Gujarat High Court
Ganpatbhai Manjibhai Patel vs The State Of Gujarat on 26 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
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R/CR.A/1638/2004 JUDGMENT DATED: 26/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1638 of 2004
With
R/CRIMINAL REVISION APPLICATION NO. 814 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes
No
√
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GANPATBHAI MANJIBHAI PATEL
Versus
THE STATE OF GUJARAT
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Appearance in Criminal Appeal No.1638 of 2004:
MR PT JASANI for the Appellant(s) No. 1
MR ROHANKUMAR RAVAL APP for the Respondent(s) No. 1
Appearance in Criminal Revision Application No.814 of 2004:
MR KULDIP ACHARYA ADVOCATE for MR MRUGEN KPUROHIT for the
Appellant(s) No. 1
MR ROHANKUMAR RAVAL APP for the Respondent(s) No. 1
MR P.T. JASANI for the Respondent(s) No.2, 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 26/08/2025
ORAL JUDGMENT
1. The appellant in Criminal Appeal No.1638 of
2004, as accused No.1 was convicted by an order
dated 13.08.2004 by learned Sessions Judge 4th
Fast Track Court, Morbi in Sessions Case No.9 of
1999. The appellant came to be convicted under
Section 323 of the Indian Penal Code (for short
"IPC") for six months rigorous imprisonment and
fine of Rs.500/- with default stipulation of
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fifteen days rigorous imprisonment and one month
rigorous imprisonment for the offence under
Section 135 of the Bombay Police Act (for short
"B.P. Act") with fine of Rs.100/- and in default
of payment of fine further ten days rigorous
imprisonment. Aggrieved by the order of
conviction and sentence, the present appeal has
been filed.
2. The trial was against the present appellant
and his wife under Sections 307, 323, 324 and 114
of IPC and Section 135 of the B.P. Act. The
Sessions Judge acquitted accused No.2 from all
the charges.
3. The facts of the case, which led to filing
of the charge-sheet against the accused can be
briefly stated as under:
3.1 Manharbhai Maujibhai Patel resident of
village Vejalpur during his treatment at Morbi
Hospital filed a complaint on 08.10.1998
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alleging that both the accused had beaten him on
08.10.1998 at about 19.00 p.m. to 19.30 p.m at
the outskirt of his village, while he and his
friend Kantilal Karsanbhai Patel were both
sitting on an Otta. At that time, Ganpat Manji
Patel and his wife Gauriben Ganpat Patel suddenly
came there, Ganpat Manji was having an iron pipe
and he gave a blow with the iron pipe on right
hand, complainant sustained injury near the wrist
and second blow was on the back and the third
blow was on the right leg. Thereafter, Gauriben
took the iron pipe from the hands of Ganpatbhai
and gave one blow on the frontal part of head of
the complainant. Since the complainant started
bleeding, both the accused left the place. As he
was bleeding, he went home and informed his
father and mother. The cause of the beating, the
complainant stated, was that he was having
relation with the daughter of the accused.
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3.2 The complainant was taken on a motorcycle by
Patel Babubhai Kada of the village at Khakhrechi
dispensary and after taking the treatment he was
taken to Government Hospital in Ambulance, where
he was admitted.
3.3 The complaint was filed alleging that Ganpat
Manji and his wife Gauri because of the reason of
their daughter had intention to kill the
complainant, therefore, with iron pipe had beaten
him on hand, leg, shoulder and head causing
injuries.
4. The offence was registered at Morbi City
Police Station and thereafter transferred to
Malia-Miyana Police Station registered as C.R.
No.94/98 for the investigation. As per the record
Criminal Case No.231/98 was registered by JMFC,
First Class. Since the offence under Section 307
IPC was exclusively triable by the court of
sessions, the same was committed to Sessions
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Court, Morbi, where was registered as Sessions
Case No.9 of 1999.
5. Criminal Revision Application No.814 of 2004
was filed by de facto complainant - Manharbhai
Maujibhai Patel under Section 397 read with
Section 401 of the Code of Criminal Procedure,
1973 (for short 'Cr.P.C.') making a prayer to
quash the acquittal of accused-Gauriben W/o.
Ganpatbhai Manjibhai Patel, and to held both the
accused guilty under the charge of Section 307
IPC or alternatively under Section 326 or 325,
and to suitably punish the accused as per the
provisions of law.
6. Learned advocate Mr. P.T. Jasani for the
respondent - accused in the revision petition
raised a preliminary objection regarding the
maintainability of the revision petition under
Section 397 Cr.P.C., stating that the complainant
as a victim would have no jurisdiction to file
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revision petition, as at the relevant time in the
year 2004, there was no such provision in Cr.P.C.
and for the very first time under Section 372
Cr.P.C. by way of proviso with effect from
31.12.2009, the victim was granted the right to
prefer an appeal against order of acquittal or
against conviction for a lesser offence. Thus,
submitted that the revision application would not
be maintainable.
