1. Feeling aggrieved by and dissatisfied with the
judgment and order of acquittal dated 13.08.2009, passed by
Surendranagar, in Sessions Case No.10 of 2008, for the
offences punishable under Sections 147, 148, 149, 323, 324,
the Bombay Police Act, the appellant - State of Gujarat has
preferred this appeal under Section 378 of the Code of
Criminal Procedure, 1973 (for short, "the Code").
2. The prosecution case as unfolded during the trial
before the lower Court is that the incident occurred when the
complainant had gone to visit a relative's house. At that
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started abusing him. They used abusive words and threatened
him. Thereafter, the accused assaulted the complainant and
caused injuries. When the complainant's family members tried
to intervene, they were also beaten. Due to the assault, the
head and other parts. Therefore, the complaint was lodged
3. After investigation, sufficient prima facie evidence
was found against the accused person/s and therefore charge-
sheet was filed in the competent criminal Court. The charge
was framed against the accused person/s. The accused
4. In order to bring home the charge, the prosecution
has examined the witnesses and produced documentary
evidence before the Trial Court, which are described in the
Note of sending Muddamal (Seized Property) to
Regional Forensic Science Lab, Junagadh
Regional Forensic Science Lab, Junagadh -
Report forwarding letter
(5) Serological Report with forwarding letter 86
(O) Panchnama (Verification Records):
Panchnama related to Arrest / Seizure of
Muddamal:
(1) Panchnama for seizure of clothes of the injured 50
Panchnama for arrest of Jiva Malu and seizure
of weapon
(5) Panchnama for arrest of Dashrathbhai Jorubhai 61
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Exhibit
Section Description
No.
and seizure of weapon
5. After hearing the learned APP for the appellant-
State and after analysis of evidence adduced by the
prosecution, the learned trial Judge acquitted the accused for
the offences for which they were charged, by holding that the
prosecution has failed to prove the case beyond reasonable
doubt.
6. Learned APP for the appellant - State has
pointed out the facts of the case and having taken this Court
through both, oral and documentary evidence, recorded before
the learned trial Court, would submit that the learned trial
Court has failed to appreciate the evidence in true sense and
perspective; and that the trial Court has committed error in
acquitting the accused. It is submitted that the learned trial
Court ought not to have given much emphasis to the
contradictions and/or omissions appearing in the evidence and
ought to have given weightage to the dots that connect the
accused with the offence in question. It is submitted that
the learned trial Court has erroneously come to the
conclusion that the prosecution has failed to prove its case. It
is also submitted that the learned Judge ought to have seen
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that the evidence produced on record is reliable and
believable and it was proved beyond reasonable doubt that
the accused had committed an offence in question. It is,
therefore, submitted that this Court may allow this appeal by
appreciating the evidence led before the learned trial Court.
7. Though served none appeared for the respondent
nos.1 and 3.
8. In the aforesaid background, considering the oral
as well as documentary evidence on record, independently and
dispassionately and considering the impugned judgment and
order of the trial Court, the following aspects weighed with
the Court :
8.1. The prosecution has mainly relied on the complaint produced
vide exhibit-71. It is the case of the prosecution that on
12.04.2007, the accused had gone to his sister's house at Vastadi
village and at around 09:00 p.m., when he had gone for toilet
near the mobile tower, he saw Jerubhai Malubhai, accused no.2
and accused nos.5 and others using abusive language, when the
complainant said that they should not use abusive language, in
view of the fact that his sister was living in the nearby area, at
that time, accused no.1, Dashrathbhai Jerubhai, who was holding
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a dhariya, hit him on his head, accused no.2, Jerubhai Malubhai,
also was carrying a dhariya, also hit him on his head and
accused no.1-Bharatbhai put a gun on the head of the complainant
and threatened him of killing him. Accused no.4 Jeeva Malu, had
a sword and he also assaulted with the said sword on the head of
the complainant. Bharat Malu, accused no.1, was carrying a spear
by which he assaulted on the left leg of the complainant. Accused
no.3 assaulted the complainant with a wooden log (dhoka) and as
the complainant started shouting, the brother-in-law of the
complainant Bhikhubhai Ajubhai Gohel and his sister Chanduben,
arrived at the place of offence and the accused also assaulted
them, because of the said assault and because there was lot of
blood loss, the complainant fell down and thereafter, the
complainant was taken to the hospital for treatment.
