Gujarat High Court
State Of Gujarat vs Nevabhai Hanjabhai Parmar on 6 June, 2025
NEUTRAL CITATION
R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 975 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
==========================================================
Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
NEVABHAI HANJABHAI PARMAR & ORS.
==========================================================
Appearance:
MS CHETNA SHAH, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2,3
MR TUSHAR L SHETH(3920) for the Opponent(s)/Respondent(s) No. 2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 06/06/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. The present appeal is preferred by the State under section 378(1)(3) of the Code of Criminal Procedure Page 1 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025 NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined 1973 (for short "the CrPC") against the judgment and order dated 15.6.1999 in Sessions Case No.60 of 1998 passed by the learned Additional Sessions Judge, Banaskantha at Palanpur acquitting the accused persons for the offences punishable under sections 302, 324, read with section 34 of the Indian Penal Code 1860.
2. The facts of the present case in nutshell are as under :
2.1 The complainant Vaja Kira is the uncle of deceased Manchha Dheera. That on 22.3.1998 Vaja Kira and his nephew deceased Manchha Dheera were travelling on foot from village Rooppura to village Umbari for performing rituals of gargling due to death of mother-in-law of his son. After performing rituals of gargling at village Umbari at about 5.00 O'clock, they had left for village Rupapura at about 9.00 O'clock in the night. When they reached near village Jodhsar, more particularly, at the river bank, at that time, the complainant Vaja Kira was walking behind deceased Manchha. It was night and dark, at that Page 2 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025 NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined time, from behind one person from Jodhsar village hit on the back of the head of Vaja Kira with iron rod without uttering single word, due to which Vaja Kira fell on the ground and also injured Manchha Dheera on his head and inflicted injury on the left eye with rod due to which Manchha Dheera fell on the ground. Thereafter, that person went away towards village Jodhsar. The complainant thereafter stood and observed that Manchha Dheera was injured and was lying on the ground, and therefore complainant Vaja Kira reached at village Ruppura and came along with Champa Bhima, Gujara Dheera and others in truck at village Bamodara and on reaching Bamodara at the place of incident, Manchha Dheera was taken to Cottage Hospital at Ambaji in the said truck. After giving primary treatment to Manchha Dheera, he was taken to the Civil Hospital for further treatment. The complainant Vaja Kira took primary treatment at Cottage Hospital, Ambaji and thereafter went to Ambaji Police Station and lodged the complaint, which came to be registered as CR No.44 of 1998 under the provisions of sections 307, 326, 325, and 323 of Page 3 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025 NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined the Indian Penal Code, 1860. The investigation was handed over to the Police Sub Inspector, Mr.Chavda. While Manchha Dheera was under the treatment at the Civil Hospital at Palanpur at about 5.20 hours, in the early morning, he expired which was informed by Palanpur City Police Station to Ambaji Police Station. Thereafter, section 302 of the Indian Penal Code came to be added. After completion of the investigation, the chargesheet was presented against Nevabhai Hanjabhai in the court of learned Magistrate. As the case was exclusively triable by the learned Sessions Court, the learned Magistrate committed the said criminal case to the learned Sessions Court.
3. It also came on record that after Nevabhai refused the charges levelled against him, which were framed vide Exh.3 and claimed to be tried, he was tried for the aforesaid charge.
Page 4 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025
NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined
4. That during the deposition of the complainant, involvement of Maknabhai Ranmabhai and Parthabhai Narsabhai came on record and as per the order passed below Exh.34, these two persons were arraigned as accused under the provisions of section 319 of the CrPC and against them charges were framed for the offences under sections 302, 324 and section 34 of the Indian Penal Code. The charge was amended and framed against all the accused in which Nevabhai Hanjabhai was accused of hitting iron rod, Makanabhai Ranmabhai was accused of hitting axe while Parthabhai was accused of hitting with stick. However, all the accused persons denied the charges levelled against them and claimed to be tried. They were tried accordingly and after examining the witnesses as well as considering the documents on record, all the accused persons were given benefit of doubt under the provisions of section 235 of the CrPC and acquitted from the charges of sections 302, 324 and 34 of the Indian Penal Code vide the impugned judgement and order dated 15.6.1999. Hence, the State has preferred the present appeal.
