Gujarat High Court
State Of Gujarat vs 4Himanbhai Becharbhai Parmar on 12 May, 2025
NEUTRAL CITATION
R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 81 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
HIMANBHAI BECHARBHAI PARMAR & ORS.
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Appearance:
MR. L.B. DABHI ADDL. PUBLIC PROSECUTOR for the Appellant(s)
No. 1
MR EKANT G AHUJA(5323) for the Opponent(s)/Respondent(s) No.
1,2,3
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 12/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
1. This appeal is filed at the instance of the State under Section 378 of the Code of Criminal Procedure challenging the judgment and order dated 30.11.1998 passed by the learned Additional Sessions Judge, Vadodara in Sessions Case No.10 of 1996. By the said impugned judgment and order, the learned Sessions Judge has recorded the acquittal of present Page 1 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025 NEUTRAL CITATION R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025 undefined respondents - original accused for the offences punishable under Sections 326, 323, 504, 506(2) read with Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act.
2. In nutshell, the facts giving rise to the present appeal are as under:
2.1. The complainant -Bharatsinh Gopalsinh on 20.08.1995 had lodged a complaint with Bhadarva Police Station stating that the land bearing revenue survey no.156/4 was ploughed by complainant mother- Chandaben. The dispute with regard to aforesaid parcel of land was going on, whereby, the suit initiated was pending consideration before the competent Civil Court. On the date of incident, it is alleged that one Daulatsinh Galabsinh armed with Dhariya arrived on his tractor and started quarrel with complainant raising dispute with regard to pending cases. It is alleged that he insisted to plough field till the decision is given by the competent Court.
It is further alleged that along with Daulatsinh Galabsinh and other persons had also been accompanied him who were armed with Dhariya, which resulted into fight with the complainant whereby, he was slapped. It is further alleged that the respondent no.3 Suresh Jasvantbhai Chavda assaulted the complainant with a stick blow and when Rangitbhai came to save him, Daulatsinh inflicted Dhariya blow on his head. It is further alleged that the respondent no.2- Kanubhai Khodabhai Chavada had assaulted witness Kamlaben with the help of Sickle on her hand. By inflicting the aforesaid injuries, the accused have threatened the Page 2 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025 NEUTRAL CITATION R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025 undefined injured for life and with the aid of each other had abetted in the commission of offence punishable under Sections 326, 323, 504, 506(2) read with Section 114 of the Indian Penal Code. Noticing the aforesaid allegation of the complainant, an FIR vide CR-I- No.70 of 1995 came to be registered against the present respondents - original accused for the aforesaid offences as well as for breach of the Notification issued by the authority under Section 135 of the Bombay Police Act.
2.2. Upon registration of the FIR, the investigating officer had proceeded with the investigation, whereby, the statement of the complainant as well as injured witness were recorded. The panchnama of the place of the offence was drawn. The respondents accused were arrested. The discovery of the weapon used in the commission of alleged offence were recovered from accused. The injury certificates of the injured witnesses were also collected by the investigating officer. At the end of the investigation, the charge-sheet came to be filed again the respondents before the Court of learned Judicial Magistrate, First Class, Vadodara.
2.3. The learned Magistrate had committed the case to the Court of learned Sessions Judge at Vadodara, which was registered as Sessions Case No.10 of 1996. The learned Additional Sessions Judge, Vadodara noticing the charge- sheet papers proceeded to frame the charge against the respondents- original accused at Exh.1 for the offences punishable under Sections 326, 323, 504, 506(2) read with Section 114 of the Indian Penal Code as well as Section 135 of the Bombay Police Act. The respondents accused were Page 3 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025 NEUTRAL CITATION R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025 undefined produced before the learned Sessions Judge who have pleaded not guilty. Noticing the aforesaid plea of the respondents accused, learned Sessions Judge has proceed for trial. On behalf of the prosecution, seven witnesses were examined and various documentary evidence were led. The details of which are reproduced in the tabular form as under:
Oral Evidence:
PW No. Exh. Particulars
1. 14 Bharatkumar Gopalsinh Mehra
2. 17 Rangitbhai Shankarbhai Chavada
3. 20 Rupen Ashvinbhai Mehta
4. 23 Shabarsinh Bhupatsinh Vaghela
5. 24 Chatrasinh Shanabhai Raolji
6 26 Pravinsinh Ranjitsinh Raolji
7 28 Janaksinh Jayvantsinh
Documentary Evidence:
Sr.No. Exh. Particulars
1. 15 Original complaint.
