Gujarat High Court
Bhagvatsinh Deepsinh Puwar vs State Of Gujarat on 27 November, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 39 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
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BHAGVATSINH DEEPSINH PUWAR
Versus
STATE OF GUJARAT
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Appearance:
MR BC DAVE(245) for the Appellant(s) No. 1
MR ROHANKUMAR H. RAVAL, ADDITIONAL PUBLIC PROSECUTOR for
the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 27/11/2025
ORAL JUDGMENT
1. The appellant-accused was serving in the Police Department, who came to be convicted on 13.12.2005 by the learned Additional Sessions Judge, Court No.9, Ahmedabad City in Sessions Case No.236 of 2003 whereby under Section 307 of the Indian Penal Code (IPC), the appellant was sentenced to undergo two years of rigorous imprisonment and payment of fine of Rs.1,000/- and in default of payment of fine, to further Page 1 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined undergo 3 months rigorous imprisonment. The benefit of set-off was given to the accused.
2. The proceedings against the accused was under Sections 307, 506 of the IPC, under Sections 66(1)(b) and 85(1)(3) of the Bombay Prohibition Act and under Sections 110 and 117 of the Bombay Police Act.
3. The charge against the accused was framed below Exhibit
6. As per the complaint, on 04.06.2002 at about 10.30 night near Mahakali Road, Shahibaug, Ahmedabad, the accused was in an inebriated condition on the public road and was behaving in a disorderly manner under the influence of alcohol. Thus, the accused was charged under the Bombay Prohibition Act. Further, as per the complaint, on the referred date and place, when the complainant asked the accused for money of the telephone calls, the accused threatened to kill the Page 2 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined complainant and pointed the rifle at the complainant and fired. Thus, the proceedings were ordered under IPC.
4. The complaint is by Chhatrasinh Khumsinh Rajput at Exhibit 12, who had declared before the Police Inspector, Madhupura Police Station, Ahmedabad City, that he was staying at Radha Vallabh Chali, Opposite Mahakali Mandir, Shahibaug with his family. Being handicapped by left leg, therefore, was allotted the STD PCO Booth from the Telephone Department, at a concessional rate which he was running opposite Mahakali Mandir in the name of 'Ganesh Telecom'. The timings of his telephone booth was from 6.00 in the morning to 11.00 in the night.
5. According to his complaint, opposite his booth, there is a police booth. Police Constable Bhagvatsinh Deepsinh Puwar (accused) was on duty in the area. The Page 3 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined complainant knew the accused very well since the accused was working on this point for a very long time. According to the complainant, the accused used to go to his STD PCO for making calls, local as well as outgoing to several area, and would even go for having his food at Ramesh Hotel, which is near the complainant's STD PCO Booth.
6. The complainant demanded Rs.225/- which was due from the accused. The complainant further alleged that on 04.06.2002 at about 10.30 night, his daughter-Dadam was sitting at the telephone booth and he and his wife- Paniben were sitting at the corner of the shed. There was a curtain hanging from the shed, at that time, the accused was having some dispute with a person at the lodge. When the complainant and his wife came out, they saw Bhagvatsinh Deepsinh Puwar in police uniform with a rifle and was moving in an disorderly manner, at Page 4 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined that time, the complainant asked for the money, the accused suddenly got angry, verbally abused him and removed one cartridge from his pant pocket, inserted it into the rifle saying "Uda Doonga, Khoon Kar Doonga". He pointed the rifle at the complainant, and, as complainant got afraid, he hid himself behind the curtain. It is also stated by the complainant that at that time, the accused with an intention to kill him had fired from his rifle and on hearing the sound, he hid himself in the corner of the booth. The complainant stated that the customers visiting Ramesh Lodge and Ramesh Solanki's son and others jumping the compound wall of the police line entered the compound.
7. During that time as per the complainant, the CRPF Jawans were patrolling there and came at the place, they took the rifle, from the hands of accused, at that time, Page 5 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined Bhagvatsinh tried to release himself from their grip. The complainant said that many people had gathered there. The complainant further stated that the Jawans forcefully took the rifle from the accused and took the accused to Modi Ni Chali.
8. As per the complainant, thereafter, he came to know that the accused was in an inebriated state and was struggling to release himself from the clutches of CRPF Jawans but on the apprehension that he would fire again, the Jawans made the accused forcefully sit on the road in Modi Ni Chali and took away the rifle and cartridges from him.
