Gujarat High Court
State Of Gujarat vs Jayantibhai Shankarbhai Vaghari on 9 May, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/54/2013 JUDGMENT DATED: 09/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 54 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
JAYANTIBHAI SHANKARBHAI VAGHARI & ORS.
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Appearance:
MR LB DABHI, APP for the Appellant(s) No. 1
MR. MR BUKHARI(6919) for the Opponent(s)/Respondent(s) No. 1,3,4
UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 09/05/2025
ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal is preferred by the appellant-State under Section 378 of the Code of Criminal Procedure, 1973 against judgment and order of acquittal dated 16.10.2012 passed by Additional Sessions Judge, Bharuch in Sessions Case No.83 of 2011. By the impugned judgment and order, the Sessions Court acquitted the respondents-accused for offence under sections 307, 504, 506(2) read with Section 114 of the Indian Penal Code. Page 1 of 12 Uploaded by SHITOLE MANISH P.(HC00188) on Fri May 16 2025 Downloaded on : Sat May 17 11:25:41 IST 2025
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2. It is required to be noted that during pendency of the appeal, respondent No.2-Shankarbhai Karshanbhai Vaghari has expired. Therefore, the appeal, insofar as respondent-accused No.2 is concerned, stands abated.
3. The case pertains to an incident which occurred on 22.05.2010, wherein the complainant-Nagjibhai Ramabhai was sitting outside his house at 09;00 pm and his father was sleeping on cot. At that time, respondent-accused No.4-Dalsukhbhai Rameshbhai Vaghari came with axe in his hand and confronted father of the complainant why are you asking me to stop playing songs in mobile and delivered axe blow on the stomach. At that time, respondent-accused No.3-Keshavbhai Vajabhai Vaghari came with sickle, respondent-accused No.2-Shahkarbhai Karshanbhai Vaghari (deceased) came with knife and respondent-accused No.1- Jayantibhai Shankarbhai Vaghari came with axe and Keshavbhai gave sickle blow on left side of neck, due to which blood started flowing out. When accused No.2-Shankarbhai went to gave knife blow to the father of the complainant, he held the same with his hand, due to which his father received injuries on the palm and Jayantibhai Shankarbhai gave axe blow on the back side of the body and hurled abuses and told that today you are saved, henceforth we would kill you.
4. Learned Advocate for the respondents-accused has filed Page 2 of 12 Uploaded by SHITOLE MANISH P.(HC00188) on Fri May 16 2025 Downloaded on : Sat May 17 11:25:41 IST 2025 NEUTRAL CITATION R/CR.A/54/2013 JUDGMENT DATED: 09/05/2025 undefined sick note. The appeal being that of the year 2013, is taken up for final hearing with the assistance of learned APP.
5. Learned Additional Public Prosecutor for the appellant- State submitted that it is a case where the complainant himself is an injured eyewitness and has attributed clear cut role to each of the accused persons. It is submitted that presence of the injured eyewitness at the place of offence was natural and therefore, highest evidentiary value is required to be given to his version. 5.1 It is submitted that medical evidence, coupled with oral evidence of the Medical Officer clearly corroborates the version of the complainant. The Medical Officer has clearly deposed that the injuries sustained could be caused by the muddmal weapons and are sufficient to cause death.
5.2 It is submitted that in the present case, muddamal weapons were recovered at the instance of the respondents- accused under a panchnama and therefore, it is a clinching evidence to involve the respondents-accused in commission of offence.
5.3 It is submitted that PW No.1-Yunusbhai Ismailbhai Chokiwala, Exh.9, PW No.2-Dr.Anilkumar Bhagvatprasad, Exh.12, PW No.9-Nagjibhai Ramabhai Vaghari, Exh.34, PW No.10-Raiben Ramabhai Vaghari, Exj.37, PW No.11-Naginbhai Ramabhai Page 3 of 12 Uploaded by SHITOLE MANISH P.(HC00188) on Fri May 16 2025 Downloaded on : Sat May 17 11:25:41 IST 2025 NEUTRAL CITATION R/CR.A/54/2013 JUDGMENT DATED: 09/05/2025 undefined Vaghari, Exh.39, PW No.12-Bhagwanbhai Mohanbhai, Exh.40, PW No.13-Kokilaben Naginbhai Vaghari, Exh.42 and PW No.14- Chandubha Manubhai Dodiya, Exh.43 have supported the case of prosecution. Still, however, the Sessions Court has not properly appreciated their evidence.