2 8 Panchnama of place of offence.
3 17 Panchnama of recovery of weapon
alleged to have been used in commission
of offence.
4 9 Injury certificate sought for by the
Investigating Officer.
5 21 Original Medical Certificate issued by the
hospital.
On behalf of the respondents, following documentary Page 4 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025 NEUTRAL CITATION R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025 undefined evidence were led:
Sr.No. Exh. Particulars
1. 11 Copy of injunction order passed by the
competent Court in Regular Civil Suit
NO.1956 of 1994.
2. 12 Copy of judgment and order passed by
the Appellate Court in Civil Misc.
Appeal No.109 of 1995.
3. 13 Copy of injunction order passed by the
competent Court in Regular Civil Suit
No.1449 of 1995
4 15/1 Copy of 7/12 extract of the disputed
land bearing revenue survey no.156/4.
2.4. The further statement of the respondents- original accused were recorded under Section 313 of the Code of Criminal Procedure, whereby, the respondents have mainly denied the case put forward by the prosecution by submitting that a false complaint has been made against them. The written arguments were tendered by the respective parties.
Findings of the trial Court:
2.5. The learned Judge upon noticing the injuries sustained by the complainant as well as of injured witnesses in light of the medical certificate (Exh.11) produced on record and upon appreciation of the evidence of the Dr. Rupen Mehta (Exh.20), noticed that the injuries sustained on head by witness Rangitbhai Chavda is a simple injuriy. The learned Judge has taken into consideration the evidence of the Page 5 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025 NEUTRAL CITATION R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025 undefined complainant Bharatbhai at Exh.14 as well as the evidence of injured witness Rangitbhai at Exh. 17, in light of the documentary evidence, more particularly the injury certificate produced on record at exhibit 21. As against the evidence of the Medical Officer Dr. Rupen Mehta at Exhibit 20, there was no active bleeding found when the injured witness Rangitbhai was medically examined. The Medical Officer has admitted that he had described the use of weapon Dhariya at the instance of the injured witness. He has further denied of having taken x-ray of the injured witness. By noticing the aforesaid evidence, learned judge has taken into consideration the definition of the term grevious injury as defined under Section 325 of IPC and has arrived at a conclusion that the injury sustained by witness Rangitbhai is not a grievous injury and therefore, has held that prosecution has failed to prove that Rangitbhai has sustained grievous injury so as to attract offense punishable under Section 326 of IPC. The learned judge has also taken into consideration the major contradictions noticed in the evidence of the complainant Bharatbhai at Exhibit 14, who in his deposition before the Court for the first time has projected the case of the prosecution about being assaulted by the accused and Rangitbhai having intervened, sustained injury. The learned Judge has also noticed the contradictory version about the injuries sustained by two other injured witnesses namely Shankarbhai and Kamalaben as against what has been stated in the original complaint. Noticing the aforesaid contradictions, the learned judge has found the said witness not credible and has arrived at a conclusion that prosecution has failed to establish that Kamalaben was injured by accused Page 6 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025 NEUTRAL CITATION R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025 undefined Kanubhai. The learned Judge while appreciating the evidence of injured witness Rangitbhai at Exhibit 17 had noticed that Daulatsinh had directed Dhariya to assault Bharatbhai and when the said witness tried to intervene, Daulatsinh had assaulted him with Dhariya on his head. The said witness in his deposition has further stated that in that moment of quarrel, the Tavor carried by Rangitbhai had accidentally hit Daulatsinh. Taking note of the aforesaid version of occurrence of incident at the instance of injured witness Rangitbhai, the Court has noticed that the said Rangitbhai in his statement before the police has not mentioned that he was hit by blunt part of Dhariya. On overall appreciation of the aforesaid evidences, the Court has arrived at a conclusion that it was a case of free-fight where both the parties have been injured.