8.2. The prosecution has examined as PW-1, Dr.Dhirajkumar
Jagdishprasad Trivedi, who was a Medical Officer and treating
Doctor at Mahatma Gandhi Hospital, Surendranagar. He has been
examined as PW-1, vide Exhibit 31. The medical certificate, which
was issued with respect to the treatment given to the
complainant-Darshrathbhai Mohabbatsinh, are produced vide
Exhibit 32 and the treatment papers with respect to the treatment
given to Dashrathsinh Mohabbatsinh are produced vide Exhibit 33.
The said doctor has also examined, Bhikhubhai Ajubhai and the
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medical certificate to that effect is produced vide Exhibit 35 and
the medical treatment papers with respect to the treatment given
to Bhikhubhai Ajubhai is produced vide Exhibit 36.
8.3. The said doctor has also produced the medical certificate with
respect to Chanduben Mansinh and the medical treatment papers
are produced vide Exhibit 39. The said doctor in his deposition
has categorically given details of the injury to the complainant,
Bhikhubhai Ajubhai and Chanduben Mansinh. It also transpires
from his examination-in-chief that the complainant and Bhikhubhai
Ajubhai and Chanduben Mansinh were brought to the hospital
without a police yadi and were brought to the hospital by
Anirudhsinh Mohabbatsinh Chauhan.
8.4. Thereafter, considering the injury of the complainant
Dashrathsinh Mohabbatsinh, he was treated by General Surgeon at
C.U.Shah Medical Hospital by Dr.Rudrasinh Zala, who has been
examined in as PW.2 vide Exhibit 41. In his deposition, he has
stated that he had treated the complainant on 12.04.2007. It also
transpires from his deposition that before the treatment, said
complainant was also treated at Ahmedabad Civil Hospital but no
documents pertaining to the said treatment given at Ahmedabad
Civil Hospital has been produced by the prosecution. The
certificate issued by the said doctor is produced vide Exhibit-42.
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The said doctor has been examined with respect to the treatment
given by him to the complainant Darshadsinh.
8.5. The prosecution has thereafter examined Dr.Yogendrasinh
Devisinh Solanki, vide Exhibit 48 as PW-3. The said doctor is
orthopedic surgeon at CJ Hospital, Surendranagar and the
complainant was referred to him by Dr.Rudrasinh Zala on
14.04.2007. The medical certificate to that effect is produced by
the prosecution vide Exhibit 49.
8.6. The Panchnama of recovery of weapon with respect to the
spear of which accused no.1 is alleged to be in possession of at
the time of incident is produced vide Exhibit 52 and the panch
witnesses Laxmanbhai Karsanbhai has been examined as PW-4
vide Exhibit 51 and Ranjitbhai Gohil as PW-5 vide Exhibit 53.
Both have turned hostile and have not supported the case of the
prosecution.
8.7. The recovery of Panchnama with respect to the Dharia, which
is alleged to have been recovered from accused no.2 is produced
vide Exhibit 55 and the panch witness Ajjubhai Parmar has been
examined as PW-6 vide Exhibit 54 and Pujabhai Tapubhai has
been examined as PW-7 vide Exhibit 56. Both have turned hostile
and have not supported in the case of prosecution.
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8.8. The prosecution has thereafter produced the Panchnama of
recovery of clothes of accused no.4 vide Exhibit 58 and the panch
witness Vijaybhai Nandlalbhai has been examined at Exhibit 57 as
PW-8 and Amrabhai Makanbhai vide Exhibit 59 as PW-9. Both
have turned hostile and have not supported the case of the
prosecution.
