Gujarat High Court
State Of Gujarat vs Koli Mohan Nanubhai on 7 January, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 605 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
==========================================================
Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
KOLI MOHAN NANUBHAI & ORS.
==========================================================
Appearance:
MR. L. B. DABHI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2,3
DR. HARDIK K RAVAL(6366) for the Opponent(s)/Respondent(s) No. 2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 07/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. Present Appeal is preferred by the State under Section-378 of the
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
Code of Criminal Procedure, 1973 against the judgment and order of
acquittal dated 28-02-1995 passed in Sessions Case No.116 of 1991 by the
Additional Sessions Judge, Bhavnagar. By the impugned judgment and
order, the Sessions Court has acquitted three respondents-accused from
the charges of Section-302, 323, 324, 114 of Indian Penal Code.
Reportedly, respondent-accused No.1 has expired, pending the Appeal and
therefore, the Appeal qua him has already been declared as abated by
order dated 22-06-2022 passed by this Court.
2. The Sessions Case arose out of the FIR registered as C.R. No.I-
57/1991 with Vartej Police Station for the offence punishable under
Sections 302, 323, 324, 114 of Indian Penal Code in connection with
incident, which took place on 15-05-1991 alleging that on account of
small quarrel of removing of leaves of the tree, there was an altercation,
because of which respondents-accused assaulted Mavjibhai Nanubhai
(since deceased), his wife namely Lakhuben (PW-2) and nephew;
Bhalabhai; PW-3 with the use of dangerous weapons like kos, (flat and
pointed iron rod)stick and rap (iron blade) respectively.
3. Learned APP on behalf of the State has submitted that the State
having examined Medical Officer as PW-1 at Exh-13 was able to establish
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
on record that the deceased had received 11 injuries on vital part of the
body and on account of such injuries, the deceased had suffered
intracranial hemorrhage due to shock of injuries. Through this witness,
therefore, the prosecution was able to establish homicidal death. Learned
APP has further submitted that the prosecution had examined two
witnesses, who were not only eye-witnesses, but had also sustained
injuries. He took this Court to the evidence of PW-2; Lakhuben, who is
also informant and has submitted that this witness has given clear
narration of how the incident had taken place and which respondents-
accused had caused assault by using specific weapons.
3.1 It is submitted that from this witness also, the motive of the
respondents-accused was established, as in her deposition, it is coming
out on record that with regard to the land, there was earlier dispute,
which was existing.
3.2 Learned APP has submitted that yet another eye-witness; Bhalabhai
who is nephew of the deceased, was also examined as PW-3 and his
version also gives clear role attributed to respondents-accused and the
weapons used, as also motive attributed. Despite this, an error is
committed by the Sessions Court in not believing version of eye-witnesses
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
and discarding their version merely on minor discrepancy with regard to
the usage of weapons and nature of injuries sustained and not matching
with declared assault.
3.3 Learned APP has thereafter submitted that even arrest panchnama
of the respondents-accused No.2 and 3, which are placed at Exh-22 and
Exh-23 respectively. Blood stains were found on the cloths of the
respondents-accused and those stains as per FSL Report at Exh-35 are of
the Blood-group belonging to the deceased and the injured eye-witness,
being Blood-group-A and B respectively.
3.4 Learned APP has thereafter submitted that an error is committed
by the trial Court in not considering evidence of Medical Officers, who
had treated two injured eye-witnesses and evidence of these two
witnesses namely PW-1 and PW-7, who have examined injured eye-
witnesses, go on to show injuries sustained by each of the eye-witnesses
and therefore, presence of witnesses could not be doubted, when the
incident took place. Moreover, it is submitted that considering the place
of incident also, which is residential area of the complainant side as well
as accused side, presence of witnesses is quite natural and hence also,
sufficient weightage ought to have been given by the trial Court to the
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
evidence of these two witnesses.
4. As against this, learned Advocate for the respondents-accused has
submitted that version of the witnesses, though they were termed as eye-
witnesses, was completely unreliable and the Sessions Court has given
cogent reasons for disbelieving two eye-witnesses. He has therefore, taken
this Court to evidence of informant, who herself is an eye-witness and
has also taken this Court to dying declaration of this very witness, which
is exhibited at Exh-43.
4.1 Learned Advocate for the respondents-accused has submitted that if
version given by this very witness in the dying declaration, then there is
no detail with regard to assault by respondents-accused upon the
deceased. Very first version in the dying declaration coming out even as
per the case of the prosecution is that respondents-accused had assaulted
this witness with the use of rap (iron blade) on her head and accused
no.2 using stick, whereas in her deposition before the trial Court, she has
given narration, which is completely different from the version of very
witness in the dying declaration.
