Gujarat High Court
State Of Gujarat vs Natdabhai Dutiyabhai Rathwa on 29 July, 2025
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R/CR.A/1205/2013 JUDGMENT DATED: 29/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1205 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
NATDABHAI DUTIYABHAI RATHWA & ANR.
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Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 29/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH
ROY)
1. Respondent nos.1 and 2 are A-1 and A-2 in Sessions
Case No.6 of 2013 on the file of the learned 3 rd Additional
Sessions Judge, Chhota Udepur. They were prosecuted for
the offences punishable under Sections 302, 504 and 114 of
the Indian Penal Code and under Section 135 of the Bombay
Police Act. Eventually after trial, they were acquitted of the
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said charges by the impugned judgment of acquittal.
Therefore, the State has preferred the present appeal
challenging the validity of the said judgment of acquittal.
2. The facts of the prosecution case lie in a narrow
compass and may be stated as follows:
2.1. On 07/09/2012, PW-4 along with others went to the
fields for the purpose of grazing their cattle. While they were
grazing their cattle, A-2 and his son questioned them as to
why they entered the fields which are within the limits of the
Madhya Pradesh State and grazing the cattle. There was an
altercation in this regard between them and it is stated that
the son of A-2 has thrown stone at the cattle of the PW-4. So,
PW-4 raised a dispute in this regard before the elders. The
elders imposed a fine of Rs.10,000/- on A-2 for throwing the
stone against the cattle of PW-4.
2.2. On the next day i.e. on 08/09/2012 at about 9:00 p.m.,
when Versingbhai (herein after referred to as 'the deceased')
who is the father of PW-4 along with his family members i.e.
PW-2 to PW-4 was sleeping in his house, it is stated that A-1
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and A-2 and two others came to their house and A-1 fired two
gun shots against the deceased who was sleeping on a cot in
his house and the deceased sustained injuries on the left side
of his abdomen and on the left side of his thigh in the said
attack and when A-1 and A-2 and other two persons were
shouting and abusing at him, PW-2 who is the wife of the
deceased woke up and with the help of a torchlight she has
seen A-1 holding gun and A-2 instigating him to kill the
deceased and A-3 and A-4 also instigating him to kill the
deceased. When she shouted after seeing them, it is stated
that PW-3 and PW-4 who are her sons who are sleeping in
another room of the house woke up and they have also seen
the accused outside the house. After hearing the shouts of
PW-2, neighbours also woke up and reached their house. At
that time, all the accused ran away after seeing that people
are gathering at their house.
2.3. The deceased succumbed to the said fire shot injuries
sustained by him. On the next day i.e. on 09/09/2012, PW-2
who is the wife of the deceased lodged a report with the
police. The said report was registered as a case under
Sections 302, 504 and 114 of the Indian Penal Code and 135
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of the Bombay Police Act. The dead body of the deceased was
sent for postmortem examination. PW-1 held autopsy over the
dead body and he found two gun shot injuries on the left side
of the abdomen and the left side of thigh of the deceased. He
opined that the deceased died due to shock, hemorrhage and
cardiac respiratory failure on account of the injuris sustained
by him. Exh.16 is the PM note issued to that effect. Before
conducting autopsy, an inquest was also held over the dead
body and the inquest witnesses also opined that he died due
to the said gun shot injuries sustained by him. A-1 and A-2
were arrested on 29/09/2012 by the police. Out of other two
accused, it is stated that one accused died and other accused
has been absconding. So, after completion of the
investigation, police filed charge sheet against A-1 and A-2 for
the offences punishable under Sections 302, 504 and 114 of
the Indian Penal Code and Section 135 of the Bombay Police
Act.
3. The trial court has framed charges against the accused
under Sections 302, 504 and 114 of the Indian Penal Code and
under Section 135 of the Bombay Police Act. The same were
read over and explained to the accused. The accused denied
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the said charges and claimed to be tried.
4. During the course of the trial, the prosecution got
examined PW-1 to PW-5 witnesses and got marked 20
documents in proof of its case against the accused.
5. At the conclusion of the trial, after considering the
evidence on record and on appreciation of the same, the trial
court found the accused not guilty for the charges levelled
against them and thereby acquitted them of the said charges
by the impugned judgment.