9. Learned advocate for the appellant Mr. B.C. Dave referring to the observations of the learned Judge and the deposition of the witnesses submitted that the case against the accused under the Bombay Prohibition Act and the Bombay Police Act has not been proved. The Page 6 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined conviction against the accused is under Section 307 of IPC with the allegations that the accused had fired at the complainant with the official revolver which was with him in the capacity of police. It is further submitted that the learned trial Court Judge has not even cared to see whether any ballistic report has been brought on record to prove the case of actual firing. It is further submitted that the case proceedings at Exhibit 29 would clearly prove that no such Arms Examination Certificate or the opinion with regard to the firing of the cartridge has been placed on record and therefore, the accused was constrained to move Exhibit 29 making a prayer before the learned Judge to give a Status Report in accordance with the provisions of Sections 207 and 238 of Cr.P.C. Learned advocate Mr. Dave submitted that the learned Judge ordered the opinion as confirmed in 'A', to be furnished to the accused. The date of order is 02.05.2005.
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10. Learned advocate Mr. B.C. Dave submitted that the proceedings and the record does not show any ballistic report with regard to the firing report, is on record. FSL,report of State of Gujarat refers to the sealed parcels. The Ballistic department of said FSL in their inter-department communication, sent the sample to Biological Department on 18.01.2002 for examination of the blood. Learned advocate Mr. B.C. Dave submitted that the said Report at Exhibit 44 shows parcels as one received from ballistic department, and the sample was an old half sleeve synthetic open dirty shirt with blood stains on it, while Parcel D was received from ballistic department contained pant. Mr. B.C. Dave submitted that such does discloses examination of rifle and empty cartridge or the live bullets. Learned advocate Mr. B.C. Dave submitted that the Serological group Report dated 11.03.2003 shows Blood Group 'B'. Though the police Page 8 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined had produced on record, the document Exhibit 43 of the Ravangi Nondh (Despatch Note) in connection with I-C.R. No.199 of 2002 where the description of the muddamal at Serial No.1 :- Musket :- 410 rifle where on the butt in english inscribed as ADC :- 993 with bolt open with a sealing stripe. It was valued at Rs.33,000/- as Mark 'A'. At Serial No.2 :- Musket :- 410 rifle with an empty cartridge yellow in colour and on the cap K.F. 410 I92 was embossed valued at Rs.00.00 in a sealed/closed condition given Mark 'B'. At Serial No.3, at the time of incident, the clothes of the accused, i.e.half sleeve khakhi coloured open shirt with two front pockets tucked with press buttons. On the shirt, in the front, there were blood stains, shirt valued at Rs.00.00 in a sealed condition was given Mark 'C'. At Serial No.4, a khakhi coloured pant, on its right side, as well as on the left side,blood stains were seen scattered. These are valued at Rs.00.00,in sealed condition were Marked as 'D'. Page 9 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025
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11. Learned advocate Mr. B.C. Dave submitted that Mark 'A' for the rifle and Mark 'B' was with the query as to whether there was any round of fire. Mark 'C' and 'D' were sent for finding the opinion of the presence of the remnants of firing and Mark 'C' and 'D' was also for knowing blood group. It is submitted that the learned Judge has failed to consider the Report nor any mention has been made of such report in the judgment nor report was produced, though the accused had asked for the same and thus, stated that the conviction under Section 307 of IPC does not stand proved and should be considered as no actual firing from the alleged official weapon.
12. Advocate Mr. Dave contended that the complainant and his daughter have turned hostile. None have supported the case of firing. Denial of the alleged incident by the Page 10 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined complainant does not prove the complaint. The wireless message which was sent to the police, though received, has not been proved on record. The Station Diary has not been produced. The contradiction are with the evidence of the PW16-Police Inspector-Vakatsinh Devisinh Vanar and PW12-PSI Ahmedkhan Ajikhan and rest of the witnesses. The contradictions create doubt. The production of the rifle as well as the cartridge was not at the behest of the accused, while the panchnama would show that the person from CRPF, one named Madhavan had produced the weapon who was not examined as a witness during the trial. Learned advocate Mr. Dave stated that the complainant had referred to the Lodge owner Rameshbhai and his son. The dispute was known to them, however that fact has not been proved on record by examining Rameshbhai or his son. The complaint referred to the incident as it happened at 10.30 pm while the witness from CRPF states to have Page 11 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined occurred at about 9.30 night.
