Gujarat High Court
State Of Gujarat vs Koli Kuka Masharubhai on 5 July, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
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R/CR.A/506/2001 JUDGMENT DATED: 05/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 506 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
KOLI KUKA MASHARUBHAI
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Appearance:
MR JK SHAH, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
MS BINODA GAJJAR(320) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 05/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIKHIL S. KARIEL)
1. Heard learned Additional Public Prosecutor Mr.J.K.Shah
appearing on behalf of the appellant - State and learned
advocate Ms.Binoda Gajjar appearing on behalf of the
respondent - original accused.
2. By way of this appeal under Section 387(1)(3) of the
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Code of Criminal Procedure, the appellant - State seeks to
assail the judgment and order dated 31.03.2001 in Sessions
Case No.59/1997 whereby the sole accused has been
acquitted of the charges leveled against him more particularly
for offence punishable under Sections 307, 324 and 504 of the
Indian Penal Code and Section 135 of the Bombay Police Act.
3. The case of the prosecution in short being that the
original complainant one Shakuji Sursangji Thakor residing in
Sayala with his family and was in the occupation of driving
truck of one Altapbhai Usmanbhai. It is the case of the
prosecution that on 06.07.1996, in the evening, after having
his dinner, when the complainant was sitting in his varanda,
his wife had informed him that on the day before, in the
evening, her brother one Amarshibhai and his wife were
fighting among themselves, at that time, the accused Kuka
Masharu Koli had intervened and started fighting with her
brother.
3.1. The case being that upon being informed about the
same, the complainant had around 10:00 p.m. gone to the
house of the accused for the purpose of admonishing him and
upon reaching there he had called the accused and had asked
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him as to why he had interfered in a fight between his
brother-in-law and his wife, at which time, the accused is
stated to have got angry and had started abusing the
complainant and upon being told not to abuse the
complainant, the accused had removed a knife from his waist
and had stabbed the complainant on the left side of the
abdomen of the complainant and a second injury was received
by the complainant while he was trying to stop the accused.
The second injury being on the palm of the right-hand side of
the complainant and a third injury being received by the
complainant on his left hand.
3.2. It is the case of the prosecution that upon hearing the
commotion, the brother-in-law of the complainant -
Amarshibhai, his wife - Jayaben and mother-in-law - Jaguben
had reached the place of the incident and had saved the
complainant from further injuries and thereafter, upon
neighbours gathering at the place, the accused had ran away
and the complainant, since he was injured, was taken on a
cycle to Sayala Government Hospital and whereas, upon
reaching the said place, he had given a statement to the
police and based upon which the police had registered FIR
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No.192/1996 initially for the offences punishable under
Sections 306 and 504 of the IPC and Section 135 of the
Bombay Police Act and later on, since a certificate of grievous
injury was received, the offence was converted to one
punishable under Section 307 of the IPC more particularly
upon a report of the said nature being submitted to the
Judicial Magistrate First Class, Sayala.
3.3. It appears that upon the investigating officer submitting
his charge-sheet, the case had thereafter been converted to
Criminal Case No.563/1996 and whereas, the case had been
committed by the Judicial Magistrate, Sayala on 16.06.1997
and sent for trial to the learned Sessions Court. The charge
against the accused was framed on 16.11.2000 and whereas,
the prosecution had sought to examine 12 witnesses and 15
documentary evidences. The statement of the accused under
Section 313 of the Cr.P.C. had also been recorded where he
had denied all the allegations against him and all the
evidences against him and where he had additionally stated
that while he was at his home, yet, since the accused wanted
to save Amarshibhai, therefore, a false case has been foisted
upon him.
