Gujarat High Court
State Of Gujarat vs Bhana Arjan Vedva Vaghari on 22 April, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
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R/CR.A/449/1997 JUDGMENT DATED: 22/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 449 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
BHANA ARJAN VEDVA VAGHARI & ORS.
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Appearance:
MR UTKARSH SHARMA APP for the Appellant(s) No. 1
MR APURVA K.JANI with MR PV PATADIYA(5924) for the
Opponent(s)/Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal filed under Sections 378(1)((3) of the
Code of Criminal Procedure, 1973 (for short 'CrPC') is
directed against the judgment and order dated 28.01.1997
passed by the learned Additional Sessions Judge, Rajkot in
Sessions Case No.360 of 1993, acquitting the accused for the
offences punishable under Section 302 read with Section 114
of Indian Penal Code, 1860 (for short 'IPC') and Section 135
read with Section 37(1) of the Bombay Police Act (for short
'B.P. Act').
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2. The case of the prosecution, as per the charge at Exh.3
is that on 20.07.1993 at around 10.00 a.m., when the
deceased - Modbhai Manubhai Gadhavi was ploughing his
field, four respondents-accused reached there and started
whistling and abused him. Thereafter, the deceased, who was
ploughing his filed went towards the accused No.2- Bhikha
Bhana and accused No.4 - Lilaben and accused No.3 - Valiben
assaulted the deceased with kicks and fists blows and caught
hold of the deceased and accused No.1 - Bhana Arjan, who
was armed with a spear, inflicted a blow of spear on the chest
of the deceased and thereafter, they fled away.
3. Before the trial Court, the case of the prosecution was
primarily projected on the basis of the evidence of a minor
witness (P.W.4), who was the niece of the deceased, the wife
of the deceased (P.W.5) and an independent witness Najabhai
Jasabhai (P.W.6).
4. The trial Court, after examining the ocular as well as
documentary evidence as produced by the prosecution, has
acquitted the accused for the offences punishable under
Section 302 read with Section 114 of the IPC and also Section
135 of the B.P. Act, for which they were charged.
5. Learned APP Mr. Utkarsh Sharma has submitted that
the acquittal recorded by the trial Court deserves to be
altered to conviction since the trial Court has not precisely
appreciated the evidence, which has surfaced on record.
Learned APP Mr. Sharma, at the outset has referred to the
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evidence of the minor (P.W.4) and has submitted that she is
an eye witness to the incident. It is submitted that her
deposition revels that she was present at the scene of offence,
when the accused No.1 has inflicted blow of spear on the
chest of the deceased, while the other accused were also
present and they had restricted the movements of the
deceased. It is submitted that her evidence is disbelieved by
the trial Court without recording any cogent reasons.
6. Learned APP has further referred to the evidence of wife
of the deceased - Rajuben Modbhai (P.W.5), examined at
Exh.54, and has submitted that she has categorically
supported the case of the prosecution and has specifically
deposed before the trial Court by narrating the incident and
role of each of the accused. Learned APP has also referred to
the evidence of an independent witness (P.W.6), examined at
Exh.56, who was also present at the adjacent field, where the
offence has been committed. It is submitted that the evidence
of this witness discloses that the accused No.1, after inflicting
the blow of spear on the deceased, was running with the spear
and this witness has seen him with the spear and the accused
No.1 was also confronted by him.
7. Learned APP, while referring to the evidence of the
Investigating Officer (P.W.17) at Exh.75, has submitted that
he has proved the credibility of the witnesses and the
panchnama. Learned APP has submitted that the trial Court
has discarded the testimony of the Investigating Officer,
which is illegal and hence, it is urged that the acquittal
recorded by the trial Court may be reversed.
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8. Per contra, learned advocate Mr. Apurva K.Jani and
learned advocate Mr. P.V. Patadiya representing the
respondents-accused have urged that the acquittal recorded
by the trial Court may not be reversed, as the same is
precisely recorded, after it is found that the witnesses are
unreliable. It is submitted that in fact, the prosecution has
miserably failed to project the real incident, as it is not in
dispute that the accused No.4 - Lilaben and another accused
No.2- Bhikha Bhana had also suffered the injuries. In this
context, they have referred to the medical evidence at Exh.83
and Exh.84. It is submitted that in fact, in the statement
recorded under the provisions of Section 313 of the Cr.P.C. at
Exh.98, the accused have narrated the correct incident,
wherein the deceased had raped the mother of the accused
No.2 and also inflicted injuries on her by scythe. It is
submitted that due to self-defence the blow of scythe was
given by Lilaben on the deceased, which resulted into the
injuries.
9. In this regard, learned advocates have made reference
to the FIR registered at Exh.101 by the accused No.2 against
the deceased under the provisions of Sections 307, 376, 324
and 504 of the I.P.C. read with Section 135 of the B.P. Act.
