Gujarat High Court
Ganpatbhai Manjibhai Patel vs The State Of Gujarat on 26 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1638 of 2004
With
R/CRIMINAL REVISION APPLICATION NO. 814 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes
No
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GANPATBHAI MANJIBHAI PATEL
Versus
THE STATE OF GUJARAT
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Appearance in Criminal Appeal No.1638 of 2004:
MR PT JASANI for the Appellant(s) No. 1
MR ROHANKUMAR RAVAL APP for the Respondent(s) No. 1
Appearance in Criminal Revision Application No.814 of 2004:
MR KULDIP ACHARYA ADVOCATE for MR MRUGEN KPUROHIT for the
Appellant(s) No. 1
MR ROHANKUMAR RAVAL APP for the Respondent(s) No. 1
MR P.T. JASANI for the Respondent(s) No.2, 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 26/08/2025
ORAL JUDGMENT
1. The appellant in Criminal Appeal No.1638 of 2004, as accused No.1 was convicted by an order dated 13.08.2004 by learned Sessions Judge 4th Fast Track Court, Morbi in Sessions Case No.9 of 1999. The appellant came to be convicted under Section 323 of the Indian Penal Code (for short "IPC") for six months rigorous imprisonment and fine of Rs.500/- with default stipulation of Page 1 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined fifteen days rigorous imprisonment and one month rigorous imprisonment for the offence under Section 135 of the Bombay Police Act (for short "B.P. Act") with fine of Rs.100/- and in default of payment of fine further ten days rigorous imprisonment. Aggrieved by the order of conviction and sentence, the present appeal has been filed.
2. The trial was against the present appellant and his wife under Sections 307, 323, 324 and 114 of IPC and Section 135 of the B.P. Act. The Sessions Judge acquitted accused No.2 from all the charges.
3. The facts of the case, which led to filing of the charge-sheet against the accused can be briefly stated as under:
3.1 Manharbhai Maujibhai Patel resident of village Vejalpur during his treatment at Morbi Hospital filed a complaint on 08.10.1998 Page 2 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined alleging that both the accused had beaten him on 08.10.1998 at about 19.00 p.m. to 19.30 p.m at the outskirt of his village, while he and his friend Kantilal Karsanbhai Patel were both sitting on an Otta. At that time, Ganpat Manji Patel and his wife Gauriben Ganpat Patel suddenly came there, Ganpat Manji was having an iron pipe and he gave a blow with the iron pipe on right hand, complainant sustained injury near the wrist and second blow was on the back and the third blow was on the right leg. Thereafter, Gauriben took the iron pipe from the hands of Ganpatbhai and gave one blow on the frontal part of head of the complainant. Since the complainant started bleeding, both the accused left the place. As he was bleeding, he went home and informed his father and mother. The cause of the beating, the complainant stated, was that he was having relation with the daughter of the accused.Page 3 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025
NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined 3.2 The complainant was taken on a motorcycle by Patel Babubhai Kada of the village at Khakhrechi dispensary and after taking the treatment he was taken to Government Hospital in Ambulance, where he was admitted.
3.3 The complaint was filed alleging that Ganpat Manji and his wife Gauri because of the reason of their daughter had intention to kill the complainant, therefore, with iron pipe had beaten him on hand, leg, shoulder and head causing injuries.
4. The offence was registered at Morbi City Police Station and thereafter transferred to Malia-Miyana Police Station registered as C.R. No.94/98 for the investigation. As per the record Criminal Case No.231/98 was registered by JMFC, First Class. Since the offence under Section 307 IPC was exclusively triable by the court of sessions, the same was committed to Sessions Page 4 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined Court, Morbi, where was registered as Sessions Case No.9 of 1999.
5. Criminal Revision Application No.814 of 2004 was filed by de facto complainant - Manharbhai Maujibhai Patel under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') making a prayer to quash the acquittal of accused-Gauriben W/o. Ganpatbhai Manjibhai Patel, and to held both the accused guilty under the charge of Section 307 IPC or alternatively under Section 326 or 325, and to suitably punish the accused as per the provisions of law.
6. Learned advocate Mr. P.T. Jasani for the respondent - accused in the revision petition raised a preliminary objection regarding the maintainability of the revision petition under Section 397 Cr.P.C., stating that the complainant as a victim would have no jurisdiction to file Page 5 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined revision petition, as at the relevant time in the year 2004, there was no such provision in Cr.P.C. and for the very first time under Section 372 Cr.P.C. by way of proviso with effect from 31.12.2009, the victim was granted the right to prefer an appeal against order of acquittal or against conviction for a lesser offence. Thus, submitted that the revision application would not be maintainable.