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4. Learned Sessions Court had framed four issues for
consideration, namely (i) whether the prosecution proves that
the accused, on 06.07.1996 at around 21:45 hours at Sayala,
had abused the complainant upon the complainant going to
ask the accused not to interfere in a fight between the
brother-in-law of the complainant and his wife, (ii) Whether
the prosecution proved beyond reasonable doubt that at the
above referred place and time, the accused had, with the
intention of murdering the complainant, stabbed the
complainant on his left side of the abdomen, (iii) whether the
prosecution proves beyond reasonable doubt that the accused
had caused further injuries on the complainant by using the
knife, and (iv) whether the prosecution proves beyond
reasonable doubt as to whether the accused had violated the
notification of the District Magistrate as regards not carrying
grievous weapons.
4.1. Learned Sessions Court had answered all the issues in
negative and whereas, vide the judgment and order referred
to herein above, the learned Sessions Court had acquitted the
accused of the charges leveled against him.
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4.2. As observed hereinabove, the State being aggrieved by
the acquittal, has moved the present appeal.
5. Learned APP Mr.J.K.Shah on behalf of the appellant -
State would contend that the learned Sessions Court had
committed a grave error in not considering the deposition of
the complainant himself more particularly whereby the
complainant has stated that he had been assaulted by a knife
by the accused. Learned APP would submit that the learned
Sessions Court had committed a serious error in acquitting
the accused based on minor inconsistencies which otherwise
did not have any bearing on the issue in question. Learned
APP would further submit that the learned Sessions Court had
committed a grave error in not appreciating the fact that the
dropping of the wife of the complainant as well as the demise
of the brother-in-law of the complainant, would not have any
bearing on the issue in question.
5.1. Learned APP would further submit that the learned
Sessions Court had committed a grave error in giving undue
importance to the deposition of one Dr.Ghanshyambhai Motka
i.e. the doctor present at the Civil Hospital, Sayala. Learned
APP would further submit that the learned Sessions Court had
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also committed a grave error in not considering the deposition
of the complainant as well as other witnesses in taking the
overall perspective and convicting the accused. Thus
submitting, learned advocate would submit that this Court
may reverse the acquittal and pass appropriate orders insofar
as the accused is concerned.
6. The present appeal is vehemently contested by learned
advocate Ms.Binoda Gajjar appearing on behalf of the
accused. Learned advocate would submit that no error
whatsoever has been committed by the learned Sessions
Court in acquitting the accused more particularly learned
advocate submitting that the inconsistencies noted by the
learned Sessions Court were material inconsistencies
whereupon no other view than the view taken by the learned
Sessions Court was possible. Learned advocate would submit
that as such, the learned Sessions Court had considered the
fact that there was a material inconsistency in the statement
of the complainant as had been given before the treating
doctor at the Civil Hospital as in the FIR and in the cross
examination. Learned advocate would submit that the
important material witnesses namely the wife of the
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complainant who is stated to have been present or reached
the place of the incident just around the time when the
incident had taken place, had not been examined. Learned
advocate would submit that likewise, mother-in-law of the
accused who was also stated to have present or reached the
site of the incident near about that time, had also not been
examined.
6.1. Learned advocate would submit that even otherwise, the
place of the incident was near to the police station, yet, the
first information was received by the police station
approximately after one and half hours of the incident. Insofar
as the notification is concerned, it is submitted that the
accused was present in his home and therefore, the
notification itself would not be applicable more particularly
learned advocate would submit that it is very difficult to
perceive a situation where the accused who is sitting in his
home would carry a knife in his waist.
6.2. In any case, in conclusion, learned advocate would
submit that the incident had happened in the year 1996. It is
submitted that the learned Sessions Court had, in the
impugned decision which was passed in the year 2001, noted
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the fact that the brother-in-law of the deceased, on whose
account the entire altercation had taken place at first place,
had himself expired. That the learned Sessions Court had
noted that there was no trace available of the wife of the
brother-in-law of the complainant. It is submitted that after
such a long period, no fruitful purpose would be served by
reversing the conviction even if all the submissions made by
learned APP is accepted to be true.
6.3. Thus submitting, learned advocate would request this
Court not to interfere in the impugned decision.
