Gujarat High Court
State Of Gujarat vs Ramanbhai Valabhai Machhar on 25 November, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/1938/2004 JUDGMENT DATED: 25/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1938 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
and
HONOURABLE MR. JUSTICE R. T. VACHHANI Sd/-
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
RAMANBHAI VALABHAI MACHHAR & ORS.
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Appearance:
MR RONAK RAVAL, APP for the Appellant(s) No. 1
MR MHARSHI PATEL, ADVOCATE for
HL PATEL ADVOCATES(2034) for the Opponent(s)/Respondent(s) No.
1,11,2,3,4,5,6,7,9
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 8
UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 10
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 25/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Here is the Appeal by the State against the judgment and order of acquittal.
2. Being dissatisfied by the judgment and order passed by the learned Sessions Judge, Godhra at Panchmahal, passed in Sessions Case No.67 of 2003 and 10 of 2004, dated 17.08.2004, acquitting the respondent from the offence under Section 395, 436, 435, 427, 295, Page 1 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Nov 27 2025 Downloaded on : Thu Nov 27 21:23:08 IST 2025 NEUTRAL CITATION R/CR.A/1938/2004 JUDGMENT DATED: 25/11/2025 undefined 120(B) of the IPC, the State has preferred instant appeal under Section 378 of the Cr.P.C.
3. This Court has heard Mr.Ronak B. Raval, learned Additional Public Prosecutor, Mr.Maharshi Patel for H.L.Patel Advocates, for the respective parties.
4. Brief facts giving rise to file the present Appeal are that, this case was the output of post Godhra riots that took place in village Santrampur, Dist.Panchmahal. The Godhra train burning case occurred on the morning of 27.02.2002, wherein 59 pilgrims and Kar Sevaks returning from Ayodhya were killed in fire inside Sabarmati Express near Godhra Railway Station, as a result, severe violence took place in Gujarat as well as in the area of Dist.Panchmahal. The people in mass armed with deadly weapons, put on fire the houses, vehicles and commercial premises which led to large number of communal violence. It is in this background facts, on 01.03.2002, at about 10:00 p.m. the respondent accused and other around 1000 people, formed an unlawful assembly and the object of the assembly was to commit a mischief by fire with an intention to cause the destruction of the buildings and to commit a robbery of the movable and immovable property belongs to minority community. They entered into area known as Navi Vasahat where both the communities have their residence and after pelting stones, they sat the vehicles, houses, business premises on fire and looted household things and other valuables whereby caused a considerable damages to the property. The local police immediately rushed to the place and open fire for Page 2 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Nov 27 2025 Downloaded on : Thu Nov 27 21:23:08 IST 2025 NEUTRAL CITATION R/CR.A/1938/2004 JUDGMENT DATED: 25/11/2025 undefined disruption, meanwhile, the persons who had suffered, managed to escape and went to city area of Santrampur. According to survey, 39 homes set on fire, and the amount of robbery comes in the lakhs of rupees. PW-1 Habibsha Fakir after three days of incident, lodged an FIR with the Santrampur Police Station for the commission of the offences under Sections 395, 436, 435, 427, 295 read with Section 120(B) of the IPC, inter alia alleging that the respondent accused along with mob of around 1000 people, caused damages to their property by setting them on fire and committed an offence of robbery. The offence came to be registered as I-C.R.No.39 of 2002. The accused respondents were arrested. After due investigation and upon filing of the charge-sheet, the case was committed to the court of Sessions at Godhra.
5. Since the case was exclusively triable by the Sessions Court, the Court committed the case to the Sessions Court, which has been culminated into Sessions Case No.67 of 2003 and 10 of 2004.
6. The learned Sessions Judge, Godhra framed charges against the accused to which, they pleaded not guilty and claimed trial.
