Gujarat High Court
State Of Gujarat vs Shambhubhai Nanubhai Vaghela on 24 September, 2025
NEUTRAL CITATION
R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 302 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT
Versus
SHAMBHUBHAI NANUBHAI VAGHELA
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Appearance:
MS. KRINA CALLA, ADDL. PUBLIC PROSECUTOR for the Appellant(s)
No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 24/09/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY)
1. The respondent is the sole accused in SC 102 of 2011 on the file of the learned Additional Sessions Judge, Bhavnagar. He was prosecuted for the offences Page 1 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined punishable under Section 302 of IPC and 135 of Bombay Police Act. Eventually, he was acquitted of the said charges by the impugned judgment dated 23.11.2012.
2. Aggrieved by the said judgment of acquittal, the State has preferred the instant appeal assailing the legality and validity of the impugned judgment.
3. Facts of the prosecution case germane to dispose of the appeal may briefly be stated as follows:
4. The deceased Amrutben is the younger sister of the accused. She was a married woman. Her husband is a deaf and dumb person. She got one son and five daughters. The son and four daughters were married and one unmarried daughter has been living with her and her husband. She has been residing along with her husband and her unmarried daughter in their house.
5. The accused, who is her brother, got suspicion over Page 2 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined her character. He was of the opinion that she was leading an immoral life and she got illegal contacts with several other persons and that she has been also making an effort to drag her unmarried daughter also into the said immoral life.
6. While so, on 30.04.2011 at about 7:30 pm in the night, the accused went to the house of the deceased. He found only the husband of the deceased in the house and he did not find the deceased in the house. So, out of suspicion that she was with somebody, he went to his house and picked-up a weapon called "Dhariya" and he went to backside of the house of the deceased to search for her. At that time, he has seen the deceased in the fields with some male person, whom he could not identify due to darkness. After seeing the accused, the said male person ran away. The accused got enraged after seeing her with some male person at the fields and attacked her with Dhariya and caused injuries to her on her leg. She sustained severe bleeding injuries on her leg in the said attack and she Page 3 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined fell down. Thereafter, the accused called the 108 Ambulance from his mobile phone and after the ambulance arrived, he and the husband of the deceased lifted the injured person and they have taken the injured to the hospital in the ambulance. After she was taken to the hospital, the doctor who examined her declared that she died. The accused immediately came to his house and informed his parents about the death of the deceased.
7. On the intimation given by the hospital authorities regarding the death of the deceased, local police reached the hospital. At that time, they found the accused present at the hospital. The Police Inspector questioned the accused as to what happened. The accused narrated the entire incident and stated that when he found the deceased alone in the fields along with a male person, who ran away after seeing him, he got enraged and attacked the deceased with dhariya and caused injuries to her on her leg. The said statement of accused was recorded by the Police Page 4 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined Inspector and obtained thumb impression of the accused. The said statement was registered as an FIR for the offences punishable under Section 302 of the IPC and 135 of the Bombay Police Act. The case was investigated.
8. After holding inquest over the dead body of the deceased, autopsy was held over the dead body of the deceased. The doctor who held autopsy over the dead body opined that she sustained three bleeding injuries on her leg and she died of cardiorespiratory arrest due to hypotension due to blood loss due to deep lacerated injury of vessels in lower limb (left leg) A postmortem report was issued to that effect.
9. During the course of investigation, the accused was arrested on the next day i.e., on 01.05.2011 at about 11:55 am. It is stated that on the disclosure statement given by him, that he would show the weapon which was hidden by him which was used in commission of the offence, he led the police and the mediators, Page 5 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined examined as P.W.s 5 and 6, to the bushes near a temple and he has shown one dhariya. The police recovered the said dhariya in the presence of the mediators at the instance of the accused and seized the same. It was sent for examination to the Forensic Science Laboratory. The analyst, who examined it, found blood on the said dhariya, which is of A Group, which matched with the blood group of the deceased.
10. The Investigating Officer has also examined the daughter of the deceased, who is P.W.-7 and recorded her statement, wherein, she stated that she was in a hut in the fields on the night of offence and she had seen the accused attacking her mother, who is the deceased, with dhariya and when she tried to rescue her, that the accused also chased her to kill her and she ran and escaped and went away into the village.
