[Cites 15, Cited by 0]

Gujarat High Court

State Of Gujarat vs Babbhai Bhikhubhai Khachar on 6 May, 2026

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                        R/CR.A/1942/2010                                              CAV JUDGMENT DATED: 06/05/2026

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                                                                                  Reserved On   : 28/04/2026
                                                                                  Pronounced On : 06/05/2026

                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                           R/CRIMINAL APPEAL NO. 1942 of 2010

                      ==========================================================
                                                   STATE OF GUJARAT
                                                         Versus
                                           BABBHAI BHIKHUBHAI KHACHAR & ORS.
                      ==========================================================
                      Appearance:
                      MS SHRUTI PATHAK, APP for the Appellant(s) No. 1
                      MR DIPEN K DAVE(3296) for the Opponent(s)/Respondent(s) No. 1,2,3
                      MR LAXMANSINH M ZALA(5787) for the Opponent(s)/Respondent(s) No.
                      1,2,3
                      NOTICE SERVED for the Opponent(s)/Respondent(s) No. 4
                      RULE SERVED for the Opponent(s)/Respondent(s) No. 2,3
                      ==========================================================

                        CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER


                                                          CAV JUDGMENT

1. Feeling aggrieved by and dissatisfied with the

judgment and order of acquittal dated 29.07.2010, passed by

the learned Special Judge, Fast Track Court No.2, in Special

(Atrocity) Case No.60 of 2007 for the offences punishable

under Sections 323, 504, 114 of the Indian Penal Code, and

Sections 3(1)(10) of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) 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 on 12.07.2007, the

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complainant along with his nephew Daya Samant and Bhupat

Meharbhai was present at their field. At that time, the

respondents-accused, armed with sticks, came there and

started abusing them and also threatened to kill them. When

the complainant and others requested pardon, the

respondents-accused became aggressive and began assaulting

them with sticks, as a result of which they sustained

injuries. Therefore, the complaint was filed against the

respondent/s-accused.

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 for the

offences as alleged. Since the offence alleged against the

accused person/s was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the

Sessions Court where it came to be registered as Special

(Atrocity) Case No.60 of 2007. The charges were framed

against the accused person/s. The accused pleaded not guilty

and came to be tried.

4. In order to bring home the charge, the prosecution

has examined 11 witnesses and also produced 10

documentary evidence before the Trial Court, which are

described in the impugned judgment as under:

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Oral Evidence

No. Witness Name Exhibit No.

5 Panch Witness Bhupatbhai Ebhalbhai Dhadhal 16

6 Panch Witness Sureshbhai Bavkubhai Khavad 18

Witness Shri R. J. Pargi, Dy. S.P.,

Investigating Officer

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Documentary Evidence

Exhibit No. Description of Document No.

2 Certificate regarding the Caste of the Complainant 11

3 Panchnama of the Local Site (Scene of Offense) 15

Panchnama regarding the arrest of the accused and

seizure of the stick (Mudammal)

Medical Certificate regarding injuries of the victim

Dhudabhai Devabhai

Medical Certificate regarding injuries of Dayabhai

Samantbhai

True Xerox copy of Sayla Police Station Diary Entry

No. 23/07

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5. After hearing both the parties and after analyzing

the evidence adduced by the prosecution, the learned trial

Judge acquitted the accused of 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, submitted that the learned trial

Court has failed to appreciate the evidence in its true sense

and perspective; and that the trial Court has committed an

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 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.

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7. As against that, learned advocate for the

respondent/s would support the impugned judgment passed by

the learned trial Court and has submitted that the learned

trial Court has not committed any error in acquitting the

accused. The trial Court has taken possible view as the

prosecution has failed to prove its case beyond reasonable

doubt. Therefore, it is prayed to dismiss the present appeal

by confirming the impugned judgment and order passed by

the learned trial Court.