7. In the course of trial, the prosecution adduced the following oral as well as documentary evidence in support of its case:
Oral evidence -21 PW 1 - Exh.23 Habibshah Mogalshah Fakir PW 2 - Exh.25 Rasid Mogal Shah PW 3 - Exh.26 Hanifamiya Alauddin Kaji PW 4 - Exh.27 Nathumiya Alauddin Kaji PW 5 - Exh.28 Moinuddin Sadrumiya Kaji Page 3 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Nov 27 2025 Downloaded on : Thu Nov 27 21:23:08 IST 2025 NEUTRAL CITATION R/CR.A/1938/2004 JUDGMENT DATED: 25/11/2025 undefined PW 6 - Exh.30 Sbidkhan Mehmoodkhan Makrani PW 7 - Exh.31 Rafiqbhai Usmanbhai Sheikh PW 8 - Exh.32 Shabhanshah Junmasha PW 9 - Exh.33 Gafurshah Mugalshah PW 10 - Exh.34 Ilyas Abdulgani Sheikh PW 11 - Exh.35 Sikandarshah Habibshah PW 12 - Exh.36 Latifbhai Ahemdbhai PW 13 - Exh.37 Zakirkhan Dilawarkhan PW 14 - Exh.38 Farukh Mohammad Sheikh PW 15 - Exh.39 Lalsingh Chandubhai Barjod PW 16 - Exh.41 Shankarbhai Lalabhai Prajapati PW 17 - Exh.46 Devjibhai Kalubhai Mal PW 18 - Exh.48 Ganeshbhai Premchand Panchal PW 19 - Exh.49 Kalubhai Kohyabhai Muniya PW 20 - Exh.53 Dalpatsinh Hamirsinh Rathod PW 21 - Exh.54 Ramsinh Kulsinh Dabhi Documentary evidence - 10 Exh.24 Complaint Exh.18 Panchnama of place of offence Exh.19 Panchnama of recovery of articles Exh.47 Arrest Panchnama Exh.50 Arrest Panchnama Exh.51 Arrest Panchnama Exh.52 Arrest Panchnama Exh.40 Arrest Panchnama Exh.43 PSO Report Exh.42 Copy of PSI report
8. On conclusion of oral evidence, the trial Court recorded further statements of the accused as provided under Section 313 of the Code, wherein, they claimed their innocence. The accused Jayesh Panchal, additionally has stated that, the brother of the complainant viz. Rashidsha, abducted the daughter of one Kalu Jyoti and on this aspect, he objected against the family of the complainant and therefore Page 4 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Nov 27 2025 Downloaded on : Thu Nov 27 21:23:08 IST 2025 NEUTRAL CITATION R/CR.A/1938/2004 JUDGMENT DATED: 25/11/2025 undefined keeping grudge on this aspect, his name being falsely disclosed by the complainant party.
9. The learned Sessions Judge after appreciating and examining the oral as well as documentary evidence acquitted the accused herein for the offences with which they were charged, on the ground that, only presence at the time when office was committed, is not sufficient to show that the accused were members of unlawful assembly. The learned trial Court observed that the active role of accused Jayesh Panchal and others being disclosed by the witnesses for the first time before the Court and they did not have disclosed before the police when during the investigation, their statements being recorded by the police and, therefore considering the major contradiction, improvement, the trial Court held that the prosecution miserably proved the charge against the accused beyond reasonable doubt.
10. In view of the aforesaid facts and circumstances, this acquittal appeal has been preferred by the State.
11. Oral Evidence adduced by the prosecution:
11.1 Habibsha Mogalshah (PW:1):
The witness is the resident of Narsingpura, Navi Vasahat where the alleged incident being taken place. The witness in his chief examination has stated that the accused along with around 1000 people, after making hue and cry, set fire of his house and the vehicles lying on the streets and thereafter they looted a valuables and caused damages to their movable and immovable Page 5 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Nov 27 2025 Downloaded on : Thu Nov 27 21:23:08 IST 2025 NEUTRAL CITATION R/CR.A/1938/2004 JUDGMENT DATED: 25/11/2025 undefined property. The witness has further stated that the accused were part of the mob and so far as accused Jayesh Panchal is concerned, it is alleged that he was having kerosene tin in his hand and by igniting the sticks, it were throwing on the houses. The witness has further stated that the local police came for disruption and they fired in open air as a result the accused and others ran away. The witness has further stated that estimated cost of his damages house was Rs.70,000/- to Rs.80,000/- and in all 39 homes had been set on fire. In the cross-examination the witness has admitted that in the area where the incident took place there are also houses of Hindu family and their houses also being put on fire. The witness has been asked about the specific role of the Jayesh Panchal which has not been disclosed by him in the police statement. The witness has also denied that due to Godhra carnage he had already left the place and he did not have seen the incident and was falsely involved the accused.