7. Countering the arguments, learned advocate Mr. Kuldip Acharya for learned advocate Mr. Mrugen K.Purohit, relying upon the judgment of
(i) Joseph Stephen And Others Vs. Santhanasamy And Others, [(2022) 13 SCC 115] (ii) Krishnan And Another Vs. Krishnaveni And Another, [(1997) 4 SCC 241] (iii) Rajathi Vs. C.Ganesan [(1999) 6 SCC 326], vehemently contended that the provisions under section 397 Cr.P.C. on the plain reading permits the High Court to examine the correctness, legality or propriety of any Page 6 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined finding, sentence or order recorded or passed, and even as to the regularity of any proceedings of the court of original jurisdiction. 7.1 Learned advocate Mr. Acharya further stated that if the Court comes to the conclusion that only appeal lies, then under sub-section (5) of Section 401 Cr.P.C., the same could be converted as a petition of appeal and deal with the same accordingly.
7.2 Relying on the judgment of Joseph Stephen (supra), Mr. Acharya submitted that if the Court after giving its own findings on the acquittal of the accused, and setting aside the order of acquittal, may remit the matter back to the Trial Court, thus contended that the present matter requires retrial for the limited aspect in connection to the prayer made before this Court. 7.3 Learned advocate Mr. Acharya submitted that in Joseph Stephen (supra) case, the amended Page 7 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined provision of Section 372 Cr.P.C. has been referred and the Hon'ble Supreme Court has laid down the procedure to be adopted after exercising the power under sub-section (5) of Section 401 Cr.P.C.
7.4 In the case of Joseph Stephen (supra), the Hon'ble Supreme Court has taken into consideration the judgment of Mallikarjun Kodagali Vs. State of Karnataka [(2019) 1 SCC (Cri.) 801], and ultimately has laid down in paragraph Nos.14 and 15 as under:
"14. Now so far as the power to be exercised by the High Court under sub-
section (5) of Section 401 CrPC, namely, the High Court may treat the application for revision as petition of appeal and deal with the same accordingly is concerned, firstly the High Court has to pass a judicial order to treat the application for revision as petition of appeal. The High Court has to pass a judicial order because sub-section (5) of Section 401 Cr.P.C.
provides that if the High Court is
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NEUTRAL CITATION
R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025
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satisfied that such revision
application was made under the
erroneous belief that no appeal lies
thereto and that it is necessary in the interests of justice so to do. While treating with the application for revision as petition of appeal and deal with the same accordingly, the High Court has to record the satisfaction as provided under sub-section (5) of Section 401 Cr.P.C. Therefore, where under the Cr.P.C. an appeal lies, but an application for revision has been made to the High Court by any person, the High Court has jurisdiction to treat the application for revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section 401 Cr.P.C., however, subject to the High Court being satisfied that such an application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do and for that purpose the High Court has to pass a judicial order, may be a formal order, to treat the application for revision as a petition of appeal and deal with the same accordingly.Page 9 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025
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15. Now the next question is what order should be passed in a case like the present. This Court may either set aside the impugned judgment and order passed by the High Court setting aside the acquittal and convicting the accused so as to enable the High Court to remit the matter to the first appellate Court to rehear the appeal after considering the findings recorded by it or to remit the matter to the High Court to treat the revision application as a petition of appeal against the order of acquittal, which otherwise is permissible under sub- section (5) to Section 401 Cr.P.C. As observed hereinabove, as such, while exercising the powers under sub-section (5) to Section 401 Cr.P.C. to treat the revision application as a petition of appeal, the High Court is required to pass a judicial order. However, considering the fact that even otherwise being victims they are having the statutory right of appeal as per proviso to Section 401 Cr.P.C., we deem it fit and proper to remit the matter to the High Court to treat the revision applications as petition of appeals under Section 372 Cr.P.C. and to decide the same in accordance with law and on their own merits. The same would be in Page 10 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined the interests of all, namely, the victims as well as the accused, as the appellate Court would have a wider scope and jurisdiction as an appellate Court, rather than the revisional court."
