Gujarat High Court
State Of Gujarat vs Mashrubhai Ratnabhai Rabari on 31 January, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 826 of 1995
With
R/CRIMINAL REVISION APPLICATION NO. 2923 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
================================================================
Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
MASHRUBHAI RATNABHAI RABARI & ORS.
================================================================
Appearance:
APPEARANCE IN CRIMINAL APPEAL
MR.L.B.DABHI, APP, for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,2,5,7
MR N P CHAUDHARY(3980) for the Opponent(s)/Respondent(s) No. 3,4,6,8
APPEARANCE IN CRIMINAL REVISION APPLICATION
MR KAIVAN K PATEL, for the Applicant
MR.L.B.DABHI, APP, for the Respondent No.9
ABATED 1-2,5,7
MR YOGESH S LAKHANI for the Respondent Nos.3, 4 ,6,8
================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 31/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The State has preferred the present appeal under Section 378 of
Code of Criminal Procedure against the judgment and order dated
NEUTRAL CITATION
R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025
undefined
26.05.1995 passed by the Additional Sessions Judge, Palanpur in
Sessions Case No. 101 of 1993. By the impugned judgment and order,
the accused persons were tried for the charge of offence under
Sections 147, 148, 149 and 302 of the IPC and Section 135 of the
Bombay Police Act.
2.It is an incident where the deceased Kurshibhai Khodabhai Rabari
was assaulted by eight assailants armed with sticks on vital part of the
body, resulting into death of Kurshibhai.
3. In all, eight accused persons were tried of which reportedly
accused No.1-Mashrubhai Ratnabhai Rabari, accused No.2-Chehrabhai
Karshanbhai Rabari, accused No.5-Govabhai Ratnabhai Rabari and
accused No.7-Malabhai Ratnabhai Rabari have already expired and
hence, appeal qua them stands abated. In this connection, this Court
had passed an order dated 28.04.2022.
4. Learned Additional Public Prosecutor submitted that the case of
the prosecution was based on the deposition of the eyewitnesses
whose presence at the time of scene of offense was natural and
therefore, the Sessions Court has committed an error in disbelieving the
eye-witnesses. It is submitted that merely because an eye-witness is
relative of the deceased, cannot be the reason to disbelieve such
witnesses.
4.1 Learned APP has thereafter, submitted that the error is
committed by the Sessions Court in concluding that the version of the
NEUTRAL CITATION
R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025
undefined
eye-witnesses do not match with the documentary evidence insofar as
the injuries recorded in the medical case papers.
4.1 It is submitted that the fact that by examining the medical officer, the
prosecution is able to establish the injuries. The part of the body on
which such injuries are caused and opinion of the medical officer to the
effect that the muddamal articles (wooden stick) used in the assault are
capable of causing such an injury, is sufficient for the prosecution to
establish the homicidal death as well as the role attributed to the
accused persons.
4.2 Learned APP has lastly submitted that the prosecution was also
able to establish the motive behind the assault as it is coming out
clearly on the evidence of witnesses that dispute arose as the deceased
had reprimanded accused No.6 for letting the cattle in the open field
and when reprimanded, accused No.6 assaulted the deceased with
stick and other persons being residents of neighbourhood rushed to the
scene of offense and also caused the assault. This incident was
established by the prosecution ought to have been believed by the
Sessions Court as the prosecution was able to establish the same
beyond reasonable doubt.
5. When the matter is called out, learned advocate for the respondents
is absent. As the matter is of the year 1995, the Court deems it fit to
take up for hearing with the assistance of learned APP.
6. It is found that the informant side has also filed a revision
application however, when the matter is taken up for hearing, learned
NEUTRAL CITATION
R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025
undefined
advocate for the revisonist is also absent. However, the Court has
referred to the pleadings made by the revisionist in the revision
application, wherein the pleadings are quite identical to the submissions
made by learned APP.
7. The Court has taken into consideration the submission made by
learned APP, the pleadings and the records and proceedings.