While referring to the evidence of minor (P.W.4), it is
submitted that her evidence has been precisely disbelieved by
the trial Court, as she is not in fact, an eye witness. It is
contended that this witness has continuously narrated
different facts and also her testimony is marred with
improvement.
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10. In support of their submissions, learned advocate Mr.
Apurva K.Jani has placed reliance on the recent judgment of
the Supreme Court in the case of Pradeep Vs. The State of
Haryana, (2023) 10 S.C.R. 1021 (2023 INSC 599). Similarly,
reference is made to the evidence of wife of the deceased
Rajuben Modbhai (P.W.5) and has submitted that in fact, if
her version is treated as correct, then it was not possible for
the minor to witness the incident. It is submitted that she has
deposed that her daughter Sonal was also present along with
the minor witness however, neither her statement is recorded
nor she is arraigned as a witness.
11. Learned advocate Mr. Jani has submitted that as per her
evidence, the place, where this witness (P.W.5) was present,
was elevated and it was not possible to witness the incident by
the minor witness (P.W.4) form the field where she was
present.
12. So far as the evidence of Najabhai Jashabhai (P.W.6) is
concerned, it is submitted that he has also not established
himself as a reliable witness, as his version of calling the
police and showing the dead body of the deceased runs
contrary to evidence of Bhanabhai Manjibhai (P.W.15), who is
a panch witness and the body of the deceased was identified
by Kalubhai Lakhmanbhai (P.W.3), who is the Sarpanch and
not by P.W.6. Thus, it is submitted that the prosecution has
also tried to suppress the incident of assault on the accused
and hence, the acquittal recorded by the trial Court may not
be altered.
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13. In support of his submission, learned advocate Mr. Jani
has placed reliance on the judgment of the Supreme Court in
the case of Nandlal And Others Vs. The State of Chhattisgarh,
(2023) 2 S.C.R. 276.
14. We have heard the learned advocates appearing for the
respective parties and have also scaled the evidence, which
has surfaced on record as well as the findings of the trial
Court. The documentary evidence on record reveals that in
fact, two incidents had occurred on the very same day i.e. on
20.07.1993. As per the case of the prosecution, emanating
from the charge at Exh.3 and the complaint at Exh.34, all the
accused on 20.07.1993 came to the field of the deceased and
started instigating him or abusing him, then the deceased had
approached three of them, where accused Nos.2, 3 and 4
assaulted and caught hold of the deceased, whereas accused
No.1 inflicted a blow of spear in his chest, which ultimately
resulted into his death.
15. The another incident is emerging from the FIR at
Exh.101, which is also registered on even date i.e. 20.07.1993
at 10:30 hours by Bhikhabhai Bhanabhai against the deceased
for the offences punishable under Sections 307, 376, 324, 504
of the IPC and Section 135 of the B.P. Act. It is alleged that
the deceased - Modbhai Manubhai had committed rape on his
mother and also assaulted her with scythe. The medical
evidence of the mother of the deceased Lilaben at Exh.83
proves the injuries on her head and the assault history
recorded therein refers that, she was assaulted by scythe and
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also raped. She has also suffered incised wound on the head
and also injury on both frontal bone, which were cut. At this
stage, we may also refer to the medical evidence of accused
No.2 at Exh. 84, who is the complainant of the cross FIR at
Exh.101. His medical examination reveals that, he had
suffered the injuries on left ring finger, on his right shoulder
and also abrasion on right deltoid region. The injuries in the
finger and shoulder were CLW injuries and the history
recorded at Exh.84 was assault injury by scythe. This injury
certificate of the accused and the victim Lilaben, who is
mother of the accused No.2, are produced by the
Investigating Officer-Devisinh Zala (P.W.21). It is interesting
to note that he has been also examined as defence witness at
Exh.103.
16. Thus, it is not in dispute that two incidents had occurred
on the very same day. Thus, it appears that two FIRs are
registered; one for the alleged offences of rape and causing
grievous injury committed by the deceased on the mother of
the accused No.2 and for the reciprocal incident, of the
alleged assault by the present accused on the deceased.
However, the Investigating Officer has suppressed the true
nature of incident in his deposition before the trial Court. In
fact, such aspects are brought in the cross-examination by the
accused and in examination-in-chief, he does not even
mention about the incident of rape and assault. Similarly,
other witnesses have also suppressed the same.
17. At this stage, we may refer to the decision of the
Supreme Court in the case of Nandlal and Others (supra).
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The Supreme Court has held thus:
"26. We will first consider the issue with regard to non-
explanation of injuries sustained by accused No.11 Naresh Kumar.
