Gujarat High Court
State Of Gujarat vs Bharwad Mana Harji on 22 January, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 710 of 1995
With
R/CRIMINAL REVISION APPLICATION NO. 183 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
==========================================================
Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
BHARWAD MANA HARJI & ORS.
==========================================================
Appearance:
MR. L. B. DABHI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 8,9
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No.
1,10,11,12,2,3,4,5,6,7
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No.
1,10,11,12,2,3,4,5,6,7
MR UMANG H OZA(2440) for the Opponent(s)/Respondent(s) No.
1,10,11,12,2,3,4,5,6,7
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 22/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE) Page 1 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined
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 24.03.1995 passed by Additional Sessions Judge, Mehsana in Session case No.268 of 1992. By the impugned judgment and order, the Sessions Court acquitted the respondents-accused for offence under section 302, 147, 148, 325, 326, 324, 504 read with section 149 and 337 of Indian Penal Code and under section 135 of the Bombay Police Act.
2. It is required to be noted that respondent No. 8, Nagjibhai Jorabhai Rabari, has died on 15.06.2015, as evidenced by the death certificate dated 02.07.2015. Similarly, respondent No. 9, Chelabhai Nathubhai Bharwad, has also died on 08.07.2020, evidenced by the death certificate dated 28.07.2020. In light of this, the present criminal appeal, insofar as respondents-accused Nos. 8 and 9, stands abated.
3. The case pertains to an incident that occurred on 19.04.1992, at around 7:00 PM, in Dedana village of Chansma, District Mehsana, an incident occurred following a dispute earlier that day at around 4:30 PM. Devaben, the wife of the deceased Bhupatsing Parbatsang, had gone to the dairy to fill milk, where she had an altercation with Mana Harji Bharwad, the original accused No.1. Later, the deceased Bhupatsing Parbatsang scolded Mana Harji Bharwad for the said altercation. Enraged by this, Mana Harji Bharwad, along with the other accused, armed with deadly weapons and acting with a common intention to kill Bhupatsing Parbatsang, assaulted and killed him. They also attacked on witnesses and others, committing offences of rioting Page 2 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined and using force. The accused were charged under Sections 302, 147, 148, 325, 326, 324, 504 read with section 149 and 337 of the IPC, as well as under sections 135 of the Bombay Police Act.
4. Learned APP has submitted that the judgment and order of acquittal dated 24.03.1995, passed by the learned Additional Sessions Judge, Mehsana, in Sessions Case No. 268 of 1992, is erroneous, contrary to law, and unsupported by the evidence on record. The respondents- accused were tried for grave offences punishable under section 302, 147, 148, 325, 326, 324 read with section 149, 504 and 337 of IPC and under section 135 of the Bombay Police Act, but were acquitted despite sufficient evidence to support the charges.
4.1 It is submitted that the learned trial Court failed to appreciate the evidence in its totality. The complainant and the eyewitnesses have consistently supported the prosecution's case, providing detailed evidence of the incident and positively identifying the respondents- accused.
4.2 It is submitted that the injuries sustained by the deceased and the injured persons were corroborated by medical evidence, yet the trial Court disregarded this crucial aspect. Additionally, the injured witnesses, being direct victims of the crime, had no reason to falsely implicate the accused, but their credible testimony was improperly discarded, undermining the prosecution's case.
5. As against this, learned Advocate of the respondents-accused has supported the judgment and order of acquittal submitted that the Page 3 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined prosecution has failed to establish any clear and convincing motive for the respondents-accused to commit the alleged offences. The absence of motive raises significant doubts about the prosecution's case and the involvement of the respondents-accused in the incident.
5.1 It is contended that there were material contradictions and inconsistencies in the deposition of the prosecution witnesses, which render their testimonies unreliable.
5.2 It is submitted that the respondents-accused have been falsely implicated due to pre-existing disputes between the parties. It was further submitted that the prosecution witnesses had reasons to harbor animosity towards the accused, leading to biased and exaggerated allegations.
5.3 It is submitted that the prosecution failed to explain the injuries sustained by the respondents-accused during the incident. This omission undermines the prosecution's claim and indicates that the incident may have been a case of cross fight rather than an assault by the respondents-accused.
5.4 It is submitted that the prosecution did not produce any independent or impartial witnesses to corroborate its version of events. Most of the witnesses were related to the complainant, raising doubts about the credibility of their testimonies.
