Gujarat High Court
State Of Gujarat vs Himmatsinh Javansinh Rajput on 4 October, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
R/CR.A/1274/2005 JUDGMENT DATED: 04/10/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1274 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
==========================================================
Approved for Reporting Yes No
✓
==========================================================
STATE OF GUJARAT
Versus
HIMMATSINH JAVANSINH RAJPUT
==========================================================
Appearance:
MR JK SHAH, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
MS SUNEETA R SHUKLA(5574) for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 04/10/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIKHIL S. KARIEL)
1. Heard learned Additional Public Prosecutor Mr.J.K.Shah appearing on behalf of the appellant - State.
2. By way of this appeal under Section 378(1)(3) of the Code of Criminal Procedure, the appellant State seeks to assail judgment and order passed by the learned Sessions Court, Banaskantha at Palanpur dated 24.01.2005 in Criminal Page 1 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:13:09 IST 2025 NEUTRAL CITATION R/CR.A/1274/2005 JUDGMENT DATED: 04/10/2025 undefined Appeal No.98/2002 more particularly whereby the learned Sessions Court has acquitted the opponent herein - sole accused for the offences punishable under Section 307 of the IPC read with Section 135 of the Bombay Police Act.
3. Facts in brief, leading to the appeal being that an FIR came to be registered on 31.08.1996 by one Asifkhan Pirkhan Baloch who was an eye witness to the incident inter alia alleging that while he was present near in an area of Palanpur called Kharavas, he had seen the injured victim Firozkhan Kalekhan Makrani sitting on a wall near the water tank and whereas, the accused having rushed towards the injured victim with a Dhariya in his hand and having assaulted him thrice and whereas, the injured victim had fallen down and the complainant had thereupon tried to apprehend the accused and whereas, the accused using force had come out of the grip of the complainant and in the scuffle the Dhariya with which he had assaulted the injured victim had fallen down and whereas, the accused had run away from the spot. 3.1. It is further alleged that the complainant along with some other persons who had rushed to the spot had taken the injured victim to the Palanpur Civil Hospital and whereas, in Page 2 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:13:09 IST 2025 NEUTRAL CITATION R/CR.A/1274/2005 JUDGMENT DATED: 04/10/2025 undefined the FIR it is mentioned that as per the injured victim, the assault by the accused was on account of an old dispute between the accused and the injured victim more particularly whereby, the injured victim had caught hold of the accused atleast a year back when the accused had gone to the house of the injured victim for the purpose of committing a theft and whereas, thereafter, it is alleged that the injured victim had assaulted the accused. It is also alleged that the injured victim had thereafter been shifted to Ahmedabad Civil Hospital etc. 3.2. It appears that the charge-sheet had been filed by the Investigating Officer and whereas, charge had been framed on 10.05.2004 and whereas after the trial, learned Sessions Court, vide the judgment impugned, had acquitted the accused of the charges leveled against him.
4. Learned APP Mr.Shah would assail the judgment by submitting that the learned Sessions Court has committed a grave error which would require interference of this Court. It is submitted that though on record it is coming out that there was an independent eye witness to the incident and whereas, there were other persons who had witnessed the incident, yet, the learned Sessions Court had disbelieved their deposition. It Page 3 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:13:09 IST 2025 NEUTRAL CITATION R/CR.A/1274/2005 JUDGMENT DATED: 04/10/2025 undefined is further pointed out that merely on account of minor inconsistencies in the statement of the witnesses more particularly when such witnesses had confirmed that they had witnessed the incident, the learned Sessions Court ought not to have disbelieved them.
4.1. Learned APP would submit that the present was a case of a premeditated assault where the injured victim was sitting at a place and the accused had come over to such a place and without any provocation or altercation with the deadly weapon which the accused had brought along with him, had assaulted the injured victim thrice. Learned APP would submit that the motive for the assault also coming out on record, the learned Sessions Court ought to have accepted the version of the prosecution and ought to have convicted the accused. 4.2. Thus submitting, learned APP would request this Court to interfere in the impugned decision and set aside the same.
