Gujarat High Court
State Of Gujarat vs Koli Kuka Masharubhai on 5 July, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 506 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
KOLI KUKA MASHARUBHAI
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Appearance:
MR JK SHAH, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
MS BINODA GAJJAR(320) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 05/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIKHIL S. KARIEL)
1. Heard learned Additional Public Prosecutor Mr.J.K.Shah appearing on behalf of the appellant - State and learned advocate Ms.Binoda Gajjar appearing on behalf of the respondent - original accused.
2. By way of this appeal under Section 387(1)(3) of the Page 1 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025 NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined Code of Criminal Procedure, the appellant - State seeks to assail the judgment and order dated 31.03.2001 in Sessions Case No.59/1997 whereby the sole accused has been acquitted of the charges leveled against him more particularly for offence punishable under Sections 307, 324 and 504 of the Indian Penal Code and Section 135 of the Bombay Police Act.
3. The case of the prosecution in short being that the original complainant one Shakuji Sursangji Thakor residing in Sayala with his family and was in the occupation of driving truck of one Altapbhai Usmanbhai. It is the case of the prosecution that on 06.07.1996, in the evening, after having his dinner, when the complainant was sitting in his varanda, his wife had informed him that on the day before, in the evening, her brother one Amarshibhai and his wife were fighting among themselves, at that time, the accused Kuka Masharu Koli had intervened and started fighting with her brother.
3.1. The case being that upon being informed about the same, the complainant had around 10:00 p.m. gone to the house of the accused for the purpose of admonishing him and upon reaching there he had called the accused and had asked Page 2 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025 NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined him as to why he had interfered in a fight between his brother-in-law and his wife, at which time, the accused is stated to have got angry and had started abusing the complainant and upon being told not to abuse the complainant, the accused had removed a knife from his waist and had stabbed the complainant on the left side of the abdomen of the complainant and a second injury was received by the complainant while he was trying to stop the accused. The second injury being on the palm of the right-hand side of the complainant and a third injury being received by the complainant on his left hand.
3.2. It is the case of the prosecution that upon hearing the commotion, the brother-in-law of the complainant - Amarshibhai, his wife - Jayaben and mother-in-law - Jaguben had reached the place of the incident and had saved the complainant from further injuries and thereafter, upon neighbours gathering at the place, the accused had ran away and the complainant, since he was injured, was taken on a cycle to Sayala Government Hospital and whereas, upon reaching the said place, he had given a statement to the police and based upon which the police had registered FIR Page 3 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025 NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined No.192/1996 initially for the offences punishable under Sections 306 and 504 of the IPC and Section 135 of the Bombay Police Act and later on, since a certificate of grievous injury was received, the offence was converted to one punishable under Section 307 of the IPC more particularly upon a report of the said nature being submitted to the Judicial Magistrate First Class, Sayala. 3.3. It appears that upon the investigating officer submitting his charge-sheet, the case had thereafter been converted to Criminal Case No.563/1996 and whereas, the case had been committed by the Judicial Magistrate, Sayala on 16.06.1997 and sent for trial to the learned Sessions Court. The charge against the accused was framed on 16.11.2000 and whereas, the prosecution had sought to examine 12 witnesses and 15 documentary evidences. The statement of the accused under Section 313 of the Cr.P.C. had also been recorded where he had denied all the allegations against him and all the evidences against him and where he had additionally stated that while he was at his home, yet, since the accused wanted to save Amarshibhai, therefore, a false case has been foisted upon him.
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NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined
4. Learned Sessions Court had framed four issues for consideration, namely (i) whether the prosecution proves that the accused, on 06.07.1996 at around 21:45 hours at Sayala, had abused the complainant upon the complainant going to ask the accused not to interfere in a fight between the brother-in-law of the complainant and his wife, (ii) Whether the prosecution proved beyond reasonable doubt that at the above referred place and time, the accused had, with the intention of murdering the complainant, stabbed the complainant on his left side of the abdomen, (iii) whether the prosecution proves beyond reasonable doubt that the accused had caused further injuries on the complainant by using the knife, and (iv) whether the prosecution proves beyond reasonable doubt as to whether the accused had violated the notification of the District Magistrate as regards not carrying grievous weapons.
4.1. Learned Sessions Court had answered all the issues in negative and whereas, vide the judgment and order referred to herein above, the learned Sessions Court had acquitted the accused of the charges leveled against him. Page 5 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025
NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined 4.2. As observed hereinabove, the State being aggrieved by the acquittal, has moved the present appeal.
