Gujarat High Court
State Of Gujarat vs Nirmalaben @ Niru Wd/O Govindbhai ... on 8 May, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/52/2013 JUDGMENT DATED: 08/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 52 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
NIRMALABEN @ NIRU WD/O GOVINDBHAI DAHYABHAI
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Appearance:
MS. MONALI BHATT, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 08/05/2025
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 13.10.2012 passed Page 1 of 17 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri May 16 2025 Downloaded on : Sat May 17 11:04:37 IST 2025 NEUTRAL CITATION R/CR.A/52/2013 JUDGMENT DATED: 08/05/2025 undefined by Sessions Judge, Ahmedabad (Rural) in Sessions Case No.27 of 2010. 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 :
The complainant-Rameshbhai Babubhai Jadav filed a complaint on 15.09.2008. He stated that on 14.09.2008 at 12 p.m. he left his house and went to the society near Gouri Gita Cinema to look for work. However, as he did not get any work, he returned home in a bus and at around 3:30 p.m. he got down at the HUDCO bus stand where he was informed by a resident of the locality namely Bhavu Marathe that, at around 1 p.m. Govindbhai who is a resident of the same locality, was beaten by his wife-Nirmalaben and daughter-Hetal. Further, upon hearing Govindbhai shouting for help, Bhavu alongwith Rabari Shivabhai and Pushpaben went there and saw Govindbhai lying on the ground and his daughter-Hetal was sitting upon him and his wife-Nirmalaben @ Niru was beating him using a baton that is used for washing clothes i.e., dhoko. The said persons tried to intervene and save Govindbhai upon which the daughter threatened them and Page 2 of 17 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri May 16 2025 Downloaded on : Sat May 17 11:04:37 IST 2025 NEUTRAL CITATION R/CR.A/52/2013 JUDGMENT DATED: 08/05/2025 undefined told them not to interfere or else, she would pour kerosene on herself, set herself on fire and would name them. Hence, no one interfered in between. After a while, Govindbhai stopped shouting and he was thereafter taken to Civil Hospital in a rickshaw and it seemed that he had passed away. The complainant reached home at 5 p.m. wherein even his wife-Jashoda told about the said incident. Thereafter, he reached Civil Hospital at 6 p.m. and saw the deceased-Govindbhai lying in a stroller in a room and upon lifting the sheet, he saw that there were injuries on the area above the eye and the back of his head from where he was bleeding and Govindbhai had passed away. The daughter of the deceased told the complainant that the deceased fell in the bathroom resulting in injuries leading to his death. Upon which, he told her that as per the say of the people at HUDCO, she and her mother had beaten the accused and asked the reason for the same. She informed that a quarrel had occurred because her engagement took place with a person at Bilasiya, whom she did not like. However, she stated that they had not beaten the deceased.
3. Though rule served, none has appeared for the respondent-
accused. Hence, the matter has been taken up with the Page 3 of 17 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri May 16 2025 Downloaded on : Sat May 17 11:04:37 IST 2025 NEUTRAL CITATION R/CR.A/52/2013 JUDGMENT DATED: 08/05/2025 undefined 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 Sessions Judge, Ahmedabad (Rural) in Sessions Case No.27 of 2010 is contrary to law and evidence on record of the case.
4.1 Learned APP has submitted that PW No.1-Rameshbhai Babubhai Jadav, Exh.10 is the complainant and has fully supported the case of the prosecution. However, the Sessions Judge has not appreciated the evidence by considering it as hearsay evidence.
4.2 Learned APP has submitted that PW No.2-Prabhatsinh Kalubhai Chahuhan, Exh.12 is the pancha of the panchnama of recovery of weapons. He has stated that the mudammal weapons i.e., dhoka and stick were recovered from the scene of the offence and that blood stains were found on them. However, the Sessions Judge has disbelieved this witness.
4.3 Learned APP submitted that PW No.7-Dr. Manishbhai Chimanlal Sutariya, Exh.23 is the medical officer who carried out the P.M. of the deceased. He has stated that Page 4 of 17 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri May 16 2025 Downloaded on : Sat May 17 11:04:37 IST 2025 NEUTRAL CITATION R/CR.A/52/2013 JUDGMENT DATED: 08/05/2025 undefined the deceased had 24 injuries on his body which were possible using the mudammal weapons. However, the Sessions Judge has disbelieved this witness.