The FIR being C.R.No.51 of 1993 came to be registered in
connection with the incident which took place on 10.05.1993 at 18:00
hours, wherein the deceased Kurshibhai Khodabhai Rabari was
assaulted by the accused persons with sticks Vide Exh.3 charge came
to be framed, wherein it is alleged that on 10.05.1993 at 18-00 o'clock
or during that time, near Chabutra at Krishnapura in Saamdhi Mota-vas
village of Palanpur Taluka of Banaskantha district, the accused persons
formed unlawful assembly in furthefrance to the common intention of
causing death of the deceased Kurshibhai Khodabhai Rabari with
lethal weapons such as sticks and by using force, committed riot and
thereby have committed punishable offense under Section 147, 148 and
of Indian Penal Code within the jurisdiction of this Court. Further, on the
said date, time and place, with intention of fulfilling the common
intention of the said unlawful assembly, the accused No.7, Rabari
Malabhai Ratanabhai and accused No.6 Maganbhai Ramabhai Rabari,
despite having knowledge or despite having reason to believe that, the
deceased Kurshibhai Khodabhai Rabari would die due to inflicting
blows of stick on his head, you accused No.7, Rabari Malabhai
NEUTRAL CITATION
R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025
undefined
Ratanabhai and accused No.6 Maganbhai Ramabhai Rabari inflicted
blows of stick on the head of the deceased Kurshibhai Khodabhai
Rabari and accused Nos. 1, 2, 3, 4, 5 and 8 indiscriminately inflicted
blows of stick on hands, legs and various parts of the body of deceased
Kurshibhai Khodabhai Rabari and murdered the deceased Kurshibhai
Khodabhai Rabari him by causing his death and thereby have
committed punishable offense under Section 302 and 149 of Indian
Penal Code.
8. The prosecution has examined Medical Officer as PW-1-Dr.
Babulal Becharbhai Suratiya at Exh.15. In his deposition, he has
described seven external injuries and three internal injuries and has
given the cause of death as shock and hemorrhage due to head injury.
This witness was shown the muddamal articles sticks and the witness
has opined that the injury sustained by the decease are possible by the
use of the muddamal articles. Therefore, through this witness, the
prosecution has established the postmortem report vide Exh.16.
9. The prosecution has therefore, established the fact of homicidal
death of Kurshibhai. However, what is relevant for the purpose of this
case is the role played by the responents-accused persons and for that
reason, the prosecution has examined PW-2-Rajabhai Bhagwanbhai
Rabari, who is the cousin brother of the deceased. According to this
witness, he has deposed that he reached the place of incident upon
being informed by his relative Sitaben and when he reached the place
she saw the incident taking place where the accused persons were
indiscriminately assaulting the deceased person.
NEUTRAL CITATION
R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025
undefined
The Court has perused the cross-examination of this witness
at length and it appears that the present witness could not be termed to
be a natural witness, accompanying the deceased when the incident
took place, but has reached the place of incident only upon being
informed by his relative namely Sitaben, who is examined as PW-3.
Apparently, the version which is coming out therefore, of this witness
cannot be relied upon as he reached the place of offense of offense
later on.
10. According to the Court, the only person who can be treated as eye-
witness is Sitaben Malabhai Rabari, who is niece of the deceased and
is examined as PW-3 vide Exh.26. In her deposition, she has stated that
in the evening hours, after completing their agricultural work at their
agricultural field she had left alongwith her uncle (deceased) towards
their home and on the way near Chabutra they came across Maganbhai
Ramabhai (Accused No.6) standing there with stick and the deceased
therefore, confronted the said Maganbhai Ramabhai on the issue of
letting the cattle into their village and reprimanded him, it is at that
stage, that accused No.6 assaulted with stick to deceased on his head.
As a result, he fall down and thereafter, other accused person who were
residents of neighbourhood rushed towards the scene of offense and
started indiscriminate assault upon the deceased person. In the cross-
examination, this witness was asked questions with regard to the daily
routine of her coming and going to the agricultural field and to question,
whether this witness was a genuine witness and also the version of this
NEUTRAL CITATION
R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025
undefined
witness with regard to the participation of accused other than accused
No.6 in the incident of assault for invoking Section 149 of the Indian
Penal Code. Apparently, it has come out from the cross-examination
that the incident had taken place at a public place chabutra which
would be crowded and at a time, where it is expected that there would
be several witnesses to the incident despite this it is only eye-witness
on which the prosecution has relied upon. Over all reading of deposition
of this witness indicates that insofar as the first incident between
Maganbhai Ramabhai and assault carried out by him is concerned,
appears to be an incident which has genuinely taken place however,
with regard to the participation of other accused persons rushing from
their respective home to the scene of offense and carrying out the
assault appears to be an exaggerated version.
