Gujarat High Court
State Of Gujarat vs Ashokbhai Bachubhai Bheda on 31 January, 2025
NEUTRAL CITATION
R/CR.A/364/2008 JUDGMENT DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 364 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
ASHOKBHAI BACHUBHAI BHEDA & ORS.
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Appearance:
MR.BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR NISHITH P THAKKAR(2836) for the Opponent(s)/Respondent(s) No. 1,2
UNSERVED EXPIRED (R) for the Opponent(s)/Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 31/01/2025
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 &
Presiding Officer, Fast Track Court No.6, Gondal camp at Jetpur
(hereinafter referred to as “the learned Trial Court”) in Special (ATRO)
Case No. 04 of 2005 on 25.07.2007, whereby, the learned Trial Court has
acquitted the respondents for the offence punishable under Sections 354,
506(2), 323, 114 and 510 of Indian Penal Code, 1860 (hereafter referred
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to as “IPC” for short), Section 37(1) and 135 of the Bombay Police Act
and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (hereafter referred to as “Atrocities
Act” for short).
1.1 The respondents are hereinafter referred to as the accused in the rank
and file as they stood in the original case for the sake of convenience,
clarity and brevity.
1.2 During the pendency of this appeal, the respondent No. 3- Original
Complainant has expired.
2. The brief facts that emerge from the record of the case are as under:
2.1 The complainant Jayaben Dilipbhai Dabhi has filed the complaint on
13.07.2004 on the basis of an application that she had given to DSP
(Rural) Rajkot stating that on 13.07.2004, at around 01:00 pm, she was
going to drop her son Mayur to the village school and while she reached
near cabin of Khant Jugi, the accused No. 1, who was in an inebriated
condition, passed remarks to outrage her modesty and when she reached
near Madhi of Jalarambapa, both the accused came behind her in a
rickshaw and at that time Jyotsnaben Khant was standing near her and
the acused No. 1 caught her by her arm and assaulted her with fists and
he took a iron rod and hit her on the left hand elbow and as she shouted,
her neighbor Dahyabhai Bagda came and both Dahyabhai Bagda and
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Jyotsnaben intervened and ensured that the accused calm down. At that
time both the accused used caste-slurs and threatened to kill her and took
the rickshaw and went away. That she sat on the scooter of her neighbor
Mukeshbhai Jadav and went to Jetpur Taluka Police Station and after
some time both the accused came to Jetpur Taluka Police Station. That
she went to Rajkot Government Hospital for treatment and filed the
complaint under Sections 354, 504, 506(2), 114 and 323 of the IPC,
Sections 37(1) and 135 of the Bpmbay Police Act, and Section 3(1)(10)
of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)
Act, 1989.
2.2 The Investigating Officer recorded the statements of the connected
witnesses and seized the necessary documents and after completion of
investigation, a chargesheet came to be filed before the learned Judicial
Magistrate, First Class, Jetpur and as the said offences against the
accused were exclusively triable by the Court of Sessions, the case was
committed to the Sessions Court, Gondal Camp at Jetpur as per the
provisions of Section 209 of the Code of Criminal Procedure and case
was registered Special (ATRO) Case No. 04 of 2005.
2.3 The accused were 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
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provisions of Section 207 of the Code and a charge at Exh. 7 was framed
against the accused and the statements of the accused were recorded at
Exhs. 8 and 9 respectively, 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. Name of the Witnesses Exh.
No. Nos
1. 1. Vinodbhai Veljibhai Dabhi 11
2. 2. Valjibhai Ramabhai Dabhi 13
3. 3. Jayaben Dilipbhai Dabhi 17
4. 4. Dharmendra Hakubhai Makwana 22
5. 5. Dahyabhai Devsibhai Bagda 24
6. 6. Pravinbhai Mangabhai Gohel 30
7. 7. Mansukhbhai Vaghjibhai Dhuliya 31
8. 8. Vasrambhai Mavjibhai 32
9. 9. Dr. Mansukhlal Chhaganbhai 33
10. 10. Dr. Mukesh Jethalal Upadhyay 37
11. 11. Mukesh Mohanbhai Jadav 40
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12. 12. Bhanajibhai Chimanbhai Gavit 42
13. 13. Abdulbin Mahhamadbhai Aarab 46
14. 14. Tarlikaben Chaturbhai Patel 49
15. 15. Sikandarkhan Siddiqkhan Pathan 51
DOCUMENTARY EVIDENCES
Sr. Particulars Exh.