5. Learned APP Mr.J.K.Shah on behalf of the appellant - State would contend that the learned Sessions Court had committed a grave error in not considering the deposition of the complainant himself more particularly whereby the complainant has stated that he had been assaulted by a knife by the accused. Learned APP would submit that the learned Sessions Court had committed a serious error in acquitting the accused based on minor inconsistencies which otherwise did not have any bearing on the issue in question. Learned APP would further submit that the learned Sessions Court had committed a grave error in not appreciating the fact that the dropping of the wife of the complainant as well as the demise of the brother-in-law of the complainant, would not have any bearing on the issue in question.
5.1. Learned APP would further submit that the learned Sessions Court had committed a grave error in giving undue importance to the deposition of one Dr.Ghanshyambhai Motka i.e. the doctor present at the Civil Hospital, Sayala. Learned APP would further submit that the learned Sessions Court had Page 6 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025 NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined also committed a grave error in not considering the deposition of the complainant as well as other witnesses in taking the overall perspective and convicting the accused. Thus submitting, learned advocate would submit that this Court may reverse the acquittal and pass appropriate orders insofar as the accused is concerned.
6. The present appeal is vehemently contested by learned advocate Ms.Binoda Gajjar appearing on behalf of the accused. Learned advocate would submit that no error whatsoever has been committed by the learned Sessions Court in acquitting the accused more particularly learned advocate submitting that the inconsistencies noted by the learned Sessions Court were material inconsistencies whereupon no other view than the view taken by the learned Sessions Court was possible. Learned advocate would submit that as such, the learned Sessions Court had considered the fact that there was a material inconsistency in the statement of the complainant as had been given before the treating doctor at the Civil Hospital as in the FIR and in the cross examination. Learned advocate would submit that the important material witnesses namely the wife of the Page 7 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025 NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined complainant who is stated to have been present or reached the place of the incident just around the time when the incident had taken place, had not been examined. Learned advocate would submit that likewise, mother-in-law of the accused who was also stated to have present or reached the site of the incident near about that time, had also not been examined.
6.1. Learned advocate would submit that even otherwise, the place of the incident was near to the police station, yet, the first information was received by the police station approximately after one and half hours of the incident. Insofar as the notification is concerned, it is submitted that the accused was present in his home and therefore, the notification itself would not be applicable more particularly learned advocate would submit that it is very difficult to perceive a situation where the accused who is sitting in his home would carry a knife in his waist.
6.2. In any case, in conclusion, learned advocate would submit that the incident had happened in the year 1996. It is submitted that the learned Sessions Court had, in the impugned decision which was passed in the year 2001, noted Page 8 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025 NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined the fact that the brother-in-law of the deceased, on whose account the entire altercation had taken place at first place, had himself expired. That the learned Sessions Court had noted that there was no trace available of the wife of the brother-in-law of the complainant. It is submitted that after such a long period, no fruitful purpose would be served by reversing the conviction even if all the submissions made by learned APP is accepted to be true.
6.3. Thus submitting, learned advocate would request this Court not to interfere in the impugned decision.
7. Having heard learned advocates for the respective parties, at the outset, before examining the submissions made by learned advocates for the respective parties, this Court would like to reiterate the principles which are to be kept in mind while considering an appeal against an order of acquittal. The principles as regards considerations which should weigh with the Appellate Court, having been reiterated by the Hon'ble Supreme Court in catena of judgments, this Court would crave leave to refer to a recent decision of the Hon'ble Supreme Court in case of Mallappa and Others vs. State of Karnataka, reported in 2024 (3) SCC 544. Page 9 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025
NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined paragraph no.42 of the said decision, being relevant for the present purpose, is quoted hereinbelow for benefit:-
"42. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive -
inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-
appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Page 10 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025 NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined Court. "
7.1. A perusal of the above paragraph reveals the principles which have to be kept in mind while an Appellate Court decides an appeal against acquittal. The first issue being with regard to appreciation of evidence comprehensively and whereas, all the evidences including the oral, documentary evidences should necessarily be examined. The second principle being a corollary of the first principle namely in case there is a partial or selective appreciation, then it would result in a miscarriage of justice and would itself be a ground of challenge. Most importantly, the Hon'ble Supreme Court in the third principle lays down that after appreciation of the evidence, if the appellate Court finds that two views are possible, then one in favour of the accused shall ordinarily be followed. Again, as a corollary thereof, it is laid down by the Hon'ble Supreme Court that if the view of the learned Trial Court is a legally plausible view, then mere existence of a possibility of a contrary view would not be enough to justify the reversal of the acquittal.
7.2. The Hon'ble Supreme Court has further laid down that if the Appellate Court is of the opinion that the acquittal is to be Page 11 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025 NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined reversed upon the reappreciation of the evidence, then the Appellate Court is required to specifically give reasons as regards not accepting the findings of the learned Trial Court as regards acquitting the accused. Again, most importantly, the Hon'ble Supreme Court has laid down that in case of reversing an acquittal to conviction, the Appellate Court should specifically demonstrate an illegality, perversity or error of law or fact in the decision of the learned Trial Court.
