[Cites 12, Cited by 0]
Gujarat High Court
State Of Gujarat vs Rasikbhai Chaturbhai Patel on 4 December, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/415/2001 JUDGMENT DATED: 04/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 415 of 2001
With
R/CRIMINAL APPEAL NO. 416 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
RASIKBHAI CHATURBHAI PATEL
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Appearance:
MR JK SHAH, APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MR UMANG H OZA(2440) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 04/12/2025
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Here are the Appeals by the State against the judgment and order
of acquittal.
2. Since the facts of the case and issue involved in the above
appeals are identical and arise out of the same common judgment, both
the appeals are taken up together and are being disposed of by this
common judgment.
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3. Being dissatisfied by the judgment and order passed by the
learned City Sessions Judge, Ahmedabad, passed in Sessions Case
Nos.318 of 1997 and 76 of 1998, dated 05.03.2011, acquitting the
respondents - accused from the offence under Sections 143, 147, 149,
307, 453 and 427 of the IPC, the State has preferred instant appeals
under Section 378 of the Cr.P.C.
4. This Court has heard Mr. J. K. Shah, learned Additional Public
Prosecutor and Mr.Umang Oza, learned advocate, for the respective
parties.
5. Brief facts giving rise to file the present appeals are that, the
respondents accused were tried and prosecuted for the offence of
attempt to murder. Before the incident, due to celebration of Ganesh
Festival, allegedly celebrated by the accused parties, the complainant
party was not happy with the said celebration, as a result, there was a
dispute between two groups. In order to teach lesson, the accused
formed an unlawful assembly with common object to cause fatal
injuries to the other side, assembled at the place of incident, armed
with deadly weapon like swords, hockey, pipes and sticks and
assaulted Ishwar Rabari and others who were sitting near the Rajkiran
Panshop. The incident of assault being taken place on 16.09.1991 in
the noon hours. The injured Ishwar Rabari and others who were sitting
on the bench nearby Panshop. According to the prosecution case, A5
Gokul Patil gave a blow upon Ishwarbhai, whereas A3 inflicted a
sword blow in the stomach of Ishwarbhai. In the said incident, after the
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attack the injured Ishwarbhai managed to escape from the place and in
order to catch him, the accused chased him and in that process, they
ransacked and caused damages to the property belongs to Vikash
Association allegedly administered by Dharamsinh Rabari. On the
basis of FIR, and due investigation, the accused were chargesheeted.
After committal the sessions case, framed the charge and proceeded to
record the evidence.
6. In the course of trial, the prosecution adduced the following oral
as well as documentary evidence in support of its case:
Oral evidence - 7
PW 1 - Exh.19 Bhikhubhai Patubhai Rajput
PW 2 - Exh.27 Ishwarbhai Ranchhodbhai Rabari
PW 3 - Exh.29 Lalitkumar Jasmatbhai
PW 4 - Exh.32 Shashikant Nanndlal
PW 5 - Exh.35 Kersibhai Vasingbhai Parghi, PI
PW 6 - Exh.38 Dr. Digantbhai D. Chaudhari
PW 7 - Exh.97 Virendra Bhanuprasad Raval, PI
Documentary evidence - 9
Exh.57 Varghi from civil hospital
Exh.58 Complaint
Exh.59 report for registering the offence
Exh.60 Panchnama of scene of offence
Exh.25 Panchnama of seizure of cloth of injured Ishwarbhai
Exh.61 Panchnama of seizure of hockey and sword
Exh.40 Injury certificate
Exh.36 Dispatch note
Exh.37 FSL report
7. On conclusion of oral evidence, the trial Court recorded further
statements of the accused as provided under Section 313 of the Code,
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wherein, they claimed their innocence.
8. The learned Sessions Judge after appreciating and examining the
oral as well as documentary evidence acquitted the accused herein for
the offences with which they were charged, on the ground that, the
factum of unlawful assembly being not proved by the prosecution as
none of the witnesses were sure about the number of persons involved
in the incident, nor the witnesses did not know the name of any of the
accused and there is omission and contradiction between the statement
made under Section 161 of Cr.P.C. and the statement made in the
Court and considering the substantial contradiction on the aspect of
identification and role attributed to the accused, reliance cannot be
placed on the testimonies of witnesses.
