Gujarat High Court
State Of Gujarat vs Bhikhabhai Mahibhai Thkare on 12 February, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/451/1995 JUDGMENT DATED: 12/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 451 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
BHIKHABHAI MAHIBHAI THKARE & ORS.
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Appearance:
MR LB DABHI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,2,4
MR PRATIK B BAROT(3711) for the Opponent(s)/Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 12/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal is preferred by the appellant-State under Section 378 of the Code of Criminal Procedure, 1973 against judgment and order of acquittal dated 24.03.1995 passed by Additional Sessions Judge, Kheda at Nadiad in Special Case No.48 of 1993. By the impugned judgment and order, the Sessions Court acquitted the respondents-accused for offence under sections 302, 120B, 143, 147, 148, 149, 447 and 34 of the IPC and section 3(1) Page 1 of 11 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:56:10 IST 2025 NEUTRAL CITATION R/CR.A/451/1995 JUDGMENT DATED: 12/02/2025 undefined (10) and 3(2)(5) of Atrocities Act.
2. It is required to be noted that during pendency of the appeal, respondent No.1-Bhikhabhai Manibhai Thakor, respondent No.2-Prabhatbhai Manibhai Thakor and respondent No.4-Ravjibhai Manibhai Solanki have expired. Therefore, the appeal, insofar as respondents-accused Nos.1, 2 and 4 are concerned stands abated as is recorded by coordinate Bench of this Court in order dated 07.12.2022.
3. The case pertains to an incident which occurred on 25.04.1993 in Radhu village of Matar Taluka, District Kheda, where at around 18:45 hours, the respondents-accused formed an unlawful assembly with the common intention of causing the death of deceased-Talshibhai. They were armed with deadly weapons and unlawfully trespassed into the complainant's agricultural field. They assaulted deceased-Talshibhai with Dhariyas (sharp weapons) and sticks, inflicting injuries that led to his death. In connection with FIR for offences under Sections 302, 143, 147, 148, 447, 120(B), and 149 read with Section 34 of the IPC, along with Sections 3(1)(10) and 3(2)(4) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. SC/ST (Prevention of Atrocities) Act came to be filed.
4. After commital of case, charge came to be framed as Page 2 of 11 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:56:10 IST 2025 NEUTRAL CITATION R/CR.A/451/1995 JUDGMENT DATED: 12/02/2025 undefined under:-
"On 25/04/93 at around 18-45 o'clock in evening at the farm of complainant Ganeshbhai Vankar located in the outskirt of village - Radhu, Taluka - Matar, District - Kheda, all the accused persons, in collusion with one another, formed an unlawful assembly and became the members of the said unlawful assembly against the law and thereby, all the accused persons committed an offence punishable under section 143 of the IPC.
Further, the charge is also framed against all the accused persons that, at the aforementioned date, time and place, the accused persons formed an unlawful assembly to fulfill their common objective of causing death of the deceased Talshibhai Vankar and assaulted Talshibhai Vankar and committed rioting and thereby, all the accused persons committed an offence punishable under section 147 of the IPC.
Further, the charge is also framed against all the accused persons that, at the aforesaid date, time and place, to fulfill the common objective of the unlawful assembly formed by them, all the accused persons held deadly weapons and thereby, they committed an offence punishable under section 148 of IPC.
Further, the charge is also framed against all the accused persons that, at the aforesaid date, time and place, to fulfill the common objective of the unlawful assembly formed by them, the accused persons made a criminal trespass in the farm of the complainant and Page 3 of 11 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:56:10 IST 2025 NEUTRAL CITATION R/CR.A/451/1995 JUDGMENT DATED: 12/02/2025 undefined Accused No. (3) and (4) intentionally inflicted blows of scythe on deceased Talshibhai Vankar and Accused No. (1) and (2) beat him and caused grave injuries to him and caused his unnatural death by murdering him and thereby, all the accused persons committed an offence punishable under sections 447, 302 read with sections 149 and 120-B of the IPC.