11. As the witness has given a version beyond what actually has
taken place, the Sessions Court was justified in discarding the evidence
of this sole eye-witness.
12. Insofar as the the sole eye-witness version is in doubt, obviously
the prosecution can still strengthen their case on the basis of
corroboration that may be available to support the version of the eye-
witnesses. In the present case, the prosecution has examined panch
witnesses of the discovery panchnama during which the muddamal
article sticks allegedly used in the offense have been discovered. PW-4
is the panch witness of the panchnama for discovery of sticks from
accused Nos.1 to 6 however, this witness has not supported the case of
the prosecution. Similarly, PW-5 Malabhai Virjibhai Desai vide Exh.28
NEUTRAL CITATION
R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025
undefined
has been examined, who was a panch witness to the discovery
panchnama of stick discovered from accused Nos.7 and 8. This witness
has also not supported the drawing of panchnama. The co-panch PW-
6-Nagjibhai Kalyanbhai Desai of panchnama at Exh.30 has also not
supported the case of the prosecution.
13. The Court has thereafter, taken into consideration the evidence of
the Investigating Officer, who has carried out the investigation and has
referred to the discovery panchnama (marks 14/6) which was given
Exh.60, however, except for referring to the execution of panchnama
vide Exh.40 and Exh.41 respectively, no further details have been
narrated during his evidence in chief.
14. The Court has thereafter, perused the evidence of the FSL and
the report exhibited vide Exh.42 would indicate that the articles sent for
FSL did not consist of any article which would connect the respondents-
accused persons with the offense. All the articles which were sent
consisted of the clay and controlled clay and the clothes of the
deceased which he was wearing at the time of offense. Insofar as the
sticks which, were discovered are concerned, the panchnama itself
would indicate that no stain of blood was found on the stick.
15. In that eventuality also, the prosecution has failed to establish the
connection of use of stick at the time of incident in assault on the
deceased. The Court has observed that the description of injury would
indicate that injuries were stained with blood which would indicate that if
NEUTRAL CITATION
R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025
undefined
there was a assault by the sticks which are discovered, the same would
leave a mark or a stain which is not found in the present case.
16. The Court has also perused the reasonings assigned by the
Sessions Court in disbelieved the eye-witness, which according to the
Court, are justifiable. The sessions court has assigned its own reasons
for not considering the evidence of Sita Ben and has recorded in the
impugned Judgment that :-
Sitaben has stated that, only two of them i.e. Sitaben and
Kurshibhai were present at the place of offense and at the time of
incident and after the incident also, she has not seen any other person
coming at the place of offense except the accused persons and other
four persons including the son of Kurshibhai and the complainant etc.
As stated by her, there is a public road at the place of incident and the
road leads towards Gharpadi and Nava Gaam. She states that,
generally there would be movement of many people at the place of
offense. She also states that, the houses of Kalyan Hira, Raja Hira, Moti
Kopa are situated at the place on the east of the road after the area of
Krishnapura ends and they reside there with their family. However, she
has stated that, all of them came to reside there after the incident
occurred. Whatever it may be, but one fact is certain that, the said
incident occurred at the cross roads of the village and it can be believed
that, there would be movement of people on that road as it was evening
time and there is a Dairy nearby and in any circumstance, it is not
believable that, there was no one on this type of road having such
NEUTRAL CITATION
R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025
undefined
movement and it appears to me that, Sitaben is not stating truth in her
deposition about this issue. It is an undisputed fact that, the sole
witness of the incident is Sitaben and as she is the niece of Kurshibhai,
the Court should examine her evidence closely because she is an
interested witness. In addition to that, both the parties had animosity
regarding election which is an established fact on record and
considering the same, Sitaben is an interested witness and therefore
her evidence should be closely examined. In this manner, if we closely
examine the evidence of Sitaben, she has stated a fact in her statement
that, all the eight accused persons had beaten Kurshibhai with more
than one stick which cannot be counted. On the basis of this fact, there
should be numerous injuries on the body of Kurshibhai but, if we see
the deposition of the Doctor, the deceased Kurshibhai had sustained
eight external injuries and as stated by Dr. Babulal Bechardas Sutariya,
out of all the eight external injuries, injury No.7 on the head was caused
due to blood clot, therefore injury No.7 is not an independent injury.