4.4 Learned APP submitted that PW No.10-Shivabhai Aalabhai, Exh.30 and PW No.12-Pushpaben Merajbhai, Exh.32 are the eyewitnesses and they have fully supported the evidence of the complainant. However, the Sessions Judge has failed to appreciate the evidence of these witnesses.
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. Name of Witness PW No. Exh.No.
No.
1. Rameshbhai Babubhai Jadav 1 10
2. Prabhatsinh Kalubhai Chauhan 2 12
3. Chimanbhai Dhanjibhai Makwana 3 16
4. Sandip Rameshbhai Rathod 4 18
5. Dipikaben Ashokbhai Panchal 5 19
6. Sunilbhai Parmeshwarbhai Mochi 6 21
7. Dr. Manishbhai Chimanlala Satariya 7 23
8. Jayantibhai Dahyabhai Rathod 8 26
9. Madhukarbhai Motiram Savrekar 9 27
10. Shivabhai Alabhai 10 30
11. Girvatsinh Ratansinh Vaghela 11 31
12. Pushpaben Merajbhai 12 32
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NEUTRAL CITATION
R/CR.A/52/2013 JUDGMENT DATED: 08/05/2025
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13. Manjulaben Mahendrakumar 13 33
14. Manishbhai Ranjitbhai 14 34
15. Vinodray Jestaram Raval 15 35
16. Jaswantsinh Babaji Rana 16 46
5.1 The prosecution has brought on record the following documentary evidence:-
Sr. Particulars Exh.No.
No.
1. Complaint 11
2. Inquest Panchnama 17
3. P.M. Note 25
4. Panchanama of scene of offence 13
5. Panchanama of inquest and seizure of cloths of Nirmalaben 20
and Hetal
6. Panchanama of seizure of cloths of the deceased 22
7. FSL Report 44
8. FSL Serological Report 45
6. The prosecution has examined PW No.1-Rameshbhai
Babubhai Jadav vide Exh.10, who is the complainant. The complainant has stated that he got to know about the incident around 3:30 p.m. from Bhavu Marathi who is a resident of the locality when he got down at the HUDCO bus stand. However, it appears that he did not lodge any complaint at that time. Further, it appears that even after he went to the hospital and returned home, he did not go to file a complaint. Upon perusing the chargesheet at Page 6 of 17 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri May 16 2025 Downloaded on : Sat May 17 11:04:37 IST 2025 NEUTRAL CITATION R/CR.A/52/2013 JUDGMENT DATED: 08/05/2025 undefined Exh.36 it appears that the incident occurred on 14.09.2008 at 1 p.m. and that the complaint was filed at 1:30 a.m. at night i.e., after a delay of twelve and half hours which raises a doubt about the case of the prosecution. Moreover, Bhavu Marathe who informed the complainant about the incident has neither lodged a complaint nor been examined as a witness and hence, the statement of the complainant becomes hearsay. In any case, even as per the prosecution, the complainant is not an eyewitness to the incident.
6.1 Further, it appears from the deposition of the complainant that Shivabhai, Ambabhai, Pushpaben and Merajbhai were present at the time of the incident however the fact that none of the said persons intervened in between or even informed the police castes a doubt on the case of the prosecution.
6.2 The complainant has stated that the accused took the deceased to the hospital. Upon looking at the deposition, if the accused intended to kill the deceased, they would have likely absconded instead of taking the deceased to the hospital. Additionally, the complainant has not attributed any motive to the accused in his deposition.
Page 7 of 17 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri May 16 2025 Downloaded on : Sat May 17 11:04:37 IST 2025NEUTRAL CITATION R/CR.A/52/2013 JUDGMENT DATED: 08/05/2025 undefined 6.3 Upon perusing the complaint at Exh.11, it appears that Govindbhai had arranged the marriage of his daughter- Hetal in Bilasiya village which she did not approve but the same has not been mentioned in the deposition of the complainant and also, no person from Bilasiya village had been examined in order to establish the motive of the accused. Hence, the absence of any motive coupled with the fact that the accused took the deceased to the hospital for medical treatment weakens the case of the prosecution.
6.4 The complainant in his cross examination has also stated that he later on went to Govindbhai's house where there were other persons namely, Shivabhai, Ambabhai, Pushpaben and Merajbhai. It further appears that Shivabhai had stated that the deceased has been wrongly killed and suggested that a complaint should be filed. Thereafter, he returned home and since his phone was not working, he took the phone from another boy and informed the police about the incident. Hence, it appears that though all these persons gathered and Shivabhai suggested that a complaint should be filed, none of the said persons have filed a complaint until 1:30 a.m. which shows an unnatural conduct on the part of these persons Page 8 of 17 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri May 16 2025 Downloaded on : Sat May 17 11:04:37 IST 2025 NEUTRAL CITATION R/CR.A/52/2013 JUDGMENT DATED: 08/05/2025 undefined and further castes a doubt on the case of the prosecution.
