Gujarat High Court
State Of Gujarat vs Harunbhai Hajibhai Sandhi on 2 August, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
R/CR.A/129/2004 JUDGMENT DATED: 02/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO.129 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE D. M. VYAS
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
HARUNBHAI HAJIBHAI SANDHI & ORS.
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Appearance:
MA MAITHILI MEHTA APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,3
K T BELADIYA(9101) for the Opponent(s)/Respondent(s) No. 2,8
MR LR PATHAN(2370) for the Opponent(s)/Respondent(s) No. 5
MS NK ANANDJIWALA(5311) for the Opponent(s)/Respondent(s) No. 4
UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 6,7
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 02/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. Today, when the matter is taken up for hearing, it is brought to our notice that the two accused i.e. respondent no.1-Harunbhai Hajibhai Sandhi and respondent no.3- Nuruddin Bachubhai Sipai have passed away. Accordingly, on 16.07.2007, this Court had passed an order observing that the appeal abates against them.
2. The present acquittal appeal is filed under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the judgment and order dated 31.05.2003 assailing the order of acquittal passed by the learned Additional Sessions Judge (Fast Track Court No.2) Bhavnagar, in Sessions Case No. 104 of 2002. The learned Sessions Page 1 of 7 Uploaded by Radhika Srinivasan(HCD0042) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:03:47 IST 2025 NEUTRAL CITATION R/CR.A/129/2004 JUDGMENT DATED: 02/08/2025 undefined Judge had acquitted all the accused for the offences punisable under Sections 302, 325, 435, 147, 148 and 149 of the Indian Penal Code,1860 and also under Section 135 of the Bombay Police Act.
3. The case of the prosecution in a nutshell is as under:
3.1 That on 01.03.2002 at about 11:00 p.m in the night, when the complainant was at his house, one Jigabhai Karanbhai had informed him telephonically that the complainant's elder brother deceased- Rajubhai was seriously injured in a free fight, which took place near the school situated at Gujarat Housing Board, Kumbharvada, Bhavnagar and thereafter he was admitted in the Government Hospital. The complainant went to the Government Hospital where he saw his brother in a very seriously injured condition and at that time the deceased was in unconscious state.
On inquiring from one Jigabhai Karanbhai (PW-19), the complainant knew about the manner in which the assault had taken place and Jigabhai had informed him that the deceased was along with him and they were going on his Hero Honda motorcycle and at about 11:00 p.m at night, when they reached near the school situated at Gujarat Housing Board Kumbharvada, Bhavnagar, the accused nos. 1, 2, 6, 7 and 8 armed with the weapons had assaulted the deceased and inflicted sword blow on the left rib of the deceased and the other accused were also caused serious injuries to the deceased and has also burnt down his motorcycle. The deceased was taken to the Government Hospital in a bleeding condition and during the treatment he succumbed to the injuries. Accordingly, the F.I.R was registered (at Exh-28) by the complainant.
4. Thereafter, the trial was commenced before the Sessions Page 2 of 7 Uploaded by Radhika Srinivasan(HCD0042) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:03:47 IST 2025 NEUTRAL CITATION R/CR.A/129/2004 JUDGMENT DATED: 02/08/2025 undefined Court, and the Sessions Court below Exh.8 framed charges against the eight respondent-accused. The contents of Exh.8 refers that there was some communal violence which had taken place on 01.03.2002 in night hours at around 23:00 hrs, near the school situated at Bhavnagar city at Kumbharvada Housing Board and accordingly, by narrating the facts as mentioned above, the accused persons were allegedly armed with knife, gupti, sword and iron pipe, assaulted the deceased.
5. The complainant is examined at Exh. 27- Malabhai Becharbhai, who is the brother of the deceased. From his deposition, it appears that he is not the eye-witness and he had met the deceased at the hospital when the deceased was unconscious. However upon inquiring, Jigabhai (PW-19), had informed him about the assault on the deceased by the accused- Harunbhai Haji, Daudbhai Haji and Nuruddin Bachubhai Sipai. He is not the eye- witness and he has admitted that he does not know anything about the alleged incident.
6. The most relevant witness would be PW-19 - Jigabhai Karanbhai Mer, who, as per the case of the prosecution, was accompanying the deceased on his motorcycle. He was examined at Exh.75. In his deposition, he stated that when the deceased was travelling on his motorcycle and reached the corner of the Housing Board, the accused persons, namely Harun Haji (accused no.1), Daudbhai Haji (accused no.5), Iqbal Ibhubhai Baloch (accused no.4), Nuruddin Bachubhai Sipai(accused no.3), and Razakbhai Musabhai(accused no.2), were present there. At that time, accused no.5 - Daudbhai Hajibhai Sandhi was holding an iron pipe; accused no.1 -Harunbhai Hajibhai was armed with a sword; accused no.3 - Nuruddin was carrying a gupti; and accused no.4 -Iqbal was armed Page 3 of 7 Uploaded by Radhika Srinivasan(HCD0042) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:03:47 IST 2025 NEUTRAL CITATION R/CR.A/129/2004 JUDGMENT DATED: 02/08/2025 undefined with a knife. All of them allegedly assaulted the deceased.
