Gujarat High Court
State Of Gujarat vs Laxmanji Bhikhaji Thakore on 29 January, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
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R/CR.A/889/1997 JUDGMENT DATED: 29/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 889 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT
Versus
LAXMANJI BHIKHAJI THAKORE & ANR.
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Appearance:
MR HARDIK SONI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2
MR DR BHATT(165) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 29/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal is directed against the
judgement and order dated 27.06.1997 passed by
the learned Additional Sessions Judge, Ahmedabad
City in Sessions Case No.269 of 1993 acquitting
the accused for the offence punishable under
Sections 302, 120B read with Section 34 of the
Indian Penal Code, 1860 (IPC) and Section 135(1)
of the Bombay Police Act (B.P.Act).
2. The present appeal is only confined to the
original accused No.1-Laxmanji Bhikhaji Thakore
as the another accused has passed away.
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3. Learned APP Mr.Soni has submitted that the
acquittal recorded by the trial Court is required
to be reversed as the trial Court has miserably
failed in appreciating the Dying Declaration. He
has submitted that the F.I.R. has been registered
by the deceased himself, wherein he has referred
to the involvement of the present accused in the
offence. In support of his submissions, he has
referred to the complaint dated 23.11.1992 below
Exh.32. The reference is also made to the
deposition of the another witness PW-02-
Harshadbhai Mayashankar examined below Exh.14,
who is nephew of the deceased and it is submitted
that the deceased had informed him about the
incident, which has occurred, naming the present
accused in the offence. It is submitted that the
trial Court has failed in appreciating his
testimoney. Reference is also made to the
evidence of PW-10-Mafabhai Mehulbhai Desai below
Exh.24, who has also confirmed that the present
accused had assaulted the deceased brutally by
inflicting knife blows on him, which ultimately,
resulted into his death. Thus, it is submitted
that there is ample evidence on record in the
form of Dying Declarations, which can establish
complicity of the accused No.1 in the offence.
4. Per Contra, learned advocate Mr.Bhatt
appearing for the accused No.1 has submitted that
the acquittal recorded by the trial Court does
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not require any interference as the same is
appropriately passed. He has submitted that the
Dying Declarations are examined by the trial
Court and ultimately, the trial Court has
disbelieved the same. He has also referred to the
deposition of the relevant witnesses as mentioned
hereinabove. The reference is particularly made
by him to the deposition of PW-9-Head Constable-
Kantilal Atmaram below Exh.23. While referring to
his evidence, he has submitted that this witness
is the first witness, who has reached the scene
of offence and had taken the deceased to the
hospital. It is submitted that this witness has
categorically deposed that the deceased had not
named the accused. Thus, it is urged that
whatever information thereafter, has been
received from other witnesses including the
nephew would pale into insignificance. He has
submitted that it is the case of the prosecution
as well as the deceased complainant that there
were 4 persons, who had assaulted him however, no
investigation with regard to rest of 2 persons
has been done and the prosecution has miserably
failed in pointing out the correct facts and
ultimately, the trial Court acquitted the
accused.
5. It is further submitted that in fact, while
recording the complaint of the deceased, his
mental fitness for recording the F.I.R. has not
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been ascertained either by the doctor or any
other person. Thus, it is submitted that the
contents of the complaint are required to be
disbelieved.
6. Finally, in support of his submissions, he
has referred to the judgement of the Apex Court
in the case of Babu Sahebagouda Rudragoudar and
Ors. Vs. State of Karnataka, AIR 2024 SC 2252 and
also in the case of Chandrappa and Ors. Vs. State
of Karnataka, (2007) 4 S.C.C. 415 prescribing the
power and scope of the appellate Court to re-
appreciate, review or reconsider the evidence in
the case of acquittal of the accused.
7. We have heard the learned advocates for the
respective parties and also examined the evidence
threadbare and findings of the trial Court.
8. Before we proceed to analyze the evidence, we
may refer to the decision of the Apex Court in
the case Chandrappa (supra). The Apex Court,
while considering the provision of Section 378 of
the Code of Criminal Procedure, 1973, and the
scope of the appellate Court in examining the
appeal against the acquittal, has observed thus:
"41. 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;
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(1) An appellate Court has full power to review,
re-appreciate 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 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."