13. Countering the above arguments, learned Additional Public Prosecutor Mr. Rohankumar H. Raval submitted that PW16-Police Inspector-Vakatsinh Devisinh Vanar has given cause of the incident. The Police Inspector had stated that he had received the information, that near Mahakali Mandir, Madhubhai Lawn, a police constable had fired and hence, he reached the place of incident. The accused gave his complaint at the place of incident and the panchnama of the physical condition of the accused was also drawn. The rifle as well as the used cartridge and the live cartridges were taken from the place of incident. The clothes, rifle and the cartridges were sent for physical examination to the FSL. The incident had occurred as the complainant had asked for Rs.225/- which was due from the accused towards the STD PCO Booth. The Report was sent to the superior Page 12 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined Officer. Learned APP has submitted that the evidence with rifle issued in the name of accused has been proved, there was no other cause, except for the present accused who was present there to fire which has not been disputed. Thus, it is is even submitted that in absence of the ballistic report, reliance has to be placed on the deposition of the witnesses, who are from the Police Department as well as the CRPF Jawans who have no axe to grind against the accused. It is further submitted that the acquittal under the Bombay Prohibition Act is on a technical ground and further stated that under Section 307 IPC, to prove the offence, the injury is not required to be proved. Intention of the accused is the major element. The major aspect which has been believed by the learned trial Court, after analysis of evidence of the witnesses, has come to the conclusion that the accused had used the official rifle for firing and had pointed the rifle to the complainant, which itself proves his intention Page 13 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined to kill the complainant.
14. In the background of the arguments canvassed by learned advocate Mr. B.C. Dave for the appellant and learned APP Mr. Rohankumar H. Raval for the State, the analysis of the evidence would be required of the witnesses so examined. The prosecution had examined about 16 witnesses and had relied upon 11 documentary evidences to prove the case against the accused. The accused in his statement under Section 313 of Cr.PC stated that he is innocent, he had not done any firing and he had not consumed any liquor.
15. The complainant-Chatrasinh Khumsinh Rajput examined as PW1 has not supported the prosecution case. He has referred to the complaint at Exhibit 13 where he identified his thumb impression. The complainant stated that he does not have any knowledge about the incident, Page 14 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined the police had called him at 9 o'clock from his home and he has put his thumb impression. On the date of the incident at about 7 o'clock after closing the STD PCO Booth, he had returned back home. The evidence of the complainant suggests that Ganesh Telecom was opposite Mahakali Temple, Shahibaug, Ahmedabad and he was running the telephone booth since 1992. The timings were from 7.00 in the morning to 7.00 in the night. He says that he does not know that the incident had occurred 2-3 years ago when the riots were going on. Complainant admits of a police point opposite his booth and that the police would often come to his STD PCO Booth for making telephone calls. The STD PCO Booth was beside Ramesh Hotel and also stated that the appellant would come to eat there. This witness was declared hostile. The Public Prosecutor was permitted to cross examine him in accordance with Section 154 of the Evidence Act, where the complainant denied the Page 15 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined version given in the complaint. He denied of asking any dues of Rs.250/- of telephone bill from the accused. He also denied of demanding money from the accused. The complainant also denied that the accused was under the influence of alcohol. The complainant denied the fact that the accused got angry and had removed the cartridge from his pocket and had assaulted him with a rifle, abusing and pointing the same to him was saying "Uda Doonga, Khoon Kar Doonga". He had denied of any of such facts as stated in the complaint. He denied of the incident as given in the complaint and also of his hiding behind the curtain, on hearing the sound of firing. The complainant also denied of the CRPF Jawan coming there, apprehending the accused, snatching away the rifle from the hands of the accused, emptying the cartridges from his pocket and seizing them.
16. In the cross examination, the complainant stated that in Page 16 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined and around the neighboring vicinity of Mahakali Temple, there were many liquor dens. Because of the riots, at that time, patrolling were conducted by the armed police of SRPF and CRPF Jawans. He denied the suggestion that because of patrolling, the business of liquor was down. According to the complainant, the police had come to call him and had taken his thumb impression. He does not know what was written in the complaint.
