Gujarat High Court
State Of Gujarat vs Bhupatbhai Fatabhai Parmar on 10 January, 2025
NEUTRAL CITATION
R/CR.A/3/2011 JUDGMENT DATED: 10/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 3 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
BHUPATBHAI FATABHAI PARMAR & ORS.
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Appearance:
MR. BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR JAYPRAKASH UMOT(3581) for the Opponent(s)/Respondent(s) No.
1,2,3,4
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 5
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 10/01/2025
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, Fast Track Court No. 6, Veraval (hereinafter
referred to as “the learned Trial Court”) in Sessions Case No. 76 of
2002 on 31/01/2008, whereby, the learned Trial Court has extended
the benefit of doubt and acquitted the respondents for the offence
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punishable under Sections 504, 506(2) and 114 of Indian Penal
Code, 1860 (hereafter referred to as “IPC” for short) and Section
391)(10) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (hereinafter referred to as the
“Atrocities Act”, for short.)
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 Kalabhai Karshanbhai Senva and the accused
have agricultural lands adjacent to each other and civil and criminal
litigation regarding the lands are pending before various Courts. On
21.06.2008, at around 11:30 Hrs; the complainant Kalabhai
Karshanbhai Senva , his uncle Revabhai Jethabhai, Aunty Sonaben
and wife Dahiben went with a tractor to till their agricultural land
and at that time all four accused came to the agricultural and
abused them and used caste slurs on them and asked them to leave
the land. The accused also threatened to kill them, if they entered
the land, and as they all were afraid, they went home and the
complainant filed the complaint at Kheda Town Police Station,
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under the provisions of Sections 504, 506(2) and 114 of the Indian
Penal Code, 1860 and Section 3(1)(10) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities), Act 1989, which
was registered as II-C.R.No.146 of 2008 at Kheda Town Police
Station.
2.2 The Investigating Officer drew the necessary panchnamas and
collected the documents and filed a charge-sheet before the Court
of learned Judicial Magistrate First Class, Kheda @ Nadiad 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 as Special Case
(ATRO) No.54 of 2009.
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. 3 was framed against the accused and the statements
of the accused were recorded at Exhs. 4 to 7 respectively, wherein,
all the accused denied the contents of the charge and the entire
evidence of the prosecution was taken on record.
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documentary evidences in support of their case and after the
closing pursis was filed 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 evidence of
the prosecution and refused to step into the witness box or examine
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the witnesses on their behalf. 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
passed by the learned Trial Court is contrary to law and evidence
on record and the learned Trial Court has not properly appreciated
the oral evidence of nine witnesses and the four documentary
evidences produced by the prosecution in support of their cases.
That the complainant, his uncle Revabhai Jethabhai, Aunty
Sonaben and Dahiben – wife of the complainant have fully
supported the case of the prosecution and have mentioned about
how the incident has taken place but the learned trial Court has not
considered the same. The learned trial Court has discarded and
disbelieved their evidence and has come to a conclusion that the
prosecution has not proved the case beyond reasonable doubts and
the impugned judgment and order of acquittal passed by the
learned trial Court is illegal, invalid and improper and the same is
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required to be quashed and set aside.
4. Heard learned APP Mr. Bhargav Pandya for the appellant State and
learned advocate Mr. Jayprakash Umot for the respondents.
Though served, the respondent No.5 – original complainant has not
appeared either in person or through an advocate. 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 and the witnesses, who were the
family members of the complainant have clearly stated that the
incident has occurred on 21/06/2008 at about 11:30 Hrs and at that
time, the four accused were present and they have been named and
identified by the complainant and the witnesses. It is on record that
civil litigations as well as criminal litigations are pending between
the parties and there are civil litigations regarding the land in
question but merely this fact would not be a presumption that a
false case has been filed. The prosecution has proved the case
beyond reasonable doubts and learned APP has urged this Court to
allow the appeal and quash and set aside the judgement and order
of acquittal and find the respondents guilty for the said offence.
