Gujarat High Court
State Of Gujarat vs Kanubhai Dadabhai Baraiya on 23 July, 2025
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R/CR.A/118/2011 JUDGMENT DATED: 23/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 118 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
KANUBHAI DADABHAI BARAIYA & ORS.
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Appearance:
MR. PRANAV DHAGAT, APP for the Appellant(s) No. 1
MR HARSHAD K PATEL for the Opponent(s)/Respondent(s) No. 1,2,3,4
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 5
RULE SERVED for the Opponent(s)/Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 23/07/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant State under Section 378
of the Code of Criminal Procedure, 1973 against the judgment and order
of acquittal passed by learned Special Judge & Presiding Judge, Fast
Track Court No. 1, Amreli, Camp Rajula (hereinafter referred to as "the
learned Trial Court") in Special (Atrocity) Case No. 47 of 2009 on
25.10.2010, whereby, the learned trial Court has acquitted the
respondents for the offence punishable under Sections 323, 324, 504 and
114 of Indian Penal Code, 1860 (hereafter referred to as "IPC" for short)
and Sections 3(1) (10) of the Scheduled Caste and Scheduled Tribes
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(Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Atrocities
Act").
1.1 The respondents 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.
2. The brief facts that emerge from the record of the case are as
under:-
2.1 On 15-12-2008, at around 8 p.m., the complainant - Bhanajibhai
Malabhai Sarvaiya had gone along with his uncle Rameshbhai Kalabhai
Sarvaiya to the shop of the accused No. 1 to drink soda and at that time,
the accused No. 1 told him to take the carcass of the dog and throw it
away. The complainant stated that he was not doing such type of work
and the accused No. 1 got angry and abused the complainant and hurled
caste-slurs. The accused No. 2 came and pulled the uncle of the
complainant in the lane and started assaulting him. The complainant
followed and at that time, the accused No. 2 took a knife from his pant
and the accused No. 1 came with an Axe and assaulted the complainant
and his uncle. The accused Nos. 3 and 4 too came with an iron pipes and
assaulted both of them and the complainant was injured on his finger. The
complainant and his uncle Rameshbhai Kalabhai Sarvaiya were taken to
the government hospital at Una and the complainant filed the complaint
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at the Nageshri Police Station under Sections 323, 324, 504 and 114 of
the IPC and Section 3 (1)(10) of the Atrocity Act which came to be
registered at Nageshri Police Station I- C.R.No.40 of 2008.
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 Court of Judicial
Magistrate First Class, Rajula and as the said offences against the accused
was exclusively triable by the Court of Sessions, the case was committed
to the Sessions Court, Amreli as per the provisions of Section 209 of the
Code of Criminal Procedure and case was registered Special (Atrocities)
Case No. 47 of 2009.
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. A charge at Exh. 8 was framed
against the accused and the statements of the accused were recorded at
Exhs. 7 to 10, 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 fourteen oral evidences and fifteen
documentary evidences to bring home charge against the accused and
after the learned Additional Public Prosecutor filed the closing pursis at
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Exh. 42, 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 but stated that he wanted to examine defense
witness. 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 respondents. The case
has been proved beyond reasonable doubts and 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
respondents are improper, perverse and bad in law. Hence the impugned
judgment and order passed by the learned Trial Court deserves to be
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quashed and set aside.
4. Heard learned APP Ms. Chetna Shah for the appellant - State and
learned advocate Mr. Harshad K Patel for the respondent Nos. 1 to 4.
Though served through whatsApp, the respondent No. 5 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 Ms. Chetna Shah 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 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 must be allowed.
6. 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 the
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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 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
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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.
7. 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. 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.
8. In light on the above settled principles of law and considering the
evidence of the prosecution on record, to bring home the charge against
the accused, the prosecution has examined Prosecution Witness No.1
Bhanjibhai Malabhai Sarvaiya at Exhibit 12, who is the complainant and
the witness has supported some facts of the complaint and during the
cross-examination by the learned advocate for the accused, the witness
has stated that after the incident, they all got together and decided in
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whose name the complaint has to be filed. The witness has admitted that
both, he and his uncle, were unconscious after the incident and when they
regained consciousness, they were at the hospital at Una and his cousin
Mohanbhai and Alubhai brought them to the hospital at Una. The doctor
was intimated by his father and the police had come to the hospital at Una
and had told them to go to the Nageshri Police Station but did not take the
complaint at the hospital. They took the treatment and then went to
Nageshri police station and the witness has admitted that the market is
near the house of the accused No. 1 and at the time of the incident, twenty
to twenty five persons had gathered there. The witness has also admitted
that his brother had a ration shop but the Sarpanch of the village and
others had given the shop to some other person to run and he had received
an amount of Rs.3000/- from the government and his uncle had received
Rs.4000/- as compensation. The witness has also admitted that he had a
grudge against the accused as the ration shop was taken from them and at
the time of the incident, it was dark and he did not recognize anyone.