17. The daughter of the complainant was manning the STD PCO Booth and was examined as PW2, who also has not supported the police case and has denied the whole incident. In the same way, the wife of the complainant and mother of PW2, who was examined as PW3 has not supported the prosecution case.
18. PW4-Manoj Makwana has been the panch, the panchnama-Exhibit 19 was drawn in connection with the Page 17 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined cartridges and rifle. He denied of those being seized in his presence. After being declared hostile, the panch had not supported the prosecution case. In the cross examination, the learned Public Prosecutor had put certain suggestions. The witness has denied of the presence of accused-Bhagvatsinh Deepsinh Puwar when he was called in Modi ni Chali, near Mahakali Mandir. He has also denied of any unpleasant smell of alcohol from the mouth of the accused, denied of the eyes of accused in red, walking in an imbalanced manner. The suggestion that CRPF Sipahi Shri. Madhavan had produced one rifle and one used cartridge and other eight live cartridges was denied by this PW4.
19. The relevant fact which was produced through PW4- panch witness which requires appreciation in context with the incident is the alleged rifle and the used cartridges produced by CRPF Jawan Shri. Madhavan, who has not Page 18 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined been examined in the present case. The whole incident as pointed out is that the accused had raised his rifle against the complainant and had fired one round. Even the panch witness PW5-Pudlik Vithalrao, who is the panch at Exhibit 20 has very categorically stated that nothing was seized in his presence. The fact of CRPF Shri. Madhavan producing the rifle as well as the used cartridge and the live bullets has not been supported by PW5. The deposition of PW5 however affirms that at the time, there were riots in the city and near Mahakali Mandir there was CRPF point, but he does not know the police presence though PW5 confirmed that at the time of incident, Bhagvatsinh Deepsinh Puwar was having his service at the point. He denies of the accused having consumed liquor and also denied of the incident which was alleged to have taken place near Ganesh Telecom Booth and has categorically affirmed of no muddamal being seized. According to the cross examination, the Page 19 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined group had dispersed within 10-15 minutes. The police had taken the signature on a blank paper, and he stated that he has no knowledge of what use, the police had made of the blank paper on which his signature was taken.
20. PW6-Munnasinh Ramavtaar and PW7-Babubhai Chauhan were examined as panch for panchnama-Exhibit 22 of seizing clothes of accused in their presence, they have denied the same. Both the witnesses confirmed about the riots near Mahakali Mandir and the police point deployed there. PW8-Gajanand Nenuram Marwadi stated that the police had forcibly taken his signature in Exhibit 24 and PW9-Bharatbhai Kaluji has also not supported the panchnama-Exhibit 27. The panchas have not supported the police case of seizing the rifles, cartridges or clothes of the accused.
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21. The learned trial Court has not believed the case of the prosecution against the accused under the Bombay Prohibition Act. PW10-Sureshkumar Vishwanath Dave who was the person serving in FSL as a Scientific Officer in the Alcohol Department was examined and the Ethyl Alcohol in the blood of the accused was found as 0,0913%.
22. Learned APP Mr. Rohankumar H. Raval has stressed upon the provisions of the Bombay Prohibition Act to submit that as laid down under Section 66 of the Prohibition Act, to prosecute, one has to prove consumption of liquor with the concentration of alcohol in the blood of the accused person as not less than 0.05% weight in volume. It is submitted that the quantity was found to be beyond the limit and hence, stated that the acquittal is not in accordance with law.
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23. Countering the same, learned advocate Mr. B.C. Dave has submitted that the State has not challenged the acquittal under the Prohibition Act and further has referred to Sub-section (2) to Section 66 of the Prohibition Act. Referring to the deposition of PW15-Dr. Parul Rameshbha Vaghela, learned advocate Mr. B.C. Dave has drawn the attention of the Court with regard to the bottle produced during the cross examination as Mark 'B'. Learned advocate Mr. Dave submitted that the bottle which contained liquor was Byer's Tonic-250 ml and the Doctor had referred to the description of the bottle in the evidence of the bottle containing alcohol concentration 10% of V.V.
