Gujarat High Court
State Of Gujarat vs Batukbhai Danabhai Khimaniya on 17 January, 2025
NEUTRAL CITATION
R/CR.A/342/2011 JUDGMENT DATED: 17/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 342 of 2011
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
BATUKBHAI DANABHAI KHIMANIYA & ORS.
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Appearance:
MR. BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR RAJESH M CHAUHAN(2470) for the Opponent(s)/Respondent(s) No. 4
MR VIJAY H NANGESH(3981) for the Opponent(s)/Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 17/01/2025
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 Special
Judge & Presiding Officer, Fast Track Court, Jamnagar
(hereinafter referred to as “the learned Trial Court”) in Special
Case (ATRO) No. 16 of 2008 on 22/09/2010, whereby, the learned
Trial Court has acquitted the respondents for the offence
punishable under Sections 323, 337, 504, 506(2) and 114 of Indian
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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 and Section 135(1) of the
Gujarat Police Act.
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.
2. The brief facts that emerge from the record of the case are as
under:
2.1 That the on 14/04/2008, the complainant Babubhai Rajabhai
Chavda was near the brick-kiln situated in the outskirts of Falla
village and all the accused met the complainant and the accused
No. 1 caught hold of the complainant and the others beat the
complainant with fist and stick and thew stones on the
complainant due to which, the complainant was injured. The
accused, at that time, used caste-slurs and threatened the
complainant that they would kill him and the complainant filed
the complaint before the Jamnagar Panchkoshi “A” Division
Police Station, Jamnagar on 14/04/2008 at 17:15 Hrs, under
Sections 323, 337, 304, 506(2) and 114 of the IPC, Section 135 (1)
of the Gujarat Police Act, and Section 3(1)(10) of the Atrocities
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Act, 1989, which was registered before Jamnagar Panchkoshi A
Division Police Station, Jamnagar being I-C.R.No. 36 of 2008.
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, Jamnagar and as the
said offences against the accused were exclusively triable by the
Court of Sessions, the case was committed to the Sessions Court,
Jamnagar as per the provisions of Section 209 of the Code of
Criminal Procedure and case was registered Special Case No. 16
of 2008.
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 provisions of Section 207 of the Code and a
charge at Exh. 5 was framed against the accused and the
statements of the accused were recorded at Exhs. 6, 7 and 8
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
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the charge against the accused.
ORAL EVIDENCE
Sr. P.W. Particulars Exh.
No. Nos 1. 1. Haribhai Kesubhai Khimaniya (Ahir) 10 2. 2. Dahyabhai Karabhai Ahir 12 3. 3. Dr. Parveez Khan Abdul Kadar Pathan 13 4. 4. Rameshbhai Dhanjibhai 18 5. 5. Gandubhai Amrabhai Rathod 20 6. 6. Babubhai Rajabhai Chavda 25 7. 7. Jayaben Babubhai Chavda 27 8. 8. Rameshchandra Damjibhai 31 9. 9. Naranbhai Karshanbhai Chanchiya 33 10. 10. Mohammad Rafik Hajibhai Khalifa 50 11. 11. Jentibhai Becharbhai Vasava 55 DOCUMENTARY EVIDENCES Sr. Particulars Exh. No. 1. Arrest Panchnama 11 2. Certificate of Guru Govindsinh Hospital, Jamnagar 14 3. Injury Certificate 15 4. Medical papers 16 5. Injury Certificate 17 Page 4 of 19 Uploaded by VISHAL MISHRA(HC01088) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:23:22 IST 2025 NEUTRAL CITATION R/CR.A/342/2011 JUDGMENT DATED: 17/01/2025 undefined 6. Medical Papers 18 7. Panchnama 19 8. Complaint 25 9. Extract of Station diary 34 10 Copies of FIR's registered against the complainant 35-48 11 Caste certificate of the complainant 51 12 Extract of Register 52 13 Notification of Additional District Magistrate, 53 Jamnagar 14 R.C.Book of Motorcycle No. GJ-10-AG-2118 54 15 Depute Order 56
After the learned Additional Public Prosecutor filed the closing
pursis at Exh. 57, the further statement of the accused under
Section 313 of the Code of Criminal Procedure, 1973 were
recorded, wherein, the accused denied all the evidence of the
prosecution on record. The accused refused to step into the witness
box and/ or examine witnesses on their behalf and mainly stated
that they are innocent and a false case has been filed against them.
The complainant is habitual of filing cases under the Atrocities Act
and hence has filed the false case against them. After the
arguments of the learned Additional Public Prosecutor and the
learned advocate for the accused were heard, the learned trial
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Court by the impugned judgment and order was pleased to acquit
all the accused from all the charges leveled against him.
