Gujarat High Court
State Of Gujarat vs Tulshibhai Dajibhai Patel on 8 April, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
R/CR.A/361/1997 JUDGMENT DATED: 08/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 361 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
TULSHIBHAI DAJIBHAI PATEL & ORS.
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Appearance:
MR. UTKARSH SHARMA APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s)
No. 1,2,3
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No.
1,2,3
MR P B KHAMBHOLJA(5730) for the Opponent(s)/Respondent(s)
No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 08/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal filed under section 378(1)(3) of the
Code of Criminal Procedure, 1973 (Cr.P.C. ) is directed against
the judgment and order dated 17.01.1997 passed by the
learned Additional Sessions Judge, Valsad at Navsari in
Sessions Case No.09 of 1995 acquitting the respondents
accused from the offences punishable under Sections 302, 323
read with Section 34 of the Indian Penal Code,1860.
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2. The case of the prosecution emanates from the
complaint at mark 7/1 registered by the son of the deceased -
Maheshbahi Shankarbhai Patel (PW 4) (a hostile witness). As
per the contents of the complaint dated 24.10.1994, which is
registered at Chikhali Police Station between 17:45 hours to
18:30 hours, the incident has occurred on 24.10.1994 at
around 1 O'clock, wherein, the accused as well as the
deceased and their relatives had gathered for a customary
divorce. It is alleged that the complainant side had put a
demand of Rs.45,000/- to the accused no.1 in order to give
divorce which irritated him, resulting into altercation and
during this altercation, the accused no.1 - Tulsibhai Dajibhai
Patel was slapped by the friend of the complainant-
Sumanbhai Patel and at that moment all the accused dragged
the deceased, who is the father of the complainant in the
gutter and inflicted blows of Knife and Screw Driver. After
inflicting several blows, all the accused fled away on
motorcycle and thereafter the deceased, who was
unconscious, was taken to the hospital, and was declared
dead. It is alleged that the accused no.1 inflicted blows with
knife on the chest of the deceased, whereas accused no.2-
Khadubhai Dajibhai Patel assaulted with screw driver and
accused no.3- Babubhai Dhirubhai Dhodiya Patel physically
assaulted the deceased. The reasons assigned for the quarrel
and altercation is with regard to the divorce of complainant
with his wife Saraswati, and the slapping of Sumanbhai Patel
PW 8, the friend of the accused no.1. Accordingly, the charge
at Exh.2 was framed for the offences as mentioned herein
above against the three accused. The trial Court, after
examination of ocular as well as the documentary evidence,
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has acquitted the accused for the offences, for which they
were charged, which has given rise to the present appeal.
3. Learned APP Mr. Utkarsh Sharma, at the outset, has
submitted that the impugned judgment and order passed by
the trial Court recording the acquittal of the accused is
required to be quashed and set aside since the learned
Presiding Officer has failed to appreciate the ocular evidence
of the eyewitnesses.
4. Learned APP Mr. Sharma at the outset, has referred to
the testimony of the two eyewitnesses one is PW 5- Savitaben
Shankarbhai examined at Exh.16 and is widow of the
deceased and another is s PW 6- Jayeshbhai Shankerbhai, who
is examined at Exh.17 (son of the deceased). While referring
to their deposition, learned APP has submitted that their
evidence is more than enough to bring home the charge
against the accused. It is submitted that their testimony does
not suffer from any infirmity and is of pristine nature which
can establish the complicity of the accused in the offence.
5. While referring to the deposition of PW 7 - Ajitkumar
Durlabhbhai Patel (Doctor), who is examined at Exh.20, who
has undertaken the postmortem report, it is contended that
his evidence establishes that the injuries which were found on
the deceased, are inflicted by the weapon like Knife and
Screw Driver. He has also referred to the postmortem report
at Exh.21 and injuries mentioned therein and has submitted
that the same also corroborates with the testimonies of the
eyewitnesses.