7. The witness PW-19-Jigabhai, further narrates that accused no.1 assaulted him on his left ear, whereas others assaulted the deceased on his left lumbar. He has further deposed that he ran away for informing one Kamabhai and one Ramabhai, Vikrambhai Sanjaybhai who were also present near the corner of the school. He had also deposed that his nephew Sanjaybhai was also assaulted with iron pipe by the accused no.5 Daudbhai Haji. He had informed all of them that the deceased Rajubhai had been assaulted by all the accused and accordingly all of them went to the place of incident and at that time, the police had arrived. He had further deposed that the deceased was taken in ambulance to the hospital. In the cross-examination, it is elicited that within 15 minutes of the incident the police had arrived.
8. The witness PW-19 had been extensively examined so far as the place of incident is concerned. He has also admitted that he knows about the accused persons, more particularly accused no.1- who was driving a Rikhsaw. From the deposition recorded, it appears that the witness has not specifically identified Daudbhai Hajibhai Sandhi before the trial Court. So far as accused nos. 6, 7 and 8 are concerned, in the cross-examination he has submitted that he has not seen those accused persons assaulting the deceased on the day of the incident. He has also admitted that he has signed the police statement on the next day and the incident was narrated by one Kamabhai Popatbhai(PW-20). We also find that the evidence of the witnesses are tainted with major contradictions. The trial Court accordingly had disbelieved these witnesses by holding as unreliable witnesses and the conviction cannot be premised on the evidence of such witnesses. It is interesting to note that on further Page 4 of 7 Uploaded by Radhika Srinivasan(HCD0042) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:03:47 IST 2025 NEUTRAL CITATION R/CR.A/129/2004 JUDGMENT DATED: 02/08/2025 undefined cross-examination, of accused no.6- Mohabbatkhan Abdulkhan Pathan, he has admitted that the information about the assault on deceased Rajubhai was received by him when he was at Gokulnagar which is five minutes away from the scene of the offence. Thus, these witnesses do not appear to be reliable witnesses and have not actually scene the offence and therefore do not inspire confidence.
9. So far as the so-called injured witness - Sanjaybhai Merambhai (PW-28) on whose evidence the prosecution has placed reliance is concerned, before the trial Court, he has deposed that he was assaulted by the accused when he was present at the Pan Shop along with the deceased. He has been assaulted by the mob of another community and he has specifically narrated that the accused no.5-Daudbhai gave a blow on his right knee by an iron pipe. He has further deposed that he has undertaken treatment from one Dr.Bhuva. However, the record reveals that the Doctor, who has examined him has not been examined as a witness and hence, the injuries are not proved. In his cross-examination he has admitted that he was not aware that from which direction the accused no.5-Daudbhai had come and assaulted him. Therefore, his evidence also does not inspire confidence.
10. Hence, the two prime witnesses of the prosecution, one is the eye-witness and another is the so-called injured witness have not in any manner aided the case of the prosecution. Therefore, the trial Court had accordingly acquitted the accused. We do not find any reason to interfere with the order of the trial Court. Thus, on an overall appreciation of the evidence, which is surfaced on record, the trial Court has not committed any perversity in acquitting the accused from the offence.
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11. At this stage, we may refer to the decision of the Apex Court in the case of Chandrappa and Ors. vs. State of Karnataka, 2007 4 S.C.C. 415, wherein the Apex Court, while considering the provision of Section 378 of the Code of Criminal Procedure, 1973, and the scope of the appellate Court in examining the appeal against the acquittal, has observed thus:
"41. 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, re-appreciate 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."
12. It is also a settled legal position that in acquittal appeal, the Appellate Court is not required to rewrite the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, AIR 1981 SC 1417, wherein, it is held as under:
"... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration Page 6 of 7 Uploaded by Radhika Srinivasan(HCD0042) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:03:47 IST 2025 NEUTRAL CITATION R/CR.A/129/2004 JUDGMENT DATED: 02/08/2025 undefined of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."
13. Thus, in case the Appellate Court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence is not necessary. We have gone through the judgment and order passed by the trial Court. We have also perused the oral as well as documentary evidence led by the trial Court and also considered the submissions made by the learned APP for the appellant-State. The trial Court, while considering the oral as well as documentary evidence, has clearly observed that the complainant has miserably failed to prove the case beyond reasonable doubt. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
14. Accordingly, we are not inclined to disturb the acquittal after appreciation of the evidence. Further, we do not find that the impugned judgment and order passed by the trial Court recording the acquittal of the accused suffers from any perversity, which would compel us to reverse it.
15. In view of the foregoing observations, the present appeal fails and the same stands dismissed. Record and Proceedings, if any, to be sent back to the concerned trial Court forthwith.
(A. S. SUPEHIA, J) (D. M. VYAS, J) Radhika/2 Page 7 of 7 Uploaded by Radhika Srinivasan(HCD0042) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:03:47 IST 2025