11. After completion of the investigation, the police laid the chargesheet against the accused for the offences punishable under Section 302 of the IPC and 135 of Page 6 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined the Bombay Police Act.
12. In the trial Court, after the accused made his appearance, charges under Section 302 of the IPC and 135 of the Bombay Police Act were framed against the accused. He denied the said charges and claimed to be tried.
13. During the course of the trial, the prosecution got examined P.W.s 1 to 14 witnesses and got marked 28 exhibits to substantiate its case against the accused.
14. After conclusion of the trial, considering the evidence on record, the trial Court found the accused not guilty for the charges levelled against him and acquitted him of the said charges by the impugned judgment.
15. Challenging the said judgment of acquittal, as noticed supra, the State, being aggrieved by the said judgment of acquittal, filed the instant appeal.
16. When the appeal came-up for hearing, we have heard Page 7 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined Ms. Krina Calla, learned APP for the State at length. Though notice was served on the respondent, he did not enter his appearance. Yet, to give him a fair opportunity, the appeal was listed almost on 13 occasions. Yet, he did not turn-up for hearing. So, as this is an old appeal of the year 2013 which is listed on our board under the caption "for final hearing in critically old matters of 11 to 20 years", we are not inclined to further adjourn the appeal and we are disposing the appeal on merits as per the material available on record.
17. We have perused the Record and Proceedings and the evidence on record meticulously.
18. In order to prove the case of the prosecution against the accused that he has attacked the deceased with a weapon called "Dhariya" and caused bleeding injuries to her on her leg, which resulted into her death and that he thereby killed her, the prosecution is mainly relying on the statement of the accused himself, which Page 8 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined is registered as an FIR in this case and on the evidence of P.W.-7, who is the daughter of the deceased who is cited as an eye-witness to the incident of the accused attacking the deceased with dhariya and on the recovery of the crime weapon said to have been used by the accused in causing the injuries to the deceased at the instance of the accused which contained blood stains of A Group, which matched with the blood group of the deceased. This is the substantial evidence relied upon by the prosecution to prove the charges against the accused.
19. As regards the FIR that was registered on the basis of the statement of the accused himself, wherein, it is alleged that he has stated that he has seen the deceased, who is his sister, in the fields alone along with some unknown male person, who ran away after seeing him during that night time and that he got enraged and attacked the deceased with a dhariya and caused injuries to her on her leg is concerned, though the prosecution has placed strong reliance on the said Page 9 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined statement to prove the offence against the accused, at the outset, it is to be noticed that the said statement which is of the accused, which is registered as an FIR is not admissible in evidence and it amounts to a confessional statement of the accused which is hit by Section 25 of the Evidence Act. Section 25 of the Evidence Act clearly mandates that no confession made to police officer shall be proved as against a person accused of any offence. Therefore, even if it was a statement of accused that was registered as an FIR, which was recorded by the police and which was given to the police, it could not be termed as a valid piece of evidence in view of the express prohibition contained in Section 25 of the Evidence Act. Way back in the year 1966 itself, a 3 judge bench of the Supreme Court in the case of Aghnoo Nagesia Vs. State of Bihar reported in AIR 1966 SC at Page 119 held that if the FIR is given by the accused to a police officer, it amounts to a confessional statement and proof of the said confession is prohibited by Section 25 of the Evidence Page 10 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined Act. Then, very recently, the Apex Court again in the case of Narayan Yadav Vs. State of Chhattisgarh reported in 2025 SCC Online SC 1603, after analyzing the entire law on the point with reference to various judicial pronouncements given on the point by the Supreme Court, it is authoritatively held that a confessional FIR is not admissible as an evidence. Needless to cite various judgments that are rendered by the Apex Court on the said legal position as all those judgments are clearly referred and discussed in the recent judgment in Narayan Yadav case cited supra by the Apex Court and held that a confessional FIR is not admissible in evidence. Therefore, in view of the clear law that has been enunciated in the above judgments of Supreme Court, the FIR in the present case which is in the form of confessional statement of the accused cannot be used as a valid piece of evidence against the accused for the purpose of proving the charges under Section 302 of the IPC and under Section 130 of the Bombay Police Act against Page 11 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined him. Therefore, it has to be excluded from consideration.
