Gujarat High Court
State Of Gujarat vs Anil @ Mala Vashrambhai Ukani (Patel) on 9 July, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
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R/CR.A/1870/2010 JUDGMENT DATED: 09/07/2025
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IN THE HIGH Court OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1870 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
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Approved for Reporting No Yes
No
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STATE OF GUJARAT
Versus
ANIL @ MALA VASHRAMBHAI UKANI (PATEL) & ANR.
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Appearance:
MR. SOAHAM M. JOSHI, APP for the Appellant(s) No. 1
MR HD CHUDASAMA(234) for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 09/07/2025
ORAL JUDGMENT
1. This appeal filed under Section 378 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the
Code") by the State of Gujarat challenging the judgment and
order of acquittal recorded by the learned Presiding Officer, 8 th
Fast Track Court, Gondal Camp at Upleta, District: Rajkot dated
04.08.2010 rendered in Sessions Case No. 5 of 2009, whereby
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respondent - accused came to be acquitted of the charge
punishable under Section 323 of the Indian Penal Code
(hereinafter referred to as "IPC") as also under Section 3(1)(x)
of the Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989 (hereinafter referred to as "the Act")
2. As per the case of the prosecution, first-informant -
Kamlaben Valjibhai Rathod, on 07.09.2008 at about 9:00 p.m.
proceeding towards the hospital of a private Doctor through
Ramji Mandir, as she was suffering from Chikungunya, for the
purpose of getting medicine from the Doctor, respondent -
accused met her near Ramji Mandir and he abused her on her
caste and gave a slap on her face because of which there was
bleeding from her teeth. At that time, witness - Nathubhai
Punjabhai of village Bholgamda had intervened to save her.
However, respondent - accused also gave him kick and fist
blow. Therefore, witness - Nathubhai Punjabhai went away and
she also went to her home. She told about the incident to her
husband when he came back at 11:00 p.m. and since it was
too late, they went to sleep. However, on the next day, they
went to Government Cottage hospital, Upleta for the purpose
of treatment from where she was referred to Junagadh hospital
for further treatment.
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2.1 Even witness - Nathubhai Punjabhai was also
treated at Upleta Government hospital and he was also
referred to Junagadh Government hospital for the purpose of
further treatment.
2.2 At the hospital chowki, Junagadh, first-informant
gave her complaint and PSO 'B' Division Police station,
Junagadh entrusted investigation into it to PSI. PSI went to the
hospital and recorded the statement of first-informant -
Kamlaben, who was admitted to the hospital for the purpose of
treatment. Thus, he gave report to the Police station and
based on such report, an entry in the station diary was made in
Upleta Police station, which came to be registered at Upleta
Police station for the offences punishable under Section 323 of
the "IPC" as also under Section 3(1)(x) of "the Act".
2.3 Pursuant thereto, Deputy Superintendent of Police,
SC/ST Cell, Rajkot Rural, took over the investigation and he
recorded statement of witnesses at village Chikhaliya, drawn
the panchnama at the place of offence and when he came
back to the Police station, the accused was present. Therefore,
he carried out physical condition of the accused panchnama in
the presence of two panchas, and thereafter, arrest was
effected upon him. Thereafter, he went to Junagadh and
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recorded additional statements of the first-informant as also
witness - Nathubhai Punjabhai.
2.4 On conclusion of investigation, he submitted
charge-sheet in the Court of learned Magistrate, Upleta. Since
the offence alleged against the accused is exclusively triable
by the Court of Sessions/Special Court, on ensuring compliance
of the provisions of Sections 207 and 209 of "the Code", case
was committed to the Sessions Court for the purpose of trial.
2.5 On charge being framed against the accused for the
aforesaid offence, he pleaded not guilty to the charge and
claimed to be tried. Therefore, to prove the case against the
accused, prosecution had examined 15 witnesses and
produced and proved nearly 20 documents.
2.6 On recording of the evidence concluded, further
statement of the accused under Section 313 of "the Code" was
recorded.
2.7 Thereafter, on hearing the learned APP as also the
advocate for the accused, learned Judge passed the aforesaid
judgment and order of acquittal in favour of the accused.
3. This Court heard arguments of Mr. Soaham M. Joshi,
learned APP for appellant - State, as also Mr. H.D. Chudasama,
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learned advocate for the respondent - accused on 07.07.2025.
Thereafter case was posted for dictation of judgment on
08.07.2025. However, it could not be dictated, it has been kept
today. Though today, Mr. Soaham M. Joshi, learned APP is not
available, since he has conducted the matter, his name is
shown in the title as also referred to in this judgment.