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6. Learned APP has also referred to the testimony of the
Investigating Officer - PW 10, who is examined at Exh.25. It is
submitted that he has proved the registration of the FIR by
the PW 4 i.e. Maheshbhai Shankarbhai, who is the eyewitness
of the incident. Thus, it is urged by the learned APP that there
is sufficient evidence to establish the involvement of the
accused in the offence and it is urged that acquittal recorded
by the trial Court may be reversed by holding the accused as
guilty of the offence, for which they were charged.
7. Per contra, learned advocate Mr.P.B.Khambholja
appearing for the accused has urged that the acquittal
recorded by the learned Additional Sessions Judge may not be
interfered with since the same is precisely passed, after
appreciating the ocular as well as documentary evidence. It is
submitted that the registration of the complaint itself is
doubtful since the complainant has turned hostile. Learned
advocate Mr.P.B.Khambholja has further submitted that the
deposition of the eyewitness does not corroborate with the
contents of the FIR. It is submitted that the evidence of PW 6 -
Jayeshbhai Shankarbhai and PW 9- Arvindbhai Gulabbhai is
also tainted with major contradictions and hence, the
acquittal cannot be reversed on the evidence of such
witnesses. He has also referred to the evidence of one panch
witness (PW-1) - Jagubhai Lad, who has deposed that in fact,
the panchnama at Exh.10 and Exh.11 was prepared on
24.10.1994, after he was called between 4 pm to 5 pm by the
police, whereas in the same breath, he has mentioned that the
panchnama at Exh.10 has been prepared between 1 p.m. to
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1.30 p.m. He has mentioned that his deposition will establish
that in fact, the respondents accused have been wrongly
arraigned as an accused in the offences. While referring to the
judgment of the Supreme Court in the case of Chandrappa
and Ors. vs. State of Karnataka, (2007) 4 S.C.C. 415, it is
urged that the present appeal may not be entertained and the
view, which is found favorable by the trial Court acquitting
the accused, may not be reversed.
8. We have heard the learned advocates for the respective
parties at length. We have also scaled the evidence as well as
the findings recorded by the trial Court.
9. At the outset, it is established from the record and also
from the findings of the trial Court, to which we agree to the
effect that the registration of the FIR on 24.10.1994 (mark
7/1) between 17:45 hours to 18:30 hours at Chikhali Police
Station itself is doubtful. The complainant is an eyewitness
(PW-4) - Maheshbhai Shankarbhai, who is the son of the
deceased. He has not supported the case of the prosecution
and has been declared hostile. In his cross-examination done
by the learned APP, we do not find that the prosecution is able
to extract any fact, which can rescue the case of the
prosecution.
10. At this stage, it would be apposite to refer to the
deposition of PW-1, Jagubhai Lad, who is a panch witness of
the panchnamas at Exhs.10 and 11, which are the scene of
offence panchnama and inquest panchnama. In his
examination in chief, this witness has categorically deposed
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before the trial Court that on 24.10.1994 between 4 p.m to 5
p.m, he was called to act as a pancha and accordingly he had
seen the number of injuries on the deceased. He has further
stated that Exh.10 panchnama was drawn between 1 p.m to
1.30 pm. Thus, two contrary statements are made by him. One
that he was called between 4 p.m to 5 p.m on 24.10.1995 to
act as a panchas, whereas, the panchnama at Exh.10 was
drawn between 1 p.m to 1.30 pm. It is interesting to note that
in his cross-examination, it is elicited from him that the police
station was 5 to 6 kms away from the scene of offence and he
was informed by one Keshavbhai about the assault on the
deceased Shankarbhai and hence, he went there. He has
clarified that he was informed by Keshavbhai at around 11
a.m to 11.30 a.m and he reached the place of incident at
around 1.30 in the afternoon and after he reached the place of
incident, the police had arrived at 2.30 pm. He has further
deposed that after he arrived at the scene of offence, he went
to the police station and gave the information at around 2.30
p.m and accordingly, the police had informed him that he
should leave and they would be visiting in a short time and at
that moment, he was accompanied by one Basirbhai
Mohmadbhai, who is Ex Police Constable. It is an undisputed
fact that neither Keshavbhai, who is named by the present
witness, is examined as a witness nor Basirbhai Mohmadbhai,
who is the Ex Police Constable is examined by the
prosecution. If, the evidence of this witness is believed, then
the recording of the FIR at 6.30 pm in the police station
becomes doubtful as the panchnamas at Exh.10 and Exh.11
are already drawn before the registration of the FIR on
24.10.1994.