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6. Learned advocate Mr. Jayprakash Umot for the respondents has
submitted that the prosecution failed to provide sufficient evidence
to prove the charges beyond reasonable doubt. He has submitted
that it is on record that there were disputes between the parties
regarding the agricultural lands, which are situated adjacent to each
other and a civil suit has also been filed between them and
complaints under Atrocities Act has been filed between them and if
the evidence of the complainant and the Prosecution Witness No. 3
Dahiben Kalibhai Senva and Prosecution Witness No. 4 Revabhai
Jethabhai are perused, there is no consistency in the words that
were alleged to have been used by the accused at the time of the
incident. Admittedly, the complaint has been filed against four
accused but none of the witnesses have stated that as to what words
were used by which accused and who had actually used the caste
slurs. The prosecution has examined three independent witnesses
Prosecution Witness No. 5 Pravinbhai Chimanbhai Sharma,
Prosecution Witness No. 6, Parshottambhai Chhotabhai Parmar and
Prosecution Witness No. 7 Sirajsinh Pratapsinh Rana but they have
not spoken the exact words that was used by the accused and the
prosecution has not proved beyond reasonable doubts that the
incident has occurred and the learned advocate Mr. Umot urges this
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Court to dismiss 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 Mallappa & Ors. Vs. State of Karnataka passed in
Criminal Appeal No.1162 of 2011 on 12.02.2024, wherein, the
Apex Court has observed in Para Nos. 24 to 26, as under:
“24. We may firstly discuss the position of law regarding the scope of
intervention in a criminal appeal. For, that is the foundation of this
challenge. It is the cardinal principle of criminal jurisprudence that there is a
presumption of innocence in favour of the accused, unless proven guilty.
The presumption continues at all stages of the trial and finally culminates
into a fact when the case ends in acquittal. The presumption of innocence
gets concertized when the case ends in acquittal. It is so because once the
Trial Court, on appreciation of the evidence on record, finds that the accused
was not guilty, the presumption gets strengthened and a higher threshold is
expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no
quarrel about that. It is also beyond doubt that in the exercise of appellate
powers, there is no inhibition on the High Court to re-appreciate or re-visit
the evidence on record. However, the power of the High Court to re
appreciate the evidence is a qualified power, especially when the order
under challenge is of acquittal. The first and foremost question to be asked
is whether the Trial Court thoroughly appreciated the evidence on record
and gave due consideration to all material pieces of evidence. The second
point for consideration is whether the finding of the Trial Court is illegal or
affected by an error of law or fact. If not, the third consideration is whether
the view taken by the Trial Court is a fairly possible view. A decision of
acquittal is not meant to be reversed on a mere difference of opinion. What
is required is an illegality or perversity.
1. It may be noted that the possibility of two views in a criminal case is
not an extraordinary phenomenon. The ‘two views theory’ has been
judicially recognized by the Courts and it comes into play when the
appreciation of evidence results into two equally plausible views. However,
the controversy is to be resolved in favour of the accused. For, the very
existence of an equally plausible view in favour of innocence of the accused
is in itself a reasonable doubt in the case of the prosecution.
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Moreover, it reinforces the presumption of innocence. And therefore, when
two views are possible, following the one in favour of innocence of the
accused is the safest course of action. Furthermore, it is also settled that if
the view of the Trial Court, in a case of acquittal, is a plausible view, it is not
open for the High Court to convict the accused by re appreciating the
evidence. If such a course is permissible, it would make it practically
impossible to settle the rights and liabilities in the eyes of law. In Selvaraj v.
State of Karnataka,“13. Considering the reasons given by the trial Court and on appraisal of the
evidence, in our considered view, the view taken by the trial Court was a
possible one. Thus, the High Court should not have interfered with the
judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N.
[(2002) 9 SCC 639] has laid down that as the appreciation of evidence made
by the trial Court while recording the acquittal is a reasonable view, it is not
permissible to interfere in appeal. The duty of the High Court while
reversing the acquittal has been dealt with by this Court, thus:
“9. …We are constrained to observe that the High Court was dealing
with an appeal against acquittal. It was required to deal with various
grounds on which acquittal had been based and to dispel those
grounds. It has not done so. Salutary principles while dealing with
appeal against acquittal have been overlooked by the High Court. If
the appreciation of evidence by the trial Court did not suffer from any
flaw, as indeed none has been pointed out in the impugned judgment,
the order of acquittal could not have been set aside. The view taken by
the learned trial Court was a reasonable view and even if by any
stretch of imagination, it could be said that another view was possible,
that was not a ground sound enough to set aside an order of
acquittal.”” (emphasis supplied) In Sanjeev v. State of H.P., the
Hon’ble Supreme Court analyzed the relevant decisions and
summarized the approach of the appellate Court while deciding an
appeal from the order of acquittal. It observed thus:-
“7. It is well settled that: –
7.1. While dealing with an appeal against acquittal, the reasons which
had weighed with the trial Court in acquitting the accused must be
dealt with, in case the appellate Court is of the view that the acquittal
rendered by the trial Court deserves to be upturned (see Vijay Mohan
Singh v. State of Karnataka5, Anwar Ali v. State of H.P.)7.2. With an order of acquittal by the trial Court, the normal
presumption of innocence in a criminal matter gets reinforced (see
Atley v. State of U.P.)
