Gujarat High Court
State Of Gujarat vs Natdabhai Dutiyabhai Rathwa on 29 July, 2025
NEUTRAL CITATION
R/CR.A/1205/2013 JUDGMENT DATED: 29/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1205 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
NATDABHAI DUTIYABHAI RATHWA & ANR.
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Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 29/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY)
1. Respondent nos.1 and 2 are A-1 and A-2 in Sessions Case No.6 of 2013 on the file of the learned 3 rd Additional Sessions Judge, Chhota Udepur. They were prosecuted for the offences punishable under Sections 302, 504 and 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act. Eventually after trial, they were acquitted of the Page 1 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:35:42 IST 2025 NEUTRAL CITATION R/CR.A/1205/2013 JUDGMENT DATED: 29/07/2025 undefined said charges by the impugned judgment of acquittal. Therefore, the State has preferred the present appeal challenging the validity of the said judgment of acquittal.
2. The facts of the prosecution case lie in a narrow compass and may be stated as follows:
2.1. On 07/09/2012, PW-4 along with others went to the fields for the purpose of grazing their cattle. While they were grazing their cattle, A-2 and his son questioned them as to why they entered the fields which are within the limits of the Madhya Pradesh State and grazing the cattle. There was an altercation in this regard between them and it is stated that the son of A-2 has thrown stone at the cattle of the PW-4. So, PW-4 raised a dispute in this regard before the elders. The elders imposed a fine of Rs.10,000/- on A-2 for throwing the stone against the cattle of PW-4.
2.2. On the next day i.e. on 08/09/2012 at about 9:00 p.m., when Versingbhai (herein after referred to as 'the deceased') who is the father of PW-4 along with his family members i.e. PW-2 to PW-4 was sleeping in his house, it is stated that A-1 Page 2 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:35:42 IST 2025 NEUTRAL CITATION R/CR.A/1205/2013 JUDGMENT DATED: 29/07/2025 undefined and A-2 and two others came to their house and A-1 fired two gun shots against the deceased who was sleeping on a cot in his house and the deceased sustained injuries on the left side of his abdomen and on the left side of his thigh in the said attack and when A-1 and A-2 and other two persons were shouting and abusing at him, PW-2 who is the wife of the deceased woke up and with the help of a torchlight she has seen A-1 holding gun and A-2 instigating him to kill the deceased and A-3 and A-4 also instigating him to kill the deceased. When she shouted after seeing them, it is stated that PW-3 and PW-4 who are her sons who are sleeping in another room of the house woke up and they have also seen the accused outside the house. After hearing the shouts of PW-2, neighbours also woke up and reached their house. At that time, all the accused ran away after seeing that people are gathering at their house.
2.3. The deceased succumbed to the said fire shot injuries sustained by him. On the next day i.e. on 09/09/2012, PW-2 who is the wife of the deceased lodged a report with the police. The said report was registered as a case under Sections 302, 504 and 114 of the Indian Penal Code and 135 Page 3 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:35:42 IST 2025 NEUTRAL CITATION R/CR.A/1205/2013 JUDGMENT DATED: 29/07/2025 undefined of the Bombay Police Act. The dead body of the deceased was sent for postmortem examination. PW-1 held autopsy over the dead body and he found two gun shot injuries on the left side of the abdomen and the left side of thigh of the deceased. He opined that the deceased died due to shock, hemorrhage and cardiac respiratory failure on account of the injuris sustained by him. Exh.16 is the PM note issued to that effect. Before conducting autopsy, an inquest was also held over the dead body and the inquest witnesses also opined that he died due to the said gun shot injuries sustained by him. A-1 and A-2 were arrested on 29/09/2012 by the police. Out of other two accused, it is stated that one accused died and other accused has been absconding. So, after completion of the investigation, police filed charge sheet against A-1 and A-2 for the offences punishable under Sections 302, 504 and 114 of the Indian Penal Code and Section 135 of the Bombay Police Act.
3. The trial court has framed charges against the accused under Sections 302, 504 and 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act. The same were read over and explained to the accused. The accused denied Page 4 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:35:42 IST 2025 NEUTRAL CITATION R/CR.A/1205/2013 JUDGMENT DATED: 29/07/2025 undefined the said charges and claimed to be tried.
4. During the course of the trial, the prosecution got examined PW-1 to PW-5 witnesses and got marked 20 documents in proof of its case against the accused.
5. At the conclusion of the trial, after considering the evidence on record and on appreciation of the same, the trial court found the accused not guilty for the charges levelled against them and thereby acquitted them of the said charges by the impugned judgment.
6. Feeling aggrieved by the same, as noticed supra, the State has preferred the present appeal against the said judgment of acquittal.