8. In context to the observation of the Hon'ble Supreme Court in the referred judgment, the first aspect, which requires to be examined under the revisional power of the High Court, and which becomes necessary to be noted prior to undertaking the exercise under sub-section (5) of Section 401 Cr.P.C., where the very section under sub-sections (3) and (4) curtail the revisional power of the High Court in the following terms:
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal
lies and no appeal is brought, no
proceeding by way of revision shall be entertained at the instance of the party who could have appealed.Page 11 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025
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9. Sub-section (3) of Section 401 Cr.P.C. does not authorise the High Court to convert a finding of acquittal into one of conviction under revisional jurisdiction . Sub-section (3) makes it clear that no deeming provision can be invoked putting it into clarificatory form, that nothing in Section 401 Cr.P.C. shall be deemed to authorise High Court, to convert a finding of acquittal into one of conviction under the revisional power. Sub-section (4) further clarifies that when appeal lies and no appeal is brought then the revision petition shall not be entertained at the instance of the parties, who could have appealed.
10. Section 378 (3) Cr.P.C. makes a provision for filing an appeal in case of acquittal with the leave of the High Court. In Mallikarjun Kodagali (Supra) case, in Paragraph Nos.87, 88, 89, 90 and 95, the Hon'ble Supreme Court held as Page 12 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined under:
"87. At this stage, it would also be pertinent to mention that under Section 378 CrPC an appeal against the order of acquittal passed by a Magistrate in respect of cognizable and non-bailable offences lies to the Sessions Court and no leave to appeal is required. From the Court of Magistrate it is only appeals in respect of offences which are non-cognizable and bailable i.e. less serious offences which would lie to the High Court. In such cases, leave to appeal is a prerequisite. This was done with a view to ensure that the persons who had faced trial for relatively lesser offences should not have to bear the expenses of an appeal in the High Court. The other appeals which lie to the High Court are appeals from the Court of Sessions. These are serious criminal matters and relate to much graver offences. Here the concept of leave to appeal was probably introduced because these cases are decided by relatively Senior Judges i.e. Sessions Judges. The legislature felt that in such cases also the appeals against acquittals must be scrutinised with greater care.Page 13 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025
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88. As pointed out above, even a complainant when he files an appeal against an order of acquittal in a case instituted upon a complaint is required to obtain special leave to appeal. It is true that the proviso to Section 372 CrPC does not indicate that a victim while filing an appeal in the High Court must file a petition for leave to appeal before his appeal can be entertained.
89. I am of the considered view that though the proviso to Section 372 CrPC does give a right to the victim to file an appeal, this proviso cannot be read in isolation. It has to be given a meaning which fulfils the intention of the legislature. The proviso to Section 372 CrPC does not lay down the procedure as to how, in what manner, and within which time the appeal has to be filed. An appeal, being a creature of the statute, it is also necessary to prescribe the limitation and procedure for filing the appeal.
90. Adverting to sub-section (4) of Section 378 CrPC, if an order of acquittal is passed on a case instituted upon a complaint then the High Court before entertaining an Page 14 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined appeal by the complainant must grant special leave to appeal. The expression "special leave to appeal" has no different meaning than the expression "leave to appeal" and it appears to me that the word "special" has been added only to distinguish "leave to appeal"
sought by the complainant from the "leave to appeal" sought by the State. Thus, in a complaint case where the complainant has set the wheels of the Court in motion even if the complainant files the appeal he must obtain special leave to appeal. This again gives rise to an interesting question--Can the victim be placed on a higher pedestal than the complainant? More often than not, the victim and the complainant are likely to be one and the same person.
95. The right of the victim to file an appeal is not taken away or in any manner weakened only because he has to seek leave to appeal. If Sections 378(3), 378(4) and 372 CrPC are read together, it is clear that the victim is also required to apply for leave to appeal before his appeal can be entertained."
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11. The conspectus of the view expressed in Joseph (supra) and Malikarjun (supra) case, clarifies that Section 378(3) and (4) Cr.P.C. would permit the victim to file an appeal with the leave of the Court. On reading section 378(3), 378(4) and 372 Cr.P.C. together it would become clear that victim is also required to pray for leave to appeal before his appeal can be entertained.
11.1 Here, the provision of sub-section (3) and sub-section (4)of section378 was available to the revisionist at the time of filing the revision application. The expression 'No appeal' in sub- section (3) was replaced by words "No appeal to the High Court" with effect from 23.06.2006. The present revision application is filed in the year 2004. The revisionist had the opportunity to move the High Court by filing an appeal against the acquittal under leave to appeal, thereafter too, no such prayer has been made to get the revision Page 16 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined application converted into an appeal, with a prayer for leave to file appeal.
12. The revision petition under section 397 read with the power of High Court under section 401 clearly restricts under sub-section (3) of Section 401 Cr.P.C., the High Court to convert a finding of acquittal into one of conviction under the revisional jurisdiction. Hence, in view of the matter, to the provision of law, the revision application No.814 of 2004 of the original complainant stands rejected.