4. Heard Mr. Soaham M. Joshi, learned APP for
appellant - State. He took me to the evidence adduced before
the Court as also the reasoning assigned by the learned Judge
for recording an order of acquittal. He submitted that
deposition of the first-informant is corroborated by the injury
sustained as deposed to before the Court. For the injuries over
the first-informant, two Doctors, one at Junagadh and another
at Upleta, came to be examined vide PW-6 - Dr. Kamuben
Dahyalal Sagathiya and Dr. Hiteshbhai Laljibhai Kalaria,
respectively.
4.1 As per the deposition and certificate issued by the
first Doctor, PW-7 - Dr. Hiteshbhai Laljibhai Kalaria, injured
Kamlaben gave history of slap being given to her. She
complained of pain on the face. Because of the injury, her front
tooth was bleeding and moving. Doctor gave her primary
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treatment and referred her for the further treatment and
opinion of Dentist at Government hospital, Junagadh.
Therefore, he has submitted that the story put forward by the
first-informant about accused slapping her so tightly that her
tooth was bleeding, which required treatment, which she took
at Upleta Government hospital as also Junagadh Government
hospital. Her deposition is also corroborated by the deposition
of the Doctor, who treated her.
4.2 Similarly, the injury sustained by first-informant -
Kamlaben is further corroborated by deposition of PW-6 - Dr.
Kamuben Dahyalal Sagathiya of Junagadh Government
hospital. As per her certificate dated 08.09.2008, she was
treated as indoor patient and discharged on 10.09.2008,
having admitted on 08.09.2008. The injury certificate issued by
PW-6 - Dr. Kamuben Dahyalal Sagathiya is produced at Exhibit-
21. Thus, according to the submission of learned APP, the
injury sustained by first-informant is further corroborated by
both the Doctors.
4.3 He has further submitted that not only the injury
sustained by her caused by the accused is corroborated by
medical evidence, commission of an offence as deposed to
before the Court that insult to her caste within public view, is
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also proved. She has also confirmed the presence of witness -
Nathubhai Punjabhai, who intervened and rescued her.
Therefore, it is submitted that even the person, who helped her
is also assaulted, he is also injured and his injuries were also
corroborated by evidence of Doctors with necessary
certificates. Though first-informant was declared hostile at the
instance of learned APP and permitted to cross-examine her,
she has admitted that she has stated before the Police in the
complaint that accused met her on her way and he abused and
insulted her about her caste within public view.
4.4 Not only that, as per the submission of Learned APP,
such assertion of the first-informant is also corroborated by
injured eyewitness - Nathubhai Punjabhai, who is examined as
PW-2, Exhibit-15. So far as an offence under Sections 323 of
the "IPC" and 3(1)(x) of "the Act" are concerned, though panch
witnesses have not supported the case of prosecution, fact
remains that the Police Officer, who has drawn the panchnama
at the scene of offence, stated about the same and it can be
proved through the evidence of Police Officer, who has drawn
the panchnama.
4.5 He has further submitted that the deposition of first-
informant is further corroborated by her husband, who is not
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an eyewitness, but he was informed by his wife immediately
after the incident within no time.
4.6 He has further submitted that PW-9 - Mansukhbhai
Najabhai Solanki, though declared hostile in his examination-
in-chief states that he knows accused as also the first-
informant as they are his neighbours. Though he pleaded
ignorance about any quarrel between the accused and the
first-informant but he states that accused slapped him. He has
also stated about the reason for slapping him in his
examination-in-chief.
4.7 PW-10 - Muljibhai Khimabhai Solanki, though also
did not support the case of prosecution. He has further
submitted that so far as caste of the victim is not in dispute.
PW-11 - Nainaben Pankajbhai Patadiya, Taluka Development
Officer, Taluka Panchayat, Upleta, is examined to prove caste
certificate having been countersigned by her based on the
documents produced. He has further submitted that during the
cross-examination of the said witness, she has admitted that
Exhibit-28 produced by her cannot be said to be document of
her caste. Be that as it may, since there is no serious dispute
about the caste of the first-informant, no other witness in that
respect is examined.
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4.8 He has further submitted that other Police Officers,
who have been examined as witnesses, have stated about the
investigation as also recording of First Information Report,
drawing of various panchnamas and obtaining medical injury
certificates from the hospitals in corroboration of the
prosecution case, and therefore, learned APP submitted that
since offence alleged against the accused is proved not only
for the offence under the "IPC' but also for an offence under
"the Act", the appeal is required to be allowed and respondent
- accused is required to be suitably convicted and punished for
the said offences.