6. Feeling aggrieved by the same, as noticed supra, the
State has preferred the present appeal against the said
judgment of acquittal.
7. When the appeal came up for hearing, we have heard
learned APP Mr. Bhargav Pandya for the State. Despite
service of notice on respondent nos.1 and 2, they did not turn
up for hearing. Inspite of giving ample opportunity to them by
adjourning the matter from time to time, they did not turn up
for hearing in the matter. Therefore, as this is an old appeal
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of the year 2013 which is listed on our board under the
caption 'For Final Hearing-In critically old maters of year
2011 to 2020' we are not inclined to further adjourn the
hearing of the appeal. So, we have decided to dispose of the
appeal after going through the record and evidence on merits.
8. At the outset, we would like to accentuate and bring to
the fore the fact relating to the most negligent and
perfunctory investigation that was done in this case by the
Investigation Officer in a case relating to a grave offence of
murder. A perusal of the record and the evidence clearly
demonstrates that it is purely on account of the poor,
perfunctory and negligent investigation that was done, the
case ended in acquittal in the trial court and the prosecution
could not prove the case in the trial court and could not
improve any more even in the present appeal.
9. The motive that was attributed to A-1 and A-2 and to the
other two accused for committing the said offence of murder
of the deceased is the incident that took place on 07/09/2012.
According to the prosecution, on 07/09/2012, PW-4 who is the
son of the deceased along with another went to the fields to
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graze their cattle and at that time A-1 and his son questioned
them as to why they are grazing their cattle in the fields
which are within the limits of the Madhya Pradesh State and
in the altercation that took place that the son of A-2 has
thrown stone at the cattle of PW-4 and thereafter PW-4 raised
dispute before the elders and in the Panchayat the elders
imposed fine of Rs.10,000/- against A-2 and as such he bore
grudge against PW-4 and his family members and on the next
day i.e. on 08/09/2012 at about 9:00 p.m. in the night that A-1,
A-2 and another two accused went to their house and A-1 at
the instigation of A-2 fired two gun shots at the deceased who
was sleeping on a cot in his house and he succumbed to the
said injuries. So precisely this is the motive that was
attributed for the crime of murder that was allegedly
committed by A-1 and A-2 and other two accused. But,
curiously and to our surprise, the Investigation Officer did not
examine any witness relating to the said altercation that took
place on 07/09/2012 between A-2 and his son and PW-4
relating to the grazing of cattle in the fields which are in the
limits of the Madhya Pradesh State. Further, the
Investigation Officer even did not examine any of the
Panchayat elders before whom it is alleged that the dispute
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was raised in this regard to prove that fine of Rs.10,000/- was
imposed against A-2. No explanation is offered for non-
examination of any such witness relating to the said dispute
raised in the Panchayat when the said incident is cited as
motive for the present crime of murder in this case. It is
undoubtedly a serious lapse on the part of the Investigation.
Therefore, the very motive that was attributed to A-1 and A-2
for committing the said offence of murder is not proved and
established.
10. According to the prosecution version, the offence took
place in the house of the deceased on 08/09/2012 at about
9:00 p.m. during night time. As can be seen from the scene of
offence observation report which is marked as Exh.27, the
offence took place inside the house. It is the case of the
prosecution that when the deceased was sleeping on a cot in
the house, A-1 fired two gun shots towards him at the
instigation of A-2. It is not made clear or explained or
clarified whether the accused entered the house and fired the
gun shots or not. According to the prosecution version, all the
family members of the deceased i.e. the deceased, his wife
PW-2, and his sons PW-3 and PW-4 are all sleeping in the
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house. PW-3 and PW-4 who are his sons are sleeping in
another room of the house. So, when they are all sleeping in
the house on that night, it is not known how A-1 and A-2
gained entrance into the house to fire the gun shots. It is not
clarified whether the doors of the house kept open or not.
Usually when all of them are sleeping in the house, the front
doors of the house will be kept closed and locked from inside.
If they did not enter the house, then it is not known how they
fired gun shots from outside the house against a person who is
sleeping on a cot inside the house. No attempt or efforts are
made by the Investigation Officer to ascertain whether A-1
and A-2 fired the gun shots after entering into the house or
not.