20. Apropos, the evidence of P.W.-7, who is the eye witness, is concerned, she is none other than the major daughter of the deceased. She is aged about 20 years. She is also a niece to the accused. According to the prosecution version, she was in a hut which is in the fields on that night when the offence took place. As per the prosecution version, the incident took place around 8:30 to 9:00 pm in the night in an isolated place in the fields behind the house of the deceased. It was dark night at that time and admittedly, there is no source of light at the scene of offence. According to the prosecution version, the said hut in which P.W.-7 was found at that time was at a distance of 60 ft. from the scene of offence. It is stated that from the said hut and from a distance of 60 ft., she has seen the accused attacking the deceased with dhariya. The trial Court disbelieved her evidence on the ground that as there was no source of light at the scene of offence, that it Page 12 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined could not be believed that P.W.-7 has identified the accused as a culprit in the dark night from the distance of 60 ft. But that cannot be a sole ground on which the evidence of P.W.-7 can be disbelieved and discarded. It has to be seen here that the accused is not a stranger to P.W.-7. He is her own maternal uncle. So, he is a known person to P.W.-7. It is well settled law that identifying a known person even in a faint darkness is not difficult and evidence of such witness relating to identifying the culprit can be believed.
21. On this aspect regarding identification of the culprit who is a known person in a dark night there are plethora of judicial pronouncement. The Apex Court in the recent judgment rendered in the case of Pruthviraj Jayantibhai Vanol Vs. Dinesh Dayabhai Vala and ors reported in (2022) 18 SCC Page 683 held that criminal jurisprudence developed in India recognizes that eyesight capacity of those who live in rural area is Page 13 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined far better compared to town folk. It is held that identification at night between known persons is acknowledged to be possible by voice, silhouette, shadow and gait also and more so when parties were known to eachother from before.
22. In another judgment rendered in the case of Bharosi and Ors. Vs. State of MP reported in 2002 7 SCC Page 239, the Apex Court held that identification of accused even in faint darkness when they are known to the witnesses is possible. Even way back in the year 1972 in the case of Nirmal Singh Vs. State of Rajasthan reported in (1972) 3 SCC 781, the Supreme Court held that identification of known person is possible even in darkness.
23. Therefore, in the instant case, as P.W.-7 is the own niece of the accused and as the accused is the known person to her, i.e., her maternal uncle, it is not difficult for her to identify him even in the darkness from a distance of 60 ft. in view of the ratio laid down in the Page 14 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined aforesaid judgments of the Apex Court. So, the evidence of P.W.-7 cannot be disbelieved and eliminated from consideration on that ground that as there is no source of light, that she could not identify the accused.
24. However, after considering her evidence and when the same is subjected to strict judicial scrutiny, we find other valid reason to doubt the veracity of the testimony given by her. It is relevant to note here that the incident took place at an isolated place in the fields situate behind the house of deceased while she was in the company of an unknown male person. The time of the incident is about 8:30 to 9:00 pm. In villages, it is undoubtedly a late hour. Therefore, when P.W.-7 claims to be present in a hut in the fields at that odd hour during night time at about 9 pm and that too alone, she has to explain as to why she was present in that hut in the fields at the odd hour at 9 pm and thereby she has to account for her presence at that place to believe that it is probable for her to be present Page 15 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined at that time. As can be seen from her evidence, absolutely no reason whatsoever or explanation is offered as to why she was present alone at that odd hour during the night time in a hut in the fields. When a person who is not expected to be usually be present at that place at a particular time, claims to be present there, she is generally to be termed as a chance witness. In order to accept the testimony of a chance witness, it is settled law that the first requirement of law is that the said witness has to account for her presence at that place and more particularly, when the incident took place at odd hour during night time at a an isolated place. If the witness fails to give any explanation or reason to account for her presence at that time at the scene of offence, then her presence at the scene of offence at that odd hour becomes doubtful and it would be very difficult to place complete reliance on her testimony. We have meticulously gone through her evidence and searched for the reasons, if any, assigned by her to account her presence. Even to a Page 16 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined pointed question in this regard, learned APP also fairly conceded after reading her evidence that she did not give any reason as to why she was present at that time in that hut in the fields during that night time in an isolated place. Therefore, we could not believe her presence at the scene of offence at that odd hour. If her evidence is eliminated from consideration and discarded as her presence is doubtful at that time, there is no other evidence to prove that it is the accused who attacked the deceased and caused injuries to her which resulted into her death. It appears she is a planted witness by the prosecution to bolster the case of the prosecution.