7. Countering the arguments, learned advocate
Mr. Kuldip Acharya for learned advocate Mr.
Mrugen K.Purohit, relying upon the judgment of
(i) Joseph Stephen And Others Vs. Santhanasamy
And Others, [(2022) 13 SCC 115] (ii) Krishnan And
Another Vs. Krishnaveni And Another, [(1997) 4
SCC 241] (iii) Rajathi Vs. C.Ganesan [(1999) 6
SCC 326], vehemently contended that the
provisions under section 397 Cr.P.C. on the plain
reading permits the High Court to examine the
correctness, legality or propriety of any
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finding, sentence or order recorded or passed,
and even as to the regularity of any proceedings
of the court of original jurisdiction.
7.1 Learned advocate Mr. Acharya further stated
that if the Court comes to the conclusion that
only appeal lies, then under sub-section (5) of
Section 401 Cr.P.C., the same could be converted
as a petition of appeal and deal with the same
accordingly.
7.2 Relying on the judgment of Joseph Stephen
(supra), Mr. Acharya submitted that if the Court
after giving its own findings on the acquittal of
the accused, and setting aside the order of
acquittal, may remit the matter back to the Trial
Court, thus contended that the present matter
requires retrial for the limited aspect in
connection to the prayer made before this Court.
7.3 Learned advocate Mr. Acharya submitted that
in Joseph Stephen (supra) case, the amended
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provision of Section 372 Cr.P.C. has been
referred and the Hon'ble Supreme Court has laid
down the procedure to be adopted after exercising
the power under sub-section (5) of Section 401
Cr.P.C.
7.4 In the case of Joseph Stephen (supra), the
Hon'ble Supreme Court has taken into
consideration the judgment of Mallikarjun
Kodagali Vs. State of Karnataka [(2019) 1 SCC
(Cri.) 801], and ultimately has laid down in
paragraph Nos.14 and 15 as under:
"14. Now so far as the power to be
exercised by the High Court under sub-
section (5) of Section 401 CrPC,
namely, the High Court may treat the
application for revision as petition of
appeal and deal with the same
accordingly is concerned, firstly the
High Court has to pass a judicial order
to treat the application for revision
as petition of appeal. The High Court
has to pass a judicial order because
sub-section (5) of Section 401 Cr.P.C.
provides that if the High Court is
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satisfied that such revision
application was made under the
erroneous belief that no appeal lies
thereto and that it is necessary in the
interests of justice so to do. While
treating with the application for
revision as petition of appeal and deal
with the same accordingly, the High
Court has to record the satisfaction as
provided under sub-section (5) of
Section 401 Cr.P.C. Therefore, where
under the Cr.P.C. an appeal lies, but
an application for revision has been
made to the High Court by any person,
the High Court has jurisdiction to
treat the application for revision as a
petition of appeal and deal with the
same accordingly as per sub-section (5)
of Section 401 Cr.P.C., however,
subject to the High Court being
satisfied that such an application was
made under the erroneous belief that no
appeal lies thereto and that it is
necessary in the interests of justice
so to do and for that purpose the High
Court has to pass a judicial order, may
be a formal order, to treat the
application for revision as a petition
of appeal and deal with the same
accordingly.
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15. Now the next question is what order
should be passed in a case like the
present. This Court may either set
aside the impugned judgment and order
passed by the High Court setting aside
the acquittal and convicting the
accused so as to enable the High Court
to remit the matter to the first
appellate Court to rehear the appeal
after considering the findings recorded
by it or to remit the matter to the
High Court to treat the revision
application as a petition of appeal
against the order of acquittal, which
otherwise is permissible under sub-
section (5) to Section 401 Cr.P.C. As
observed hereinabove, as such, while
exercising the powers under sub-section
(5) to Section 401 Cr.P.C. to treat the
revision application as a petition of
appeal, the High Court is required to
pass a judicial order. However,
considering the fact that even
otherwise being victims they are having
the statutory right of appeal as per
proviso to Section 401 Cr.P.C., we deem
it fit and proper to remit the matter
to the High Court to treat the revision
applications as petition of appeals
under Section 372 Cr.P.C. and to decide
the same in accordance with law and on
their own merits. The same would be in
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the interests of all, namely, the
victims as well as the accused, as the
appellate Court would have a wider
scope and jurisdiction as an appellate
Court, rather than the revisional
court."