13. Strangely and equally, important it is to note, that accused had originally filed Criminal Revision Application No.681 of 2004 under Section 397 of Cr.P.C. 1973, challenging the judgment and order dated 13.08.2004 passed in Session Case No.9 of 1999 by Joint District Judge and Additional Sessions Judge, 4th Fast Track Court, Morbi to quash and set aside the judgment. On Page 17 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined 05.10.2004, the following order was passed:
"Learned advocate Mr. P.T. Jasani seeks permission to convert this Revision into Criminal Appeal. Permission granted as Appeal would lie to this Court under Section 374(2) of the Criminal Procedure Code against the judgment and order impugned in this appeal. Office is directed to register this Criminal Revision Application as Criminal Appeal."
13.1 So by the order on 05-10-2004 the revision application was permitted to be registered as Criminal Appeal. Hence the present Appeal.
14. Learned advocate Mr. Jasani raising contention, as ground of appeal submitted that the impugned judgment and order of conviction is contrary to law and evidence on record. The story of the prosecution is not at all supported by the prosecution witnesses and that it is highly risky to place reliance on the complainant's evidence alone, since his evidence is not at all reliable Page 18 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined and credible.
15. Mr. Jasani referring to the testimony of the witnesses contended that witness No.8 - Altafbhai has not supported the recovery of the muddamal pipe from accused No.1. The prosecution story of accused No.1 continuously giving iron pipe blows and suddenly accused No.2, the wife, taking the iron pipe from the hands of the husband and giving a serious blow on the frontal portion of the head of the complainant, is completely false and fabricated story, which is only got up to falsely involve accused in the alleged crime.
16. Mr. Jasani submitted that the person, who was sitting along with the complainant, Kantibhai Karsanbhai has not supported the case of the complainant, where as per the prosecution case witness Kantibhai Karasanbhai is the person who had taken the complainant for treatment, though Page 19 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined he was eye witness to the incident, he has not supported the case of the prosecution, rather he stated that the injuries which the complainant sustained was because of the women of the village, who were washing clothes at the well and they had to run away from the place and during that process complainant had fallen down on the scrap of stones and woods, while he got slipped.
17. Advocate Mr. Jasani further submitted that the evidence of the complainant does not get support from his own complaint, the injuries does not corroborate. Mr. Jasani thus, stated that the evidence of the complainant cannot be believed without support from the independent witness, and contents that the conviction under Section 323 against accused No.1 is erroneous and not consistent with the evidence on record.
18. Mr. Jasani submitted that the reliance on the evidence of the complainant would require Page 20 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined corroboration from independent person and in absence of any corroboration, the evidence of the complainant is to be considered doubtful and dis- believable. Mr. Jasani submitted that the complainant's say was found doubtful by the learned trial Court Judge and on the same evidence, accused No.2 was acquitted while accused No.1 came to be convicted, which Mr. Jasani submitted is bad in law. The evidence of the Doctor also does not find corroboration to the ocular evidence of the complainant. Mr. Jasani submitted that the character of the complainant is also required to be observed, while he had shown his false motive to file false complaint by raising false facts.
19. Learned advocate Mr. Acharya for the de- facto complainant was permitted to raise the grounds to assist the Public Prosecutor in Criminal Appeal No.1638 of 2004. Page 21 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025
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20. Learned APP Mr. Rohan Raval assisted by Mr. Kuldip Acharya has relied on the judgments of (i) State of Madhya Pradesh Vs. Harjeet Singh And Another [(2019) 20 SCC 524] (ii) Hari Mohan Mandal Vs. State of Jharkhand [(2004) 12 SCC 220], to submit that the bodily injury is not required to be proved. Attempt to murder is the only requirement for the purpose of conviction under Section 307 IPC. Mr. Raval learned APP submitted that the intention to commit murder and the act done by the accused is the only burden on the prosecution to prove that the accused had attempted to commit murder of the prosecution witness. Mr. Raval submitted that the evidence of complainant as a victim was appreciated along with the evidence of other witnesses by the learned Judge to consider the injury inflicted by the appellant to sustain conviction under Section 323 of the IPC. Thus, submitted that the appeal is required to be dismissed and the order of Page 22 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined conviction and sentence to be upheld.