25. As regards the recovery of the weapon is concerned, the two panch witnesses examined as P.W.s 5 and 6 did not support the case of the prosecution. They did not depose in their evidence that the accused has given any disclosure statement and in pursuance of the said statement that he led the police and the mediators to the bushes near the temple and has Page 17 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined shown the weapon and that the weapon was recovered at his instance by the police and seized the same. Therefore, as the panch witnesses did not support the said version, the only evidence of the IO is required to be considered. No doubt as per the settled law, even if the panch witnesses turned hostile and if they did not support the case of the prosecution regarding the recovery of the weapon, still the evidence of IO can be considered by the Court and if the evidence of the IO regarding that recovery of the weapon is found to be trustworthy and inspires full confidence in the mind of the Court, the same can be accepted in proof of the recovery of the weapon. But there are certain requirements of law which are to be established by the prosecution to believe the evidence of the IO on that aspect. It is settled law that the IO has to clearly depose in his evidence regarding the exact disclosure statement given by the accused by reproducing the said words as it is in his evidence. In other words there must be a verbatim reproduction of the entire Page 18 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined statement of the accused given before him in his evidence. Then only, considering the other aspects, the Court can place reliance on the testimony of the investigation officer. The legal position in this regards has been dealt with by the Apex Court in the recent judgment rendered in the case of Ramanand alias Nandlal Bharti Vs. State of UP reported in (2023) 16 SCC page 510. It is held in the said judgment that before accepting the evidence of discovery, the contents of the panchnama must be proved and therefore, the IO in his deposition has to prove the contents of the panchnama. The IO in his oral evidence neither stated about the exact words uttered by the accused at the Police Station nor he proved the contents of the discovery panchnama. So the recovery of the weapon cannot be accepted. In the instant case also the IO in his deposition did not prove the contents of the panchnama and he did not state about the exact words uttered by the accused as recorded in the panchnama. Therefore, as the contents of the Page 19 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined panchnama are not proved, no reliance can be placed on the sole testimony of the IO. So the recovery of the weapon viz Dhariya at the instance of the accused is not proved as per the prescribed legal mode in this case. So even if any blood stains of A group which matched with the blood group of the deceased or found on the said weapon, it is of no use for the prosecution to establish its case against the accused as it is not proved that it was recovered at the instance of the accused under Section 27 of the Evidence Act.
26. The Trial Court also found variance between the weapon as spoken to by the witnesses and the weapon that was actually produced before the Court. The witnesses deposed that the weapon that was recovered is dhariya and the weapon that is actually recovered in the case is dataradu. Therefore, considering the said variation in the description of the weapon also, the Trial Court disbelieved the said recovery of the weapon.
27. Therefore, considering the entire gamut of evidence on Page 20 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined record and on reappraisal of the same, we are of the considered view that the prosecution has miserably failed to prove the guilt of the accused for the charges levelled against him beyond reasonable doubt. Proof beyond reasonable doubt is the standard of proof required to prove the guilt of the accused in a criminal trial. Any reasonable doubt arising from the evidence on record shall necessarily go to the benefit of the accused. Further, in an appeal against acquittal, the accused is entitled to double presumption of innocence when the trial Court has already recorded a finding of acquittal in his favour after considering the evidence on record. Therefore, the prosecution has failed to make out any strong case warranting interference of this Court in this appeal with the impugned judgment of acquittal.
28. The trial Court also after considering the evidence on record and on proper appreciation of the same arrived at the right conclusion and recorded a finding of acquittal in favour of the accused. We do not find any Page 21 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025 NEUTRAL CITATION R/CR.A/302/2013 JUDGMENT DATED: 24/09/2025 undefined perverse appreciation of the evidence on record or any legal flaw in the impugned judgment of acquittal. So, the impugned judgment is perfectly sustainable under law and it calls for no interference in this appeal. Therefore the appeal fails and it is liable to be dismissed.
29. In fine, the appeal is dismissed confirming the judgment of acquittal of the trial Court.
30. Bail bonds if any shall be discharged. R&P be sent back to concerned trial Court forthwith.
(CHEEKATI MANAVENDRANATH ROY, J) (D. M. VYAS, J) Anuj Page 22 of 22 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 01:49:10 IST 2025