8. In context to the observation of the Hon'ble
Supreme Court in the referred judgment, the first
aspect, which requires to be examined under the
revisional power of the High Court, and which
becomes necessary to be noted prior to
undertaking the exercise under sub-section (5) of
Section 401 Cr.P.C., where the very section under
sub-sections (3) and (4) curtail the revisional
power of the High Court in the following terms:
(3) Nothing in this section shall be
deemed to authorise a High Court to
convert a finding of acquittal into one
of conviction.
(4) Where under this Code an appeal
lies and no appeal is brought, no
proceeding by way of revision shall be
entertained at the instance of the
party who could have appealed.
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9. Sub-section (3) of Section 401 Cr.P.C. does
not authorise the High Court to convert a finding
of acquittal into one of conviction under
revisional jurisdiction . Sub-section (3) makes
it clear that no deeming provision can be invoked
putting it into clarificatory form, that nothing
in Section 401 Cr.P.C. shall be deemed to
authorise High Court, to convert a finding of
acquittal into one of conviction under the
revisional power. Sub-section (4) further
clarifies that when appeal lies and no appeal is
brought then the revision petition shall not be
entertained at the instance of the parties, who
could have appealed.
10. Section 378 (3) Cr.P.C. makes a provision
for filing an appeal in case of acquittal with
the leave of the High Court. In Mallikarjun
Kodagali (Supra) case, in Paragraph Nos.87, 88,
89, 90 and 95, the Hon'ble Supreme Court held as
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under:
"87. At this stage, it would also be
pertinent to mention that under Section
378 CrPC an appeal against the order of
acquittal passed by a Magistrate in
respect of cognizable and non-bailable
offences lies to the Sessions Court and
no leave to appeal is required. From
the Court of Magistrate it is only
appeals in respect of offences which
are non-cognizable and bailable i.e.
less serious offences which would lie
to the High Court. In such cases, leave
to appeal is a prerequisite. This was
done with a view to ensure that the
persons who had faced trial for
relatively lesser offences should not
have to bear the expenses of an appeal
in the High Court. The other appeals
which lie to the High Court are appeals
from the Court of Sessions. These are
serious criminal matters and relate to
much graver offences. Here the concept
of leave to appeal was probably
introduced because these cases are
decided by relatively Senior Judges
i.e. Sessions Judges. The legislature
felt that in such cases also the
appeals against acquittals must be
scrutinised with greater care.
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88. As pointed out above, even a
complainant when he files an appeal
against an order of acquittal in a case
instituted upon a complaint is required
to obtain special leave to appeal. It
is true that the proviso to Section 372
CrPC does not indicate that a victim
while filing an appeal in the High
Court must file a petition for leave to
appeal before his appeal can be
entertained.
89. I am of the considered view that
though the proviso to Section 372 CrPC
does give a right to the victim to file
an appeal, this proviso cannot be read
in isolation. It has to be given a
meaning which fulfils the intention of
the legislature. The proviso to Section
372 CrPC does not lay down the
procedure as to how, in what manner,
and within which time the appeal has to
be filed. An appeal, being a creature
of the statute, it is also necessary to
prescribe the limitation and procedure
for filing the appeal.
90. Adverting to sub-section (4) of
Section 378 CrPC, if an order of
acquittal is passed on a case
instituted upon a complaint then the
High Court before entertaining an
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appeal by the complainant must grant
special leave to appeal. The expression
"special leave to appeal" has no
different meaning than the expression
"leave to appeal" and it appears to me
that the word "special" has been added
only to distinguish "leave to appeal"
sought by the complainant from the
"leave to appeal" sought by the State.
Thus, in a complaint case where the
complainant has set the wheels of the
Court in motion even if the complainant
files the appeal he must obtain special
leave to appeal. This again gives rise
to an interesting question--Can the
victim be placed on a higher pedestal
than the complainant? More often than
not, the victim and the complainant are
likely to be one and the same person.
95. The right of the victim to file an
appeal is not taken away or in any
manner weakened only because he has to
seek leave to appeal. If Sections
378(3), 378(4) and 372 CrPC are read
together, it is clear that the victim
is also required to apply for leave to
appeal before his appeal can be
entertained."
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11. The conspectus of the view expressed in
Joseph (supra) and Malikarjun (supra) case,
clarifies that Section 378(3) and (4) Cr.P.C.
would permit the victim to file an appeal with
the leave of the Court. On reading section
378(3), 378(4) and 372 Cr.P.C. together it would
become clear that victim is also required to pray
for leave to appeal before his appeal can be
entertained.
11.1 Here, the provision of sub-section (3) and
sub-section (4)of section378 was available to the
revisionist at the time of filing the revision
application. The expression 'No appeal' in sub-
section (3) was replaced by words "No appeal to
the High Court" with effect from 23.06.2006. The
present revision application is filed in the year
2004. The revisionist had the opportunity to move
the High Court by filing an appeal against the
acquittal under leave to appeal, thereafter too,
no such prayer has been made to get the revision
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application converted into an appeal, with a
prayer for leave to file appeal.
