[Cites 15, Cited by 0]

Gujarat High Court

State Of Gujarat vs Rafikbhai @ Babubhai Ahmedbhai Malek on 6 May, 2026

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                                                                                  Reserved On : 29/04/2026
                                                                                Pronounced On : 06/05/2026

                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/CRIMINAL APPEAL NO. 2145 of 2009

                       ==========================================================
                                                 STATE OF GUJARAT
                                                       Versus
                                    RAFIKBHAI @ BABUBHAI AHMEDBHAI MALEK & ANR.
                       ==========================================================
                       Appearance:
                       MS. SHRUTI PATHAK, APP for the Appellant(s) No. 1
                       A N KADRI(7990) for the Opponent(s)/Respondent(s) No. 1
                       HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 2
                       MR ABHISHEK M MEHTA(3469) for the Opponent(s)/Respondent(s) No. 2
                       ==========================================================

                         CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER


                                                           CAV JUDGMENT

1. Feeling aggrieved by and dissatisfied with the

judgment and order of acquittal dated 01.07.2009 passed by

the learned Special Judge, Nadiad in Special Atrocity Case

No. 14/2009 for the offences punishable under Sections 324,

504, 506(2) of the Indian Penal Code, and under Section 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 the complainant was working

as a waiter at a hotel in the Panch Hatdi area of Nadiad

along with other staff members. On 31.10.2008, at about

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noon, while the complainant was sweeping in front of the

hotel, the accused arrived and started abusing him using

filthy and caste-related words. When the complainant objected

to the abuse, the accused threatened him with death and

assaulted him by giving a pipe blow on his head. As a

result, the complainant sustained serious 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.14/2009. The charge was 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

documentary evidence before the trial Court, which are

described in the impugned judgment are as under;


                                                        Oral evidences
                       Witness                                                                                      Exhibit
                                       Witness Name
                       No.                                                                                          No.
                       1               Bhupendrabhai Ambalal Vankar (Complainant who                                9






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                       Witness                                                                                    Exhibit
                                         Witness Name
                       No.                                                                                        No.
                                         sustained injuries)

Panch Pravinkumar Ravjibhai Talpada (Hostile) 2 (Panch witness for the Panchnama regarding the seizure 11 of the mudammal pipe) 3 Dr. Kalpanaben Dhirenkumar Shah (Medical Officer) 15 4 Rafikbhai Yakubbhai Vohra (Hostile) (Eye-witness) 18

Kiranbhai Kantibhai Talpada (Panch witness for the 6 Panchnama regarding the seizure of the mudammal 20 pipe) Yashwantbhai Jivalbhai Katara, P.S.I. (Officer who

registered the offence) Sharadbhai Jatindrabhai Singal, Deputy Police

Commissioner (Investigating Officer)

Documentary evidences Sr. Exhibit Description of Document No. No. Complaint of Complainant Bhupendrabhai Ambalal

Vankar

Panchnama regarding the seizure of the mudammal

pipe produced by the accused

5. After hearing both the parties and after analysis

of evidence adduced by the prosecution, the learned trial

Judge acquitted the accused for the offences for which they

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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

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. 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

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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 relied on the complaint that has

been filed vide Exhibit-10, wherein it has been alleged that

the complainant was working as a waiter at King Hotel, and

along with the complainant, one Manjurbhai, Kodyaji,

Gopalbhai, Babubhai and Rajubhai were also working, and

the owner of the said hotel was one Sallubhai. On

31.10.2008, at around 11 am, when the complainant was

working at the said hotel, the nephew of the owner of King

Hotel i.e., Mr. Rajubhai, was at the counter and the

complainant was doing cleaning work outside the hotel. At

that time, at around 12:30 p.m., the accused, Babubhai, alias

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Rafiqbhai, had come to the hotel and started shouting and

asked the complainant as to why the complainant was

abusing him. Thereafter, the accused abused the complainant

of his caste, and the iron pipe which the accused had

brought with him was hit by the accused two times on the

head, whereby the complainant started bleeding from his

head. The accused threatened the complainant that if in

future the complainant abused the accused, he would kill the

complainant so saying he ran away from the place of

incident, and as the complainant was injured, he first went

to Nadiyad Civil Hospital, and as the authorities at the Civil

Hospital would only treat after a Yadi was sent from

Nadiyad Town Police Station, therefore, the complainant had

gone to Nadiyad Town Police Station, and after bringing the

Yadi from the said police station, got treated as an indoor

patient at Civil Hospital.

