Gujarat High Court
State Of Gujarat vs Mansingbhai Navabhai Govadiya on 6 May, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/324/2013 JUDGMENT DATED: 06/05/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 324 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
================================================================
Approved for Reporting Yes No
================================================================
STATE OF GUJARAT
Versus
MANSINGBHAI NAVABHAI GOVADIYA
================================================================
Appearance:
MS. MONALI BHATT, APP, for the Appellant(s) No. 1
RULE NOT RECD BACK for the Opponent(s)/Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 06/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal is preferred by the State under Section 378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 10.09.2012 passed by the Additional Sessions Judge, Surat in Sessions Case No.123 of 2011. By the impugned judgment and order, the Sessions Court acquitted the respondent-accused for offense under Section 302 read with Section 114 of Indian Penal Code.
2. The brief facts of the case are as under:
On 18.03.2011 at around 11 p.m., the accused got instigated upon Page 1 of 11 Uploaded by SIDDHARTH(HC01065) on Fri May 30 2025 Downloaded on : Fri May 30 21:54:23 IST 2025 NEUTRAL CITATION R/CR.A/324/2013 JUDGMENT DATED: 06/05/2025 undefined seeing the deceased harassing Savita, who is the daughter of Vinodbhai and hit on the head of the deceased using a stone and koita (sickle) thereby resulting in his death. Further, in order to hide the body of the deceased, he threw the body in a well thereby committing the alleged offence.
3. This court by order dated 26.8.13 has admitted the appeal , the paper book is available for the perusal, the matter has been taken up with the assistance of the learned APP considering the fact that the matter is of the year 2013.
4. Learned APP has submitted that the order of acquittal passed by the Additional Sessions Judge, Surat in Sessions Case No.123 of 2011 is contrary to law and evidence on record of the case.
4.1 Learned APP has submitted that the complainant and other witnesses have categorically stated before the Court regarding the commission of offense and there is clear evidence to the effect that the accused was harassing the daughter of the deceased which resulted in commission of murder of the deceased. However, the Sessions Judge has disbelieved the same as the evidence of prosecution witnesses is not corroborating with the evidence of the complainant.
4.2 Learned APP has submitted that there is no reason to doubt the evidence of the complainant as there is no reason to falsely involve the accused. However, the Sessions Judge has disbelieved this witness.
Page 2 of 11 Uploaded by SIDDHARTH(HC01065) on Fri May 30 2025 Downloaded on : Fri May 30 21:54:23 IST 2025 NEUTRAL CITATION R/CR.A/324/2013 JUDGMENT DATED: 06/05/2025 undefined
4.3 Learned APP submitted that although there are omissions and contradictions in the contents of FIR and in the evidence before the Court, it is not to the extent that it would prove fatal to the case of the prosecution.
4.4 Learned APP submitted that PW No.7-Dr. Alpanaben Sureshchandra Jain, Exh.20 is the deposition of the medical officer who has performed the postmortem of the deceased and she has stated that cause of death is due to injuries sustained by the deceased on his head with hard substance. However, the Sessions Judge has failed to appreciate the evidence of this witness.
5. Having heard the submissions of learned APP and having perused documents in record, it appears that to prove the case against the respondent-accused, the prosecution has examined the following witnesses:-
Sr. No. Name of Witness PW No. Exh. No. 1. Meenaben Vinodbhai 1 11 2. Sabitaben Mansing 2 13 3. Dega @ Amrutbhai 3 14 4. Sombhai Modibhai 4 16 5. Kasimkhan Umarkhan Pathan 5 17 6. Ibrahim Haji Daud Mobin 6 19 7. Dr. Alpanaben Sureshchandra 7 20 Jain Page 3 of 11 Uploaded by SIDDHARTH(HC01065) on Fri May 30 2025 Downloaded on : Fri May 30 21:54:23 IST 2025 NEUTRAL CITATION R/CR.A/324/2013 JUDGMENT DATED: 06/05/2025 undefined 8. Meenaben Rajnikant Dave 8 24 9. Abdul Latif Gulambhai Sindha 9 28 5.1 The prosecution has brought on record the following documentary evidence:- Sr. No. Particulars Exh. No. 1. Charge 4 2. Inquest Panchnama 8 3. Panchnama of clothes of deceased 9 4. Panchnama of body of accused 10 5. Complaint 12 6. Discovery Panchnama 15 7. Panchnama of place of offence 18 8. P.M. Note 22 9. Certificate of cause of death 23 10. FSL Report 26 11. FSL Serological Report 27
6. The prosecution has examined PW No.1-Meenaben Vinodbhai vide Exh.11, who is the complainant and wife of the deceased. The complainant has deposed that the accused is the cousin of the deceased and that Sabitaben is the daughter of the accused. Further, it is deposed that all of them were engaged in labor work and on the date of the said incident, the deceased went to collect wages from the employer-
Page 4 of 11 Uploaded by SIDDHARTH(HC01065) on Fri May 30 2025 Downloaded on : Fri May 30 21:54:23 IST 2025 NEUTRAL CITATION R/CR.A/324/2013 JUDGMENT DATED: 06/05/2025 undefined
Latifbhai. Thereafter, the accused asked his wife and the complainant to go home, give the money and come back. Hence, both of them left to go home to their respective villages and the deceased, accused and daughter of the accused stayed back at the farm. On the next day, she reached the farm at around 1 p.m. and her husband could not be found hence, he asked the daughter of the accused regarding his whereabouts. Upon which she replied that the the accused was verbally abusing the deceased and that the deceased slept off. Additionally, she replied that the accused gave a blow on the head of the deceased with something, killed him and threw him in Tapi river. Upon which, she went to the police station along with Latifbhai after five days and filed a complaint. During the duration of five days, she had been searching for the body of the deceased which was found from the well in the field of Latifbhai. The said delay of five days in lodging the complaint particularly when the daughter of the deceased has informed her that the accused killed the deceased raises a doubt on the case of the prosecution and a possibility of false implication of the accused. Further, the said justification raised that they were searching for the body of the deceased during the said period does not inspire the confidence of the Court. 6.1 The complainant has deposed in her cross examination that she searched at her place of residence before asking the daughter of the accused. However, she contradicts her own statement later on and stated that she asked the daughter of the deceased before searching in her place of residence. Such contradictions raise a doubt on the version of the prosecution.
