Gujarat High Court
The State Of Gujarat vs Maherali Yakubali Saiyed on 23 September, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1930 of 2006
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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THE STATE OF GUJARAT
Versus
MAHERALI YAKUBALI SAIYED & ORS.
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Appearance:
MR. BHARGAV V. PANDYA, APP for the Appellant(s) No. 1
MR JM BUDDHBHATTI(1239) for the Opponent(s)/Respondent(s)
No. 1,2,3
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 5
UNSERVED EXPIRED (R) for Opponent(s)/Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 23/09/2025
ORAL JUDGMENT
1. This appeal is 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 Additional Sessions Judge
(7th Fast Track Judge), Anand dated 14.12.2005 in Special
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Atrocity Sessions Case No. 53 of 2004, whereby respondents -
accused came to be acquitted of the charge for the offences
punishable under Sections 323, 504, 506(2) read with Section
114 of the Indian Penal Code (hereinafter referred to as "IPC")
as also under Section 3(1)(x) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989
(hereinafter referred to as "the Act").
2. As per the case of the prosecution, on 09.07.2003,
when the first-informant - Ishwarbhai Kanjibhai Rohit was in
the field, which he hired from one Khatunbibi on crop-sharing
basis, respondent - accused were already there in the field and
on seeing the first-informant, they got enraged when first-
informant asked them why they are plowing the field as he has
already kept the said land on crop-sharing basis from
Khatunbibi. Pursuant thereto, accused got enraged and abused
first-informant. He was given 2-3 slaps as well. It is alleged that
accused uttered insulting words in respect of caste of the first-
informant. He was also threatened of dire consequences.
3. As coming out from the record, on the date of
incident, first-informant gave application to the concerned
Police station through an advocate, as coming out from
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Exhibit-33, which is FIR given to the Police station by the first-
informant. It is further coming out from the Exhibit-33 that he
went out of town thereafter. As such, application Exhibit-22,
which is stated to be given by the advocate to the Police
station on the same day i.e. 09.07.2003, is treated as an FIR by
the learned Judge, as reflected from the judgment. Be that as it
may, on registration of an FIR given to the Police station, which
is at Exhibit-33, an investigation was carried out. Statements of
witnesses were recorded, panchnamas were drawn and as
sufficient evidence was found against the accused, they came
to be charge-sheeted before the Court. Since the case was
triable by the Special Court i.e. Court of Sessions, it came to be
committed to the Court of Sessions.
3.1 Thereafter, a charge at Exhibit-2 came to be framed
against the accused. Since accused did not plead guilty and
claimed to be tried, prosecution examined 6 witnesses,
produced and proved nearly 8 documents to prove case
against the respondents - accused.
3.2 As coming out from the endorsement in the cause-
list, respondent No. 4 - Yakubali Ashrafali Saiyed is unserved
as expired and his death certificate is also attached with the
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documents of process serving agency. Hence, this appeal
stands abated for respondent No. 4 - Yakubali Ashrafali Saiyed
3.3 Respondent No. 5 i.e. original first-informant is also
joined as respondent in this appeal and notice came to be
served upon him. However, he has chosen not to appear
personally or through an advocate. Therefore, this appeal
being of the year 2006, it is taken up for hearing.
4. Mr. Bhargav V. Pandya, learned APP, took me to the
impugned judgement and order of acquittal as also the
evidence led before the Court, including the documents
produced and proved. He submitted that since evidence of
first-informant is corroborated by the PW-2 - Kirtisinh Mansinh
Chauhan with respect to utterances insulting to the caste of
the first-informant, attracting provisions of "the Act" as also
the assault on the first-informant, the case against the accused
is proved beyond reasonable doubt, and therefore, learned
Judge could not have acquitted the accused.