In the case of Lakshmi Singh and Others v. State of Bihar,
which case also arose out of a conviction under Section 302 read
with Section 149 of the IPC, this Court had an occasion to consider
the issue of non-explanation of (1976) 4 SCC 394 injuries sustained
by the accused. This Court, after referring to the earlier judgments
on the issue, observed thus:
"12. .......It seems to us that in a murder case, the non-explanation
of the injuries sustained by the accused at about the time of the
occurrence or in the course of altercation is a very important
circumstance from which the court can draw the following
inferences:
"(1) that the prosecution has suppressed the genesis and the
origin of the occurrence and has thus not presented the true
version;
(2) that the witnesses who have denied the presence of the
injuries on the person of the accused are lying on a most
material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the
injuries on the person of the accused it is rendered probable so
as to throw doubt on the prosecution case."
The omission on the part of the prosecution to explain the injuries
on the person of the accused assumes much greater importance
where the evidence consists of interested or inimical witnesses or
where the defence gives a version which competes in probability
with that of the prosecution one. In the instant case, when it is held,
as it must be, that the appellant Dasrath Singh received serious
injuries which have not been explained by the prosecution, then it
will be difficult for the court to rely on the evidence of PWs 1 to 4
and 6, more particularly, when some of these witnesses have lied by
stating that they did not see any injuries on the person of the
accused. Thus neither the Sessions Judge nor the High Court
appears to have given due consideration to this important lacuna or
infirmity appearing in the prosecution case. We must hasten to add
that as held by this Court in State of Gujarat v. Bai Fatima (1975) 2
SCC 7: 1975 SCC (Cri) 384] there may be cases where the non-
explanation of the injuries by the prosecution may not affect the
prosecution case. This principle would obviously apply to cases
where the injuries sustained by the accused are minor and
superficial or where the evidence is so clear and cogent, so
independent and disinterested, so probable, consistent and
creditworthy, that it far outweighs the effect of the omission on the
part of the prosecution to explain the injuries. The present,
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however, is certainly not such a case, and the High Court was,
therefore, in error in brushing aside this serious infirmity in the
prosecution case on unconvincing premises."
18. Thus, the omission on the part of the prosecution to
explain the injuries on the person of the accused assumes
much greater importance where the evidence consists of
interested or inimical witnesses or where the defence gives a
version which competes in probability with that of the
prosecution one. The prosecution has suppressed the genesis
and the origin of the occurrence, as mentioned hereinabove,
and has not presented the true case. Hence, on this count
alone, we are not inclined to reverse the acquittal recorded by
the trial Court.
19. The prosecution has primarily placed reliance on the
evidence of minor witness (P.W.4). A bare perusal of her
evidence reveals that she is not consistent in her version. We
find that her cross-examination has been mercilessly
undertaken by the defence, which runs into more than eight
pages. Her voir dire test was conducted by the trial Court and
the trial Court recorded that she is competent enough to give
the testimony. However, in the cross-examination she has
admitted that, she does not remember that she has to say
truth before the trial Court, even though, she was informed to
tell the truth. Her deposition reveals that she was present in
the field from, where she was able to see the assault on the
deceased by the accused. However, this runs contrary to the
testimony of Rajuben Modbhai (P.W.5), who is wife of the
deceased, who has admitted that minor witness (P.W.4), who
was present in the field and the incident has happened at the
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field, which is elevated and it is not possible for her daughter
and P.W.4 to witness the incident from the field, where they
were present. This minor witness (P.W.4) has asserted before
the trial Court that the deceased was also assaulted by stones,
which were big in size and number of stones were hurled on
the deceased, which hit him on his hand as well head
however, the postmortem report does not refer to any injury,
except one injury on the chest of the deceased. From the
overall appreciation of the evidence of minor witness (P.W.4),
we are of the opinion that she is a tutored witness.
20. We may at this stage, refer to the decision of the
Supreme Court in the case of Pradeed (supra), where the
Supreme Court has cautioned to believe the testimony of
minor witness. It is held thus:
"8. It is a well-settled principle that corroboration of the
testimony of a child witness is not a rule but a measure of caution
and prudence. A child witness of tender age is easily susceptible to
tutoring. However, that by itself is no ground to reject the
evidence of a child witness. The Court must make careful scrutiny
of the evidence of a child witness. The Court must apply its mind to
the question whether there is a possibility of the child witness
being tutored. Therefore, scrutiny of the evidence of a child
witness is required to be made by the Court with care and caution.