Page 5 of 11 Uploaded by SIDDHARTH(HC01065) on Fri May 30 2025 Downloaded on : Fri May 30 21:54:23 IST 2025 NEUTRAL CITATION R/CR.A/324/2013 JUDGMENT DATED: 06/05/2025 undefined
6.2 Also, she has deposed that they were on good terms with the accused and that there was no reason as such to kill the deceased. Further, she has deposed that she is unaware of the reason why her husband was killed. Hence, it appears that they were on cordial terms and no such motive can be attributed to the commission of the said offense. Although motive is not an essential ingredient to prove the offense, it becomes significant especially in the cases where evidences are circumstantial. 6.3 Further, in the cross examination of the complainant she has deposed that the daughter of the accused (Sabita) is mentally unsound and insane. Hence, it is coming out from the deposition of this witness itself that the daughter of the accused was unsound and therefore, the disclosure made by the daughter of the accused cannot be relied upon. Further, it appears that no medical examination was conducted by the prosecution in order to prove that the daughter of the accused was not medically unsound. In this regard, it becomes important to look at the deposition of the daughter of the accused particularly when the complainant is not an eye witness to the said incident and her allegation is based on the statement made by the daughter of the accused.
7. The prosecution has examined PW No.2-Sabitaben Mansing vide Exh.13, who is the daughter of the accused. As the said witness is aged 14 years, she was administered oath after putting forth preliminary questions and ensuring that the witness understands the seriousness of it. The said witness has deposed in her examination in chief that the deceased is her uncle and that he has passed away. Thereafter, upon Page 6 of 11 Uploaded by SIDDHARTH(HC01065) on Fri May 30 2025 Downloaded on : Fri May 30 21:54:23 IST 2025 NEUTRAL CITATION R/CR.A/324/2013 JUDGMENT DATED: 06/05/2025 undefined further questioning regarding who had killed the deceased, she answered that her father (accused) had killed him and that he killed him because the deceased was taking her away. However, in her cross examination, when the witness was asked regarding what was the deceased hit with, she has deposed that the deceased has not been hit. Also, upon asking the witness regarding the time the incident took place, she has refrained from answering. Further, she admits that the deceased used to consume alcohol and that she has not seen the deceased on the date of the incident or thereafter and that she is unaware about what happened to the deceased.
7.1 Upon perusing the deposition of the said witness, it appears that there are material contradictions which goes to the root of the case and does not support the case of the prosecution. Moreover, the witness has refrained from answering certain questions. She has also deposed that she is unaware of what happened to the deceased and that she had not seen the deceased on the date of the incident. This clearly contradicts the deposition of the complainant which was hearsay and wherein the complainant has stated that the daughter of the accused told her that "the accused gave a blow on the head of the deceased with something, killed him and threw him in Tapi river". Hence, the deposition of this witness raises a doubt on the case of the prosecution and cannot be relied upon. Upon considering the age of this witness at the relevant time and her deposition as PW No.2-Sabitaben Mansing vide Exh.13 the court is of the view that she cannot be treated as a sterling quality witness on whose deposition alone a conviction can be based.
Page 7 of 11 Uploaded by SIDDHARTH(HC01065) on Fri May 30 2025 Downloaded on : Fri May 30 21:54:23 IST 2025 NEUTRAL CITATION R/CR.A/324/2013 JUDGMENT DATED: 06/05/2025 undefined
8. The prosecution has examined PW No.9-Abdul Latif Gulambhai Sindha vide Exh.28. This witness has deposed that he was the tenant (farmer) at the field where both the accused and the deceased worked as laborers and that after he was informed by the complainant, he joined to find the deceased. He has stated that they were on good terms and hence, it is coming out that there was no motive as such to commit the said offense. Further, he has stated that the body was recovered from a well but he is unaware about how the deceased died. This witness has been declared hostile and even in the cross examination, this witness has deposed nothing so as to support the case of the prosecution.
