Gujarat High Court
State Of Gujarat vs Rabari Pola Bechar & 5 Others on 10 February, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/613/1995 JUDGMENT DATED: 10/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 613 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
RABARI POLA BECHAR & 5 OTHERS & ORS.
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Appearance:
MR.L.B.DABHI, APP, for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No.
1,2,3,4,5,6
MS. VISHWA SHAH AND MR. ROHAN VAGHELA, for MR PRAVIN
GONDALIYA(1974) for the Opponent(s)/Respondent(s) No. 1,2,5,6
MR YOGESH S LAKHANI(419) for the Opponent(s)/Respondent(s) No. 3,4
NOTICE SERVED BY DS for the Opponent(s)/Respondent(s) No. 5,6
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 10/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal is preferred by the State under Section-378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 06.03.1995 passed by Additional Sessions Judge, Bhavnagar in sessions case no.132 of 1993. By the impugned judgment and order, the sessions Court acquitted the respondents- accused for offence under section 302, 147, 148, 149, 224 and 34 of Indian Penal Code and under section 135 of the Bombay Police Act.
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2. The case pertains to an incident that occurred in Sarva village of Botad Taluka, District Bhavnagar, on 09.03.1993, at around 4:30 PM, where an altercation over the grazing of a buffalo in the field led the respondents-accused to form an unlawful assembly with the common intention of causing the death of two brothers, Usmanbhai and Mahmadbhai. Armed with deadly weapons, they assaulted Usmanbhai and Mahmadbhai with Dhariyas (sharp weapons), sticks, pipes, and Bhala (sharp weapon), inflicting injuries that resulted in their death. Thus, the respondents-accused committed offenses punishable under Sections 302, 147, 148, 149, 224, and 34 of the Indian Penal Code, along with Section 135 of the Bombay Police Act.
3. Learned Additional Public Prosecutor submitted that the learned Trial Judge committed a serious error in acquitting the respondents-accused despite clear and cogent evidence presented by the prosecution.
3.1 It is submitted that The injured eyewitnesses, including the complainant, consistently narrated the incident and identified the accused as the perpetrators. Their testimonies were natural, reliable, and corroborated by medical evidence.
3.2 It is submitted that the postmortem report confirmed that the injuries sustained by the deceased were sufficient in the ordinary course to cause death. This scientific evidence supports the prosecution case, which the Trial Court failed to appreciate.
3.3 It is submitted that the Learned Judge overlooked the fact that a cross-case was filed by the accused themselves, which establishes their presence at the scene of the crime and their active involvement in the offense.
3.4 It is submitted that the complainant promptly lodged an FIR after the incident, which further strengthens the case. The Trial Court failed to give due weight to this crucial fact.
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3.5 It is submitted that the Learned Judge erred in discarding prosecution evidence based on minor discrepancies in witness statements. Such variations are natural over time and do not affect the credibility of witnesses.
3.6 It is submitted that the learned Trial Court wrongly relied on the absence of an identification parade as a ground for acquittal. Since the accused were well-known to the complainant and witnesses, conducting an identification parade was unnecessary.
3.7 It is submitted that the learned Trial Judge disregarded strong and cogent evidence and acquitted the accused on technical grounds, resulting in a miscarriage of justice. Given the strong evidence against the accused, the order of acquittal is legally unsustainable and merits interference by this Court.
4. As against this, learned Advocate for the respondent-accused has supported the judgment of acquittal submitting that Learned Advocate for the Respondents-Accused submitted that the learned Trial Judge has rightly acquitted the respondents-accused after a proper appreciation of the evidence on record. The prosecution failed to prove the case beyond a reasonable doubt, and therefore, the acquittal does not warrant interference by this Court.
4.1 It is submitted that the prosecution primarily relied on interested witnesses, the complainant and related persons and failed to examine any independent witnesses. The reliability of the prosecution witnesses is questionable and their evidence was riddled with inconsistencies and contradictions.
4.2 It is submitted that the prosecution failed to explain the injuries sustained by the accused, which creates serious doubt regarding the prosecution's version of events. The non-explanation of injuries on the accused weakens the prosecution case and suggests a suppression of material facts.
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4.3 It is submitted that a cross-case was filed by the accused, which indicates that the incident was not a one-sided attack by the accused but rather a cross fight. The prosecution failed to disprove the defense version, which raises serious doubts about the alleged unlawful assembly and premeditation.
4.4 It is submitted that the FIR was lodged after an undue delay, which suggests deliberate afterthought and fabrication of allegations. The prosecution failed to justify the delay, and such an unexplained delay creates suspicion regarding the veracity of the complaint.
4.5 It is submitted that there are material contradictions and inconsistencies in the statements of prosecution witnesses, which cast serious doubts on their credibility. The Learned Trial Judge rightly considered these discrepancies and discarded unreliable evidence.