4.2 In so far as version of the second eye-witness; Bhalabhai, it is
submitted that even from his own deposition, it is coming out that he
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
had reached place of offence after sometime, where he did not view
actual assault on the deceased. This witness has also referred to in his
evidence about the usage of knife in causing assault. However, case of
the prosecution itself is not attributing the usage of knife to any of the
respondents-accused. It is submitted that this witness in his deposition
has changed place of incident by deposing that assault had taken place at
one place and from there, dead body of the deceased was dragged to
another place, but panchnama of scene of offence though recorded in
detail, does not disclose any sign of dragging the dead body and
therefore, this witness was not reliable witness for assault by respondents-
accused upon the deceased.
4.3 Learned Advocate for the respondents-accused has thereafter
submitted that though the prosecution relies upon tracing of blood-stains
on the clothes of respondent-accused Nos.2 and 3 as well as on the
weapons used, the prosecution has failed to bring on record Blood-group
of the deceased as well as that of Blood-group of witness; Lakhuben. It is
submitted that Blood-group-A of the deceased was ascertained by the
prosecution only on the basis of Blood-group found from the sample
collected from scene of offence, which according to learned Advocate
cannot be considered as an accurate proof of Blood-group of the
deceased.
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
4.4 Learned Advocate for the respondents-accused has submitted that
witnesses on which the prosecution seeks to rely upon, are close relatives
of the deceased and therefore, interested witnesses and though, there
were several other witnesses, who had gathered in view of the fact that
area was residential area, still no independent witnesses have been
examined, as in support of the prosecution and therefore also, decision of
the Sessions Court was justified.
4.5 Lastly, learned Advocate for the respondents-accused has submitted
that from the beginning, it has been stand of the defence that the
deceased had lost his tamper and had rushed towards accused persons
with rap (iron blade) in his hand and out of fear, respondents-accused
had locked themselves inside house, which the deceased tried to open
with the use of rap (iron blade) and during that period, rap (iron blade)
had broken into two pieces, which was found in the panchnama of scene
of offence. It is submitted that therefore, defence had probablized
attempted assault by the respondents-accused and therefore, benefit be
given to respondents-accused.
5. Having considered the rival submissions of the parties and having
perused the documents on record, incident allegedly took place on 15-05-
1991 at approximately 4.30 hours, when the deceased and his wife; PW-2
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
were picking up leaves of Jambudi tree, at that time, when respondent
Nos.1,2 and 3 confronted them , there was a verbal altercation, because
of which, respondent Nos.1, 2 and 3 assaulted the deceased as well as
PW-2.
5.1 The FIR was duly registered as C.R. No.I-57/1991 with Vartej
Police Station and after due investigation, t he complaint was filed on
15-05-1991. The Sessions came to be committed by the concerned
Magistrate Court after due compliance of Section-207 of Cr.PC. and as the
respondents-accused pleaded innocence and claimed to be tried and the
charge came to be framed vide Exh-3, wherein it is alleged that on
15/05/1991 or at the course of time of around 04:30 Hrs. in the evening,
as the deceased namely, Mavajibhai Nanubhai and his wife - complainant
namely, Lakhuben were collecting jamun leaves, all you three accused
persons assaulted Mavjibhai Nanubhai and inflicted the blows of weapon
viz. the accused no.1 with kos,, accused no.2 with the stick and the
accused no.3 with rap , causing injuries and death and thereby
committed his murder. Further, at the same place and time, the accused
no.3 , Ramjibhai Parshottambhai inflicted the blows of Rap head and
right hand of the complainant , Lakhuben Mavjibhai causing her simple
hurt and the accused no.2 inflicted the stick blow to said Lakhuben
Mavjibhai and caused her simple hurt. Therefore, the accused no.3
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
committed the offence u/s 324 and 323 r/w s.114 of the Indian Penal
Code. accused no.2 committed the offence u/s 323 and 324 r/w s.114 of
the Indian Penal Code and accused no.1 committed the offence u/s 324
and 323 r/w s.114 of the Indian Penal Code. Furthermore, at the same
time and place, the accused no.3 assaulted Bhalabhai Kanabhai with Rap
and inflicted its blow with the intention to cause him injury on head. As
he raised his left hand for self defence, he got its blow on his left hand
and thereby sustained injury. Accordingly, accused no.3 committed
offence u/s 324 of the Indian Penal Code and accused nos.1 and 2
committed the offence u/s 324 r/w s.114 of the Indian Penal Code.
5.2 The case of prosecution is based on version of Medical Officer,
who performed Postmortem, two eye-witnesses, panch-witnesses and the
documents of the Forensic Science. The prosecution had examined
Medical Officer as PW-1 at Exh-13, who has performed postmortem
report of the deceased; Mavjibhai. From his deposition, it is coming on
record that deceased; Mavjibhai sustained 11 injuries on vital parts of the
body and such injuries were caused by the dangerous weapons. This
witness has also opined regarding cause of death and through this
witness, postmortem note came to be exhibited vide Exh-14. In the
Postmortem Report, cause of death is assigned to shock due to
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
intracranial hemorrhage. This witness has also examined injured witness;
Bhalabhai, who has sustained incised wounds on the left arm. This
document is Exh-15. From the evidence of this witness, the prosecution
was able to establish homicidal death of Mavjibhai.