No.
1. Arrest Panchnama 12
2. Panchnama of place of offence 14
3. Complaint 18
4. Caste Certificate 19
5. Complaint 20
6. Arrest Panchnama 23
7. Medical Certificate 34
8. Police Yadi 35
9. Permission letter for filing charge sheet 36
10. Arrest Panchanama 38
11. OPD Case Papers 39
12. Extract of Station diary 43
13. Report 44
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14. Report 45
15. Extract of Complaint 47- 48
16. Police Yadi 52
17. Order of Additional District Magistrate 53
2.5 After the learned Additional Public Prosecutor filed the closing
pursis at Exh. 54, the further statement of the accused under Section 313
of the Code of Criminal Procedure, 1973 was recorded wherein the
accused denied all the evidence of the prosecution and stated that a false
case has been filed 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 passed by the
learned Trial Court is contrary to law and evidence on record and the
learned Trial Court has not appreciated the version of the complainant
and witness Dahyabhai Devsibhai Bagda, who have both supported the
complaint. The Medical Officer also stated that in the history, the
complainant had stated that the respondents had abused and beat her and
has narrated the injuries received by the complainant. That even before
the Medical Officer, Dr.Mukesh Jethalal Upadhyay, who was discharging
his duty at Civil Hospital, Rajkot, the history was similar and she has
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named the respondents as the persons, who had assaulted her but the
learned Trial Court has not appreciated the evidence in proper
perspective. The learned Trial Court has erroneously come to a
conclusion that there are major discrepancies in the depositions of the
witnesses and there was no reason for the complainant to falsely
implicate the respondents but the learned Trial Court has misread and
mis-appreciated the evidence, which has resulted into a miscarriage of
justice. The impugned judgment and order is improper, perverse and bad
in law and is required to be quashed and set aside.
4. Heard learned APP Mr. Bhargav Pandya and learned advocate Mr.
Nishith P Thakkar for the respondents. 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 Mr. Bhargav Pandya has taken this Court through the
entire evidence of the prosecution on record of the case and has
submitted that the complainant has fully supported the case of the
prosecution and immediately after the incident she had gone to Jetpur
Taluka Police Station but she has clarified that as she was afraid, she did
not mention about the words used to outrage her modesty and caste-slurs
by the respondents at that time of the incident. That there is corroborative
evidence in form of evidence of the witnesses but the learned Trial Court
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has not considered the same and relying on minor contradictions and
omissions, has passed the impugned judgment and order. Learned APP
has urged this Court that the impugned judgement and order is improper,
perverse and bad in law and is required to be quashed and set aside.
6. Learned Advocate Mr. Nishith Thakkar appearing for the
respondents has submitted that there are no reason to interfere in the
judgment and order passed by the learned Trial Court and the same is
proper. Hence, the impugned judgment and order passed by the learned
Trial Court is required to be allowed.
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
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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:
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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 following broad principles can be culled out after a
comprehensive analysis of judicial pronouncements:
i) Criminal jurisprudence emphasises 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 extracautious 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.”
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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 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
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possible view, there is no reason for the Appellate Court to
interfere in the same.
9. In light on the above settled principles of law and
considering the evidence on the prosecution, to bring home the
charge against the accused, the prosecution has examined
Prosecution Witness No. 1 – Vinodbhai Veljibhai Dabhi at Exh.11
and Prosecution Witness No. 6 Pravinbhai Mangabhai Gohel at
Exh.30. Both the witnesses are the panch-witnesses of the arrest
panchnama produced at Exh. 12 whereby both the accused were
arrested and rickshaw No. GJ-11-V-9419 was seized by the
Investigating Officer. Both the witnesses have stated that on
04.08.2004, Jetpur Taluka Police had called them and asked them
to affix their signatures on a ready panchnama and no person was
arrested in their presence or no iron rod or rickshaw was seized in
their presence. Both the witnesses have been declared hostile and
have been cross examined by the learned APP but nothing to
support the case of the prosecution has come on record.
9.1 The prosecution has examined Prosecution Witness No. 2 – Valjibhai
Rambhai Dabhi at Exh. 13 and Prosecution Witness No. 8 Vasrambhai
Mavjibhai Bagda at Exh. 32. Both the witnesses are the panch witnesses
of the panchnama of the place of offence, which is produced at Exh. 14.