11.2 Rashid Mogalsha (PW:2) This witness is the brother of PW:1 complainant and his house is also situated in the affected area where the incident occurred. He has stated on the line of his brother PW:1 and also pointed out the specific role of Jayesh Panchal. In the cross-examination, the improvement and contradiction which he has made in his deposition being specifically asked to him.
11.3 Hanifmiya Kazi (PW:3) The witness being a resident of affected area has stated in his Page 6 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Nov 27 2025 Downloaded on : Thu Nov 27 21:23:08 IST 2025 NEUTRAL CITATION R/CR.A/1938/2004 JUDGMENT DATED: 25/11/2025 undefined chief examination that around 1000 people, came in their area and in order to demonstrate their protest against the Godhra carnage, they set on fire their houses, vehicles and other property and looted valuables. The witness has referred name of Kamlesh, Jayesh and Rumalbhai, stating that they were accompanied the mob.
11.4 Nathumiya Kazi (PW:4) This witness being a resident of Nursingpura, has stated on the line of other witnesses, inter alia, alleging that his house being set on fire by the mob and also caused damages to his property.
The witness could not identify the accused and did not have referred the name of the accused to the effect that whether they were presence in the mob or not.
11.5 Mayuddin Kazi (PW:5) This witness being a sufferer has narrated about the incident and manner in which his house and other things being put on fire by the mob of people, however, he did not refer the name of the accused nor identified them on the aspect whether they were presence in the mob or not.
11.6 Abidkha Mahemudkha, Rafik Sheikh, Sabhansha Jumansha, Gafursha Mogalsha, Illiyas Shaikh, Sikandar Sha Habib Sha, Latif Ahemad, Jakirkhan Dilawar Khan, Faruk Sheikh (PW:6 to
14).
Page 7 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Nov 27 2025 Downloaded on : Thu Nov 27 21:23:08 IST 2025NEUTRAL CITATION R/CR.A/1938/2004 JUDGMENT DATED: 25/11/2025 undefined All these witnesses being residents of affected area where the incident took place, have not supported to the case of the prosecution and they have been declared hostile and in the cross- examination after declaring them hostile, they have not supported to the case of the prosecution.
11.7 Dalpatsinh Rathod (PW:20) This witness being Investigation Officer has stated in his evidence that after the registration of the offence, how he has undertaken the entire investigation. The witness is not the witness of the incident. In the cross-examination, he has stated that the witnesses in their police statements have not stated that the accused Jayesh and others were throwing the burning cans of kerosene.
12. Mr.Ronak Raval, learned Additional Public Prosecutor appearing for the appellant - State, assailing the judgment and order of acquittal, have submitted that the findings of acquittal are contrary to law and evidence on record and the findings recorded are palpably erroneous and based on the irrelevant material. The presence of the accused at the place of incident being proved by the prosecution as there is no reason or motive for the PW:1, 2 and 3 to falsely refer their name and, therefore, the witnesses being residents of affected area, had seen the entire act of violence. That the trial Court failed to appreciate the settled law of unlawful assembly that when the person is a member of the unlawful assembly and his presence is established then for fixing vicarious liability, it is not necessary to prove his or her overtact. In Page 8 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Nov 27 2025 Downloaded on : Thu Nov 27 21:23:08 IST 2025 NEUTRAL CITATION R/CR.A/1938/2004 JUDGMENT DATED: 25/11/2025 undefined such circumstances, when the factum of setting fire of the house property and other things are not disputed and the presence of the accused respondents is established, the only inference can be inferred that the accused being member of unlawful assembly have committed the alleged offence of robbery and causing fire to the house property.