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11. The Investigating Officer - PW 10 is examined at Exh.25
and his evidence also discloses some interesting fact about
registration of the FIR. In his evidence before the trial Court,
it is deposed by him that the complaint was recorded at the
scene of offence at around 5.45 p.m. In his cross examination,
the Investigating Officer has admitted that the complainant -
PW-4 has admitted that he does not know Sumanbhai Patel.
He has also recorded the statement of Savitaben Shankarbhai
(PW-5) - wife of the deceased Shankarbhai. In his cross
examination, it is further elicited that Basirbhai Mohmadbhai
had arrived at the police station, however he does not know
whether Jagubhai Lad (PW 1) came to the police station or not
and Basirbhai Mohmadbhai had come to the police station in
the evening at 5 p.m. Accordingly, in the station diary, an
entry was made and Basirbhai had given a written report,
however he did not record the statement of Basirbhai. He has
admitted that he was informed about the incident by Basirbhai
at around 5 p.m and accordingly, he had visited the place of
offence. Thus, Basirbhai, who is vital witness, who has given
the first given information to the Investigating Officer has
neither examined as a witness, nor his police statement is
recorded.
12. The entire case of the prosecution as per the charge and
the complaint hinges on a specific incident of slapping of
accused No.1 Tulshidas by one witness - PW-8, who is
examined at Exh.83 - Sumanbhai Shukarbhai. The trial Court
has recorded that in the police complaint, the incident which
has been narrated by the witnesses revealed that he was
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slapped by the accused no.1 and thereafter, the deceased was
dragged by all the three accused and brutally assaulted with
the knife and screw driver. This witness -PW 8 - Sumanbhai
Shukarbhai has completely denied the incident and his
presence on the day and has been declared hostile. In the
evidence of the eyewitnesses also, we find that the witnesses
have denied, more particularly, PW 5 - the widow of the
deceased- Savitaben Shankarbhai, has denied the incident of
slapping by the witness Sumanbhai. Thus, none of the eye
witnesses has supported the incident that the witness
Sumanbhai Patel had slapped the accused no.1, which
ultimately resulted into quarrel and it is alleged that the
accused, who are three in number, have assaulted the
deceased brutally. Thus, the entire case of the prosecution
falls flat since the prosecution has miserably failed to
establish the incident of slapping the accused no.1 by the
witness- Sumanbhai.
13. We may also refer to the evidence of PW-5- Savitaben
Shankarbhai, who is the widow of the deceased and is
projected as an eyewitness, and is examined at Exh.16. She
has referred to the role of all the three accused and the
deadly assault on the deceased by knife by accused no.1,
whereas she has attributed the assault by Screw Driver by
accused no.2, and she has deposed that she is not aware
about weapon carried by accused no.3 - Balubhai Dhirubhai
Dhodiya Patel. In her cross-examination, she has denied the
incident of slap administered to accused no.1 by Sumanbhai.
In her cross examination, it is elicited that PW-1 Jagubhai Lad
had arrived at the scene of offence in the evening at 7 O'clock,
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whereas the police had arrived at 6 O'clock.