9. In view of the aforesaid facts and circumstances, these acquittal
appeals have been preferred by the State.
10. In the present case, the injuries sustained by PW:2 Ishwarbhai
Rabari is not in dispute as according to say of Dr.D.D. Chaudhary, the
witness sustained stabbed injuries over his abdomen. The learned Trial
Court in its judgment has referred the oral testimonies of PW:1 and
PW:2 (Paras-11 and 12). In Para-20 to 25, of the judgment, the learned
Trial Court assigned sufficient reasons to hold that the prosecution
miserably failed to prove the charge against the accused beyond
reasonable doubt. In order to appreciate the contentions the para-20 to
25 extracted as under:
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"20. In the instant case, I have thoroughly gone through the
evidence adduced by the prosecution and on over all appreciation
of evidence, it appears that the prosecution has proved that on
16/9/91 at about 11-00 P.M. to 11-30 P.M., the injured Ishwarbhai
alias Botham Rabari had sustained stab wound on his abdomen and
was admitted in the Civil Hospital as an indoor patient till 1/11/91.
According the case of prosecution, the incident had taken place at
the Raj Kiran pan centre belonging to the complainant Bhikhubhai
when the said Ishwar was sitting alongwith his friend and when the
accused no. 1 who was known as Bako Mehta, son of Mehta Saheb,
had come with other accused armed with deadly weapons and tried
assault the said Ishwarbhai. The first charge levelled against the
accused is with regard to constitution of unlawful assembly under
Section 143 of I.P.C. It is needless to say that for the offence under
section 143 of I.P.C., the prosecution has to prove beyond
reasonable doubt that there were 5 or more persons whose common
object was to commit any of the acts as mentioned in Section 141 of
I.P. Code. So far as number of persons present at the time of
alleged incident is concerned, the prosecution has relied upon P.W.
1 complainant Bhikhubhai and P.W. 2 injured Ishwar Rabari. Now,
Bhikhubhai has stated that when Ishwar was sitting alongwith Kanu
and Rajendra outside his Pan centre, some 4 to 5 persons had come
with sword and hockey with them and he did not know the names of
any of the said persons. He has also stated that the name of
Bakabhai was told by somebody after the incident and the names of
other persons he came to know only 4 to 5 years back. He had
identified the accused but in the cross examination had stated that
the names of the accused were told by the police.
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21. Now, injured P.W. 2 Ishwar Rabari has stated that at about
11-00P.M. on 16/9/91, when he was sitting with his friend outside
the pan centre, some 5 to 6 persons had come and he was hit on his
back by hockey and, therefore, he had run towards the pan centre
and he was followed by Yasesh Mehta and Mahesh Prajapati in the
said Pan Centre and thereafter Yasesh alias Bako had injured him
with sword. He has specifically stated that he could identify said
Bakabhai and Maheshbhai because he had seen only two persons in
the pan centre and he could not identify the other persons. From the
said evidence of these two witnesses, it clearly appears that none
these witnesses was sure about the number of persons who had
come to the place of incident, namely, pan centre of Bhikhubhai. On
the contrary, these witnesses also did not know the names of any of
the accused except the accused no. of 1 and according to them he
was known as Bako or son of Mehta Saheb. From the evidence of
P.W. 7 I.O. Virenda B. Raval, though all the accused were arrested
before 23/9/91, on which date according to him the T.I. parade was
fixed by the Executive Magistrate, which could not be held for
technical reason, there was no second attempt made by him to
arrange for T.I. parade to identify the accused by the injured
witness or the complainant. Under the circumstances, except
involvement of accused no. 1 Yasesh and accused no.4
Maheshkumar Raymalbhai Prajapati who were identified by the
injured Ishwar in his evidence, the presence muchless the
involvement of other accused in the incident has not been proved by
leading any cogent evidence. The charge and the evidence in the
instant case are confined to the six accused of Sessions Case No.76
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of 1998 and one accused of Sessions case No. 318/97 for the
alleged charge of Section 143 of I.P.C. However, since the
prosecution has failed to prove the presence and involvement of the
five accused out of the said seven accused, the remaining two
accused Yasesh and Maheshkumar could not be held to be members
of unlawful assembly, so as to be convicted for the offence under
Section 143 of I.P.C. As held in 1961 SC 1787, in the Kartarsingh
Vs. State of Punjab:
"It is only when the number of alleged assailants is definite
and all of them are named, and the number of persons found
to be proved to have taken part in the incident is less than
five, then it cannot be held that the assailants party must
have consisted of five or more persons."
