Gujarat High Court
State Of Gujarat vs Aher Devdan Sadur on 7 November, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/1209/2004 JUDGMENT DATED: 07/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1209 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
AHER DEVDAN SADUR & ORS.
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Appearance:
MR RONAK RAVAL APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 07/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 05.02.2004 passed by the learned Additional Sessions Judge, 6th Fast Track Court, Porbandar in Sessions Case No. 57 of 1995 for the offences punishable under Section 147, 148, 149, 307, 34 of Indian Penal Code read with Section 135 of Bombay Police Act, the appellant - State has preferred the present appeal under Section 378 of Page 1 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:34:12 IST 2025 NEUTRAL CITATION R/CR.A/1209/2004 JUDGMENT DATED: 07/11/2025 undefined the Code of Criminal Procedure, 1973 ("the Code" for short).
2. The brief facts leading to the filing of the present appeal are as under:
2.1. That the complainant-Mr.Polabhai Karsanbhai Kutiana had lodged an F.I.R. with B Division Police Station, which was registered at Zero Number by Porbandar Police Station and transferred to Kutiyana Police Station and accordingly the Kutiyana Police Station has registered the offence being CR-80/95. The complainant alleged inter alia that he was proceeding towards Vadasvada for the purpose of doing welding works of the pipeline with his labourer Karsan Duda. At that time, near about forest nursery, the accused persons, Devdan Sardul, Devayat Sardu, Naran Sardul, Karsan Vasan, Naran Parbat and Naran Kara having armed with lethal weapons like iron pipes, axe and sticks apprehended them and stated to the complainant that "you are very arrogant, you wanted to take revenge of your brother, then prepare yourself." While saying so, all the six persons started giving blows of lethal weapons to the complainant.
Accused person Naran Kara and Naran Sardul had given pipe blows over head and on the right hand to the complainant and as a result of which, the complainant fell down on the ground. At that time, the. Co-accused Karsan Vasan have given axe blows over head of the complainant and thereafter, the other accused persons were also giving blows to the complaint. The witness Karsan Duda, who was accompanying the complainant, intervened in between. Hence, the accused person Naran Karsan had given iron pipe blow to Karsan Duda and as a result of which he was also injured. Thereafter, the accused persons ran away from the scene and the complainant was admitted in the Kutiyana Hospital and thereafter transferred to the Civil Hospital at Porbandar.
Page 2 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:34:12 IST 2025NEUTRAL CITATION R/CR.A/1209/2004 JUDGMENT DATED: 07/11/2025 undefined 2.2. The FIR was lodged at Kutiyana Police Station. After investigation, chargesheet was filed before the learned JMFC, Court. However, as the said Court lacks jurisdiction to try offence under Section 307 IPC, the case was committed to the Sessions Court and it was registered as Sessions Case No.57 of 1995 for trial. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent- accused so as to obtain explanation/answer as provided under Section 313 of the Code. In the further statement, the respondent-accused denied all incriminating circumstances appearing against him as false and further stated that he is innocent and a false case has been filed against him. After examining the evidence, witness testimonies and submissions from both sides, the learned Court below recorded the finding in favour of the respondent-accused acquitting him of the charges levelled against them.
3. We have heard learned APP for the appellant - State and minutely examined oral and documentary evidence adduced and produced before the learned Sessions Court concerned.
4. Mr. Ronak Raval, learned APP appearing for the appellant - State submits that the impugned order of acquittal is required to be interfered with as the evidence produced on record proves the involvement of the accused in the commission of crime in question. He has further submitted that complainant examined at Exh.51 and injured witness examined at Exh.56 are the victim to the incident and therefore they are eye-witnesses to the incident; however they have supported the case of prosecution; but that does not allow them to seek acquittal. He has further submitted that merely because the compromise arrived at between the accused and complainant side would not make them entitle to seek acquittal as the alleged offence is under Section 307 of the IPC which is not Page 3 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:34:12 IST 2025 NEUTRAL CITATION R/CR.A/1209/2004 JUDGMENT DATED: 07/11/2025 undefined compoundable. Learned APP has further referred to the evidence of the other material witnesses and submitted that from the evidence of the said witnesses, the involvement of the accused in commission of the crime is proved and therefore, this Court may interfere with the said finding and record the conviction. He would therefore submit to allow this appeal.
