Gujarat High Court
State Of Gujarat vs Koli Karshanbhai Hirabhai on 5 June, 2025
NEUTRAL CITATION
R/CR.A/1384/2008 JUDGMENT DATED: 05/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1384 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
KOLI KARSHANBHAI HIRABHAI
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Appearance:
MR. MEET THAKKAR, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
MR. V B MALIK(5071) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 05/06/2025
ORAL JUDGMENT
1. The present Acquittal Appeal has been filed by the State under Section-378 of the Code of Criminal Procedure, 1973, challenging the judgment and order dated 16/02/2008 passed by learned Sessions Court, Patan (hereinafter referred to as "the Trial Court") in Sessions Case No.576/2002. By way of the impugned judgment and order, the accused has been acquitted of all the Page 1 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jun 16 2025 Downloaded on : Fri Jun 20 22:49:54 IST 2025 NEUTRAL CITATION R/CR.A/1384/2008 JUDGMENT DATED: 05/06/2025 undefined charges levelled against him under Section-332, 333, 353, 186 and 114 of the Indian Penal Code (hereinafter referred to as "I.P.C.").
2. The short facts emerging from the record are read as under:-
2.1 It is the case of complainant that at the time of incident, he was working as an Assistant Central Intelligent Officer, Grade-1, in the Central Intelligent Bureau Office situated at Palanpur, having received information from his superior that one Mr.Hira Pachan Koli of village Bhuladiya, Taluka Radhanpur, District Banaskantha, having been involved in anti-national activity and to verify this fact, he along with his colleague Mr.Satishchandra Ramchandra Sinha visited village Bhuladiya, Taluka Radhanpur, District Banaskantha. 2.2 It is further the case of complainant that upon verifying the fact that the person they met was Hira Pachan Koli, they went near to him and on initial interaction with him, said Hira Pachan Koli got angry and called his son namely Koli Karshanbhai Hirabhai, who had started quarrel with them and thereafter he inflicted blow with wooden stick on the head of the complainant, thereby he had sustained serious injury on his head as blood had come out. The colleague of the complainant had also received minor injury on his finger.
So, as per complaint, complainant and colleague Mr. Sinha had returned back to their headquarter and later on, after Page 2 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jun 16 2025 Downloaded on : Fri Jun 20 22:49:54 IST 2025 NEUTRAL CITATION R/CR.A/1384/2008 JUDGMENT DATED: 05/06/2025 undefined receiving medical treatment, next day morning on 28th April, 1993, registered FIR against the son of Hira Pachan Koli i.e. Koli Karshanbhai Hirabhai.
2.3 After recording statement of the complainant and other witnesses and upon completion of investigation, the accused was arrested and charge-sheeted for the alleged offence committed by him under Sections-332, 333, 353, 186 and 114 of IPC. Later on, the case was committed to the Trial Court for conducting the trial as per provisions of Cr.P.C. and charge (Exh.11) was framed by the Trial Court.
3. The prosecution has led the following oral and documentary evidence in support of its case and to bring home the charges against the accused.
Oral Evidences of Prosecution
Sr. No. Name and Particulars Exh.
1. Babubhai Savsibhai Thakor 15
2. Manabhai Savsibhai Thakor 21
3. Dr. Mahesh Ratilal Jivlani 22
4. Merabhai Sangrambhai Raval 28
5. Balvantbhai Punabhai Patel (Chaudhary) 31
6. Bhavabhai Chhagabhai Thakor 33
7. Trilokinath Sitaram Saini 36
8. Ramnarayan Sukhpal Mina 39
9. Satishchandra Ramchandra Sinha 43
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NEUTRAL CITATION
R/CR.A/1384/2008 JUDGMENT DATED: 05/06/2025
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10. Ajmalji Abhaji Thakor 47
11. Bavanji Danaji Vadiya 48
Documentary Evidences
Sr.No. Document Particulars Exh.