Applying the ratio of said judgment to the facts of the present case,
it is required to be held that the prosecution has failed to prove that
the accused had constituted an unlawful assembly as contemplated
in Section 141 of I.P.Code and were guilty of offence under Section
143 of Indian Penal Code.
22. The accused have been also arraigned for the charge under
Sections 147 and 149 of I.P.Code for allegedly using force of
violence by using deadly weapons in prosecution of their common
object as members of unlawful assembly. However, since the
prosecution has failed to prove that there was unlawful assembly
and since the identify and the involvement of the accused except the
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accused nos.1 and 4, having not been established by the
prosecution, the accused could not be held guilty of the said charges
under Sections 147 or 149 of Indian Penal Code. The Hon'ble
Supreme Court while dealing with the applicability of Section 149 in
several categories of cases in Mohan Singh Vs. State of Punjab,
AIR 1963 SC 174, has observed that:-
"Cases may also arise where in the charge the prosecution
names five or more persons and alleges that they constituted
an unlawful assembly. In such cases, if both the charge and
evidence are confined to the persons named in the charge and
of the persons so named two or more are acquitted leaving
before the court less than five persons to be tried, Section 149
cannot be invoked."
23. It is pertinent to note that the accused have been charged for
the offence under Section 307 read with Section 149 of Indian Penal
Code and the court is of the opinion that the prosecution has failed
prove the charge under Section 149 of I.P.Code, however, let us
appreciate the evidence adduced by the prosecution even for the
offence under Section 307 I.P.C. independently against accused nos.
1 and 4 identified by the injured witness Ishwarbhai Rabari. In this
regard, the oral evidence of complainant Bhikhubhai and injured
Ishwarbhai is required to be appreciated in the light of evidence of
the investigating officer P.W. 7 Ρ.Ο. Mr. Raval and the complaint
lodged before him at exh. 58. The complainant Bhikhubhai in his
evidence has specifically stated that he had given complaint at
about 1-30 at mid night when the police had come to his house and
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he had not gone to the Civil Hospital with injured Ishwarbhai after
the incident. He has admitted in his cross examination that he did
know whether injured Ishwarbhai was admitted in ward no. E-4
when he had given his complaint and he had also not stated so in his
complaint, whereas the I.O. in his evidence exh.49 has stated that he
had taken down the complaint of complainant Bhikhubhai in the
civil hospital who had brought the injured Ishwarbhai for treatment
and thereafter had gone to Shardaben hospital alogwith the
complainant in connection with the cross case filed by Madan
Jagannath. Now in the complaint exh. 58, it has been stated that
Ishwarbhai Rabari was brought in Civil Hospital in ambulance and
had been admitted in ward no. E-4 and was under treatment. Thus
there is contradiction in a material the evidence of the complainant
Bhikhubhai and the complaint on record exh. 58 and also in the
evidence of I.O. Mr. Raval as regards place and time of giving the
complaint. When the complainant Bhikhubhai in his oral evidence
specifically stated that he did not know at the time of lodging the
complaint that Ishwarbhai was admitted in ward no. E-4, the
mentioning of the said fact in the complaint creates doubt in the
mind of the court as to whether the complaint given by the
complainant Ishwarbhai was the same complaint which is on record
at exh. 58 and whether the I.O. had recorded the correct contents of
the complaint given by the complainant Bhikhubhai. The court is
also not satisfied as to the place where the complaint was recorded
inasmuch as the complainant has stated that he had given complaint
when the police came to his house at the mid night whereas the I.O.
has stated that the said not complaint was taken down when
Bhikhubhai was found present in the Civil Hospital. It is true that
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about 10 years of time has elapsed between the occurrence of
incident and recording of evidence in the court and, therefore, the
contradictions are bound to occur on record in the evidence of
witnesses. However, when the witnesses have given minute details of
the alleged incident, it was expected from them to state the time and
place of the complaint which was very material aspect for the case
of prosecution. Under the circumstances, it is doubtful whether the
complaint exh. 58 relied upon by the prosecution was given
immediately after the occurrence of the alleged incident or was
concocted thereafter to suit the case of the prosecution.
