008
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
MUKESHBHAI KRUSHNAKANT SHAH & ORS.
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Appearance:
Mr. Bhargav Pandya, APP for the Appellant(s) No. 1
MR. ALKESH N SHAH(3749) for the Opponent(s)/Respondent(s) No. 1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 2
UNSERVED EXPIRED (R) for the Opponent(s)/Respondent(s) No. 3
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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 Sessions Judge, Vadodara (hereinafter
referred to as "the learned Trial Court") in Atrocity Case
No.35/2001 on 14.08.2007, whereby, the learned Trial
Court has acquitted the respondents for the offence
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punishable under Sections 323, 325, 504 and 506 (2) of
Indian Penal Code, 1860 (hereafter referred to as "IPC" for
short) and Sections 3(1)(x) of Schedule Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989
(hereafter referred to as "Atrocity Act" for short).
2. The respondent nos. 1 and 2 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.
During the pendency of the appeal, the respondent no.
3 - original complainant - Bhanuprasad Durgashankar
Shrimali has expired.
3. The brief facts that emerge from the record of the case
are as under:
3.1 The complainant - Bhanuprasad Durgashankar
Shrimali was working in Mechalec Steel Product Company,
Gorwa Estate, Shed No. 3/13 as a helper since the year
1981 and on 12.10.2000 at around 08.00 am, when he had
gone for his work, the accused no. 2 who was the Manager
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called him to his cabin and at that time, the accused no. 1
who was the son of the owner of the company and the Chief
Executive was sitting in the chair near the accused no. 2.
That they tried to make him write his resignation letter and
as the complainant refused to sign the letter, they abused
him and used caste slurs on him and the accused no. 1
beat him with kicks and fist and took the duster which had
a stick at one end and hit the stick on the right hand of the
complainant. The complainant had gone for treatment as he
had sustained fracture on the tip of his right index finger
and the complaint under Sections 323, 325,504 and 506 (2)
of IPC and Sections 3(1)(x) of Schedule Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 was
filed which was registered at I-C.R.No. 209 of 2000 with
Gorwa Police Station, Vadodara on 12.10.2000.
3.2 The Investigating Officer recorded the statements of
the connected witnesses and seized the necessary
documents and after completion of investigation the police
has filed chargesheet before the Chief Judicial Magistrate,
Vadodara and as the said offences against the accused were
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exclusively triable by the Court of Sessions, the case was
committed to the Sessions Court, Vadodara as per the
provisions of Section 209 of the Code of Criminal Procedure
and case was registered as Atrocity Case No. 35/2001.
3.3 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. 17 was framed against the
accused and the statement of the accused were recorded at
Exhs. 18 and 19, wherein, the accused denied all the
contents of the charge and the entire evidence of the
prosecution was taken on record.
3.4 The prosecution has produced eight oral evidences
and 13 documentary evidences to bring home the charge
against the accused and after the learned Additional Public
Prosecutor filed the closing pursis at Exh. 86, the further
statement of the accused under Section 313 of the Code of
Criminal Procedure, 1973 were recorded and after the
arguments of the learned Additional Public Prosecutor and
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the learned advocate for the accused were heard, the
learned trial Court by the impugned judgment and order
was pleased to acquit both the accused from all the charges
leveled against him.
4. 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 respondent are
improper, perverse and bad in law. Hence the impugned
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judgment and order passed by the learned Trial Court
deserves to be quashed and set aside.
5. Heard learned APP Mr. Bhargav Pandya for the
appellant State and learned advocate Mr. Alkesh N. Shah
for the respondent. Perused the impugned judgement and
order of acquittal and have reappreciated the entire
evidence of the prosecution on record of the case.
6. 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 prosecution
has proved the case against the accused beyond reasonable
doubts and the complainant has fully supported the facts
narrated in the complaint which clearly shows that the
accused had abused the complainant as they wanted him
to resign from the work. That the complainant belonged to
scheduled caste and the respondents nos. 1 and 2 have
abused and used caste slurs against the complainant. That
they have also physically assaulted the complainant and he
had sustained fracture injury on his right index finger but
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the learned Trial Court has relied on presumptions and
omissions and has misappreciated the entire evidence.
Learned APP has urged this Court to set aside the
impugned judgement and order of acquittal and convict the
respondent nos. 1 and 2
7. Learned advocate Mr. Alkesh N. Shah for the
respondent has submitted that in the entire evidence of the
prosecution, there is no iota of evidence that the
respondents had used any caste slurs in any public view
and in fact, there is evidence on record that the people
working in the factory knew the complainant as a person of
higher caste. The learned Trial Court has appreciated all
the evidence 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
respondent has urged this court to reject the appeal of the
appellant.