4.1 He has further submitted that so far as presence of
the first-informant in the field where he claimed to have sown
sesame crop is corroborated by the deposition of Khatunbibi
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Husenali Saiyed, there appears no reason to discard the
testimony of first-informant or corroboration to his testimony
by witness PW-2 - Kirtisinh Mansinh Chauhan. Therefore, he
has submitted that, on reappreciation of evidence, case
requires reconsideration and judgment and order of acquittal
be quashed and set aside and accused be convicted for the
offences charged against them and they be suitably punished.
5. As against that, Mr. J.M. Buddhbhatti, learned
advocate for the respondents - accused, submitted that there
are three different versions of the first-informant in different
written documents, including deposition before the Court, and
therefore, no reliance can be placed on his deposition. PW-2 -
Kirtisinh Mansinh Chauhan is also closely associated with the
first-informant as he is serving as Homeguard and witness -
PW-2 - Kirtisinh Mansinh Chauhan appears to be his superior.
As such, his presence, as claimed by the first-informant, in the
field, was not expected or required. Therefore, his presence is
a got up one with a view to corroborate the testimony of the
first-informant. At any rate, according to the submission of
learned advocate for the respondents, in an application given
through advocate on the date of incident i.e. 09.07.2003, to
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the concerned Police station, all accused have been assigned
different deadly weapons. Accused No.1 shown in the
judgment that Maherali is attributed Spade, accused No.2 -
Mazarali is attributed Iron Fork (Pitchfork), whereas accused
No.3 - Varishali is attributed stick, whereas accused No.4 -
Yakubali is attributed Dhariya in his hand shown in the
judgment, whereas they have been referred to as Yakubali to
be accused No.1 and his sons as accused Nos. 2, 3 and 4 being
Maherali, Mazar and Varishali, respectively. However, neither
in the FIR, Exhibit-33, nor in the deposition any weapons are
attributed to any of the accused, which is most important
deliberate omission by the first-informant.
5.1 Considering the documentary evidence offered by
the accused in an explanation to the case appearing against
him, village people have sent through registered post an
application to Thasra PSI against the first-informant as he is in
habit of filing false complaint under "the Act" against so many
persons. Even a complaint is also claimed to have been given
by Rustampura village people that the family of first-informant
is in habit of filing false complaints against them. The 7/12
abstract of Revenue Survey No. 62 of the field in question
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being certified copy thereof is also produced. The affidavit filed
by one Saiyedali, who is the son of Khatunbibi, showing that on
accepting consideration, his father i.e. husband of Khatunbibi,
waived his right in the disputed field. The disputed property is
being plowed by accused, as reflected from the certificate
issued by Talati-cum-Mantri of Village Malvan. Therefore, he
has submitted that considering the nature of evidence led
before the Court, temperament of the first-informant, as
reflected from the different applications made to the Police by
the village people, it is clear that prosecution case doesn't
inspire any confidence.
5.2 Therefore, he has submitted that since Court has
very well appreciated the evidence led before it and recorded
an order of acquittal, which is a well-reasoned one, in view of
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, while exercising appellate jurisdiction
in the acquittal appeal, unless Court finds that finding recorded
by the learned Judge is perverse and dehors the evidence
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brought on record, normally the appellate Court should not
interfere in the order of acquittal.
5.3 He has submitted that, in the aforesaid decisions of
the Supreme Court, principles have been enumerated for
exercise of appellate jurisdiction in the case of acquittal
appeal, which may kindly be considered and appeal being
without any merit, it be dismissed.
6. Having heard learned APP as also learned advocate
for the respondents - accused, on reappreciation of evidence,
let me examine whether this appeal requires any interference
by this Court, that too, while exercising appellate jurisdiction in
an acquittal appeal, keeping in mind well established principles
of law enunciated by the Supreme Court as also the High
Court.