5.3 However, during the course of investigation itself, in cross
examination, inflicting of injuries, nature of injuries sustained and the
muddamal Articles by which such injuries could be caused has come on
record. In the cross examination, in response to the question asked about
usage of kos in inflicting and causing injuries sustained, this witness has
given indication that as there is no cut, which was found on the clothes
of the deceased corresponding to the injuries, use of kos is ruled out.
This witness has also ruled out usage of kos as there was no
corresponding fractured injuries to injury nos.6 to 10. In fact, evidence of
this witness goes on to indicate that injuries of incise nature, which are
fatal arising out of use of Muddamal Article No.6. Muddamal Article No.6
is knife, which was seized during the execution of panchnama of scene of
offence. Even as per the prosecution, none of the accused have been
assigned with usage of knife. Charge itself is attributing the accused no.1
with kos, accused no.2 with stick and accused no.3 with rap (iron blade).
Therefore, when this witness has indicated injuries sustained by the
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
accused, was probable caused by the use of Muddamal Article No.6
(knife) and none of the respondents-accused have been attributed with
knife, role of the accused as attributed by the prosecution, becomes
doubtful.
5.4 The Court may thereafter consider the evidence of PW-2; Lakhuben
Bholabhai at Exh-16, who is wife of deceased and also herself injured.
While appreciating evidence of this witness, the Court may refer to dying
declaration recorded of this very witness, which is on record at Exh-43,
wherein she has stated before the Executive Magistrate about picking up
of leaves, when verbal altercation took place and arrival of her elder
brother in law; Ramjibhai (respondent No.3) with rap (iron blade) in his
hand and delivering blow on her head and Lakhmanbhai (respondent
No.2) arriving at scene with stick and giving her blow. She has
categorically stated in this document that except for that she has nothing
more to add. If this version which was recorded immediately after the
incident, is compared with deposition of witness, then it is clearly
coming out that this witness has traveled much beyond what has been
stated in her first version, in the dying declaration wherein at the first
instant, she has not disclosed any assault over her husband by any of the
accused, but in her deposition, she has gone on to state that assault by
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
each of the respondents-accused not only on herself, but also upon her
husband. this creates doubt on the version of this witness.
5.5 One more aspect, which requires consideration is deposition of
Medical Officer, who had examined this witness namely Dr. Dhirajlal
Girdharlal Adheda; PW-7 at Exh-45. Through this witness, the prosecution
has brought on record Exh-46, which is treatment Certificate of witness;
Lakhuben. This document in the history does not disclose name of any of
the accused and this document was also immediately upon incident
having taken place. One more reason for not believing the witness is
comparing the evidence of this witness with regard to the injuries
sustained by the deceased with probable cause of death arising out of
injuries as mentioned by the Medical Officer; PW-1, who has attributed
the fatal injuries to knife, whereas this witness has not mentioned
anything with regard to usage of knife.
5.6 The Court may thereafter consider the evidence of PW-3; Bhalabhai
at Exh-18. This witness is nephew of the deceased and in his deposition,
he has stated that while he was eating, he could hear commotion of
Lakhukaki; PW-2 and therefore, he went towards residence of
Mohankaka, where he found his uncle was lying down and respondents-
accused were armed with kos, stick and rap (iron blade). He confronted
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
three persons and therefore, they also tried to assault him. As a result,
he tried to escape from the place, but while doing so, respondents-
accused assaulted PW-2. This witness also deposed that accused persons
dragged dead body of his uncle from his agricultural field and placed it
in front of the house of respondent-accused No.1 (Mohanbhai). In the
deposition of this witness, it is coming on record that when panchnama
for scene of offence was being executed, Investigating Agency came
across Muddamal Article; knife, which is identified as Muddamal Article
No.6, which was having blood-stains on it.
5.7 This witness in the cross examination has also indicated that he is
unaware as to whether he has referred the assault by knife in his Police
Statement. This witness while referring to scene of offence panchnama
has also stated about two locations, where two blades of rap (iron blade)
were lying at quite distant.
5.8 The Court has thereafter taken into consideration very panchnama;
Exh-20 of scene of offence, which was proved by PW-4; Nanjibhai
Kababhai at Exh-19. This document clearly shows presence of Muddamal
Article No.6; knife, which was lying just near to scene of offence,
whereas two parts of broken rap (iron blade) lying at two different
places. Scene of offence panchnama, however, does not disclose and
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
support version of witness that the deceased was dragged from one place
(filed of Mavjibhai) to the house of Mohanbhai. Exh.-33 is Map of the
place, where the incident took place. There also, the prosecution is
unable to clearly establish whether the accused persons had dragged the
dead body from one place to another. Therefore, version given by eye-
witness; PW-3; Bhalabhai was rightly not accepted as crystal evidence, on
which the conviction could be based.