8.9. The prosecution has thereafter produced the Panchnama of
weapons alleged to be in possession of accused no.5-Dharia and
chilli powder from accused no.6 and the panch witness
Ghanshyambhai Kahalsangbhai has been examined as PW-10 vide
Exhibit 60 and Salimbhaiy Ishaqbhai as PW-8 vide Exhibit 62.
Both have turned hostile and have not supported the case of the
prosecution.
8.10. The Panchnama of scene of offence is produced vide Exhibit
64 and the panch witness Ranchhodbhai Shankarbhai Dalwadi has
been examined as PW-12 vide Exhibit 63 and Sabalsinh Deosinh
Gohil has been examined vide Exhibit 65 as PW-13. Both have
turned hostile and have not supported the case of the prosecution.
8.11. The prosecution has thereafter examined the complainant as
PW-14 vide Exhibit 70. In his examination-in-chief, he has once
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again reiterated what has been stated in the complaint and states
that a gun was put on his head by accused no.1-Bharatbhai and
that accused no.1 was also holding a spear. In his examination-in-
chief, he admits that it is not true that at the time when he had
given the complaint, he was conscious and admits that he had
filed the complaint and the police had registered the complaint as
per his statement. He has also stated that he had not read the
complaint in view of the fact that he was unconscious at that
time. He has also admitted that in the complaint, there is
overwriting and scribbling in the surname, name of Lilaben and
Chandrikaben and the time.
8.12. In the examination-in-chief though the said complainant
states that after assaulting the complainant with a spear, the
accused no.1 put the gun on the head of the complainant, but in
his cross-examination at paragraph no.8, he denies making any
statement that accused no.1 Bharat Malu had shown him any
gun. He states that he had heard a loud sound at the same time,
with respect to the accusation against accused no.6, Mahipatsinh
who is alleged to carry and use a chilli powder, it has been
stated that no chilli powder was used at the time of alleged
offence.
8.13. He has also denied the fact that in the complaint, he has
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not stated that Bharat Malu, accused no.1, had assaulted him on
his head with a spear. At paragraph no.10 of his deposition, the
said complainant also stated that even at the Gandhi Hospital,
when a doctor was taking history, he was unconscious and
therefore, he is not aware of any statements that was given to
the said doctor. The prosecution has thereafter examined Lilaba
Bhikubhai, vide exhibit 73 as PW 15, who is the sister of the
complainant and states that she had rushed to the place of
offence only after hearing his brother's screams. In her cross-
examination, she has stated that she has not heard any loud
sound that had come at the time of offence.
8.14 The prosecution has thereafter examined Chanduben, the wife
of Mansinh Gaganji, who was alleged to have been injured at the
time of incident. She also happens to be the sister of Bhikubhai,
who was also injured in the said incident, she has been examined
as P.W.16 vide Exhibit-74. In her deposition, she has stated that
she had seen the gun, but does not remember who was carrying
the said gun.
8.15. The prosecution has thereafter examined Bhikhubhai Gohel,
vide exhibit 77 as PW 17. He has stated that when he had
reached the place of incident, the complainant was not injured and
he had only seen accused no.6 Mahipatbhai and accused no.2,
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Jorubhai at the place of offence. He had also stated that doctor
had asked him the history, but he is not aware as to what did
the said doctor write.
8.16. The prosecution has thereafter examined the officer of the
Collector Office, Yogesh Gurvantrai Mehta vide Exhibit 80, as PW
18. He has been examined with respect to the notification under
Section 37(1) of the Bombay Police Act. The said notification is
produced vide exhibit 81. The PSI who had filed the chargesheet
has been examined at exhibit 82 as PW 19, Mayank Rajyaguru.