5.5 It is submitted that the medical evidence relied upon by the prosecution does not conclusively establish the guilt of the Page 4 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined respondents-accused. The injuries sustained by the deceased and others were not linked to the role attributed to the accused, leaving room for doubt.
5.6 It is submitted that the trial court has rightly appreciated the evidence on record and arrived at a just conclusion by acquitting the respondents-accused. The prosecution failed to prove its case beyond a reasonable doubt, and therefore, the judgment and order of acquittal deserve to be upheld.
6. 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:
Sr. Name of Witnesses Exh.
No. No.
1 Deposition of PW No.1 Dr. Kalabhai Madhabhai Bajaniya 37
2 Deposition of PW No.2 Harchandji Dahyaji 50
3 Deposition of PW No.3 Babubhai Shambhudas 52
4 Deposition of PW No.4 Dr. Govindbhai Shankarbhai 53
5 Deposition of PW No.5 Dr. DilipkumarJavanji 54
6 Deposition of PW No.6 Kanuji Sujaji 55
7 Deposition of PW No.7 Vishnukumar Ramanlal 56
8 Deposition of PW No.8 Gulabsing Vajesing 72
9 Deposition of PW No.9 Dr. Sureshbhai Ganeshbhai Patel 73
10 Deposition of PW No.10 Madarsang Vajesang Thakor 82
11 Deposition of PW No.11 Mulsang Dansang Thakor 84
Page 5 of 22
Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025
NEUTRAL CITATION
R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025
undefined
12 Deposition of PW No.12 Kalaji Khanaji 85
13 Deposition of PW No.13 Shantuji Mansing Zala 86
14 Deposition of PW No.14 Maniben Chehuji 87
15 Deposition of PW No.15 Bhuraji Narsangji 88
16 Deposition of PW No.16 Pradipkumar Odhavji Bhatt 90
6.1 The prosecution also relied upon following documentary evidence:
Sr. Particular Exh. No.
No.
1 Panchanama of discovery of weapon 35(9)
2 Panchanama of discovery of weapon 35(11)
3 PM note 38
4 Injury certificates by medical officer 39-49
5 Panchanama of place 51
6 Inquest panchnama 58
7 Forwarding report of body 59
8 Death certificate 60
9 Panchanama of clothes of the deceased 61
10 Inquest panchnama of the accused 62
11 Panchanama of discovery of weapon 63
12 Forwarding note, report and Chit 64-66
13 FSL report 67
14 Serologycal report 68
15 Injury certificates by medical officer 74-79
16 Exemption report 83
Page 6 of 22
Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025
NEUTRAL CITATION
R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025
undefined
17 Panchanama of discovery of weapon 89
18 Original complaint 98
7. The role attributed to the respondents-accused, as per Charge, Exh-19, is as follows:
No. Accused Name Weapon Assault
1. Mana Harji Bharvad (A-1) Bezel Injured Bhupat (Deceased) on
(Farsi) head by using Bezel (Farsi).
2. Gokal Keshabhai Bharvad Stick Injured Bhupat (Deceased) by
(A-2) using a stick covered with
iron on both ends.
3. Bhema Manabhai Bharvad Stick Injured Madarsang (PW-10) on
(A-3) left hand by using stick.
4. Babar Jorabhai Rabari (A-4) Bezel Injured Bhupat (Deceased) by
(Farsi) using Bezel (Farsi).
Injured Shantuji (PW-13) by
using Bezel (Farsi).
5. Champa Laxmanbhai Bezel Injured Madarsang(PW-10) on
Bharvad (A-5) (Farsi) head by using Bezel (Farsi).
Injured Kalaji (PW-12) by
using stick.
6. Laxman Harjibhai Bharvad Stick Injured Madarsang(PW-10) on
(A-6) right hand by using stick.
7. Devsi Velabhai Bharvad (A- Stick Injured Mulsang (PW-11) on
7) head, back and right hand
by using stick.
8. Nagji Jorabhai Rabari (A-8) Bezel Injured Mulsang (PW-11) on
(Farsi) right side of the body by
using Bezel (Farsi). Injured
Kalaji (PW-12) on wrist by
using Bezel (Farsi) and also
Injured by using stick.
9. Chela Nathubhai Bharvad Stick Injured Kalaji (PW-12) on
Page 7 of 22
Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025
NEUTRAL CITATION
R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025
undefined
(A-9) head by using stick.
