Gujarat High Court
The State Of Gujarat vs Chetanbhai Jagjivanbhai Panchal on 31 January, 2025
NEUTRAL CITATION
R/CR.A/668/2008 JUDGMENT DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 668 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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THE STATE OF GUJARAT
Versus
CHETANBHAI JAGJIVANBHAI PANCHAL & ORS.
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Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR Y J PATEL(3985) for the Opponent(s)/Respondent(s) No. 1,2,3,4
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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
(hereinafter referred to as ‘the Code’) against the judgment the
order dated 08.08.2007 in Atrocity Case No.18 of 2016 passed by
the learned Sessions Judge, Vadodara (hereinafter referred to as
‘the learned Trial Court’), whereby, the learned Trial Court has
acquitted the respondents – accused from the offences punishable
under Sections 323, 504 and 114 of the Indian Penal Code
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(hereinafter referred to as ‘the IPC‘)and under Section 3(1)(x) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (hereinafter referred to as ‘the Atrocities Act’). The
respondents are hereinafter referred to as ‘the accused’ as they
stood in the rank and file in the original case, for the sake of
convenience, clarity and brevity.
2. During pendency of the present appeal, the respondent
No.4 – original accused No. 4 Darshanaben Shishir Harkunde has
expired on 20.07.2012. Copy of the death certificate is produced
and the same is taken is taken on record on 20.01.2025 and hence,
the present appeal qua respondent No.4 herein – original accused
No.4 stands disposed of as abated.
3. The relevant facts leading to filing of the present
appeal are as under:
3.1. The complainant Jashbhai Mohanbhai Vankar residing
at village Darapura, Taluka Padra, District Vadodara was the
owner of house No.A/4 in Swaminarayan Nagar, Atladra,
Vadodara and he had purchased the house about two years prior
to the incident. The house was closed and on 23.07.2005, the
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complainant went to clean the house as he wanted to shift in the
said house and while he was cleaning the house at around 1:30pm,
the accused Nos. 3 and 4, who were residing in house No.A/3,
came and abused him with caste slurs and told him that he should
not reside in this house. That the accused No.3 suddenly caught
hold of the collar of the complainant and abused him and they had
a fist fight. At that time, the accused No.2, residing in house
No.A/17 and the accused No.1, residing in the house No.A/21,
came and abused him and told him that he should not stay in the
house. All the members of the society gathered and the
complainant filed the complaint being II-C.R.No. 120 of 2005
registered with J.P.Road Police Station, Vadodara City, for the
offence punishable under Sections 323, 504 and 114 of the IPC and
under Section 3(1)(x) of the Atrocities Act, on 03.08.2005 .
3.2. 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 was framed by the learned Trial Court at Exh.4 and the
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statements of the accused were recorded at Exhs.5, 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. The prosecution has examined 6 witnesses and has
produced 4 documentary evidences in support of the case.
3.3. After the closing pursis was submitted by the learned
APP at Exh.33, the further statement of the accused under Section
313 of the Code was recorded. After hearing the arguments of the
learned APP and learned advocate for the accused and after
perusing the documents on record, the learned Trial Court, by the
impugned judgment and order, acquitted the accused for the
offences punishable under Sections 323, 504 and 114 of the IPC and
under Section 3(1)(x) of the Atrocity Act.
4. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the learned Trial Court, the
appellant – State has filed the present appeal mainly stating that
the impugned judgment and order passed by the learned Trial
Court is contrary to law, evidence on record and principles of
justice and the same is based on inferences not warranted by facts
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of the case and also on presumption not permitted by law. The
learned Trial Court has not considered the direct or indirect
evidence produced in this case connecting the accused with the
crime and has also not appreciated the oral as well as
documentary evidence on record and has straight way arrived at
the conclusion that the prosecution has failed to prove the case
beyond reasonable doubts. The learned Trial Court has also
committed an error in arriving at the conclusion that though the
complainant and the prosecution witnesses have fully supported
the case of the prosecution and there are no material
contradictions, the learned Trial Court has acquitted the accused.
The learned Trial Court has not considered that facts that the
accused with abetment of each other had given filthy abuses to the
complainant relating to his caste and physically assaulted the
complainant and hence, the impugned judgment and order
deserves to be quashed and set aside.
