Gujarat High Court

State Of Gujarat vs Ramji Dahyabhai Koli on 5 July, 2025

Author: Gita Gopi

Bench: Gita Gopi

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                              R/CR.A/960/1999                                     JUDGMENT DATED: 05/07/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/CRIMINAL APPEAL NO. 960 of 1999


                        FOR APPROVAL AND SIGNATURE:


                        HONOURABLE MS. JUSTICE GITA GOPI

                        and

                        HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI

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                                     Approved for Reporting                      Yes           No

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                                                           STATE OF GUJARAT
                                                                 Versus
                                                       RAMJI DAHYABHAI KOLI & ORS.
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                        Appearance:
                        MR TIRTH PANDYA, APP for the Appellant(s) No. 1
                        MR UTPAL M PANCHAL(1075) for the Opponent(s)/Respondent(s) No. 1,2,3
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                           CORAM:HONOURABLE MS. JUSTICE GITA GOPI
                                 and
                                 HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
                                 DESAI

                                                             Date : 05/07/2025

                                              ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI)

1. The complainant State, being aggrieved by the

judgement and order passed by the Additional Sessions

Judge, Morbi, in Sessions Case No. 03 of 1998 on

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25.06.1999, whereby, he was pleased to acquit the

accused of the charges under Sections 302 and 114 of the

Indian Penal Code and Section 37(1) and 135 of the

Bombay Police Act, has preferred this appeal under

Section 378(1) of the Criminal Procedure Code, 1973.

2. Heard Mr. Tirth Pandya, learned APP for the

appellant State who has taken us through the entire

gamut of evidence which was rendered before the

learned trial court wherein, the prosecution to bring

home the guilt of the accused had examined as many as 9

witnesses and had submitted 27 documents. Upon

completion of the oral evidence, the learned Sessions

Judge had recorded the statements of the accused under

Section 313 of the Cr.P.C. and after hearing the learned

advocates for the either sides, the learned Sessions Judge

was pleased to pass the order and judgement of acquittal

as regards all the three accused.

3. So far as the charge in Sessions Case No. 3 of 1998

is concerned, the same was framed by the learned

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Sessions Judge of Morbi which is at Exh. 6 wherein, it is

stated that, all the three accused, who were armed with

bill-hooks ('dhariyu' in vernacular), had attacked the

deceased at around 2 am on 15.06.1997, and the

deceased having succumbed to such injuries.

4. Mr. Pandya, learned APP has invited our attention

towards the depositions of P.W. 1 - Chandubhai

Khengarbhai Koli examined vide Exh. 12 who happened

to be the original complainant and son of deceased and

P.W. 5 - Amrutben w/o Khengarbhai Koli who had been

examined vide Exh. 29 and who happened to be the wife

of the deceased. Mr. Pandya, the learned APP has harped

upon the fact that, both these witnesses narrated in detail

as regards the occurrence of the incident and, both of

them have recognised the accused rather, both of them

having deposed that, they had seen the accused attack

Khengarbhai with bill-hooks.

4.1 Mr. Pandya, the learned APP has also submitted

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that, both these witnesses, the deceased Khengarbhai and

the accused being close relatives, the question of not

identifying the accused did not arise. Further, Mr.

Pandya, the learned APP has drawn our attention towards

the FSL report and, more particularly, the Serological

report which is at Exh. 43, wherein, blood which was

found on the weapon had matched with the blood of the

deceased. Learned APP has also argued that, though the

learned Sessions Judge had disbelieved the theory of

there being a street light at the place of offence, the

deposition of the Investigating Officer should be believed

since, he had clearly stated on oath that, he had camped

in the village after the incident had occurred, and had

verified that by way of tapping the domestic electricity

connections from the houses, the street lights were being

switched on. Mr. Pandya, has urged that, the judgement

rendered by the learned competent court is erroneous on

both counts, i.e. factual as well as legal, which deserves

to be interfered with, and is required to be quashed and

set aside, and the appeal is required to be allowed, and

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consequently, the accused should be convicted for the

offence with which they were charged.