5. Heard learned APP on behalf of the appellant - State and perused the documents on record.
5.1. At the outset, before proceeding with examining the submissions of the learned APP, we would refer to the Page 4 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:13:09 IST 2025 NEUTRAL CITATION R/CR.A/1274/2005 JUDGMENT DATED: 04/10/2025 undefined decision of the Hon'ble Supreme Court in case of Babu Sahebagouda Rudragoudar and Others vs. State of Karnataka, reported in 2024 (8) SCC 149, paragraph No.41 being relevant for the said purpose, is reproduced hereinbelow for benefit:-
"41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-
(a) That the judgment of acquittal suffers from patent perversity;
(b) That the same is based on a misreading/omission to consider material evidence on record;
(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
5.2. Considering the law laid down by the Hon'ble Supreme Court, it would appear that an Appellate Court could interfere with a judgment of acquittal recorded by the Trial Court in favour of the accused only in certain circumstances. The primary circumstance being that the Appellate Court is required to come to a conclusion that the judgment of acquittal suffers from the patent perversity. The second aspect being that the Sessions Court has acquitted the Page 5 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:13:09 IST 2025 NEUTRAL CITATION R/CR.A/1274/2005 JUDGMENT DATED: 04/10/2025 undefined accused on account of misreading / omitting to consider certain material evidence which was on record and the third aspect being that upon examining the evidence available on record, there is only one view possible that is consistent with the guilt of the accused and whereas, there should not be two different views which could be discernible. 5.3. Again, most importantly, the Hon'ble Supreme Court has laid down that to interfere with the judgment of acquittal, the Appellate Court has to record findings more particularly as per the aspects laid down by the Hon'ble Supreme Court as noted hereinabove.
6. Considering the fact situation from the perspective of the law laid down by the Hon'ble Apex Court, to this Court, it would appear that none of the circumstances, as laid down by the Hon'ble Apex Court, would be available in the present case. We are of the considered opinion that neither the decision of the learned Sessions Court suffers from any patent perversity nor it is based upon misreading / omission of material evidence on record nor we are of the opinion that upon examining the evidence, there is only one view possible which is inconsistent with the guilt of the accused. Page 6 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:13:09 IST 2025
NEUTRAL CITATION R/CR.A/1274/2005 JUDGMENT DATED: 04/10/2025 undefined 6.1. To arrive at the above conclusion, having examined the record threadbare, we would highlight certain aspects which also has weighed with the learned Sessions Court. The primary aspect being as having been pointed out by the defense that the injured victim had been firstly taken to the Palanpur Civil Hospital and whereas, he had thereafter been taken to the Civil Hospital, Ahmedabad and whereas, at Ahmedabad dying declaration of the injured victim had been recorded by an Executive Magistrate. It would appear that the Executive Magistrate concerned who had recorded the dying declaration had not been brought forth by the prosecution as a witness, rather, the Executive Magistrate had been called for as a witness by the defense. In his deposition, the Executive Magistrate supports the fact of having taken a dying declaration and whereas, it would appear that in the cross-examination by the learned APP, it comes out that the injured victim at the stage of dying declaration had stated that while he was sitting at the place of the assault, he had seen Himmatsinh i.e. the accused little afar and the said Himmatsinh is stated to have turned and left for his residence and whereas, the injured victim also states that he had seen Page 7 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:13:09 IST 2025 NEUTRAL CITATION R/CR.A/1274/2005 JUDGMENT DATED: 04/10/2025 undefined one Javansinh standing behind with a Dhariya which had a copper plated handle. It also appears that a specific question had been posed to the said witness as regards whether the witness had committed a mistake in regarding the name of the accused as Javansinh instead of Himmatsinh and whereas, the witness had specifically denied that he had committed any mistake of such sort.