8.2. The prosecution has examined the complainant

Bhupendrabhai Ambalal Vankar as PW-1, vide Exhibit-9. In

his cross-examination, he has stated that he has been

working at King Hotel for the last two years, and that it is

true that he was given the job at King Hotel because of the

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reference of the accused. He has also stated that at the time

when the complaint was registered, he was unconscious. He

has also stated that the dispute between the complainant and

the accused was because of mobile phone. The said fact has

not been stated by the complainant in his complaint.

Moreover, in the cross-examination, at "Paragraph-3", he has

stated that it is not true that before the said dispute, he

had not filed any complaint before the concerned police

station. The fact remains that other than the present

complaint against the accused, there are no other previous

complaints filed by the complainant against the accused. He

has also stated that the police had recovered his blood-

stained clothes. In his cross-examination at " Paragraph-5", the

complainant states that at the time of the alleged offence,

there were other employees who were present at the hotel.

He has also stated that he had not seen the weapon i.e., the

iron pipe, by which he was assaulted, in view of the fact

that the said pipe was hit on the complainant from behind,

and as he was hit from behind, he had become unconscious

and he had seen the accused running away from the place of

offence, and that other employees had not tried to stop the

accused from running away. He has also admitted that it is

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true that he was assisted by one Navsarjan Trust to lodge

the complaint, and as per the guidance of the said Trust, he

has deposed before the Court. The complainant in the

complaint has not stated that there was any dispute between

the complainant and the accused because of the mobile

phone, and the said fact has been stated for the first time in

the deposition of the complainant.

8.3. The prosecution has produced the panchnama of

recovery of weapon i.e., the iron pipe, which is produced vide

Exhibit-21. The panch witness, Praveenbhai Talpada, has

been examined vide Exhibit-11 as PW-2. He has turned

hostile and has not supported the case of the prosecution.

8.4. The prosecution has thereafter examined Kiranbhai

Talpada, as PW-6 vide Exhibit-6, who is the other witness of

the recovery of weapon i.e, the iron pipe, which has been

examined vide Exhibit-21.

8.5. The doctor who had treated the complainant, she

was in the emergency department at Civil Hospital, Nadiad,

Dr. Kalpanaben Dhirenkumar Shah, has been examined vide

Exhibit-15 as PW-3. In her deposition, she has stated that

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when she was shown the Muddammal article i.e., the iron

pipe, she stated that the said injury could take place because

of the assault by the said iron pipe, however, in her cross-

examination, she has stated that the complainant, when he

had come for treatment, had not given the history of the

person who had assaulted him, and the injury could be an

accidental injury also. Furthermore, she stated that the

Injury Nos. 1 and 2 could take place because of separate

weapons, and the injury could also take place because of

some other weapon.

8.6. The Police Yadi is produced vide Exhibit-16, and

the certificate issued by the Medical Officer, Civil Hospital,

Nadiad, is produced vide Exhibit-17, wherein the name of the

person who had assaulted is shown as Babulbhai, and not

the accused. Though, from the deposition of the complainant,

the complainant and the accused have been working together

for two years, and the job has also been given to the

complainant because of the accused. The complainant has not

given the name of the accused, and it cannot be believed

that the complainant would not know the name of the

accused while giving the history to the doctor.

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8.7. The prosecution has thereafter examined Rafiqbhai

Yakuqbhai Vohra as PW-4 vide Exhibit-18, who says that the

said King Restaurant belongs to his uncle, and he had seen

that the complainant had injured his head, and there was

blood coming from his head because of the said injury. He

has stated that though he was present at the time of the

alleged incident, he had not heard any commotion. The said

witness has not supported the case of the prosecution and

has turned hostile. He has stated, thereafter, he came to

know that the complainant had slipped on the floor of the

hotel, and was injured because of the said incident.

