Gujarat High Court

State Of Gujarat vs Shanabhai Mohanbhai Gohil on 5 July, 2025

Author: Gita Gopi

Bench: Gita Gopi

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                          R/CR.A/1128/1999                                      JUDGMENT DATED: 05/07/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/CRIMINAL APPEAL NO. 1128 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
                                             SHANABHAI MOHANBHAI GOHIL & ANR.
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                      Appearance:
                      MS MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
                      Appellant(s) No. 1
                      HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
                      MR PRATIK B BAROT(3711) for the Opponent(s)/Respondent(s) No. 1
                      MR Y J PATEL(3985) for the Opponent(s)/Respondent(s) No. 2
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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 MS. JUSTICE GITA GOPI)

1. The challenge is given to the judgment and order of

acquittal dated 20.05.1999 passed by the learned Sessions

Judge, Vadodara in Sessions Case No.279 of 1997 whereby

the two accused came to be acquitted under the charge of

Section 302, 354 and 109 of the Indian Penal Code (IPC).

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2. Learned Additional Public Prosecutor Ms. Monali Bhatt

took us to the charge framed below Exhibit 10. As per the

charge, accused No.1-Shanabhai Mohanbhai Gohil was

forcing deceased-Gita Shankarbhai Padhiyar to fall in love

with him, while the charge says that deceased was against

it. As per the prosecution case, accused No.2-Ravjibhai

Becharbhai Padhiyar used to always accompany accused

No.1 and accused No.1 would follow the instructions of the

accused No.2. Accordingly, on 13.08.1997, it is alleged that

deceased-Gita was visiting the field in the morning for

collecting fodder and at about 10.30, when she was

returning back home, at that time, near the Canal,

accused obstructed her with an intention to physically

harass and asked her "tu maine prem kare che ke nahi?',

and when the deceased refused accused No.1 got angry

and with an intention to kill Gita, he gave blow on the head

and on the shoulder with a sickle and thereby, caused

death. Therefore, the charge was framed for the offences

punishable under Sections 302, 354 and 109 of the IPC.

3. Against accused No.2, the charge was that he was inciting

accused No.1 to do whatever he pleases assuring that he

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was there to protect him and that he would help in

releasing him. The charge is that he had indirectly assisted

accused No.1 in the commission of the crime and therefore,

he was tried under Section 302 read with Section 109 of

the IPC.

4. Learned Additional Public Prosecutor Ms. Monali Bhatt

submitted that the PW1-Thakorbhai Mahijibhai Padhiyar-

Uncle of the deceased is the complainant, who is the eye

witness to the incident. Learned APP has referred to the

deposition of the PW1 to submit that the learned trial Court

has erred in not believing the evidence of the eyewitness

who is the complainant and the uncle of the deceased.

The complainant has very categorically stated about the

incident and has seen accused No.1 giving blow to the

deceased and also the fact that after hearing the shouts of

Gita, he and his brother-Kanubhai rushed to the place. The

complainant had seen accused No.1 giving one blow with a

danti (rake) and that thereafter, his niece had fallen down.

They shouted at accused No.1 asking him to wait but he

ran away. Learned APP submitted that this evidence of the

complainant was required to be believed. The complainant

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had seen his niece in a pool of blood where she had

received a blow on the head and they found that she was

dead. APP Ms. Bhatt contented that the blow on head

proved fatal.

5. The evidence of the PW1-complainant would refer to the

fact that at the time of the incident, he was in his own field

and the deceased-niece-Gita had come to collect fodder

who was in her own field. The fact thus, becomes clear

that the complainant was in his own field while the

deceased had come to collect grass from her own field. It is

only when the complainant heard her shouts to protect,

which were coming from the canal, going towards the

village, he and his brother rushed there. The learned trial

Court Judge has pertinently noted that this brother-

Kanubhai has not been examined during the trial.

According to the complainant, he and Kanubhai were the

eye witnesses to the incident. Unfortunately, the evidence

of Kanubhai is not on record. The learned Judge has

referred to the evidence of PW2 at Exhibit 17-Kiranbhai

Kanubhai Padhiyar, who is the son of the alleged

eyewitness-Kanubhai. From the evidence of PW2, it could

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be gathered that he at the time of deposition, was aged

about 18 years and in the deposition, it is stated that the

deceased was studying in 3 rd year Bachelor of Arts and she

was commuting from her village to Duval for her studies.

According to the deposition of PW2, deceased was aged

about 18 years at the time of her death and it was stated

that the deceased-Gita and his aunt-Ratanba both had

come to the field to collect fodder. After collecting the

fodder, they went back and after some time, at 10 o' clock,

deceased Gita had come there with tea for their employee

Bachubhai at that time, his father Kanubhai, and uncle

the complainant were at their own fields. After hearing

shouts of Gita and Bachubhai, he, his uncle and the father

rushed there. According to him, the voice was coming from

the canal area. PW2-Kiranbhai Kanubhai Padhiyar in his

deposition has stated that he had seen accused No.1 giving

a blow to Gita and that blow was with a dhati on the neck.