7. When the appeal came up for hearing, we have heard learned APP Mr. Bhargav Pandya for the State. Despite service of notice on respondent nos.1 and 2, they did not turn up for hearing. Inspite of giving ample opportunity to them by adjourning the matter from time to time, they did not turn up for hearing in the matter. Therefore, as this is an old appeal Page 5 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:35:42 IST 2025 NEUTRAL CITATION R/CR.A/1205/2013 JUDGMENT DATED: 29/07/2025 undefined of the year 2013 which is listed on our board under the caption 'For Final Hearing-In critically old maters of year 2011 to 2020' we are not inclined to further adjourn the hearing of the appeal. So, we have decided to dispose of the appeal after going through the record and evidence on merits.
8. At the outset, we would like to accentuate and bring to the fore the fact relating to the most negligent and perfunctory investigation that was done in this case by the Investigation Officer in a case relating to a grave offence of murder. A perusal of the record and the evidence clearly demonstrates that it is purely on account of the poor, perfunctory and negligent investigation that was done, the case ended in acquittal in the trial court and the prosecution could not prove the case in the trial court and could not improve any more even in the present appeal.
9. The motive that was attributed to A-1 and A-2 and to the other two accused for committing the said offence of murder of the deceased is the incident that took place on 07/09/2012.
According to the prosecution, on 07/09/2012, PW-4 who is the son of the deceased along with another went to the fields to Page 6 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:35:42 IST 2025 NEUTRAL CITATION R/CR.A/1205/2013 JUDGMENT DATED: 29/07/2025 undefined graze their cattle and at that time A-1 and his son questioned them as to why they are grazing their cattle in the fields which are within the limits of the Madhya Pradesh State and in the altercation that took place that the son of A-2 has thrown stone at the cattle of PW-4 and thereafter PW-4 raised dispute before the elders and in the Panchayat the elders imposed fine of Rs.10,000/- against A-2 and as such he bore grudge against PW-4 and his family members and on the next day i.e. on 08/09/2012 at about 9:00 p.m. in the night that A-1, A-2 and another two accused went to their house and A-1 at the instigation of A-2 fired two gun shots at the deceased who was sleeping on a cot in his house and he succumbed to the said injuries. So precisely this is the motive that was attributed for the crime of murder that was allegedly committed by A-1 and A-2 and other two accused. But, curiously and to our surprise, the Investigation Officer did not examine any witness relating to the said altercation that took place on 07/09/2012 between A-2 and his son and PW-4 relating to the grazing of cattle in the fields which are in the limits of the Madhya Pradesh State. Further, the Investigation Officer even did not examine any of the Panchayat elders before whom it is alleged that the dispute Page 7 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:35:42 IST 2025 NEUTRAL CITATION R/CR.A/1205/2013 JUDGMENT DATED: 29/07/2025 undefined was raised in this regard to prove that fine of Rs.10,000/- was imposed against A-2. No explanation is offered for non- examination of any such witness relating to the said dispute raised in the Panchayat when the said incident is cited as motive for the present crime of murder in this case. It is undoubtedly a serious lapse on the part of the Investigation. Therefore, the very motive that was attributed to A-1 and A-2 for committing the said offence of murder is not proved and established.
10. According to the prosecution version, the offence took place in the house of the deceased on 08/09/2012 at about 9:00 p.m. during night time. As can be seen from the scene of offence observation report which is marked as Exh.27, the offence took place inside the house. It is the case of the prosecution that when the deceased was sleeping on a cot in the house, A-1 fired two gun shots towards him at the instigation of A-2. It is not made clear or explained or clarified whether the accused entered the house and fired the gun shots or not. According to the prosecution version, all the family members of the deceased i.e. the deceased, his wife PW-2, and his sons PW-3 and PW-4 are all sleeping in the Page 8 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:35:42 IST 2025 NEUTRAL CITATION R/CR.A/1205/2013 JUDGMENT DATED: 29/07/2025 undefined house. PW-3 and PW-4 who are his sons are sleeping in another room of the house. So, when they are all sleeping in the house on that night, it is not known how A-1 and A-2 gained entrance into the house to fire the gun shots. It is not clarified whether the doors of the house kept open or not. Usually when all of them are sleeping in the house, the front doors of the house will be kept closed and locked from inside. If they did not enter the house, then it is not known how they fired gun shots from outside the house against a person who is sleeping on a cot inside the house. No attempt or efforts are made by the Investigation Officer to ascertain whether A-1 and A-2 fired the gun shots after entering into the house or not.
