Gujarat High Court
State Of Gujarat vs Nagabhai Harjibhai Patel on 16 January, 2025
NEUTRAL CITATION
R/CR.A/1650/2008 JUDGMENT DATED: 16/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1650 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
NO
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STATE OF GUJARAT
Versus
NAGABHAI HARJIBHAI PATEL & ANR.
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MR MAHESH P PATEL(3381) for the Opponent(s)/Respondent(s) No. 1
MR N P CHAUDHARY(3980) for the Opponent(s)/Respondent(s) No. 1
UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 16/01/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant State under Section
378(1)(3) of the Code of Criminal Procedure, 1973 against the
judgement and order of acquittal passed by the learned Additional
Sessions Judge, 3rd Fast Track Court, Deesa Camp at Deodar
(hereinafter referred to as “the learned Trial Court”) in Special
Case No. 155 of 2007 on 12/03/2008, whereby, the learned Trial
Court has acquitted the respondent for the offence punishable
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under Sections 323, 504 and 506(2) of Indian Penal Code, 1860
(hereafter referred to as “IPC” for short) and Section 3(1)(10) of
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
1.1 The respondents are hereinafter referred to as “the accused” as
they stood in the original case for the sake of convenience, clarity
and brevity.
2. The brief facts that emerge from the record of the case are as
under:
2.1 The complainant – Nagjibhai Dharmabhai Harijan and his wife
Karmaben Nagjibhai Harijan had gone to the house of the accused
on 16/07/2007 at 07:00 am to take the seeds that were being
distributed by the accused and when they met the accused and told
them that the seeds were received from the Government and to
give them the same, the accused told them that he had sold the
seeds and there were no more seeds. The complainant, thereafter,
asked the accused the names of the persons to whom were the
seeds were sold, and at that time, the accused got angry and
abused both of them with caste slurs and told them that he did not
want to give him the seeds and took a stick and hit the stick on the
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right side of the face of the complainant and as his wife intervened
to save him, the accused hit her on the left hand elbow and as she
shouted, Mansungbhai Jethabhai Thakore came there and saved
them from further beating. The complainant filed the complaint
before the Tharad Police Station under Section 323, 504 and
506(2) of the IPC and Section 3(1)(10) of the Atrocities Act, which
was registered being II-C.R.No. 3114 of 2008.
2.2 The Investigating Officer recorded the statements of the connected
witnesses, drew the necessary panchnamas, collected the
necessary documents including the medical certificate and a
chargesheet came to be filed before the learned Judicial Magistrate
First Class, Tharad and as the said offences against the accused
were exclusively triable by the Court of Sessions, the case was
committed to the Sessions Court, Veraval as per the provisions of
Section 209 of the Code of Criminal Procedure and the case was
registered Special Case No. 155 of 2007.
2.3 The accused was duly served with the summons and the accused
appeared before the learned Trial Court, and it was verified
whether the copies of all the police papers were provided to the
accused as per the provisions of Section 207 of the Code and a
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charge at Exh. 4 was framed against the accused and the
statements of the accused was recorded at Exh. 5, wherein, the
accused denied all the contents of the charge and the entire
evidence of the prosecution was taken on record.
2.4 The prosecution produced the following evidence to bring home
the charge against the accused.
ORAL EVIDENCES
Sr. P.W. Particulars Exh.
No. Nos 1. 1. Chhaganbhai Karmasibhai Thakore 8 2 2. Hemjibhai Virdasbhai Pate 10 3. 3. Jivrajbhai Vaghabhai Patel 11 4. 4. Kanjibhai Gagabhai Patel 13 5. 5. Dr. Pankaj Laxminarayan Gupta 14 6. 6. Nagjibhai Dharmabhai 20 7. 7. Karmaben Nagjibhai 22 8. 8. Mansungbhai Jethaji Thakore 25 9. 9. Bhikhabhai Bhagvandas Patel 26 10 10. Virendrasinh Deepsinh 28 Page 4 of 21 Uploaded by VISHAL MISHRA(HC01088) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1650/2008 JUDGMENT DATED: 16/01/2025 undefined DOCUMENTARY EVIDENCES Sr. Particulars Exh. No. 1. Panchnama of place of offence 09 2. Arrest panchanama 12 3. Yadi 15 4. Injury certificate 16 5. Injury certificate 17 6. Complaint 21 7. Register 24 8. Caste Certificate 26 9. Station Diary 29 10 Attendance register 30 11 Special Report 31
2.5 The prosecution has examined ten witnesses and produced eleven
documentary evidences in support of their case and after the
closing pursis was filed by the learned APP at Exh. 32, the further
statement of the accused under Section 313 of the Code of
Criminal Procedure, 1973 was recorded wherein the accused
denied all the allegations and stated that a false case has been filed
against him due to the revenge regarding the elections. The
accused refused to step into the witness box and lead evidence and
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refused to examine any witness on his behalf and after the
arguments of the learned Additional Public Prosecutor and the
learned advocate for the accused were heard, the learned trial
Court by the impugned judgment and order was pleased to acquit
the accused from all the charges leveled against them.