5. As against that, Mr. H.D. Chudasama, learned
advocate for the respondent - accused, vehemently submitted
that as such the incident has not occurred in the manner
deposed to before the Court and for the offences alleged in the
First Information Report.
5.1 He has further submitted that though the incident
occurred at late night on 07.09.2008 when first-informant was
going to the private hospital for the purpose of treatment of
Chikungunya, after the incident also she could have straight
gone to that very Doctor, who is the nearest in terms of
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distance as also proximate in time, she went home and on the
next day, without police yaadi, she went to the Cottage
hospital, Upleta at 10:15 a.m. in the morning. No prompt
complaint came to be filed by the first-informant, if at all such
a serious offence of insult about her caste within public view is
committed by the accused.
5.2 He has further submitted that even PW-2 -
Nathubhai Punjabhai, who also claims to be injured while he
was intervening in the quarrel of first-informant and the
accused, also did not file any complaint. But surprisingly, on
the next day, i.e on 08.09.2008, he also went to the Cottage
hospital, Upleta at the same time when first-informant -
Kamlaben entered the hospital. Therefore, he has submitted
that not filing the complaint promptly creates doubt about the
genuineness of the incident and of the depositions given by
the first-informant and injured eyewitness. Even at Upleta also,
according to submission of Mr. H.D. Chudasama, learned
advocate for the respondent - accused, complaint could have
been filed but it was not done at that point of time.
5.3 He has further submitted that when depositions of
two injured eyewitness are also inconsistent, and therefore,
prosecution story is not believable at all. Though there was no
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such serious injuries found, if at all committed by the accused,
on any of the injured, both have been referred to the higher
centre for the purpose of treatment and they have been
admitted as indoor patient for two days without any cause.
5.4 Therefore, he has submitted that entering the
Cottage hospital, Upleta, at the same time, by both the injured,
though they are not related and even admitting them in
Junagadh Government hospital as indoor patient together, and
discharged on the very same date and time, creates doubt
about the genuineness of the First Information Report as
alleged in the deposition given by Nathubhai Punjabhai as the
injured eyewitness.
5.5 He has relied on decisions of the Supreme Court in
the case of Chandrappa and others v. State of
Karnataka, reported in (2007) 4 SCC 415 and in the case of
Babu Sahebagouda Rudragoudar and others v. State of
Karnataka, reported in AIR 2024 SC 2252 for the scope of
interference by the High Court in an appeal against the order
of acquittal, more particularly, para 42 and paras 39 to 42
respectively, from both the decisions, laying much stress on
the evidence adduced and the clear-cut admission by the first-
informant, he has submitted that since an order of acquittal is
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not patently perverse, if at all case of the prosecution is to be
believed, this Court, while exercising appellate powers against
an order of acquittal, may not interfere with the well-reasoned
decision recorded by the learned Judge.
5.6 He has vehemently submitted that, in an acquittal
appeal, presumption of innocence of the accused is
strengthened by the order of acquittal recorded by the learned
Sessions Judge on appreciation of evidence, and even if two
views are possible on the set of evidence produced by the
prosecution, the view which is favourable to the accused is to
be accepted, drawing attention of the Court to the clear
admission by the first-informant in the last line of her cross-
examination, it is admitted that a false case is foisted upon the
accused.
5.7 Drawing attention of the Court to her cross-
examination, more particularly the last line thereof at page 33
of the paper-book, where first-informant admitted that, 'since
accused had asked her not to sell liquor just beside Ramji
Mandir, a false complaint is filed against the accused', no other
view is possible than the view taken by the learned Judge, and
therefore, this appeal is required to be dismissed.
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6. Having heard the learned APP as also Mr. H.D.
Chudasama, learned advocate for the respondent - accused
and going through the impugned judgment and order as also
depositions of witnesses and the documents produced and
proved, let me examine whether a case is made out to
interfere in this acquittal appeal, as submitted by the learned
APP or not.
6.1 Considering the deposition of first-informant -
victim, Kamlaben - PW-1 at Exhibit-12, though it is asserted
that it is corroborated by medical evidence and the deposition
of the Doctors, it doesn't inspire confidence, as despite offence
having occurred at 8:00 - 8:30 p.m. while she was going to the
private Doctor for the treatment of Chikungunya, if any assault
is made, which requires treatment, she would have
immediately gone to the very Doctor, who is nearest, because
she was to reach that hospital in no time; however, she did not
go to the Doctor and instead, went home.