Apart from the aforesaid evidence, the learned Judge has also taken into consideration the evidence of panch witness- Sabbarsinh Bhupatsinh at Exhibit 23 and Chhatrasinh Chanabhai at Exhibit 24, who have not supported the case of the prosecution. The learned Judge has theerfore, arrived at a conclusion that the prosecution has failed to prove the recovery of weapons Dhariya, Stick and Sickle at the instance of the respondents accused. The Court has observed that the panchnama (Exh.27) has not been proved as per the provisions of Section 27 of the Evidence Act. The learned Judge has also taken into consideration the evidence of the investigating officer Pravinsinh Raolji at Exhibit 26 as well as the evidence of Janaksinh Jaswantsinh at Exhibit 28- the Police Sub Inspector, who had submitted the charge sheet. Upon appreciation of their evidence, learned Judge has found lapse on part of the Investigating Officer for not drawing the Page 7 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025 NEUTRAL CITATION R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025 undefined panchnama of physical state of the injured witness Rangitbhai before sending him for medical examination. The learned Judge has also taken note of the fact that the investigating officer has not recovered the clothes of Rangitbhai. The learned Judge has further taken note of the fact that no evidence has been given by witness Bharatbhai as well as injured witness Rangitbhai about the assault done by accused Kanubhai using sickle to injured witness Kamalaben. With these observations, the learned Judge has arrived at a conclusion that the prosecution has failed to prove the motive of Daulatsinh who was projected as the principal accused and being not arraigned as an accused in the FIR for causing grievous injuries with the use of sharp weapon. Even otherwise the prosecution has failed to prove the fact that the accused have arrived at the place of offence armed with weapons or have used abusive language causing threat to their life. The learned Judge has also taken note of the fact that the prosecution has not produced any notification and has therefore acquitted the respondents- original accused from the offence alleged under Sections 323, 326,504, 506(2) read with Section 114 of IPC as well as Section 135 of the Bombay Police Act. Hence, the present appeal at the instance of the appellant State.
3. The present appeal was admitted by this Court vide order dated 18th August 1995, whereby bailable warrant was directed to be issued against the respondents original accused. The record and proceedings of the sessions case was called for. The bailable warrant has been duly executed upon the respondents accused. Mr. Ekant Ahuja, learned advocate Page 8 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025 NEUTRAL CITATION R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025 undefined has appeared on behalf of the respondent - original accused.