24. So far as the injury to the injured Ishwarbhai is concerned,
from the evidence of P.W. 6 Dr. Digant Chaudhary, appears that he
had give only preliminary treatment to him. He has stated that he
could not say whether the injured would have died, had he not been
given immediate treatment. So, there is no positive evidence on
record adduced by the prosecution that the injuries sustained by the
injured were such injuries which would have been caused death of
the injured rendering the accused guilty under section 307 I.P.Code.
It is pertinent to note that in the history recorded by the doctor in
the casepaper exh. 39, there is a mention about use of knife by
person named Mehta whereas as per the story of prosecution
witnesses, the said accused Bako alias Yasesh had used sword while
injuring the injured Ishwarbhai. From the evidence of D.W. 1
Executive Magistrate also, it appears that in the statement before
the Executive Magistrate, the injured had stated that he was injured
with sword at night. Under the circumstances there is also no
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consistency in the evidence adduced by the prosecution as regards
use of weapon.
25. Moreover, the muddamal article no. 9 sword seized by the I.O.
during the course of investigation allegedly seized from the place
shown by accused no.1 is also not free from doubt inasmuch as
there were two swords seized during the course of investigation and
no panch slip was found on muddamal article no. 9 sword. The
panch witness P.W. 3 Lalitbhai in whose presence the alleged sword
was recovered has also turned hostile and has stated that his
signature on panchnama was obtained by the police when he was on
his lorry at about 12-00 at night on 20-9-91. It is also significant to
note that no bloodstains were found in the Pan Centre where the
injured was allegedly injured by accused no. 1. It is true that it may
happen that if the incident had taken place within few seconds and
the injured had run away immediately, the drops of blood would not
be found at the said place. However, as per the case of prosecution,
the injured was severely bleeding and had run away from the pan
centre towards his house through the back door of house of
Ishwarbhai Natubhai and thereafter fro the house of one
Madhubhai and thereafter had jumped one wall for going to his
house. The prosecution has neither examined said Ishwarbhai Patel
nor Madhubhai Patel nor any other independent witness in support
of the said story. If the injured was severely injured and was
bleeding, the story put forth by him that he had run and jumped so
long and thereafter had reached to his house is also believable. The
defence has seriously disputed the identity of accused no. 1 by
raising defence that Yasesh Mehta was not known as Baka Mehta or
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Bako. However, there does not appear to be much substance in the
said defence. The I.O. Mr. Raval himself has stated that the father of
accused no.1 was police officer and therefore he knew that the said
accused no. 1 Yasesh Mehta was also known as Bako Mehta and
son of Mehta Saheb. It is true that the said accused no. 1 has been
duly identified by the complainant Bhikhubhai and injured
Ishwarbhai in their respective evidence by stating that he had
injured Ishwarbhai in the pan centre by using Fabout sword,
however, since the court is not satisfied that the place of occurrence
of alleged incident and use of weapon and also the manner of
occurrence of alleged incident, the accused no. 1 alongwith the
other accused is required to be given benefit of doubt. In that view
of the matter I hold that the prosecution has failed to bring home
the guilt of the accused and prove charges beyond reasonable doubt
and, therefore, the accused deserve to be acquitted by giving them
benefit of doubt."
11. Mr.J.K. Shah, learned Additional Public Prosecutor appearing
for the appellant - State, assailing the judgment and order of acquittal,
has submitted that the findings of acquittal are contrary to law and
evidence on record and the findings recorded are palpably erroneous
and based on the irrelevant material. The injured eyewitness
Ishwarbhai Rabari has identified the accused and his version on the
aspect of injury caused by the accused is not shaken in the cross
examination. In such circumstances, the learned Trial Court without
sound reasons, discarded the evidence of injured witness and acquitted
the accused from all the charges. It is further submitted that the learned
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Trial Court has unnecessarily given weightage to the minor
contradiction, however, on the core aspect of assault given by the
accused on the body of the deceased remains intact and thus, the
evidence of witnesses are consistent and support each other on the
involvement of the accused and fatal blow given by the accused. That
the medical evidence also corroborates the version of eyewitnesses. In
such circumstances, the prosecution has successfully proved the charge
against the accused beyond reasonable doubt.