10. Bhaga Ranabhai Bharvad Stick Injured Shantuji (PW-13) on
(A-10) head by using stick.
11. Bhema @ Bhagvan stone Injured complainant and
Panchabhai Bharvad (A-11) witnesses by stoning.
12. Viram Kacharabhai Bharvad stone Injured complainant and
(A-12) witnesses by stoning.
8. Exh-20 to Exh-31 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.
9. From the perusal of the record, it appears that the deposition and postmortem report of PW-1, Dr. Kalabhai Madhabhai Bajaniya, Exh-37, medical officer, indicate that the deceased had injuries caused by a sharp weapon like a bezel (Farsi), and the death was labeled as homicidal. However, merely proving that the death was homicidal is not sufficient to hold the respondents-accused guilty. The prosecution must establish beyond reasonable doubt that the injuries were inflicted by the respondents-accused and were a result of their unlawful actions.
10. PW-1, Dr.Kalabhai Madhabhai Bajaniya, Exh-37, and PW-9, Dr. Sureshbhai Ganeshbhai Patel Exh-73, both medical officers, deposed that they treated the injured witnesses and some of the respondents- accused individuals involved in the incident. They also provided their opinions regarding the type of weapons that could have caused the injuries. However, their testimonies and medical opinions alone do not conclusively establish the guilt of the respondents-accused or prove the Page 8 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined prosecution's case beyond a reasonable doubt. The medical evidence, while corroborative, does not directly link the injuries to the specific acts of the accused without other reliable and independent evidence.
11. PW-8, Gulabsing Vajesing, Exh-72, the complainant and cousin brother of the deceased, deposed that he witnessed the accused attacking the deceased and others. However, as PW-8 is closely related to the deceased, his testimony may be influenced by personal bias. Furthermore, he admitted that some of the respondents-accused also sustained injuries during the same incident and a few of them were at the hospital for treatment at the same time as the deceased and other injured witnesses. This fact is admitted in his cross-examination but there is no reference to any act of counter assault by the complainant side. This creates doubt about the accuracy and impartiality of PW-8's testimony, making it unreliable for establishing the guilt of the respondents-accused beyond a reasonable doubt.
12. PW-10, Madarsang Vajesang Thakor, Exh-82, the injured eyewitness and brother of the deceased, deposed that he witnessed the respondents-accused attacking the deceased and other witnesses. He further admitted that he was also injured during the incident. PW-10 further mentioned that the respondents-accused held a grudge against them because they scolded respondents-accused for allowing their cattle to roam freely. However, there was a contradiction in the testimonies regarding the place of the incident, with some witnesses providing differing evidence. These contradictions, along with the potential bias due to the personal relationship between PW-10 and the Page 9 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined deceased, raise doubts about the consistency and reliability of the evidence, making it difficult to conclusively establish the guilt of the accused beyond a reasonable doubt. Additionally, he has stated in his deposition that Champa Laxman inflicted a blow of bezel (Farsi) on his head and Bhema Mana inflicted a blow of stick on the wrist of his left hand and Laxman Harji inflicted a blow of stick on his right knee. But, as per the the deposition on oath of Dr. K. M. Bajaniya recorded vide Exhibit-37 and the injury certificate of Madarsang Vajesang produced vide Exhibit-42 in his deposition, none of the injuries sustained by injured Madarsang Vajesang could have been caused by a stick and therefore, if the witness states in his deposition on oath that Bhema Mana and Laxman Harji caused him injuries with stick, this fact is not corroborated by the evidence of the doctor and thus, considering the said fact, there is a reason to believe that the prosecution has falsely implicated Bhema Mana and Laxman Harji too and if they had caused the injuries with stick as stated by the witness, this would have been reflected in the deposition of the doctor.
13. PW-11, Mulsang Dansang Thakor, Exh-84, an injured eyewitness, deposed that he witnessed the respondents-accused injuring the deceased, other witnesses and himself. However, PW-11 also mentioned that the cause of the incident was a prior cattle grazing dispute. This differs from the reasons provided by other witnesses, creating a contradiction in the testimonies regarding the motive of the incident. These inconsistencies and differing versions of events, along with potential bias, cast doubt on the reliability and credibility of PW- 11's testimony, weakening the prosecution's case and preventing a Page 10 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined clear conclusion of guilt beyond a reasonable doubt. Additionally, he has stated in his deposition that accused Devsi Vela inflicted blows of stick on his arm, head and right hand and accused Nagji Jora inflicted a blow of bezel (Farsi) on his right lateral side. But, as per the deposition of Dr. Bajaniya recorded vide Exhibit-37, there is no wound caused by a stick on the body of Dansangji and no wound caused by a bezel (Farsi) on his lateral side. Therefore, if the witness states that Devsi Vela and Nagji Jora caused him injuries with stick and bezel (Farsi), this fact is also not corroborated by the evidence of the doctor and thus, there is a reason to believe that the said accused persons have not caused any injury to the witness and they have been falsely implicated.