4. Learned Additional Public Prosecutor Mr. Dabhi for the appellant State has assailed the impugned judgment and order of acquittal passed by the learned Sessions Judge by submitting that the learned Judge has failed to evaluate the evidence of the complainant as well as injured witness at Exhs. 14 & 17 in its right perspective. He has invited our attention to examination in chief of the complainant as well as inujured witness - Rangitbhai, whereby, they have identified the accused and even the weapons used in commission of alleged offence. According to him, the injured witness Rangitbhai has fully supported the case of the prosecution. The learned Judge ought to have given due weightage to his evidence. As regards the contradictions noticed by the learned Judge in their evidence, learned Additional Public Prosecutor has submitted that merely because the said injured witness Rangitbhai has pointed out that in the moment of quarrel the tavor carried by him had accidentally hit Daulatsinh, the learned Judge ought not to have presumed the facts contrary to the case of prosecution by observing that it was a case of free-fight and there was no intention on part of the principal accused Daulatsinh to assault and cause grievous injuries to the witness Rangitbhai. Learned Additional Public Prosecutor has further submitted that in fact, the close reading of cross examination of the witness clearly goes to suggest that the question was led that blunt part of Dhariya was inflicted. According to him, this clearly goes to suggest that Dhariya blow was inflicted on the head of the witness. The reliance was also placed on the evidence of the medical officer who in Page 9 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025 NEUTRAL CITATION R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025 undefined his evidence has clearly opined that the injuries sustained by witness Rangitbhai was possible due to use of weapon like Dhariya. While referring to the aforesaid evidence, learned Additional Public Prosecutor has submitted that in disputed looking to the medical certificate produced on record at Exhibit 21 along with the aforesaid evidence clearly suggest that the witness Rangitbhai had sustained grievous injury and the assault was made by the principal accused Daulatsinh with the use of sharp weapon like Dhariya on the vital part of the body, which is head. With all these factors being proved and established, the learned Judge ought to have convicted the respondents accused for the offences punishable under Section 326 and 323 of the IPC read with Section 114 of the IPC. As regards the non production of the notification as well as the absence of evidence with regard to the use of abusive language threatening for life is concerned, learned Additional Public Prosecutor was unable to point out any material being brought on record in this regard. By making aforesaid submissions learned Additional Public Prosecutor had urged this Court to allow the appeal to the aforesaid extent.
5. Mr. Ekant Ahuja learned advocate appearing for the respondents original accused has submitted that no error or any perversity has been pointed out by the learned Additional Public Prosecutor in the impugned judgment and order of the acquittal, which calls for any interference of this Court in appeal. As regards the submissions made by learned Additional Public Prosecutor, learned advocate submitted that the State want this Court to assume the facts not in evidence the occurrence of incident in a manner which cannot be Page 10 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025 NEUTRAL CITATION R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025 undefined termed as free-fight, as held by the learned Judge, at the appeal stage, would amount to taking a second view which is beyond the scope of the appeal under Section 378 of the Code of Criminal Procedure. He has further invited our attention to the fact that the principal accused- Daulatsinh who has been attributed the role of hitting Dhairya blow on the head of injured witness Rangitbhai is concerned, has not been arraigned as an accused for the reason that he had succumbed to the injuries caused by the injured witness Rangitbhai whereby separate criminal case was registered against said Shankarbhai- father of injured witness Rangitbhai and others. He has further invited our attention to the role attributed to the present respondents - original accused, which is only to the extent of abatement. He has further submitted that the prosecution has miserably failed to prove the case of assault at the instance of the respondent no.2 Kanubhai caused to the witness Kamlaben. While referring to the findings and reasons assigned by the learned Judge, learned advocate has submitted that the same are passed on the proper evaluation and on appreciation of evidence on record and in absence of any perversity being noticed, this Court may not interfere with the order of acquittal. He has therefore, urged this Court to dismiss the present appeal.