5. Heard learned APP Mr. Bhargav Pandya for the
appellant – State and learned advocate Mr.Y.J.Patel for the
respondents – accused. Perused the impugned judgment and order
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of acquittal and have re-appreciated the entire evidence of the
prosecution on record of the case.
6. Learned APP Mr.Bhargav Pandya for the appellant –
State has taken this Court through the entire evidence produced
by the prosecution and has vehemently argued that the learned
Trial Court has not appreciated the evidence properly and the
prosecution has produced cogent evidence to prove the the case
and has successfully proved the case against the accused but the
learned Trial Court has not considered the same and has acquitted
the accused. The judgment and order of acquittal passed by the
learned Judge is contrary to law, evidence on record and principles
of justice. The judgment and order of acquittal passed by learned
Judge is based on inferences, not warranted by facts of the case
and also on presumption, not permitted by law. Learned APP has
urged this Court to allow the appeal and quash and set aside the
impugned judgment and order of acquittal and to find the accused
guilty for the said offence.
7. Learned advocate Mr.Y.J.Patel for the accused has
submitted that the learned Trial Court has appreciated all the
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evidence in true perspective and has not committed any error in
acquitting the accused. Therefore, no interference of this Court is
required in the impugned judgement and the order of acquittal
passed by the learned Trial Court and has urged this Court to
reject the appeal.
8. 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, the Apex Court has
observed as under:
Recently, in Kallu Vs. 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;]Page 7 of 23
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(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.
8.1 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
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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 Rajesh
Prasad v. State of Bihar.]
9. It is a settled principle of law that in an appeal against
acquittal, the Appellate Court is circumscribed by limitation that
no interference has to be made in the order of acquittal unless after
appreciation of the evidence produced before the learned Trial
Court, it appears that there are some manifest illegality of
perversity which could not have been possibly arrived at by the
Court. It is also a settled principle that there is no embargo on the
Appellate Court to review the evidence but, generally the order of
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acquittal shall not be interfered with as the presumption of
innocence of the accused is further strengthened by the order of
acquittal. The golden thread which runs through the web of
administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case of the prosecution i.e.
(i) guilt of the accused and (ii) his innocence, the view, which is in
favour of the accused, should be adopted, and if the trial Court has
taken the view in favour of the accused, the Appellate Court
should not disturb the findings of the acquittal. The Appellate
Court can interfere with the judgment and order of acquittal only
when there are compelling and substantial reasons and the order is
clearly unreasonable and where the Appellate Court comes to
conclusion that based on the evidence, the conviction is a must.
10. In light of the above, the evidence produced by the
prosecution on record is appreciated and the prosecution has
examined PW-1 Jashbhai Mohanbhai Vankar at Exh.14. The
witness is the complainant who has stated that the incident has
occurred on 24.07.2005 at about 1:30pm in front of his house. on
the day of the incident, he went to clean his house along with his
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younger brother Hasmukhbhai Mohanbhai and one Jashbhai
Gordhanbhai Patel and while they were cleaning the house, the
accused Nos. 2 and 3, residing in the house No.A/3, came and
abused them and told them they should not stay in this house.
They used caste slurs and caught hold the collar of the
complainant and the other two accused came and abused them
and he had filed an application at the J.P.Road Police Station,
which is produced at Exh.15 and the complaint, which is produced
at Exh.16. The witness has also produced his caste certificate at
Exh.17. During the cross-examination, the witness has stated that
the accused No.1 is working as a lecturer in M.S.University and his
brother in-law Jagdishbhai is residing in the same society. That
two years after the society was built, he came to live in the society
and the incident did not occur on 23.07.2005 as he was at his
village Darapura on 23.07.2005, which is at a distance about 15
k.m. away from Vadodara. He had gone to the police station at
around 2:00pm and in the application given to the police station at
Exh.15, he has not stated that Hasmukhbhai Parmar and Jashbhai
Patel had accompanied him to clean his house. That in the
application, he has not mentioned that they had come to clean the
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house and he has not stated that the accused asked him whether
he was cleaning the house as he was to live in the house. The
complaint which states that the incident had occurred on
23.07.2005 is not true and the incident had, in fact, occurred on
24.07.2005.