5. None on behalf of the accused is present.

6. So far as the judgement delivered by the learned

Sessions Judge and the evidence which has been

rendered by the prosecution in Sessions Case No. 03 of

1998 is concerned, the present case mainly rests on three

counts viz. the first being the presence of street light, the

second being the place of offence and the third being, the

accused who were named and identified by P.W. 1 -

Chandubhai Khengarbhai Koli and his mother P.W. 5

Amrutben Khengarbhai Koli. The remaining evidence or

the depositions of the remaining witnesses do not require

any further discussion since the entire case of the

prosecution rested mainly on these three counts.

6.1 In the first instance, the learned Sessions Judge has

discussed at length the evidence which had been

rendered as regards the presence of electric pole which

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was in a working condition i.e. the street light being lit up

on the night of the incident. It is the case of the

prosecution that, P.W. 1 - Chandubhai and P.W. 5 -

Amrutben, both, had clearly seen the assailants clearly in

the brightness of the street light and since the light pole

was situated where the deceased was sleeping. It is

fruitful to observe that, on behalf of the accused two

defence witnesses were examined, namely, the Talati-

cum-Mantri and the Deputy Engineer from the Gujarat

Electricity Board as Defence Witness Nos. 1 & 2 vide

Exhs. 48 & 52, respectively. Both these witnesses had

categorically stated that, the electricity connections of

the street lights of Chikhli village were severed since, the

electricity usage charges were not paid by the gram

panchayat. The learned APP had tried to in vain to

establish before the learned Sessions Court that, the

street lights were on, because of the electricity

connections being tapped from the household

connections, since there was not an iota of evidence to

that effect on record. Of course, the Investigating Officer

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had also tried to bring home the fact that, he had camped

in the village for a few days after the incident, and having

seen such a scenario where, street lights' electricity

connections were being tapped from the household

connections, and thereby the street lights being lit up in

the village. However, it was a bald assertion devoid of any

independent and cogent evidence. Hence, the

prosecution was unable to prove the presence of street

lights being lit up at the time of the incident and

consequently, the fact that, P.W. 1 - Chandubhai and P.W.

5 - Amrutben having seen the accused committing the

crime is unbelievable.

6.2 Secondly, admittedly, it is the case of the

prosecution that, the deceased Khengarbhai was sleeping

outside his house when the incident had occurred. Also,

as per the prosecution case, all the three accused were

armed with individual bill-hooks, however, only one bill-

hook had been discovered. It is the case of the

prosecution that, the incident had occurred just outside

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the main door of the house of the deceased and the pole

of street light being situated adjacent to where the

deceased was sleeping on the fateful night, however, the

panchnama at Exh. 14 speaks otherwise, wherein, the

street light pole is shown at a distance of 40 feet from the

house of the deceased and near the house of Mamu Jetha

i.e. where the incident had actually occurred. Thus, the

learned Sessions Judge had rightly observed that the

place of incident had also changed, and in spite of the

prosecution's endeavour and more particularly, the

audacious efforts of P.W. 1 - Chandubhai and P.W.5 -

Amrutben, they were unable to prove that the incident

had occurred just outside their house.

6.3 It is pertinent to observe that, P.W. 1 - Chandubhai

Khengarbhai Koli in his deposition, categorically states

that, he did not know the accused no. 1 - Ramjibhai

Dahybhai Koli. He had also admitted that, he had not

seen Ramjibhai Dahybhai Koli at the time of incident. He

had also not seen him after the incident, and that,

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Ramjibhai Dahybhai Koli had not even inflicted any blow

with bill-hook to his father. He had further pleaded

ignorance stating that, he did not know as to why

Ramjibhai Dahybhai Koli had come to the court when he

i.e. P.W. 1 - Chandubhai had gone to render his

deposition. Lastly, he had stated that, he had not named

Ramjibhai Dahybhai Koli before the police as one of the

assailants, who had attacked his father. Thus, it was

incumbent upon the prosecution to prove by rendering

cogent evidence as to how accused no. 1 - Ramjibhai

Dahybhai Koli was impleaded as one of the accused in the

offence. However, the prosecution has remained silent.

