Gujarat High Court

State Of Gujarat vs Manubhai Hathesing Vahoniya on 2 August, 2025

Author: A.S. Supehia

Bench: A.S. Supehia

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                            R/CR.A/851/2004                                        JUDGMENT DATED: 02/08/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/CRIMINAL APPEAL NO. 851 of 2004

                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       and
                       HONOURABLE MR.JUSTICE D. M. VYAS

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                                   Approved for Reporting                         Yes           No

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                                                      STATE OF GUJARAT
                                                            Versus
                                              MANUBHAI HATHESING VAHONIYA & ANR.
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                       Appearance:
                       MS MAITHILI MEHTA, APP for the Appellant(s) No. 1
                       NOTICE NOT RECD BACK for the Opponent(s)/Respondent(s) No. 1,2
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                               and
                               HONOURABLE MR.JUSTICE D. M. VYAS

                                                              Date : 02/08/2025

                                            ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE D. M. VYAS)

1. Assailing the judgment dated 01/05/2003 of the learned

Joint District Judge and Additional Sessions Judge, (2 nd Fast

Track Court), Panchmahal at Dahod in Sessions Case No.82 of

1999 on the file of the said court whereby respondent nos.1

and 2 who are accused nos.1 and 2 in the said case

(hereinafter referred to as A-1 and A-2) were acquitted for the

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charges levelled against them, the instant appeal has been

preferred by the State.

2. Facts of the prosecution case, in brief, are as follows:

2.1. The complainant Rajubahi Madiabhai is resident of

village Devas. He was serving as a driver in State Transport.

That on the day of incident, at about 11:30 hours, he was the

driver of the S.T. Bus bearing registration no.C.I.F.-230 on Ali

Rajpur- Dahod route. That at about 1:45 hours, the S. T. Bus

passed through Garbada. That at a distance of 4 k.m. from

Garbada, seven to eight persons of Adivasi community were

standing on the road and hence the complainant slowed down

the S.T. Bus. That the aforesaid persons pelted stones and

damaged the front side of the bus. That one of the stone hit a

lady passenger namely Savitaben (hereinafter referred as 'the

deceased') sitting by the side of the conductor and she

succumbed to the injuries. That one child also sustained

injuries as a result of pelting of stones. Thereafter the

complainant stopped the bus at village Kharva and filed

complaint with the police for the offences punishable under

Sections 302, 143, 147 and 148 of the Indian Penal Code and

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Section 135 of the Bombay Police Act.

3. After completion of the investigation, the police has filed

charge-sheet against the accused for the aforesaid offences

and the case was committed to the concerned Judicial

Magistrate First Class, Garbada.

4. As the case was exclusively triable by the sessions

division, the case was committed to the learned Joint District

Judge and Additional Sessions Judge, (2 nd Fast Track Court),

Panchmahal at Dahod. The trial court has framed charges for

the offences punishable under Sections 302, 143, 147 and 148

of the Indian Penal Code and Section 135 of the Bombay

Police Act against the accused and read over to them. The

accused denied commission of any such offences and claimed

to be tried.

5. During the course of the trial, the prosecution got

examined PW-1 to PW-8 witnesses and got marked twelve

exhibits to substantiate its case against the accused.

6. On submissions of the closing pursis, further statement

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of the accused under Section 313 of the Cr.P.C. was recorded

with regard to incriminating circumstances made against the

accused in the evidence rendered by the prosecution and they

have denied the same.

7. At the culmination of the trial, after considering both

oral and documentary evidence on record, as the accused

found not guilty for any of the aforesaid charges levelled

against them, acquitted the accused for the aforesaid charges

by impugned judgment.

8. Aggrieved thereby, the appellant-State has preferred the

present appeal against the said judgment of acquittal.

9. We have heard learned Additional Public Prosecutor

Ms.Maithili Mehta at length for the State and also perused the

record and proceedings and considered the evidence on

record.

10. Learned APP for the appellant-State submitted that the

learned Judge ought to have believed the evidence of the

complainant Rajubhai Madiabhai who was examined at

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Exh.22. He has stated in his evidence that the accused no.1

was one of the persons who pelted stones at the S.T. Bus.

Thus, the complainant has clearly identified the accused no.1.