He was a PSI at Joravarnagar Police Station. He has also
admitted that there were alterations in the original complaint,
which is produced vide exhibit 71. He has also deposed that he
had not taken any further statement of any of the persons after
the said alterations were made in the complaint. The prosecution
has thereafter examined the Investigating Officer, Shivrajkumar
Dhandhal as PW 20 vide Exhibit 83. In his deposition, he has
stated that at the time of the complaint, the complainant had
tried to put forward a case that accused no.1-Bharat Malu was
carrying a gun. He has also admitted that during investigation, no
gun was found from accused no.1. In further questioning had
stated that by mistake he had stated that accused no.1 Bharat
Malu was stated to be carrying a gun and the said was a
mistake on the part of the complainant.
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8.17. He has also stated that the history that was given by the
complainant before the doctor and before the investigating agency
does not match and there are lot of discrepancies and
contradiction in the said statements. It has also been stated that
in the cross complaint which has been filed, accused no.1 Bharat
Malu, accused no.3 Nanji Malu, accused no.5-Dashrath Joru and
accused no.6, Mahipat Sinh are the injured witnesses in the cross-
complaint. He has also stated that the cross-complaint has been
filed, which has been numbered as 60 of 2007 and the same is
prior in point of time than the complaint that was filed by the
present complainant which is 61 of 2007.
8.18. It has also been admitted in the deposition of the
Investigating Officer that in his investigation, he could not find
that in the entire incident, who was the aggressor and who was
in self-defense is not proved.
8.19. Having considered the evidence on record and the fact that,
there are lot of contradiction in the testimony of the witnesses of
the prosecution, whereas, the complainant himself in his complaint
states that a gun was put on his head and in his cross-
examination he states that the said fact which has been stated by
him in the complaint is a mistake and that there was no gun
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involved at the time of offence and the prosecution witness
Chanduben who has been examined as PW 16 vide Exhibit 74,
state that she had seen the gun but she is not aware as to who
was carrying the said gun. There are contradictions to the said
effect.
8.20. Moreover, even the Investigating Officer also has deposed
that there was a cross-complaint filed and in investigation it was
difficult for him to find as to who was the aggressor and who was
acting in self-defense.
8.21. Moreover, the complainant also states that the history that
was given which was noted by the doctor, at that time the
complainant was unconscious. Therefore, considering the prosecution
case and the medical evidence, there are lot of contradiction and
discrepancies in the case of the prosecution. The prosecution has
also not been able to prove the panchnama in view of the fact of
the panch witnesses have turned hostile.
8.22. Moreover, the evidence of Leelaba Bhikhuba who has been
examined vide Exhibit 73, the prosecution has also not been able
to justify as to how and for what reason, there were alterations in
the complaint, which has been produced vide Exhibit 71. The fact
of firing by the gun is also not been proved by the prosecution. It
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has also not come on record as to who had started the fight on
the said date.
9. Further, learned APP is not in a position to show
any evidence to take a contrary view in the matter or that
the approach of the Court below is vitiated by some manifest
illegality or that the decision is perverse or that the Court
below has ignored the material evidence on record. In above
view of the matter, I am of the considered opinion that the
Court below was completely justified in passing impugned
judgment and order.
10. Considering the impugned judgment, the trial
Court has recorded that there was no direct evidence
connecting the accused with the incident and there are
contradictions in the depositions of the prosecution witnesses.
In absence of the direct evidence, it cannot be proved that
the accused are involved in the offence. Further, the motive
of the accused behind the incident is not established. The
trial Court has rightly considered all the evidence on record
and passed the impugned judgment. The trial Court has
rightly evaluated the facts and the evidence on record.
11. It is also a settled legal position that in acquittal
appeal, the appellate court is not required to re-write the
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judgment or to give fresh reasoning, when the reasons
assigned by the Court below are found to be just and proper.
