Gujarat High Court
State Of Gujarat vs Rabari Jamben D/O Nagji Devkaran on 18 November, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 397 of 2001
With
R/CRIMINAL REVISION APPLICATION NO. 237 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
====================================================
Approved for Reporting Yes No
====================================================
STATE OF GUJARAT
Versus
RABARI JAMBEN D/O NAGJI DEVKARAN & ORS.
====================================================
Appearance:
MR RONAK B RAVAL, APP for the Appellant(s) No. 1
MR MM TIRMIZI(1117) for the Opponent(s)/Respondent(s) No.
1,2,4,5,6,7
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 3
====================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 18/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 03.05.2001 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No.160/1999, whereby the respondent- accused came to be acquitted for the offences punishable under Sections Page 1 of 13 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 03:03:11 IST 2025 NEUTRAL CITATION R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 undefined 302, 201, 120(B) read with Section 34 of the Indian Penal Code, the appellant - State has preferred the present appeal under Section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short). Feeling aggrieved by the order of acquittal dated 03.05.2001 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No.160/1999, the original complainant has also preferred the captioned revision application under Sections 397(1) and 401 of the Code.
2. The brief facts leading to the filing of the present appeal are as under:
2.1. The complainant, resident of Gheda, Taluka Kadi, District Mehsana, lodged a complaint alleging that on 28.09.1995 at about 18:00 hours, his two sons (hereinafter referred to as the deceased) left home on a bicycle to Zalasar (Karshanpura) to collect land documents from accused no.3, and did not return. On inquiry, accused no.3 denied their visit. On 01.10.1995, bodies of the deceased were found in a well near Zalasar village talaav. The complainant suspected foul play and believed the accused conspired to murder the deceased due to a dispute involving accused no.6 and one of the deceased. The bodies were found out and taken for post-mortem, and after rituals, the complaint was filed.
2.2. The FIR was lodged at Balol Police Station under Sections 302, 201, 120(B) r/w 34 IPC. The accused were arrested and remanded. After investigation, a charge sheet was filed before the Judicial Magistrate First Class, Kadi.
2.3. As the Judicial Magistrate First Class lacked jurisdiction to try the offence under Section 302 IPC, the case was committed to the Sessions Court, Mehsana and registered as Sessions Case No.160/1999 for trial.Page 2 of 13 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 03:03:11 IST 2025
NEUTRAL CITATION R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 undefined Upon conclusion of the prosecution evidence, the trial court put various incriminating circumstances appearing in the evidence to the respondent- accused for their explanation under Section 313 of the Code. In their further statements, the respondent-accused denied all the incriminating circumstances as false and stated that they are innocent and have been falsely implicated. After examining the oral and documentary evidence and the submissions from both sides, the learned trial court recorded a finding in favour of the respondent-accused and acquitted them of all charges.
3. We have heard the learned advocates for the respective parties and carefully examined the oral and documentary evidence adduced before the learned Sessions Court. During the course of the trial, the prosecution examined a total of 17 witnesses. The details of the oral and documentary evidence are as under:
~:: Oral Evidence ::~ Sr. No. Particular Exh.
1 Ishwarbhai Khengarbhai Rabari - Complainant 20
PW-1
2 Ranchhodbhai Ghobhanbhai Patel PW-2 21
3 Girdharbhai Virjibhai Patel PW-3 24
4 Ishwarbhai Prabhatbhai Rabari PW-4 25
5 Rameshbhai Devjibhai Choudhari PW-5 26
6 Amartji Abhraji Thakor PW-6 27
7 Dahyabhai Virabhai Chavda PW-7 28
8 Amratbhai Popatbhai Patel PW-8 29
Page 3 of 13
Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 03:03:11 IST 2025
NEUTRAL CITATION
R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025
undefined
9 Naranbhai Chaturbhai Rabari PW-9 30
10 Baldevbhai Mehulbhai Rabari PW-10 31
11 Vinubhai Keshavlal Panchal PW-11 32
12 Bijalbhai Khodabhai Rabari PW-12 34
13 Bhaktibhai Varvabhai Prajapati PW-13 35
14 Kaluji Cheharji Thakor PW-14 38
15 Bachuji Gandaji Thakor PW-15 39
16 Chimanlal Parshottamdas Makwana PW-16 40
17 Narendrasinh Pashubha Jadav PW-17 50
~:: Documentary Evidence ::~
Sr. No. Particular Exh.