Surprisingly, on the next day, she straight went to
the Cottage hospital, Upleta instead of going to the Police
station for filing complaint. Though she may be entitled to do
that, she reached Cottage hospital, Upleta at 10:15 a.m. and
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gave history of she being slapped, without naming even the
accused on the next day morning at about 10:15 a.m.
6.2 Further surprisingly, another injured eyewitness,
who claims to be not knowing Kamlaben by name or by any
other reason, only by face, he knew her as he intervened when
accused was assaulting her, in an attempt to save her even he
received injury at the hands of accused as alleged by him in
his deposition. The said witness, though of a different village,
coincidentally reached the Cottage hospital, Upleta at the very
same time when the first-informant - Kamlaben reached there.
Though it may not be that much serious, but very fact that
without naming the accused though he is knowing him, he
gave history to Dr. Hiteshbhai Laljibhai Kalaria at Cottage
hospital, Upleta that, he was beaten with shoes, having
tenderness over face area and redness of left eye sclera in a
certificate Exhibit-26 issued by him to the witness - Nathubhai
Punjabhai
6.3 Most surprisingly, both were referred to higher
center at Government Hospital, Junagadh for the purpose of
further treatment together. However, as appearing from the
certificate Exhibit-21, issued by Dr. Kamuben Dahyalal
Sagathiya at Junagadh Government Hospital, first-informant
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has named the accused, that too, as 'Malo Patel'. Though
injury certificate Exhibit-21 issued by Dr. Kamuben Dahyalal
Sagathiya at Junagadh Government Hospital refers about the
injury to the tooth, for the likely cause of injury, expert opinion
of Dental Surgeon was necessary, as certified by her, still
however, prosecution has failed to produce any opinion by any
Dental Surgeon, if at all obtained, as suggested by Dr.
Kamuben Dahyalal Sagathiya. Still however, for such so called
injury to the tooth, she was kept as indoor patient for two days.
Again surprisingly, injured eyewitness - Nathubhai Punjabhai,
though he had also not named accused when he was treated
at Cottage hospital, Upleta before Doctor at Junagadh, as in
the history before Dr. Kamuben Dahyalal Sagathiya, he had
stated that, "yesterday i.e. on 07.09.2008 at about 9:30 p.m.,
Mala Patel has given pipe blow".
6.4 If evidence of injured eyewitness - Nathubhai
Punjabhai is seen, nowhere he has referred the accused being
known as even 'Mala Patel'. Though he claims that he hails
from village Bholgamda, he had come to Chikhaliya for the
purpose of getting medicine from the Doctor; however, he was
not knowing even the name of Doctor or even the name of the
hospital. Though he claims that he is able to identify Anilbhai
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Vashrambhai, nowhere he has stated that how he came to
know even Anilbhai Vashrambhai when he is also not knowing
first-informant - Kamlaben, as claimed in his examination-in-
chief. Furthermore, he claims in his examination-in-chief that
at Cottage hospital, Upleta he was not given any treatment,
whereas Doctor, who treated him and referred to higher
center, issued even injury certificate, which is at Exhibit-26, for
the expert opinion of Ophthalmologist.
6.5 Over and above that, as per claim made by injured
eyewitness - Nathubhai Punjabhai Bagda, he could identify
Anilbhai Vashrambhai by face, but how come he knows him as
'Anilbhai Vashrambhai' and who was 'Malo Patel', who
assaulted him, as stated before the Doctor, that too, at
Junagadh Government Hospital and not even at Upleta
hospital. Though he claims that no incident has occurred
between him and Anilbhai, but he claims that Anilbhai had
beaten him in the courtyard of hospital where Anilbhai was
beating one lady, named Kamlaben.
6.6 He has also corroborated the assertion of first-
informant - Kamlaben about insulting words towards her caste.
He claims that as he intervened, accused slapped him and
gave kick and fist blow and there was something in his hand,
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with which he was assaulted. However, witness - Nathubhai
Punjabhai has different stories to tell for the weapon of offence
and the name by whom he was beaten before both the Doctors
at Upleta as also at Junagadh.