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

which is filed vide Exhibit-10, and it is the case of the

prosecution that on 12.07.2007, at around 09.00 p.m., when

the complainant, along with his nephew Daya Samat and

Bhupat Mehrambhai was guarding the field, the complainant

was awake in his room in his filed, and his nephew Daya

and grandson Bhupat were sleeping. Accused nos.1 and two

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unknown persons came to the field and started abusing the

complainant. It is the case of the prosecution that thereafter,

the accused no.1 started abusing the complainant of his caste

and accused no.1 had drunk alcohol and at that time accused

no.1 who was holding a stick, started assaulting the

complainant, and in the said assault, the complainant was

injured on his right hand. Thereafter, the complainant woke

his nephew Dayabhai, and accused no.1 had also assaulted

the said Dayabhai on his left leg. As the complainant got

frightened, he ran towards the field of Bahcu Khima, woke

them up and informed them about the said incident, and

thereafter, as the complainant, and his nephew, and grandson

i.e. Daya and Bhupat, ran away and filed a complaint on the

next date. The complainant has examined himself as P.W.1-

Dhudabhai Devabhai vide Exhibit-9. In his cross-examination

he has stated that it is true that he had no quarrel with

the present accused. In his deposition, he has stated that

after the assault, as he got frightened, he ran away to his

house.

8.2. The prosecution has thereafter examined the nephew of

the complainant Dayabhai Solanki as P.W.2 vide Exhibit-12

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who the complainant alleges was present at the time of the

incident and that he was also injured by accused no.1. The

complainant in his complaint has stated that the incident

had taken place at around 09.30 p.m. In his deposition he

stated that the said incident had taken place at around 11.00

p.m. The P.W.2 who is alleged to have been present at the

time of the incident also states that the said incident took

place at 09.30. The said witness states that he was also

injured due to sn assault with stick by accused no.1. The

grandson of the complainant Bhupatbhai has been examined

as P.W.3 vide Exhibit 13, at the time of deposition, he was

13 years old. He had stated that he and Dayabhai were

sleeping at the time of the incident and he was not aware of

what incident had taken place before he woke up. The fact

to be considered is that the complainant, in the complaint

vide exhibit 10 has stated that after he was assaulted, he

ran towards the house of Bachu Khima, and Bachu Khima

and his wife, Ramuben informed them to run away. The said

fact has not been stated by complainant who has been

examined as P.W.1 in his deposition vide Exhibit-9,

Dayabhai Solanki who has been examined as P.W.2 vide

Exhibit 12, Bhupatbhai Mehulbhai who has been examined as

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P.W.3 vide Exhbit 13.

8.3. Moreover, the said Bachubhai Khimabhai and Ramuben

Khimabhai whom the complainant in the complaint vide

Exhibit 10 has stated that the complainant, his nephew

Dayabhai, and his grandson Bhupat had ran towards their

house at the time of the incident, have been examined as

P.W.8, Bachubhai Khimabhai vide Exhibit-26 and P.W.9

Ramuben Khimabhai who has been examined vide Exhibit 27;

however, they have not supported the case of the prosecution

and have turned hostile.

8.4. The prosecution has produced the panchnama of scene of

offence vide Exhibit 15, and the panch witness, Kalyanbhai

Nagjibhai, has been examined vide Exhibit-14. In his cross-

examination he has stated that his signature was taken after

the panchnama was prepared, and he is not aware of as to

for what purpose the said panchanama was prepared.

8.5. -The arrest panchnama is produced vide Exhibit 17, and

the said panch witness, Bhupatbhai Dhandhal has been

examined as P.W.5 vide Exhibit-16, and Sureshbhai Khavad

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has been examined as P.W.6 vide Exhibit-18. Both have

turned hostile and have not supported the case of the

prosecution.

