Gujarat High Court
State Of Gujarat vs Dhirubhai Lakhabhai Makwana on 25 September, 2025
NEUTRAL CITATION
R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 189 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
DHIRUBHAI LAKHABHAI MAKWANA & ORS.
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Appearance:
MS KRINA CALLA, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 25/09/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY) Page 1 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025 NEUTRAL CITATION R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025 undefined
1. The respondent Nos. 1 to 3 were prosecuted for the offences punishable under Sections 447, 392, 397 r/w. Section 114 of the Indian Penal Code, 1860 (IPC) and under Section 135 of the Bombay Police Act in Sessions Case No. 98 of 2009 on the file of learned Sessions Judge, Bhavnagar. At the culmination of the trial, they were acquitted of all the aforesaid charges by the impugned judgment dated 10.10.2012. Aggrieved thereby, the State has preferred the instant appeal assailing the legality and validity of the said judgment of acquittal.
2. Brief overview of the facts of the prosecution case may be stated as follows:
2.1 The complainant is an agriculturist by profession. There was a rivalry between the complainant and the accused who are accused Nos. 1 to 3 (A1 to A3) in the said case. On the night of 05.01.2009, the complainant, who is examined as PW-1, was sleeping in his field on a cot. While he was sleeping, at about 3:00 a.m., it is stated, that A1 to A3 came to the field of the complainant. A1 was holding a Page 2 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025 NEUTRAL CITATION R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025 undefined Dhariya (Scythe), A2 was holding a Hockey stick and A3 was holding a wooden stick and A2 attacked the complainant with a Hockey stick and he has extorted a mobile phone from the pocket of the complainant and A3 attacked the complainant with a wooden stick. Though A1 was holding a Dhariya, he did not attack him. It is stated that he extorted Rs.3,600/- cash which is in the pocket of the inner garment of the complainant. It is stated that the complainant did not wake up even after he was attacked by A2 and A3 and when the mobile phone and the cash were extorted from him, out of fear that he might be attacked severely by the accused, but later on, when he woke up, he has seen the accused in the moonlight.
It is further stated that there was a blanket covered on him and the accused has put the grass available at the field on the said blanket and set fire to the said blanket and the complainant has also sustained burn injuries. Thereafter, the accused left the scene of offence and went away along with the mobile phone and cash of Rs.3,600/-.
2.2 Thereafter, the complainant got up from the cot and he went to Page 3 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025 NEUTRAL CITATION R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025 undefined the house of one Rameshbhai in the village and from the mobile phone of the said Rameshbhai, he called his son who is examined as PW-4 and after his son came, they both went to the scene of offence again. Thereafter, it is stated that the complainant was taken to the hospital. He was examined by the doctor at about 12:50 p.m. on that day. The doctor who examined him, found three injuries i.e. i) tenderness on both flanks, ii) scratch abrasions on both flanks and
iii) blackening on feet and legs anterior aspect due to septical burns. 2.3 On the intimation given by the doctor, the police visited the hospital at about 5:45 p.m. in the evening on that day and recorded the statement of the complainant wherein, he has narrated the above facts. The said statement was registered as an FIR against A1 to A3 at about 10:40 p.m. on that day for the offences punishable under Sections 392, 447 and 114 of the IPC and Section 135 of the Bombay Police Act. The case was investigated. 2.4 During the course of investigation, A1 and A2 were arrested on 07.01.2009 and A3 was arrested on 09.01.2009. It is stated that Page 4 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025 NEUTRAL CITATION R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025 undefined on the disclosure statement given by A3 in the presence of the mediators examined as PW-2 and another, that he has produced the Dhariya, the Hockey stick and the wooden stick, said to have been used by the accused in commission of the offence. Cash of Rs.3,600/- was also recovered from him but the mobile phone was not recovered.
2.5 The scene of offence was also observed in the presence of the mediators examined as PW-5 and PW-6. After completion of the investigation, police laid Charge-sheet against the accused for the offences punishable under Sections 447, 392, 397 r/w. Section 114 of the IPC and Section 135 of the Bombay Police Act. 2.6 In the trial Court, after the accused made their appearance, charges for the aforesaid offences were framed against them and the accused denied the said charges and claimed to be tried. 2.7 In the trial that took place, prosecution got examined PW-1 to PW-8 witnesses and got marked 7 exhibits to substantiate its case Page 5 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025 NEUTRAL CITATION R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025 undefined against the accused.
2.8 At the culmination of the trial, eventually, after considering the evidence on record and on appreciation of the same, the trial Court found the accused not guilty of any of the charges levelled against them and thereby, acquitted them of the said charges by the impugned judgment.