13. In such circumstances, as referred above, it has been submitted that while acquitting the respondent accused, the trial Court has discarded and ignored the truthful, reliable and acceptable evidence and as such, no cogent reasons being assigned while discarding such evidence. Therefore, it is submitted that the conclusion of acquittal recorded by the Trial Court is contrary to the evidence on record and upon erroneous understanding of law. Thus, it is prayed that the prosecution has succeeded in proving the charge against the respondents accused and the judgment and order of acquittal be set aside and accused may be convicted and sentenced for the offence as referred above.
14. Mr.Maharshi Patel, learned advocate appearing for and on behalf of the respondents accused has submitted that the High Court in a case of Appeal against the acquittal, can interfere only when there are compelling substantial reasons for doing so and more particularly, the findings are without reasons and unreasonable and contrary to the evidence. In the facts of the present case, the FIR being lodged after delay of four days and the delay has not been satisfactorily explained. That the witnesses i.e. PW:1, 2 and 3 have improved their version in the chief examination and intentionally role being assigned to one Page 9 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Nov 27 2025 Downloaded on : Thu Nov 27 21:23:08 IST 2025 NEUTRAL CITATION R/CR.A/1938/2004 JUDGMENT DATED: 25/11/2025 undefined Jayesh Panchal that he was throwing burning cans of kerosene. However, the facts remains that none of the witnesses have disclosed the said fact involving Jayesh Panchal in their police statements. The I.O. (PW:20) has admitted that the witnesses have not stated the role assigned to Jayesh Panchal in their statements recorded during the course of investigation. Thus, these discrepancies directly impact on the credibility of the witnesses and demolished the entire prosecution story and therefore the trial Court has rightly disbelieved the version of the witnesses on the aspect of presence of the accused and role assigned to the accused Jayesh Panchal. That the presence of the accused being resident of the Santrampur was natural because after the Godhra carnage the people across the Gujarat were on the streets and roads and, therefore, merely on the basis of their presence, without anything further on their part, they cannot be held to be a member of unlawful assembly and in absence of any acceptable and cogent evidence on the aspect of causing damages to the property and setting homes on fire and robbery, the inference cannot be drawn against the accused that they were members of the unlawful assembly which committed the offence.
15. In such circumstances, referred to above, learned counsel appearing for the respondents accused, has submitted that the Trial Court while discarding the evidence of oral testimony of the witnesses have assigned cogent and sufficient reasons while acquitting the accused and therefore, the judgment of acquittal passed is well reasoned, legally sustainable and does not suffer any infirmity warranting interference by this Court.
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16. Before proceeding to address the rival submissions, we would like to place on record the scope of interference in an appeal against the acquittal and when the same is justified. In exceptional cases, where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the judgment of acquittal. The Appellate Court should bare in mind the presence of innocence of the accused and further that, the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner, where the other view of possible should be avoided, unless there are reasons for interference.
17. In the present case the issue falls for our consideration as to whether the trial Court was justified in acquitting the accused?