3. Being aggrieved and dissatisfied with the said judgement and order
of acquittal, the appellant – State has filed the present appeal
mainly stating that the impugned judgement and order of acquittal
is contrary to law and principles of justice and the judgment and
order is based on inferences not warranted by facts of the case and
also on the presumption not permitted by law. That the prosecution
has produced the evidence of ten witnesses and eleven
documentary evidences and has proved the case beyond reasonable
doubts and the complainant and his wife who are the independent
witnesses have fully supported the case of the prosecution. That
the eye witness Mansunghbhai Jethaji Thakore has also supported
the case of the prosecution and he is an independent witness but
the learned trial Court has not relied upon his evidence. Moreover,
the learned trial Court has disbelieved the evidence of the
complainant and his wife stating that they are relatives but has not
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considered the evidence of the eye-witness and even though there
is medical evidence to corroborate the say of the complainant, the
learned trial Court has given undue importance to minor
contradictions and omissions and has committed a grave error in
acquitting the respondent. That the impugned judgment and order
of acquittal is improper perverse, bad in law and is required to be
quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant – State and
learned advocate Mr. N.P.Chaudhary for the respondent. Perused
the impugned judgement and order of acquittal and have
reappreciated the entire evidence of the prosecution on record of
the case.
5. Learned APP Ms. Jirga Jhaveri appearing for the appellant-State
has taken this Court through the entire evidence of the prosecution
and has vehemently argued that the learned trial Court has not
considered the evidence of both the eye-witnesses i.e. the
complainant and his wife, who are consistent in their statements
and has also not considered that the independent witness has also
supported the case of the prosecution. That, the prosecution has
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proved that the accused uttered the caste slurs and while the
complainant and his wife had gone to take the seeds, the accused
has abused them and has refused to give them the seeds and has
also assaulted them with the sticks and hence as the prosecution
has proved the case beyond reasonable doubts, the appeal must be
allowed and the impugned judgment and order of acquittal must be
quashed and set aside.
6. Learned advocate Mr. N.P.Chaudhary for the respondent has
submitted that the learned trial Court has appreciated all the
evidence in correct perspective and there is no iota of evidence that
the accused had received the seeds from the government and it was
the accused, who had to distribute the seeds to the farmers. The
Investigating Officer has admitted that he has not conducted any
investigation in this regard and it is a false case filed against the
accused as the complainant wanted to take revenge regarding the
election that had taken place. As per the case of the prosecution,
the incident had occurred on 16/07/2007 at 07:00 am, but the
complainant and his wife had gone to the hospital after more than
twelve hours and as per the medical certificates produced at Exh.
16 and 17 respectively, the complainant and his wife have not
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named the accused and the person, who had assaulted them, before
the Medical Officer. Moreover, the Medical Officer has stated that
the injury could be sustained if a person falls down and it appears
that merely with the intention of taking revenge, the complainant
has filed the false case. The learned trial Court has appreciated all
the evidence properly and no interference is required and the
learned advocate for the respondent has urged this Court to reject
the appeal of the appellant.
7. At the outset, before discussing the facts of the present case, it
would be appropriate to refer to the observations of the Apex Court
in the case of Chandrappa & Ors. Vs. State of Karnataka reported
in 2007 (4) SCC 415, wherein, the Apex Court has observed as
under:
Recently, in Kallu v. State of M.P., (2006) 10 SCC 313 : AIR 2006 SC
831, this Court stated; “While deciding an appeal against acquittal, the
power of the Appellate Court is no less than the power exercised
while hearing appeals against conviction. In both types of appeals, the
power exists to review the entire evidence. However, one significant
difference is that an order of acquittal will not be interfered with, by
an appellate court, where the judgment of the trial court is based on
evidence and the view taken is reasonable and plausible. It will not
reverse the decision of the trial court merely because a different view
is possible. The appellate court will also bear in mind that there is a
presumption of innocence in favour of the accused and the accused is
entitled to get the benefit of any doubt. Further if it decides to
interfere, it should assign reasons for differing with the decision of the
trial court”. (emphasis supplied)Page 9 of 21
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From the above decisions, in our considered view, the following general
principles regarding powers of 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 Code of Criminal Procedure, 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 more in
the nature of ‘flourishes of language’ to emphasize 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 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.