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Both the witnesses have stated that on 31.07.2004 while they were on the
road, the Police came and asked them to affix their signature on the
panchnama and they have not gone with the police to prepare the
panchnama of any place of offence. Both the witnesses have been
declared hostile and have been cross-examined at length by the learned
APP but nothing to support the case of the prosecution has come on
record.
9.2 The prosecution has examined Prosecution Witness No. 3 – Jayaben
Dilipbhai Dabhi at Exh. 17 and the witness is the complainant, who has
stated that she does not remember the date of incident but at around
01:00 pm she was going to drop her son Mayur to the village school and
when she reached near the shop of Jugibhai, the accused No. 1 was
sitting in a inebriated condition and made an obscene comment on her
and while she reached the Madhi of Jalarambapa, both the accused came
in a rickshaw and at that time, she was talking to Jyotsnaben Khant. The
accused No. 1 came and caught her arm and assault her and took an iron
rod and hit her on the left elbow and back. That at that time, Dahyabhai
Devsibhai Bagda came and he and Jyotsnaben intervened and released
her from the hold of the accused. Both the accused threatened to kill her
and took the rickshaw and went away and she went to the Police Station
on the scooter of her nephew Mukesh Jadav and from the Police Station
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she went to the Civil Hospital, Jetpur for treatment. On the next day, her
father came and took her to the Government Hospital at Rajkot and she
went and met an advocate, who prepared an application and she had sent
the application to DSP (Rural), Rajkot. That she was admitted in the
Government Hospital for four days and thereafter she was called to the
Jetpur Taluka Police Station, where, she filed the complaint, which is
produced at Exh. 18. The application that she had sent to DSP (Rural),
Rajkot prepared by her advocate is produced at Exh. 20. During the
cross-examination by the learned advocate for the accused, the witness
has stated that, on 13.07.2004, immediately after the incident, she did not
tell the police about the obscene comment made by the accused and the
caste-slurs used by the accused. That the application was prepared after
taking advise from the advocate and in the complaint, she has not stated
that the accused outraged her modesty and caught her hand and used
caste-slurs. At that time of the incident, the accused No. 1 had purchased
a new rickshaw and on 13.07.2004, the accused filed a complaint against
her and at that time he had received injuries on his hand, knee and foot.
9.3 The prosecution has examined Prosecution Witness No.4 –
Dharmedra Hakubhai Makwana at Exh. 22 and Prosecution Witness No.
7 Mansukhbhai Vaghjibhai Mudiya at Exh. 31. Both the witnesses are
panch witnesses of the arrest panchnama of the accused No. 1 produced
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at Exh. 23, whereby the accused was arrested on 13.07.2004 at 15:45 Hrs
in the offence under Sections 65(1)(b), 85 (1)(3) of the Prohibition Act.
Both the panch-witnesses have stated that on 13.07.2004, they had
affixed their signatures on the ready panchnama and no person was
arrested in their presence. Both the panch-witnesses have not supported
the case of the prosecution and both the witnesses have been declared
hostile. During the cross examination by the learned APP, nothing to
support the case of the prosecution have come on record.
On perusal of the panchnama produced at Exh. 23, it is the arrest
panchnama of the accused No.1, and at the time of the arrest, the accused
No. 1 was injured on his right knee, which was bleeding and on his right
eye. The accused had stated that he had sustained the injuries in a
quarrel.
9.4 The prosecution has examined Prosecution Witness No. 5 –
Dahyabhai Devsibhai Bagda at Exh. 24 and the witness is the eye-
witness to the incident, who has stated that he had gone to Premjibhai’s
shop and while returning, he heard that the accused No. 1 was going to
assault the complainant and hence he took his cycle and followed him
and saw the accused No. 1 assaulting the complainant. The accused No. 1
had an iron rod and his wife had a stick and both were hitting the
complainant and he intervened and released the complainant and the
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complainant and the accused went away to their respective houses. Later
on, he came to know that the complainant had gone to the hospital.
