Gujarat High Court
State Of Gujarat vs Rabari Pola Bechar & 5 Others on 10 February, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/613/1995 JUDGMENT DATED: 10/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 613 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
RABARI POLA BECHAR & 5 OTHERS & ORS.
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Appearance:
MR.L.B.DABHI, APP, for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No.
1,2,3,4,5,6
MS. VISHWA SHAH AND MR. ROHAN VAGHELA, for MR PRAVIN
GONDALIYA(1974) for the Opponent(s)/Respondent(s) No. 1,2,5,6
MR YOGESH S LAKHANI(419) for the Opponent(s)/Respondent(s) No. 3,4
NOTICE SERVED BY DS for the Opponent(s)/Respondent(s) No. 5,6
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 10/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal is preferred by the State under Section-378 of the
Code of Criminal Procedure, 1973 against the judgment and order of
acquittal dated 06.03.1995 passed by Additional Sessions Judge,
Bhavnagar in sessions case no.132 of 1993. By the impugned
judgment and order, the sessions Court acquitted the respondents-
accused for offence under section 302, 147, 148, 149, 224 and 34 of
Indian Penal Code and under section 135 of the Bombay Police Act.
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2. The case pertains to an incident that occurred in Sarva village of
Botad Taluka, District Bhavnagar, on 09.03.1993, at around 4:30 PM,
where an altercation over the grazing of a buffalo in the field led the
respondents-accused to form an unlawful assembly with the common
intention of causing the death of two brothers, Usmanbhai and
Mahmadbhai. Armed with deadly weapons, they assaulted Usmanbhai
and Mahmadbhai with Dhariyas (sharp weapons), sticks, pipes, and
Bhala (sharp weapon), inflicting injuries that resulted in their death.
Thus, the respondents-accused committed offenses punishable under
Sections 302, 147, 148, 149, 224, and 34 of the Indian Penal Code,
along with Section 135 of the Bombay Police Act.
3. Learned Additional Public Prosecutor submitted that the learned Trial
Judge committed a serious error in acquitting the respondents-accused
despite clear and cogent evidence presented by the prosecution.
3.1 It is submitted that The injured eyewitnesses, including the
complainant, consistently narrated the incident and identified the
accused as the perpetrators. Their testimonies were natural, reliable,
and corroborated by medical evidence.
3.2 It is submitted that the postmortem report confirmed that the injuries
sustained by the deceased were sufficient in the ordinary course to
cause death. This scientific evidence supports the prosecution case,
which the Trial Court failed to appreciate.
3.3 It is submitted that the Learned Judge overlooked the fact that a
cross-case was filed by the accused themselves, which establishes
their presence at the scene of the crime and their active involvement in
the offense.
3.4 It is submitted that the complainant promptly lodged an FIR after the
incident, which further strengthens the case. The Trial Court failed to
give due weight to this crucial fact.
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3.5 It is submitted that the Learned Judge erred in discarding
prosecution evidence based on minor discrepancies in witness
statements. Such variations are natural over time and do not affect the
credibility of witnesses.
3.6 It is submitted that the learned Trial Court wrongly relied on the
absence of an identification parade as a ground for acquittal. Since the
accused were well-known to the complainant and witnesses, conducting
an identification parade was unnecessary.
3.7 It is submitted that the learned Trial Judge disregarded strong and
cogent evidence and acquitted the accused on technical grounds,
resulting in a miscarriage of justice. Given the strong evidence against
the accused, the order of acquittal is legally unsustainable and merits
interference by this Court.
4. As against this, learned Advocate for the respondent-accused has
supported the judgment of acquittal submitting that Learned Advocate
for the Respondents-Accused submitted that the learned Trial Judge
has rightly acquitted the respondents-accused after a proper
appreciation of the evidence on record. The prosecution failed to prove
the case beyond a reasonable doubt, and therefore, the acquittal does
not warrant interference by this Court.
4.1 It is submitted that the prosecution primarily relied on interested
witnesses, the complainant and related persons and failed to examine
any independent witnesses. The reliability of the prosecution witnesses
is questionable and their evidence was riddled with inconsistencies and
contradictions.
4.2 It is submitted that the prosecution failed to explain the injuries
sustained by the accused, which creates serious doubt regarding the
prosecution's version of events. The non-explanation of injuries on the
accused weakens the prosecution case and suggests a suppression of
material facts.