14. Considering the deposition of PW-12, Kalaji Khanaji,Exh-85, an injured eyewitness, he deposed that he was injured by the respondents- accused and that he saw the deceased being injured by them. He further stated that the deceased was dragged approximately 10 feet away from the scene of the incident. However, this claim is not corroborated by the panchanama of the place of the incident, which does not mention any such dragging of the deceased. This discrepancy raises doubts about the accuracy and reliability of PW-12's testimony. Given this contradiction and the lack of corroborative evidence, it is not possible to conclusively establish the guilt of the accused beyond a reasonable doubt. The inconsistency between the deposition and the panchanama undermines the prosecution's case. Additionally, he has stated in his deposition that accused Chela Nathu inflicted a blow of stick to his head and Nagji Jora inflicted a blow of bezel (Farsi) to his waist and Nagji Jora and Champa Laxman broke his hand and that, accused Babar Jora inflicted a blow of bezel (Farsi) and accused Gokal Kesha inflicted a blow of Page 11 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined stick to deceased Bhupatsang. But, considering the evidence of the doctor, no injury caused by a stick was found on the body of deceased Bhupatsang and not only that, but none of the injuries sustained by witness Kalaji Khanji was caused by a stick. Therefore, if the witness states that Chela Nathu inflicted a blow of stick to him, this fact is not corroborated by the evidence of the doctor. Further, the witness states that, Nagji Jora inflicted a blow of bezel (Farsi) to his waist. But, considering the evidence of the doctor, there is no injury caused by an bezel (Farsi) on his waist. Thus, there is a reason to believe that this witness or the prosecution has falsely implicated Chela Nathu, Nagji Jora, Champa Laxman and Gokal Kesha.
15. Considering the deposition of PW-13, Shantuji Mansing Zala Exh- 86, an injured eyewitness, deposed that he came to the scene of the incident last and was subsequently injured by the respondents-accused. However, he was not present at the time the incident initially occurred and arrived only after the attack had already taken place. Given that he was not an eyewitness to the actual assault on the deceased, his testimony regarding the events leading to the injuries of the deceased and others is limited. This raises questions about the reliability of his evidence, especially in the absence of any direct observation of the incident. Therefore, his testimony cannot be fully relied upon to establish the guilt of the respondents-accused beyond a reasonable doubt. Additionally, he has stated in his deposition that Bhaga Rana inflicted a blow of stick on head and Babar Jora inflicted a blow of bezel (Farsi) on back side. But, as per the the deposition of Dr. Sureshbhai Patel, Exh.73, and the injury certificate of Shantuji Page 12 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined Malsangji Zala produced vide Exhibit-74, stated that none of the injuries sustained by injured Shantuji Malsangji could have been caused by a stick. This fact is not corroborated by the evidence of the doctor and thus, considering the said fact, there is a reason to believe that the prosecution has falsely implicated Bhaga Rana and if he had caused the injuries with stick and bezel (Farsi) as stated by the witness, this would have been reflected in the deposition of the medical officer.
16. The Court finds that the depositions of injured eyewitnesses, PW- 10 Madarsang Vajesang Thakor, PW-11 Mulsang Dansang Thakor, PW- 12 Kalaji Khanaji, and PW-13 Shantuji Mansing Zala, regarding the alleged assaults by the accused are not corroborated by medical evidence. The deposition of Dr. K.M. Bajaniya PW-1 and Dr. Sureshbhai Patel, PW-9, and the injury certificates do not support their claims that the injuries were caused by the weapons attributed to the accused. The absence of injuries matching the alleged use of sticks and bezels (Farsi) raises serious doubts about the veracity of their statements. Furthermore, the witnesses' statements have major contradictions and exaggerations, which suggest that they may have falsely implicated some of the accused. These inconsistencies, along with the lack of strong supporting evidence, make their testimonies unreliable. As a result, the prosecution has failed to prove beyond a reasonable doubt that the accused caused the alleged injuries.