During the cross-examination by the learned advocate for the accused, he
has stated that he has good relation with the complainant as they are of
the same caste. On the day of the incident, the accused No. 1 had
purchased a new rickshaw and it was a passenger rickshaw and they all
were standing and having a conversation and telling him that it would
have been better if he had purchased a goods rickshaw and the accused
No. 1 had stated that he could use his rickshaw to fill goods. That as they
were talking about goods and the accused No. 1 and the complainant had
a verbal altercation and everyone tried to make the complainant explain
that they were talking about goods but the complainant was abusing them
and did not heed to their say. That whatever he stated in the examination-
in chief was stated as per the say of the complainant and the accused No.
1 did not injure anyone at the time of the incident. That he was present at
the place of incident and was the person to intervene between them. The
witness, immediately, thereafter says that he had reached the spot, after
the incident had occurred and the complainant was not injured and her
clothes were not torn.
9.5 The prosecution has examined Prosecution Witness No. 9 – Dr.
Mansukhlal Chhaganlal Gajera at Exh. 33 and the witness is the Medical
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Officer, who was working at the Government Hospital, Jetpur on
13.07.2004, while the complainant had gone for treatment and in the
history, she had stated that the accused No. 1 had assaulted her with the
stick in-front of Panch-Pipda School near Bavaji Madhi. On
examination, the complainant had a swelling at upper forearm about 4cm
X 3 cm X 2 cm and an abrasion on the right elbow about 0.3 cm. That
the complainant was treated as an OPD patient and the witness has given
the certificate, which is produced at Exh. 34. During the cross-
examination by the learned advocate for the accused, the witness has
stated that the injury No. 1 could occur by an insect bit, reaction to
medicine or could be occur by both. Both the injuries on the complainant
were simple injuries and if an injury is caused by stick or an iron rod,
there would be a parallel-bruises as per the size of the weapon. That the
complainant did not have any parallel-bruise and there is no mention that
the clothes of the complainant were torn, in the medical certificate. The
complainant did not say that she was assaulted by an iron rod and there
was no injury on the back of the complainant. The Medical Officer has
opined that the injuries of the complainant could be self-inflicted.
9.6 The prosecution has examined Prosecution Witness No. 10 – Dr.
Mukesh Jethalal Upadhyay at Exh.37 and the witness is the medical
officer working at Civil Hospital, Rajkot and he has stated that on
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14.07.2004, the complainant had come for treatment with history of
assault. That she had pain in the forearm, both knees, legs, chest and
back but no external injuries were found. The witness has produced the
medical certificate at Exh. 38 and he has stated that the complainant was
given OPD treatment and discharged. During the cross-examination by
the learned advocate for the accused, the witness has stated that there
were no marks of injury on the body of the complainant and it could be a
false complaint. That when he had examined the complainant, there was
no injury on her forearm or elbow.
9.7 The prosecution has examined Prosecution Witness No. 11 –
Mukeshbhai Mohanbhai @ Manubhai Jadhav at Exh. 40 and the witness
is nephew of the complainant, who has supported the case of the
prosecution and has stated that he had taken the complainant to Jetpur
Taluka Police Station and from there to Civil Hospital, Rajkot. The
witness is not an eye witness to the incident and during the cross-
examination by the learned advocate for the accused, he has stated that
he was not present at the time of the incident and he has no personal
knowledge about the same.
9.8 The prosecution has examined Prosecution Witness No. 12 –
Bhanjibhai Chimanbhai Gavit at Exh. 42 and the witness was working as
PSO at Jetpur Taluka Police Station and he had registered the complaint
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of the complainant and has produced the extract of Station Diary by
which the offence was registered being I-C.R.No. 133 of 2004 at Exh.
43.