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4.3 It is submitted that a cross-case was filed by the accused, which
indicates that the incident was not a one-sided attack by the accused
but rather a cross fight. The prosecution failed to disprove the defense
version, which raises serious doubts about the alleged unlawful
assembly and premeditation.
4.4 It is submitted that the FIR was lodged after an undue delay, which
suggests deliberate afterthought and fabrication of allegations. The
prosecution failed to justify the delay, and such an unexplained delay
creates suspicion regarding the veracity of the complaint.
4.5 It is submitted that there are material contradictions and
inconsistencies in the statements of prosecution witnesses, which cast
serious doubts on their credibility. The Learned Trial Judge rightly
considered these discrepancies and discarded unreliable evidence.
4.6 It is submitted that no identification parade was conducted to
establish the identity of the accused. The claim that the accused were
already known to the witnesses cannot be a valid excuse for not
conducting a proper identification parade as per law.
4.7 It is submitted that the medical evidence does not conclusively
support the prosecution's version. The doctor's opinion regarding the
cause of death was not definitive, and the injuries on the deceased do
not necessarily indicate a premeditated attack by the accused.
4.8 It is submitted that in criminal jurisprudence, the benefit of doubt
must always go to the accused. Since the prosecution failed to prove
the guilt of the accused beyond a reasonable doubt, the Learned Trial
Court rightly acquitted the respondents-accused.
5. Having heard learned Advocates for the parties and having perused
documents on record, it appears that to prove the case against the
respondents-accused, the prosecution relied upon following oral
evidences:
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Sr. Name of Witnesses Exh.
No No.
2 Deposition of PW No.2 Dr. Kantilal Jivrajbhai 45
5 Deposition of PW No.5 Harishankar Jivabhai 62
6 Deposition of PW No.6 Ranchhodbhai Popatbhai 65
11 Deposition of PW No.11 Amrabhai Premjibhai 73
12 Deposition of PW No.12 Balashankar Nanjibhai 76
13 Deposition of PW No.13 Dr. Dilipkumaar Manubhai Desai 79
14 Deposition of PW No.14 Pareshkumar Jayrambhai 82
15 Deposition of PW No.15 Dr. Dhirajlal Giradharlal 93
16 Deposition of PW No.16 Ganpatbhai Nanabhai Chauhan 98
5.1 The prosecution also relied upon following documentary evidence:
Sr. Particular Exh.
No No.
2 Report of police for postmortem of Usmanbhai 27
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4 Report of police for postmortem of Mahmadbhai 33
18 Certificates 83-86
6. Exh-4 to Exh-9 are statements of respondents-accused under section
313 of Code of Criminal Procedure where respondents-accused have
taken a stand that they are falsely charged with the offence and have
denied the evidence collected.
7. From perusal of the record, it appears that the deposition and post-
mortem report of PW-2, Dr. Kantilal Jivrajbhai, Exh-45, Medical Officer,
indicate that the deceased Usmanbhai sustained head injuries, and his
death was labeled as homicidal, while PW-13, Dr. Dilipkumar Manubhai
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Desai, Exh-79, Medical Officer, confirmed similar head injuries and
homicidal death for Mahmadbhai. However, merely proving that the
deaths were homicidal is not sufficient to hold the respondents-accused
guilty; the prosecution must establish beyond a reasonable doubt that
the injuries were inflicted by the respondents-accused and were a direct
result of their unlawful actions.
8. The deposition of PW-1, Ayubbhai Abdulbhai, Exh-44, the
complainant and father-in-law of the deceased Mahmadbhai, deposed
that an altercation occurred between the deceased and the accused
over grazing of buffaloes in the deceased's field. However, there is a
contradiction between the complainant's testimony and his deposition
regarding the time of the altercation. Such inconsistencies raise doubts
about the accuracy and reliability of the prosecution's version of events.
Given these contradictions, the Court finds that the prosecution's case
lacks clarity and consistency, requiring careful scrutiny before attributing
guilt to the accused.
9. From perusal of the Inquest Panchnama and other evidence, it is
clear that the incident resulted from a cross fight between both groups.