8.6. The prosecution has thereafter examined

Dr.Jitendrakumar Upadhyay as P.W.7 vide Exhibit-19, who

was a Medical Officer at C.H.C. Sayla and who had treated

the complainant Dudhabhai and his nephew Dayabhai. The

certificate with respect to the injury of the of the

complainant is produced vide exhibit 20. The medical case

papers of the treatment of Dayabhai have been produced vide

Exhibit 23. The medical case papers of the Samantbhai

Dayabhai have been produced vide Exhibit 24. The injury

certificate of Dayabhai have been produced vide Exhibit 25. If

the cross-examination of the said witness is taken into

consideration, the said witness had stated that it was a

simple injury and that the alleged injury had taken place on

12.07.2007 at night, and on the next day at 07.00 p.m., the

complainant and Dayabhai had come for treatment. He has

also stated that the injury would not be caused by one

weapon and that the injury could occur if a person tries to

climb from the upper portion of the house. Moreover, the

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said doctor has also stated that no history was given by the

complainant and Dayabhai to him. The prosecution has

thereafter examined P.S.O. Jasubha Jadeja, who had taken

the complaint vide Exhibit 10, the said witness has been

examined vide Exhibit 30 and the Station Diary is produced

vide Exhibit 31.

8.7. The prosecution has thereafter examined Dy.S.P.

Ramjibhai Parghi as P.W.11 vide Exhibit 32. He has stated

that no explanation was given. The Trial Court, while

acquitting the accused, has taken into consideration that

there is no evidence against accused nos.2 and 3, either in

the complaint or in the deposition of the witnesses, neither

the complainant nor the witnesses of the complainant have

stated that accused nos.2 and 3 have either abused them on

the basis of their caste or assaulted them. Moreover, the

evidence of P.W.2-Dayabhai and P.W.3-Bhupatbhai also does

not prove the case, against the accused, in view of the fact

that, as per the evidence of Bhupatbhai, they were woken up

by the complainant after he was assaulted, and that he is

not aware of what transpired before the said incident.

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8.8. Moreover, the prosecution has also not been able to show

the nexus of the alleged offence, in view of the fact that the

complainant has not stated that there was any enmity

between the complainant and the accused no.1, so that the

accused no.1 would have been instigated to commit the

alleged offence. The fact also remains that if the evidence of

the complainant who has been examined as P.W.1 vide

Exhibit-9, has stated that he is not aware whether he was

assaulted with a stick or a blunt weapon and that it was

night time and dark. Though it has been stated that the

complainant has states that there was a dispute with Rabari

community, but there is no direct nexus of enmity between

the complainant and the accused. The accused nos.2 and 3

have also not been identified by way of identification parade.

* Therefore, the prosecution has not proved the case

against the accused for the offence as alleged. Moreover, as

per the observations made by the Hon'ble Apex Court in the

case of Sajan Sakhariya Vs. State of Kerala and others

reported in AIR 2024 SC 4557, every insult or intimidation

would not amount to an offence under Section 3(1)(x) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989, unless such insult or intimidation is

started at a victim because he is a member of a particular

Scheduled Castes or Scheduled Tribes. Therefore, from the

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allegations made in the complaint, the prosecution has not

proved that the accused is guilty of an offence under the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989.

* The trial Court, while considering the evidences in

detail, has observed that the prosecution has failed to prove

the case against the accused beyond reasonable doubt. While

discussing the evidence in detail, the trial court has found

that the only allegation against the accused is of speaking

indecent words against the caste of the complainant. The

trial Court has gone into the evidence in detail and has

come to the conclusion that the accused are not guilty of the

alleged offence.

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 any 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, this Court is of the considered opinion

that the Court below was completely justified in passing

impugned judgment and order.

10. Considering the impugned judgment, the trial

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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 were 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

properly evaluated the facts and the evidence on record.

11. It is also a settled legal position that in an

acquittal appeal, the appellate court is not required to re-

write the 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

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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 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

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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

appeal in somewhat circumscribed and if the view taken by

the trial Court is possible on the evidence, the High Court

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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

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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 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

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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