11.1. The prosecution has examined PW-2 Hasmukhbhai
Mohanbhai Parmar at Exh.21 and the witness is the brother of the
complainant, who has stated that the incident had occurred on
24.07.2005 when he had gone with his brother Jashbhai Mohanbhai
Patel along with one Jashbhai Patel of his village to clean the house
and when they were cleaning the house, the persons from the
house No.A/3 came and told them they were of a scheduled caste
and they should not stay near them and they had a fight with his
brother. The other accused also came and abused them. During the
cross-examination, the witness has admitted that his brother in-
law Jagdishbhai Dahyabhai Makwana was residing in house
No.A/1 of the same society and he is residing in the society from
the time that the society was built. That the accused No.2 was the
President, accused No.1 was the Secretary and the accused No.3
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was the Treasurer of the society. That his brother had given a
complaint at the J.P.Road Police Station on the day of incident and
while the complainant had purchased the house in the society, he
was made a member of the society and was also given the share
certificate regarding the membership in the society.
11.2. The prosecution has examined PW-3 Jashbhai
Gordhanbhai Patel at Exh.22 and the witness is the eye witness to
the incident and was present at the house of the complainant along
with the complainant and his younger brother Hasmukhbhai
Mohanbhai Parmar. The witness has stated that the incident has
occurred on 27th of July but, he does not know the year when it has
occurred and he and Jashbhai Gordhanbhai Patel and
Hasmukhbhai Mohanbhai Parmar were cleaning the house in
Swaminarayan Society, at that time, one lady from house No.A/3
came and started abusing them and her husband also came and
caught the collar of the complainant. That other two accused also
came and started abusing them and gave them caste slurs and told
them to sell the house and go away. The witness has stated that he
cannot identify the accused as he was present at the place only for
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short time and even if they were present before the learned Trial
Court, he could not identify them. During the cross-examination
by the learned advocate for the accused, the witness has stated that
on the day of incident, they had come on a scooter and when he
had received the summons from the Court, the complainant had
told him that he was a witness and he had to come to depose
before the Court.
11.3. The prosecution has examined PW-4 Jagdishbhai
Dahyabhai Makwana at Exh.24 and the witness is the brother in-
law of the complainant, who has stated that the incident had
occurred on 24.07.2005 after 1:00pm. That he was at his home, he
heard the shouts and came outside and saw that his brother in-
law along with his younger brother Hasmukhbhai Mohanbhai
Parmar and Jashbhai Gordhanbhai Patel had come to clean the
house and at that time, the accused Nos. 3 and 4 having a quarrel
with his brother in-law. They told him that he was of a scheduled
caste and he should not stay there and had caught his collar and
when he went to intervene, they told him to go home. That they
also used caste slurs on him and the accused Nos. 1 and 2 also
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came and laughed and shouted them and went away. During the
cross-examination by the learned advocate for the accused, the
witness has stated that he had booked his house in the society
when the society was formed and the society has elected
representatives and an elected body and the society is a free hold
scheme. The accused No.1 is the Secretary, the accused No.2 is the
President and the accused No.3 is the Treasurer of the society. That
the society had passed a resolution regarding encroachment done
by him and he was aware of the resolution and he had told that he
would remove the encroachment after the others had removed
their encroachment. That he had not removed the encroachment
and he is residing in the society since March, 2003. That he has
encroached and constructed a wall and he does not know whether
his brother in-law had gone to the police station on the day of the
incident.
11.4. The prosecution has examined PW-5 Mohanbhai
Muljibhai Parmar at Exh.25 and the witness is the panch witness of
the panchnama of the place of incident, which is produced at
Exh.26. The witness has stated that he and the other panch witness
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Shabbibhai Musabhai Patel, who is his friend, were called by the
police and the panchnama of house No.A/4 was prepared in their
presence.
11.5. The prosecution has examined PW-6 Ramjibhai
Jagjibhai Pargi at Exh.31 and the witness is the Investigating
Officer, who has narrated in detail all the procedure that was
undertaken by him during investigation of the offence. During the
cross-examination, the witness has stated that he had taken over
the investigation on 04.08.2005 and in the complaint, the date of
the incident is mentioned as 23.07.2005. That on 23.07.2005, the
complainant has not given any application or complaint in the
police station, and during investigation, it was found that on
24.07.2005, the complainant had given an application, which was
being investigated by ASI Vasava of J.P.Raod Police Station. That
during investigation, it was found that the accused No.2 was a
lecturer in the college but he has not investigated as to whether he
was present on duty on 23.07.2005 and 24.7.2005.