6.1 Before reappreciating the evidence, facts
established on record with respect to relations of Khatunbibi,
who claimed to have ownership of the disputed field, which is
claimed to be given to the first-informant on crop-sharing basis
for the purpose of plowing it. Accused No.4 shown in the
judgment is real brother of husband of Khatunbibi. As
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document produced by the accused in explanation of the
evidence appeared against him, his brother had during his
lifetime given up the right in the disputed field on accepting
consideration thereof, as coming out from the affidavit filed by
the son of Khatunbibi. The accused Nos. 1 to 3 shown in the
judgment are sons of accused No.4 - Yakubali. Thus, accused
are brother in law and nephews of Khatunbibi. The relations
between Khatunbibi and the accused are not on good terms on
the death of her husband i.e. brother of accused No.4 shown in
the judgment. As claimed by the accused, Khatunbibi had
already sold out the land, which had come in her share and out
of temptation, having more share in the land, she has, through
the first-informant, filed a false case against the accused.
6.2 Keeping in mind the facts stated hereinabove about
the relations of prosecution witness - Khatunbibi and the
accused, let me examine and reappreciate the evidence led
before the Court. First of all, examining the evidence of first-
informant - PW-4 - Ishwarbhai Kanjibhai. In his evidence, he
claimed that, in the year 2003, Khatunbibi had given him the
disputed field for a year to plow it on crop-sharing basis. He
claimed to have sown sesame crop. However, when he went to
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the field on 09.07.2003 at about 9 to 10 p.m. of sesame crop,
accused No.4 and some persons there were plowing the field,
to which first-informant informed that, as possession kept by
him on crop-sharing basis for plowing, why they are entering
and plowing the field. According to the deposition of the first-
informant, to the same, accused No.4 - Yakubali abused first-
informant and insulted of his caste. Though, he has
generalized in his deposition that all accused started beating
him and uttering insulting words. However, such generalized
statement is missing in an application given through an
advocate on 09.07.2003 before the Police. As such, Exhibit-22,
which is an application, claimed to be given by the first-
informant through advocate and he straight away went out of
town, reflected that all the accused were armed with different
weapons in their hand and attempted to assault him.
6.3 It is further claimed in that application that, accused
No.4 abused and insulted him of his caste by uttering words
mentioned thereof. As such, so far as assaulting the first-
informant and uttering certain words insulting the caste of the
first-informant is not at all attributed against rest of the
accused, except Yakubali. Considering Exhibit-33, which is
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claimed to be an FIR filed pursuant to the application dated
09.07.2003, pertinently those weapons attributed to the
accused in application Exhibit-22 is missing in Exhibit-33. In
that FIR, a generalized statement against all the accused is
made that they got enraged and abused him as also insulted
him of his caste by their utterances. However, accused No.4 is
attributed slaps twice to the first-informant. He was also given
a push by him. Again, in the said written complaint Exhibit-33
filed pursuant to application dated 09.07.2003, assault on the
accused exhibiting an offence under the "IPC" is missing in it.
Thus, it is clear that at difference places, at difference stages
or different dates, first-informant has come with different
stories against the accused. Considering his conduct, exhibited
from the applications made against him by the village people,
his deposition does not inspire any confidence.
6.4 Not only that, for generalized statement about
insult to his caste against accused Nos.1 to 3 is contradictory
to his own first available version by way of an application
dated 09.07.2003, which is given through an advocate. Since a
person, who insulted first-informant of his caste, i.e. accused
No.4, is no more, case against him would abate, whereas
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remaining accused, there appears contradictory evidence and
generalized statement made against them. Therefore, to
attract provisions of "the Act", no reliance can be placed on
the deposition of the first-informant. At the same time, so far
as assault on first-informant is concerned, that is also too
generalized a statement and more particularly, again it is
contradictory and it is attributed against accused No.4 alone.
Since he has died, even "IPC" offences cannot be invoked
against rest of the accused.