5.4 It is submitted that looking to gravity and seriousness of offence, evidence of single witness was sufficient to convict the respondents-accused. In the instant case, the prosecution has examined number of witnesses to prove the case, still, however, the Sessions Court has not properly appreciated their evidence.
6. Having heard learned APP for the appellant-State and having perused documents on record, it appears that to prove the case against the respondents-accused, the prosecution relied upon following oral evidence:-
Sr. Name of the witness Exh.
No. No.
1 Deposition of PW No.9-Nagjibhai Ramabhai 34
Vaghari-complainant
2 Deposition of PW No.10-Raiben Ramabhai Vaghari 37
3 Deposition of PW No.11-Naginbhai Ramabhai 39
Vaghari
4 Deposition of PW No.13-Kokilaben Naginbhai 42
Vaghari
5 Deposition of PW No.3-Gulabkha Fazalkha Pathan 20
6 Deposition of PW No.5-Dinesbhai Natvarbhai 29
Gaganvanshi
7 Deposition of PW No.4-Gulambhai Ahemadbhai 25
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NEUTRAL CITATION
R/CR.A/54/2013 JUDGMENT DATED: 09/05/2025
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Malek
8 Deposition of PW No.8-Yusufbhai Murtaza Gori 33
9 Deposition of PW No.6-Dineshbhai Ambalal 30
Patanvadiya
10 Deposition of PW No.7-Arvindbhai Shivabhai 32
Patanvadiya
11 Deposition of PW No.2-Dr.Anilkumar 12
Bhagvatprasad
12 Deposition of PW No.1-Yunusbhhai Ismailbhai 9
Chokiwala
13 Deposition of PW No.12-Bhagwanbhai Mohanbhai 40
14 Deposition of PW No.14-Chandubha Manubha 43
Dodiya
6.1 The prosecution also relied upon mainly following
documentary evidence:-
Sr. Particular Exh.
No. No.
1 Injury certificate of injured persons 13
2 Panchnama of recovery of cloths 21
3 Inquest Panchnama of accused-Dalsukhbhai and 24
panchnama of recovery of weapons
4 Inquest Panchnama of accused-Shankarbhai and 26
Jayantibhai and panchnama of recovery of weapons 5 Inquest Panchnama of accused-Keshavbhai and 27 panchnama of recovery of weapons 6 Panchnama of recovery of muddamal weapons and 28 cloths from accused-Dalsukhbhai 7 Panchnama of scene of offence 31 8 Complaint 35 9 Death certificate of injured Ramabhai 38 10 FSL report 44 11 Station diary of Jambusar Police Station of the date of 41 offence Page 5 of 12 Uploaded by SHITOLE MANISH P.(HC00188) on Fri May 16 2025 Downloaded on : Sat May 17 11:25:41 IST 2025 NEUTRAL CITATION R/CR.A/54/2013 JUDGMENT DATED: 09/05/2025 undefined 12 Report of investigation of forensic science 44 13 FSL serological report 47
7. PW No.9-Nagjibhai Ramabhai Vaghari, Exh.34 is the the complainant and injured eyewitness. In his deposition, he has stated he was sitting outside his house at 09;00 pm and his father was sleeping on cot. At that time, respondent-accused No.4- Dalsukhbhai Rameshbhai Vaghari came with axe in his hand and told father of the complainant why are you asking me to stop playing songs in mobile and gave axe blow on the stomach. At that time, respondent-accused No.3-Keshavbhai Vajabhai Vaghari came with sickle, respondent-accused No.2-Shahkarbhai Karshanbhai Vaghari (deceased) came with knife and respondent-accused No.1- Jayantibhai Shankarbhai Vaghari came with axe and Keshavbhai gave sickle blow on left side of neck, due to which blood started flowing out. When Shankarbhai went to give knife blow to the father of the complainant, he held the same with his hand, due to which his father received injuries on the palm and Jayantibhai Shankarbhai gave axe blow on the back side of the body and hurled abuses and told that today you are saved, henceforth we would kill you. However, in his cross-examination, he has stated that he and his mother were inside the house and other persons were sleeping on cots; that before the incident, there was quarrel for about 10 minutes with accused No.4-Dalsukh, however, there was no Page 6 of 12 Uploaded by SHITOLE MANISH P.