Thereafter accused flee away from there. From the opposite

side, they saw Hasmukh Ramanbhai Padhiyar coming near

the canal, while accused No.1 ran towards Sapla Village.

They had seen Gita lying in a pool of blood. He has further

stated that the deceased has received blow on the neck as

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well as shoulder. They gave news to the mother of Gita's

death.

6. The learned trial Court Judge has disbelieved the presence

of PW2 as PW1-the complainant has not referred the

presence of PW2-the son of Kanubhai. While according to

the complainant, his elder brother was alongwith him, but

the said person has not been examined. The complainant

who had gone there only refers to one blow on the head

while no reference is made about other injuries. The

evidence of the complainant further states that after

hearing the shouts, the village people had gathered there.

Had it been so and had the accused No.1 trying to escape

from the place and was heading towards Sapla Village,

certainly they would have caught him but that is not the

case. Again, the complainant in his complaint at Exhibit

16 has referred to Laxman Padhiyar and other village

people rushing to the place of the incident where deceased

Gita was lying , but the witness-Laxman Padhiyar has also

not been examined.

7. The PW3 - Hasmukhbhai Ramanbhai Padhiyar also claims

to be the eye witness to the incident and according to this

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witness, he was informed about the incident by Savitaben.

The learned trial Court Judge has disbelieved PW3 since

the complainant has not referred to Hasmukhbhai

Ramanbhai Padhiyar. Savitaben who had informed him

about the incident has not been examined. More so, PW3-

Hasmukhbhai Ramanbhai Padhiyar is not considered as

eyewitness to the incident because he himself not seen the

accused beating deceased. His deposition is that Savitaben

had informed him around 10.30 am, he was asked to come

as accused No.1 was beating Gita. He ran to the place of

incident. The deposition states that he had called upon

accused No.1 not to beat Gita. It is further stated that

accused No1 was at the place of incident. This evidence

and that of the complainant does not get corroboration. If

it had been so, accused No.1 who was very much present

at the place of incident was required to be caught . PW 3

refers to injury on the head and neck. According to the

evidence of PW3-Hasmukhbhai Ramanbhai Padhiyar, it

was only after he reached the place, the complainant and

Kanubhai had come there. The contradiction in the

evidence of the complainant and PW 3 becomes very

absolute, which is material contradiction, where the

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complainant's evidence states that he was alongwith

Kanubhai to have reached the place of incident first while

the PW3 refers to the information given by Savitaben and

thereafter, reaching the place of incident and accordingly,

he states that after the shouts, the complainant and

Kanubhai had come there. The PW3 does not refer to PW2-

Kiranbhai Kanubhai Padhiyar. The evidence with regard to

the injuries are also inconsistent. The complainant referred

to the injuries on the head, and the injury was with danti

(rake) while the PW3 states of dharia (sickle). The

contradiction has been referred to the Investigating Officer

which has been confirmed.

8. The learned APP has referred to the evidence of PW4-

Renukaen Jashbhai Joshi who was a friend of the

deceased-Gita. PW5-Ratanben @ Parvatiben Shankarbhai

Padhiyar is the mother of the deceased-Gita. PW4's

evidence has not been much of assistance. However, the

fact was brought on record that while PW4 and Gita were

commuting for college in 3rd years Bachelor of Arts, Gita

often used to inform her of ill intention of accused No.1

and to protect and safeguard her dignity, the deceased-Gita

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had asked PW4 not to tell any one about this fact. So fact

of any bad intention of accused was not known to others.

9. The deposition of the mother, i.e. PW5-Ratanben @

Parvatiben Shankarbhai Padhiyar also gives the cause of

the incident, as accused No.1 waiting at the road and

harassing deceased-Gita while she was on her way to

college. The deposition of PW5 also notes that she had

complained about the said fact to the father of the accused

No.1.

10. The father of accused is examined as PW6-Mohanbhai

Chhitabhai Gohil who in his deposition has tried to deny

the fact that the accused No.1 was under the influence of

the accused No.2. He denied the fact that the PW5 had

complained about his son's malicious intention towards

daughter-Gita. The father of accused No.1 was declared

hostile as the witness had not supported the case of the

prosecution.

11. If in totality, the evidence of PW4-Renukaben Jashbhai

Joshi and PW5-Ratanben @ Parvatiben Shankarbhai

Padhiyar are to be considered, then the parents were

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knowing about the persistent behaviour of the accused

No.1 towards deceased-Gita. However, there was no

formal complaint registered of his behaviour.