5.9 The Court may thereafter consider the arguments advanced by
learned APP with regard to FSL Report, wherein the prosecution has vide
Exh-35 placed on record Serological Report of blood-stains. The Report
finds mention of two blood-groups namely blood-group-A and blood-
group-B. It is case of the prosecution that the deceased was having
blood-group-A, while injured eye-witness; wife of the deceased was
having blood-group-B. Perusal of entire record including Postmortem
Report, there does not appear to be any sample, which was drawn to
establish blood-group of the deceased as well as PW-2 and therefore, the
prosecution has left in the realm of presumption that as blood-group,
which was found in the control-clay from the scene of offence was of
blood-group-A. Blood-group of the deceased was also to be presumed as
blood-group-A. In absence of establishing actual blood-group of the
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
deceased as blood-group-A and the prosecution witness no.2 as blood-
group-B, finding of blood-group on the cloths as well as upon the
weapons alleged against each of the respondents-accused will be of no
consequence.
5.10 The Court has also perused impugned judgment and order, wherein
the Sessions Court has assigned cogent reasons in not accepting version of
the so called eye-witnesses and the Court finds no reasons to interfere
with such findings given. The Court finds that the trial Court, in not
considering the evidence of two eye-witnesses, has held that in addition,
the witness namely, Bhalabhai Kanabhai states during his deposition that
both the blows were inflicted to him on the same leg and thereafter he
was watching from the place away from there. The complainant has not
stated before Mamalatdar that aforesaid witness was present at the time
of incident. He has stated that he reached on hearing the commotion.
But, it appears from deposition of Panch that distance between the
houses of him and his uncle is 2000 feet. This witness states during
cross-examination that he was present at the said place while his uncle
was drifted from there. Whereas, no any marks indicating dragging the
dead body were seen. He has also stated during cross-examination that
blood oozing out from his uncle was falling on the soil. His uncle taken
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
20-25 away. But, no such facts are found from Panchnama. Under the
circumstances, presence of this witness at the scene of incident cannot be
believed. Despite he was present, when the police came in the evening,
he did not inform anything to them. The police inquired from him on
next day at around half past nine - ten hrs. He has also stated during
his cross-examination that the blow was inflicted to his uncle in the
manner swaying the cricket bat. But, the doctor has denied the fact that
any injury must have occurred by this much force. Under the
circumstances, his presence is suspicious. The fact can also not be
believed that he may hear uproar from the scene of incident, because his
residence is located at a distance of 2000 feet. Under the circumstances,
the fact of the Prosecution is unbelievable.
5.11 Lastly, the Court may consider probable defence taken by the
respondents-accused wherein in the F.S. recorded under Section-313 of
Cr.PC., the respondents-accused has stated as under:
"When I and Ramji Parshottam pointed out my aunt regarding
jamun and its leaves, she got angry. On coming to know the same,
my uncle came with Rap for beating me. As both of us were hiding
in the house, when my uncle used Rap to break the door open, the
said Rap was broken. Uproar of quarreling was heard from outside
and we could not see from inside. Aunt was armed with stick. As it
was silent, we came out and my aunt was lying there in blood
smeared condition. The said stick was lying there and knife was
lying away from there. We have not committed any offence."
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
5.12 This defence taken is further probablized by the document, which
is panchnama of scene of offence at Exh-20, wherein two broken blades
of rap (iron blade) have been found lying at scene of offence at two
different places and therefore, question of usage of rap (iron blade) in
inflicting injuries on the deceased is highly doubtful.
5.13 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, upon securing of acquittal, the
NEUTRAL CITATION
R/CR.A/605/1995 JUDGMENT DATED: 07/01/2025
undefined
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.
6. In view of the reasonings assigned herein above as also the reasons
assigned by the trial Court in the impugned judgment and order, the
Court finds no reason to interfere with the acquittal recorded by
impugned judgment and order dated 28-02-1995 passed in Sessions Case
No.116 of 1991 by the Additional Sessions Judge, Bhavnagar.
7. In the result, the appeal fails and is dismissed. The judgment and
order of acquittal dated 28-02-1995 passed in Sessions Case No.116 of
1991 by the Additional Sessions Judge, Bhavnagar, stands confirmed. Bail
and bail bonds of the accused, if any, stand discharged. R & P be sent
back to the concerned Trial Court.
Sd/-
(A.Y. KOGJE, J)
Sd/-
(SAMIR J. DAVE,J)
PARESH SOMPURA