7.1 The Apex Court in yet another recent decision in case of Sri
Dattatraya Vs. Sharanappa arising out of Criminal Appeal No.
3257 of 2024 (@ SLP (Crl.) No. 13179 of 2023) observed as
under:
31. The instant case pertains to challenge against concurrent findings of fact
favouring the acquittal of the respondent, it would be cogent to delve into an
analysis of the principles underlining the exercise of power to adjudicate a
challenge against acquittal bolstered by concurrent findings. The followingPage 10 of 21
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broad principles can be culled out after a comprehensive analysis of judicial
pronouncements:
i) Criminal jurisprudence emphasizes on the fundamental essence of liberty
and presumption of innocence unless proven guilty. This presumption gets
emboldened by virtue of concurrent findings of acquittal. Therefore, this
court must be extra cautious while dealing with a challenge against acquittal
as the said presumption gets reinforced by virtue of a well-reasoned
favourable outcome. Consequently, the onus on the prosecution side becomes
more burdensome pursuant to the said double presumption.
ii) In case of concurrent findings of acquittal, this Court would ordinarily not
interfere with such view considering the principle of liberty enshrined in
Article 21 of the Constitution of India 1950, unless perversity is blatantly
forthcoming and there are compelling reasons.
iii) Where two views are possible, then this Court would not ordinarily
interfere and reverse the concurrent findings of acquittal. However, where the
situation is such that the only conclusion which could be arrived at from a
comprehensive appraisal of evidence, shows that there has been a grave
miscarriage of justice, then, notwithstanding such concurrent view, this Court
would not restrict itself to adopt an oppugnant view. [Vide State of Uttar
Pradesh v. Dan Singh]
iv) To adjudge whether the concurrent findings of acquittal are ‘perverse’ it is
to be seen whether there has been failure of justice. This Court in Babu v.
State of Kerala clarified the ambit of the term ‘perversity’ as
“if the findings have been arrived at by ignoring or excluding relevant
material or by taking into consideration irrelevant/admissible material. The
finding may also be said to be perverse if it is ‘against the weight of
evidence’, or if the finding so outrageously defies logic as to suffer from the
vice of irrationality.”
v) In situations of concurrent findings favoring accused, interference is
required where the trial court adopted an incorrect approach in framing of an
issue of fact and the appellate court whilst affirming the view of the trial
court, lacked in appreciating the evidence produced by the accused in
rebutting a legal presumption. [Vide Rajesh Jain v. Ajay Singh]
vi) Furthermore, such interference is necessitated to safeguard interests of
justice when the acquittal is based on some irrelevant grounds or fallacies in
re-appreciation of any fundamental evidentiary material or a manifest error of
law or in cases of non-adherence to the principles of natural justice or the
decision is manifestly unjust or where an acquittal which is fundamentally
based on an exaggerated adherence to the principle of granting benefit of
doubt to the accused, is liable to be set aside. Say in cases where the court
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severed the connection between accused and criminality committed by him
upon a cursory examination of evidences. [Vide State of Punjab v. Gurpreet
Singh and Others and Rajesh Prasad v. State of Bihar.]
8. The law with regard to acquittal appeals is well crystallized and in
acquittal appeals, there is presumption of innocence in favour of
the accused and it has finally culminated when a case ends in an
acquittal. That the learned Trial Court has appreciated all the
evidence and when the learned Trial Court has come to a
conclusion that the prosecution has not proved the case beyond
reasonable doubts, the presumption of innocence in favour of the
accused gets strengthened. That there is no inhibition to re
appreciate the evidence by the Appellate Court but if after re
appreciation, the view taken by the learned Trial Court was a
possible view, there is no reason for the Appellate Court to interfere
in the same.
9. In light on the above settled principles on law considering the
evidence on the prosecution, the prosecution has examined
Prosecution Witness No. 1 Chhagansinh Karamsinh Thakore at
Exh. 8 and Prosecution Witness No. 2 Hemjibhai Virdasbhai Patel
at Exh. 10. Both the witnesses are the panch witnesses of the
panchnama of place of offence, which is produced at Exh.9 and
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both the witnesses have stated that they were called by the Police
and asked to affix their signatures on a panchnama, which was
already prepared and they had affixed their signatures on the
panchnama, which is produced at Exh.9. The witness has stated
that they have not gone to the place of incident with police and as
they have not supported the case of the prosecution, they have been
declared hostile and have been cross examined by the learned
Additional Public Prosecutor. During the cross examination,
nothing has come on record to support the case of the prosecution.