There was a crowd of people gathered and he does not know, who uttered
what words and he did not hear any caste-slurs being used at the time of
the incident. As, it was dark he cannot identify in whose hand what
weapon was placed and during the rush, he fell down on the cement
concrete road and injured himself and there was no carcass of any dog at
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any place. The police had merely affixed his signature on the complaint
and he knows the accused as he is from the same village.
8.1 Prosecution Witness No. 2 - Rameshbhai Kalubhai Sarvaiya
examined at Exh.16 has also not fully supported the case of the
prosecution and during the cross examination by the learned advocate for
the accused, the witness has admitted that, at the time of the incident, it
was dark and many people had gathered and they were shouting and he
could not recognize anyone. In the crowd there were about twenty to
thirty persons and as he was injured felt unconscious and he does not
know what happened to his nephew. He regained consciousness in the
hospital and they were admitted in the hospital and he did not tell the
doctor anything about the incident. He did not verify about the carcass of
the dog and has admitted that he was injured as in the rush he fell down.
8.2 Prosecution Witness No. 3 - Malabhai Rudabhai Sarvaiya
examined at Exh.20 is not an eyewitness to the incident and is the father
of the complainant, who has stated that his son had told him about the
incident. He had accompanied his son to the police station but he sat
outside of the Police Station.
8.3 Prosecution Witness No. 4 - Alubhai Kalubhai Vada
examined at Exhibit 21 is an eyewitness to the incident as per the case of
the prosecution, but during the cross-examination, the witness has
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admitted that there were fifteen to twenty persons gathered at the time of
the incident but he does not know and cannot identify them. The incident
had carried on for about ten to fifteen minutes and he did not inform
anyone about the reason for the incident. The witness has also admitted
that the accused No. 3 has filed a complaint against him at the Nageshri
Police Station and the accused No. 3 is a relative of the accused number
one.
8.4 Prosecution Witness No. 5 - Alubhai Kalubhai Vada examined at
Exh.23 and Prosecution Witness No. 6 Abubhai Hasambhai Mansuri
examined at Exh.25 are the witnesses of the arrest panchnama, which is
produced at Exh.24 and both the witnesses have not supported the case of
the prosecution and have been declared hostile.
8.5 Prosecution Witness No. 7 - Kalubhai Maganbhai examined
at Exhibit 32 is the P.S.O, who has registered the complaint and
Prosecution Witness No. 8 Babubhai Ramjibhai Pandore examined at
Exhibit 36 is the Investigating Officer. The prosecution has also produced
the panchnama of the place of offence at Exhibit 38, the caste certificate
of the complainant at Exhibit 39, the medical certificate of the
complainant at Exhibit 40 and the medical certificate of witness Ramesh
Kalubhai Sarvaiya at Exhibit 41.
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9. On minute appreciation of the entire evidence of the prosecution,
the complainant Bhanjibhai Malabhai Sarvaiya examined at Exhibit 12
has admitted that a crowd had gathered at the place of incident and he
could not hear the caste-slurs uttered by any person. The witnesses has
admitted that in the crowd he fell down and sustained injuries and he does
not know the contents of the complaint as the police had merely asked
him his name and details and had affixed his signature on the complaint.
The complainant himself has not supported the complaint and
Prosecution Witness No. 2 the injured eyewitness Rameshbhai Kalabhai
Sarvaiya has affirmed that he was injured as a crowd had gathered and he
fell down. In fact, he has denied that he was present at the place of
offence and has not supported any incident between the accused and the
complainant.
9.1 The panchnama of the place of offence is produced at Exhibit 38
but in the panchnama there is no mention about the carcass of any dog
lying there and if the complaint is perused, the genesis of the complaint is
regarding the carcass of the dog to be disposed of as stated by the accused
No. 1 to the complainant but in the entire panchnama there is no mention
of any such carcass at the place of incident. The complainant and the
injured eyewitness have themselves not supported the case of the
prosecution and the Investigating Officer has admitted that the caste
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certificate of the complainant was not produced at the time of filing of the
complaint. Moreover, the caste certificate has not been verified and there
is no evidence that the caste certificate produced at Exhibit 39 belongs to
the complainant. Even otherwise, as per the say of the complainant, he
and the injured eyewitness Rameshbhai Kalabhai Sarvaiya were taken to
the Civil Hospital, Una but no medical officer has been examined and the
medical certificate of the complainant has been produced at Exhibit 40
and the medical certificate of the injured eyewitness Rameshbhai
Kalabhai Sarvaiya has been produced at Exhibit 41 and both the
certificates show minor injuries on the complainant as well as the injured
eyewitness and both of them have stated that after the incident they had
fallen down in the rush and had injured themselves and they were
unconscious and they regained consciousness only in the hospital and
they did not tell the medical officer any history about the incident. The
entire evidence on record has been appreciated by the learned trial Court
in detail.
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
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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.
11. The impugned judgment and order of acquittal passed by learned
Special Judge & Presiding Judge, Fast Track Court No. 1, Amreli, Camp
Rajula in Special (Atrocity) Case No. 47 of 2009 on 25.10.2010 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