12. In such circumstances, as referred above, it has been submitted
that while acquitting the respondents accused, the trial Court has
discarded and ignored the truthful, reliable and acceptable evidence
and as such, no cogent reasons being assigned while discarding such
evidence. Therefore, it is submitted that the conclusion of acquittal
recorded by the Trial Court is contrary to the evidence on record and
upon erroneous understanding of law. Thus, it is prayed that the
prosecution has succeeded in proving the charge against the
respondents accused and the judgment and order of acquittal be set
aside and accused may be convicted and sentenced for the offence as
referred above.
13. Mr.Umang Oza, learned advocate appearing for the respondents
accused has submitted that the High Court in a case of Appeal against
the acquittal, can interfere only when there are compelling substantial
reasons for doing so and more particularly, the findings are without
reasons and unreasonable and contrary to the evidence. In the facts of
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the present case, the eyewitnesses are related interested witnesses and
prior to the FIR, admittedly, there was a dispute with respect to Ganesh
Festival Celebration as the complainant party was not happy with the
celebration allegedly enjoyed by the accused parties and therefore,
there are all chances of false and over implication of the accused
cannot be ruled out. The area where the incident took place is a
residential area and no any independent witnesses dispute of presence
of the resident of that area, being examined by the prosecution. That
the FIR Exh.58 was not disclosed immediately and the doctor failed to
opine that the injuries sustained were likely to cause death and
considering the material contradiction found in the evidence of
Ishwarbhai and others, the Trial Court has rightly not believed their
evidence as reliable and truthful.
14. In such circumstances, referred to above, learned counsel
appearing for the respondents accused, has submitted that the Trial
Court while discarding the evidence of oral testimonies of the
witnesses have assigned cogent and sufficient reasons while acquitting
the accused and therefore, the judgment of acquittal passed is well
reasoned, legally sustainable and does not suffer any infirmity
warranting interference by this Court.
15. Before proceeding to address the rival submissions, we would
like to place on record the scope of interference in an appeal against
the acquittal and when the same is justified. In exceptional cases,
where there are compelling circumstances and the judgment under
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appeal is found to be perverse, the appellate court can interfere with the
judgment of acquittal. The Appellate Court should bare in mind the
presence of innocence of the accused and further that, the trial Court's
acquittal bolsters the presumption of his innocence. Interference in a
routine manner, where the other view of possible should be avoided,
unless there are reasons for interference.
16. In the present case the issue falls for our consideration as to
whether the trial Court was justified in acquitting the accused?
17. We have carefully examined the oral as well as documentary
evidence and perused the findings of acquittal rendered by the Trial
Court. In the facts of the present case, the credibility of injured witness
being not relied upon by the Trial Court as the witness was not found
truthfulness and trustworthy on the aspect of complicity of the accused.
We have carefully examined the findings recorded by the Trial Court
more particularly discussions made in Para-20 to 25 as referred above.
We have carefully gone through the oral testimonies and documentary
evidence relied by the prosecution. We are in agreement with the view
taken by the Trial Court on the aspect of major improvement and
contradiction made by the witnesses and insufficient evidence respect
to injuries sustained by the witness and seizure of weapons and the
procedure thereof.
18. In such circumstances, in absence of any independent evidence,
the prosecution failed to prove the charge of murder against the
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accused beyond reasonable doubt. Thus, therefore, the view of the
Trial Court as to the credibility of the witnesses is possible and
plausible view and the Trial Court while analyzing the evidence has
assigned cogent and sound reasons and therefore, findings of acquittal
are reasonable and based on the evidence on record and we do not find
any perversity in the findings of acquittal so as to interfere. Thus, in
our considered opinion, the Trial Court was justified in acquitting the
accused and we are in complete agreement with the findings, ultimate
conclusion and resultant order of acquittal recorded by the Court below
and hence finds no reason to interfere with the same.
19. With the observations as aforesaid, the appeals are accordingly
dismissed. The Registry is directed to send back the R & P to the Trial
Court. Bail bonds are cancelled, if any, and surety is discharged.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
Rakesh