(HC00188) on Fri May 16 2025 Downloaded on : Sat May 17 11:25:41 IST 2025 NEUTRAL CITATION R/CR.A/54/2013 JUDGMENT DATED: 09/05/2025 undefined shouting. At that time, persons who were present nearby, gathered and after his father was given axe blow, he came out of his house; that he did not snatch away the weapon, but other persons had snatched away the weapon. At that time, around 7 persons were present and PW No.11-Naginbhai Ramabhai (brother of the complainant) snatched away the axe and gave it to police on next day. He has also deposed that injuries were received by sickle, knife and axe and all these weapons were snatched away by Naginbhai and at that time, all weapons were having blood stains. However, Naginbhai cleaned all the weapons by cloths and handed it over to the police. This witness has presented an exaggerated version and tried to involve as many names in the offence. So there is total contradiction and a story is sought to be created by the complainant, who does not even appear to be an eyewitness.
8. Moreover, the complainant has deposed that there were around 7 persons present at the time of incident. However, none of these persons are examined by the prosecution.
9. PW No.10-Raiben Ramabhai Vaghari, Exh.37 is the mother of the complainant. In her deposition, she has clearly stated that at the time of incident, he and his complainant-son were inside the house. So version of the complainant that he was present and was an eyewitness appears to be doubtful. Moreover, there is also contradiction in the injuries received. The Page 7 of 12 Uploaded by SHITOLE MANISH P.(HC00188) on Fri May 16 2025 Downloaded on : Sat May 17 11:25:41 IST 2025 NEUTRAL CITATION R/CR.A/54/2013 JUDGMENT DATED: 09/05/2025 undefined complainant has stated that injuries were received on the left side of neck, whereas this witness has stated that the injuries were received on the shoulder. The complainant has stated that axe blow was received on the back side, whereas this witness has stated that axe blow was received on the right side of stomach. Therefore, it appears to the Court that there is material contradiction in the versions of these two witnesses.
10. PW No.11-Naginbhai Ramabhai Vaghari, Exh.39 is the brother of the complainant. He has deposed that at the time of incident, he, his mother and his brother-complainant were inside the house and his father was sleeping outside the house on a cot. Thus, it becomes doubtful whether either of three, viz. the witness himself, his mother or his brother-complainant were eyewitnesses to the incident. Moreover, this witness has stated that at the time when he handed over muddamal weapons, i.e. axe and sickle to the police, no panchas were present and that the muddamal weapons were recovered by him from the house of accused No.4-Dalsukh. So, the story of the complainant that this witness snatched away the weapons from accused persons at the time of incident becomes doubtful.
11. PW No.13-Kokilaben Naginbhai Vaghari, Exh.42 is the sister-in-law of the complainant. She has stated that at the time of incident, she was cooking in the house; that at that time, her Page 8 of 12 Uploaded by SHITOLE MANISH P.(HC00188) on Fri May 16 2025 Downloaded on : Sat May 17 11:25:41 IST 2025 NEUTRAL CITATION R/CR.A/54/2013 JUDGMENT DATED: 09/05/2025 undefined mother-in-law and brother-in-law (complainant) were outside the house sitting on 'otta'. At that time, upon hearing shouts, she came out of the house and saw that accused No.4-Dalsukh was having axe in his hand and was giving blows to her father-in-law on the stomach, accused No.1-Jayanti Shankar was having axe in his hand and gave axe blow on the stomach of her father-in-law, accused No.3-Keshu Vaja was having stick in his hand and gave blow on the neck and accused No.2-Shankarbhai Karshanbhai was having knife in his hand and gave blow on the palm of her father-in-law. Thus, from the version of this witness, new weapon, i.e. stick is coming out. However, when she was shown muddamal weapons, she has attributed sickle to accused No.3-Keshu Vaja. So comparing version of this witness to the versions of other witnesses, she does not appear to be eyewitness to the incident and there are material contradictions in her version.