Page 5 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025
NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined
5. Learned Additional Public Prosecutor Ms.Chetna Shah has mainly contended as follows :
5.1 That the judgement and order of acquittal passed by the learned trial Judge is contrary to law, evidence on record and the facts of the present case. 5.2 That the learned trial Court has not properly appreciated the facts of the prosecution case that on 22.3.1998 at about 21.00 hours when the complainant Vaja Kira and deceased Manchha Dheera were going through river bank, the respondents accused with an intention to cause death of Manchha Dheera had inflicted injuries, more particularly, by Nevabhai by iron rod on the head of the deceased, by axe by accused No.2 Maknabhai Ranmabhai and stick blow by accused No.3 Parthabhai Narsabhai and thereby committed the offence under sections 302, 324, read with section 34 of the Indian Penal Code. Page 6 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025
NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined 5.3 That the learned trial Court has not properly appreciated the evidence of Dr.Jayantibhai Ambaram Patel at Exh.8 and Dr.Shamaldas Adhwana at Exh.17 since both these witnesses are independent witnesses and have no grudge with the accused persons and despite these witnesses having deposed in favour of the prosecution, more particularly, considering the contents having been proved of the postmortem note at Exh.20 and inquest panchama at Exh.22 which has also duly proved wherein the Doctor has clearly stated that the cause of death was due to various injuries caused and the injuries were sufficient in ordinary course of causing death.
5.4 That the learned trial Court has also not properly appreciated the ocular evidence of the Police Sub Inspector Mr.Chavda, the Investigating Officer before whom the accused persons have produced iron rod and the said iron rod was recovered from Nevabhai after drawing necessary panchnama as per the provisions of Section 27 of the Indian Evidence Act.
Page 7 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025
NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined 5.5 That the learned trial Court has further failed to appreciate the FSL report and serological report which have been proved and are at Exh.47 wherein the blood of the deceased was found on muddamal iron rod as well as on the shirt of the accused Nevabhai. That no plausible reasons have been given by the learned trial Court to disbelieve the evidence of prosecution witness Laxmiben at Exh.34 (sic.Exh.38).
5.6 Thus, it is argued by learned Additional Public Prosecutor Ms.Chetna Shah that reasons given by the learned trial Court while acquitting the accused are improper, perverse and unwarranted in the facts of the present case and there is misreading of oral as well as documentary evidences which require interference at the hands of this Court and requested to allow the present appeal.
Page 8 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025
NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined
6. At this stage, it would be fruitful to refer to the decision of the Honourable Apex Court in the case of Constable 907 Surendra Singh and another Vs State of Uttarakhand, reported in (2025) 2 SCR 239 wherein the Honourable Apex Court in paragraphs 11 and 12 has observed thus :
"11. Recently, in the case of Babu Sahebagouda Rudragoudar and others V. State of Karnataka, a Bench of this Court to which one of us was a Member ( B. R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus:
"38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging acquittal of the accused recorded by the trial court.
39. This Court in Rajesh Prasad V. State of Bihar [ Rajesh Prasad V. State of Bihar (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : ( SCC pp. 482-83, para 29) "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 against an order of acquittal in the following words: [ Chandrappa V. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 Page 9 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025 NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined SCC (Cri) 325 ], SCC p. 432, para 42) '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 appeal court has full power to review, reappreciate 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 Page 10 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025 NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined 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 conclusion 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 H.D. Sundra V. State of Karnataka [ H. D. Sundra V. State of Karnataka (2023) 9 SCC 581 : (2023) 3 SCC (Cri) 748 ] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC as follows : ( SCC p. 584, para 8 ) "8. ... 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 reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating 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 Page 11 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025 NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined 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 form patent perversity;
41.2. That the same is based on a misreading/omission to consider material evidence on record; and 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."
12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider Page 12 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025 NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined material evidence on record; and 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."
7. Thus, on the aforestated legal prepositions, this Court has to test on the anvil of the evidence on the record as to whether the acquittal suffers from any patent perversity or that the same is based on misreading or on an omission to consider material evidence on record and that no two reasonable views are possible and only view consistent with the guilt of the accused is possible on the evidence on record.
8. Thus, on the aforesaid settled principles of law, this Court has now to reappreciate the oral as well as documentary evidences placed on record by the prosecution. On perusal of the complaint at Exh.40 dated 23.8.1998 lodged before the Ambaji Police Station, no name of any accused persons has been given by the injured witness himself i.e. complainant. On the contrary, the complainant has stated that one person inflicted the injuries on the deceased as well as to the complainant. He has also further deposed that he has all the belief that Page 13 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025 NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined because of one incident which took place before one year where his nephew Manchha Dheera's marriage was solemnized with one girl residing at Bamodara village and at the time of engagement, scuffle took place for which compromise was also arrived at as per the relevant customs.