1. Complaint 38
2. Injury Certificate of Satishchandra Sinha 23
3. Injury Certificate of Triloknath Saini 24
4. Discovery Panchnama 29
5. Panchnama of Scene of Offence 30
6. Station Diary 50
7. Depute Order 39
4. It appears from the record that alleged incident of beating complainant took place on 27/04/1993 and the FIR was lodged on 28/04/1993, but the accused was arrested on 20/01/1998. There was no recovery of wooden stick allegedly used for commission of crime, and it was thus not submitted before the Trial Court by the prosecution.
5. After conducting the Trial and appreciating the evidence on record, the Trial Court has found that prosecution has failed to establish the case and not able to prove the charges beyond doubt, thereby acquitted the accused from all the charges levelled against him.
6. I have heard learned Additional Public Prosecutor, Mr.Meet Page 4 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jun 16 2025 Downloaded on : Fri Jun 20 22:49:54 IST 2025 NEUTRAL CITATION R/CR.A/1384/2008 JUDGMENT DATED: 05/06/2025 undefined Thakkar for the State at length. Learned APP has taken me through various oral as well as documentary evidence, which are on record of the case. I have also independently examined and re-appreciated evidence of witnesses examined by prosecution.
7. Learned Additional Public Prosecutor, Mr.Thakkar would submit that the findings of acquittal are contrary to law and evidence on record and the findings recorded by the Trial Court are erroneous and based on irrelevant material. 7.1 Learned Additional Public Prosecutor, Mr.Thakkar would submit that accused was guilty of commission of crime, whereby he had inflicted injury upon vital part of the body of the complainant, who was a public servant having received the injuries during course of his duty. Therefore, no leniency should be shown in favor of the accused.
7.2 Learned Additional Public Prosecutor, Mr.Thakkar would further submit that neither the complainant nor his colleague Mr. Sinha, had any enmity against the accused and thereby there was no reason for them to falsely implicate accused for committing offence in question. As such, complainant having received serious injury on his head, first got medical help and later on registered FIR on getting nod from his superior, would not be a ground to raise any doubt about commission of crime.
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NEUTRAL CITATION R/CR.A/1384/2008 JUDGMENT DATED: 05/06/2025 undefined 7.3 Learned Additional Public Prosecutor, Mr.Thakkar would submit that Trial Court has erroneously observed that there was a delay in registration of FIR and not believed the fact so stated in FIR supported by oral evidence of complaint and his colleague Mr. Sinha.
7.4 Learned Additional Public Prosecutor, Mr.Thakkar would further submit that minor discrepancy in version of witnesses would not ipso facto entitle accused to get any benefit of doubt, especially when public servant has received injury at the instance of accused.
7.5 Learned Additional Public Prosecutor, Mr.Thakkar would further submit that merely because wooden stick used in commission of crime was not recovered from accused would not be a ground to given him benefit of doubt in favour of accused thereby to acquit him.
7.6 Learned Additional Public Prosecutor, Mr.Thakkar would further submit that the factum of FIR was supported by oral evidence of Mr. Mina (PW-8) and also by that of Dr. Mahesh Jivlani (PW-3), who have confirmed the factum of the incident and the injury sustained by the complainant respectively. 7.7 Thus, the reasons assigned by the learned Trial Court while acquitting the accused are unjust, improper, perverse and Page 6 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jun 16 2025 Downloaded on : Fri Jun 20 22:49:54 IST 2025 NEUTRAL CITATION R/CR.A/1384/2008 JUDGMENT DATED: 05/06/2025 undefined unwarranted to the facts of the prosecution case and thereby, has committed an error in acquitting the accused. It is further submitted that the prosecution has established the guilt of the accused and learned Trial Court has committed an error both on law and facts.
7.8 Thus, the learned Trial Court has wrongly recorded the order of acquittal, which deserves to be quashed and appropriate sentences for the offences be passed against the accused and he urged this Court to allow the captioned appeal.