The repeated mention of the word "altercation" in official documents,
including the letter from the P.S.O. to the P.S.I., indicates that this was
not a one-sided attack but a fight involving both sides. Additionally, the
complainant's statements contain contradictions, especially regarding
the presence of seven to eight respondents-accused, which raises
doubts about the prosecution's version of events. The complainant also
changed his statements about verbal exchanges and could not clearly
identify all attackers. Considering these facts, the Court finds that the
case appears to be a cross fight rather than a planned attack, and the
charges against the accused need to be carefully reconsidered.
10. PW-3, Kishorbhai, Exh-57, an injured witness, deposed that he was
present at the time of the incident and that six to seven accused
attacked the deceased and other witnesses with deadly weapons,
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causing injuries. He also admitted that he has sustained injuries on his
head and back. However, the deposition of PW-2, Dr. Kantilal
Jivrajbhai, Exh-45, Medical Officer, who examined PW-3, does not
confirm any injury on Kishorbhai's head or back. This discrepancy
between the witness's testimony and medical evidence raises serious
doubts about the credibility of his statement and weakens the
prosecution's case. Considering this contradiction, the Court finds that
the evidence of PW-3 requires cautious evaluation before placing
reliance upon it.
11. PW-9, Niratben Kishorbhai, Exh-70, an eyewitness and wife of PW-
3, deposed that she was present in the field at the time of the incident
and witnessed the accused attacking and injuring the deceased and
other witnesses. However, the evidence on record confirms that the
accused also sustained injuries during the altercation, as established by
PW-14, Dr. Pareshkumar Jayrambhai, and PW-15, Dr. Dhirajlal
Giradharlal, who examined the accused and confirmed their injuries.
This indicates that a cross-fight took place, contradicting the
prosecution's claim of a one-sided attack. Given this evidence, the
Court finds that the possibility of cross fight cannot be ruled out, and the
prosecution's version requires careful scrutiny.
12. PW-10, Naran Kuvarabhai, Exh-72, an eyewitness, deposed that he
saw the accused injuring the deceased and other witnesses. However,
he was unable to specify which accused inflicted which injuries.
Additionally, after the incident, he and his wife went home instead of
reporting the matter immediately. As a fieldworker, his presence at the
scene is understandable, but his failure to mention the cross-fight,
despite medical evidence confirming injuries to the accused, suggests
that he may have withheld certain details. Given his lack of clarity
regarding the role of each accused and the possibility of incomplete
disclosure, the Court finds that his testimony requires careful scrutiny
before being fully relied upon. The evidence presented does not
establish the guilt of the accused beyond reasonable doubt.
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13. PW-16, Ganpatbhai Nanabhai Chauhan (Exh-98), the Investigating
Officer, reveals that while he conducted the panchnama and collected
evidence, he also acknowledged the occurrence of a cross-fight.
Additionally, he prepared a single panchnama for separate offences,
which raises concerns regarding the proper documentation of the
incident. Furthermore, there was a two-day delay in initiating the
investigation proceedings, and the officer failed to provide a sufficient
explanation for this delay. Such lapses indicate negligence in the
investigation, which affects the reliability of the prosecution's case and
raises serious doubts about the fairness and thoroughness of the
inquiry.
14. The prosecution's case is based on an altercation over the grazing
of a buffalo in the field as the reason for the incident. However, in the
panchnama of the place of the incident does not mention any footprints
or signs of a buffalo in the field, which contradicts the prosecution's
version of events. This discrepancy raises doubts about the alleged
motive for the crime and weakens the reliability of the prosecution's
case.
15. The evidence on record, including medical reports and witness
statements, establishes that both parties sustained injuries, indicating a
cross-fight rather than a one-sided attack. The prosecution has failed to
disprove this fact or provide a reasonable explanation for the injuries
sustained by the accused. This omission raises serious doubts about
the prosecution's version of events and suggests a possible
suppression of material facts.
16. The court may refer to and rely upon the decision of the apex court
in case of Nand Lal and others Versus State Of Chhattisgarh reported in
2023 (10) SCC 470, wherein the Apex Court held in para 27 and 28 as
under,
"27. Undisputedly, in the present case, the injuries sustained by
accused No. 11 Naresh Kumar cannot be considered to be minor or
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superficial. The witnesses are also interested witnesses, inasmuch as
they are close relatives of the deceased. That there was previous
enmity between the two families, on account of election of Sarpanch,
has come on record. As observed by this Court in the case of
Ramashish Ray v. Jagdish Singh, (2005) 10 SCC 498 previous enmity
is a double-edged sword. On one hand, it can provide motive and on
the other hand, the possibility of false implication cannot be ruled out.