12. On minute appreciation of the entire evidence of the
prosecution, it is on record that the accused No.1 was the
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Secretary, the accused No.2 was the President and the accused
No.3 was the Treasurer of Swaminarayan Nagar Society. The main
complaint of the complainant is that the accused did not want him
to reside in the society as he is a member of the scheduled castes
and they abused him giving caste slurs and told him them that
they would not allow him to reside in the society. In fact, in the
evidence of the prosecution, it has come on record that PW-4, who
is the brother in-law of the complainant, is residing in the same
society since its inception and he is of the same caste as the
complainant. It has also come on record that the brother in-law of
the complainant has made encroachment and has constructed a
wall and has not removed the encroachment even though the
society has passed a resolution to that effect. Moreover, it has also
come on record that the complainant had purchased the house two
years prior to the incident and as per the rules and regulations of
the society, he was the member of the society and he was given the
membership by the body of the society including the accused
Nos.1, 2 and 3 are the Secretary, President and Treasure of the
society respectively.
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12.1. There is a major contradictions with regard to the date
of incident and the complainant and the other witnesses have
categorically stated that the incident has occurred on 24.07.2005
and the complainant has stated that he had gone to J.P.Road Police
Station on the same day and given the application, which is
produced at Exh.15. If the application produced at Exh.15 is
perused, the date is mentioned 24.07.2005 and the complainant has
not mentioned that he had gone to his house along with his
younger brother and friend to clean the house and has not
mentioned the date, time and occurrence of the incident. In the
complaint produced at Exh.16, the complainant has stated that the
incident has occurred on 23.07.2005 and the complainant has filed
the complaint on 03.08.2005, wherein, the complainant has stated
that he had gone to clean his house along with his younger brother
and his friend and the correct date of incident has not come on
record.
12.2. As per the complainant, at the time of incident, a
number of people had gathered and if the evidence of the
prosecution is perused, PW-2 Hasmukhbhai Mohanbhai Parmar,
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the younger brother of the complainant, PW-3 Jashbhai
Gordhanbhai Patel, a friend of the complainant and PW-4
Jagdishbhai Dahyabhai Makwana, the brother in-law of the
complainant have been examined and besides this, no other
persons have been examined before the learned Trial Court, even
though there were independent witnesses. If the evidence of the
witnesses are perused, there are major contradictions with regard
to the injury and words used by the accused and there is no clear
evidence of any injury by any of the accused and the only
allegations against the accused No.3 is that he caught hold of the
collar of the complainant and if the evidence is minutely perused,
there is no evidence as to who amongst the accused had used the
caste abusive words and it cannot be believed that each and every
accused would use similar words at the time of incident.
12.3. During the further statement of the accused recorded
under Section 313 of the Code of Criminal Procedure, the accused
have denied all the evidence of the prosecution and the accused
No.1 has stated that he was on duty on 24.07.2005 from 10:00am to
6:30pm at M.S.University and on 23.07.2005 and 24.07.2005, the
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accused No.3 was at Bhavnagar. The accused have produced
documentary evidence in the form of a certificate issued by GEB
Manager, Circuit House, photographs and the log book
maintained by the driver, which shows that they were not present
on the date of incident as alleged by the complainant but the
Investigating Officer has not investigated about this aspect. The
main defense of the accused is that it was the malafide intention of
PW-4 Jagdishbhai Dahyabhai Makwana as he was residing in the
society and he had encroached and constructed a wall and the
accused Nos. 1,2 and 3, who were the members of the elected
body of the society, had passed a resolution to remove the
construction and it appears that he was not happy with the
resolution.
12.4. It is also pertinent to note that the complainant has not
mentioned his caste in the FIR and the caste certificate, which is
merely produced by the complainant at Exh.17, has not been
proved by the prosecution. The Investigating Officer has admitted
that he has not recorded the statement of any competent authority
to prove the caste of the complainant and hence, it appears that the
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caste of the complainant has not been proved beyond reasonable
doubts.
13. In view of the above, 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
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.
14. The impugned judgment and the order dated
08.08.2007 in Atrocity Case No.18 of 2016 passed by the learned
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Sessions Judge, Vadodara is hereby confirmed.
15. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S.KAZI…..
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