1 Inquest Panchnama 22
2 Panchnama of place where bodies found 23
3 Panchnama of place of disappearance 36
4 PM Note of first deceased (Tejabbhai Ishwarbhai) 37
5 PM Note of second deceased (Jivabhai Kamabhai) 41
6 Panchnama of dairy card from clothes 42
7 Panchnama of body identification 43
8 Panchnama of seizing bicycle 44
9 Original Complaint 46
10 Panchnama of crime scene 51
11 Panchnama of clothes on body 52
12 Panchnama of taking cause of death certificate 53
Page 4 of 13
Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 03:03:11 IST 2025
NEUTRAL CITATION
R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025
undefined
13 Delivery note 54
14 FSL receipt 55
15 FSL biology department report 56
16 FSL chemistry department report 57
17 FSL physical department report 58
4. The learned APP appearing for the appellant - State, submitted that the impugned judgment requires interference, primarily relying upon the deposition of the complainant examined as PW-1 at Exh.20. His testimony, according to the prosecution, establishes the motive due to a dispute, the last seen with accused, and the recovery of bodies from the well. It is not in dispute that the deceased had hyoid bone fracture and diatoms in viscera, as supported by the PM notes (Exh.36,37) and FSL reports (Exh.57,58). Hence, it was contended that the trial court erred in acquitting the accused.
4.1. The learned APP further submitted that the evidence of other material witnesses corroborates the prosecution case and, therefore, the acquittal warrants interference and conviction of the respondent-accused.
5. Mr.M.M. Tirmizi, learned Advocate for the respondent-accused, submitted that the impugned judgment does not call for any interference. They contended that the testimony of the complainant is unreliable as it is based on hearsay, and there was ample delay in filing the complaint alleging murder. In cross-examination, he admitted contradictions in statements and lack of prior knowledge of motive. PW-8 and PW-11 turned hostile and did not support the prosecution case. It was further submitted that no independent witnesses were examined, no weapon Page 5 of 13 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 03:03:11 IST 2025 NEUTRAL CITATION R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 undefined recovery was made, and the FSL reports indicate drowning with diatoms presence, suggesting accidental death. Hence, in absence of any evidence proved beyond reasonable doubt, the acquittal is justified.
6. Having heard the learned advocates for both sides and perused the depositions of the witnesses, documentary evidence, and the judgment of the Sessions Court, it appears that the case of the prosecution rests entirely on circumstantial evidence, with no direct ocular account of the incident.
7. On scrutiny of the deposition of the complainant (PW-1 at Exh.20), it appears that although he claimed a motive due to a dispute, no supporting evidence is produced. In his testimony, PW-1 Ishwarbhai Khengarbhai Rabari detailed that on 28.09.1995, around 4-5 PM, his brother Tejabbhai and Jivabhai left on bicycles from Gheda village to Zalasar (Karshanpura) to retrieve a file related to leased land from Satish Valand; he inquired about their purpose, and they explained before proceeding. They failed to return by 10 PM, prompting him to send inquiries via Bijalbhai Khodabhai, who reported from Satish that they had not arrived. Further checks via Amar to Ahmedabad yielded no results, and on 01.10.1995 at 6 PM, police informed him of the bodies recovered from a well near Zalasar pond; he rushed to the site, identified the bodies post-PM on 02.10.1995, and filed the complaint suspecting conspiracy by the accused, particularly Satish as the main orchestrator, due to prior land disputes. His version regarding the last seen and movements lacks credibility as no prudent person would refrain from raising suspicion immediately. The complainant's admission of delays and contradictions in statements to police, coupled with his conduct of remaining silent for days, renders his evidence unreliable. Sole reliance on such inconsistent testimony cannot sustain conviction.