11. Further, PW-2 who is the wife of the deceased woke up after hearing the shouts of A-1 and A-2 when they were using abusive language and at that time it is stated that she has seen A-1 and A-2 standing outside the house and that too by focusing a torch light against them. According to her, there is no source of light outside the house. Therefore, she has used the torch light. She stated in her cross examination that she has handed over the said torch light to the police when she Page 9 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:35:42 IST 2025 NEUTRAL CITATION R/CR.A/1205/2013 JUDGMENT DATED: 29/07/2025 undefined lodged the FIR with the police on the next date i.e. on 09/09/2012 at 7:15 a.m. But, the Investigation Officer did not seize the said torch light and did not produce the same in the trial court. Why it was not seized and why it was not produced before the trial court is not explained. So, it is again a serious lapse on the part of the Investigation Officer. PW-3 admitted in cross-examination that there is no moon light also on that night. So, when there is no source of light in front of the house and when there is no moon light and when the torch light was not seized to prove that PW-2 used the torch light to identify the culprits or the assailants, it is really difficult to believe that she has identified A-1 and A-2 as the culprits and the assailants who committed the offence in that dark night without any source of light. At this juncture, it is significant to note that A-1 and A-2 belong to Pratappura village in the Madhya Pradesh State which is the border State and PW-2 to PW-4 all belong to Mota Rampura village in the Gujarat State. PW-3 admitted that he has not seen A-1 and A- 2 earlier. So, when the accused belong to a different village and when PW-2 to PW-4 have no acquaintance with them, they are undoubtedly strangers to PW-2 to PW-4. So, it is really unbelievable to say that they identified A-1 and A-2 who are Page 10 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:35:42 IST 2025 NEUTRAL CITATION R/CR.A/1205/2013 JUDGMENT DATED: 29/07/2025 undefined strangers in the dark night when the offence allegedly took place at 9:00 p.m. on 08/09/2012. No Test Identification (TI) Parade was also conducted by the Investigation Officer. No explanation is offered in this regard. It is again a serious lapse on his part. Although PW-2 named A-1 and A-2 in the FIR, it is not explained how she could know their names when they are residents of the other village.
12. Another serious lapse on the part of the Investigation Officer in this case is that even the alleged weapon i.e. the gun that was used to fire gun shots against the deceased was not seized in this case. No explanation is also offered for its non seizure.
13. Therefore, there are several fatal legal infirmities in this case and the prosecution case completely bristles with fatal legal infirmities. So, the prosecution has miserably failed to prove the guilt of the accused for the charges levelled against them. Undoubtedly the prosecution failed to prove the case against the accused beyond any reasonable doubt. The trial court after considering the evidence on record and on proper appreciation of the same, has arrived at a right conclusion and Page 11 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:35:42 IST 2025 NEUTRAL CITATION R/CR.A/1205/2013 JUDGMENT DATED: 29/07/2025 undefined recorded a finding of acquittal in favour of the accused. We absolutely do not find any manifest error of law in the said findings recorded by the trial court. On re-appraisal of the evidence, we also found that the prosecution has miserably failed to prove the guilt of the accused with acceptable legal evidence. Therefore, the impugned judgment of the trial court is sustainable and it calls for no interference in this appeal. So, the appeal fails and the same is liable to be dismissed.
14. Before we part with the case, we once again take a serious note of the gross negligence on the part of the Investigation Officer in this case in conducting very poor, negligent and perfunctory investigation in a grave offence of murder of like nature. It is a fit case where appropriate disciplinary action is to be initiated against him for conducting such a negligent and perfunctory investigation in a grave offence of like nature. In fact the trial court has also opined that the Investigation Officer is negligent in discharging his duty and also ordered to take action against him. We do not know what action has been initiated against him. If no such action is yet initiated, the Superintendent of Police, Chhota Page 12 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:35:42 IST 2025 NEUTRAL CITATION R/CR.A/1205/2013 JUDGMENT DATED: 29/07/2025 undefined Udepur shall immediately, without any delay, initiate appropriate disciplinary proceedings against him. A copy of this judgment shall be marked to the Superintendent of Police, Chhota Udepur by the registry.
15. We very seriously deprecate the conduct of the Investigation Officer in conducting such a poor and perfunctory investigation where the real culprits who committed grave offence of murder were left scot-free. The Investigation Officer is solely responsible for the same.
16. Resultantly, the appeal is dismissed confirming the impugned judgment of acquittal of the trial court. Bail bond, if any, shall stand discharged.
17. Record and proceedings be sent back forthwith to the concerned court.
(CHEEKATI MANAVENDRANATH ROY, J) (D. M. VYAS, J) ILA Page 13 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Jul 30 2025 Downloaded on : Wed Jul 30 22:35:42 IST 2025