17. 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 Page 13 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined reported in 2023 (10) SCC 470, wherein the Apex Court held in para 34 and 35 as under, "34. Undisputedly, in the present case, PWs 2 and 9 are injured witnesses. As such, their presence cannot be disputed. However, as already observed hereinabove, in case of proven previous enmity, a possibility of false implication cannot be ruled out. In the present case, it would be seen that the entire family of Accused 12 Paltan Jangde has been roped in. Though PW 2 has identified and named the accused in her cross-examination, she has stated that, though she recognised the relatives of the accused persons, she does not remember their names. As such, the possibility of implicating the entire family of Paltan cannot be ruled out.
35. As already discussed hereinabove, the names of Nand Lal, Bhagwat and Ramdular are not mentioned in the merg report, which was lodged prior to the lodging of FIR, so also their names are not found in the inquest panchnama and spot panchnama. Taking into consideration the delay in lodging the FIR, with the circumstance of their names not being mentioned in the contemporaneous documents, the possibility of the said accused being falsely implicated cannot be ruled out. In our view, the conviction of these accused purely on the basis of oral testimony of the interested witnesses, without sufficient corroboration, would not be sustainable."
18. PW-14, Maniben Chehuji, Exh-87, an eyewitness, initially deposed that she had seen the respondents-accused injuring the deceased and the injured witnesses. However, during cross-examination, she contradicted her earlier statement by claiming that all the respondents- accused, the deceased, and the witnesses were involved in a fight together. This significant contradiction in her testimony casts doubt on the accuracy and reliability of her version of events. Given the inconsistency in her statements, it becomes difficult to place full Page 14 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined reliance on her testimony to establish the guilt of the accused beyond a reasonable doubt. The contradiction undermines the prosecution's case, weakening its evidentiary foundation.
19. PW-16,Pradipkumar Odhavji Bhatt, Exh-90, the Investigation Officer, testified regarding the various panchanamas conducted during the investigation, including the Inquest Panchanama, Exh-58, the Panchanama of the place of the incident, Exh-51, and the Panchanama for the discovery of weapons. However, the panchas who were witnesses to these procedures, including PW-2, Harchandji Dahyaji, PW-3, Babubhai Shambhudas, PW-4, Govindbhai Shankarbhai, PW-5, Dilipkumar Javanji, PW-6, Kanuji Sujaji, PW-7, Vishnukumar Ramanlal, and PW-15, Bhuraji Narsangji, PW-15, not support the prosecution's case during their testimony. Since the panch witnesses failed to corroborate the prosecution's version of events or provide any supporting evidence, it casts serious doubt on the authenticity of the procedures carried out during the investigation. The absence of corroborative testimony from these crucial witnesses weakens the prosecution's case, raising doubts about the reliability of the evidence and undermining the overall credibility of the investigation. As a result, the prosecution has failed to establish its case beyond a reasonable doubt.
20. All the eyewitnesses relied on by the prosecution are one way or the other related to each other. The overall reading of their evidence show bias against respondents as a group. The description of the version is one sided where as this is abandoned evidence that it was a Page 15 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined group fight where accused side also received injury. The overall facts also suggest that the accused persons were not aggressors and had not carried out planned attack. The muddamal articles identified as weapon of assault are all domestic and agricultural farm equipments usually carried by villagers and rural areas.
21. The Court finds that the prosecution has failed to prove beyond reasonable doubt that the respondents-accused committed stone-pelting on the deceased, complainant and witnesses in a manner that would attract liability under Section 337 of the Indian Penal Code. The evidence on record lacks consistency and corroboration regarding the nature, extent, and specific acts of the respondents-accused in causing hurt by such means. In the absence of clear, reliable, and convincing proof, the charge under Section 337 IPC cannot be sustained.
22. The Court perused that the prosecution witnesses provided conflicting statements regarding the exact location of the incident. This inconsistency in the testimonies of the prosecution witnesses raises significant doubts about the reliability of their statements and creates uncertainty regarding the exact location of the incident. Since the credibility of eyewitnesses is crucial in such cases, these contradictions undermine the prosecution's case, preventing a conclusive determination of the facts.