8. At the outset, before discussing the facts of the
present case, it would be appropriate to refer to the
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observations of the Apex Court 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
reappreciate 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
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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.
26. 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. 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
reappreciating 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,
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"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.,
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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
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)."
8.1 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
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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
criminal trial 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;
(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.
9. 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.
10. In light on the above settled principles on law
considering the evidence on the prosecution, to bring home
the charge against the accused, the prosecution has
examined eight witnesses and the complainant has stepped
into the witness-box and has been examined at Exh. 30.
The complainant has narrated the facts as stated in the
complaint and he has stated that at the time of the
incident, three co-workers namely Ibrahim, Victor and
Ambalal were present and in their presence, both the
accused had physically and verbally assaulted him. The
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reason for the assault was that they wanted him to submit
a voluntary resignation letter but he refused to sign that
letter and he had gone to the Gorwa Police Station and filed
the complaint. That he had also taken treatment and a
fracture was detected in this right index finger. The
complainant has been cross-examined at length by the
learned advocate for the accused, wherein, he has stated
that he was working for 15 years in the company but had
never filed any complaint regarding their behaviour at any
point of time. That when he had gone in the chamber of the
accused no. 2; Ibrahimbhai, Vitthalbhai, Ambalalbhai and
Pannalal were present but he had not named them as
witnesses in the complaint. The place where the incident
had occurred was the cabin of the manager which is a
private place and any words spoken in the cabin could not
be heard outside of the cabin where the workers were
working. During the cross-examination it has also come on
record that proceedings of the complainant were pending
before the Labour Court and the documents regarding the
litigation before the Labour Court have been produced on
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record. That earlier the complainant had given an apology
letter to the company.
10.1 The prosecution has examined PW2 - Durgashankar
Manganlal Shrimali at Exh. 58 and the witness is the father
of the complainant who has supported the case of the
prosecution. During the cross-examination by the learned
advocate for the accused, the witness has stated that he
was not present at the time of the incident and he has not
witnessed the incident and has not heard any words that
were used by the accused.
10.2 The prosecution has examined PW3 - Mayurbhai
Dashratbhai Shah at Exh. 74 and the witness is the panch
witness of the panchnama of the place of offence which is
produced at Exh. 75. During the cross-examination by the
learned advocate for the accused, the witness has stated
that there is an automatic door closure on the door of the
cabin of the Manager and the rooms are sound proof and
no noise from outside can reach into the cabin and
similarly, any sound from the cabin cannot be heard
outside. That the entire place is a private place and nobody
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can enter without permission. That during the panchnama,
no duster with a stick attached at one end was found.
10.3 The prosecution has examined PW4 - Ramanbhai
Ravjibhai Solanki at Exh. 76 and the witness was working
as a machine operator in Mechalic Steel Product Company
at the time of the incident. The witness has stated that on
12.10.2000, he had gone for work as usual and left the
factory after his work at 04.00 pm but he does not know of
any incident that had taken place. That on 12.10.2000, the
complainant was not seen in the factory and during the
cross-examination by the learned advocate for the accused,
the witness has stated that besides the attendance card, no
person can enter into the factory as there is a compound
wall surrounding the factory and there is only one gate for
entry into the factory. That on 12.10.2000, the complainant
was not seen at the work place and everyone knew the
complainant as a person of higher caste in the company.
10.4 The prosecution has examined PW5 - Parsottambhai
Harmanbhai at Exh. 78 and the witness was working as a
peon in Mechalics Steel Product Company and he has
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stated that he was working in the company for the past 35
years. That at the time of incident, there were nine workers
in the factory and on 12.10.2000, he had come for duty and
after doing the cleaning work, at around 07.45 am, he had
gone to the gate to mark the attendance of the other
workers. That workers Laxmanbhai Poonambhai,
Mahendrabhai Bhupatbhai, Makboolbhai, Ramanbhai
Babubhai, Ramanbhai K., Ravjibhai, Kesrisinh, Nathabhai
Kodarbhai, etc. had come and he had taken their
attendance card and allowed them to enter into the factory
but the complainant did not come for work on that day.