12. The revision petition under section 397 read
with the power of High Court under section 401
clearly restricts under sub-section (3) of
Section 401 Cr.P.C., the High Court to convert a
finding of acquittal into one of conviction under
the revisional jurisdiction. Hence, in view of
the matter, to the provision of law, the revision
application No.814 of 2004 of the original
complainant stands rejected.
13. Strangely and equally, important it is to
note, that accused had originally filed Criminal
Revision Application No.681 of 2004 under Section
397 of Cr.P.C. 1973, challenging the judgment and
order dated 13.08.2004 passed in Session Case
No.9 of 1999 by Joint District Judge and
Additional Sessions Judge, 4th Fast Track Court,
Morbi to quash and set aside the judgment. On
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05.10.2004, the following order was passed:
"Learned advocate Mr. P.T. Jasani seeks
permission to convert this Revision
into Criminal Appeal. Permission
granted as Appeal would lie to this
Court under Section 374(2) of the
Criminal Procedure Code against the
judgment and order impugned in this
appeal. Office is directed to register
this Criminal Revision Application as
Criminal Appeal."
13.1 So by the order on 05-10-2004 the revision
application was permitted to be registered as
Criminal Appeal. Hence the present Appeal.
14. Learned advocate Mr. Jasani raising
contention, as ground of appeal submitted that
the impugned judgment and order of conviction is
contrary to law and evidence on record. The story
of the prosecution is not at all supported by the
prosecution witnesses and that it is highly risky
to place reliance on the complainant's evidence
alone, since his evidence is not at all reliable
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and credible.
15. Mr. Jasani referring to the testimony of
the witnesses contended that witness No.8 -
Altafbhai has not supported the recovery of the
muddamal pipe from accused No.1. The prosecution
story of accused No.1 continuously giving iron
pipe blows and suddenly accused No.2, the wife,
taking the iron pipe from the hands of the
husband and giving a serious blow on the frontal
portion of the head of the complainant, is
completely false and fabricated story, which is
only got up to falsely involve accused in the
alleged crime.
16. Mr. Jasani submitted that the person, who
was sitting along with the complainant, Kantibhai
Karsanbhai has not supported the case of the
complainant, where as per the prosecution case
witness Kantibhai Karasanbhai is the person who
had taken the complainant for treatment, though
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he was eye witness to the incident, he has not
supported the case of the prosecution, rather he
stated that the injuries which the complainant
sustained was because of the women of the
village, who were washing clothes at the well and
they had to run away from the place and during
that process complainant had fallen down on the
scrap of stones and woods, while he got slipped.
17. Advocate Mr. Jasani further submitted that
the evidence of the complainant does not get
support from his own complaint, the injuries does
not corroborate. Mr. Jasani thus, stated that the
evidence of the complainant cannot be believed
without support from the independent witness, and
contents that the conviction under Section 323
against accused No.1 is erroneous and not
consistent with the evidence on record.
18. Mr. Jasani submitted that the reliance on
the evidence of the complainant would require
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corroboration from independent person and in
absence of any corroboration, the evidence of the
complainant is to be considered doubtful and dis-
believable. Mr. Jasani submitted that the
complainant's say was found doubtful by the
learned trial Court Judge and on the same
evidence, accused No.2 was acquitted while
accused No.1 came to be convicted, which Mr.
Jasani submitted is bad in law. The evidence of
the Doctor also does not find corroboration to
the ocular evidence of the complainant. Mr.
Jasani submitted that the character of the
complainant is also required to be observed,
while he had shown his false motive to file false
complaint by raising false facts.
19. Learned advocate Mr. Acharya for the de-
facto complainant was permitted to raise the
grounds to assist the Public Prosecutor in
Criminal Appeal No.1638 of 2004.
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20. Learned APP Mr. Rohan Raval assisted by Mr.
Kuldip Acharya has relied on the judgments of (i)
State of Madhya Pradesh Vs. Harjeet Singh And
Another [(2019) 20 SCC 524] (ii) Hari Mohan
Mandal Vs. State of Jharkhand [(2004) 12 SCC
220], to submit that the bodily injury is not
required to be proved. Attempt to murder is the
only requirement for the purpose of conviction
under Section 307 IPC. Mr. Raval learned APP
submitted that the intention to commit murder and
the act done by the accused is the only burden on
the prosecution to prove that the accused had
attempted to commit murder of the prosecution
witness. Mr. Raval submitted that the evidence of
complainant as a victim was appreciated along
with the evidence of other witnesses by the
learned Judge to consider the injury inflicted by
the appellant to sustain conviction under Section
323 of the IPC. Thus, submitted that the appeal
is required to be dismissed and the order of
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conviction and sentence to be upheld.