Before Dr. Hiteshbhai Laljibhai Kalaria at Cottage
hospital, Upleta, in a history, he has stated that he was beaten
with shoes without naming anyone, who has assaulted him,
whereas before Dr. Kamuben Dahyalal Sagathiya at Junagadh
hospital, he claims that he was assaulted with pipe by 'Malo
Patel'. However injured eyewitness - PW-2 - Nathubhai
Punjabhai has failed to identify any 'Malo Patel', who assaulted
him, before the Court
6.7 Though first-informant - Kamlaben and injured
eyewitness - Nathubhai Punjabhai have not named person,
who assaulted them, it may not be important as well, they
have come out with that name before Junagadh hospital, that
too, as 'Mala Patel', a possibility cannot be ruled out that
injured eyewitness - Nathubhai Punjabhai, who is of a different
village, maybe of the caste of first-informant - Kamlaben, he is
neither knowing Kamlaben nor the person, who assaulted him
as 'Malo Patel' as also 'Anilbhai Vashrambhai'. Though he
claimed that he could identify him by face
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6.8 If deposition of first-informant - Kamlaben is seen,
in her examination-in-chief, though she has referred about the
incident that she being slapped by the accused, which landed
on her tooth, at Ramji Mandir, she claimed that accused
consumed liquor. However, in her entire examination-in-chief,
she has not referred about any insult to her caste by the
accused, that too, within public view, though she cannot be
said to be not supporting the case of prosecution, when she
omits something to depose before the Court, she cannot be
requested to be declared hostile and the learned Judge should
not have readily granted the request to cross-examine the
witness for such omission. Surprisingly, a novel idea is found
out by the learned Prosecutor requesting the Court to declare
her hostile without any reason shown and the learned Judge
granted the same, where she admitted that, it had happened
and it is so mentioned in the FIR in respect of insult to her
caste within public view committed by the accused.
6.9 Be that as it may, if it is seen with her cross-
examination and last line thereof, where she admitted that
since accused had asked her not to sell liquor besides Ramji
Mandir, a false complaint is filed by her against him, it can be
certainly concluded that she is not the witness of the truth. At
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the same time, so far as her injury is concerned, if it was such
an injury, she could have immediately taken treatment even
from the Doctor on that very day where she was to go for the
purpose of taking the treatment of Chikungunya. Not only she
went to Upleta hospital on the next day, no complaint came to
be filed by her even at Upleta Police station, since no name of
the person, who assaulted her, is given, even Doctor would not
inform the Police at Upleta. Be that as it may, at Junagadh
hospital, name of the accused, that too, as 'Malo Patel' is given
as the person, who assaulted injured.
6.10 Coupled with the fact that, according to witness -
Nathubhai Punjabhai, who is chance witness, an incident has
occurred in the courtyard of hospital where accused was
beating one lady whose name was Kamlaben, whereas
according to first-informant - Kamlaben, incident occurred at
Ramji Mandir. Though distance between the two may not be
too far, certainly it is different and distinct, as coming out from
the evidence, coupled with the fact that injured witness -
Nathubhai Punjabhai reaching Cottage hospital Upleta at the
very same time when first-informant reached there, may be a
coincidence, but both were referred to higher center for the
purpose of further treatment. Though injured witness -
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Nathubhai Punjabhai has not named Anilbhai Vashrambhai
before any Doctor and the person, who is named before the
Doctor, is not referred to by that name before the Court.
Though he claims not knowing first-informant - Kamlaben and
a suggestion is also denied about the relationship with
Kamlaben, fact remains that his deposition is also not free from
doubt, considering the aforesaid instances.
6.11 Not only that, even weapon of offence is stated
different at the Cottage hospital, Upleta as also at Junagadh
hospital. Even Police Officer has not investigated whether he is
assaulted either with the shoes or by a pipe. If at all it is
ascertained, there appears no recovery or discovery of any of
the weapons.
6.12 All these factors go to suggest that incident of
assault has not occurred, as deposed to before the Court, that
too, by the accused. At the same time, when she has admitted
that a false case has been filed against the accused for the
reasons mentioned hereinabove and for a grievance, for which
false complaint is filed, as stated by victim in the last line of
the cross-examination.
7. Since the judgment of acquittal suffers from no
patent perversity, it is also not based on misreading or
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omission to consider material evidence on record and when no
view, other than the view taken by the learned Judge is
possible from the evidence re-appreciated by this Court, it is
impossible to interfere with the well-reasoned judgment and
order of acquittal recorded by the learned Sessions Judge.
8. Therefore, in view of the decisions cited at the bar
by the learned advocate for the respondent - accused and
considering the proposition of law enunciated therein for the
scope of power of interference in an acquittal appeal, I see no
reason to interfere with the judgment and order of acquittal
recorded by the learned Judge
Hence, this appeal is dismissed.
Record and Proceedings be sent back to the trial
Court forthwith.
Sd/-
(UMESH A. TRIVEDI, J.)
Raj