2.9 As noticed supra, aggrieved by the impugned judgment of acquittal, State has preferred the instant appeal challenging the said judgment of acquittal.
3. When the appeal came up for hearing before us, we have heard Ms. Krina Calla, learned Additional Public Prosecutor for the appellant - State. Despite service of notice on the respondents, they did not appear to contest the appeal. Even after the appeal is listed 11 times for hearing, they did not turn up for hearing. Therefore, as it is an old appeal of the year 2013 and as it is listed in the Supplementary Board today under the caption: "For Final Hearing Page 6 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025 NEUTRAL CITATION R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025 undefined of Critically Old Matters of 11 to 20 years", we are not inclined to further adjourn the appeal. Therefore, we have decided to dispose of the appeal on merits on the basis of the material available on record.
4. We have perused the R&P and the evidence on record meticulously and subjected the evidence to strict judicial scrutiny. 4.1 Out of 8 witnesses examined by the prosecution to substantiate it's case against the accused, only PW-1, who is the complainant, is the material witness in this case. PW-2 is the panch witness for alleged recovery of the weapons and the cash from A3, at his instance on the disclosure statement made by him. PW-3 is the doctor who examined PW-1 and issued the Wound Certificate. PW- 4 is the son of the complainant who only reached the scene of offence after the incident took place and PW-5 and PW-6 are the panch witnesses for the Scene of Offence Observation. PW-7 and PW-8 are the police witnesses.
4.2 Therefore, the evidence of PW-1 who is the injured, who is Page 7 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025 NEUTRAL CITATION R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025 undefined only the sole material witness, is required to be considered and his evidence is to be appreciated while subjecting his evidence to judicial scrutiny. As per the prosecution version, the incident took place during night time at about 3:00 a.m. on 05.01.2009. Though the offence took place during dark night, the complainant has stated in his FIR that he has identified the accused in the moonlight. Even, in his evidence given in the Court also, he stated that he has identified the accused in the moonlight. The accused denied that there is any such moonlight as deposed, in the cross-examination of PW-1. They have suggested that there is no such moonlight as spoken to by him. PW-1 denied the said suggestion. Therefore, there is a controversy relating to existence of moonlight on that night when the alleged incident took place. There is no sufficient material on record to resolve the said controversy and the disputed question of fact whether moonlight was available at that time or not. Therefore, we are not going deep into the matter relating to the said fact to decide whether there is moonlight or not at that time. But, when the evidence of PW-1 is considered regarding the manner in which he was attacked, we have very serious doubt whether he has Page 8 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025 NEUTRAL CITATION R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025 undefined really identified the accused during that night time even if there is any moonlight at that time. It is pertinent and significant to note that PW-1 stated in his evidence that A2 attacked him with a Hockey stick and A3 attacked him with a wooden stick but he stated in his evidence that even when he was attacked with the said Hockey stick and the wooden stick, he did not wake up and he continued to sleep as he was under the apprehension that if he woke up, that he might be beaten up severely by the accused. Therefore, when according to his own testimony he was sleeping when the accused were attacking him with the Hockey stick and the wooden stick, it is really unbelievable as to how he could say that A2 beat him with a Hockey stick and A3 beat him with a wooden stick. It is not as though he woke up when he was beaten and he has seen A2 and A3 beating him to believe his testimony. When it is his own ipse dixit that he did not wake up even when he is being beaten, the testimony given by him that he has seen A2 and A3 beating him with Hockey stick and wooden stick is intrinsically untrustworthy and cannot be believed. Admittedly, though it is stated that A1 was holding a Dhariya, he did not attack PW-1 and caused any injury to him. It is Page 9 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025 NEUTRAL CITATION R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025 undefined also relevant to note that even when it is stated by PW-1 that A2 extorted the mobile phone from his pocket and A1 has extorted cash of Rs.3,600/- which is in his pocket and that too, in the pocket of his inner garment, he did not wake up. He was still sleeping at that time according to his version. Therefore, the version of PW-1 that he did not wake up even when he is being beaten with weapons like Hockey stick and wooden stick and when his mobile phone is extorted from his pocket and when cash of Rs.3,600/- is extorted from the pocket of his inner garment, the said conduct of PW-1 in still sleeping when he was being beaten and when his valuables are being extorted, is quite contrary to the natural human conduct of any person. In such situation, when a person is being beaten with sticks and when his valuables are being extorted from his pocket of his inner garment, any person would get up from his sleep and resist them or try to run away to escape from the attack. But the fact that the PW-1 has been continuously sleeping when he is being beaten and when his valuables are being extorted, as stated supra, his conduct is quite contrary to the natural human conduct of any person. So, this makes the entire story of the prosecution, as Page 10 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025 NEUTRAL CITATION R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025 undefined narrated by PW-1, highly suspicious, doubtful and in fact, unbelievable.