4.6 It is submitted that no identification parade was conducted to establish the identity of the accused. The claim that the accused were already known to the witnesses cannot be a valid excuse for not conducting a proper identification parade as per law.
4.7 It is submitted that the medical evidence does not conclusively support the prosecution's version. The doctor's opinion regarding the cause of death was not definitive, and the injuries on the deceased do not necessarily indicate a premeditated attack by the accused.
4.8 It is submitted that in criminal jurisprudence, the benefit of doubt must always go to the accused. Since the prosecution failed to prove the guilt of the accused beyond a reasonable doubt, the Learned Trial Court rightly acquitted the respondents-accused.
5. Having heard learned Advocates for the parties and having perused documents on record, it appears that to prove the case against the respondents-accused, the prosecution relied upon following oral evidences:
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No No. 1 Deposition of PW No.1 Ayubbhai Abdulbhai 44 2 Deposition of PW No.2 Dr. Kantilal Jivrajbhai 45 3 Deposition of PW No.3 Kishor Khimji 57 4 Deposition of PW No.4 Devkubhai Hathibhai 60 5 Deposition of PW No.5 Harishankar Jivabhai 62 6 Deposition of PW No.6 Ranchhodbhai Popatbhai 65 7 Deposition of PW No.7 Babubhai Bachubhai 67 8 Deposition of PW No.8 Laljibhai Ramjibhai 68 9 Deposition of PW No.9 Niratben Kishorbhai 70 10 Deposition of PW No.10 Naran Kuvarabhai 72 11 Deposition of PW No.11 Amrabhai Premjibhai 73 12 Deposition of PW No.12 Balashankar Nanjibhai 76 13 Deposition of PW No.13 Dr. Dilipkumaar Manubhai Desai 79 14 Deposition of PW No.14 Pareshkumar Jayrambhai 82 15 Deposition of PW No.15 Dr. Dhirajlal Giradharlal 93 16 Deposition of PW No.16 Ganpatbhai Nanabhai Chauhan 98
5.1 The prosecution also relied upon following documentary evidence:
Sr. Particular Exh.
No No.
1 Inquest Panchanama 26
2 Report of police for postmortem of Usmanbhai 27
3 Inquest Panchanama 32
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R/CR.A/613/1995 JUDGMENT DATED: 10/02/2025
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4 Report of police for postmortem of Mahmadbhai 33
5 Panchanama of clothes of Usmanbhai 34
6 Panchanama of clothes of Mahmadbhai 35
7 Forwarding Letter to FSL 36
8 Serologycal report 37
9 PM note of Usmanbhai 46
10 Injury certificate of injured Kishor 48
11 Injury certificate of injured Ayubbhai 49
12 Panchanama of place of incident 58
13 Map of place of incident 59
14 Discovery Panchanama 66
15 Panchanama 69
16 Report for PM note 80
17 PM note of Mahmadbhai 98
18 Certificates 83-86
19 Original complaint p 99
20 FIR 100
6. Exh-4 to Exh-9 are statements of respondents-accused under section 313 of Code of Criminal Procedure where respondents-accused have taken a stand that they are falsely charged with the offence and have denied the evidence collected.
7. From perusal of the record, it appears that the deposition and post-
mortem report of PW-2, Dr. Kantilal Jivrajbhai, Exh-45, Medical Officer, indicate that the deceased Usmanbhai sustained head injuries, and his death was labeled as homicidal, while PW-13, Dr. Dilipkumar Manubhai Page 6 of 12 Uploaded by SIDDHARTH(HC01065) on Wed Feb 19 2025 Downloaded on : Sat Feb 22 00:43:49 IST 2025 NEUTRAL CITATION R/CR.A/613/1995 JUDGMENT DATED: 10/02/2025 undefined Desai, Exh-79, Medical Officer, confirmed similar head injuries and homicidal death for Mahmadbhai. However, merely proving that the deaths were homicidal is not sufficient to hold the respondents-accused guilty; the prosecution must establish beyond a reasonable doubt that the injuries were inflicted by the respondents-accused and were a direct result of their unlawful actions.
8. The deposition of PW-1, Ayubbhai Abdulbhai, Exh-44, the complainant and father-in-law of the deceased Mahmadbhai, deposed that an altercation occurred between the deceased and the accused over grazing of buffaloes in the deceased's field. However, there is a contradiction between the complainant's testimony and his deposition regarding the time of the altercation. Such inconsistencies raise doubts about the accuracy and reliability of the prosecution's version of events. Given these contradictions, the Court finds that the prosecution's case lacks clarity and consistency, requiring careful scrutiny before attributing guilt to the accused.
