Gujarat High Court
State Of Gujarat vs Bhikhabhai Mahibhai Thkare on 12 February, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/451/1995 JUDGMENT DATED: 12/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 451 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
BHIKHABHAI MAHIBHAI THKARE & ORS.
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Appearance:
MR LB DABHI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,2,4
MR PRATIK B BAROT(3711) for the Opponent(s)/Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 12/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal is preferred by the appellant-State
under Section 378 of the Code of Criminal Procedure, 1973 against
judgment and order of acquittal dated 24.03.1995 passed by
Additional Sessions Judge, Kheda at Nadiad in Special Case No.48
of 1993. By the impugned judgment and order, the Sessions Court
acquitted the respondents-accused for offence under sections 302,
120B, 143, 147, 148, 149, 447 and 34 of the IPC and section 3(1)
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(10) and 3(2)(5) of Atrocities Act.
2. It is required to be noted that during pendency of the
appeal, respondent No.1-Bhikhabhai Manibhai Thakor, respondent
No.2-Prabhatbhai Manibhai Thakor and respondent No.4-Ravjibhai
Manibhai Solanki have expired. Therefore, the appeal, insofar as
respondents-accused Nos.1, 2 and 4 are concerned stands abated
as is recorded by coordinate Bench of this Court in order dated
07.12.2022.
3. The case pertains to an incident which occurred on
25.04.1993 in Radhu village of Matar Taluka, District Kheda, where
at around 18:45 hours, the respondents-accused formed an
unlawful assembly with the common intention of causing the death
of deceased-Talshibhai. They were armed with deadly weapons
and unlawfully trespassed into the complainant's agricultural field.
They assaulted deceased-Talshibhai with Dhariyas (sharp weapons)
and sticks, inflicting injuries that led to his death. In connection
with FIR for offences under Sections 302, 143, 147, 148, 447,
120(B), and 149 read with Section 34 of the IPC, along with
Sections 3(1)(10) and 3(2)(4) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989. SC/ST
(Prevention of Atrocities) Act came to be filed.
4. After commital of case, charge came to be framed as
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under:-
"On 25/04/93 at around 18-45 o'clock in evening at the
farm of complainant Ganeshbhai Vankar located in the
outskirt of village - Radhu, Taluka - Matar, District -
Kheda, all the accused persons, in collusion with one
another, formed an unlawful assembly and became the
members of the said unlawful assembly against the law
and thereby, all the accused persons committed an
offence punishable under section 143 of the IPC.
Further, the charge is also framed against all the
accused persons that, at the aforementioned date, time
and place, the accused persons formed an unlawful
assembly to fulfill their common objective of causing
death of the deceased Talshibhai Vankar and assaulted
Talshibhai Vankar and committed rioting and thereby,
all the accused persons committed an offence
punishable under section 147 of the IPC.
Further, the charge is also framed against all the
accused persons that, at the aforesaid date, time and
place, to fulfill the common objective of the unlawful
assembly formed by them, all the accused persons held
deadly weapons and thereby, they committed an
offence punishable under section 148 of IPC.
Further, the charge is also framed against all the
accused persons that, at the aforesaid date, time and
place, to fulfill the common objective of the unlawful
assembly formed by them, the accused persons made a
criminal trespass in the farm of the complainant and
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Accused No. (3) and (4) intentionally inflicted blows of
scythe on deceased Talshibhai Vankar and Accused No.
(1) and (2) beat him and caused grave injuries to him
and caused his unnatural death by murdering him and
thereby, all the accused persons committed an offence
punishable under sections 447, 302 read with sections
149 and 120-B of the IPC.
Alternatively, the charge is also framed against all the
accused persons that, to fulfill the common objective of
committing the aforesaid offence of murder, all the
accused persons made a criminal trespass in the farm
of the complainant and intentionally assaulted deceased
Talshibhai Vankar and in collusion with one another,
Accused No.(3) and (4) inflicted blows of scythe on
deceased Talshibhai Vankar and Accused No. (1) and
(2) beat him and caused grave and fatal injuries to him
and caused his unnatural death and thereby, all the
accused persons committed an offence punishable
under sections 447 and 302 read with sections 34 and
120-B of the IPC.
Further, the charge is also framed against all the
accused persons that, though all the accused persons
were knowing that the deceased Talshibhai Vankar and
complainant Ganehsbhai belonged to Vankar caste,
which is a Scheduled Caste, the accused persons made
a criminal trespass in the farm of the complainant and
publicly humiliated deceased Talshibhai and
complainant Ganehsbhai and Accused No.(3) and (4)
inflicted blows of scythe on deceased Talshibhai Vankar
and Accused No. (1) and (2) beat him and caused grave
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injuries to him and caused his unnatural death by
murdering him and thereby, all the accused persons
committed an offence punishable under sections 3(2)(5)
and 3(1)(10) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989."
5. Learned Additional Public Prosecutor for the appellant-
State submitted that there are ample direct and indirect evidences
connecting the respondents-accused with commission of offence,
still, however, the Sessions Court has acquitted the respondents-
accused.
5.1 It is submitted that the Sessions Court has totally
ignored evidence of the complainant-Ganeshbhai, which is
corroborated by the FIR, who is also an eyewitness to the incident.
It is submitted that after the incident, complainant-Ganeshbhai had
given names of all the accused with description of weapons in their
hands.
5.2 It is submitted that the Sessions Court has also not
considered medical evidence, which stands corroborated with the
injuries sustained by the deceased.