6. Having heard the learned advocates for the respective parties and having perused the impugned judgment and order of acquittal and having re-appreciated the evidence brought on record, in light of the submissions made by the learned advocates for the respective parties, we noticed that the principal accused Daulatsinh has not been arraigned as Page 11 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025 NEUTRAL CITATION R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025 undefined accused in the complaint lodged by complainant Bharatsinh Gopalsinh as what we can gather from the findings and reasons assigned by the learned Judge. As rightly pointed out by the learned advocate for the respondents - original accused the said principal accused Daulatsinh has succumbed to the injuries caused by the weapon tavor which was carried by the injured witness Rangitbhai. Even on perusal of the charge framed, as against the original accused no. 1 of having slapped the complainant Bharatsinh Gopalsinh, whereas the accused Daultasinh was alleged to have given Dhariya blow on the head of witness Rangitbhai. The accused no.3 was attributed the role of causing injuries on the left hand of the complainant with the stick and the accused no.2 was attributed the role of causing injuries on the hand of the witness Kamlaben with the use of weapon sickle. The charge was also framed with regard to provoking breach by causing intentional insult as well as by giving criminal intimidation by giving threat to cause harm to the complainant as well as witnesses. On bare perusal of the aforesaid charge, it is apparent that the principal accused having expired, the present respondents - original accused are prosecuted for the alleged offence punishable under Section 326 and 323 of the Indian Penal Code with the aid of Section 114 of the Indian Penal Code. Upon bare reading of the provisions of Section 114 of the Indian Penal Code, the offence of abatement, would only be attracted where an abettor encourages or assist in the commission of a crime and is present when the offence is committed, then in such case, the provision implicates the said abettor to have committed such offence. Thus, Section 114 of the IPC permits the Court to presume the existence of Page 12 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025 NEUTRAL CITATION R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025 undefined certain facts. Upon re-appreciation of the evidence of original complainant at Exh.14 and of the injured witness at Exh.17, it has transpired on record that the present respondents - original accused have entered into the field after noticing the initial arguments with regard to possession of the field which had taken place between the complainant and the principal accused - Daulatsinh. The specific allegation which is made against the respondents- accused - Chimanbhai Becharbhai is that he had entered into field by claiming that who would stopped him from taking possession of the field and if does, may be killed. At that stage, the other co-accused Kanubhai Khodabhai and Sureshbhai Jaswantbhai had joined, who were armed with weapons like sickle and stick. In the cross examination of the complainant, though he has denied about making false allegations against the respondent accused being armed with the respective weapons, however the prosecution has miserably failed to prove their case with regard to the weapons attributed to the respective accused and the recovery of such weapons at the instance of the respective respondents. As rightly held by the learned Judge, the prosecution has not proved the recovery of weapons in terms of Section 27 of the Evidence Act. It is an admitted position that the panch witnesses have not supported the case of the prosecution. We have closely re-appreciated the evidence of the witness Rangitbhai at Exh.17, wherein he has categorically deposed before the Court that in the process of quarrel, when he had approached near the Daulatsinh to intervene, the weapon tovar carried by him had accidentally hit Dhaulatsinh and thereafter the blow of Dhariya was given by the Daulatsinh. For the first time before the Court, he has Page 13 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025 NEUTRAL CITATION R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025 undefined deposed that the blunt part of the Dhariya had hit him. The said witness has not given any evidence about involvement or role of the present respondents original accused in the commission of alleged offence. He has merely attributed the weapons to the respective accused. On close appreciation of the accused and cross examination of the aforesaid witness, goes to suggest that it was a case of free fight, whereby, the principal accused Dhaulatsinh had approached field to plough with the help of the tractor. The parties were in dispute with regard to the possession of the said field. Looking to the cross examination of the said witness, the view taken by learned Judge about the occurrence of free-fight and in the process, witnesses of both the parties being injured, is a plausible view, which cannot be ruled out, more particularly, looking to the past dispute with regard to the field. Even otherwise, looking to the injuries certificate produced on record at Exh.21, the prosecution has failed to prove their case that the principal accused had voluntarily caused grievous hurt by means of Dhariya. In fact, on close reading of the evidence of the injured witness, it clearly suggests that the principal accused Dhaulatsinh did not intended to hit Dhariya blow upon the injured witness Rangitbhai and it does not fall in the category of offence of voluntarily causing hurt or grievous hurt. In absence of any perversity or any error being noticed in the approach of the trial Court in evaluation of the evidence and and the acquittal of the respondents- the original accused, we are not inclined to interfere with the impugned order of acquittal.
7. For the foregoing reasons, the present appeal fails and is Page 14 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025 NEUTRAL CITATION R/CR.A/81/1999 JUDGMENT DATED: 12/05/2025 undefined hereby dismissed. Bail bonds stands cancelled. Registry is directed to send back the record and proceedings of the case to the concerned Court forthwith.
sd/-
(NISHA M. THAKORE,J) sd/-
(MAULIK J.SHELAT,J) RATHOD KAUSHIKSINH Page 15 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed May 21 2025 Downloaded on : Sat May 24 08:08:28 IST 2025