Gujarat High Court

The State Of Gujarat vs Bhanabhai Nagabhai Bharvad on 30 August, 2025

Author: Gita Gopi

Bench: Gita Gopi

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                              R/CR.A/960/2005                                 JUDGMENT DATED: 30/08/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/CRIMINAL APPEAL NO. 960 of 2005


                        FOR APPROVAL AND SIGNATURE:


                        HONOURABLE MS. JUSTICE GITA GOPI

                        and

                        HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
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                                     Approved for Reporting                  Yes           No
                                                                                            
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                                                      THE STATE OF GUJARAT
                                                              Versus
                                                BHANABHAI NAGABHAI BHARVAD & ORS.
                        ==========================================================
                        Appearance:
                        MR RUPESH KATHIRIYA, ADDL PUBLIC PROSECUTOR for the
                        Appellant(s) No. 1
                        MR DILIP B RANA(691) for the Opponent(s)/Respondent(s) No. 1,2,3,4
                        ==========================================================

                             CORAM:HONOURABLE MS. JUSTICE GITA GOPI
                                   and
                                   HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
                                   DESAI

                                                         Date : 30/08/2025
                                                         ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI)

1. The respondents - accused were acquitted by the

Additional Sessions Judge of 7th Fast Track Court of

Nadiad from the charge of offence alleged to have been

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committed under Sections 436, 504, 506(2) and 114 of

the Indian Penal Code and Section 135 of the B.P. Act by

virtue of judgement and order dated 17.09.2004,

pronounced in Sessions Case No. 21 of 2003.

2. The complainant State, being aggrieved and

dissatisfied by the said judgment and order of acquittal,

had preferred the present appeal under Section 378 of

the Code of Criminal Procedure on the grounds

mentioned in the memo of appeal praying to allow the

same, and thereby quash the judgement and order of the

learned Additional Sessions Judge, Nadiad and

accordingly, convict the respondents - accused.

3. As per the case of the prosecution, the original

complainant Khotabhai Savabhai Vaghri had lodged a

complaint against the respondents - accused on

08.10.2002 before the Tarapur Police Station, wherein,

he had stated that, people of Bharwad community had

taken their cattle to the grazing land at around 07.30 am

on 08.10.2002. At that time, his wife Poonaben had

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cautioned him that, these people were herding their

cattle to the grazing land, hence, he should leave the

place and accordingly, he had left his house. He had seen

the respondents - accused and hence, he had run away.

Thereafter, the respondents - accused had abused him as

well as people of his community, and had threatened

them all with their lives, and had also threatened to burn

their houses, and saying so, all the four respondents -

accused had kept a burning charcoal in his house

resulting in his house catching fire, and his household

articles having been destroyed in the said fire, pursuant

to which, the respondents - accused had left the place.

3.1 The complaint having been registered, which is on

record vide Exh. 12, the investigation was set into motion

and upon completion of the same, charge-sheet came to

be filed. The learned Presiding Officer of 6 th Fast Track

Court, Nadiad had framed charge against the

respondents - accused under Sections 436, 504, 506(2)

read with Section 114 of the Indian Penal Code and

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Section 135 of the B.P. Act, to which they having denied,

were put to trial.

3.2 The prosecution had examined 6 witnesses and had

submitted 2 documents to bring home the charge against

the respondents - accused. Upon completion of oral

evidence of the prosecution, the statements of the

respondents - accused under Section 313 of Cr.P.C came

to be recorded, and after hearing the submissions of

learned advocates of either sides, the learned Additional

Sessions Judge of 7th Fast Track Court, Nadiad was

pleased to acquit the respondents - accused.

4. Heard Mr. Rupesh Kathiriya, the learned APP for the

complainant State who has reiterated the grounds

mentioned in the appeal - memo. Learned APP has

submitted that, the judgement of the competent court

being contrary to facts and law of the case, should be

quashed and set aside and by allowing this appeal, the

respondents - accused be convicted for the offence, that

they were charged for.

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5. None is present on behalf of the respondents -

accused.

6. The original complainant Khotabhai Savabhai Vaghri

was examined as P.W. 1 vide Exh. 11 and he had

identified his signature in the complaint at Exh. 12. He

had admitted in his cross-examination that, he along with

Ramanbhai Vaghri and Jaswantbhai Valmik had gone to

lodge the complaint. However, P.W. 2 Ramanbhai Vaghri

had stated in his examination-in-chief that, he was not

present when the incident had occurred and P.W. 1

Khotabhai Vaghri had already lodged the complaint

before he reached Tarapur from Khambhat, and he came

to know about the incident from Khotabhai.