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 without properly
appreciating the evidence of the witnesses has disbelieved and
disregarded the evidence. The learned trial Court has not
appreciated the version of the medical officer, who has supported
the case of the prosecution and the complainant and his wife have
fully supported the facts of the complainant but the same has been
disregarded by the learned trial Court. The impugned judgment
and order has been passed without properly appreciating the oral
and documentary evidence and the learned trial Court has
committed a grave error and hence the impugned judgment and
order of acquittal passed by the learned Trial Court deserves to be
quashed and set aside.
4. Heard learned APP Mr. Bhargav Pandya and learned advocate Mr.
Vijay Nangesh for the respondents. Perused the impugned
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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
submitted that the complainant has verbatim stuck to the facts of
his complaint and at the time of the incident, it was only the
complainant and his wife and his son, who were present but the
learned trial Court has not considered the evidence of the
complainant and has without any justification, disregarded and
disbelieved the evidence of the complainant and his wife. The wife
of the complainant is also an eye witness to the incident and she
was injured at the time of the incident and the medical officer has
produced on record the injury certificates, which clearly show that
both the complainant and his wife were injured in the scuffle. That
the learned trial Court has misread and misappreciated the
evidence and the prosecution has proved the case beyond
reasonable doubts and hence, 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. Vijay Nangesh for the respondents has
submitted that the learned Trial Court has appreciated all the
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evidences on record and has passed the judgement and order of
acquittal which is just and proper and no interference is required in
the same and learned Advocate for the respondents 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 regarding acquittal appeals 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)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;
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(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 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 onusPage 9 of 19
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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 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
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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. 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. 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 view of the above settled principles of law, it is appropriate that
the evidence produced by the prosecution on record is
reappreciated and the prosecution has examined Prosecution
Witness No. 1 Haribhai Kesubhai Khimaniya (Ahir) at Exh. 10 and
Prosecution Witness No. 2 Dahyabhai Karabhai Ahir at Exh. 12.
Both the witnesses are the panch-witnesses of the panchnama by
which accused were arrested and the motorcycle No. GJ-10-AG-
2118 was seized from the accused No. 2. Both the panch-witnesses
have not supported the case of the prosecution and have been
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declared hostile and during the lengthy cross-examination, nothing
to support the case of the prosecution has come on record.
9.1 The prosecution has examined Prosecution Witness No. 3 – Dr.
Parveez Khan Abdul Kadar Pathan at Exh. 13 and the witness is
the Medical Officer, who was on duty at Guru Govindsinh
Hospital, Jamnagar on 14/04/2008. The witness has stated that at
around 12:30 Hrs., Babubhai Rajabhai had come for treatment
with history of alleged assault. On examination, the complainant
had complaint of pain at base of neck, abrasion on little toe and
abrasion on left knee. No external injuries were noted and the
injuries were simple in nature. The witness has produced the case
papers and medical certificate at Exh. 14 and 15 respectively. On
the same day, Jayaben Babubhai was also brought for treatment
with the history of assault by Batukbhai and two unknown persons
at village Falla at the brick-kiln at around 09:30 am by wooden
stick. She had a complaint of pain in her left thumb and right
elbow and had sustained an abrasion measuring 3 cm x 2 cm., on
the right elbow. The witness has produced the case papers and
medical certificate of Jayaben Babubhai at Exh. 16 and 17
respectively. During the cross-examination, the witness has stated
that the injuries were was simple in nature and could be sustained
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while being dashed against something. The two persons, who had
assaulted them were unnamed.
9.2 The prosecution has examined Prosecution Witness No. 4
Rameshbhai Dhanjibhai at Exh. 18 and Prosecution Witness No. 5
Gandubhai Amrabhai Rathod at Exh. 20 and both the witnesses are
the panch-witnesses of the panchnama of the place of offence,
which is produced at Exh. 19. The panch-witnesses have stated
that they had affixed their signatures on the ready panchnama,
which is produced at Exh. 19 and have not gone to be the panch-
witnesses of any panchnama of place of offence. The witnesses
have not supported the case of the prosecution and have been
declared hostile and during the cross-examination by the learned
Additional Public Prosecutor, nothing to support the case of the
prosecution has come on record.
9.3 The prosecution has examined Prosecution Witness No. 6.
Babubhai Rajabhai Chavda at Exh. 25 and the witness is the
complainant, who has verbatim narrated the facts stated in the
complaint, which is produced at Exh. 26. During the cross-
examination by the learned advocate for the accused, the witness
has stated that he had not described the stick, which is mentioned
in the complaint and the brick-kiln is on government land and not
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on his own land. The witness has categorically stated that he does
not consume liquor and no cases have been filed against him under
the Prohibition Act but has admitted that he has filed four
complaints under the Atrocities Act against four persons. The
witness has also admitted that after the cases have been filed by
him, he was paid an amount of Rs.2000/- from Social Welfare
Department for this case and earlier he had received amounts of
Rs.11,000/- and Rs.5,000/- also for other cases.