24. Section 66 of the Bombay Prohibition Act, 1949 reads thus :-
"66. Penalty for illegal cultivation and collection of hemp and other matters. - [(1) Whoever in contravention of the provisions of this Act, or of any rule, regulation or order made, or of any license, permit, pass or authorization issued, thereunder :-Page 22 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025
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(a) [x x x]
(b) consumes, uses, possesses, or transports any intoxicant [(other than opium)] or hemp,
(c) taps or permits to be tapped any toddy producing tree,
(d) draws or permits to be drawn toddy from any tree, shall, on conviction, be punished,-
(i) for a first offence, with imprisonment for a term which may extend to six months and with fine which may extend at one thousand rupees:
[xxx]
(ii) for a second offence, with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees. [xxx]
(iii) for a third or subsequent offences, with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees.
[xxx] ([(e) enters the territory of the State in an intoxicating condition or under the influence of an intoxicating (other than opium) or hemp, after having consumed such intoxicant or hemp at any place outside the State.] [(2) Subject to the provisions of sub-section (3), where in any trial of an offence under clause (b) of sub-section (1) for the consumption of an intoxicant [or in any trial of offence under clause (e) of sub-section (1) for entry in the territory of the State after consumption of an intoxicant or hemp at any place outside the State.] It is alleged that the accused person consumed liquor, and it is proved that the concentration of alcohol in the blood of the accused person is [not less than 0.05 per cent wight in volume] then the burden of proving that [the liquor consumed was a medical preparation consumed in quantity not in excess of normal dose as defined in section 24-A or that the liquor consumed was a toilet preparation], or an antiseptic preparation or solution, or a flavouring extract essence or syrup, containing alcohol the consumption of which is not in contravention of the Act or any rules, regulations or orders made thereunder, shall be upon the accused person, and the Court shall in the absence of such proof presume to the contrary.
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(a) by in-door patients during the period they are being treated in any hospital, convalescent home, nursing home, or dispensary, maintained or supported by Government or a local authority, or by charity, or
(b) by such other persons, in such other institutions, or in such circumstances as may be prescribed."
25. The initial burden thus, lies on the prosecution to prove the liquor levels of not less than 0.05% in weight in volume. The bottle produced in evidence contained was Bayer's Tonic-250 ml. The Court shall in absence of proof shall presume the contrary.
26. Here in the present case, the accused has stated in his further statement under section 313 Cr.P.C that on that day, he was on duty and no one had come to relieve him and he fell ill. He consumed 'Bayer's tonic'. He also stated in his statement that he was working at the residence of Member of Legislative Assembly Shri. Bharat Barot, it was believed that he was giving information to Page 24 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined MLA Shri. Barot with regard to liquor/bootlegging and gambling den and therefore, has been falsely implicated in the matter.
27. PW11-Arvindsinh Balwantsinh has proved by his evidence that rifle 410 No.993 alongwith 10 cartridges were issued to the accused police constable-Bhagvatsinh Deepsinh Puwar and he had made necessary entry of issuance in the register. The witness had made the entry in the original weapon register and he had referred to entry dated 04.06.2002 at Page 20 regarding issuance of the rifle and cartridges to the accused. A photocopy of the register was produced at Exhibit 34. In the cross examination, the witness confirmed that the rifle issued to the accused was very old and was of English period. He further stated that every month at the Police Head Quarters, necessary entry would be made of the arms which would be sent to the Police Station. Whether the Page 25 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined rifle are serviceable or non-serviceable, such entries are made in the Register. The issuance of rifle and bullets thus seems to be proved.
28. PW16-Police Inspector-Vakatsinh Devisinh Vanar, was serving at Ahmedabad City, Crime Branch in February 2005. Additional charge was given to him of the Dariapur Police Station. On 04.06.2002, when he was at Madhupura Police Station, at about 10.41 night, he received a message from the Control room where he was informed that near Mahakali Mandir, Madhubhai Lawn, a police constable had fired. He reached the place of incident. At the place of incident, CRPF Jawan had informed him about the incident. The complaint was written by his Writer. PW16 identified the thumb impression of the complainant. According to the deposition of PW16, the accused Police Constable was detained by CRPF Constable who were present there at Page 26 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined Modi ni Chali. The panchnama of the physical condition of the accused was drawn at Exhibit 19. He further stated that the clothes of the accused had blood stains. There was injury above his eyes and his eyes were red. He could not maintain his balance and was stammering. There was stench of alcohol from his breath, accused was taken to Civil Hospital. The panchnama-Exhibit 27 was drawn at the place of incident in his presence. He further stated that at about 2.30pm after permission, the accused was brought before him. The certificate of treatment was received, during which the statement of the witnesses were recorded, which included the statement of son of lodge owner. CRPF Jawan who had taken the accused for treatment, their statements were also recorded.