6.5 Further, as per the deposition of the complaint, he made a call and informed the police that the deceased had been killed by his wife-Nirmalaben and daughter-Hetal. However, upon perusing the record at Exh.37 it appears that the deceased had been killed by his wife. Therefore, there is a material contradiction in this regard and it appears as if the complainant is falsely trying to implicate the daughter of the deceased and hence, both the accused should be entitled to benefit of doubt.
6.6 Also upon perusing the cross examination of the complainant, it appears that initially he has stated that in 1996 Pushpaben and Merajbhai have attacked the family of the deceased however, later on he has denied the same. Further he has also stated that earlier a complaint was filed by the deceased against Pushpaben and Merajbhai as a result of which, Merajbhai was externed for 2 years. However, he claims that he is not aware whether Pushpaben threatened Nirmalaben at that time. Further, it appears from the cross examination of the complainant that there were frequent quarrels between Pushpaben and Nirmalaben as Pushpaben used to sell liquor and the Page 9 of 17 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri May 16 2025 Downloaded on : Sat May 17 11:04:37 IST 2025 NEUTRAL CITATION R/CR.A/52/2013 JUDGMENT DATED: 08/05/2025 undefined persons coming there used to go to the house of Nirmalaben.
7. The prosecution has examined PW No.8-Jayantibhai Dahyabhai Rathod vide Exh.26, who is the elder brother of the complainant. He has not stated about Govindbhai arranging the marriage of his daughter-Hetal at Bilasiya village which further does not establish motive behind commission of the said offence. This witness also mentions about the presence of the elder daughter of the deceased- Unnati at the scene of incident. However, she has not been charged as an accused in this case but she becomes a key witness to establish the case of the prosecution and non examination of the said witness further castes a doubt on the case of the prosecution.
8. Further, Jayantibhai has stated in his deposition that upon repeatedly asking the wife of the deceased-Nirmalaben, the daughters of the deceased- Hetal and Unnati at the scene of incident regarding how the said injuries occurred they replied that the deceased fell down in the bathroom which caused the said injuries. This deposition further weakens the allegation of the prosecution that the accused persons had killed the deceased.
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9. The prosecution has examined PW No.12-Pushpaben Merajbhai at Exh.32 who has stated that at around 3 p.m. Nirmalaben, Hetal and Parth wrapped the deceased in a cloth and took him to the hospital in a rickshaw. Parth being the son, his presence at the residence is natural. Moreover, PW-12 ascertained his presence at the time when the deceased was taken to the hospital and therefore, he could have been a good witness still, prosecution thought it fit not to examine Parth as a witness which further raises a doubt on the case of the prosecution.
10. The prosecution has examined PW No.2-Prabhatsinh Kalubhai Chauhan at Exh.12 who is the pancha of the panchnama of scene of offence. He has deposed that the mudammal weapons were recovered in his presence and that blood was present on the said mudammal weapons. However, in his cross examination he has stated that the police called him to sign the panchnama and the said mudammal weapons were in the possession of the police. Therefore, he has not supported the case of the prosecution to establish the recovery of weapon.
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11. Further, prosecution has examined PW No.3-Chimanbhai Dhanjibhai Makwana at Exh.16, PW No.5-Dipikaben Ashokbhai Panchal at Exh.19 and PW No.6-Sunilkumar Parmeshwar Mochi at Exh.21 who are panchas that have turned hostile. Also, prosecution has examined PW No.9- Madhukarbhai Motiram Savrekar at Exh.27 who has turned hostile. The said witnesses have not at all supported the case of the prosecution and therefore the accused are entitled to benefit of doubt. Further, PW No.9- Madhukarbhai has stated that both the wife and daughter- Hetal of the deceased threatened to pour kerosene upon themselves whereas it is the case of the prosecution that only the daughter-Hetal had threatened to pour kerosene upon herself. This appears to be a material contradiction which further weakens the case of the prosecution.
12. The prosecution has examined PW No.4-Sandipbhai Rameshbhai Rathod at Exh.18 who is the pancha of the inquest panchnama. He has stated that although he had seen the body, he does not recall whether there were any injuries or marks on it. Hence, this witness has not provided any crucial evidence as such that supports the case of the prosecution.