9.4 The prosecution has examined Prosecution Witness No. 7 –
Jayaben Babubhai Chavda at Exh. 27 and the witness is the wife
of the complainant and has fully supported the case of the
prosecution. The witness has stated that on 14/04/2008 while she
was at her house, she witnessed the incident and while the
unknown persons were beating her husband with sticks, she
caught hold of the sticks and she was injured on the left thumb and
the right elbow. During the cross-examination by the learned
advocate for the accused, the witness has stated admitted that the
brick-kiln is on government land and they have made the brick-
kiln on that government land. In her statement before the Police,
she has not stated that the accused No. 1 and had caught hold of
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her husband. That no cases have been filed against her and her
husband under the IPC or under the Prohibition Act.
9.5 The prosecution has examined Prosecution Witness No. 8 –
Rameshchandra Damjibhai at Exh. 31 and the witness is the Talati-
cum-Mantri of Beraja Gram Panchayat and he has produced a
caste certificate mentioning the caste of all the accused, which is
produced at Exh. 32. During the cross-examination by the learned
advocate for the accused, the witness has stated that no yadi was
given to him for the certificate and he has not verified the place of
birth, date of birth and parents of the accused before issuing the
certificate.
9.6 The prosecution has examined Prosecution Witness No. 9 –
Naranbhai Karshanbhai Chanchiya at Exh. 33 and the witness was
working as the PSO in Jamnagar Panchkoshi “A” Division Police
Station, and he had registered the complaint of the complainant.
During the cross-examination by the learned advocate for the
accused, the witness has produced 14 FIRs of Panchkoshi “A”
Division Police Station, all registered against the complainant
under various sections of the IPC and under the Prohibition Act
and also the FIRs of cases filed by the complainant under the
Atrocities Act against various persons.
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9.7 The prosecution has examined Prosecution Witness No. 10 –
Mohammad Rafik Hajibhai Khalifa at Exh. 50 and the witness was
working as a Deputy Mamlatdar in the Mamlatdar office at Dhrol,
Jamnagar and he has produced the caste-certificate of the
complainant at Exh. 51 and the extract of the register at Exh. 52.
9.8 The prosecution has examined Prosecution Witness No. 11 –
Jentibhai Becharbhai Vasava at Exh. 55 and the witness is the
Investigating Officer, who has narrated the entire procedure that
was undertaken by him during the investigation of the offence.
During the cross-examination by the learned advocate for the
accused, the witness has stated that he has not recorded any
statement of the officers, who have produced the caste-certificates
of the complainant and the accused and the complainant had
earlier filed two to three complaint under the Atrocities Act against
different persons. The witness has admitted that Jayaben Babubhai
did not say that the accused had thrown stones at them and she had
not named any of the accused.
10. On appreciation of the evidence of the prosecution, the evidence
that supports the case of the prosecution is that of the complainant-
Prosecution Witness No. 6 Babubhai Rajubhai and his wife
Prosecution Witness No. 7 Jayaben Babubhai. If the deposition of
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both the witnesses are perused, they have categorically stated that
no cases have been filed against them and more particularly, no
cases under the prohibition Act have been filed against the
complainant but in the deposition of the Prosecution Witness No. 9
Naranbhai Karsanbhai Chanchiya fourteen FIRs have been
produced on record out of that there are number of cases which are
filed under the Prohibition Act against the complainant. Moreover,
the complainant is habitual of filing complaint under the Atrocities
Act and it is admitted by the complainant that he was paid
Rs.2000/- from the Social Welfare Department for this case and
Rs.11,000/- and Rs.5000/- for other cases filed by him under the
Atrocities Act. If the medical evidence is perused, it is found that
there were no external injuries found on the complainant or his
wife and as per the say of the complainant he was hit by sticks but
no such injuries have found during medical examination. Hence, it
appears that the medical evidence does not corroborate the say of
the complainant.
11. The learned trial Court has appreciated the entire evidence of the
prosecution and has concluded that the abusive words used by the
accused have not been brought on record by either the complainant
or his wife and as far as the case of the prosecution is concerned,
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the accused No. 1 was present along with two unknown persons
but there is nothing on record to suggest that as to how the accused
No. 2 and 3 came to be arrested. Moreover, there is no test
identification parade that was conducted to find out the identity of
the unknown person and if the complaint produced at Exh. 26 is
perused, the description of the accused Nos. 2 and 3 have not been
given by the complainant and neither does the wife of the
complainant narrate any description of the accused persons. The
learned trial Court has considered these aspects and has also
recorded the various cases that have been filed against the
complainant and has found that the evidence of the complainant
and his wife is not credible as they both had categorically denied
that any cases under the Prohibition have been filed against the
complainant, when in fact, nine cases have been filed at Jamnagar
Panchkoshi “A” Division Police Station, under Sections 66(1-b)
and 85(1)(3) of the Prohibition Act against the complainant.
12. 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
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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.
13. The impugned judgement and order of acquittal passed by the
learned Special Judge & Presiding Officer, Fast Track Court,
Jamnagar in Special Case (ATRO) No. 16 of 2008 on 22/09/2010,
is hereby confirmed.
14. 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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