However, keeping in mind the grudge, people of Kodarvi may have inflicted injuries on the deceased which cannot be denied. Thus, the complainant has merely raised apprehension, however, he has not given any name in the FIR. With regard to this aspect, the learned trial Court has considered the entire evidence on record i.e. ocular as well as documentary evidences and has in detail discussed the omission, addition and material improvments in the deposition along with subsequent applications preferred by the complainant which were exhibited at Exhs.29 to 32 and has also considered the fact that the application is preferred by the complainant before this Court wherein further investigation was also ordered and after further investigation was carried out, material improvements made by the complainant over and above the complaint and Page 14 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025 NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined various applications given by him before the concerned police authorities which are duly proved and considered by the learned trial Judge, more particularly, in paragraphs 21 to 25 of the impugned judgment and order. On perusal of the aforesaid findings and on reappreciation of the oral as well as documentary evidences, more particularly, the complaint at Exh.40, deposition of the complainant Vaja Kira at Exh.27, application given to the Police Sub Inspector of Ambaji Police Station at Exh.29 dated 23.3.1998, application given to the District Superintendent of Police by Champabhai Taralbhai at Exh.30 dated 29.4.1998, copy of which was also sent to the Secretary, Home Department, State of gujarat and copy was also sent to Nishaben Chaudhary (MP). Copy of reply given by Nishaben Chaudhary (MP) at Exh.33 dated 18.6.1998 and the order dated 11.9.1998 passed by this Court in Special Criminal Application No.530 of 1998 along with the application at Exh.31 dated 6.11.1998 by Somabhai written to the District Superintendent of Police and Exh.32 dated ___.11.1998 by Champabhai to the then Judge of the High Court. It is Page 15 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025 NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined required to be noted that the Investigating Officer was examined vide Exh.42 i.e. Mahendrasing Ratansinh Chavda
- PW 9 and on perusal of the entire deposition, more particularly, cross examination by the defence lawyer, he has clearly brought on record material addition made by the complainant - injured witness which creates serious doubts regarding deposition made before the learned trial Court and giving the names of accused Nos.2 and 3 for the first time in his deposition while recording the deposition at Exh.37 before the learned trial Court. The learned trial Court has also recorded the said material improvements in the statement of the complainant from time to time by well reasoned order.
9. At this juncture, it is required to be noted that accused No.1 - Nevabhai has expired and the said fact is also recorded vide oral order dated 10.11.2022 in the present appeal and thus, the present appeal qua original accused No.1 was ordered to be abated and therefore, the question remains with regard to the role played by Page 16 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025 NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined respondent Nos.2 and 3 - original accused Nos.2 and 3. However, as noted above, when there are material improvements in the deposition of the complainant, even after further investigation, it cannot be said that the impugned judgment and order passed by the learned trial Judge acquitting the accused persons is perverse or that the learned trial Court has not considered the depositions of the witnesses in its true perspective.
10. Even if the deposition of witness Laxmiben recorded vide Exh.38 is perused, it does not take the case of the prosecution beyond the role of the accused No.1 who has already expired and no evidence qua accused Nos.2 and 3 is coming on record.
11. As far as the discovery panchnama at Exh.44 is concerned, it is required to be noted that panchas have turned hostile and that the Investigating Officer in his deposition has not properly proved the contents of the panchnama in accordance with law and therefore, the Page 17 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025 NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined learned trial Judge was correct in not relying upon the discovery panchnama. It is required to be noted that when the discovery panchnama has not been proved in accordance with law, the fact of iron rod has been found with blood stain as per the FSL report does not carry any significance thereafter.
12. Further, if the deposition of Dr.Shamaldas Mohanlal - PW 3 at Exh.17 and the deposition of Dr.Jayantibhai Ambaram Patel - PW 1 at Exh.8 are considered in its totality, there are number of discrepancies which create serious doubts with regard to the nature of injuries sustained by the deceased coupled with undisputed fact that last rituals of dead body were also not performed despite of handing over the dead body of the deceased and was kept in open at the bank of river for three days which goes on to substantiate the defence taken by the accused that when someone is murdered and if the person who has committed the crime is not found out, the persons of the village would keep dead body from where it was found and Page 18 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025 NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined would also not perform last rituals and there is also a custom that if murder takes place, compensation is also taken from the accused persons and the matter is also settled.
13. In the present case on hand, since the complainant did not give name of any person in the complaint and subsequently, the applications were filed and even after further investigation as ordered by this Court, the learned trial Court, after considering the entire oral as well as documentary evidences, has recorded the material improvements in the deposition of the complainant and has not believed the deposition of the complainant raising doubt against its veracity and therefore, this Court after having gone through the oral as well as documentary evidences on record does not find any perversity or misreading of oral as well as documentary evidences.
14. Under the circumstances, the appeal against accused Nos.2 and 3 fails and the same is rejected. The Page 19 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025 NEUTRAL CITATION R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025 undefined impugned judgment and order dated 15.6.1999 in Sessions Case No.60 of 1998 passed by the learned Additional Sessions Judge, Banaskantha at Palanpur acquitting the accused persons for the offences punishable under sections 302, 324, read with section 34 of the Indian Penal Code 1860 is hereby confirmed. R & P be sent back forthwith.
(NIRAL R. MEHTA,J) (P. M. RAVAL, J) H.M. PATHAN Page 20 of 20 Uploaded by H.M. PATHAN(HC00167) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 23:57:43 IST 2025