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13. The prosecution has examined PW No.7-Dr. Manishbhai Chimanlal Sutariya at Exh.23 who is the doctor that conducted the P.M. of the deceased. He has stated that 24 injuries were seen on the body of the deceased and that the said injuries were possible using mudammal weapons. However, in his cross examination he has deposed that such injuries are possible even if the deceased fell down twice in the bathroom and hits his head against the wall and then against the floor. Thus, there is a possibility of the accused falling down in the bathroom and sustaining the said injuries and therefore the accused is entitled to benefit of doubt.
14. The prosecution has examined PW No.11-Girvatsinh Ratansinh Vaghela at Exh.31 who is the A.S.I. who registered the complaint and forwarded it for investigation. Hence, there is no significant evidence as such that supports the case of the prosecution.
15. The prosecution has examined PW No.13-Manjulaben Mahendrakumar at Exh.33 who is the police constable in presence of whom seizure of clothes of accused which were blood stained took place and inquest panchnama was prepared. However, the said witness has not been cross Page 13 of 17 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri May 16 2025 Downloaded on : Sat May 17 11:04:37 IST 2025 NEUTRAL CITATION R/CR.A/52/2013 JUDGMENT DATED: 08/05/2025 undefined examined and there is no other significant evidence which supports the case of the prosecution. Moreover, even as per the case of the prosecution, the deceased was taken to hospital by the accused persons themselves and hence, it is natural that blood stains would appear on the clothes of the accused.
16. The prosecution has examined PW No.14-Manishkumar Ranjitsinh at Exh.34 who is a police constable and has produced the clothes of the deceased at the police station after P.M. was conducted. However, the said witness has not been cross examined and there is no other significant evidence which supports the case of the prosecution.
17. The prosecution has examined PW No.15-Vinodrai Jaishtaram Raval at Exh.35 who is the Investigation Officer. He has stated that as sufficient evidence was found against the accused, a chargesheet was submitted through PW No.16-Jasvantsinh Babaji Rana. However, in his cross examination it appears that he has given answers to most of the questions as "I am not aware". This raises suspicion and suggests as if this witness is trying to conceal something. Moreover, this witness has not even deposed with regards to the panch witnesses who have Page 14 of 17 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri May 16 2025 Downloaded on : Sat May 17 11:04:37 IST 2025 NEUTRAL CITATION R/CR.A/52/2013 JUDGMENT DATED: 08/05/2025 undefined been declared hostile nor, the contents of such panchnama is proved through this witness.
18. The prosecution has examined PW No.16-Jasvantsinh Babaji Rana at Exh.46 who is the Investigation Officer and took over the Investigation of the case from PW No.15- Vinodrai Jaishtaram Raval and has merely submitted the chargesheet and no such evidence has been produced by this witness that goes against the case of the prosecution.
19. Upon perusing the documentary evidence it appears that Exh.45 is the FSL Serological Report, that number 'R' is the sample of blood of deceased and the blood group could not be ascertained. In such a case, it appears that the accused is entitled to benefit of doubt as it is the case of the prosecution that blood stains were found on the mudammal weapons (which belonged to 'O' blood group) and the blood group of the deceased being unascertained, there is no conclusive proof to establish that the blood stains on the mudammal weapons were that of the deceased.
20. Further, the blood stains on the clothes of the accused belong to 'B' blood group however, as the blood group of the deceased remains unascertained, there is no conclusive Page 15 of 17 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri May 16 2025 Downloaded on : Sat May 17 11:04:37 IST 2025 NEUTRAL CITATION R/CR.A/52/2013 JUDGMENT DATED: 08/05/2025 undefined proof to establish that the blood stains on the clothes of the accused were that of the deceased. Hence, the accused is entitled to benefit of doubt.
21. 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, teh 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 16 of 17 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri May 16 2025 Downloaded on : Sat May 17 11:04:37 IST 2025 NEUTRAL CITATION R/CR.A/52/2013 JUDGMENT DATED: 08/05/2025 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.
22. 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.
23. In view of the aforesaid discussion, the Court finds no reason to interfere with the impugned judgment and order of acquittal 13.10.2012 passed by Sessions Judge, Ahmedabad (Rural) in Sessions Case No.27 of 2010. 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) PARESH SOMPURA Page 17 of 17 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri May 16 2025 Downloaded on : Sat May 17 11:04:37 IST 2025