9.9 The prosecution has examined Prosecution Witness No. 13 –
Abdulbin Mohammadbhai Aarab at Exh. 46 and the witness was working
as a Head Constable at Jetpur Taluka Police Station on 13.07.2004. The
witness has stated that PSO Tarlikaben had registered NC C.R.No. 25 of
2004 under Section 323, 504, 506(2) and 114 of the IPC and had sent it
for investigation and he had done the procedure and filed the a chapter
case against the accused. That thereafter the complainant Jayaben
Dilipbhai submitted an application to the DSP and he had gone twice to
Panch-Pipada village for investigation but the applicant was not found
and on 31.07.2004, she filed a complaint under Sections 354, 323, 504,
506(2) and 114 of the IPC and Section 3(1)(10) of the Atrocities Act and
Section 37(1) and 135 of the Bombay Police Act. During the cross
examination by the learned advocate for the accused, the witness has
stated that the complainant filed NC case No. 25 of 2004 on 13.07.2004
at Jetpur Taluka Police Station and in the NC complaint, a chapter case
was filed. The witness has produced the necessary documents at Exh. 47
and Exh. 48 and has stated that on the same day, the accused No. 1 had
also filed an NC case against the complainant which was also
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investigated by him and he had taken necessary steps and filed a chapter
case against the complainant. That in the complaint filed at Exh: 47, the
complainant has not stated that any caste-slurs were used or that the
accused had assaulted her with an iron rod or that her modesty was
outraged. That, in fact, in her NC complaint at Exh.47, she has stated that
she had abused the accused No. 1 and had scratched him with her nails.
9.10The prosecution has examined Prosecution Witness No. 14-
Tarlikaben Chaturbhai Patel at Exh. 49 and the witness is the PSO, who
has registered NC cases, while on duty at Jetpur Taluka Police Station on
13.07.2004 between 12:00 to 20:00 Hrs. During the cross-examination
by the learned advocate for the accused, the witness has stated that in NC
complaint at Exh. 47, the complainant has not stated that she was
insulted with caste abuses or any obscene assault or that she was
assaulted with an iron rod. In the NC complaint at Exh. 47, she has stated
that she abused the accused No. 1 and had scratched him with her nails.
9.11The prosecution has examined Prosecution Witness No. 15 –
Sikanderkhan Siddiqkhan Pathan at Exh.51 and the witness is the
Investigating Officer, who has narrated in detail the procedure that he
had undertaken while investigating the offence. During the cross
examination by the learned advocate for the accused, the witness has
stated that the complainant did not have any visible injuries on her and
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during investigation, it was found that on 13.07.2004 NC case No. 25 of
2004 was filed and thereafter the complainant gave the application to
DSP (Rural), Rajkot and the complaint was registered on 31.07.2004. In
her statement, the complainant had stated that she was abusing the
accused No. 1.
10. On minute dissection of the entire evidence of the prosecution, the
infirmities in the evidence have come on record and there is no iota of
evidence that any incident of outraging the modesty of the complainant
or using caste-slurs by the accused has occurred at the time of the
incident. From the evidence of the prosecution on record, it is proved that
on 13.07.2004, the accused No. 1 had purchased a new rickshaw and he
and others were standing and having a conversation and the others were
telling him as to why he did not bring a goods vehicle and as he had
brought a passenger vehicle, he told them that he could fill goods in this
vehicle. It appears to be simple conversation between the accused No. 1
and others and the complainant, who was passing by, felt that they were
making obscene comments about her. That she immediately, she went to
Jetpur Police Station and NC Case No. 25 of 2004 was filed by her
against the accused No. 1 and the accused No. 2 reached the Jetpur
Taluka Police Station and he too filed an NC case against the
complainant. That in her complaint, the complainant did not mention any
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words used by the accused No. 1 to outrage her modesty or any caste-slur
used by the accused No. 1 but she had stated that she abused the accused
No. 1 and scratched him and it appears that there was a verbal altercation
and a physical assault by the complainant on the accused No. 1. The
procedure regarding the NC cases was undertaken by the Prosecution
Witness No. 13 and on the next day, the complainant took the advice of
an advocate and thereafter gave the application to the DSP (Rural),
Rajkot, which is produced at Exh. 20. The complainant has herself stated
that she had taken the advice of an advocate and thereafter had given the
application which is purely as an afterthought and the complaint has been
filed on 13.07.2004 about 17 days after the incident. The say of the
complainant is not supported by any medical officer as both the Medical
Officers have opined that the injuries were simple injuries and could be
self-inflicted and even an eye-witness, Prosecution Witness No. 5 has
stated that the complainant was abusing the accused No. 1. In the entire
evidence of the prosecution, the presence of the accused No. 2 is not
made out and the learned Trial Court has appreciated the evidence of the
complainant in proper perspective.
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
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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 opinion that the learned Trial
Court was completely justified in acquitting the accused of the charges
leveled against them. 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 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 & Presiding Officer, Fast Track Court
No.6, Gondal camp at Jetpur in Special (ATRO) Case No. 04 of 2005 on
25.07.2007, 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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