21. On hearing the arguments of learned advocates from both the sides, perused the record.
22. The injured complainant P.W.7 - Manharbhai Maujibhai Loriya was having a business of salt and was resident of village Vejalpur. As per his testimony on 08.10.1998, he along with Kantilal Karsanbhai at about 7.00 to 7.30 evening were sitting on the shore of the lake, at that time, accused Ganpat Manji and Gauriben came there. According to the witness, Ganpatbhai was having an iron pipe in his hand, who came near him and gave him a blow with the iron pipe on the right hand wrist, another blow was given on the back and third blow at the right leg. The witness stated that thereafter, wife of Ganpatbhai took the pipe from his hand and gave him a blow on the frontal area of his head. Blood started oozing Page 23 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined out of the head. Both the accused left the place and he went to his house, where he informed his father and mother about the incident. 22.1 The injury, which the witness P.W.7 refers of iron pipe on the head is attributed to the wife Gauriben. The learned Trial Court Judge has acquitted Gauriben by giving benefit of doubt. The cause for the incident stated by the injured witness was that he was in relation with the daughter of accused-Ganpatbhai and therefore, he was beaten.
22.2 The injured was taken to Khakherchi dispensary by Babubhai Kala of his village on motorcycle. From there, in Government Ambulance, he was taken to Morbi Hospital, where the treatment continued for six days.
23. P.W.5 - Doctor Dipakkumar Virjibhai Bavarbha, Medical Officer of P.H.C. Center of Khakherchi village on 08.10.1998, saw the injured Page 24 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined witness Manharbhai Maujibhai at about 10.30 night. In the history before Doctor Dipakkumar, the injured witness stated that between 7.00 to 7.30, he got injured by assault. The doctor referred to the injuries, as referred hereinbelow:
1. CLW over Scalp (illegible) frontal region size 3 cm x 0.5 cm x muscle deep.
2. Contusion (illegible) (illegible) over (it) (illegible) region (illegible) size 9 cm x 1 cm apart.
3. Swelling over Rt. Leg (illegible) medial side 9 cm x 7 cm size (illegible) (illegible).
4. Contusion over part surface of it. Knee joint 3 cm x 1 (illegible) (illegible).
23.1 The doctor in the deposition stated that the injuries were not serious and if there was no other complications, then within two weeks the injuries could be healed. The injury was Page 25 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined sustained by hard and blunt substance. The doctor was of an opinion that the injury could occur with the muddamal pipe.
23.2 The evidence of the doctor was confronted by way of cross-examination, whereby the doctor stated that, before him injured Manharbhai had not given the history of the place, where he sustained injury, and Doctor too had not inquired about it and stated that if a person walks very speedily on the road and falls on stones and woods, then such type of injuries, as suffered by Manharbhai could occur.
24. P.W.7 - injured witness Manharbhai had given his compliant at the hospital at Morbi before the Police. In the cross-examination the defence had tried to dislodge his character, where it came on record, that there were two complaints against complainant; one was of kidnapping his wife Susmita, which was filed by her father and Page 26 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined another complaint was of quarrel, which was still pending at Maliya Court.
24.1 In the cross-examination further complainant affirmed that the incident had occurred at the time of sun set. He also affirmed that there were village women on the lake, who were filling water from the lake and on the bank of the lake there were people passing by. He also stated that beside the lake there was a temple of Hanumanji and village people were coming there for worship in the evening time. There was also a well, beside the lake, but he denied the suggestion that the well was not unattended and village people were using water to wash clothes. He also stated that it was time for "Aarti" in the temple. He further stated that village people were bringing their cattle to the lake.
25. Complainant denied the suggestion of not having any relation with the accused Ganpatbhai's daughter. He denied the suggestion that at the Page 27 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined time of incident his sister was counselor at Morbi Nagarpalika and denied the suggestion that since he was having business in coal, he had influence with the police.
26. The defence was raised that since he was sitting on the shore of lake at that time, he had harassed the village women and therefore, those women ran after him and he fell on stones and woods and thereafter, fell from the slope, therefore, sustained injuries and out of utter safety, so that the village women would not file complaint, he had filed a false complaint against the appellant - Ganpatbhai and his wife. He also stated that when he sustained injury he had not made any outcry, and that Kantibhai had fled away from the place because of dispute.
27. P.W.1 - Babubhai Raghavji Patel was examined as panch for the place of offence. He had not supported the prosecution case and was declared Page 28 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined hostile. He stated that he had not shown any place of incident nor police had seized any articles in his presence. He denied of collecting blood stain soil near the Hanumanji Temple at the bank of lake of Vejalpur village.