29. It requires observation that though this PW16 had come there at the place immediately after having received the Page 27 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined message from the control and had also taken a complaint, he had not made any arrangements for sending the accused for medical treatment with his own police personnel, as according to his deposition, in his case that the CRPF Jawan had taken the accused for treatment.
30. The physical condition of the accused was recorded, there were blood stains on his clothes and injury on the eye. The blood was found on his uniform, how he sustained injury on the eye does not become clear. Further the deposition of PW15-Dr. Parul Rameshbha Vaghela becomes relevant. Her deposition at Exhibit 39 states the history which was recorded on 07.03.2002 at 8.30 p.m. the accused was beaten by stick and such history was given to the Doctor. The injury recorded in the Medical Certificate produced by the witness shows that there was 2 x 0.5 cm CLW on the left eye upper and bruises of 3 x Page 28 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined 3 cm on the upper part of the left leg. For further treatment, the accused was sent to Dr. Ghasura in Surgical Ward. The documents of Surgical Ward has been produced on record. Exhibit 41-Form A is also issued by the concerned Medical Officer which record that the left leg was not proper, due to pain. How the accused sustained injuries does not get proved while the accused before doctor stated that at about 8:30 pm he was beaten. The injuries proves the beating.
31. PW16-PI in his deposition further stated that after drawing panchnama of the physical condition of the accused, CRPF Jawan P. Madhavan produced one rifle, one used maxim and eight live cartridges which were seized. The panchnama appears to have been drawn only after the CRPF Jawan brought back the accused, why the rifle and the cartridges were seized from the CRPF Jawan does not get proved. The history of the Page 29 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined incident as has been given by the accused before the PW15-Dr. Parul Rameshbha Vaghela is of the beating he received at 8.30 night while the allegation of the firing is of 10.30 night, does not get corroboration with the I.O. who stated that he had come there at 10.41pm, but there is no mention of the I.O. that prior to registering of the complaint, he had seen the accused at the place of incident. The clear case of I.O. is that the CRPF had taken the accused for medical treatment. The incident had occurred at 8.30 pm which gets reflected in the history before the Doctor. The complainant has not supported the prosecution. The case of the complainant alleging incident of 10.30 night, of the firing is not proved by FSL Report, while the FSL Report of biological department on the samples sent by the Ballistic Department proves the presence of the blood on the old dirty uniform of the accused.
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32. The P.I.-Investigating Officer stated that he had drawn the panchnama of the rifle and the cartridge. According to him, he had sealed the live as well as the used cartridges and had sent the rifle, cartridge and clothes to the FSL. The despatch note he produced at Exhibit 43 and according to him, Exhibit 44 was the evidence of receipt of muddamal.
33. Exhibit 44 is from the FSL Department dated 25.06.2002.
The communication is by the FSL Department to the Police Inspector about the receipt of four muddamal. The learned trial Court Judge has not made any observations with regard to the FSL Report which is attached alongwith Exhibit 44 in the judgment. The rojnama of the trial at Exhibit 44 refers to Mark 10/9 as the receipt by FSL regarding the muddamal. Exhibit 30 is the Alcohol Examination Certificate dated 29.06.2002 by the FSL, but the FSL Report dated 13.03.2003, though has Page 31 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined been produced alongwith Exhibit 44-the receipt issued by the FSL, has not been produced and proved in evidence which is only with regard to Parcel 'C' and 'D'. No report has been sent by FSL about Parcel 'A' and 'B'. The analysis Report is by the Biological Department. No ballistic report of the alleged service rifle has been proved on record. The allegation by the complainant was that the rifle was pointed to him but he has denied the said fact in his deposition. The prosecution has produced on record the panchnama Exhibit 27 though not proved by the panchas, at the place of accident, which is shown as on Mahakali Road, Shahibaug, Police Headquarters, Outside Police Line Compound, Opposite Ganesh Telecom, the tar road. The road was minutely observed and no noticeable signs were found. It was noted that almost about at 10 feet distance was Ganesh Telecom and on the east, there was a kachha roof lodge which was adjourning to the police headquarters compound. The Page 32 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined electricity pole No.1741 was also noted and the light was in a working condition. The road was on the eastern side towards Mahakali Temple and on the southern side was Government 'A' Colony. The police had not seized anything from the place of incident.