9. From perusal of the Inquest Panchnama and other evidence, it is clear that the incident resulted from a cross fight between both groups. The repeated mention of the word "altercation" in official documents, including the letter from the P.S.O. to the P.S.I., indicates that this was not a one-sided attack but a fight involving both sides. Additionally, the complainant's statements contain contradictions, especially regarding the presence of seven to eight respondents-accused, which raises doubts about the prosecution's version of events. The complainant also changed his statements about verbal exchanges and could not clearly identify all attackers. Considering these facts, the Court finds that the case appears to be a cross fight rather than a planned attack, and the charges against the accused need to be carefully reconsidered.
10. PW-3, Kishorbhai, Exh-57, an injured witness, deposed that he was present at the time of the incident and that six to seven accused attacked the deceased and other witnesses with deadly weapons, Page 7 of 12 Uploaded by SIDDHARTH(HC01065) on Wed Feb 19 2025 Downloaded on : Sat Feb 22 00:43:49 IST 2025 NEUTRAL CITATION R/CR.A/613/1995 JUDGMENT DATED: 10/02/2025 undefined causing injuries. He also admitted that he has sustained injuries on his head and back. However, the deposition of PW-2, Dr. Kantilal Jivrajbhai, Exh-45, Medical Officer, who examined PW-3, does not confirm any injury on Kishorbhai's head or back. This discrepancy between the witness's testimony and medical evidence raises serious doubts about the credibility of his statement and weakens the prosecution's case. Considering this contradiction, the Court finds that the evidence of PW-3 requires cautious evaluation before placing reliance upon it.
11. PW-9, Niratben Kishorbhai, Exh-70, an eyewitness and wife of PW- 3, deposed that she was present in the field at the time of the incident and witnessed the accused attacking and injuring the deceased and other witnesses. However, the evidence on record confirms that the accused also sustained injuries during the altercation, as established by PW-14, Dr. Pareshkumar Jayrambhai, and PW-15, Dr. Dhirajlal Giradharlal, who examined the accused and confirmed their injuries. This indicates that a cross-fight took place, contradicting the prosecution's claim of a one-sided attack. Given this evidence, the Court finds that the possibility of cross fight cannot be ruled out, and the prosecution's version requires careful scrutiny.
12. PW-10, Naran Kuvarabhai, Exh-72, an eyewitness, deposed that he saw the accused injuring the deceased and other witnesses. However, he was unable to specify which accused inflicted which injuries. Additionally, after the incident, he and his wife went home instead of reporting the matter immediately. As a fieldworker, his presence at the scene is understandable, but his failure to mention the cross-fight, despite medical evidence confirming injuries to the accused, suggests that he may have withheld certain details. Given his lack of clarity regarding the role of each accused and the possibility of incomplete disclosure, the Court finds that his testimony requires careful scrutiny before being fully relied upon. The evidence presented does not establish the guilt of the accused beyond reasonable doubt.
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13. PW-16, Ganpatbhai Nanabhai Chauhan (Exh-98), the Investigating Officer, reveals that while he conducted the panchnama and collected evidence, he also acknowledged the occurrence of a cross-fight. Additionally, he prepared a single panchnama for separate offences, which raises concerns regarding the proper documentation of the incident. Furthermore, there was a two-day delay in initiating the investigation proceedings, and the officer failed to provide a sufficient explanation for this delay. Such lapses indicate negligence in the investigation, which affects the reliability of the prosecution's case and raises serious doubts about the fairness and thoroughness of the inquiry.
14. The prosecution's case is based on an altercation over the grazing of a buffalo in the field as the reason for the incident. However, in the panchnama of the place of the incident does not mention any footprints or signs of a buffalo in the field, which contradicts the prosecution's version of events. This discrepancy raises doubts about the alleged motive for the crime and weakens the reliability of the prosecution's case.
15. The evidence on record, including medical reports and witness statements, establishes that both parties sustained injuries, indicating a cross-fight rather than a one-sided attack. The prosecution has failed to disprove this fact or provide a reasonable explanation for the injuries sustained by the accused. This omission raises serious doubts about the prosecution's version of events and suggests a possible suppression of material facts.
16. The court may refer to and rely upon the decision of the apex court in case of Nand Lal and others Versus State Of Chhattisgarh reported in 2023 (10) SCC 470, wherein the Apex Court held in para 27 and 28 as under, "27. Undisputedly, in the present case, the injuries sustained by accused No. 11 Naresh Kumar cannot be considered to be minor or Page 9 of 12 Uploaded by SIDDHARTH(HC01065) on Wed Feb 19 2025 Downloaded on : Sat Feb 22 00:43:49 IST 2025 NEUTRAL CITATION R/CR.A/613/1995 JUDGMENT DATED: 10/02/2025 undefined superficial. The witnesses are also interested witnesses, inasmuch as they are close relatives of the deceased. That there was previous enmity between the two families, on account of election of Sarpanch, has come on record. As observed by this Court in the case of Ramashish Ray v. Jagdish Singh, (2005) 10 SCC 498 previous enmity is a double-edged sword. On one hand, it can provide motive and on the other hand, the possibility of false implication cannot be ruled out.