21. On hearing the arguments of learned
advocates from both the sides, perused the
record.
22. The injured complainant P.W.7 - Manharbhai
Maujibhai Loriya was having a business of salt
and was resident of village Vejalpur. As per his
testimony on 08.10.1998, he along with Kantilal
Karsanbhai at about 7.00 to 7.30 evening were
sitting on the shore of the lake, at that time,
accused Ganpat Manji and Gauriben came there.
According to the witness, Ganpatbhai was having
an iron pipe in his hand, who came near him and
gave him a blow with the iron pipe on the right
hand wrist, another blow was given on the back
and third blow at the right leg. The witness
stated that thereafter, wife of Ganpatbhai took
the pipe from his hand and gave him a blow on the
frontal area of his head. Blood started oozing
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out of the head. Both the accused left the place
and he went to his house, where he informed his
father and mother about the incident.
22.1 The injury, which the witness P.W.7 refers
of iron pipe on the head is attributed to the
wife Gauriben. The learned Trial Court Judge has
acquitted Gauriben by giving benefit of doubt.
The cause for the incident stated by the injured
witness was that he was in relation with the
daughter of accused-Ganpatbhai and therefore, he
was beaten.
22.2 The injured was taken to Khakherchi
dispensary by Babubhai Kala of his village on
motorcycle. From there, in Government Ambulance,
he was taken to Morbi Hospital, where the
treatment continued for six days.
23. P.W.5 - Doctor Dipakkumar Virjibhai
Bavarbha, Medical Officer of P.H.C. Center of
Khakherchi village on 08.10.1998, saw the injured
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witness Manharbhai Maujibhai at about 10.30
night. In the history before Doctor Dipakkumar,
the injured witness stated that between 7.00 to
7.30, he got injured by assault. The doctor
referred to the injuries, as referred
hereinbelow:
1. CLW over Scalp (illegible) frontal region
size 3 cm x 0.5 cm x muscle deep.
2. Contusion (illegible) (illegible) over (it)
(illegible) region (illegible) size 9 cm x 1
cm apart.
3. Swelling over Rt. Leg (illegible) medial side
9 cm x 7 cm size (illegible) (illegible).
4. Contusion over part surface of it. Knee joint
3 cm x 1 (illegible) (illegible).
23.1 The doctor in the deposition stated that
the injuries were not serious and if there was no
other complications, then within two weeks the
injuries could be healed. The injury was
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sustained by hard and blunt substance. The doctor
was of an opinion that the injury could occur
with the muddamal pipe.
23.2 The evidence of the doctor was confronted
by way of cross-examination, whereby the doctor
stated that, before him injured Manharbhai had
not given the history of the place, where he
sustained injury, and Doctor too had not inquired
about it and stated that if a person walks very
speedily on the road and falls on stones and
woods, then such type of injuries, as suffered by
Manharbhai could occur.
24. P.W.7 - injured witness Manharbhai had given
his compliant at the hospital at Morbi before the
Police. In the cross-examination the defence had
tried to dislodge his character, where it came on
record, that there were two complaints against
complainant; one was of kidnapping his wife
Susmita, which was filed by her father and
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another complaint was of quarrel, which was still
pending at Maliya Court.
24.1 In the cross-examination further complainant
affirmed that the incident had occurred at the
time of sun set. He also affirmed that there were
village women on the lake, who were filling water
from the lake and on the bank of the lake there
were people passing by. He also stated that
beside the lake there was a temple of Hanumanji
and village people were coming there for worship
in the evening time. There was also a well,
beside the lake, but he denied the suggestion
that the well was not unattended and village
people were using water to wash clothes. He also
stated that it was time for "Aarti" in the
temple. He further stated that village people
were bringing their cattle to the lake.
25. Complainant denied the suggestion of not
having any relation with the accused Ganpatbhai's
daughter. He denied the suggestion that at the
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time of incident his sister was counselor at
Morbi Nagarpalika and denied the suggestion that
since he was having business in coal, he had
influence with the police.
26. The defence was raised that since he was
sitting on the shore of lake at that time, he had
harassed the village women and therefore, those
women ran after him and he fell on stones and
woods and thereafter, fell from the slope,
therefore, sustained injuries and out of utter
safety, so that the village women would not file
complaint, he had filed a false complaint against
the appellant - Ganpatbhai and his wife. He also
stated that when he sustained injury he had not
made any outcry, and that Kantibhai had fled away
from the place because of dispute.
27. P.W.1 - Babubhai Raghavji Patel was examined
as panch for the place of offence. He had not
supported the prosecution case and was declared
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hostile. He stated that he had not shown any
place of incident nor police had seized any
articles in his presence. He denied of collecting
blood stain soil near the Hanumanji Temple at the
bank of lake of Vejalpur village.