7. Having heard learned advocates for the respective
parties, at the outset, before examining the submissions made
by learned advocates for the respective parties, this Court
would like to reiterate the principles which are to be kept in
mind while considering an appeal against an order of
acquittal. The principles as regards considerations which
should weigh with the Appellate Court, having been reiterated
by the Hon'ble Supreme Court in catena of judgments, this
Court would crave leave to refer to a recent decision of the
Hon'ble Supreme Court in case of Mallappa and Others vs.
State of Karnataka, reported in 2024 (3) SCC 544.
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paragraph no.42 of the said decision, being relevant for the
present purpose, is quoted hereinbelow for benefit:-
"42. Our criminal jurisprudence is essentially
based on the promise that no innocent shall be
condemned as guilty. All the safeguards and the
jurisprudential values of criminal law, are intended to
prevent any failure of justice. The principles which
come into play while deciding an appeal from
acquittal could be summarized as:
(i) Appreciation of evidence is the core
element of a criminal trial and such
appreciation must be comprehensive -
inclusive of all evidence, oral or
documentary;
(ii) Partial or selective appreciation of
evidence may result in a miscarriage of
justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of
evidence, finds that two views are possible,
the one in favour of the accused shall
ordinarily be followed;
(iv) If the view of the Trial Court is a legally
plausible view, mere possibility of a contrary
view shall not justify the reversal of
acquittal;
(v) If the appellate Court is inclined to
reverse the acquittal in appeal on a re-
appreciation of evidence, it must specifically
address all the reasons given by the Trial
Court for acquittal and must cover all the
facts;
(vi) In a case of reversal from acquittal to
conviction, the appellate Court must
demonstrate an illegality, perversity or error
of law or fact in the decision of the Trial
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Court. "
7.1. A perusal of the above paragraph reveals the principles
which have to be kept in mind while an Appellate Court
decides an appeal against acquittal. The first issue being with
regard to appreciation of evidence comprehensively and
whereas, all the evidences including the oral, documentary
evidences should necessarily be examined. The second
principle being a corollary of the first principle namely in
case there is a partial or selective appreciation, then it would
result in a miscarriage of justice and would itself be a ground
of challenge. Most importantly, the Hon'ble Supreme Court in
the third principle lays down that after appreciation of the
evidence, if the appellate Court finds that two views are
possible, then one in favour of the accused shall ordinarily be
followed. Again, as a corollary thereof, it is laid down by the
Hon'ble Supreme Court that if the view of the learned Trial
Court is a legally plausible view, then mere existence of a
possibility of a contrary view would not be enough to justify
the reversal of the acquittal.
7.2. The Hon'ble Supreme Court has further laid down that if
the Appellate Court is of the opinion that the acquittal is to be
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reversed upon the reappreciation of the evidence, then the
Appellate Court is required to specifically give reasons as
regards not accepting the findings of the learned Trial Court
as regards acquitting the accused. Again, most importantly,
the Hon'ble Supreme Court has laid down that in case of
reversing an acquittal to conviction, the Appellate Court
should specifically demonstrate an illegality, perversity or
error of law or fact in the decision of the learned Trial Court.
8. Considering the impugned decision from the perspective
of the principles reiterated by the Hon'ble Supreme Court, at
the first instance, this Court would consider the evidence both
oral and documentary, laid before the learned Trial Court.
8.1. Learned Sessions Court notes that while the prosecution
had listed 12 witnesses, all the Panch witnesses had turned
hostile i.e. not supported the case of the of the prosecution.
The case of the prosecution had been supported by the
deposition of the complainant himself and whereas, the
depositions and the treating doctor i.e. the doctor who was
running a hospital where the complainant had been operated
as well as the doctor of manning the Civil Hospital where the
complainant had been first taken, had been examined.