28. We have already seen herein above the injuries sustained by accused No. 11 Naresh Kumar. Much prior to lodging of the FIR at 03.15 AM on 4th November 2006 by Khomlal, the Police had taken accused No. 11 Naresh Kumar for medical examination. The memo forwarding accused No. 11 Naresh Kumar for medical examination to Medical Officer mentions that accused No. 11 had informed the police that at around 08.30 PM, he was assaulted by Atmaram (PW-1). Undisputedly, the prosecution has suppressed information with regard to the said incident. The prosecution has also suppressed the FIR lodged by Atmaram (PW-1). It is thus clear that the prosecution has attempted to suppress the real genesis of the incident. Taking into consideration this aspect of the matter, coupled with the non- explanation of the injuries sustained by accused No. 11 Naresh Kumar, we are of the considered view that accused No. 11 Naresh Kumar is entitled to benefit of doubt."
17. Multiple prosecution witnesses, including injured eyewitnesses, have given contradictory statements regarding the incident, the role of the accused, and the injuries sustained. Such discrepancies raise doubts about the reliability of their testimonies.
18. The Investigating Officer failed to conduct a fair and impartial investigation. The use of a single panchnama for separate offenses and an unexplained two-day delay in initiating proceedings indicate negligence, further weakening the prosecution's case.
19. The prosecution's claim that the incident occurred due to an altercation over buffalo grazing is contradicted by the panchnama of the place of the incident, which found no traces of buffalo footprints. This discrepancy raises doubts about the alleged motive.
20. The prosecution has failed to establish the guilt of the accused Page 10 of 12 Uploaded by SIDDHARTH(HC01065) on Wed Feb 19 2025 Downloaded on : Sat Feb 22 00:43:49 IST 2025 NEUTRAL CITATION R/CR.A/613/1995 JUDGMENT DATED: 10/02/2025 undefined beyond reasonable doubt. The presence of contradictions, inconsistencies, and missing crucial evidence weakens the prosecution's case, entitling the accused to the benefit of the doubt.
21. The court may refer to and rely upon the decision of the apex court in case of Alauddin And Others Versus State Of Assam And Another reported in AIR 2024 SC 2283, wherein the Apex Court establishes that not all omissions amount to contradictions unless they are significant and relevant, as per the explanation under Section 162 CrPC. It further clarifies that contradictions in witness statements must be proved as per Section 145 of the Evidence Act by confronting the witness with their prior statement. If the witness denies making such a statement, it must be proved through the investigating officer. The judgment also emphasizes that minor inconsistencies are not grounds for disbelieving a witness and only material contradictions affecting the prosecution's case justify discarding evidence. Thus, if the prosecution's case is based on inconsistent testimonies without properly proving contradictions, the accused is entitled to the benefit of the doubt, supporting the acquittal.
22. The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad Vs. State of Bihar & Anr. reported in (2022) 3 SCC 471, wherein the Apex Court has examined the case law with regard to the power of the High Court to overturned the decision of the Sessions Court where an another view is possible. Examining the case including that of Chandrappa & Ors. vs. State of Karnataka reported in (2007) 4 SCC 415, the Apex Court has culled out the general principles regarding the powers of the Appellate Court while dealing with the appeal against the order of acquittal. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the Page 11 of 12 Uploaded by SIDDHARTH(HC01065) on Wed Feb 19 2025 Downloaded on : Sat Feb 22 00:43:49 IST 2025 NEUTRAL CITATION R/CR.A/613/1995 JUDGMENT DATED: 10/02/2025 undefined fundamental principle of criminal jurisprudence, and thereafter, upon securing of acquittal, the presumption is further reinforced, reaffirmed and strengthened, and therefore, whenever there are two reasonable conclusions are possible on the basis of the evidence on record, ordinarily, the Apex Court would not disturb the findings of acquittal recorded by the Trial court.
23. The Court has also perused judgment and order of the Sessions Court and finds that cogent and convincing reasons are assigned by the Sessions Court while acquitting the respondents-accused.
24. In view of the aforesaid discussion, the Court finds no reason to interfere with the impugned judgment and order of acquittal dated 06.03.1995 passed by Additional Sessions Judge, Bhavnagar in sessions case no.132 of 1993. The appeal is therefore dismissed. Bail and bail-bonds of the accused, if any, stand discharged. Records and proceedings be sent back to the concerned trial Court.
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