9. Before recording evidence of a minor, it is the duty of a
Judicial Officer to ask preliminary questions to him with a view to
ascertain whether the minor can understand the questions put to
him and is in a position to give rational answers. The Judge must
be satisfied that the minor is able to understand the questions and
respond to them and understands the importance of speaking the
truth. Therefore, the role of the Judge who records the evidence is
very crucial. He has to make a proper preliminary examination of
the minor by putting appropriate questions to ascertain whether
the minor is capable of understanding the questions put to him and
is able to give rational answers. It is advisable to record the
preliminary questions and answers so that the Appellate Court can
go into the correctness of the opinion of the Trial Court. "
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21. Thus, the Supreme Court has held that the evidence of
the child witness must be carefully scrutinized and the Court
must apply its mind to the question, whether there is
possibility of the child witness being tutored or not. In the
present case, the evidence of the child witness varies from the
examination-in-chief to the cross-examination.
22. It is also very interesting to note that the minor witness
and P.W.5, the wife of the deceased, have categorically
revealed the presence of Sonal i.e. daughter of the deceased
and P.W.5 with P.W.4 in the same field. However, she has not
been examined as a witness though, her police statement
appears to have been recorded. It appears that looking to the
age of the minor, the defence has not put any question
relating to the incident of rape on the mother of P.W.2.
However, such questions are put to P.W.5, the wife of the
deceased. She has totally denied the incident of rape and the
injury suffered by the accused. Thus, we do not find her as a
reliable witness. Similarly, independent witness Najabhai
Jashabhai (P.W.6) examined at Exh.56 also does not establish
him as a reliable witness, as his version runs contrary to the
version of Bhanabhai Manjibhai (P.W.15), who is a panch
witness. This witness otherwise, is not an eye witness. His
evidence cannot be considered as res jestae under the
provisions of Section 6 of the Indian Evidence Act, 1872,
though he has said that at the time of the incident, he saw the
accused No.1 running with a spear, his evidence is also not
reliable. It is very interesting to note that this witness has
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inquired from the accused No.1 that, as to why they are
running with spear, in response, the accused has commented
that, they are running just like that. There is a major
contradiction established in the evidence of this witness
relating to his version of seeing the accused No.1 with a
spear.
23. The judgment of Chandrappa & Ors. v. State of
Karnataka (2007) 4 SCC 415, would be relevant to be
mentioned since the judgment lays down the general
principles for the consideration of the acquittal appeals. The
Supreme Court has held thus:
The following general principles regarding powers of the 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
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 is 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
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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 and one favourable to the accused has been
taken by the trial court, it ought not to be disturbed by the
appellate court.
24. At this stage, we may refer to the decision of the
Supreme Court in the case of Muralidhar Alias Gidda And
Another Vs. State of Karnataka, (2014) 5 SCC 730, restricting
the powers of the appellate Court in reversing the acquittal.
The Supreme Court has held thus:
"12. The approach of the appellate court in the appeal against
acquittal has been dealt with by this Court in Tulsiram Kanu,
Madan Mohan Singh, Atley, Aher Raja Khima, Balbir Singh, M.G.
Agarwal, Noor Khan, Khedu Mohton, Shivaji Sahabrao Bobade,
Lekha Yadav, Khem Karan, Bishan Singh, Umedbhai Jadavbhai, K.
Gopal Reddy, Tota Singh, Ram Kumar, Madan Lal, Sambasivan,
Bhagwan Singh, Harijana Thirupala, C. Antony, K. Gopalakrishna,
Sanjay Thakran and Chandrappa. It is not necessary to deal with
these cases individually. Suffice it to say that this Court has
consistently held that in dealing with appeals against acquittal,
the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an
accused person and such presumption is strengthened by
the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of the appeal
against acquittal;
(iii) Though, the power of the appellate court in considering
the appeals against acquittal are as extensive as its powers
in appeals against convictions but the appellate court is
generally loath in disturbing the finding of fact recorded by
the trial court. It is so because the trial court had an
advantage of seeing the demeanor of the witnesses. If the
trial court takes a reasonable view of the facts of the case,
interference by the appellate court with the judgment of
acquittal is not justified. Unless, the conclusions reached by
the trial court are palpably wrong or based on erroneous
view of the law or if such conclusions are allowed to stand,
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they are likely to result in grave injustice, the reluctance on
the part of the appellate court in interfering with such
conclusions is fully justified; and
(iv) Merely because the appellate court on re-appreciation
and re-evaluation of the evidence is inclined to take a
different view, interference with the judgment of acquittal is
not justified if the view taken by the trial court is a possible
view. The evenly balanced views of the evidence must not
result in the interference by the appellate court in the
judgment of the trial court."
25. Thus, on an overall appreciation of the documentary as
well as oral evidence and in view of the well settled legal
precedent, as mentioned hereinabove, we are not inclined to
reverse the acquittal of the trial Court. Hence, the appeal
fails. The same stands dismissed.
26. Record & Proceedings be sent back to the concerned
trial Court forthwith.
(A. S. SUPEHIA, J)
(GITA GOPI,J)
Pankaj /1