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against acquittal (see Sambasivan v. State of Kerala).”
7.1 In Para – 36, the Apex Court, in the case of Mallappa (Supra), has
observed as under:-
“36. Our criminal jurisprudence is essentially based on the promise
that no innocent shall be condemned as guilty. All the safeguards and
the jurisprudential values of criminal law, are intended to prevent any
failure of justice. The principles which come into play while deciding
an appeal from acquittal could be summarized as:-
(i) Appreciation of evidence is the core element of a criminal trial and
such appreciation must be comprehensive – inclusive of all evidence, oral
or documentary;
(ii) Partial or selective appreciation of evidence may result in a
miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are
possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view mere
possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a
re-appreciation of evidence, it must specifically address all the reasons
given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court
must demonstrate an illegality, perversity or error of law or fact in the
decision of the Trial Court.
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
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appreciate the evidence by the Appellate Court but if after re appre-
ciation, 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 Witnesses No. 1 Kalabhai Karshanbhai Senva at
Exh.13 and the witness is the original complainant, who has filed
the complaint, which is produced at Exh. 14. The witness has stated
that on 21/06/2008, while they had gone to till their agricultural
land, the incident had occurred and all four accused came and
abused them and used caste slurs and they were forced to leave the
agricultural land as they were afraid. The accused also threatened
to break their legs and hence they left the land and went at home.
Thereafter, the complainant had filed the complaint before the
Kheda Town Police Station.
During the cross examination, the complainant has admitted that
the accused have filed civil cases for encroachment before the
learned Civil Court, Kheda on 06/05/2007, which is registered as
Civil Case No. 15 of 2007 and the Exh.1 of the suit is produced at
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Exh.16. The wife of the complainant has filed the complaint at
Kheda Police Station against the mother of the accused and others
and a copy of the FIR and charge sheet is produced at Exh. 17. A
Chapter Case was also filed by Revabhai Jethabhai Senva, the
uncle of the complainant and the documents of the chapter case are
produced at Exh.18. The son of the complainant Pravinbhai
Kalabhai Senva has filed a complaint under Sections 504, 506(2)
and 114 of the IPC and Section 3(1)(10) of the Atrocities Act,
against the daughter-in-law of the accused and others and the copy
of the complaint is produced at Exh. 19. The complainant has also
admitted that the relation between the parties has turned sour
because of the dispute regarding the agricultural land and in the
complaint, he has not stated that accused used caste slurs against
him and others.
9.1 The prosecution has examined Prosecution Witness No. 2
Amitbhai Chimanbhai Sharma at Exh. 20 and the witness is the
panch-witness of the panchnama of place of offence, which is
produced at Exh. 21. The witness has stated that he was called to
be a panch witness and he had gone to the land of the complainant
where half of the land was tilled with a tractor and the other half of
the land was not tilled. That the panchnama was drawn in his
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presence and other panch-witness Jayantibhai Budhabhai Senva
was with him.
9.2 The prosecution has examined Prosecution Witness No. 3
Dahiben Kalabhai Senva at Exh.22 and Prosecution Witness No. 4
Revabhai Jethabhai at Exh.24 and the witnesses are the wife and
uncle of the complainant respectively and as per the case of the
prosecution, both the witnesses were present on the date of incident
with the complainant along with others have gone to till the field.
The witnesses have supported the case of the prosecution and have
stated that the incident has occurred where they were threatened by
the accused and caste-slurs were used against them.