That at 04.30 pm, all the workers took their attendance
card from him and no incident had occurred on 12.10.2000
in the factory. During the cross-examination by the learned
advocate for the accused, the witness has stated that the
complainant had taken his attendance card from the
witness on 11.10.2000 at around 04.30 pm and had not
come to the factory thereafter.
10.5 The prosecution has examined PW6 - Dr. Uday
Hraday Prakash at Exh. 79 and the witness is the Medical
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Officer who has treated the complainant. The witness has
stated that on 12.10.2000, while Dr. G.A. Patel was on duty
at hospital, the complainant was brought for treatment with
a yadi from Gorwa Police Station and in the history, the
complainant had stated that Mukeshbhai Shah had
assaulted him with stick at around 08.00 am on
12.10.2000. The complainant had sustained an injury on
the index finger of his right hand and there was bleeding
near the nail and after the x-ray was taken, it was found
that a fracture was sustained on the right index finger. The
witness has produced the medical certificate written by Dr.
G.A. Patel at Exh. 80. During the cross-examination by the
learned advocate for the accused, the witness has stated
that the injury was simple and he had not personally
examined the complainant. That the injury could be
sustained when the hand had forcibly dashed with any
hard and blunt object.
10.6 The prosecution has examined PW7 - Dattu Tapiram
Mahajan at Exh. 81 and the witness is the PSI, Gorwa
Police Station who had recorded the complaint of the
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complainant which was registered under Section 323, 325,
504 and 506(2) of the IPC and the Sections 3(1)(x) of the
Atrocity Act. During the cross-examination, the witness has
stated that in the complaint, the complainant had not
named any witnesses.
10.7 The prosecution has examined PW8 - Bhimsinh Tulsi
Vasava at Exh. 83 and the witness is the Investigating
Officer who has narrated in detail all the procedure that
was undertaken by him during investigation of the offence.
During the cross-examination by the learned advocate for
the accused, the witness has stated that in the complaint,
there were no eye witnesses mentioned and the place where
the alleged incident had occurred was a privately owned
place. That during investigation, there was also evidence
found that on the date of the incident, the complainant had
not come to the factory for work.
11. On minute dissection of the entire evidence of the
prosecution, the infirmities in the evidence have come on
record and there is no iota of evidence that on 12.10.2000,
the complainant was present at the place of incident except
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for the bald statement of the complainant that he was
present in the factory. The witnesses - co-workers have
stated that the complainant was not present and the
alleged incident had occurred in the cabin of the accused
which is not a public place or a place within public view.
There is evidence on record that the cabin has a automatic
door closure and any conversation taking place in the cabin
cannot be heard outside by the workers and similarly, any
noise from outside of the cabin cannot be heard in the
cabin as it is sound proof. If the entire evidence of the
complainant is perused, there are contradictory evidences
regarding the presence of the accused no. 2 at the place of
the incident and in the documents produced at Exh. 55
which is the reply to the show cause notice, it is not
mentioned by the complainant that the accused no. 2 was
present at the time of the incident in his office. As per the
complainant, three to four witnesses who were co-workers
namely Ibrahimbhai, Victorbhai, Vitthalbhai and Ambalal
were present but none of the witnesses who are supposed
to be eye witnesses to the incident have been examined by
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the prosecution. There is also a contradiction about the
weapon that is supposed to have been used by the accused
no. 1 and the document at Exh. 55 which is the reply to the
show cause notice given by the complainant states that
revolver was placed on his forehead. Hence, the evidence
regarding the weapon used at the time of the incident, is
not proved beyond reasonable doubts. As far as the medical
evidence is concerned, there is evidence that the injury on
the tip of the index finger is possible by other means also
and there is also evidence that labour proceedings were
going on between the parties.
12. On minute re-appreciation of the entire evidence of the
prosecution and the impugned judgment and order, it
appears that the learned Trial Court has thoroughly
appreciated all the evidence on record and has given due
consideration to all the material pieces of evidence. The
learned Trial Court has discussed all the oral as well as
documentary evidences and if the evidence produced by the
prosecution is examined in light of the law laid down by the
Constitution Bench in the case of Mallappa (supra), it
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appears that the learned Trial Court has arrived at findings
which are legal and proper and there are no errors of law or
facts. 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.
13. 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
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
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reason to interfere with the impugned judgment and order
and the present appeal is devoid of merits and resultantly,
the same is dismissed.
14. The impugned judgment and order passed by the
learned Sessions Judge, Vadodara in Atrocity Case No.
35/2001 on 14.08.2007, is hereby confirmed.
15. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J)
VASIM S. SAIYED