28. We have already seen herein above the injuries sustained by
accused No. 11 Naresh Kumar. Much prior to lodging of the FIR at
03.15 AM on 4th November 2006 by Khomlal, the Police had taken
accused No. 11 Naresh Kumar for medical examination. The memo
forwarding accused No. 11 Naresh Kumar for medical examination to
Medical Officer mentions that accused No. 11 had informed the police
that at around 08.30 PM, he was assaulted by Atmaram (PW-1).
Undisputedly, the prosecution has suppressed information with regard
to the said incident. The prosecution has also suppressed the FIR
lodged by Atmaram (PW-1). It is thus clear that the prosecution has
attempted to suppress the real genesis of the incident. Taking into
consideration this aspect of the matter, coupled with the non-
explanation of the injuries sustained by accused No. 11 Naresh Kumar,
we are of the considered view that accused No. 11 Naresh Kumar is
entitled to benefit of doubt."
17. Multiple prosecution witnesses, including injured eyewitnesses,
have given contradictory statements regarding the incident, the role of
the accused, and the injuries sustained. Such discrepancies raise
doubts about the reliability of their testimonies.
18. The Investigating Officer failed to conduct a fair and impartial
investigation. The use of a single panchnama for separate offenses and
an unexplained two-day delay in initiating proceedings indicate
negligence, further weakening the prosecution's case.
19. The prosecution's claim that the incident occurred due to an
altercation over buffalo grazing is contradicted by the panchnama of the
place of the incident, which found no traces of buffalo footprints. This
discrepancy raises doubts about the alleged motive.
20. The prosecution has failed to establish the guilt of the accused
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beyond reasonable doubt. The presence of contradictions,
inconsistencies, and missing crucial evidence weakens the
prosecution's case, entitling the accused to the benefit of the doubt.
21. The court may refer to and rely upon the decision of the apex court
in case of Alauddin And Others Versus State Of Assam And Another
reported in AIR 2024 SC 2283, wherein the Apex Court establishes that
not all omissions amount to contradictions unless they are significant
and relevant, as per the explanation under Section 162 CrPC. It further
clarifies that contradictions in witness statements must be proved as per
Section 145 of the Evidence Act by confronting the witness with their
prior statement. If the witness denies making such a statement, it must
be proved through the investigating officer. The judgment also
emphasizes that minor inconsistencies are not grounds for disbelieving
a witness and only material contradictions affecting the prosecution's
case justify discarding evidence. Thus, if the prosecution's case is
based on inconsistent testimonies without properly proving
contradictions, the accused is entitled to the benefit of the doubt,
supporting the acquittal.
22. The Court may also draw strength from the decision of the Apex
Court in case of Rajesh Prasad Vs. State of Bihar & Anr. reported in
(2022) 3 SCC 471, wherein the Apex Court has examined the case law
with regard to the power of the High Court to overturned the decision of
the Sessions Court where an another view is possible. Examining the
case including that of Chandrappa & Ors. vs. State of Karnataka
reported in (2007) 4 SCC 415, the Apex Court has culled out the
general principles regarding the powers of the Appellate Court while
dealing with the appeal against the order of acquittal. The Apex Court
has held that the appellate court has full power to review, re-appreciate
and reconsider the evidence upon which the order of acquittal is
founded. However, the appellate court has to keep in mind that in case
of an acquittal, there is a double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the
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fundamental principle of criminal jurisprudence, and thereafter, upon
securing of acquittal, the presumption is further reinforced, reaffirmed
and strengthened, and therefore, whenever there are two reasonable
conclusions are possible on the basis of the evidence on record,
ordinarily, the Apex Court would not disturb the findings of acquittal
recorded by the Trial court.
23. The Court has also perused judgment and order of the Sessions
Court and finds that cogent and convincing reasons are assigned by the
Sessions Court while acquitting the respondents-accused.
24. In view of the aforesaid discussion, the Court finds no reason to
interfere with the impugned judgment and order of acquittal dated
06.03.1995 passed by Additional Sessions Judge, Bhavnagar in
sessions case no.132 of 1993. The appeal is therefore dismissed. Bail
and bail-bonds of the accused, if any, stand discharged. Records and
proceedings be sent back to the concerned trial Court.
(A.Y. KOGJE, J)
(SAMIR J. DAVE,J)
SIDDHARTH