Whereas, the Doctor has stated in his aforesaid cross-examination that,
injury No.1 can be caused due to injury No.2.
Upon considering the evidence of the Doctor, Injury No. 1 is also
not independent injury. Therefore, Kurshibhai sustained only six injuries
on the whole body except two injuries. If each of the eight persons
would have hit a stick then Kurshibhai would sustained at least eight
injuries. However, as stated by Sitaben, Kurshibhai sustained many
stick blows from all directions. Under these circumstances, it is not
possible that one injury occurs on the other one and therefore it should
NEUTRAL CITATION
R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025
undefined
be more than six injuries. However, no such type of injury is found. As
stated by Sitaben, accused persons had caused injuries to her uncle by
sticks and therefore blood was oozing from the body. The clothes were
sent to Forensic Science Laboratory for the investigation which were
seized from the body of the deceased. The report of Forensic Science
Laboratory is produced at Exhibit-42. It may be stated as per the report
at Exhibit-42 that blood was found on the dhoti, kurta and vest. Blood of
A-Group was found on it. Blood of A-Group was also found on the soil
seized from the place. Therefore, it is proved by the report of Forensic
Science Laboratory at Exhibit-42 that the blood was oozing from the
body of the deceased. The blood must be found on the object by which
the deceased was hit. As per the case of the prosecution, the accused
persons hit stick blows to the deceased. These sticks were seized from
the accused persons after the panchnama was drawn at Exhibit 40 and
41. The pancha Vajesingh Bechar, Panchabhai Hirabhai, Malabhai
Devjibhai and Nagjibhai Kalyanbhai were examined vide Exhibit 27, 57,
28 and 29 respectively. As these four panchas do not corroborate with
the case of the prosecution, they have been declared as hostile by the
prosecution. Therefore, the fact it is not proved that, the accused
persons produced the muddamal sticks or the muddamal sticks were
found from the accused persons. Even if we believe for the sake of
argument that, sticks were seized only from the accused persons and
even if the panchnama at Exhibit 40 and 41 is read, it did not appear
that the blood stains were found on the stick. In addition to that, no
blood was found on the clothes of the accused. Now, if Kurshibhai had
NEUTRAL CITATION
R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025
undefined
excessive bleeding, the blood would have been spilled on the ground
and the drops of blood must have been splashed on the ground and on
the stick and on any of the accused persons. However, no such fact is
found in this case. Therefore, it is not admissible that the accused
persons had inflicted stick blows to Kurshibhai. Therefore, it can be
stated that there is fact in the case of the accused that someone killed
Kurshibhai and his dead-body was thrown in the outskirts of the village
and a false case was filed due to animosity with the accused persons. If
such was not the case, any person would have been testified as witness
if any person residing nearby or passing from there would have been
examined by the prosecution. No such witnesses have been examined.
17. However, upon considering the deposition of Sitaben, she has
stated in her deposition that many injuries were sustained. However,
upon considering the evidences of the Doctor, Kurshibhai sustained
only six injuries. No corroboration is found to the sole eye witness.
17. 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
NEUTRAL CITATION
R/CR.A/826/1995 JUDGMENT DATED: 31/01/2025
undefined
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 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.
18. In view of the aforesaid finding, the Court does not find any to
interference. In the result, the appeal fails and is dismissed. The
judgment and order of acquittal 26.05.1995 passed by the Additional
Sessions Judge, Palanpur in Sessions Case No. 101 of 1993 stands
confirmed. Bail and bail-bonds of the accused, if any, stand discharged.
Records and proceedings be sent back to the concerned trial Court.
19. In view of the order passed in the appeal the Criminal Revision
Application does not survive. Hence, the same stands disposed of
accordingly.
(A.Y. KOGJE, J)
(SAMIR J. DAVE,J)
SIDDHARTH