6.2. To this Court, it would appear that the deposition of the said witness, who is completely independent witness, who has no corelation with either the parties to the incident or to the incident in question is the most crucial material in the entire issue. The glaring aspect here is that the said witness who happens to be an Executive Magistrate and who happens to have taken a dying declaration of the injured victim had been conveniently not joined as a witness by the prosecution. Rightly so, since in the deposition, the entire case of the prosecution had crumbled on account of the deposition of the said witness more particularly whereby, while confirming the dying declaration, the said witness had clearly established that the assault, as per the dying declaration, was not by the present accused but was by some other person. Page 8 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:13:09 IST 2025
NEUTRAL CITATION R/CR.A/1274/2005 JUDGMENT DATED: 04/10/2025 undefined 6.3. Going further, it would also appear that the learned Sessions Court had noticed the fact that in the dying declaration, the injured victim had stated about another person namely one Javansinh standing with a Dhariya with a copper handle and it would appear that the Dhariya which was recovered at the site of the incident, using which the opponent accused had allegedly assaulted the injured victim, was not one with copper handle.
6.4. It would also appear that the learned Sessions Court has noticed that there were glaring inconsistencies in the deposition of the witnesses more particularly the complainant who claimed to be an eye witness to the incident. Learned Sessions Court, having dissected the deposition of the complainant, was of the opinion that from the deposition, it would appear that while the complainant was present at the site of the incident, yet, as per his own version, the complainant had not seen the actual assault and whereas, he had only seen that the accused - opponent herein was attempting to run away. It would also appear that the learned Sessions Court had also noticed inconsistencies in the deposition of other witnesses who had rushed to the spot upon Page 9 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:13:09 IST 2025 NEUTRAL CITATION R/CR.A/1274/2005 JUDGMENT DATED: 04/10/2025 undefined the injured victim raising hue and cry and whereas, the learned Sessions Court had clearly come to a conclusion that the said witnesses also, though they were present at the site or living around the place of incident, were not witnesses to the actual incident of assault and whereas, they had come to the place where the alleged assault had taken place only after the assault had been completed.
6.5. The learned Sessions Court had also noticed the suggestion by the learned advocate on behalf of the accused that the injuries were not so serious to have invoked offence punishable under Section 307 of the IPC and whereas, the learned Sessions Court had also noticed a suggestion by the learned advocate for the defense that the inconsistencies would magnify considering the fact that the injured victim himself was working in the police department at the time of assault and whereas, his father and brother were also employed with the police department.
6.6. Considering the above glaring inconsistencies more particularly whereby the defense could not establish beyond reasonable doubt as to the assault having been committed by the accused - opponent and whereas, to this Court, it would Page 10 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:13:09 IST 2025 NEUTRAL CITATION R/CR.A/1274/2005 JUDGMENT DATED: 04/10/2025 undefined appear that the learned Sessions Court had not committed any perversity whatsoever in coming out with the finding of acquittal in favour of the accused.
7. Having examined the decision as well as the record, we are also of the considered opinion that neither any material evidence had been omitted nor misread by the learned Sessions Court and whereas, we are also of the considered opinion that having examined the evidence on record, while two different views are not possible and whereas, the only view which could be taken as consistent with the reading of the material being that the prosecution had failed to establish beyond doubt that the accused had committed the incident and whereas, under such circumstances, we are disinclined to interfere in the present appeal.
8. At this stage, we would also not lose sight of the fact that the incident had happened somewhere in the year 1996 i.e. approximately three decades back and whereas, the judgment impugned before us is of the year 2005, that is also approximately two decades old and whereas, in view of the glaring inconsistencies, we are of the opinion that even otherwise, there is no case made out for interference with the Page 11 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:13:09 IST 2025 NEUTRAL CITATION R/CR.A/1274/2005 JUDGMENT DATED: 04/10/2025 undefined said decision. Hence, the appeal fails and is disposed of as rejected.
(NIKHIL S. KARIEL,J) (DIVYESH A. JOSHI,J) Bhoomi Page 12 of 12 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 22:13:09 IST 2025