27.1 Bharatbhai Kantilal Joshi (P.W.2) was
examined as a panch for recovery of the old iron
pipe. He too had denied of any production on
13.10.1998 at Maliya Police Station by accused
Ganpat Manji. He also denied the description and
the size recorded in the panchnama. Witness was
shown the muddamal pipe during the trial. He
denied of the same being seized in his presence.
Even, Altafbhai Kadarbhai the panch (P.W.8) had
denied of any production of iron pipe by the
accused on 13.10.1998.
27.2 Ajitbhai Narbhebhai (P.W.3) is the panch of
recovery of clothes of injured Manhar Mauji Patel
at the hospital. The panchnama of his clothes was
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denied by the witness. He was declared hostile.
Even after the cross-examination by the Public
Prosecutor, he denied of any such clothes seized
of injured Manhar Mauji at Hospital and denied of
any panchnama drawn of his physical condition.
27.3 P.W.9-Maheshkumar Natvarlal Vyas denied the
arrest of accused Gauriben on 14.10.1998 in
presence of the panch.
28. P.W.6 - Dr. Sukhdev Kunvardas Ramavat
medically examined the witness on 09.10.1998 at
Morbi Government Hospital during the night hours.
According to the witness, Manharbhai Patel had
come with a written note Exh.16, from Khakhrechi
P.H. Center. The O.P.D. case papers of the
injured Manharbhai was produced at Exh.17.
Patient was discharged on 12.10.1998. The doctor
produced the indoor case paper as well as X-ray
at Exh.18. As per the doctor, the injuries were
(i) one stitch on the frontal region of head,
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(ii) Bruise reddish blue 9 c.m. x 1.1 c.m. on
scapular region over back (iii) swelling on the
left posterior medial surface of right leg (iv)
bruise (reddish blue) 3 c.m. x 1 c.m. on left leg
on posterior surface of knee joint. The doctor
(P.W.6) stated that the Injury Nos.(ii) to (iv)
could occur by hard and blunt substance. Such
injuries could be caused with an iron pipe.
Doctor stated that since he had not opened Injury
No.1, he was not in a position to say about the
weapon with which it could be caused. Doctor
further stated that the injury was not grievous,
but was simple and it could be healed within ten
to twelve days without any complication. In the
cross-examination it has come that the doctor has
not examined Injury No.1, who further stated
that, had the situation of the patient been
serious because of the injury, then he would
certainly had written a note in internal
treatment papers. Doctor also stated that Injury
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Nos.2 to 4 could occur, if the person come in
contact with hard substance, like falling on
stone and wood.
29. The injured witness (P.W.7) in his
deposition stated that he was sitting along with
Kantilal Karsanbhai on the shore of lake in the
evening time between 7.00 to 7.30 on 08.10.1998.
29.1 Witness - Kantilal Karsanhbai was examined
as P.W.10 at Exh.24. He is a contractor by
profession. He admitted that he along with
Manharbhai were sitting on the shore of lake near
the well in the evening. He had not seen anyone
beating Manharbhai with pipe. He had heard hue
and cry and since it was dark at night, he could
not identify who had beaten him. He stated that
he ran away from the place. He does not know who
had beaten Manharbhai, and for what purpose.
Kantibhai very specifically stated that he has
not seen accused Ganpat Manji Patel and Gauriben
beating Manharbhai with pipe, and no such
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incident had occurred in his presence. The
witness was declared hostile. In the cross-
examination by the Public Prosecutor, the witness
had not supported the prosecution case. In cross-
examination by the defence from the side of the
accused, the witness stated that he was knowing
the daughter of Ganpatbhai, the daughter had no
such love relation with Manharbhai. On
09.10.1998, they were sitting on the shore of the
lake, at that time, women were washing clothes at
the well and at that time, injured Manharbhai
signaled the witness and asked him to run away.
The witness stated, on the shore there were
scraps of stones and woods and Manharbhai got
slipped on it and therefore, he sustained
injuries on his body.
29.2 Witness Kantilal Karsanbhai Patel (P.W.10)
was along with injured Manharbhai. The
complainant-injured did not deny that fact. The
injured complainant had admitted of women of
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village coming at the lake to fill water and had
also admitted that there was frequency of people
on the shore of the lake. People would also come
at the Hanumanji temple in the evening for their
offerings. PW 10-Kantibhai was confronted in the
cross-examination on their sitting there on the
bank of the lake, and since complainant was
teasing the village women, they had made him run
and therefore,complainant had fallen on the
scraps of stones and woods from the slope, which
witness affirmed. This incident had been admitted
by witness Kantilal in the cross-examination,
thus in view of the evidence the defence version,
that complainant was made to run away from the
place by the village women becomes believable.
