Gujarat High Court
State Of Gujarat vs Shanabhai Mohanbhai Gohil on 5 July, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1128/1999 JUDGMENT DATED: 05/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1128 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
SHANABHAI MOHANBHAI GOHIL & ANR.
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Appearance:
MS MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MR PRATIK B BAROT(3711) for the Opponent(s)/Respondent(s) No. 1
MR Y J PATEL(3985) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
DESAI
Date : 05/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. The challenge is given to the judgment and order of acquittal dated 20.05.1999 passed by the learned Sessions Judge, Vadodara in Sessions Case No.279 of 1997 whereby the two accused came to be acquitted under the charge of Section 302, 354 and 109 of the Indian Penal Code (IPC). Page 1 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025
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2. Learned Additional Public Prosecutor Ms. Monali Bhatt took us to the charge framed below Exhibit 10. As per the charge, accused No.1-Shanabhai Mohanbhai Gohil was forcing deceased-Gita Shankarbhai Padhiyar to fall in love with him, while the charge says that deceased was against it. As per the prosecution case, accused No.2-Ravjibhai Becharbhai Padhiyar used to always accompany accused No.1 and accused No.1 would follow the instructions of the accused No.2. Accordingly, on 13.08.1997, it is alleged that deceased-Gita was visiting the field in the morning for collecting fodder and at about 10.30, when she was returning back home, at that time, near the Canal, accused obstructed her with an intention to physically harass and asked her "tu maine prem kare che ke nahi?', and when the deceased refused accused No.1 got angry and with an intention to kill Gita, he gave blow on the head and on the shoulder with a sickle and thereby, caused death. Therefore, the charge was framed for the offences punishable under Sections 302, 354 and 109 of the IPC.
3. Against accused No.2, the charge was that he was inciting accused No.1 to do whatever he pleases assuring that he Page 2 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025 NEUTRAL CITATION R/CR.A/1128/1999 JUDGMENT DATED: 05/07/2025 undefined was there to protect him and that he would help in releasing him. The charge is that he had indirectly assisted accused No.1 in the commission of the crime and therefore, he was tried under Section 302 read with Section 109 of the IPC.
4. Learned Additional Public Prosecutor Ms. Monali Bhatt submitted that the PW1-Thakorbhai Mahijibhai Padhiyar- Uncle of the deceased is the complainant, who is the eye witness to the incident. Learned APP has referred to the deposition of the PW1 to submit that the learned trial Court has erred in not believing the evidence of the eyewitness who is the complainant and the uncle of the deceased. The complainant has very categorically stated about the incident and has seen accused No.1 giving blow to the deceased and also the fact that after hearing the shouts of Gita, he and his brother-Kanubhai rushed to the place. The complainant had seen accused No.1 giving one blow with a danti (rake) and that thereafter, his niece had fallen down. They shouted at accused No.1 asking him to wait but he ran away. Learned APP submitted that this evidence of the complainant was required to be believed. The complainant Page 3 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025 NEUTRAL CITATION R/CR.A/1128/1999 JUDGMENT DATED: 05/07/2025 undefined had seen his niece in a pool of blood where she had received a blow on the head and they found that she was dead. APP Ms. Bhatt contented that the blow on head proved fatal.
5. The evidence of the PW1-complainant would refer to the fact that at the time of the incident, he was in his own field and the deceased-niece-Gita had come to collect fodder who was in her own field. The fact thus, becomes clear that the complainant was in his own field while the deceased had come to collect grass from her own field. It is only when the complainant heard her shouts to protect, which were coming from the canal, going towards the village, he and his brother rushed there. The learned trial Court Judge has pertinently noted that this brother- Kanubhai has not been examined during the trial. According to the complainant, he and Kanubhai were the eye witnesses to the incident. Unfortunately, the evidence of Kanubhai is not on record. The learned Judge has referred to the evidence of PW2 at Exhibit 17-Kiranbhai Kanubhai Padhiyar, who is the son of the alleged eyewitness-Kanubhai. From the evidence of PW2, it could Page 4 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025 NEUTRAL CITATION R/CR.A/1128/1999 JUDGMENT DATED: 05/07/2025 undefined be gathered that he at the time of deposition, was aged about 18 years and in the deposition, it is stated that the deceased was studying in 3 rd year Bachelor of Arts and she was commuting from her village to Duval for her studies. According to the deposition of PW2, deceased was aged about 18 years at the time of her death and it was stated that the deceased-Gita and his aunt-Ratanba both had come to the field to collect fodder. After collecting the fodder, they went back and after some time, at 10 o' clock, deceased Gita had come there with tea for their employee Bachubhai at that time, his father Kanubhai, and uncle the complainant were at their own fields. After hearing shouts of Gita and Bachubhai, he, his uncle and the father rushed there. According to him, the voice was coming from the canal area. PW2-Kiranbhai Kanubhai Padhiyar in his deposition has stated that he had seen accused No.1 giving a blow to Gita and that blow was with a dhati on the neck. Thereafter accused flee away from there. From the opposite side, they saw Hasmukh Ramanbhai Padhiyar coming near the canal, while accused No.1 ran towards Sapla Village. They had seen Gita lying in a pool of blood. He has further stated that the deceased has received blow on the neck as Page 5 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025 NEUTRAL CITATION R/CR.A/1128/1999 JUDGMENT DATED: 05/07/2025 undefined well as shoulder. They gave news to the mother of Gita's death.
