Gujarat High Court
State Of Gujarat vs Motibhai Chelabhai Desai on 24 July, 2025
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 971 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
==========================================================
Approved for Reporting No
==========================================================
STATE OF GUJARAT
Versus
MOTIBHAI CHELABHAI DESAI & ORS.
==========================================================
Appearance:
MS. C.M. SHAH, APP for the Appellant(s) No. 1
APURVA DAVE(3777) for the Opponent(s)/Respondent(s) No. 1,2
MR HARSHIL G BHAVSAR(11263) for the Opponent(s)/Respondent(s) No. 3
MR RUTURAJ NANAVATI(5624) for the Opponent(s)/Respondent(s) No. 3
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 4
==========================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 24/07/2025
ORAL JUDGMENT
1. The 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 and Additional Sessions Judge, Court
No. 5, City Civil and Sessions Court, Ahmedabad
(hereinafter referred to as "the learned Trial Court") in
Special Sessions Case (Atro) No. 16/2005 on 09.03.2012,
whereby, the learned Trial Court was pleased acquit the
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
respondents extending benefit of doubt for the offence
punishable under Sections 294(b) and 506(2) of Indian
Penal Code and Section 3(1)(10) of Schedule Caste and
Schedule Tribes (Prevention of Atrocities) Act, 1989
(hereinafter referred to as "the Atrocity Act" for short).
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 20.03.2002, at around 12.00 noon, the accused
were playing cricket at the entrance of the street and the
complainant - Jayantibai Parsottambhai Parmar was
passing by on his bicycle and the accused no. 1 ran to
collect the ball and deliberately dashed against the
complainant and abused him. All the accused got together
and assaulted the complainant and the accused no. 2
abused the complainant with caste slurs and climbed onto
the roof of the house of the accused and hurled caste slurs
and told the complainant to vacate his house within the
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
next 15 days or he would be killed. All the accused abetted
the offence and the complainant filed a private complaint
before the Chief Metropolitan Magistrate, Ahmedabad City
under Sections 323, 294B, 506(2) and 114 of the Indian
Penal Code, Section 135(1) of the BP Act and Section 3(1)
(10) of the Atrocities Act on 22.03.2002 which was
registered as M Case No. 1 of 2022. The learned Chief
Metropolitan Magistrate was pleased to pass an order under
Section 156(3) of the Code of Criminal Procedure and sent
the case for inquiry to the Bapunagar Police Station.
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 the Metropolitan
Magistrate, Ahmedabad which came to be registered as
Criminal Cae No. 470 of 2002. As the said offences against
the accused were exclusively triable by the Court of
Sessions, the case was committed to the City Civil and
Sessions Court, Ahmedabad as per the provisions of Section
209 of Code of Criminal Procedure and the case was
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
registered as Special Sessions Case (Atro) No. 16/2005.
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. 9, 10 and 11 wherein, the accused denied the
contents of the charge and the entire evidence of the
prosecution was taken on record.
2.4 The prosecution examined 8 witnesses and produced 3
documentary evidences on record in support of their case
and 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 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 was pleased to convict
the accused nos. 1 and 2 for the offence under Section 323
and sentenced them to imprisonment till rising of the Court
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
and fine of Rs. 500/- and in default, simple imprisonment
for a period of seven days and has acquitted the
respondents extending benefit of doubt for the offence
punishable under Sections 294(b) and 506(2) of Indian
Penal Code and Section 3(1)(10) of the Atrocity Act. The
learned Trial Court was pleased to acquit the accused no. 3
from all the offences levelled against him.
3. Being aggrieved and dissatisfied with the said
judgment and order of acquittal under Section 298(B) and
506(2) of the Indian Penal Code and Section 3(1)(10) of the
Atrocity Act, the appellant - State has filed the present
appeal mainly stating that the impugned judgment 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 the
cross-examination, nothing adverse has been elicited in
favor of the respondents. The case has been proved beyond
reasonable doubt and the prosecution has successfully
established the case against the respondents and the
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
judgment and order of acquittal is unwarranted, illegal, and
without any basis in the eyes of the law and the reasons
stated while acquitting the 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 Ms. C.M. Shah for the appellant
State, learned advocate Mr. Apurva Dave for respondent
nos. 1 and 2 and learned advocate Mr. Ruturaj Nanavati
with learned advocate Mr. Harshil Bhavsar for the
respondent no. 3. Though served, none has appeared on
behalf of the respondent no. 4 to make any submissions.
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. C.M. Shah has taken this Court
through the entire evidence of the prosecution on record of
the case and submitted that the complainant has fully
supported the facts of his complaint. The impugned
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
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. 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:
"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
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
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
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
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
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.
7. 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
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.
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
8. In light of the above settled principle of law, the
evidence of the prosecution is dissected and the
prosecution has examined PW1 - Jayantibhai
Parsottambhai Parmar at Exh. 23 and the witness is the
complainant who has supported the facts of the complaint
which is produced at Exh. 24. The complainant has also
produced his caste certificate at Exh. 25. During the cross
examination by the learned advocate for the accused the
complainant has admitted that the complaint was typed
and at that time, his advocate was with him and his
advocate had taken him to the typist. He was friends with
the accused nos. 1 and 2 and in the complaint he has not
stated that caste slurs were used by the accused no. 2. The
advocate had asked him to bring his caste certificate and
his friends had told him that the advocate was a good
advocate and in the complaint he had named five persons
as the accused.