30. P.W.11 - Vasantpari Nathupari Bawaj is the
panch of the panchnama of place of offence.
Though the witness identified his signature on
panchnama (Mark 11/3), the learned Judge did not
deem fit to exhibit the document in evidence,
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P.W.11 was declared hostile. On 09.10.1998, when
panch witness was coming out of the Hanuman
Temple after offering his prayers, police on the
road had asked him to put signature on seven to
eight papers. He denied of witness Kantilal
Karsan (P.W.10) having showed the place of
offence. P.W.11 said that at the time of signing
he was alone.
30.1 On declaring P.W.11 hostile, learned APP
crossed the witness with panchnama to get
corroboration of the fact that P.W.10 had shown
the place of offence on the shore of the lake
near Hanumanji temple, showing drops of blood and
dried blood scraped for F.S.L. and control sample
being collected. All these facts were denied by
P.W.11.
31. P.W.12 - Kasturben wife of Maujibhai Patel,
mother of complainant, was examined at Exh.28. At
the time of incident the complainant -
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Manharbhai, his son, was staying with her. Her
deposition notes that on the day of incident at
eight in the evening, her husband was at home and
she was preparing for dinner, at that time, she
saw her son covered with blood. Her son did not
speak anything. Her son Rasik called Babubhai and
send Manhar for treatment to Khakhrechi.
31.1 P.W.12 further deposed that after some time
Babubhai came to their village and informed that
Manhar got stitches on his head, and for further
treatment he was taken to Morbi Hospital.
31.2 Next day, when P.W.12 and her husband went
to visit Manhar, and inquired from him about the
incident, Manhar informed that he was beaten,
Ganpat Manji had beaten him, who had beaten him
with iron pipe and his wife Gauriben Manji too
had beaten him on head by taking iron pipe from
the hands of Ganpat Manji.
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31.3 P.W.12 identified accused in the Court. In
cross-examination, witness stated that presently
her son was staying at Morbi. At the time of
incident, Rasikbhai, his wife Lalita and Manhar
were staying together. At the time of incident,
Rasikbhai was thirty five years of age. When her
son Manhar was brought home, they all were
present.
31.4 As per P.W.12 Kantibhai had come to leave
Manhar at home. P.W.12 had asked about the
incident, but Kantibhai did not reply. When she
had asked about the incident to Babubhai, he said
that Manharbhai was beaten.
31.5 P.W.12 denied the fact that against her
son, accused and villagers had filed complaints
in Panchayat and other places. Police had
recorded her statement on the next day, at that
time her son was at Morbi. P.W.12 denied the
suggestion that her son had fallen down in the
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hustle and got hurt and therefore, when he came
home the first time, he did not tell her
anything.
31.6 The deposition of P.W.12 clarifies that
when complainant had come home, he did not inform
of the incident to his mother, when, father as
well as brother Rasik were present there. Father
and brother were not examined.
32. P.W.10 - Kantibhai, the eye witness, too
had not informed them about the incident,
Babubhai is only informing the mother that her
son was beaten, but Babubhai did not tell who had
beaten Manhar.
33. P.W.12 is not an eye witness, while eye
witness Kantibhai (P.W.10) had not informed
anything about the incident, nor Babubhai states
about the assailants. P.W.12 deposition is, what
is informed to her by the complainant, while
father and brother of the complainant, are not
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coming forward to corroborate the say.
34. Bhupatsinh Mansinh Solanki - P.W.13 was
P.S.I. at Malya Miyana Police Station during the
period of 09.10.1998. As he was on leave, the
investigation was handled by P.S.I. Z.A. Thakur,
who drew panchnama of place of offence. P.W.13
identified the signature of P.S.I. Thakur, Mark
11/3, was placed in evidence at Exh.30, who
deposed that P.S.I Thakur also had recorded
statements of witnesses. On P.W.13 taking back
the investigation, he arrested the accused.
P.W.13 stated that accused Ganpat Manji Patel
produced the iron pipe, reading the description,
iron pipe was seized by way of panchnama, and
then accused Ganpat Manji was arrested. P.W.13
deposed that in the same way accused Gauriben
Ganpat Manji was arrested. Both the panchnama
were produced at Exh.31 and 32. The clothes of
injured Manharbhai were seized, the panchnama was
produced identifying the signature of P.S.I.
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Thakur at Exh.33.
35. The notification of prohibition on weapons
was placed at Exh.34. The forwarding note to
F.S.L. and examination of its result,P.W.13
placed on record from Exh.35 to 40. The treatment
certificates were procured and charge sheet was
filed by this witness.