Alternatively, the charge is also framed against all the accused persons that, to fulfill the common objective of committing the aforesaid offence of murder, all the accused persons made a criminal trespass in the farm of the complainant and intentionally assaulted deceased Talshibhai Vankar and in collusion with one another, Accused No.(3) and (4) inflicted blows of scythe on deceased Talshibhai Vankar and Accused No. (1) and (2) beat him and caused grave and fatal injuries to him and caused his unnatural death and thereby, all the accused persons committed an offence punishable under sections 447 and 302 read with sections 34 and 120-B of the IPC.
Further, the charge is also framed against all the accused persons that, though all the accused persons were knowing that the deceased Talshibhai Vankar and complainant Ganehsbhai belonged to Vankar caste, which is a Scheduled Caste, the accused persons made a criminal trespass in the farm of the complainant and publicly humiliated deceased Talshibhai and complainant Ganehsbhai and Accused No.(3) and (4) inflicted blows of scythe on deceased Talshibhai Vankar and Accused No. (1) and (2) beat him and caused grave Page 4 of 11 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:56:10 IST 2025 NEUTRAL CITATION R/CR.A/451/1995 JUDGMENT DATED: 12/02/2025 undefined injuries to him and caused his unnatural death by murdering him and thereby, all the accused persons committed an offence punishable under sections 3(2)(5) and 3(1)(10) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989."
5. Learned Additional Public Prosecutor for the appellant- State submitted that there are ample direct and indirect evidences connecting the respondents-accused with commission of offence, still, however, the Sessions Court has acquitted the respondents- accused.
5.1 It is submitted that the Sessions Court has totally ignored evidence of the complainant-Ganeshbhai, which is corroborated by the FIR, who is also an eyewitness to the incident. It is submitted that after the incident, complainant-Ganeshbhai had given names of all the accused with description of weapons in their hands.
5.2 It is submitted that the Sessions Court has also not considered medical evidence, which stands corroborated with the injuries sustained by the deceased.
6. As against this, learned Advocate for the respondent- accused submitted that in this case there is only a sole eyewitness- complainant-Ganesbhai, who is interested witness and his presence is also doubtful at the time of incident. Moreover, he has not Page 5 of 11 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:56:10 IST 2025 NEUTRAL CITATION R/CR.A/451/1995 JUDGMENT DATED: 12/02/2025 undefined specifically stated as to in whose hand which weapon was there and who gave blow to the deceased with which weapon. The FIR was also lodged almost after 8 hours after the incident. 6.1 It is submitted that there are major contradictions in the evidence of the complainant and the medical evidence regarding the injuries sustained by the deceased. It is submitted that no bloodstain was found on the weapons recovered. Therefore, discovery panchnama is also under cloud.
6.2 It is submitted that the incident is alleged to have happened in the field of the deceased, where dry leaves were there. However, there also, no bloodstain was found. Therefore, it is highly likely that the alleged incident had occurred somewhere else and thereafter, dead body of the deceased was planted in his field.
7. 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 evidence:-
Sr. Name of the witness Exh.
No. No.
1 Deposition of PW No.1-Ganeshbhai Jethabhai- 17
complainant
2 Deposition of PW No.2-Mafatbhai Nathubhai 21
3 Deposition of PW No.3-Bharatbhai Narabhai 28
4 Deposition of PW No.4-Malabhai Kalabhai 37
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NEUTRAL CITATION
R/CR.A/451/1995 JUDGMENT DATED: 12/02/2025
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5 Deposition of PW No.5-Maganbhai Keshavbhai 39
6 Deposition of PW No.6-Dr.Chandrakant Raghwani 45
7 Deposition of PW No.7-Mafatbhai Gadabhai 47
8 Deposition of PW No.8-Indrasinh Kumpavat-IO 51
9 Deposition of PW No.9-Abdullah Abbas Khokhar 54
7.1 The prosecution also relied upon mainly following
documentary evidence:-
Sr. Particular Exh.
No. No.