8.1 PW2 - Parshottambai Popatbhai Parmar examined at
Exh. 26 is the father of the complainant and he has
supported the case of the prosecution but in the cross
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
examination he has admitted that he was at home at the
time of the incident and is not an eyewitness to the incident
and came to know about the incident from his son.
8.2 PW3 - Jashwantbai Popatbhai Parmar examined at
Exh. 27, as per the case of the prosecution is an eyewitness
but the witness has not supported the case of the
prosecution and has been declared hostile.
8.3 PW4 - Dahiben Popatbhai Parmar examined at Exh.
28 is the mother of the complainant and during the cross
examination she has admitted that at the time of the
incident she was making chapatis and she does not know
what had transpired outside of the house.
8.4 PW5 - Shaileshbhai Maganbhai Parmar examined at
Exh. 29 is an eyewitness as per the case of the prosecution
but the witness has not supported the case of the
prosecution and has been declared hostile and has
categorically stated that he has not witnessed the incident.
8.5 PW7 - Dhanjibhai Pitambarbhai Solanki examined at
Exh. 34 is the PSO who has registered the complaint and
the witness has stated that on 20.03.2002, the complainant
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
had come and given a complaint which was under Section
323 and 114 of the Indian Penal Code and it was registered
in the NC Register. The witness has produced the copy of
the NC complaint at Exh. 35. During the cross examination
the witness has stated that when the complainant came to
the Police Station he was not bleeding from the mouth and
in the complaint he had not stated that any caste slurs
were used by any of the accused.
8.6 PW6 - Gamiti Lakshmanbhai Nathaji examined at
Exh. 33 and PW8 - Lavjibhai Kanabhai Pranami examined
at Exh. 36 are the Investigating Officers who have
investigated the offence. PW6 - Gamiti Lakshmanbhai
Nathaji has admitted that no panchnama of the place of
offence was drawn and PW8 - Lavjibhai Kanabhai Pranami
has stated that the incident was of the year 2002 but he
had received the papers for investigation in the year 2007.
No panchnama of the place of offence was drawn and in the
complaint the name of the accused no. 3 was not
mentioned but only Rajubhai was written. There was no
evidence found that the accused no. 3 was a tenant of
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
Motibhai Chelabhai and no Test Identification Parade of the
accused no. 3 was done during investigation.
9. One minute appreciation of the entire evidence of the
prosecution, the incident as per the complainant, has
occurred on 20.03.2002 and immediately thereafter the NC
Complaint was filed at the Bapunagar Police Station which
is produced at Exh. 35. In the complaint the incident has
occurred at 12.00 noon and the complaint has been given
at 18.00 hours and an NC Complaint under Section 323
and 114 of the Indian Penal Code has been registered
against three persons. Thereafter, the complainant has filed
the private complaint before the Court of the Chief
Metropolitan Magistrate on 22.03.2002 and it appears that
at the time of writing of the complaint, the advocate of the
complainant was present and in the NC Complaint which is
the first information about the incident, there are no
allegations under the Atrocity Act. There are no allegations
that any of the accused abused the complainant and even
in the examination in chief of the complainant, the
complainant does not state that any caste slurs or abuses
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
were hurled by any of the accused. Moreover, if the
evidence of the complainant is perused there is an
exaggeration as he says he was admitted for five days
whereas in the medical certificate produced at Exh. 30, it is
mentioned that the complainant was treated as an outdoor
patient and there was only one CLW 6 cm x 1.05 cm on his
chest. It is pertinent to note that the Medical Officer has not
been examined by the prosecution before the learned Trial
Court and as per the complaint of the complainant, the
accused were playing cricket at 12.00 in the afternoon at
the entrance of the street and at that time there were
number of persons who were passing by as also residents of
the street but none of the independent witnesses have been
examined. The eye witnesses that have been examined at
Exh. 27 - Jashwantbhai Popatbhai, Parmar and PW5 -
Shaileshbhai Maganbhai Parmar have both turned hostile
and not supported the case of the prosecution and the
father of the complainant examined as PW2 -
Parshottambhai Popatbhai Parmar at Exh. 26 and the
mother of the complainant PW4 - Dahiben Parshottambhai
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
Parmar examined at Exh. 28 are not eyewitnesses to the
incident and are hearsay witnesses who have clearly stated
that they have not witnessed the incident. The learned Trial
Court has discussed the entire evidence in detail and has
given reasons as to why the prosecution has not proved the
case beyond reasonable doubts.
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 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
NEUTRAL CITATION
R/CR.A/971/2012 JUDGMENT DATED: 24/07/2025
undefined
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 judgement and order of acquittal
passed by the learned Special Judge and Additional
Sessions Judge, Court No. 5, City Civil and Sessions Court,
Ahmedabad in Special Sessions Case (Atro) No. 16/2005 on
09.03.2012, 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)
VASIM S. SAIYED