34. The Officer stated that till the time the chargesheet was filed, no FSL Report was received. In the cross examination he had stated that he has not received the name and address of the person alleged in the incident in the message from control. He had not seized any record from the wireless message book nor any statement of the constable connected with the wireless message was recorded. He denied the suggestion that the message prior to 10.41 hours was against the investigation and therefore, it has not been deliberately produced.
35. The witness as a Investigating Officer stated that ASI Page 33 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined Ahmedkhan Hajikhan has not reached the place of incident, prior to him and also denied the suggestion that ASI Ahmedkhan Pathan had taken the accused to the hospital and produced before him at the police station at 10.45 pm.
36. In the cross examination, the Investigating Officer affirmed that the residence of the Member of Legislative Assembly was in the police station in the jurisdiction of Madhupura and that more than one constable or head constable are deputed for MLA protection. The IO could not say without the record whether the accused was deputed at the residence of MLA Babubhai Barot. He affirmed that in the past, there were record of bootlegger in Dudheshwar area known as 'bhabhi na adda' and denied the suggestion of any record of trade of english liquor by big traders near Vadilal Icecream. Page 34 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025
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37. The I.O. affirmed that rifle and cartridge were not seized from the actual possession of the accused and also affirmed that there was no injury from the firing. He denied the suggestion that the accused was giving information to MLA and therefore, under that suspicion has been falsely framed in the matter.
38. The evidence of the I.O. does not inspire confidence. The report of the examination of the rifle as well as the used cartridge is not proved on record to prove the case of actual firing from his service rifle. The reason has not been proved of the blood found on the uniform of the accused and the injuries on his body. The history before the Dr-PW16 proves that the accused was beaten with a stick at 8.30 at Madhupura. It appears that the Doctor even stated at 1.10 hours at night, the accused had come with the written yadi of Madhupura Police Station. However, the evidence of the I.O. would suggest that the Page 35 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined CRPF Jawan had taken the accused for medical treatment. The weapon as well as the cartridges were seized from CRPF Jawan, the history before the Doctor proves that some incident had occurred at 8.30 pm., the I.O. has not produced the message from the control room, which he received. The alleged incident is shown of 10.30 by the complainant and the I.O. states that he had received the control message at 10.41 pm.
39. CRPF Jawan-Iqbal Jagasinh was examined as PW14. He was working at Mahakali Temple area in CRPF Battalion No.138. He stated that in Platoon No.5 posted at Mahakali Temple in their company was Havaldar Narayan Dutt, Dev Husain and another constable P. Madhavan, Bhargav, Burman. He stated that the incident had occurred at 9.30 pm. They were patrolling their duty time was 9 to 12, they heard the firing near Sogaj and when they reached the place, they saw a policeman with Page 36 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined a rifle in his hand who was walking in a disorderly manner. He and Madhavan caught him. According to the witness, Madhavan has held his rifle and he had restrained the accused from one side. According to the witness, accused was in an intoxicated state. The camp was at Sogaj where gradually they brought him. The witness stated that when they had held him, their Havaldar was with them and Camp Commander was also present there to whom they had handed over the accused. They informed their Company Commander who also had come there. The police too had come who took the accused.
40. The fact becomes contrary about the place of offence as recorded in the panchnama which is not the same place as stated by this CRPF witness. The firing was heard at Sogaj where there was Camp of CRPF. Why the matter was reported to the Company Commander and not Page 37 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined immediately to the police has not been explained by the witness. In cross examination, the witness stated that they were at a distance of 20 to 30 gaj away from Mahakali Temple where they heard the firing. P.Madhavan was ahead of him. He also stated that the area between Mahakali Temple and the lane was a crowded area. Curfew was there on that day after 6.00 pm, there was frequency of people when they heard the noise of firing, many people had gathered there. According to him, police had come before 10.30 pm.