27.1 Bharatbhai Kantilal Joshi (P.W.2) was examined as a panch for recovery of the old iron pipe. He too had denied of any production on 13.10.1998 at Maliya Police Station by accused Ganpat Manji. He also denied the description and the size recorded in the panchnama. Witness was shown the muddamal pipe during the trial. He denied of the same being seized in his presence.
Even, Altafbhai Kadarbhai the panch (P.W.8) had denied of any production of iron pipe by the accused on 13.10.1998.
27.2 Ajitbhai Narbhebhai (P.W.3) is the panch of recovery of clothes of injured Manhar Mauji Patel at the hospital. The panchnama of his clothes was Page 29 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined denied by the witness. He was declared hostile. Even after the cross-examination by the Public Prosecutor, he denied of any such clothes seized of injured Manhar Mauji at Hospital and denied of any panchnama drawn of his physical condition. 27.3 P.W.9-Maheshkumar Natvarlal Vyas denied the arrest of accused Gauriben on 14.10.1998 in presence of the panch.
28. P.W.6 - Dr. Sukhdev Kunvardas Ramavat medically examined the witness on 09.10.1998 at Morbi Government Hospital during the night hours. According to the witness, Manharbhai Patel had come with a written note Exh.16, from Khakhrechi P.H. Center. The O.P.D. case papers of the injured Manharbhai was produced at Exh.17. Patient was discharged on 12.10.1998. The doctor produced the indoor case paper as well as X-ray at Exh.18. As per the doctor, the injuries were
(i) one stitch on the frontal region of head, Page 30 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined
(ii) Bruise reddish blue 9 c.m. x 1.1 c.m. on scapular region over back (iii) swelling on the left posterior medial surface of right leg (iv) bruise (reddish blue) 3 c.m. x 1 c.m. on left leg on posterior surface of knee joint. The doctor (P.W.6) stated that the Injury Nos.(ii) to (iv) could occur by hard and blunt substance. Such injuries could be caused with an iron pipe. Doctor stated that since he had not opened Injury No.1, he was not in a position to say about the weapon with which it could be caused. Doctor further stated that the injury was not grievous, but was simple and it could be healed within ten to twelve days without any complication. In the cross-examination it has come that the doctor has not examined Injury No.1, who further stated that, had the situation of the patient been serious because of the injury, then he would certainly had written a note in internal treatment papers. Doctor also stated that Injury Page 31 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined Nos.2 to 4 could occur, if the person come in contact with hard substance, like falling on stone and wood.
29. The injured witness (P.W.7) in his deposition stated that he was sitting along with Kantilal Karsanbhai on the shore of lake in the evening time between 7.00 to 7.30 on 08.10.1998. 29.1 Witness - Kantilal Karsanhbai was examined as P.W.10 at Exh.24. He is a contractor by profession. He admitted that he along with Manharbhai were sitting on the shore of lake near the well in the evening. He had not seen anyone beating Manharbhai with pipe. He had heard hue and cry and since it was dark at night, he could not identify who had beaten him. He stated that he ran away from the place. He does not know who had beaten Manharbhai, and for what purpose. Kantibhai very specifically stated that he has not seen accused Ganpat Manji Patel and Gauriben beating Manharbhai with pipe, and no such Page 32 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined incident had occurred in his presence. The witness was declared hostile. In the cross- examination by the Public Prosecutor, the witness had not supported the prosecution case. In cross- examination by the defence from the side of the accused, the witness stated that he was knowing the daughter of Ganpatbhai, the daughter had no such love relation with Manharbhai. On 09.10.1998, they were sitting on the shore of the lake, at that time, women were washing clothes at the well and at that time, injured Manharbhai signaled the witness and asked him to run away. The witness stated, on the shore there were scraps of stones and woods and Manharbhai got slipped on it and therefore, he sustained injuries on his body.
29.2 Witness Kantilal Karsanbhai Patel (P.W.10) was along with injured Manharbhai. The complainant-injured did not deny that fact. The injured complainant had admitted of women of Page 33 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined village coming at the lake to fill water and had also admitted that there was frequency of people on the shore of the lake. People would also come at the Hanumanji temple in the evening for their offerings. PW 10-Kantibhai was confronted in the cross-examination on their sitting there on the bank of the lake, and since complainant was teasing the village women, they had made him run and therefore,complainant had fallen on the scraps of stones and woods from the slope, which witness affirmed. This incident had been admitted by witness Kantilal in the cross-examination, thus in view of the evidence the defence version, that complainant was made to run away from the place by the village women becomes believable.