11. Further, PW-2 who is the wife of the deceased woke up
after hearing the shouts of A-1 and A-2 when they were using
abusive language and at that time it is stated that she has
seen A-1 and A-2 standing outside the house and that too by
focusing a torch light against them. According to her, there is
no source of light outside the house. Therefore, she has used
the torch light. She stated in her cross examination that she
has handed over the said torch light to the police when she
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lodged the FIR with the police on the next date i.e. on
09/09/2012 at 7:15 a.m. But, the Investigation Officer did not
seize the said torch light and did not produce the same in the
trial court. Why it was not seized and why it was not
produced before the trial court is not explained. So, it is
again a serious lapse on the part of the Investigation Officer.
PW-3 admitted in cross-examination that there is no moon
light also on that night. So, when there is no source of light in
front of the house and when there is no moon light and when
the torch light was not seized to prove that PW-2 used the
torch light to identify the culprits or the assailants, it is really
difficult to believe that she has identified A-1 and A-2 as the
culprits and the assailants who committed the offence in that
dark night without any source of light. At this juncture, it is
significant to note that A-1 and A-2 belong to Pratappura
village in the Madhya Pradesh State which is the border State
and PW-2 to PW-4 all belong to Mota Rampura village in the
Gujarat State. PW-3 admitted that he has not seen A-1 and A-
2 earlier. So, when the accused belong to a different village
and when PW-2 to PW-4 have no acquaintance with them, they
are undoubtedly strangers to PW-2 to PW-4. So, it is really
unbelievable to say that they identified A-1 and A-2 who are
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strangers in the dark night when the offence allegedly took
place at 9:00 p.m. on 08/09/2012. No Test Identification (TI)
Parade was also conducted by the Investigation Officer. No
explanation is offered in this regard. It is again a serious
lapse on his part. Although PW-2 named A-1 and A-2 in the
FIR, it is not explained how she could know their names when
they are residents of the other village.
12. Another serious lapse on the part of the Investigation
Officer in this case is that even the alleged weapon i.e. the
gun that was used to fire gun shots against the deceased was
not seized in this case. No explanation is also offered for its
non seizure.
13. Therefore, there are several fatal legal infirmities in this
case and the prosecution case completely bristles with fatal
legal infirmities. So, the prosecution has miserably failed to
prove the guilt of the accused for the charges levelled against
them. Undoubtedly the prosecution failed to prove the case
against the accused beyond any reasonable doubt. The trial
court after considering the evidence on record and on proper
appreciation of the same, has arrived at a right conclusion and
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recorded a finding of acquittal in favour of the accused. We
absolutely do not find any manifest error of law in the said
findings recorded by the trial court. On re-appraisal of the
evidence, we also found that the prosecution has miserably
failed to prove the guilt of the accused with acceptable legal
evidence. Therefore, the impugned judgment of the trial
court is sustainable and it calls for no interference in this
appeal. So, the appeal fails and the same is liable to be
dismissed.
14. Before we part with the case, we once again take a
serious note of the gross negligence on the part of the
Investigation Officer in this case in conducting very poor,
negligent and perfunctory investigation in a grave offence of
murder of like nature. It is a fit case where appropriate
disciplinary action is to be initiated against him for conducting
such a negligent and perfunctory investigation in a grave
offence of like nature. In fact the trial court has also opined
that the Investigation Officer is negligent in discharging his
duty and also ordered to take action against him. We do not
know what action has been initiated against him. If no such
action is yet initiated, the Superintendent of Police, Chhota
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Udepur shall immediately, without any delay, initiate
appropriate disciplinary proceedings against him. A copy of
this judgment shall be marked to the Superintendent of
Police, Chhota Udepur by the registry.
15. We very seriously deprecate the conduct of the
Investigation Officer in conducting such a poor and
perfunctory investigation where the real culprits who
committed grave offence of murder were left scot-free. The
Investigation Officer is solely responsible for the same.
16. Resultantly, the appeal is dismissed confirming the
impugned judgment of acquittal of the trial court. Bail bond,
if any, shall stand discharged.
17. Record and proceedings be sent back forthwith to the
concerned court.
(CHEEKATI MANAVENDRANATH ROY, J)
(D. M. VYAS, J)
ILA