8. Considering the impugned decision from the perspective of the principles reiterated by the Hon'ble Supreme Court, at the first instance, this Court would consider the evidence both oral and documentary, laid before the learned Trial Court.
8.1. Learned Sessions Court notes that while the prosecution had listed 12 witnesses, all the Panch witnesses had turned hostile i.e. not supported the case of the of the prosecution. The case of the prosecution had been supported by the deposition of the complainant himself and whereas, the depositions and the treating doctor i.e. the doctor who was running a hospital where the complainant had been operated as well as the doctor of manning the Civil Hospital where the complainant had been first taken, had been examined. Page 12 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025
NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined 8.2. It would appear that upon an examination of the deposition of the complainant, this Court, but, cannot ignore the inconsistency in the statement, as having been noted by the learned Sessions Court. The learned Sessions Court notes that the complainant is stated to have gone to the house of the accused, to admonish him for interfering in an altercation between the brother-in-law of the complainant and his wife, yet, in the complaint, it is mentioned by the complainant that on the day before the incident, his wife had informed him about there being an altercation between the brother-in-law of the complainant and his wife, whereas, in the deposition before the Court, the complainant had deposed that on the date of the incident, in the morning, the brother-in-law of the complainant had informed the complainant as regards the accused having intervened in the altercation between the brother-in-law of the complainant and his wife. The said contradiction has been treated to be a material contradiction by the learned Sessions Court.
8.3. The learned Sessions Court also notes that the complainant in the complaint has narrated that there were three injuries sustained by him on account of the assault by Page 13 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025 NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined the accused, yet, in the deposition before the Court, the complainant states that only one injury i.e. a stab wound on the left side of the abdomen has been sustained on account of the assault by the accused and whereas, the injuries on the hand of the complainant were on account of falling down and injuring himself by a thorn. The learned Sessions Court has also noted the fact that an important witness namely Jayaben i.e. the wife of the complainant who is stated to have reached the spot of the incident near about the time when the incident had taken place, was dropped by the prosecution themselves. 8.4. Furthermore, it also requires to be observed here that in addition to the wife of the complainant, even the mother-in- law of the complainant who also appear to be a material witness, who had reached the spot of the incident near about the time when the incident had taken place and who was also instrumental in making sure that the complainant reaches the hospital had also not been examined by the prosecution. Furthermore, it also appears from the deposition given by the complainant before the Court that the mother-in-law was instrumental in ensuring that the petitioner does not bleed heavily on account of the alleged stab wounds and whereas, Page 14 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025 NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined under such circumstances, the mother-in-law not having been examined, is also an issue which would weaken the case of the prosecution.
8.5. Furthermore, this Court upon examination of the evidence finds that in the statement before the police, the complainant had stated that he was taken from the site of the incident to the hospital on a cycle belonging to his mother-in- law, whereas, in the deposition before the Court, it was stated that he was brought in a handcart to the hospital by his mother-in-law and other persons. It appears in this regard that the said inconsistency had not been explained by the complainant. This Court has also noticed the fact that in the complaint itself, the complainant has stated that while the complainant had gone to admonish the accused and the assault had taken place, his brother-in-law - Amarshibhai, his wife - Jayaben and his mother-in-law - Jaguben had reached the place and had saved the complainant from any further assault, whereas, in the deposition before the Court, no such incident has been referred to by the complainant. This also appears to be a material contradiction which would go in favour of the accused.
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NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined 8.6. This Court has also considered the aspect noted by the learned Trial Court as regards the complainant not having stated about the complainant having been assaulted by the accused before the doctor in the civil hospital at Sayala. The said fact raising a doubt about the allegation leveled by the complainant inasmuch as the complainant at the first available opportunity not having named the accused, there is always a possibility that the later naming of the accused may be tutored. This Court has also noticed the fact that the view taken by the learned Sessions Court was a perfectly justifiable and plausible view and as much as we have considered the submissions made by the learned APP, we could not persuade ourselves to take a contrary view than the view taken by the learned Sessions Court.
8.7. Furthermore, considering the case from the perspective of the law laid down by the Hon'ble Supreme Court as referred to hereinabove, we do not find any perversity, illegality or any error of law or fact as committed by the learned Sessions Court in passing the impugned judgment.
9. Under such circumstances, to this Court, no interference Page 16 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025 NEUTRAL CITATION R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025 undefined is required in the impugned decision and whereas, the present appeal fails and is hereby rejected.
(NIKHIL S. KARIEL,J) (P. M. RAVAL, J) Bhoomi Page 17 of 17 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:40:56 IST 2025