6.5 Moreover, no documentary evidence is produced by
the prosecution to show that Khatunbibi was the owner or
occupier of the field so as to give it on crop-sharing basis for
plowing it to the first-informant. Not only that, the first-
informant is ignorant of even the Survey Number of the
disputed field. He has admitted that, for the disputed field,
before he accepted offer of Khatunbibi, he had not ascertained
two documentary evidence, like Village Form No. 7/12 or 8A so
as to ownership as also possession of Khatunbibi of the
disputed field. He had also pleaded ignorance that in whose
names those fields are at that relevant time. Even he is not
aware about the children of Khatunbibi, from whom he has
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kept that field for plowing on the basis of crop-sharing. Though
he is knowing that Khatunbibi is staying separately from her in-
laws at village Sevaliya. He is also aware that for the field in
dispute, there were quarrel, rough and tumble and dispute
with regard to the ownership of the same. He is also aware
that between accused and Khatunbibi, there appears no
relations of even talking.
6.6 As such, in his cross-examination, he claimed that
after giving application Exhibit-22 on 09.07.2003, he went to
Vadodara to see his ailing father in law. He has further claimed
that his wife was knowing about the same. The said assertion
is also exactly contradictory to the deposition of Police Officer,
who pursuant to an application Exhibit-22 dated 09.07.2003
visited the house of first-informant and his neighbors. As
documents produced by the PW-5 - Babulal Lotan Patil, who
initially investigated the case, reflected that Police went to the
house of first-informant and recorded statement of the wife at
Exhibit-31 and of one neighbor - Lalji Babuji Vanzara and both
have pleaded ignorance about the whereabouts of the first-
informant. This appears to be exactly contrary to the
deposition of the first-informant, as he claimed that his wife
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was knowing that he has gone to Vadodara to see his ailing
father in law. Though, in his deposition, he claimed that he
returned back from Vadodara on 30.09.2003. Thus, it is clear
that the first-informant as also even his family members are
not telling the truth before the Court.
6.7 Over and above that, his FIR, Exhibit-33 given on
25.07.2003, asserts that he had given that application dated
09.07.2003, Exhibit-22, through his advocate and he had not
even gone to give that application to the Police station. On the
contrary, he claimed that he went away out of town. Even in
that FIR, Exhibit-33 dated 25.07.2003, despite he had come
from Vadodara from the house of his father in law, he has
mentioned that, after getting his application Exhibit-22 given
through advocate to the Police station, he went out of town.
When he was to go to see his ailing father in law at Vadodara,
even he could have been specific in that FIR where he had
gone. So at each and every place, the deposition of the
complainant and his assertion is inspiring no confidence.
6.8 Over and above that, in the first version of the first-
informant by way of an application dated 09.07.2003, Exhibit-
22, exaggerated version about attributing deadly weapons to
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each of the accused went missing in the FIR, Exhibit-33, as also
in his deposition before the Court, as the investigation
concluded, no such weapons were found to have been carried
by the accused at the time of incident, as claimed by the first-
informant.
6.9 Even through which advocate that application was
given is also not mentioned by the first-informant in his FIR
Exhibit-33, otherwise, the statement could have been recorded
by the Investigating Officer and his claim and assertion made
in it could have been either corroborated or contradicted.
6.10 With a view to give very serious nature of offence to
an application dated 09.07.2003, first-informant appears to
have attributed deadly weapons to the accused in his first
version, which he claimed to have given through an advocate,
even without naming him.
6.11 Even if that first version is the correct one, person
carrying deadly weapons will never slap anyone instead of
wielding their weapons if they have got enraged. That is also
when slaps were given by only accused No.4 and by none
other person. Therefore, during the course of deposition before
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the Court, he generalized his deposition that all accused
started beating him. However, that evidence is also not
supported by any contemporaneous record. Over and above
that, for the said assault or an injury, as claimed by him in his
deposition, no treatment is taken by him, on the contrary, he
straightaway went out of town to see his ailing father in law. If
at all the crime was so serious and he was so assaulted, he
would have immediately personally gone to the Police station
and given the FIR when an offence under "the Act" as also the
"IPC" is made out and got treatment before the Doctor on that
very day.
Considering all these aspects, the deposition of the first-
informant is not inspiring any confidence.