18. We have carefully examined the oral as well as documentary evidence and perused the findings of acquittal rendered by the Trial Court. In the case on hand, the prosecution witnesses i.e. Nos.1, 2 and 3, have stated that accused were present at the place and thousands of people rushed to the area and thereafter the incident of violence being committed by them. It is relevant to note that the name of the accused Jayesh Panchal being referred and he was assigned to the role to the effect that he was throwing a burning cans of kerosene for setting fire the houses and other properties. Admittedly, the police statements of the witnesses were being recorded by the PW:20 and in the respective police statements, nothing being alleged against Jayesh Panchal that he played an active role in the commission of the crime. It is settled Page 11 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Nov 27 2025 Downloaded on : Thu Nov 27 21:23:08 IST 2025 NEUTRAL CITATION R/CR.A/1938/2004 JUDGMENT DATED: 25/11/2025 undefined position of law that every small discrepancy or minor contradiction which may erupt in the statement of the witnesses because of the lapse of time or for any other reason, the evidence of the said witnesses cannot be treated as fatal to the case of the prosecution. However, the case of the prosecution becomes doubtful when the version given by the witnesses in the Court is different from that in the statements made before the police. In the facts of the present case, the improvement and contradictions in the testimony of the eye-witnesses on the aspects of role assigned to Jayesh Panchal amounts to a serious infirmity which creates a serious doubt about the truthfulness of the witnesses and on this aspect, we have no hesitation to hold that the witnesses are telling lie and purposely, they improve their statements to falsely implicate the accused Jayesh Panchal and others. Now let us deal with the presence of the accused in the mob around 1000 people and merely their presence would be a ground to infer that they were members of unlawful assembly? We have carefully examined the oral testimony of the witnesses. Out of 14 witnesses, only two witnesses who are real brothers, have referred the name of accused stating that they were present in the mob. It is also admitted fact that PW:2 had abducted the daughter of one Kalu Jyoti and on this count the offence came to be registered. The incident was the result of post Godhra riots. Admittedly, people across the Gujarat were on the streets and roads and protesting the alleged incident of Godhra train carnage and in that view of the matter the presence on the road of the accused was natural and it cannot be said that they were part of unlawful assembly formed by the around 1000 people. In such circumstances, there is no Page 12 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Nov 27 2025 Downloaded on : Thu Nov 27 21:23:08 IST 2025 NEUTRAL CITATION R/CR.A/1938/2004 JUDGMENT DATED: 25/11/2025 undefined evidence either direct or circumstantial to infer that the accused either formed an unlawful assembly or joined the unlawful assembly with a common object to do the offence alleged. The Supreme Court, time and again, in its various judgments, held and observed that the mere a presence of a person in or near the place is not sufficient to show that he or she was also member of the unlawful assembly. In the case of Musakhan Vs. State of Maharashtra (AIR 1976 2566), the Supreme Court has held that a bystander cannot come within the mischief of Section 149, unless it is shown that the accused had shared the common object of unlawful assembly. Recently, the Supreme Court in the case of Dhirubhai Chauhan Vs. State of Gujarat (Criminal Appeal No.816 of 2016, dated 21.03.2025), on the identical issue, has held that in cases of group clashes where a large number of persons are involved, an onerous duty is caste upon the Court to ensure that no innocent bystander is convicted and deprived of his liberty and in such type of cases, the Courts must be circumspect and reluctant to rely upon the testimony of witnesses who make general statement without specific reference to the accused or role played by him. This is so, because very often particularly when the scene of crime is public place, out of curiosity, person step out of their home to witness as to what is happening around. Thus, as a rule of caution, and not a rule of law, where the evidence on record establishes the fact that a large number of persons were present, it may be safe to convict only those persons against whom overact is alleged. In the facts of the present case, and upon examination of the oral as well as documentary evidence, except the presence of the accused at the scene of offence, nothing further Page 13 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Nov 27 2025 Downloaded on : Thu Nov 27 21:23:08 IST 2025 NEUTRAL CITATION R/CR.A/1938/2004 JUDGMENT DATED: 25/11/2025 undefined being deposed by the witnesses against them and therefore, in absence of any acceptable, cogent evidence about the overact on the part of the accused, being a bystander, they cannot be held to be a member of unlawful assembly.
19 For the reasons aforementioned, the prosecution failed to prove the charge of murder against the accused beyond reasonable doubt. Thus, therefore, the view of the Trial Court as is possible and plausible view and the Trial Court while analyzing the evidence has assigned cogent and sound reasons and therefore, findings of acquittal are reasonable and based on the evidence on record and we do not find any perversity in the findings of acquittal so as to interfere. Thus, in our considered opinion, the Trial Court was justified in acquitting the accused and we are in complete agreement with the findings, ultimate conclusion and resultant order of acquittal recorded by the Court below and hence finds no reason to interfere with the same.
20. With the observations as aforesaid, the appeal is accordingly dismissed. The Registry is directed to send back the R & P to the Trial Court. Bail bonds are cancelled, if any, and surety is discharged.
(ILESH J. VORA,J) (R. T. VACHHANI, J) MISHRA AMIT V. Page 14 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Nov 27 2025 Downloaded on : Thu Nov 27 21:23:08 IST 2025