23. The Court finds that the place of the incident was within the area of the respondents-accused. Given that the prosecution witnesses were also present in the vicinity and some were related to the deceased, Page 16 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined this creates potential bias in their testimonies. Their presence in the area of the respondents-accused, coupled with the possibility of pre- existing disputes, casts doubt on the impartiality of their statements. This further weakens the prosecution's case and makes it difficult to rely on their depositions without raising reasonable doubts.
24. The Court finds that the respondents-accused were also injured during the incident. However, the prosecution did not adequately address or explain these injuries sustained by the accused. No clear evidence was provided to establish whether the injuries to the respondents-accused were caused by the same altercation or were self- inflicted or a result of a cross fight. The omission of this crucial detail leaves room for doubt and suggests that the incident may have been a case of cross fight rather than a one-sided attack by the respondents- accused. This failure to address the injuries of the respondents-accused undermines the credibility of the prosecution's narrative and calls into question the prosecution's theory of the case.
25. The Court perused that failure of the prosecution to provide a clear explanation for the injuries sustained by the respondents-accused during the incident raises a presumption that vital information may have been intentionally concealed. The absence of any explanation or inquiry into the injuries of the accused could suggest an attempt to withhold evidence that might be favorable to the defense. This lack of transparency and failure to present all relevant facts creates suspicion about the fairness and integrity of the investigation and trial, further weakening the prosecution's case.
Page 17 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined
26. The Court may refer to and rely upon the decision of the apex court in case of Nand Lal (Supra) 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 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."
27. The Court perused that the complaint, Exh-98, listed twelve respondents-accused persons involved in the incident, yet the Page 18 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined deposition of PW-8, the complainant, cousin brother of the deceased, mentioned only seven of the respondents-accused as having caused injuries. This contradiction between the original complaint and the deposition raises serious doubts about the accuracy and consistency of the prosecution's evidence. The discrepancy in the number of accused persons and the allegations made against them casts doubt on the reliability of PW-8's testimony and the overall veracity of the prosecution's case. Given that this is a material contradiction, it weakens the case against the respondents-accused beyond reasonable doubt.
28. The Court observed lapses in the investigation and prosecution's presentation of evidence. For instance, the recovery of the alleged weapon and its connection to the wounds on the deceased were not conclusively proven. These deficiencies collectively led the court to conclude that the prosecution had failed to prove its case beyond a reasonable doubt.
29. The court may refer to and rely upon the decision of the apex court in case of Jayantilal Verma Versus State Of Madhya Pradesh reported in 2021 (12) SCC 71, wherein the Apex Court held in para 18 as under, "18. It was, thus, contended that mere presence or absence of a large number of witnesses cannot be the basis of conviction. It is the quality of evidence and not the number of witnesses, which is relevant. In this behalf, a reference was made to the following cases:
Page 19 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined 18.1. Yanob Sheikh Alias Gagu v. State of West Bengal, (2013) 6 SCC 428 where it was observed as under:
'20. We must notice at this stage that it is not always the quantity but the quality of the prosecution evidence that weighs with the Court in determining the guilt of the accused or otherwise. The prosecution is under the responsibility of bringing its case beyond reasonable doubt and cannot escape that responsibility. In order to prove its case beyond reasonable doubt, the evidence produced by the prosecution has to be qualitative and may not be quantitative in nature. In the case of Namdeo v. State of Maharashtra [(2007) 14 SCC 150], the Court held as under:
28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872 ) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.
The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived.' 18.2 Gulam Sarbar v. State of Bihar, (2014) 3 SCC 401 wherein the Court relied on the same aforementioned principle."
30. 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 Page 20 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025 NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined 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, 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.
31. 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.
32. In view of the aforesaid discussion, the Court finds no reason to interfere with the impugned judgment and order of acquittal dated 24.03.1995 passed by Additional Sessions Judge, Mehsana in Session case No.268 of 1992. The appeal is therefore dismissed.
Page 21 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025NEUTRAL CITATION R/CR.A/710/1995 JUDGMENT DATED: 22/01/2025 undefined
33. In view of the aforesaid reasonings, Criminal Revision Application No.183 of 1995 is also dismissed. Bail bond stands discharged. Records and Proceedings be sent back to the concerned Sessions Court.
(A.Y. KOGJE, J) (SAMIR J. DAVE,J) PARESH SOMPURA Page 22 of 22 Uploaded by MR PARESH J SOMPURA(HC00451) on Tue Feb 04 2025 Downloaded on : Fri Feb 07 22:55:59 IST 2025