7. Now, let us consider the deposition of PW-2 -
Kirtisinh Mansinh Chauhan, who claims to have given the said
uniform of Homeguard as first-informant is also working as
Homeguard, as deposed to by him before the Court. It is most
important that, if first-informant is working as Homeguard, he
is also very well aware of all the ingredients of all the offences
and seriousness of law and order situation as also commission
of a crime. If such a serious offence is committed, that too,
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upon himself, he would have immediately gone to the Police
instead of choosing to go to see his ailing father in law for days
together entrusting the work of giving application to an
advocate of the incident. It is nothing but a creation of
evidence, which can be concluded from his conduct, against
the accused. Since first available version attracts offence
under "the Act" as also offence under the "IPC" against
accused No.4 only and case against him abated, as such there
is no offence committed by rest of the accused. So far as not
making out a case under "the Act" is concerned, learned Judge
has also given sufficient reasons that it is not made out. Over
and above which I supplement those reasons by the present
judgment.
7.1 Now, coming back to the deposition of PW-2 -
Kirtisinh Mansinh Chauhan, who is serving as an Office In-
charge in the Homeguard since last 2 years. He claimed that
on 09.07.2003 at about 7:00 am, uniforms and articles were to
be distributed amongst homeguards at Sevaliya rest house. He
claimed that about 70% of the homeguard were present and
he distributed uniforms to them. While returning back from
Sevaliya to Anandpura at his home, since first-informant did
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not come to have the uniform, the village Rustampura where
first-informant is staying is falling on the way of Anandpura, he
went to his house. Since first-informant was not at home, he
inquired from his wife and he was told that he was at the
disputed field. As such, the said witness having no relations
with first-informant, despite that, he went to the house of the
first-informant and even knows the field, which is kept on crop-
sharing basis for plowing, to meet him so as to become witness
against the accused. Looking to his cross-examination, the
claim made by him that village of the first-informant is falling
on way to his home village is proved to be incorrect.
7.2 He claimed that disputed field is known as
'Hadiyavala field' and is known to him even prior to the
incident as informed by the first-informant. That shows the
relation of the first-informant and the witness. As such, making
enquiry from his wife as to where first-informant is, to which
she replied that, he is at the disputed field is not stated in his
statement before the Police, as admitted by the witness in his
deposition. Though he has denied that he has not stated about
presence of the accused and the first-informant in the disputed
field and there was hot exchange of words between them, it is
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proved to be a contradiction on record. As such, his presence
at the place of incident is also creating doubt if at all he has to
deliver the uniform to the first-informant as he had not come
to Sevaliya, he could have delivered the same to him on that
day. However, as coming out from his deposition, he had
informed the first-informant to have his uniform on the next
day from him. As coming out from the cross-examination of
said witness, there appears to be political rivalry in between
accused and even witness as they both belong to different
parties and there appears to be some issues with regard to
election in between them. Therefore, a possibility cannot be
ruled out that he is also created witness so as to corroborate
the deposition of first-informant. Even if it is presumed that he
corroborates the deposition of the first-informant, he has also
generalized the statement, whereas first-informant is very
specific about utterances with respect to the insult to the caste
of him attributed to accused No.4 alone, except his deposition,
where he generalized the same in contradiction with his earlier
two written versions.
8. On overall reappreciation of evidence, it appears
that reasons assigned by the learned Judge passing the
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judgment and order of acquittal are in accordance with the
evidence led before the Court. There appears no perversity in
the judgment, which calls for interference in the well-reasoned
judgement and order of acquittal recorded by the learned
Judge. On reappreciation of the said evidence, as stated
hereinabove, along with the fact that investigation into the
offence is not carried out by the Officer of the Rank as per the
provisions of the Rules, which is again not permissible, as
competent Officer has only effected the arrest and charge-
sheeted the accused.
9. Hence, I see no reason to interfere in this appeal
and it is hereby dismissed.
Record and Proceedings, if any, be sent back to the
trial Court forthwith.
Sd/-
(UMESH A. TRIVEDI, J.)
Raj