9. The paramount consideration of the Court is
to ensure that miscarriage of justice, which may
arise from acquittal of the guilty is no less
than from the conviction of an innocent. Keeping
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in mind the parameters set by the Apex Court, we
shall make an endeavour to scrutinize the
evidence, which is established on record.
10. As per the contents of the complaint dated
23.11.1992 below Exh.32, which has been
registered by the deceased himself and also as
per the charge below Exh.3, the case of the
prosecution is that he was assaulted by the
present accused (including the deceased accused)
along with other 2 persons with knife, when he
was attending the Court at Mirzapur in relation
to one case. He was thereafter, taken to the
hospital by the Police personnel and was
admitted in the Emergency Ward, where he was
treated and ultimately he succumbed to his
injuries. Thus, even as per the case of the
deceased, he was assaulted by 4 persons,
including the present accused and thereafter,
they fled away. Accordingly, the accused were
charged with the offence punishable under
section 302, read with section 34 and 120B of
the IPC read with section 135(1) of the B.P.Act.
11. On an overall examination of the evidence, it
is noticed by us that no investigation is done
for other two accused. The investigation has only
proceeded qua two accused, though the charge
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mentions that all the accused had assaulted the
deceased. The entire case of the prosecution
hinges on the complaint, which has been
registered by the deceased himself and it is
projected as Dying Declaration in order to
convict the accused.
12. In this context, we may examine the evidence
of the PW-9-Head Constable-Kantilal Atmaram at
Exh.23. He has categorically deposed that he was
informed about the incident on 23.11.1992, when
he was present at the Shahpur Police Station and
accordingly, he rushed to the place of incident
(Dinbai Tower), where he found one person lying
unconscious and he was profusely bleeding.
Accordingly, he was taken to the hospital by him.
Further, in the examination-in-chief, he has
deposed that the deceased has not named the
present accused, when he was admitted in the
hospital in the Emergency Ward. Thus, from his
deposition, it is apparent that when the deceased
was in conscious state, he has not named the
present accused.
13. We may at this stage, refer to the deposition
of the nephew of the deceased i.e. PW-02-
Harshadbhai Mayashankar examined below Exh.14. In
his evidence, he has deposed that he was informed
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on telephone about the incident however, he did
not know the person who called him and which was
in fact received by him at his neighbour's home.
It is further deposed by him that when he reached
the hospital, at that time Harishchandra L. Patel
and Mafabhai were present and some Police
personnel were inquiring from his deceased uncle
about the incident. Thus, from his evidence, it
is emerging that he was informed about the
incident from telephone and he rushed to the
hospital. PW-10- Mafabhai Mehulbhai Desai below
Exh.24, in his evidence referred that he was
informed by the nephew of the deceased i.e. PW-
02-Harshadbhai Mayashankar, and he did inquire
from Harshad that who had called him and informed
him about the incident. Thus, the source of
information to PW-2, is not established from the
evidence.
14. One eye witness, who has been projected by
the prosecution i.e. PW-1-Raju Gopalsinh has not
supported the case of the prosecution and he has
been declared hostile.
15. The Police Sub-inspector-Amrutlal Ratnaji
Gameti, who had arrived later on as per
deposition of PW - 9 - Head Constable - Kantilal
Atmaram, is examined as PW-12 below Exh.31. He
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was serving as PSI at the relevant time and in
his evidence before the trial Court, he has
specifically stated about the incident occurred
however, no names of the accused are mentioned by
him and on his direction, the F.I.R. was recorded
by PW-9-Head Constable. He has also asserted in
his cross-examination that before the F.I.R. was
registered, the medical fitness of the deceased
in recording the FIR was not certified by the
doctor. He has also admitted that no panchnama of
the scene of offence of Dinbai Tower has been
drawn.
16. Thus, in wake of the evidence of the Police
Officers more particularly, PW-9-Head Constable
and PW-12-PSI, it becomes very doubtful as to
whether the deceased had given names of the
present accused. There is no medical fitness
certificate and further even as per the case of
the prosecution, other 2 persons were also
involved in the offence however, no investigation
in this regard is done. The trial court has
disbelieved the version of the prosecution and
has also doubted the names given by the deceased
in his complaint.
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17. We do not find any perversity or illegality
in the judgement of the trial Court recording
acquittal of the present accused.
18. Accordingly, the present appeal fails. The
same is hereby dismissed.
Record and proceedings to be sent back.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(GITA GOPI,J)
NVMEWADA/D1-1