30. P.W.11 - Vasantpari Nathupari Bawaj is the panch of the panchnama of place of offence. Though the witness identified his signature on panchnama (Mark 11/3), the learned Judge did not deem fit to exhibit the document in evidence, Page 34 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined P.W.11 was declared hostile. On 09.10.1998, when panch witness was coming out of the Hanuman Temple after offering his prayers, police on the road had asked him to put signature on seven to eight papers. He denied of witness Kantilal Karsan (P.W.10) having showed the place of offence. P.W.11 said that at the time of signing he was alone.
30.1 On declaring P.W.11 hostile, learned APP crossed the witness with panchnama to get corroboration of the fact that P.W.10 had shown the place of offence on the shore of the lake near Hanumanji temple, showing drops of blood and dried blood scraped for F.S.L. and control sample being collected. All these facts were denied by P.W.11.
31. P.W.12 - Kasturben wife of Maujibhai Patel, mother of complainant, was examined at Exh.28. At the time of incident the complainant - Page 35 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025
NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined Manharbhai, his son, was staying with her. Her deposition notes that on the day of incident at eight in the evening, her husband was at home and she was preparing for dinner, at that time, she saw her son covered with blood. Her son did not speak anything. Her son Rasik called Babubhai and send Manhar for treatment to Khakhrechi. 31.1 P.W.12 further deposed that after some time Babubhai came to their village and informed that Manhar got stitches on his head, and for further treatment he was taken to Morbi Hospital. 31.2 Next day, when P.W.12 and her husband went to visit Manhar, and inquired from him about the incident, Manhar informed that he was beaten, Ganpat Manji had beaten him, who had beaten him with iron pipe and his wife Gauriben Manji too had beaten him on head by taking iron pipe from the hands of Ganpat Manji.
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NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined 31.3 P.W.12 identified accused in the Court. In cross-examination, witness stated that presently her son was staying at Morbi. At the time of incident, Rasikbhai, his wife Lalita and Manhar were staying together. At the time of incident, Rasikbhai was thirty five years of age. When her son Manhar was brought home, they all were present.
31.4 As per P.W.12 Kantibhai had come to leave Manhar at home. P.W.12 had asked about the incident, but Kantibhai did not reply. When she had asked about the incident to Babubhai, he said that Manharbhai was beaten.
31.5 P.W.12 denied the fact that against her son, accused and villagers had filed complaints in Panchayat and other places. Police had recorded her statement on the next day, at that time her son was at Morbi. P.W.12 denied the suggestion that her son had fallen down in the Page 37 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined hustle and got hurt and therefore, when he came home the first time, he did not tell her anything.
31.6 The deposition of P.W.12 clarifies that when complainant had come home, he did not inform of the incident to his mother, when, father as well as brother Rasik were present there. Father and brother were not examined.
32. P.W.10 - Kantibhai, the eye witness, too had not informed them about the incident, Babubhai is only informing the mother that her son was beaten, but Babubhai did not tell who had beaten Manhar.
33. P.W.12 is not an eye witness, while eye witness Kantibhai (P.W.10) had not informed anything about the incident, nor Babubhai states about the assailants. P.W.12 deposition is, what is informed to her by the complainant, while father and brother of the complainant, are not Page 38 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined coming forward to corroborate the say.
34. Bhupatsinh Mansinh Solanki - P.W.13 was P.S.I. at Malya Miyana Police Station during the period of 09.10.1998. As he was on leave, the investigation was handled by P.S.I. Z.A. Thakur, who drew panchnama of place of offence. P.W.13 identified the signature of P.S.I. Thakur, Mark 11/3, was placed in evidence at Exh.30, who deposed that P.S.I Thakur also had recorded statements of witnesses. On P.W.13 taking back the investigation, he arrested the accused. P.W.13 stated that accused Ganpat Manji Patel produced the iron pipe, reading the description, iron pipe was seized by way of panchnama, and then accused Ganpat Manji was arrested. P.W.13 deposed that in the same way accused Gauriben Ganpat Manji was arrested. Both the panchnama were produced at Exh.31 and 32. The clothes of injured Manharbhai were seized, the panchnama was produced identifying the signature of P.S.I. Page 39 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined Thakur at Exh.33.
35. The notification of prohibition on weapons was placed at Exh.34. The forwarding note to F.S.L. and examination of its result,P.W.13 placed on record from Exh.35 to 40. The treatment certificates were procured and charge sheet was filed by this witness.
36. In cross-examination, it has came on record that except arrest panchnama no other work was done by this witness. He handled the investigation on 12.10.1998. He had not recorded the statement of Rasikbhai, nor had recorded the statements of the neighbours.