Such principle is down by the Apex Court in the case of
State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC
1417 wherein it is held as under:
"... This court has observed in Girija Nandini Devi
V. Bigendra Nandini Chaudhary (1967)1 SCR 93:
(AIR 1967 SC 1124) that it is not the duty of the
appellate court when it agrees with the view of the
trial court on the evidence to repeat the narration
of the evidence or to reiterate the reasons given by
the trial court expression of general agreement with
the reasons given by the Court the decision of
which is under appeal, will ordinarily suffice."
12. Thus, in case the appellate court agrees with the
reasons and the opinion given by the lower court, then the
discussion of evidence at length is not necessary.
13. In the case of Ram Kumar v. State of Haryana,
reported in AIR 1995 SC 280, Supreme Court has held as
under:
"The powers of the High Court in an appeal from
order of acquittal to reassess the evidence and
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reach its own conclusions under Sections 378 and
379, Cr.P.C. are as extensive as in any appeal
against the order of conviction. But as a rule of
prudence, it is desirable that the High Court should
give proper weight and consideration to the view of
the Trial Court with regard to the credibility of the
witness, the presumption of innocence in favour of
the accused, the right of the accused to the benefit
of any doubt and the slowness of appellate Court in
justifying a finding of fact arrived at by a Judge
who had the advantage of seeing the witness. It is
settled law that if the main grounds on which the
lower Court has based its order acquitting the
accused are reasonable and plausible, and the same
cannot entirely and effectively be dislodged or
demolished, the High Court should not disturb
the order of acquittal."
14. As observed by the Hon'ble Supreme Court in the
case of Rajesh Singh & Others vs. State of Uttar Pradesh
reported in (2011) 11 SCC 444 and in the case of
Bhaiyamiyan Alias Jardar Khan and Another vs. State of
Madhya Pradesh reported in (2011) 6 SCC 394, while dealing
with the judgment of acquittal, unless reasoning by the trial
Court is found to be perverse, the acquittal cannot be upset.
It is further observed that High Court's interference in such
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appeal in somewhat circumscribed and if the view taken by
the trial Court is possible on the evidence, the High Court
should stay its hands and not interfere in the matter in the
belief that if it had been the trial Court, it might have
taken a different view.
15. In the case of Chandrappa v. State of
Karnataka, reported in (2007) 4 SCC 415, the Hon'ble
Apex Court has observed as under:
"42. From the above decisions, in our considered
view, the following general principles regarding
powers of the 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 Criminal Procedure Code, 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",
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"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
emphasise 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 is 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 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."
17. The Hon'ble Apex Court, in a recent decision, in
the case of Constable 907 Surendra Singh and Another V/s
State of Uttarakhand reported in (2025) 5 SCC 433, has held
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in paragraph 24 as under:
"24. It could thus be seen that it is a settled legal
position that the interference with the finding of
acquittal recorded by the learned trial Judge would
be warranted by the High Court only if the
judgment of acquittal suffers from patent
perversity; that the same is based on a
misreading/omission to consider material evidence
on record; and that no two reasonable views are
possible and only the view consistent with the
guilt of the accused is possible from the evidence
available on record."
16. Considering the aforesaid facts and circumstances
of the case and law laid down by the Hon'ble Supreme Court
while considering the scope of appeal under Section 378 of
the Code of Criminal Procedure, 1973 no case is made out to
interfere with the impugned judgment and order of acquittal.
17. In view of above facts and circumstances of the
case, on my careful re-appreciation of the entire evidence, I
found that there is no infirmity or irregularity in the
findings of fact recorded by learned trial Court and under
the circumstances, the learned trial Court has rightly
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acquitted the respondent/s - accused for the elaborate reasons
stated in the impugned judgment and I also endorse the
view/finding of the learned trial Court leading to the
acquittal.
18. In view of the above and for the reasons stated
above, the present Criminal Appeal fails to prove its case
and the same deserves to be dismissed and is dismissed,
accordingly. Record & Proceedings be remitted to the
concerned trial Court forthwith.
Sd/-
(SANJEEV J.THAKER,J)
URIL RANA