4.3 It is to be further noticed that according to the testimony given by PW-1, there is a blanket on him when he was sleeping and that the accused has placed the grass available at the scene of offence on the blanket and set fire to it and he sustained burn injuries also. But, he did not say that he woke up even when the blanket was burnt and when he sustained the burn injuries. On the other hand, he stated that after the accused ran away from the that place after burning the blanket that he woke up and then went to the house of the Rameshbhai. This conduct is also absolutely unbelievable and contrary to the human conduct of any reasonable and prudent person. So, the entire story appears to be concocted story. It is also relevant to note here that the said burnt blanket, if any, is not seized by the police during the course of investigation. This also throws any amount of doubt regarding the veracity of the evidence given by PW-1 relating to the burning of the blanket. No explanation is offered by the prosecution for non-seizer of the said blanket. Page 11 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025
NEUTRAL CITATION R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025 undefined 4.4 Apart from above infirmities, it is also to be noticed that when it is stated in the FIR and also in the evidence of PW-1 that A1 came along with A2 and A3 holding Dhariya, immediately when he was taken to the hospital, he has stated before the doctor that A1 came with four persons holding an iron pipe. So, the weapon which A1 was holding when he came to the scene of offence is varying from the version given by PW-1 in the FIR and in his evidence when compared with the statement given by him to the doctor. This is another aspect which makes his testimony unreliable. 4.5 It is now significant to note that PW-1 stated in his FIR and also in his evidence that A2 beat him with a Hockey stick and A3 beat him with a wooden stick, but where they beat him and on which part of his body they beat him and where he sustained injuries are not detailed by him either in the FIR or in his evidence. Further, as can be seen from the Wound Certificate, the second injury is a scratch abrasions on both flanks i.e. a part in between the rib cage and the pelvic bone. How, this scratch abrasions are found on his body is not explained. It is not at all the case of the prosecution or Page 12 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025 NEUTRAL CITATION R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025 undefined the evidence of PW-1 that the accused scratched him and caused abrasion injuries on his both flanks. It is not possible to cause scratch abrasion injuries by beating with a Hockey stick or a wooden stick. So, the injuries in the Wound Certificate are also not matching with the evidence given by PW-1 relating to the alleged attack made by the accused. There is inconsistency between his oral evidence and the medical evidence. So, this also makes the testimony of PW- 1 wholly unreliable.
4.6 Although it is stated by the prosecution that all three weapons i.e. Dhariya, Hockey stick and Wooden stick were recovered from A3 when he was arrested, when he voluntarily produced the same before the police along with cash of Rs.3,600/-, the panch witness who is examined as PW-2 in whose presence it is stated that the said weapons and cash are recovered from him, did not support the said version of the prosecution. He turned hostile to the prosecution case. The other panch witness relating to the said recovery of weapons and cash was not examined in this case. Even the panch witnesses for Scene of Offence Observation, examined as PW-5 and PW-6 also Page 13 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025 NEUTRAL CITATION R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025 undefined turned hostile and they also did not support the case of the prosecution. So, the recovery of the crime weapons and the cash is also not proved in this case with the acceptable legal evidence. 4.7 Thus, the entire case of the prosecution bristles from several fatal legal infirmities. The sole testimony of PW-1 does not inspire confidence in the mind of the Court regarding the veracity of his testimony as his evidence is shrouded in high suspicion on account of various infirmities found in his evidence as discussed supra. So, the prosecution has miserably failed to prove the guilt of the accused for any of the charges levelled against them beyond all reasonable doubt with acceptable legal evidence. At any rate, the accused are at least entitled to benefit of doubt in the facts and circumstances of case.
4.8 The trial Court, after considering the evidence on record and on proper appreciation of the same, arrived at a right conclusion and recorded a finding of acquittal in favour of the accused. Upon considering the said evidence on record and reappraisal of the same, Page 14 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025 NEUTRAL CITATION R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025 undefined we are also in complete agreement with the conclusion arrived at by the trial Court. Therefore, the judgment of the trial is perfectly sustainable under law and it is based on proper appreciation of evidence on record and the same is not liable to be set aside. Therefore, we absolutely find no valid ground in this appeal warranting our interference with the judgment of acquittal. So, the appeal fails and it is liable to be dismissed.
5. In fine, the appeal is dismissed confirming the judgment of the trial Court. Bail bonds shall stand discharged. R&P be transmitted back to the trial Court concerned, forthwith.
[ Cheekati Manavendranath Roy, J. ] [ D. M. Vyas, J. ] hiren/SB-I-1tss25925@15:45 Page 15 of 15 Uploaded by HIREN MER(HC00351) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:08:46 IST 2025