Page 6 of 13 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 03:03:11 IST 2025 NEUTRAL CITATION R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 undefined
8. PW-8, the sister-in-law of one deceased, and PW-11, another relative, both turned hostile and did not support the prosecution case. PW-8, identified as a close relative of the deceased Jivabhai, was examined but resiled from her earlier statement, denying any knowledge of the incident or involvement of the accused, claiming she was not present at the time and had no information about the movements of the deceased on the fateful day. Similarly, PW-11 Vinubhai Keshavlal Panchal, a relative, turned hostile during examination, retracting support for the prosecution narrative by stating he had no firsthand information and was only informed later by police, without corroborating the motive or conspiracy alleged. No recovery of any weapon was made. The FSL reports (Exh.57,58) indicate diatoms in viscera, supporting drowning. Thus, the cumulative effect of contradictions, admissions, and absence of corroboration raises serious doubt about the veracity of the prosecution story.
9. PW-16, the police witness examined at Exh.40, who only have deposed regarding the investigation procedure and recording of statements. PW-16 Chimanlal Parshottamdas Makwana, the investigating officer, testified to the procedural aspects, including receiving the complaint on 02.10.1995, conducting inquest panchnamas at the well site, recording statements of witnesses like the complainant and initial panchas, sending viscera for FSL analysis, and preparing chargesheet based on collected evidence such as recovery of cycles and clothes from the well, while noting the identification of accused during probe but without detailing any recoveries from them. All panch witnesses also turned hostile, which ultimately wrecked the prosecution case. The panch witnesses, including those for inquest (Exh.22), body recovery (Exh.36,37), and other panchnamas (Exh.23,42-46,52), were examined Page 7 of 13 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 03:03:11 IST 2025 NEUTRAL CITATION R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 undefined but turned hostile, denying knowledge of the recoveries or events, stating they signed under police pressure without witnessing anything substantial, thus failing to corroborate key prosecution evidence.
10. Though the deceased had hyoid fractures, the PM notes attribute it to possible impact, not assault. The postmortem reports by Dr. Bhaktibhai Varvabhai Prajapati (PW-13) noted for Tejabbhai: asphyxia due to throttling leading to drowning, with hyoid bone fracture possibly from pressure on neck or fall; for Jivabhai: similar cause, with injuries consistent with strangulation before immersion, but opined as unnatural death pending chemical analysis. Considering contradictory statements and conduct, the trial court rightly concluded that the prosecution failed to prove its case beyond reasonable doubt. The testimony of the complainant is inconsistent and lacks corroboration; therefore, the acquittal recorded by the learned Sessions Court is proper and warrants no interference.
11. On scrutiny of the depositions of the two purported independent eyewitnesses, Kaluji Cheharji Thakor (PW-14 at Exh.38) and Bachuji Gandaji Thakor (PW-15 at Exh.39), it appears that their testimony lacks credibility. PW-14 Kaluji Cheharji Thakor deposed that on 28.09.1995 around 8-9 PM near Zalasar pond, he saw 2-4 Rabari community members quarreling over some issue, identified accused nos. 1,3-7 among them arguing aggressively, and later learned of the incident involving the deceased, claiming the accused dragged the victims towards the well. Similarly, PW-15 Bachuji Gandaji Thakor corroborated seeing the same group of Rabaris in altercation at the spot, naming the accused as participants in the heated exchange, stating it occurred in semi-darkness but he recognized them from proximity, and the fight escalated leading to the victims being pulled away. Although they claimed to have witnessed Page 8 of 13 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 03:03:11 IST 2025 NEUTRAL CITATION R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 undefined a quarrel among members of the Rabari community near the place of incident, they failed to clearly establish the presence or participation of the deceased in the said quarrel. Their statements are vague and do not specify whether the deceased were involved in the altercation. Moreover, no identification parade was conducted, and the accused were identified for the first time in court after a considerable lapse of time, rendering such dock identification unreliable.