8. Before dealing with merit of the appeal, at this stage, I would first like to remind myself the position of law propounded by Supreme Court of India in its various decisions, whereby it has laid down several criteria while deciding acquittal appeal.
9. One of the recent pronouncement, in which, the Supreme Court of India in a case of Babu Sahebagouda Rudragoudar and Others vs. State of Karnataka, 2024 8 SCC 149 has held as under :-
"39. This Court in the case of Rajesh Prasadv. State of Bihar and Another, 2022 3 SCC 471 encapsulated the legal position covering the field after considering variousearlier judgments and held as below:-
"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal Page 7 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jun 16 2025 Downloaded on : Fri Jun 20 22:49:54 IST 2025 NEUTRAL CITATION R/CR.A/1384/2008 JUDGMENT DATED: 05/06/2025 undefined against an order of acquittal in the following words: (Chandrappa case [ Chandrappa v. State of Karnataka, 2007 4 SCC 415 ] "
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:-
(1) An appellate court has full power to review, re-
appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
40. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, 2023 9 SCC 581 this Court summarized Page 8 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jun 16 2025 Downloaded on : Fri Jun 20 22:49:54 IST 2025 NEUTRAL CITATION R/CR.A/1384/2008 JUDGMENT DATED: 05/06/2025 undefined the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: -
"8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re- appreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after re- appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-
41.1 That the judgment of acquittal suffers from patent perversity;
41.2 That the same misreading/omission to evidence on record; is based on a consider material.
41.3 That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
42. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
(emphasis supplied) Page 9 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jun 16 2025 Downloaded on : Fri Jun 20 22:49:54 IST 2025 NEUTRAL CITATION R/CR.A/1384/2008 JUDGMENT DATED: 05/06/2025 undefined
10. Now, keeping in mind the aforesaid principle laid down by Hon'ble Supreme Court of India, it is required to be considered as to whether the judgement and order passed by the Trial Court is erroneous, perverse or contrary to the provisions of law?
11. Before answering to said issue and dealing with the facts of the case on hand, it is required to be observed that the father of the accused namely Hira Pachan Koli was also faced prosecution in connection with criminal complaint being CR. No.I-88/1982, lodged by the present complainant on 27/04/1993, wherein the complainant has narrated facts which appears to have been narrated by him in FIR of present case produced at Exh.38. It is surprising to note that when the complainant has registered an FIR against the father of present accused in connection with commission of crime which allegedly took place on 27/04/1993, in the very complaint, the present accused could also have been arraigned and prosecuted accordingly. But, for reasons best known to the prosecution, two different FIRs for the same incident have been lodged and the cases were thereby tried differently. 11.1 The father of complainant was tried by the Trial Court being Sessions Case No.35 of 1995 and appears to have been acquitted by the Trial Court vide its order dated 27/02/1996. The State has questioned such acquittal by way of filing Criminal Appeal No.389 of 1996, wherein also this Court vide Page 10 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jun 16 2025 Downloaded on : Fri Jun 20 22:49:54 IST 2025 NEUTRAL CITATION R/CR.A/1384/2008 JUDGMENT DATED: 05/06/2025 undefined its judgement dated 02/02/2015 has also confirmed such acquittal. Thus, the story put forward by the complainant and the prosecution lodged against the father of the accused having failed, it adversely affects the case on hand.
12. Nevertheless, this Court has minutely gone through the evidence available on record and after its reappreciation, has found the following inherent defects and discrepancies therein:
12.1 It has been admitted by complainant (PW-7) that no written order had been received by him to visit village Bhuladiya to verify the credentials of the father of accused i.e. Hira Pachan. Normally, when any sensitive information is received by an Intelligent Officer during the course of his duty to verify the credentials of any person, especially in relation to any anti-national activity, such information is either received through any text message or is noted down in official records maintained by such officer. No such documentary evidence was submitted on the record by the prosecution. 12.2 The complainant has admitted that due to the head injury, blood came out from his head, which fell on his clothes and might have fallen on the place where the incident happened.