6. As against this, learned Advocate for the respondent-
accused submitted that in this case there is only a sole eyewitness-
complainant-Ganesbhai, who is interested witness and his presence
is also doubtful at the time of incident. Moreover, he has not
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specifically stated as to in whose hand which weapon was there
and who gave blow to the deceased with which weapon. The FIR
was also lodged almost after 8 hours after the incident.
6.1 It is submitted that there are major contradictions in
the evidence of the complainant and the medical evidence
regarding the injuries sustained by the deceased. It is submitted
that no bloodstain was found on the weapons recovered. Therefore,
discovery panchnama is also under cloud.
6.2 It is submitted that the incident is alleged to have
happened in the field of the deceased, where dry leaves were there.
However, there also, no bloodstain was found. Therefore, it is
highly likely that the alleged incident had occurred somewhere else
and thereafter, dead body of the deceased was planted in his field.
7. 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 evidence:-
Sr. Name of the witness Exh.
No. No.
1 Deposition of PW No.1-Ganeshbhai Jethabhai- 17
complainant
2 Deposition of PW No.2-Mafatbhai Nathubhai 21
3 Deposition of PW No.3-Bharatbhai Narabhai 28
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5 Deposition of PW No.5-Maganbhai Keshavbhai 39
6 Deposition of PW No.6-Dr.Chandrakant Raghwani 45
8 Deposition of PW No.8-Indrasinh Kumpavat-IO 51
9 Deposition of PW No.9-Abdullah Abbas Khokhar 54
7.1 The prosecution also relied upon mainly following
documentary evidence:-
Sr. Particular Exh.
No. No.
8. PW No.1-Ganeshbhai Jethabhai, Exh.17 is the
complainant. In his deposition, he has stated that on 25.04.1993,
deceased-Talshibhai had gone to his field at about 05;30 pm. He
has further stated that since son of the deceased was to be taken to
hospital, he had gone to call deceased at about 06;30 pm. At that
time, he had seen five persons beating the deceased-Talshibhai,
including deceased-Manibhai. He has further stated that accused
No.1-Bhikhabhai had given two dhariya blows on the head of the
deceased, accused No.2-Prabhatbhai gave stick blow on the
backside of the deceased, accused No.3-Pakabhai @ Pratapbhai
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gave two dhariya blows on the head of the deceased and accused
No.4-Ravjibhai along with deceased-Manibhai and accused No3-
Pratapbhai ran after complainant-Ganeshbhai, when he asked as to
why they are beating the deceased. It is required to be noted that
the complainant in his complaint Exh.52 has not mentioned that
one and half years son of the deceased-Talshibhai was to be taken
to hospital and therefore, he had gone to call the deceased. It
appears that to establish his presence at the scene of offence, this
version is given by the complainant as an afterthought.
9. PW No.2-Mafatbhai Nathubhai, Exh.21 in his deposition
has stated that complainant-Ganeshbhai had come to him and
stated about the incident and therefore, he along with complainant
went to the field of the deceased and show five persons running
from the scene of offence. However, if deposition of the
complainant is seen, he has stated that when he came back to the
field of the deceased along with PW No.2-Mafatbhai, no one was
there. Therefore, it appears to be the major contradiction in the
version of two witnesses.
10. It also appears that the complainant has not stated in
his complaint as to with which weapon accused had assaulted the
deceased, whereas in his deposition, he has specifically stated that
accused No.1-Bhikhabhai had given two dhariya blows on the head
of the deceased, accused No.2-Prabhatbhai gave stick blow on the
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backside of the deceased, accused No.3-Pakabhai @ Pratapbhai
gave two dhariya blows on the head of the deceased and accused
No.4-Ravjibhai along with deceased-Manibhai and accused No3-
Pratapbhai ran after complainant-Ganeshbhai, when he asked as to
why they are beating the deceased.
11. PW No.6-Dr.Chandrakant Raghwani, Exh.45 in his
deposition has stated that he found two injuries on the body of the
deceased, one the right side of the head and one on neck, whereas
the complainant has deposed that the deceased had received four
dhariya blows. This, the version of the complainant is not
corroborated by the medical evidence of PW No.6.
12. The complainant has stated that the incident had
occurred at about 06;30 pm. However, the complaint was filed on
03;00 am, i.e. more than 7 hours after the incident. Moreover,
explanation given for late filing of the complaint also does not
inspire confidence.
13. The Court finds that it is a case of a sole eyewitness.
However, if his version is perused, it does not inspire confidence
and there are number of contradictions and discrepancies and a
story is sought to be created as if he was actually present at the
place of offence.
14. PW No.3-Bharatbhai Narabhai, Exh.28 in his deposition
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has stated that he had seen bloodstains on the muddamal weapon
dhariya. However, in the FSL report Exh.41, no bloodstains are
found on the muddamal weapon dhariya.
15. In view of the aforesaid evidence coming on record,
coupled with medical evidence, the Court is of the view that the
prosecution has failed to establish the case against the respondent-
accused beyond reasonable doubt. 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
fundamental principle of criminal jurisprudence, and thereafter,
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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.
16. 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 respondent-
accused.
17. In view of the aforesaid discussion, the Court finds no
reason to interfere with the impugned judgment and order of
acquittal. The appeal is therefore dismissed. Bail bond stands
discharged. Records and Proceedings be sent back to the
concerned Sessions Court.
(A.Y. KOGJE, J)
(SAMIR J. DAVE,J)
SHITOLE