41. PW13-Narayan Dutt Shri Badri Dutt is from Battalion No.171. CRPF witness was also on duty at Paltu Post No.5. Alongwith him, were two Havaldars and two Sipahis. The firing incident occurred at 9.30, they went there. According to him P. Madhavan and Iqbalsinh were ahead of them and they had caught hold of one person who was brought before him. Police Constable Page 38 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined Madhavan stated that the said person had fired, thereafter, they took him to their Camp. According to the witness, the person whom they had apprehended had a rifle and cartridges in his bag and the used cartridge were in his rifle. The apprehended police was in uniform with the name plate. The witness had not seen the rifle number. In the cross examination, he had stated that he had not given the report to the superior officer. He stated that during the time of riots, police would generally have the bullet kept ready in the magazine and would load the rifle. He also stated that accidentally while cleaning the rifle, fire can take place.
42. PW12 is Ahmedkhan Hajikhan. He was a PSI at Madhupura Police Station on 04.06.2002. He was on patrolling duty in his requisite vehicle. The vehicle operator Laxmansinh had informed him that there was firing by police constable at telephone booth of Page 39 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined Chatrasinh at Devjipur Mahakali Road. Therefore, he immediately went to to Modi ni Chali where he saw that CRPF police had restrained accused, at that time, senior PI Shri. Vaner had come there, the witness stated that the accused was under the influence of alcohol. Shri. Vaner had asked him to take the accused to Civil Hospital under the written yadi, therefore, he took him to Civil Hospital. The Doctor gave him treatment and took his blood. The police had given the Certificate. He brought the accused to police station and had handed over the certificate and accused to the PI. The police witness though states of taking the accused to the Civil Hospital under police yadi, he has no knowledge that the accused was injured. He does not even know whether blood had fallen on the clothes of the accused. In the cross examination, the witness was asked about the duty list, the topography of the area and has referred about the wireless set in the vehicle. He does not recall the Page 40 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined exact message given by Laxmansinh on wireless nor had he got the message recorded in his police statement. The witness stated that after receiving the message, he reached the place of incident, it was 23.05 hours. The witness also affirmed about the residence of MLA Barot in Madhupura Police Station area. He does not know whether accused was giving information regarding the liquor and gambling den to MLA Shri. Barot. The evidence of this witness also becomes doubtful. He too has not produced any record of the wireless message. The witness has no information about the physical condition of the accused when he had taken him to the hospital.
43. On overall analysis of the evidence and more specifically, the history before the Doctor, it appears that some incident had occurred at 8.30 pm. The accused had informed the Doctor that he was beaten with a stick, the Page 41 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined injuries of the accused were proved by the Doctor. The firing as alleged could not be proved. No ballistic report has been produced on record. The complainant has totally denied the incident. The evidence of the CRPF and the police does not get co-related. The sequence of the incident had not been proved. Some contrary facts were there which have been suppressed by the I.O. The blood stains on the uniform of the accused coupled with the physical injury would lead to the conclusion that actually the accused was a victim. The person Madhavan who had first held the accused and from whose custody, the rifle and the cartridge as well as the bullets were produced has not been examined. The complainant appears to have no knowledge of the incident. He has merely put his thumb impression on the complaint under the instructions of the I.O., who had taken the complaint, recorded the statement of witnesses and investigated the matter further had also filed the charge- Page 42 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025
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44. In the above analysis of the evidence, without the corroborating evidence of expert in the form of ballistic report, the case of firing could not be believed. At the place of incident, no gun powder was found nor any gun powder was found on the clothes of the accused. The position of the projectile (bullet), the propellant (gunpowder) and the primer (which ignites the powder) are the necessary components to be proved during the trial to establish the case of firing.
45. In the result, in view of the observations made herein above, the conviction order passed by the learned trial Court fails merits. Thus, the appeal is allowed. The judgment and order of conviction and sentence dated Page 43 of 44 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Dec 03 2025 Downloaded on : Wed Dec 03 20:50:53 IST 2025 NEUTRAL CITATION R/CR.A/39/2006 JUDGMENT DATED: 27/11/2025 undefined 13.12.2005 passed by the learned Additional Sessions Judge, Ahmedabad City in Sessions Case No.236 of 2003 is set aside. The appellant is acquitted of all the charges levelled against him. Bail bond, if any, stands discharged. Record and proceedings be sent to the concerned Court forthwith.
Sd/-
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