In the same breath, one Khodabhai Takhubhai was

initially named as one of the co-accused. However, P.W.

1 - Chandubhai and P.W. 5 - Amrutben had subsequently

admitted that, he had already died because of a heart

attack i.e. he had died a natural death before the incident

in question had occurred. Hence, the learned Sessions

Judge had correctly observed that, the prosecution or

rather P.W. 1 - Chandubhai and P.W. 5 - Amrutben had

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falsely implicated accused no. 1 and Khodabhai

Takhubhai in the offence, which they had neither

committed nor in which, they were involved. The learned

Sessions Judge had also observed that, when the

prosecution witnesses had not deterred from implicating

innocent individuals in the offence, there was all

possibility that they may have implicated the accused nos.

2 & 3 also, falsely, in the offence or, for that matter, such

possibility could not be ruled out. Hence, the learned

Sessions Judge had rightly concluded that, the

prosecution was unable to prove the charges levelled

against the accused beyond reasonable doubt, and

accordingly, had acquitted the accused.

7. It is further required to be noted that, P.W. 1 -

Chandubhai Khengarbhai Koli had admitted that, after his

father was injured and though he was bleeding, neither

he nor his mother had even given him any primary aid or

primary treatment. Also, it was stated that, he was taken

for treatment at Morbi as well as Rajkot, however, the

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Medical Officers who had treated the deceased at both

the places had not been examined by the prosecution.

8. At this juncture, we may refer to some of the

propositions enunciated by the Supreme Court with

regard to exercise of appellate jurisdiction in acquittal

appeals. In case of Sanjeev v. State of Himachal

Pradesh reported in 2022 (6) SCC 294, para 7 reads

as under:

"7. It is well settled that:-

7.1 While dealing with an appeal against acquittal, the reasons which had weighed with the Trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the Trial Court deserves to be upturned (See Vijay Mohan Singh v. State of Karnataka3, Anwar Ali and another v. State of Himachal Pradesh).

7.2 With an order of acquittal by the Trial Court, the normal presumption of innocence in a criminal matter gets reinforced (See Atley v.

State of Uttar Pradesh).

7.3 If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (See Sambasivan and others v.

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State of Kerala)."

8.1 Similarly, in the case of Bhupatbhai Bachubhai

Chavda and another reported in [2024] 4 S.C.R. 322,

the relevant paragraphs read as under:

"6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re- appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the 326 [2024] 4 S.C.R. Digital Supreme Court Reports accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.

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7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court's finding on the burden of proof is completely erroneous. It is contrary to the law of the land.

...

11. Therefore, the appeal must succeed. We set aside the judgment and order dated 14th December 2018 of the High Court and set aside the conviction of the appellants. The judgment and order dated 5th July 1997 of the Trial Court is restored. The appeal is, accordingly, allowed. The bail bonds of the appellant no.2 are cancelled. The appellant no.1 shall be forthwith set at liberty unless he is required to be detained in connection with any other case."

9. It is also a settled legal position that in acquittal

appeals, the appellate court is not required to re-write the

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judgement or to give fresh reasonings, when the reasons

assigned by the Court below are found to be just and

proper. Such principle is laid down by the Hon'ble Apex

Court in the case of State of Karnataka Vs.

Hemareddy, reported in AIR 1981 SC 1417 wherein it

is held as under:

"... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

9.1 Thus, in case the appellate court agrees with

the reasons and the opinion given by the competent court

below, then the discussion of evidence at length is not

necessary.

10. We have appreciated, re-appreciated and re-

evaluated the evidence rendered in Sessions Case No. 03

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of 1998 on the touchstone of latest decisions of the

Hon'ble Apex Court. Considering the evidence in its

entirety, we are of the considered opinion that the