5. Heard the learned APP for the appellant - State and perused the deposition of witnesses as also documentary evidence placed on record as well as the order passed by the learned Sessions Court. We have also perused the deposition of the victim who is the sole witness to the alleged incident.
6. At the outset, the deposition of the complainant - Mr.Polabhai Karsanbhai examined at Exh.51 is seen, he has deposed in his testimony about the occurrence of the incident. He has deposed in his examination in chief as to how the entire incident took place and stated that cause of the incident is of election of the Sarpanch and therefore, the police case was filed. In his examination in chief, he has identified the accused and the weapons used in commission of crime. However, during the cross- examination of this witness, he has stated totally contrary facts to the examination in chief and facts stated in the examination in chief is like the tutored witness. During the cross-examination, he has stated that he does not know as to how the injuries were caused to him and how did he take to the hospital and by whom the injury was caused. During the cross- examination, he has stated that since he became unconscious at the time of incident, he does not have any personal knowledge about the occurrence of the incident. During the cross-examination, this witness has admitted the fact of having compromise took place between the parties and have good relationship with the accused. Thus, this witness has deposed totally contradictory to the facts stated in the examination in Page 4 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:34:12 IST 2025 NEUTRAL CITATION R/CR.A/1209/2004 JUDGMENT DATED: 07/11/2025 undefined chief.
7. Next witness examined by the prosecution is PW - Karsanbhai Dudabhai at Exh.56 who is an injured and an important witness; however the said witness was declared as hostile by the prosecution as the said witness has not supported the case of prosecution.
8. Another witness examined by the prosecution is PW - Shardulbhai Karsanbhai at Exh.57 who has taken the injured to the hospital for treatment. However, the said witness has also deposed before the Court contrary to the statement recorded before the Police and therefore, he was declared hostile by the prosecution.
9. All the Panch witnesses to the Panchnama drawn by the IO has also been turned hostile and has not supported the case of prosecution.
10. The prosecution has also examined the Investigating Officer - Mr.D T Vaghela at Exh.58 who has identified the signature of the PSI Mr.Padhiyar who took the complaint of the complainant however the said Mr.Padhiyar was expired. Witness has produced the investigation papers and xerox copy of the station diary entry registering the offence. However, nothing in support of the case of prosecution has emerged from the evidence of this iwtness.
11. Thus, all the three important witnesses have deposed before the Court contrary facts to the case of the prosecution. The learned trial Court has considered the fact that since the complainant has not supported the case of prosecution and admitted in the cross-examination that the settlement has been arrived at between the parties and rest of the witnesses who were accompanied with the complainant including injured Page 5 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:34:12 IST 2025 NEUTRAL CITATION R/CR.A/1209/2004 JUDGMENT DATED: 07/11/2025 undefined witness and another witness who brought the complainant to the hospital have been declared hostile by the prosecution and recorded the acquittal of the accused. Therefore, the conclusion arrived at by the learned competent court of acquitting the respondent - accused does not warrant any interference in absence of reliable evidence proved beyond reasonable doubt and therefore, the order passed by the competent court is just and proper and in our opinion, the same does not require any interference.
12. At this stage, this Court may refer to the decision of the Hon'ble Apex Court in the case of Rajesh Prasad v. State of Bihar and Another [(2022) 3 SCC 471] encapsulated the legal position covering the field after considering various earlier judgments and held as below: -
"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 acquittal in the following words:
(Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415] "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 appellate 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.Page 6 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:34:12 IST 2025
NEUTRAL CITATION R/CR.A/1209/2004 JUDGMENT DATED: 07/11/2025 undefined (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 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 conclusions 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."
13. In the case of H.D. Sundara & Ors. v. State of Karnataka [(2023) 9 SCC 581] the Hon'ble Apex Court has summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: -
"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 Page 7 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:34:12 IST 2025 NEUTRAL CITATION R/CR.A/1209/2004 JUDGMENT DATED: 07/11/2025 undefined whether the view taken by the trial court is a possible view which could have been taken on the 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."
14. In light of the above legal position and for the reasons recorded in the foregoing paragraphs, coupled with the fact that the case of the prosecution does not get support from the evidence recorded by the learned trial Court, the present appeal fails and is accordingly dismissed. Records and Proceedings, if any, be remitted to the Court concerned forthwith.
(ILESH J. VORA,J) (R. T. VACHHANI, J) sompura Page 8 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:34:12 IST 2025