But, in the panchnama of scene of offence (Exh.30) produced on record does not note down any such blood. 12.3 As per the oral evidence of PW-1, who happens to be the Page 11 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jun 16 2025 Downloaded on : Fri Jun 20 22:49:54 IST 2025 NEUTRAL CITATION R/CR.A/1384/2008 JUDGMENT DATED: 05/06/2025 undefined brother of the Sarpanch, who confirmed that complainant had received injury due to vehicular accident, having fallen from a motorcycle. Considering the injury certificate of complainant produced at Exh.24, indicates that the injury sustained by the complainant could have been received due to vehicular accident i.e. a fall from a motorcycle.
13. So far as the evidence of the treating doctor is concerned, who was examined as PW-3, he categorically admitted in his cross- examination that when the complainant came for treatment, no police yadi was received by him and from the history received from the patients i.e. the complainant and his colleague, he found that it was an M.L.C. case (Medico-Legal Case). He has further admitted that when any M.L.C. case was noticed by him, he would report it to police and would also mention the same in the injury certificate. But, such information appears to be missing from the injury certificate on record. This creates a serious doubt about happening of the incident as alleged in the complaint.
14. As per oral evidence of Mr. Satishchandra Sinha (PW-9), who accompanied the complainant, he suggesting a fact that before 5:30 p.m., they returned back from village Bhuladiya, having reached Kamalpur and later on met their higher officer. Whereas, as per the case of the complainant, they reached Kamalpur at around 7:30 p.m. The timings, which were mentioned by both these Page 12 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jun 16 2025 Downloaded on : Fri Jun 20 22:49:54 IST 2025 NEUTRAL CITATION R/CR.A/1384/2008 JUDGMENT DATED: 05/06/2025 undefined witnesses did not give an exact time of incident and rather, creating a reasonable suspicion about the timing of the incident as narrated in the complaint. Mr.Satishchandra Sinha (PW-9) has further admitted that despite having received a minor injury, he did not register any formal complaint against the accused, rather he has admitted in his cross-examination that on 27th April 1993 itself, he along with complainant and his superior Mr. Mina (PW-8) went to the Radhanpur Police Station to register a complaint. As per his evidence, the complaint was registered by PW-9 Mr.Sinha, which is factually incorrect. If any police officials went to police station to register any FIR, especially one having received injury during the course of his duty, there was no reason to believe that the concerned police station would not lodge FIR against accused. It is an undisputed fact that the FIR (Exh.38) was lodged by PW-7 on 28/04/1993 i.e. the day after the alleged incident.
15. The prosecution was unable to collect the weapon used for the commission of the crime i.e. the wooden stick and thereby the weapon was not produced on record. Further, the accused was arrested on 28/01/1998 for the offence alleged to have been committed on 27/04/1993.
16. Thus, in view of the aforesaid clear facts that have come on record and after going through reasons assigned by the Trial Court while acquitting the accused, I am in complete agreement with the Page 13 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jun 16 2025 Downloaded on : Fri Jun 20 22:49:54 IST 2025 NEUTRAL CITATION R/CR.A/1384/2008 JUDGMENT DATED: 05/06/2025 undefined view taken by the Trial Court and as such, unable to accept any of the submissions made by learned APP in support of this appeal.
17. In view of the law laid down by the Hon'ble Supreme Court of India in the case of Babu Sahebagouda Rudragoudar (supra), this Court has no other option left but to dismiss the present appeal, which is hereby dismissed.
18. Consequently, the appeal is DISMISSED. Resultantly, the impugned judgment and order of the trial court is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings, called for, be sent back to the concerned Trial Court forthwith.
(MAULIK J. SHELAT, J) Nilesh Page 14 of 14 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Jun 16 2025 Downloaded on : Fri Jun 20 22:49:54 IST 2025