12. The learned Judge has referred to the post-mortem report.

The injuries on separate page in continuation of column 17

are noted as :-

                                             Types of Injuries                    Site
                                    1. Chop Wound                       Head and Rt. Hand
                                    2. Abrasion                         On Lt Palm.
                                    3. Laceration                       Rt and Lt Shoulder

13. The injuries as per the Doctor could have been caused by a

heavy sharp object. In the PM Report at Column No.17,

the injuries have been noted ,which are as under :-

17. Surface wound and injuries :- Wound that caused death Their nature position, dimensions (1) Chop wound on face Rt. Side (measured) and directions to be unovlved Direction - Gutter accurately stated - their prabable shaped slanted above Rt. eye age and causes to be noted. crushing the eye and cutting the nosal septim extending through Rt. side of face, crushing bacanaton muscles and underline Blood and nurve supply and cutting the Rt. ear also at the end of the injury.

(other details on separate page)

14. Learned APP Ms. Monali Bhatt has stated that slippers

were found from the place of the incident. She has further

referred to the FSL Report to submit that at the place of

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incident, the shoes of the accused and deceased were

found. The FSL Report finds the presence of blood with the

blood group 'O' on the shoes of the accused. Further the

FSL Report shows the blood stains with the blood group 'O'

on the clothes of the accused and even on the weapon

'dhariya' (sickle). This evidence may become relevant to

consider the death of the deceased-Gita. However, it cannot

be made conclusive evidence without evidence of witnesses

to show how shoes of accused remained at the place of

incident .Further, the presence of the blood of the deceased

on the clothes of the accused would also not be vital as it

does not link with the weapon being used. The learned

Judge has also found discrepancy with the weapon as the

witnesses have referred the same as dharia (sickle). The

FSL Report could have further examined, chance print on

the weapon to connect the accused with the crime which

is not done . In the present case, the alleged weapon has

not been believed by the learned trial Court Judge.

15. The learned Judge has rightly observed about the

difference in the weapon which has been identified as danti

(rake) / dhariya (sickle). The learned Judge has also

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observed of the deposition of the complainant that he after

visiting the house was searching for his elder brother. The

learned Judge came to the conclusion that had the

complainant been actually the eye witness, then he could

have directly informed about the incident to PW5-

Ratanben-the mother of the deceased and could have given

the name of the accused. This conduct of the complainant

has given rise to suspicion in the mind of the learned trial

Court Judge. The prime witness-complainant, who states

that the witness-Kanubhai Padhiyar was with him has not

been examined. Pertinent to note was that the father of the

deceased had not been examined as witness during the

trial. The discrepancy which has been brought about the

injuries in the evidence of the witnesses has also weighed

in the mind of the trial Court Judge. The learned Judge

was of the considered opinion that as per the PM Doctor,

there were no injuries on the neck which is contrary to the

evidence of the witness. Further the witnesses in

connection with the trial and complainant's influence on

them during the trial was also noted by the learned trial

Court Judge. The learned trial Court Judge during the

trial had an opportunity to observe the demeanour of the

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witnesses. The learned trial Court Judge has the first hand

information of the impression about the conduct of the

witnesses during the trial. Such observations are

admissible and analysis on the basis of such observations,

cannot be ruled out. On the weight of the evidence on

record as in the case, there cannot be denial to the

proposition that after the acquittal, the presumption of

innocence would be double in favour of the accused and

that the High Court should not disturb the findings of the

trial Court even if it is found that the view taken by the

trial Court could have been different. On review of the

evidence, on the analysis of the evidence on record, if two

views are possible, one in favour of the innocence of

accused and another against accused, then view of

innocence favouring the accused is to be adopted. It is

for the Court to see that there should not be any

miscarriage of justice, since the High Court cannot ignore

the analysis of the evidence by the trial Court Judge and

replace its own opinion, unless it is found that the trial

Court has taken a view ignoring the admissible evidence.

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16. At this stage, it would be pertinent to refer to the

observations of the Hon'ble Supreme Court in the case of

Chandrappa v. State of Karnataka reported in (2007) 4

SCC 415, wherein reference was made to the decision in

the case of Bhagwan Singh v. State of M.P. reported in

(2002) 4 SCC 85 and the same are reproduced as under :-

"7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not".

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17. Here the trial Court Judge has dealt with the evidence of

individual witnesses and has finally come to the conclusion

that the presence of the eye witnesses becomes doubtful.

On overall analysis of the deposition of the witnesses and

the observations of the learned trial Court Judge, we are of

the view that the findings recorded by the learned Trial

Court need not be interfered with since the miscarriage of

justice which may arise from acquittal of the guilty is not

much than the conviction of the innocent.