During the cross examination, both the witnesses have
admitted to the various litigation pending between them regarding
the land in question and also to the criminal litigations pending
between the parties.
9.3 The prosecution has examined Prosecution Witness No. 5
Pravinbhai Chimanbhai Sharma at Exh.25 and the witness is the
driver of the tractor that was taken by the complainant and others
for tilling the land. The witness has stated that he had gone to the
agricultural land and there was verbal altercations and quarrel and
the accused No. 3 had asked him to take out the tractor from the
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land and hence he took the tractor and went away. Besides this,
nothing else had occurred and the witness has identified the
accused before the learned Court. The witness has not supported
the case of the prosecution and has been declared hostile and
during the cross examination, nothing to support the case of the
prosecution that abusive language or caste slurs were used by the
accused has come on record.
9.4 The prosecution has examined Prosecution Witness No. 6
Parshottambhai Chhotabhai Parmar at Exh. 26 and the witness has
stated that on the date of the incident, he was at his agricultural
land and the tractor had come to his land and after tilling his land,
the same tractor had gone to the land of the complainant and that
he too was present at that place. That, at that time, the accused
came and abused the complainant and they took the tractor and left.
During the cross examination, the witness has stated that the
agricultural land of the complainant is adjacent to his land and his
brother Gopal has taken the land of the complainant on mortgage
and he is doing administration of the same. The witness has also
admitted that the main dispute between the parties is regarding the
land and any incident that occurs between them is with regard to
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the land in question.
9.5 The prosecution has examined the Prosecution Witness No.
7 Sirajsinh Pratapsinh Rana at Exh. 27 and the witness has stated
that he had gone with his tractor to the field of the complainant and
after he had taken two rounds, the accused came and told him to
leave the field as the field was theirs and that he took the tractor
and went away and at that time no other person was present except
a young boy. The witness has not been cross-examined by the
learned advocate for the accused.
9.6 The prosecution has examined the Prosecution Witness No.
8 Lalitaben Dhudabhai at Exh. 29 and the witness was working as
PSO in Kheda Town Police Station, who has recorded the
complaint of the complainant and registered the complaint at II-
C.R.No. 138 of 2008 under Sections 504, 506(2) and 114 of the
Indian Penal Code, 1860 and Section 3(1)(10) of the Atrocities Act,
1989.
9.7 The prosecution has examined Prosecution Witness No. 9
Manoj Manglaji Balat at Exh.31 and the witness is the
Investigating Officer, who has narrated in detail the entire evidence
that was undertaken during investigation.
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During the cross examination, it was found that the main dispute
between the complainant and the accused is with regard to the land
and there are litigation pending between them including a civil suit.
10. On minute appreciation of the entire evidence of the prosecution, it
transpires that that it is on record that there were disputes between
the parties regarding the agricultural lands, which are situated
adjacent to each other and a civil suit has also been filed between
them and the complaints under the prevention of Atrocities Act has
been filed between them. If the evidence of the complainant and
the Prosecution Witness No. 3 Dahiben Kalibhai Senva and
Prosecution Witness No. 4 Revabhai Jethabhai are perused, there is
no consistency in the words that were alleged to have been used by
the accused at the time of the incident. Admittedly, the complaint
has been filed against four accused but none of the witnesses have
stated that as to what words were used by which accused and who
had actually used the caste slurs. The prosecution has examined
three independent witnesses Prosecution Witness No. 5 Pravinbhai
Chimanbhai Sharma, Prosecution Witness No. 6, Parshottambhai
Chhotabhai Parmar and Prosecution Witness No. 7 Sirajsinh
Pratapsinh Rana but they too have not spoken the exact words that
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was used by the accused and the prosecution has not proved
beyond reasonable doubts that the incident has occurred.
11. The learned Trial Court has discussed all the oral as well as
documentary evidences and has observed that the independent
witnesses, who are present at the place of incident, have not
supported the case of the prosecution and hence the possibility that
the complaint has been filed merely because of the civil litigation
and other proceedings pending between the parties cannot be ruled
out.
12. In view of the settled position of law in the decisions of Mallappa
(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 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
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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.
13. The impugned judgement and order of acquittal passed by the
learned Additional Sessions Judge, Fast Track Court No. 6,
Veraval in Sessions Case No. 76 of 2002 on 31/01/2008, 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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