6. The learned trial Court Judge has disbelieved the presence of PW2 as PW1-the complainant has not referred the presence of PW2-the son of Kanubhai. While according to the complainant, his elder brother was alongwith him, but the said person has not been examined. The complainant who had gone there only refers to one blow on the head while no reference is made about other injuries. The evidence of the complainant further states that after hearing the shouts, the village people had gathered there. Had it been so and had the accused No.1 trying to escape from the place and was heading towards Sapla Village, certainly they would have caught him but that is not the case. Again, the complainant in his complaint at Exhibit 16 has referred to Laxman Padhiyar and other village people rushing to the place of the incident where deceased Gita was lying , but the witness-Laxman Padhiyar has also not been examined.
7. The PW3 - Hasmukhbhai Ramanbhai Padhiyar also claims to be the eye witness to the incident and according to this Page 6 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025 NEUTRAL CITATION R/CR.A/1128/1999 JUDGMENT DATED: 05/07/2025 undefined witness, he was informed about the incident by Savitaben. The learned trial Court Judge has disbelieved PW3 since the complainant has not referred to Hasmukhbhai Ramanbhai Padhiyar. Savitaben who had informed him about the incident has not been examined. More so, PW3- Hasmukhbhai Ramanbhai Padhiyar is not considered as eyewitness to the incident because he himself not seen the accused beating deceased. His deposition is that Savitaben had informed him around 10.30 am, he was asked to come as accused No.1 was beating Gita. He ran to the place of incident. The deposition states that he had called upon accused No.1 not to beat Gita. It is further stated that accused No1 was at the place of incident. This evidence and that of the complainant does not get corroboration. If it had been so, accused No.1 who was very much present at the place of incident was required to be caught . PW 3 refers to injury on the head and neck. According to the evidence of PW3-Hasmukhbhai Ramanbhai Padhiyar, it was only after he reached the place, the complainant and Kanubhai had come there. The contradiction in the evidence of the complainant and PW 3 becomes very absolute, which is material contradiction, where the Page 7 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025 NEUTRAL CITATION R/CR.A/1128/1999 JUDGMENT DATED: 05/07/2025 undefined complainant's evidence states that he was alongwith Kanubhai to have reached the place of incident first while the PW3 refers to the information given by Savitaben and thereafter, reaching the place of incident and accordingly, he states that after the shouts, the complainant and Kanubhai had come there. The PW3 does not refer to PW2- Kiranbhai Kanubhai Padhiyar. The evidence with regard to the injuries are also inconsistent. The complainant referred to the injuries on the head, and the injury was with danti (rake) while the PW3 states of dharia (sickle). The contradiction has been referred to the Investigating Officer which has been confirmed.
8. The learned APP has referred to the evidence of PW4- Renukaen Jashbhai Joshi who was a friend of the deceased-Gita. PW5-Ratanben @ Parvatiben Shankarbhai Padhiyar is the mother of the deceased-Gita. PW4's evidence has not been much of assistance. However, the fact was brought on record that while PW4 and Gita were commuting for college in 3rd years Bachelor of Arts, Gita often used to inform her of ill intention of accused No.1 and to protect and safeguard her dignity, the deceased-Gita Page 8 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025 NEUTRAL CITATION R/CR.A/1128/1999 JUDGMENT DATED: 05/07/2025 undefined had asked PW4 not to tell any one about this fact. So fact of any bad intention of accused was not known to others.
9. The deposition of the mother, i.e. PW5-Ratanben @ Parvatiben Shankarbhai Padhiyar also gives the cause of the incident, as accused No.1 waiting at the road and harassing deceased-Gita while she was on her way to college. The deposition of PW5 also notes that she had complained about the said fact to the father of the accused No.1.
10. The father of accused is examined as PW6-Mohanbhai Chhitabhai Gohil who in his deposition has tried to deny the fact that the accused No.1 was under the influence of the accused No.2. He denied the fact that the PW5 had complained about his son's malicious intention towards daughter-Gita. The father of accused No.1 was declared hostile as the witness had not supported the case of the prosecution.
11. If in totality, the evidence of PW4-Renukaben Jashbhai Joshi and PW5-Ratanben @ Parvatiben Shankarbhai Padhiyar are to be considered, then the parents were Page 9 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025 NEUTRAL CITATION R/CR.A/1128/1999 JUDGMENT DATED: 05/07/2025 undefined knowing about the persistent behaviour of the accused No.1 towards deceased-Gita. However, there was no formal complaint registered of his behaviour.