9.1 The prosecution has examined Prosecution Witness No. 3
Jivrajbhai Vaghabhai Patel at Exh. 11 and Prosecution Witness No.
4 Kanjibhai Gagabhai Patel at Exh.13. Both the witnesses are the
panch witnesses of the panchnama produced at Exh. 12, which is
the panchnama, by which the the accused had voluntarily given
the stick that was used at the time of the incident and the stick was
seized in the presense of the panch witnesses but both the
witnesses have merely stated that the police had called them and
had asked them to affix their signatures on the panchnama, which
is at Exh. 12. The witnesses have stated that no stick was seized
from any person in their presence and both the panch-witnesses
have declared hostile and being cross-examined by the learned
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Additional Public Prosecutor but nothing to support the case of the
prosecution has come on record.
9.2 The prosecution has examined Prosecution Witness No. 5
Dr. Pankaj Laxminarayan Gupta at Exh. 14 and the witness is the
Medical Officer, who was on duty at Community Health Centre,
Tharad on 16/70/2007. The witness has stated that while he was on
duty at 6:40 pm, Karmaben Nagjibhai had come with a Yadi from
PSO for treatment and she had stated a history of assault at 07:00
pm. On examination, she had a swelling on left lateral posterior
aspect of upper forearm and the injury caused by a hard and blunt
substance. The injury was a simple injury and the witness has
produced the medical certificate at Exh. 16. The witness has stated
that on the same day Nagjibhai Dharmabhai Harijan was also
examined and he had given history of assault by stick at 07:00 pm
and he had abrasion on right cheek below the eye, which was 0.5
cm-0.5 cm. The injury was simple injury and the medical
certificate is produced at Exh. 17. During the cross-examination
by the learned advocate for the accused, the witness has stated that
both the persons would sustain the injury by a fall.
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9.3 The prosecution has examined Prosecution Witness No. 6
Nagjibhai Dharmabhai at Exh. 20 and the witness is the
complainant who has deposed as per the complaint. The witness
has stated that on 16/07/2007, he had gone with his wife to the
house of the accused to take seeds and at that time, the accused
told them that he had sold the seeds. The complainant asked him
for the names of the person to whom the seeds were sold and that
time, the accused got angry and took a stick and abused them with
caste-slur and gave a push with the stick on the face of the
complainant, who started bleeding and as his wife intervened she
was beaten with a stick. That his wife shouted and she sustained
the injury on the left elbow and Mansunghbhai Jethabhai Thakore
rushed and saved them for further beating. That they went home
and thereafter went to the Tharad Police Station in a truck and
went to the Hospital for treatment. The complainant has produced
the complaint at Exh. 21. During the cross-examination by the
learned advocate for the accused, the witness has stated that
accused was a Surpanch of the village from 2005-2007. That the
complainant was the chairman of the Nyaya Samiti in the
panchayat. The road infront of the house of the accused is a public
road going towards the bus-stand and he has not stated in his
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complaint that the accused had told him that the seeds were over.
That he had filed cases under the Atrocities Act against Devrajbhai
Dhanabhai and Ravjibhai Ajabhai also.
9.4 The prosecution has examined Prosecution Witness No. 7
Karmaben Nagjibhai at Exh.22 and the witness is the wife of the
complainant who was present along with the complainant on the
date of incident as per the case of the prosecution. The witness has
stated the same facts as narrated by the complainant and during the
cross-examination by the learned advocate for the accused, she has
stated that the seeds were received at the place of the Sarpanch
two months prior to the incident and they had gone to the house of
the Sarpanch to take the seeds. That in the statement recorded by
the Investigating Officer, she has not stated that her husband had
asked for the seeds and the Thakore Mohalla is situated in-front of
the house of the Sarpanch.
9.5 The prosecution has examined Prosecution Witness No. 8
Mansungbhai Jethaji Thakore at Exh. 25 and the witness has stated
that on the date of the incident, he was going to the village in the
morning at 07:00 am and at that time, Karmaben Nagjibhai
Harijan, was shouting and he went to save her and at that time he
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saw the accused giving a push with the stick on the face of the
complainant and while the accused raised the stick to hit the
complainant, the wife of the complainant was injured on the left
hand. That he intervened and save them for further beating and at
that time, the accused gave caste-slur and threatened to kill the
complainant and he had asked the complainant the reason for the
quarrel and the complainant had stated that he had asked the
accused about the seeds and they had an altercation. During the
cross-examination the witness has stated that on the date of the
incident, he was going from his house to the village and in the
statement before the Police, she has not stated that the accused and
the complainant and his wife were quarreling about the seeds. That
there was an election of the Sarpanch two months prior and he had
not gone to take the seeds and he does know whether the Gram
Sevak was the authority to distribute the seeds.