12. PW No.2-Dr.Anilkumar Bhagvatprasad, Exh.12 was the Medical Officer at Jambusar Primary Health Centre. At that time, injured Ramabhai Jethabhai Vaghari was brought to him. In the history, injured had stated that he received axe and sickle blows at around 09;00 pm. However, before the Doctor, the injured has not stated names of any accused persons. After initial treatment, the injured was referred to Sayaji Hospital, Vadodara. However, the prosecution has not examined any Medical Officer/ Doctor from Page 9 of 12 Uploaded by SHITOLE MANISH P.(HC00188) on Fri May 16 2025 Downloaded on : Sat May 17 11:25:41 IST 2025 NEUTRAL CITATION R/CR.A/54/2013 JUDGMENT DATED: 09/05/2025 undefined Sayaji Hospital.
13. It also appears that during the course of investigation, blood sample of the injured was not sent for testing. The blood found on the muddamal weapons and on the cloths of accused was "B" group. So it cannot be certainly stated that the injured was having blood of "B" group.
14. There is also a doubt about recovery of muddamal weapons. The complainant has stated that his brother-Naginbhai had snatched away muddamal weapons from accused persons, whereas recovery muddamal weapons is at the instance of all accused persons. It is also coming out from the deposition of IO that on 23.05.2010, respondent-accused No.3-Keshavbhai wanted to produce something before the IO. Therefore, the IO called panchas and recovered sickle fitted in the iron pipe and drawn panchnama Exh.27. On the same day, respondent-accused No.2- Shankarbhai and respondent-accused No.1-Jayantibhai wanted to produce something before the IO and therefore, IO called panchas and recovered knife and axe respectively from the said accused persons by executing panchnama Exh.26. Similarly, on 24.05.2010, respondent-accused No.4-Dalsukhbhai wanted to produce something before the IO and therefore, IO called panchas and recovered axe from behind one house near pond in Magnad village by executing panchnama Exh.28. Therefore, recovery of muddamal Page 10 of 12 Uploaded by SHITOLE MANISH P.(HC00188) on Fri May 16 2025 Downloaded on : Sat May 17 11:25:41 IST 2025 NEUTRAL CITATION R/CR.A/54/2013 JUDGMENT DATED: 09/05/2025 undefined weapons also under cloud.
15. Moreover, panchas of recovery panchnamas Exhs.26, 27 and 28 as aforesaid have stated that they have only signed on the panchnama and other than that they know nothing. Therefore, they are declared hostile.
16. In view of the aforesaid evidence coming on record, the Court is of the view that the prosecution has failed to establish the case against the respondent-accused beyond reasonable doubt. The Court may also draw strength from the decision of the Apex Court in 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 overturned 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 Page 11 of 12 Uploaded by SHITOLE MANISH P.(HC00188) on Fri May 16 2025 Downloaded on : Sat May 17 11:25:41 IST 2025 NEUTRAL CITATION R/CR.A/54/2013 JUDGMENT DATED: 09/05/2025 undefined under the fundamental principle of criminal jurisprudence, and thereafter, upon securing of acquittal, the presumption is further reinforced, reaffirmed and strengthened, and therefore, whenever there are two reasonable conclusions are possible on the basis of the evidence on record, ordinarily, the Apex Court would not disturb the findings of acquittal recorded by the Trial court.
17. The Court has also perused judgment and order of the Sessions Court and finds that cogent and convincing reasons are assigned by the Sessions Court while acquitting the respondents- accused.
18. In view of the aforesaid discussion, the Court finds no reason to interfere with the impugned judgment and order of acquittal. The appeal is therefore dismissed. Bail bond stands discharged. Records and Proceedings be sent back to the concerned Sessions Court.
Sd/-
(A.Y. KOGJE, J) Sd/-
(SAMIR J. DAVE,J) SHITOLE Page 12 of 12 Uploaded by SHITOLE MANISH P.(HC00188) on Fri May 16 2025 Downloaded on : Sat May 17 11:25:41 IST 2025