Learned APP has further submitted that the complainant

Rajubhai supported the prosecution case and fully

corroborated the complaint produced on record. Learned APP

further submitted that the prosecution has examined

Dr.Babulal Badriprasad Mittal, who conducted postmortem of

the deceased and was examined at Exh.6. Learned APP has

submitted at length facts of the cause of death of the

deceased and vehemently argued that the injury caused to the

deceased were sufficient in the ordinary course of nature to

cause death. She has further submitted that medical witness

opined that the said head injury was possible by way of stone

pelting or caused by blunt and hard substance. She has

further submitted that the judgment and order of acquittal is

contrary to law and evidence on record and therefore

deserves to be quashed and set aside and lastly prayed to

allow this appeal.

11. Before dealing with the contentions of learned APP, it

would be appropriate to analyze the relevant ocular and

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documentary evidences of the prosecution witnesses.

12. The prosecution has examined PW-1 Dr. Babulal

Badriprasad Mittal vide Exh.6. He has performed the

postmortem of the deceased and also produced postmortem

note vide Exh.7. Considering the ocular and documentary

evidence in form of postmortem report, the prosecution has

established that the death of the deceased is homicidal death.

13. The prosecution has examined material witness PW-7

Rajubhai Madiabhai vide Exh.22. He has stated the fact that

on 10/08/1998, he was driving the S.T. Bus bearing

registration no.C.I.F.-230. He has further stated at length

facts of the incident that six to seven tribal people pelted

stones on the bus and front side glass of the bus was broken.

He has further stated about the injuries caused to the

deceased in stone pelting and identified A-1 before the trial

court. During the cross-examination, he has admitted the fact

that he has not given name of persons who were pelted stones

before the police. He has further admitted the fact that he

has not given specification of the accused before the police.

He has also admitted that there was no TI parade conducted

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for identification of the accused.

14. The prosecution has examined the material witness,

Investigation Officer PW-8 Jayendrakumar Nathalal Joshi at

Exh.23. He has admitted the fact that he has not arranged

the TI parade during the investigation.

15. Considering the facts and circumstances of the

prosecution case and re-appreciating the prosecution

evidence, the prosecution has miserably failed to establish the

guilt of the respondents accused. Not only that, there is no

iota of evidence to connect the respondents accused in the

said incident. The identification of the accused also not

proved. No TI parade was carried out by the Investigation

Officer during the investigation. There is no direct or

corroborative evidence to connect both the accused of the

alleged charges.

16. At the outset, it is required to be noted that the

principles which would govern and regulate the hearing of

appeal by this Court against an order of acquittal passed by

the trial Court, have been very succinctly explained by the

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Apex Court in a catena of decisions. In the case of M.S.

Narayana Menon @ Mani Vs. State of Kerala & Anr.,

(2006) 6 S.C.C. 39, the Apex Court has narrated the powers

of High Court in appeal against the order of acquittal. In

Paragraph-54 of the said decision, the Apex Court has

observed as under:

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

16.1. Further, in the case of Chandrappa Vs. State of

Karnataka, (2007) 4 S.C.C. 415, the Apex Court has laid

down the following principle;

"42. From the above decisions, in our considered view, 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, re- appreciate 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

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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 curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis 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 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."

16.2. Thus, it is a settled principle that while exercising

appellate power, even 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.

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16.3. In the case of State of Goa V. Sanjay Thakran & Anr.,

(2007) 3 S.C.C. 75, the Apex Court reiterated the powers of

the High Court in such cases. In Paragraph-16 of the said

decision, the Court observed as under;

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re- appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

16.4. Similar principle has been laid down by the Apex Court

in the cases of State of Uttar Pradesh Vs. Ram Veer Singh

& Ors, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad

(Dead) by LRs Vs. State of MP reported in 2007 A.I.R.

S.C.W. 5589. Thus, the powers, which this Court may

exercise against an order of acquittal, are well settled.

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16.5. It is also a settled legal position that in acquittal appeal,

the appellate Court is not required to re-write the judgment or

to give fresh reasonings, when the reasons assigned by the

Court below are found to be just and proper. Such principle is

laid down by the Apex Court in the case of State of

Karnataka Vs. Hemareddy reported in AIR 1981 S.C.

1417, wherein, it is held as under:

"... This Court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate Court when it agrees with the view of the trial Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

16.6. Thus, in case the appellate Court agrees with the

reasons and the opinion given by the lower Court, then the

discussion of evidence is not necessary.

17. Considering the impugned judgment and order of the

learned trial Court and the aforesaid reasoning and bearing in

mind the statutory provisions, as well as the judgments of the

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Hon'ble Apex Court, this Court is of the considered opinion

that the present appeal does not warrant any interference in

the impugned judgment and order passed by the learned trial