36. In cross-examination, it has came on record
that except arrest panchnama no other work was
done by this witness. He handled the
investigation on 12.10.1998. He had not recorded
the statement of Rasikbhai, nor had recorded the
statements of the neighbours.
37. Scientific Officer report from Regional
Forensic Science Laboratory, Junagadh had given
conclusion of nine parcels and also sends
serologist report. As per the report in parcel-2,
Mark A/1 on sample No.2, there were no signs of
blood the sample were pieces of cement plaster.
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In parcel-7, Mark-D sample-7 no blood was found,
sample-7 was denoted as iron pipe of 93.0 c.m.
length. The sample-7 was shown to be rusted with
stains of dust.
37.1 The report thus, does not find blood on the
iron pipe, nor at the place of offence from where
the pieces of concrete were collected.
38. The conviction of the appellant is under
Section 323 of IPC by the learned Trial Court
Judge relying on the evidence of Dr. Sukhdev
Kunvardas Ramavat and Doctor Dipakkumar Virjibhai
Bavarbha considering the injury as simple
injuries. The learned Trial Court Judge was of
the opinion that the prosecution has failed to
prove the intention to commit murder and in that
circumstances on the evidence found, accused No.1
was found guilty of offence under Section 323 IPC
observing that the prosecution failed to prove
the case under Sections 307 and 324 IPC against
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both the accused. The Trial Court Judge believed
the case under Section 323 IPC only against
accused No.1 - the present appellant.
39. The challenge has been given to such an
observation of the learned Trial Court Judge. The
complainant, as an injured witness cannot be
believed, since the eye witness Kantilal
Karsanbhai Patel (P.W.10), who was along with him
had not supported the complainant. The injured
complainant had alleged that he was beaten by
appellant and his wife, however, wife has been
acquitted by the Trial Court. The recovery of the
iron pipe with the serological report does not
support the case of the complainant. There were
no blood stains found on the iron pipe, nor any
blood was seen at the place of offence. The eye
witness Kantilal Karsanbhai Patel very clearly
states that he has not seen the appellant -
Ganpat Manji, or his wife - Gauriben beating
complainant - Manharbhai with the iron pipe. As
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per eye witness, no such incident had occurred in
his presence. The learned Trial Court Judge has
erred to convict the present appellant, failing
to appreciate this evidence on record which
excludes both the accused from the charge. The
same evidence, which was for the acquitted wife
was available on record for the convicted
appellant.
40. The evidence of the complainant - Manharbhai
becomes doubtful, as he had not immediately
informed about the incident to his mother
(P.W.12), when he was taken by the eye witness
Kantibhai to the house. Even Kantibhai had not
stated about the incident to the mother. The
brother of complainant - Rasikbhai had called
Babubhai and had sent complainant for treatment
at Khakhrechi. Mother (P.W.12) had inquired from
Babubhai about the incident, but he too failed to
give any account of the incident. He could only
inform that Manharbhai was beaten.
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41. P.W.10 - Kantibhai Karsanbhai was sitting
along with the complainant Manharbhai on the
shore of the lake near the well and had stated of
running away from the place and in the cross-
examination had affirmed that women were washing
clothes on the well and at that time injured
complainant - Manharbhai signalled him to run
away, and that the complainant had slipped on the
scrap of stones and woods and sustained injuries
on his body. In absence of corroborative
evidence, the complainant version cannot be
believed, as his testimony is shrouded with
suspicion, since he in his evidence had tried to
malign the character of the daughter of the
accused to express the motive which does not get
proved. He himself is facing the complaint of
kidnapping his wife, which was filed by father-
in-law, and another complaint is of beatings. The
credibility of deposition of the complainant in
that background becomes doubtful, which requires
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a corroboration from an independent person.
Kantilal Karsanbhai (P.W.10) though was along
with him has not supported the complainant's
case. Further, in absence of any positive report
of blood stains on the iron pipe and the place of
incident, it could be said to be conclusively
proved that the appellant had used the iron pipe
to hit the complainant.
42. In view of the above observations and
analysis of the evidence, this Court is of an
opinion that the prosecution had failed to prove
the case against the present appellant too, where
no cogent and reliable evidence was on record to
even convict the appellant under Section 323 of
the IPC. When the testimony remain uncorroborated
and when both the witnesses, the complainant and
eye witness (P.W.10), have two different versions
to say, the prosecution case becomes doubtful.
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43. In the result the appeal is allowed. The
conviction and sentence dated 13.08.2004 passed
by the learned Joint District Judge & Additional
Sessions Judge, 4th Fast Track Court, Morbi in
Sessions Case No.9 of 1999 is set aside. The
appellant is acquitted from all the charges. Bail
bond stands discharged. Record and Proceedings be
sent back to the concerned Trial Court forthwith.
(GITA GOPI,J)
Pankaj/1