9. The prosecution has examined PW No.7-Dr. Alpanaben Sureshchandra Jain vide Exh.20 who is the medical officer who conducted the postmortem of the deceased. She has deposed that the cause of death is hemorrhage shock due to head injury and the death was unnatural. Such an injury is possible using a heavy and sharp weapon such as the mudammal weapon. Further, it is deposed that due to physical decomposition, the physical structure of the body of the deceased cannot be determined and that the skin was prone to rupture due to such decomposition. The liver and other internal organs were protruding out of the body and the stomach also had decomposed. Hence, although the medical evidence shows that the death is unnatural, there should be other corroborating evidence to connect the accused to the said offense.
10. The prosecution has examined PW No.8-Meenaben Rajnikant Dave vide Exh.24 who is the F.S.L. officer. He has deposed that he conducted the Page 8 of 11 Uploaded by SIDDHARTH(HC01065) on Fri May 30 2025 Downloaded on : Fri May 30 21:54:23 IST 2025 NEUTRAL CITATION R/CR.A/324/2013 JUDGMENT DATED: 06/05/2025 undefined examination of samples received and has submitted the FSL Report vide Exh.26 and FSL Serological Report vide Exh.27. He has deposed that Sample B1 was the blood sample of the deceased which was ascertained as 'B' blood group, Sample A was the shirt which had bloodstains of blood group 'B' on it, Sample A1-pants and A2- undergarment had bloodstains of blood group 'B' on it. However, Sample D-sickle (koita) had bloodstain on it which was unascertained which significantly weakens the case of the prosecution.
11. Further, the prosecution has examined PW No.3-Dega @ Amrutbhai vide Exh.14 and PW No.4-Sombhai Modibhai vide Exh.16 who are panchas of the discovery panchnama. However, it appears that the witnesses have denied that recovery of any weapon took place in their presence and that the witnesses have been declared hostile. Hence, this weakens the case of the prosecution and the discovery panchnama cannot be relied upon to link the accused to the said offense.
12. The prosecution has examined PW No.5-Kasimkhan Umarkhan Pathan vide Exh.17 and PW No.6-Ibrahim Haji Daud Mobin vide Exh.19 who are panchas of the panchnama of place. However, both these panchas have denied that collection of any samples took place in their presence and they have been declared hostile.
13. Upon perusing the oral and documentary evidences, it appears that the prosecution is unable to prove the guilt of the accused beyond reasonable doubt. It appears that there are contradictions in the deposition of the complainant who is a hearsay witness and has deposed Page 9 of 11 Uploaded by SIDDHARTH(HC01065) on Fri May 30 2025 Downloaded on : Fri May 30 21:54:23 IST 2025 NEUTRAL CITATION R/CR.A/324/2013 JUDGMENT DATED: 06/05/2025 undefined that the daughter of the accused is of unsound mind. Further, it appears that the key witness who is the daughter of the accused has deposed that she is unaware about what happened to the deceased and that she was not present on the date of the incident. The other prosecution witnesses including panchas have not supported the case of the prosecution and have been declared hostile. It appears that it is a case of circumstantial evidence and no motive as such is attributed to the accused to commit the said offense and hence, the accused appears to have been rightly acquitted.
14. The Court may also draw strength from the decision of the Apex Court in the case of Rajesh Prasad Vs. State of Bihar & Anr. reported in (2022) 3 SCC 471, wherein the Apex Court has examined the case law with regard to the power of the High Court to overturn the decision of the Sessions Court where an another view is possible. Examining the case including that of Chandrappa & Ors. Vs. State of Karnataka reported in (2007) 4 SCC 415, the Apex Court has culled out the general principles regarding the powers of the Appellate Court while dealing with the appeal against the order of acquittal. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence, and thereafter, upon securing of acquittal, the presumption is further reinforced, reaffirmed and strengthened, and Page 10 of 11 Uploaded by SIDDHARTH(HC01065) on Fri May 30 2025 Downloaded on : Fri May 30 21:54:23 IST 2025 NEUTRAL CITATION R/CR.A/324/2013 JUDGMENT DATED: 06/05/2025 undefined therefore, whenever there are two reasonable possible on the basis of evidence on record, ordinarily, the Apex Court would not disturb the findings of acquittal recorded by the Trial Court.
15. The Court has also perused the judgment and order of the Sessions Court and finds that just and cogent reasoning are assigned by the Sessions Court while acquitting the respondent-accused.
16. In view of the aforesaid discussion, the Court finds no reason to interfere with the impugned judgment and order of acquittal dated 10.09.2012 passed by the Additional Sessions Judge, Surat in Sessions Case No.123 of 2011. The appeal is therefore dismissed. Bail and bonds of the accused, if any, stand discharged. R & P be sent back to the concerned trial Court.
(A.Y. KOGJE, J) (SAMIR J. DAVE,J) SIDDHARTH Page 11 of 11 Uploaded by SIDDHARTH(HC01065) on Fri May 30 2025 Downloaded on : Fri May 30 21:54:23 IST 2025