6.1 P.W. 4 - Jaswantbhai Valmik who was one of the

panch witnesses in the panchnama of scene of incident at

Exh. 15, had not uttered a word about he having gone to

the police station along with P.W. 1 Khotabhai to lodge

the complaint, and that, he was at his relative's house

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when the police had come to call him. He had admitted in

his cross-examination that, when he had reached the

place of incident, the police were writing the panchnama

and upon completion, he had affixed his signature on the

panchnama at Exh. 15.

6.2 It also transpires from the cross-examination of P.W.

1 Khotabhai that, the people of Vaghri community had

demanded the grazing land for which, a civil suit bearing

no. 99 of 2002 was pending before the Civil Court at

Khambhat, and they had also filed a complaint against the

respondents - accused for they having destroyed their

crops. Though he has mentioned in his cross-examination

that, he had shouted when the respondents - accused had

arrived, the prosecution had not examined any of the

independent witnesses, except P.W. 5 Nanubhai

Mangalbhai Vaghri, who too, had admitted that a quarrel

was going on between the people of Bharwad and Vaghri

communities as regards grazing land, and civil cases

were also pending before the Khambhat court, and they

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had also lodged a complaint against the respondents -

accused as regards they having destroyed the rice crop.

This witness in his examination-in-chief had stated that,

the fire was lit by a matchstick, whereas, P.W.1 Khotabhai

had stated that a burning charcoal was placed in his

house and thus, his house had caught fire.

6.3 The panchnama of scene of incident at Exh. 15 was

not proved and P.W. 1 Khotabhai in his complaint at Exh.

12 had not quantified the loss which had occurred

because of his house being set on fire, in terms of money.

It is pertinent to note that, the panchnama at Exh. 15

does not mention about any documentary evidence as

regards the identification of the house which was set on

fire which belonged to P.W. 1 Khotabhai.

6.4 P.W. 6 ASI Bachubha Nagjibhai Jadeja had admitted

in his cross-examination that, numbers were not

mentioned on the huts.

7. The learned Additional Sessions Judge, 7th Fast

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Track Court, Nadiad had discussed the aforesaid

contradictions/infirmities/discrepancies which were

reflected from the evidence of the prosecution, and had

rightly concluded that, the prosecution had failed to

prove the guilt of the respondents accused beyond

reasonable doubt.

8. At this stage, it would also be appropriate to refer to

the observations of the Apex Court regarding the scope of

interference in acquittal appeals in the case of

Chandrappa & Ors. Vs. State of Karnataka reported

in 2007 (4) SCC 415, wherein, the Apex Court has

observed as under:

"Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313, this Court stated:

"While deciding an appeal it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not

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reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court".

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 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

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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.

8.1 In the case of Sanjeev v. State of Himachal

Pradesh reported in 2022 (6) SCC 294, the Hon'ble

Apex Court has held as under:

"7. It is well settled that:-

7.1 While dealing with an appeal against acquittal, the reasons which had weighed with the Trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the Trial Court deserves to be upturned (See Vijay Mohan Singh v. State of Karnataka3, Anwar Ali and another v. State of Himachal Pradesh).

7.2 With an order of acquittal by the Trial Court, the normal presumption of innocence in a criminal matter gets reinforced (See Atley v. State of Uttar Pradesh).

7.3 If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (See Sambasivan and others v. State of Kerala)."

8.2 Similarly, in the case of Bhupatbhai Bachubhai

Chavda and another reported in [2024] 4 S.C.R. 322,

the Hon'ble Apex Court has held as under:

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"6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to.

Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the 326 [2024] 4 S.C.R. Digital Supreme Court Reports accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.

7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on

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the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court's finding on the burden of proof is completely erroneous. It is contrary to the law of the land.

...

11. Therefore, the appeal must succeed. We set aside the judgment and order dated 14th December 2018 of the High Court and set aside the conviction of the appellants. The judgment and order dated 5th July 1997 of the Trial Court is restored. The appeal is, accordingly, allowed. The bail bonds of the appellant no.2 are cancelled. The appellant no.1 shall be forthwith set at liberty unless he is required to be detained in connection with any other case."

8.3 Thus, in case the appellate court agrees with the

reasons and the opinion given by the competent court

below, then the discussion of evidence at length is not

necessary. In light of the above settled principle of law

laid down for acquittal appeals, we have briefly re-

appreciated the evidence led by the prosecution in

Sessions Case No. 21 of 2003 in this appeal.

9. It is also a settled legal position that in acquittal

appeals, the appellate court is not required to re-write the

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judgement 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 Hon'ble Apex

Court in the case of State of Karnataka Vs.

Hemareddy, reported in AIR 1981 SC 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."

9.1 Thus, in case the appellate court agrees with

the reasons and the opinion given by the competent court

below, then the discussion of evidence at length is not

necessary.

10. The court below had in depth, analysed the oral as

well as documentary evidence on record, and had come to

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the conclusion that, the charges against the accused were

not proved beyond reasonable doubt by the prosecution.

Upon overall appreciation of the evidence adduced by the