37. Scientific Officer report from Regional Forensic Science Laboratory, Junagadh had given conclusion of nine parcels and also sends serologist report. As per the report in parcel-2, Mark A/1 on sample No.2, there were no signs of blood the sample were pieces of cement plaster. Page 40 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025
NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined In parcel-7, Mark-D sample-7 no blood was found, sample-7 was denoted as iron pipe of 93.0 c.m. length. The sample-7 was shown to be rusted with stains of dust.
37.1 The report thus, does not find blood on the iron pipe, nor at the place of offence from where the pieces of concrete were collected.
38. The conviction of the appellant is under Section 323 of IPC by the learned Trial Court Judge relying on the evidence of Dr. Sukhdev Kunvardas Ramavat and Doctor Dipakkumar Virjibhai Bavarbha considering the injury as simple injuries. The learned Trial Court Judge was of the opinion that the prosecution has failed to prove the intention to commit murder and in that circumstances on the evidence found, accused No.1 was found guilty of offence under Section 323 IPC observing that the prosecution failed to prove the case under Sections 307 and 324 IPC against Page 41 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined both the accused. The Trial Court Judge believed the case under Section 323 IPC only against accused No.1 - the present appellant.
39. The challenge has been given to such an observation of the learned Trial Court Judge. The complainant, as an injured witness cannot be believed, since the eye witness Kantilal Karsanbhai Patel (P.W.10), who was along with him had not supported the complainant. The injured complainant had alleged that he was beaten by appellant and his wife, however, wife has been acquitted by the Trial Court. The recovery of the iron pipe with the serological report does not support the case of the complainant. There were no blood stains found on the iron pipe, nor any blood was seen at the place of offence. The eye witness Kantilal Karsanbhai Patel very clearly states that he has not seen the appellant - Ganpat Manji, or his wife - Gauriben beating complainant - Manharbhai with the iron pipe. As Page 42 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined per eye witness, no such incident had occurred in his presence. The learned Trial Court Judge has erred to convict the present appellant, failing to appreciate this evidence on record which excludes both the accused from the charge. The same evidence, which was for the acquitted wife was available on record for the convicted appellant.
40. The evidence of the complainant - Manharbhai becomes doubtful, as he had not immediately informed about the incident to his mother (P.W.12), when he was taken by the eye witness Kantibhai to the house. Even Kantibhai had not stated about the incident to the mother. The brother of complainant - Rasikbhai had called Babubhai and had sent complainant for treatment at Khakhrechi. Mother (P.W.12) had inquired from Babubhai about the incident, but he too failed to give any account of the incident. He could only inform that Manharbhai was beaten. Page 43 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025
NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined
41. P.W.10 - Kantibhai Karsanbhai was sitting along with the complainant Manharbhai on the shore of the lake near the well and had stated of running away from the place and in the cross- examination had affirmed that women were washing clothes on the well and at that time injured complainant - Manharbhai signalled him to run away, and that the complainant had slipped on the scrap of stones and woods and sustained injuries on his body. In absence of corroborative evidence, the complainant version cannot be believed, as his testimony is shrouded with suspicion, since he in his evidence had tried to malign the character of the daughter of the accused to express the motive which does not get proved. He himself is facing the complaint of kidnapping his wife, which was filed by father- in-law, and another complaint is of beatings. The credibility of deposition of the complainant in that background becomes doubtful, which requires Page 44 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025 NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined a corroboration from an independent person. Kantilal Karsanbhai (P.W.10) though was along with him has not supported the complainant's case. Further, in absence of any positive report of blood stains on the iron pipe and the place of incident, it could be said to be conclusively proved that the appellant had used the iron pipe to hit the complainant.
42. In view of the above observations and analysis of the evidence, this Court is of an opinion that the prosecution had failed to prove the case against the present appellant too, where no cogent and reliable evidence was on record to even convict the appellant under Section 323 of the IPC. When the testimony remain uncorroborated and when both the witnesses, the complainant and eye witness (P.W.10), have two different versions to say, the prosecution case becomes doubtful. Page 45 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025
NEUTRAL CITATION R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025 undefined
43. In the result the appeal is allowed. The conviction and sentence dated 13.08.2004 passed by the learned Joint District Judge & Additional Sessions Judge, 4th Fast Track Court, Morbi in Sessions Case No.9 of 1999 is set aside. The appellant is acquitted from all the charges. Bail bond stands discharged. Record and Proceedings be sent back to the concerned Trial Court forthwith.
(GITA GOPI,J) Pankaj/1 Page 46 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:28:26 IST 2025