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8.2. It would appear that upon an examination of the
deposition of the complainant, this Court, but, cannot ignore
the inconsistency in the statement, as having been noted by
the learned Sessions Court. The learned Sessions Court notes
that the complainant is stated to have gone to the house of the
accused, to admonish him for interfering in an altercation
between the brother-in-law of the complainant and his wife,
yet, in the complaint, it is mentioned by the complainant that
on the day before the incident, his wife had informed him
about there being an altercation between the brother-in-law of
the complainant and his wife, whereas, in the deposition
before the Court, the complainant had deposed that on the
date of the incident, in the morning, the brother-in-law of the
complainant had informed the complainant as regards the
accused having intervened in the altercation between the
brother-in-law of the complainant and his wife. The said
contradiction has been treated to be a material contradiction
by the learned Sessions Court.
8.3. The learned Sessions Court also notes that the
complainant in the complaint has narrated that there were
three injuries sustained by him on account of the assault by
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the accused, yet, in the deposition before the Court, the
complainant states that only one injury i.e. a stab wound on
the left side of the abdomen has been sustained on account of
the assault by the accused and whereas, the injuries on the
hand of the complainant were on account of falling down and
injuring himself by a thorn. The learned Sessions Court has
also noted the fact that an important witness namely Jayaben
i.e. the wife of the complainant who is stated to have reached
the spot of the incident near about the time when the incident
had taken place, was dropped by the prosecution themselves.
8.4. Furthermore, it also requires to be observed here that in
addition to the wife of the complainant, even the mother-in-
law of the complainant who also appear to be a material
witness, who had reached the spot of the incident near about
the time when the incident had taken place and who was also
instrumental in making sure that the complainant reaches the
hospital had also not been examined by the prosecution.
Furthermore, it also appears from the deposition given by the
complainant before the Court that the mother-in-law was
instrumental in ensuring that the petitioner does not bleed
heavily on account of the alleged stab wounds and whereas,
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under such circumstances, the mother-in-law not having been
examined, is also an issue which would weaken the case of the
prosecution.
8.5. Furthermore, this Court upon examination of the
evidence finds that in the statement before the police, the
complainant had stated that he was taken from the site of the
incident to the hospital on a cycle belonging to his mother-in-
law, whereas, in the deposition before the Court, it was stated
that he was brought in a handcart to the hospital by his
mother-in-law and other persons. It appears in this regard
that the said inconsistency had not been explained by the
complainant. This Court has also noticed the fact that in the
complaint itself, the complainant has stated that while the
complainant had gone to admonish the accused and the
assault had taken place, his brother-in-law - Amarshibhai, his
wife - Jayaben and his mother-in-law - Jaguben had reached
the place and had saved the complainant from any further
assault, whereas, in the deposition before the Court, no such
incident has been referred to by the complainant. This also
appears to be a material contradiction which would go in
favour of the accused.
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8.6. This Court has also considered the aspect noted by the
learned Trial Court as regards the complainant not having
stated about the complainant having been assaulted by the
accused before the doctor in the civil hospital at Sayala. The
said fact raising a doubt about the allegation leveled by the
complainant inasmuch as the complainant at the first
available opportunity not having named the accused, there is
always a possibility that the later naming of the accused may
be tutored. This Court has also noticed the fact that the view
taken by the learned Sessions Court was a perfectly justifiable
and plausible view and as much as we have considered the
submissions made by the learned APP, we could not persuade
ourselves to take a contrary view than the view taken by the
learned Sessions Court.
8.7. Furthermore, considering the case from the perspective
of the law laid down by the Hon'ble Supreme Court as
referred to hereinabove, we do not find any perversity,
illegality or any error of law or fact as committed by the
learned Sessions Court in passing the impugned judgment.
9. Under such circumstances, to this Court, no interference
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is required in the impugned decision and whereas, the present
appeal fails and is hereby rejected.
(NIKHIL S. KARIEL,J)
(P. M. RAVAL, J)
Bhoomi