9.6 The prosecution has examined Prosecution Witness No. 9
Bhikhabhai Bhagwandas Patel at Exh. 26 and the witness is the
Investigating Officer, who has deposed in detail about the
procedure that was undertaken by him and during the
investigation, the witness has stated that he has not taken
statement of any person as to whether the Sarpanch is given the
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authority to distribute the seeds and he has not investigated as to
how much seeds were given to the Sarpanch and how much he had
distributed. During the investigation, the statements of neighbour
surrounding the place of incident, have not been recorded and he
had not seized the caste certificate of the accused. That during the
investigation, the wife of the complainant has not stated that they
were going to the house of the accused to get the seeds and the
accused had met them at the gate of Thakore Vas and they had
asked him for the seeds.
9.7 The prosecution has examined Prosecution Witness No. 10
Virendrasinh Deepsinh at Exh. 28 and the witness is the PSO,
Tharad Police Station, who has registered the complaint of the
complainant.
10. On minute re-appreciation of the evidence of the prosecution and
the impugned judgment and order of acquittal, it appears that the
learned trial Court has thoroughly appreciated all the evidence on
record and has given due consideration to all material pieces of
evidence. Admittedly, the incident has occurred on 16/07/2007 at
07:00 pm and the complainant and his wife were examined by the
Prosecution Witness No. 5 Medical Officer Dr. Pankaj
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Laxminarayan Gupta at 06:41pm and 06:45pm respectively. There
was a delay of almost 12 hours in going to the hospital and the
delay has not been explained by the complainant or his wife and in
medical certificate produced at Exh. 16 and Exh. 17, both the
complainant and his wife have not named the accused as the
person, who had assaulted them. The complainant and his wife had
merely given the history of assault by stick by 07:00am and have
not stated the place where they have assaulted and the person, by
whom, they were assaulted. The injuries sustained by both the
complainant and his wife are minor injuries and as per the evidence
of the medical officer, the injuries could be sustained by a fall. The
complainant has stated that after the incident, they had gone home
and had thereafter, gone to the Police Station and there is no
explanation regarding the delay and at what time they had left from
their house to go to the Police Station and thereafter to the
Hospital. As far as the evidence of the independent witness
Mansungbhai Jethaji Thakore at Exh: 8, the witness does not seem
to be reliable and his evidence does not conspire any confidence as
there are number of contradictions in his evidence. It is also on
record that the elections were held two months prior and it appears
that there was some animosity regarding the election and the
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accused was a Sarpanch, the complaint has been filed. Moreover,
the complainant has earlier filed cases under Atrocities Act against
Devrajbhai Dhanabhai and Ravjibhai Ajabhai also. Moreover, there
is no iota of evidence that the accused was in fact, the competent
authority to receive the seeds from the government and distributed
the same and it appears that the Investigating Officer has not
investigated anything about the say of the complainant. There is no
evidence as to whether the seeds were received by the accused,
whether he had in fact distributed or sold the seeds and the quantity
of the seeds that were distributed or sold and the learned trial Court
has appreciated all the evidence and has come to the conclusion
that the prosecution has not prove the case beyond reasonable
doubts. Moreover, the learned trial Court has discussed the reasons
for not believing the say of the complainant and has passed the
impugned judgement and order.
11. In view of the settled position of law in the decisions of
Chandrappa (Supra) and Sri Dattatraya (Supra), the learned trial
Court has appreciated the entire evidence in proper perspective and
there does not appear to be any infirmity and illegality in the
impugned judgment and order of acquittal. The learned Trial Court
has appreciated all the evidence and this Court is of the considered
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NEUTRAL CITATION
R/CR.A/1650/2008 JUDGMENT DATED: 16/01/2025
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opinion that the learned Trial Court was completely justified in
extending benefit of doubt and acquitting the accused of the
charges leveled against him. The findings recorded by the learned
Trial Court are absolutely just and proper and no illegality or
infirmity has been committed by the learned trial Court and this
Court is in complete agreement with the findings, ultimate
conclusion and the resultant order of extending benefit of doubt
and acquittal recorded by the learned Trial Court. This Court finds
no reason to interfere with the impugned judgment and order and
the present appeal is devoid of merits and resultantly, the same is
dismissed.
12. The impugned judgement and order of acquittal passed by the
learned Additional Sessions Judge, 3rd Fast Track Court, Deesa
Camp at Deodar in Special Case No. 155 of 2007 on 12/03/2008, is
hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be sent back
to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VVM
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