12. The learned Judge has referred to the post-mortem report.
The injuries on separate page in continuation of column 17 are noted as :-
Types of Injuries Site
1. Chop Wound Head and Rt. Hand
2. Abrasion On Lt Palm.
3. Laceration Rt and Lt Shoulder
13. The injuries as per the Doctor could have been caused by a heavy sharp object. In the PM Report at Column No.17, the injuries have been noted ,which are as under :-
17. Surface wound and injuries :- Wound that caused death Their nature position, dimensions (1) Chop wound on face Rt. Side (measured) and directions to be unovlved Direction - Gutter accurately stated - their prabable shaped slanted above Rt. eye age and causes to be noted. crushing the eye and cutting the nosal septim extending through Rt. side of face, crushing bacanaton muscles and underline Blood and nurve supply and cutting the Rt. ear also at the end of the injury.
(other details on separate page)
14. Learned APP Ms. Monali Bhatt has stated that slippers were found from the place of the incident. She has further referred to the FSL Report to submit that at the place of Page 10 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025 NEUTRAL CITATION R/CR.A/1128/1999 JUDGMENT DATED: 05/07/2025 undefined incident, the shoes of the accused and deceased were found. The FSL Report finds the presence of blood with the blood group 'O' on the shoes of the accused. Further the FSL Report shows the blood stains with the blood group 'O' on the clothes of the accused and even on the weapon 'dhariya' (sickle). This evidence may become relevant to consider the death of the deceased-Gita. However, it cannot be made conclusive evidence without evidence of witnesses to show how shoes of accused remained at the place of incident .Further, the presence of the blood of the deceased on the clothes of the accused would also not be vital as it does not link with the weapon being used. The learned Judge has also found discrepancy with the weapon as the witnesses have referred the same as dharia (sickle). The FSL Report could have further examined, chance print on the weapon to connect the accused with the crime which is not done . In the present case, the alleged weapon has not been believed by the learned trial Court Judge.
15. The learned Judge has rightly observed about the difference in the weapon which has been identified as danti (rake) / dhariya (sickle). The learned Judge has also Page 11 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025 NEUTRAL CITATION R/CR.A/1128/1999 JUDGMENT DATED: 05/07/2025 undefined observed of the deposition of the complainant that he after visiting the house was searching for his elder brother. The learned Judge came to the conclusion that had the complainant been actually the eye witness, then he could have directly informed about the incident to PW5- Ratanben-the mother of the deceased and could have given the name of the accused. This conduct of the complainant has given rise to suspicion in the mind of the learned trial Court Judge. The prime witness-complainant, who states that the witness-Kanubhai Padhiyar was with him has not been examined. Pertinent to note was that the father of the deceased had not been examined as witness during the trial. The discrepancy which has been brought about the injuries in the evidence of the witnesses has also weighed in the mind of the trial Court Judge. The learned Judge was of the considered opinion that as per the PM Doctor, there were no injuries on the neck which is contrary to the evidence of the witness. Further the witnesses in connection with the trial and complainant's influence on them during the trial was also noted by the learned trial Court Judge. The learned trial Court Judge during the trial had an opportunity to observe the demeanour of the Page 12 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025 NEUTRAL CITATION R/CR.A/1128/1999 JUDGMENT DATED: 05/07/2025 undefined witnesses. The learned trial Court Judge has the first hand information of the impression about the conduct of the witnesses during the trial. Such observations are admissible and analysis on the basis of such observations, cannot be ruled out. On the weight of the evidence on record as in the case, there cannot be denial to the proposition that after the acquittal, the presumption of innocence would be double in favour of the accused and that the High Court should not disturb the findings of the trial Court even if it is found that the view taken by the trial Court could have been different. On review of the evidence, on the analysis of the evidence on record, if two views are possible, one in favour of the innocence of accused and another against accused, then view of innocence favouring the accused is to be adopted. It is for the Court to see that there should not be any miscarriage of justice, since the High Court cannot ignore the analysis of the evidence by the trial Court Judge and replace its own opinion, unless it is found that the trial Court has taken a view ignoring the admissible evidence. Page 13 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025
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16. At this stage, it would be pertinent to refer to the observations of the Hon'ble Supreme Court in the case of Chandrappa v. State of Karnataka reported in (2007) 4 SCC 415, wherein reference was made to the decision in the case of Bhagwan Singh v. State of M.P. reported in (2002) 4 SCC 85 and the same are reproduced as under :-
"7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not".Page 14 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025
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17. Here the trial Court Judge has dealt with the evidence of individual witnesses and has finally come to the conclusion that the presence of the eye witnesses becomes doubtful. On overall analysis of the deposition of the witnesses and the observations of the learned trial Court Judge, we are of the view that the findings recorded by the learned Trial Court need not be interfered with since the miscarriage of justice which may arise from acquittal of the guilty is not much than the conviction of the innocent.
18. In that view of the matter, the present Appeal deserves to be dismissed and is hereby dismissed. Record and proceedings be sent to the concerned trial Court forthwith.
(GITA GOPI,J) (UTKARSH THAKORBHAI DESAI, J) CAROLINE / DB # 33 Page 15 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:17:57 IST 2025