14. Another eye witness (PW 6)- Jayeshbhai Shankarbhai,
who is examined at Exh.17 is the son of the deceased. He has
narrated the role of the accused no.1, who had assaulted his
father by knife and accused no.2 who has assaulted with
screw driver, however he has not mentioned about any role of
the accused no.3. It is elicited from him that he went
unconscious and he is not aware as to when he regained his
consciousness and in the same breath, he has deposed that he
went to the hospital, however he is not aware at what time he
went. He has also admitted that he does not know Sumanbhai.
In his cross examination also, he has admitted that the
witness Sumanbhai was also admitted along with his father in
the hospital. Thus, the evidence of both the eyewitnesses do
not inspire confidence and appears to be doubtful as they
have denied the incident of slapping the accused no.1 by one
Sumanbhai. It is also noticed from their evidence that though
the incident had occurred at around 1 O' clock, no attempts
were made by them or their family members to register FIR
immediately.
15. There is another eyewitness PW 9 - Arvindbhai
Gulabbhai, who has examined at Exh.24. He mentions his
presence on the day of the incident and he has deposed that
he was one of the panchas along with other panchas, who had
gathered to sort out the marital dispute. It is deposed that,
from the girl side three accused were present along with
other whose names he does not know. With regard to
attribution of the weapon, he has also narrated that in fact
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accused nos. 2 and 3 were holding screw driver in their
hands, which they have taken out from their pockets. His
evidence also does not inspire confidence.
16. Thus, on an overall appreciation of the testimonies of the
witnesses, we do not find that the trial Court has committed
any error or recorded illegal acquittal and the judgment can
be said to be perverse or illegal, which can compel us to
reverse the acquittal.
17. At this stage, it would be apposite to refer to the
observations of the Supreme Court in the case of
Chandrappa and Ors. (supra). The Supreme Court after
survey of various judgments, has ultimately discussed the
scope of Appellate Court in interfering the acquittal. The same
are as under:
"41. From the above decisions, in our considered view,
the following general principles regarding powers of
appellate Court while dealing with an appeal against
an order of acquittal emerge;
(1) An appellate Court has full power to review,
reappreciate and reconsider the evidence upon which
the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate Court on the evidence before
it may reach its own conclusion, both on questions of
fact and of law;
(3) Various expressions, such as, 'substantial and
compelling reasons', 'good and sufficient grounds',
'very strong circumstances', 'distorted conclusions',
'glaring mistakes', etc. are not intended to curtail
extensive powers of an appellate Court in an appeal
against acquittal. Such phraseologies are more in the
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nature of 'flourishes of language' to emphasize the
reluctance of an appellate Court to interfere with
acquittal than to curtail the power of the Court to
review the evidence and to come to its own
conclusion.
(4) An appellate Court, however, must bear in mind
that in case of acquittal, there is double presumption
in favour of the accused. Firstly, the presumption of
innocence available to him under the fundamental
principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the presumption
of his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by
the trial court."
18. Thus, it is held by the Supreme Court that in the case of
acquittal, there is double presumption in favour of the
accused, firstly the presumption of innocence available to him
under the fundamental principal of criminal jurisprudence
that every person shall be presumed to be innocent unless he
is proved guilty by the competent Court of law, and secondly,
the accused having secured his acquittal, the presumption of
innocence is further re-imposed, reaffirmed and strengthened
by the trial Court. It is further held that if two reasonable
conclusions are possible on the basis of evidence on record,
the appellate Court should not disturb the findings of acquittal
recorded by the trial Court.
19. In the present case, in fact, the evidence, which has
surfaced on record, does not firmly establish the complicity of
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the accused in the offence. Hence, we are not inclined to
upset the acquittal recorded by the trial Court.
20. The present Criminal Appeal fails. The same is hereby
dismissed.
21. Record and proceedings shall be sent back to the Court
concerned forthwith.
sd/-
(A. S. SUPEHIA, J)
sd/-
(NISHA M. THAKORE,J)
RATHOD KAUSHIKSINH/01