8.8. The prosecution has thereafter examined the other

witness vide Exhibit-19, Kodyaji Viraji Marwadi, as PW-5,

whom complainant in his complaint, states that the said

witness has been working with him. In his examination-in-

chief, he has stated that Babul had abused the complainant

of his caste, and he had hit the complainant with a pipe and

thereafter, said Babul had run away from the scene of

offence, and the complainant was treated. When he was

shown the Mudammal pipe, he had identified the said pipe,

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but if the cross-examination of the said witness is taken into

consideration, he has stated that both the complainant and

the accused were abusing each other, and at that time he

was inside cleaning utensils, and he is not aware as to who

had started quarrelling and abusing each other, and has also

stated that he came to know that the complainant was

assaulted only after he saw blood on the complainant.

8.9. The prosecution has thereafter examined the P.S.O,

Yashwantbhai Jivalbhai Katara vide Exhibit-22 as PW-7. He

has stated that the complaint was taken by P.S.I., S.N.

Vohra and, for further investigation the matter was carried

out by the Police Commissioner S.C./S.T. Cell, Anand.

8.10. The Investigating Officer Sharadbhai Jatindrabhai

Singhal, who was the Deputy Police Commissioner S.C./S.T.

Cell, has been examined as PW-8 vide Exhibit-23. In his

cross-examination, he has stated that in his investigation, no

blood stains were found at the place of offence or on the

Muddamal iron pipe.

8.11. The Sessions Court has taken into consideration

that the complainant, in his history to the doctor, has not

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given the name of the accused. Moreover, if the evidence of

the treating doctor, who has been examined as PW-3, clearly

states that the complainant was transferred to Ahmedabad

for further treatment, however, no documents pertaining to

the further treatment that was given to the complainant

have been produced by the prosecution.

8.12. The prosecution has failed to prove as to what

abuses were made to the complainant. There are a lot of

contradictions and discrepancies in the complaint and the

deposition of the complainant, in view of the fact that while

in the deposition, it has been stated that at the time when

the accused tried to run away from the scene of offence, he

had abused the complainant of his caste, but the said fact

has not been stated in the complaint.

8.13. Moreover, the complainant himself has not been

able to prove the Muddamal iron pipe, and in view of the

fact that the complainant has stated that as he was

assaulted from behind, he was not able to identify the iron

pipe. The fact remains that the complainant had become

unconscious at the time when the complaint was filed, and

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the fact that the complainant states that he was assisted by

a Navsarjan Trust itself shows that the facts stated by the

complainant are rightly not believed by the Sessions Court.

8.14. The prosecution has not examined any

independent witnesses to support the case of the prosecution.

The complainant, in the complaint, stated that at the time

when the alleged offence had taken place, one Rajubhai was

sitting at the counter. The prosecution has not examined the

said Rajubhai to prove the case of the prosecution. Moreover,

the complainant himself states that at the time when the

complaint was filed, he was unconscious, and the name

stated in the certificate issued by the treating doctor also

states that the complainant had given the name of

Babulbhai, and the name of the accused is not Babulbhai.

The stated fact also cannot be believed that the complainant

will not know the real name of the accused, in view of the

fact that they have been working together.

8.15. The other fact which also needs to be taken into

consideration is that neither the prosecution has been able to

prove that there were blood stain marks at the place of

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offence, nor the alleged clothes of the complainant states that

there were blood stain marks on the clothes of the

complainant. The said clothes have not been recovered by the

prosecution. Moreover, from the evidence, the prosecution has

also not been able to prove that there were blood stain

marks on the iron pipe that was recovered, which was stated

to be the weapon which was used for assaulting the

complainant.

8.16. The prosecution has tried to prove their case from

the evidence of Kodyaji Viraji Marwadi, who has been

examined vide Exhibit-19, as PW-5. But in his cross-

examination, the said witness has categorically stated that

both the accused and the complainant were abusing each

other, and he does not know who first started the said

abuses. In his cross-examination, he also does not state that

he was present at the time when the complainant was

assaulted by the accused, in view of the fact that he has

stated that he was cleaning the utensils, and he came to

know that the complainant was assaulted only when he saw

the complainant bleeding profusely.

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8.17. Moreover, the Sessions Court has also rightly

observed that, from the evidence of the complainant, it can

be concluded that he was tutored by the said Trust, in view

of the fact that the complainant himself states that the

deposition has been given by the complainant as per the

advice of the Navsarjan Trust.

8.18. 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

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.

8.19. 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

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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 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, 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

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

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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

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

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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 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

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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

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:

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"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", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are

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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."

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16. 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 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."

17. 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.

18. In view of above facts and circumstances of the

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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