12. The conduct of these witnesses further undermines their veracity. Despite claiming to have seen the quarrel at around 23:00 to 00:00 hours on the night of the incident, they remained silent for nearly a year before coming forward with their version. No satisfactory explanation has been offered for this inordinate delay. Additionally, both witnesses were serving with relatives of the complainant, rendering them interested witnesses whose testimony cannot be accepted without independent corroboration, which is conspicuously absent.
13. The medical evidence, particularly the post-mortem notes (Exh.37 and 41) and the FSL reports (Exh.57 and 58), indicate that death was caused by asphyxia due to drowning, with diatoms present in the viscera. The doctor has opined that the absence of external injuries is consistent with accidental fall into the well. The hyoid bone fracture, if any, could have resulted from impact during the fall and does not necessarily indicate strangulation or homicidal violence. The initial investigation proceeded on the footing of accidental death, and the subsequent theory of murder appears to be an afterthought without substantive proof.
14. The complainant's own conduct raises serious doubts. Despite learning of the recovery of the bodies on 01.10.1995, he initially accepted the accidental death theory and performed the last rites. The complaint Page 9 of 13 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 03:03:11 IST 2025 NEUTRAL CITATION R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 undefined alleging murder was lodged only after a significant delay, prompted by subsequent suspicions without any fresh material. This delayed FIR, coupled with the absence of any prior enmity or motive established beyond reasonable doubt, renders the prosecution case improbable.
15. Thus, the whole case of the prosecution rests on the circumstantial evidence; however the prosecution has also failed to place on record any such circumstances to link the chain so as to surface the implication of the accused in commission of the crime in question. It is pertinent to note that even as per the case of the prosecution, in absence of any motive, that itself is sufficient to dislodge the case of prosecution if other proven circumstances could form a chain so complete as to indicate that in all human probability it is accused and no one else who committed crime yet, in a case based on circumstantial evidence, motive plays an important part.
16. Now, reverting back to the facts of the present case, nothing sort of any such material seems to be placed on record to indicate as to motive behind the commission of the offence in question and therefore, admittedly the whole case rests on the circumstantial evidence and considering the way in which the entire incident have been described, followed by the investigation carried out by the IO and to convict the accused in absence of any direct evidence though dealing with the case based on circumstantial evidence, the important aspect which requires to be considered are such as (i) whether circumstances relied by prosecution have been proved beyond reasonable doubt; (ii) whether those circumstances are of a definite tendency unerringly pointing towards guilt of accused; (iii) whether those circumstances taken cumulatively form a chain so far complete that there is no escape from conclusion that within all human probability crime was committed by accused; (iv) whether they Page 10 of 13 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 03:03:11 IST 2025 NEUTRAL CITATION R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 undefined are consistent only with hypothesis of accused being guilty; and lastly (v) whether they exclude every possible hypothesis except one to be proved.
17. In a case resting on circumstantial evidence, the chain must be complete and incapable of explanation on any hypothesis other than the guilt of the accused. The prosecution has failed to establish any incriminating circumstance that unerringly points to the guilt of the respondents. The evidence adduced is fragmentary, inconsistent, and falls short of the standard of proof beyond reasonable doubt.
18. Considering the cumulative effect of the contradictions, the interested nature of the eyewitnesses, the absence of corroboration, the medical evidence supporting accidental drowning, and the lack of motive or recovery, the trial court rightly concluded that the prosecution failed to prove its case beyond reasonable doubt. The testimony of the key witnesses is unreliable and insufficient to sustain conviction; therefore, the acquittal recorded by the learned Sessions Court is proper and warrants no interference.
19. 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:Page 11 of 13 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 03:03:11 IST 2025
NEUTRAL CITATION R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 undefined (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.
(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."
20. 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 whether the view taken Page 12 of 13 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 03:03:11 IST 2025 NEUTRAL CITATION R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 undefined 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."
21. 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 as well as the captioned fails and are accordingly dismissed. Records and Proceedings, if any, be remitted to the Court concerned forthwith.
(ILESH J. VORA,J) (R. T. VACHHANI, J) MVP Page 13 of 13 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Nov 18 2025 Downloaded on : Wed Nov 19 03:03:11 IST 2025