1 Inquest panchnma 23
2 FSL report 24
3 Panchnama of examination of body accused 29
4 Muddamal slip 30
5 PM note 46
6 Discovery panchnama 48
7 Complaint 52
8. PW No.1-Ganeshbhai Jethabhai, Exh.17 is the
complainant. In his deposition, he has stated that on 25.04.1993, deceased-Talshibhai had gone to his field at about 05;30 pm. He has further stated that since son of the deceased was to be taken to hospital, he had gone to call deceased at about 06;30 pm. At that time, he had seen five persons beating the deceased-Talshibhai, including deceased-Manibhai. He has further stated that accused No.1-Bhikhabhai had given two dhariya blows on the head of the deceased, accused No.2-Prabhatbhai gave stick blow on the backside of the deceased, accused No.3-Pakabhai @ Pratapbhai Page 7 of 11 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:56:10 IST 2025 NEUTRAL CITATION R/CR.A/451/1995 JUDGMENT DATED: 12/02/2025 undefined gave two dhariya blows on the head of the deceased and accused No.4-Ravjibhai along with deceased-Manibhai and accused No3- Pratapbhai ran after complainant-Ganeshbhai, when he asked as to why they are beating the deceased. It is required to be noted that the complainant in his complaint Exh.52 has not mentioned that one and half years son of the deceased-Talshibhai was to be taken to hospital and therefore, he had gone to call the deceased. It appears that to establish his presence at the scene of offence, this version is given by the complainant as an afterthought.
9. PW No.2-Mafatbhai Nathubhai, Exh.21 in his deposition has stated that complainant-Ganeshbhai had come to him and stated about the incident and therefore, he along with complainant went to the field of the deceased and show five persons running from the scene of offence. However, if deposition of the complainant is seen, he has stated that when he came back to the field of the deceased along with PW No.2-Mafatbhai, no one was there. Therefore, it appears to be the major contradiction in the version of two witnesses.
10. It also appears that the complainant has not stated in his complaint as to with which weapon accused had assaulted the deceased, whereas in his deposition, he has specifically stated that accused No.1-Bhikhabhai had given two dhariya blows on the head of the deceased, accused No.2-Prabhatbhai gave stick blow on the Page 8 of 11 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:56:10 IST 2025 NEUTRAL CITATION R/CR.A/451/1995 JUDGMENT DATED: 12/02/2025 undefined backside of the deceased, accused No.3-Pakabhai @ Pratapbhai gave two dhariya blows on the head of the deceased and accused No.4-Ravjibhai along with deceased-Manibhai and accused No3- Pratapbhai ran after complainant-Ganeshbhai, when he asked as to why they are beating the deceased.
11. PW No.6-Dr.Chandrakant Raghwani, Exh.45 in his deposition has stated that he found two injuries on the body of the deceased, one the right side of the head and one on neck, whereas the complainant has deposed that the deceased had received four dhariya blows. This, the version of the complainant is not corroborated by the medical evidence of PW No.6.
12. The complainant has stated that the incident had occurred at about 06;30 pm. However, the complaint was filed on 03;00 am, i.e. more than 7 hours after the incident. Moreover, explanation given for late filing of the complaint also does not inspire confidence.
13. The Court finds that it is a case of a sole eyewitness. However, if his version is perused, it does not inspire confidence and there are number of contradictions and discrepancies and a story is sought to be created as if he was actually present at the place of offence.
14. PW No.3-Bharatbhai Narabhai, Exh.28 in his deposition Page 9 of 11 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:56:10 IST 2025 NEUTRAL CITATION R/CR.A/451/1995 JUDGMENT DATED: 12/02/2025 undefined has stated that he had seen bloodstains on the muddamal weapon dhariya. However, in the FSL report Exh.41, no bloodstains are found on the muddamal weapon dhariya.
15. In view of the aforesaid evidence coming on record, coupled with medical evidence, the Court is of the view that the prosecution has failed to establish the case against the respondent- accused beyond reasonable doubt. 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 fundamental principle of criminal jurisprudence, and thereafter, Page 10 of 11 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:56:10 IST 2025 NEUTRAL CITATION R/CR.A/451/1995 JUDGMENT DATED: 12/02/2025 undefined 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.
16. 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 respondent- accused.
17. In view of the aforesaid discussion, the Court finds no reason to interfere with the impugned judgment and order of acquittal. The appeal is therefore dismissed. Bail bond stands discharged. Records and Proceedings be sent back to the concerned Sessions Court.
(A.Y. KOGJE, J) (SAMIR J. DAVE,J) SHITOLE Page 11 of 11 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 21:56:10 IST 2025