Gujarat High Court
State Of Gujarat vs Koli Karshanbhai Hirabhai on 5 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1384 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
KOLI KARSHANBHAI HIRABHAI
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Appearance:
MR. MEET THAKKAR, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
MR. V B MALIK(5071) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 05/06/2025
ORAL JUDGMENT
1. The present Acquittal Appeal has been filed by the State
under Section-378 of the Code of Criminal Procedure, 1973,
challenging the judgment and order dated 16/02/2008 passed by
learned Sessions Court, Patan (hereinafter referred to as "the Trial
Court") in Sessions Case No.576/2002. By way of the impugned
judgment and order, the accused has been acquitted of all the
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charges levelled against him under Section-332, 333, 353, 186 and
114 of the Indian Penal Code (hereinafter referred to as "I.P.C.").
2. The short facts emerging from the record are read as under:-
2.1 It is the case of complainant that at the time of incident, he
was working as an Assistant Central Intelligent Officer,
Grade-1, in the Central Intelligent Bureau Office situated at
Palanpur, having received information from his superior that
one Mr.Hira Pachan Koli of village Bhuladiya, Taluka
Radhanpur, District Banaskantha, having been involved in
anti-national activity and to verify this fact, he along with his
colleague Mr.Satishchandra Ramchandra Sinha visited
village Bhuladiya, Taluka Radhanpur, District Banaskantha.
2.2 It is further the case of complainant that upon verifying the
fact that the person they met was Hira Pachan Koli, they
went near to him and on initial interaction with him, said
Hira Pachan Koli got angry and called his son namely Koli
Karshanbhai Hirabhai, who had started quarrel with them
and thereafter he inflicted blow with wooden stick on the
head of the complainant, thereby he had sustained serious
injury on his head as blood had come out. The colleague of
the complainant had also received minor injury on his finger.
So, as per complaint, complainant and colleague Mr. Sinha
had returned back to their headquarter and later on, after
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receiving medical treatment, next day morning on 28th April,
1993, registered FIR against the son of Hira Pachan Koli i.e.
Koli Karshanbhai Hirabhai.
2.3 After recording statement of the complainant and other
witnesses and upon completion of investigation, the accused
was arrested and charge-sheeted for the alleged offence
committed by him under Sections-332, 333, 353, 186 and 114
of IPC. Later on, the case was committed to the Trial Court
for conducting the trial as per provisions of Cr.P.C. and
charge (Exh.11) was framed by the Trial Court.
3. The prosecution has led the following oral and documentary
evidence in support of its case and to bring home the charges
against the accused.
Oral Evidences of Prosecution
Sr. No. Name and Particulars Exh.
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Documentary Evidences
Sr.No. Document Particulars Exh.
2. Injury Certificate of Satishchandra Sinha 23
4. It appears from the record that alleged incident of beating
complainant took place on 27/04/1993 and the FIR was lodged on
28/04/1993, but the accused was arrested on 20/01/1998. There
was no recovery of wooden stick allegedly used for commission of
crime, and it was thus not submitted before the Trial Court by the
prosecution.
5. After conducting the Trial and appreciating the evidence on
record, the Trial Court has found that prosecution has failed to
establish the case and not able to prove the charges beyond doubt,
thereby acquitted the accused from all the charges levelled against
him.
6. I have heard learned Additional Public Prosecutor, Mr.Meet
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Thakkar for the State at length. Learned APP has taken me through
various oral as well as documentary evidence, which are on record
of the case. I have also independently examined and re-appreciated
evidence of witnesses examined by prosecution.
7. Learned Additional Public Prosecutor, Mr.Thakkar would
submit that the findings of acquittal are contrary to law and
evidence on record and the findings recorded by the Trial Court are
erroneous and based on irrelevant material.
7.1 Learned Additional Public Prosecutor, Mr.Thakkar would
submit that accused was guilty of commission of crime,
whereby he had inflicted injury upon vital part of the body of
the complainant, who was a public servant having received
the injuries during course of his duty. Therefore, no leniency
should be shown in favor of the accused.
7.2 Learned Additional Public Prosecutor, Mr.Thakkar would
further submit that neither the complainant nor his colleague
Mr. Sinha, had any enmity against the accused and thereby
there was no reason for them to falsely implicate accused for
committing offence in question. As such, complainant having
received serious injury on his head, first got medical help and
later on registered FIR on getting nod from his superior,
would not be a ground to raise any doubt about commission
of crime.
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7.3 Learned Additional Public Prosecutor, Mr.Thakkar would
submit that Trial Court has erroneously observed that there
was a delay in registration of FIR and not believed the fact so
stated in FIR supported by oral evidence of complaint and his
colleague Mr. Sinha.
7.4 Learned Additional Public Prosecutor, Mr.Thakkar would
further submit that minor discrepancy in version of witnesses
would not ipso facto entitle accused to get any benefit of
doubt, especially when public servant has received injury at
the instance of accused.
7.5 Learned Additional Public Prosecutor, Mr.Thakkar would
further submit that merely because wooden stick used in
commission of crime was not recovered from accused would
not be a ground to given him benefit of doubt in favour of
accused thereby to acquit him.
7.6 Learned Additional Public Prosecutor, Mr.Thakkar would
further submit that the factum of FIR was supported by oral
evidence of Mr. Mina (PW-8) and also by that of Dr. Mahesh
Jivlani (PW-3), who have confirmed the factum of the incident
and the injury sustained by the complainant respectively.
7.7 Thus, the reasons assigned by the learned Trial Court while
acquitting the accused are unjust, improper, perverse and
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unwarranted to the facts of the prosecution case and thereby,
has committed an error in acquitting the accused. It is
further submitted that the prosecution has established the
guilt of the accused and learned Trial Court has committed
an error both on law and facts.
7.8 Thus, the learned Trial Court has wrongly recorded the order
of acquittal, which deserves to be quashed and appropriate
sentences for the offences be passed against the accused and
he urged this Court to allow the captioned appeal.
8. Before dealing with merit of the appeal, at this stage, I would
first like to remind myself the position of law propounded by
Supreme Court of India in its various decisions, whereby it has laid
down several criteria while deciding acquittal appeal.
9. One of the recent pronouncement, in which, the Supreme
Court of India in a case of Babu Sahebagouda Rudragoudar and
Others vs. State of Karnataka, 2024 8 SCC 149 has held as
under :-
"39. This Court in the case of Rajesh Prasadv. State of
Bihar and Another, 2022 3 SCC 471 encapsulated the
legal position covering the field after considering
variousearlier judgments and held as below:-
"29. After referring to a catena of judgments, this Court
culled out the following general principles regarding the
powers of the appellate court while dealing with an appeal
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against an order of acquittal in the following words:
(Chandrappa case [ Chandrappa v. State of
Karnataka, 2007 4 SCC 415 ] "
42. From the above decisions, in our considered view, the
following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:-
(1) An appellate court has full power to review, re-
appreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation,
restriction or condition on exercise of such power and an
appellate court on the evidence before it may reach its
own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds", "very
strong circumstances", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive
powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of
"flourishes of language" to emphasise the reluctance of an
appellate court to interfere with acquittal than to curtail
the power of the court to review the evidence and to come
to its own conclusion.
(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial
court."
40. Further, in the case of H.D. Sundara & Ors. v. State
of Karnataka, 2023 9 SCC 581 this Court summarized
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the principles governing the exercise of appellate
jurisdiction while dealing with an appeal against acquittal
under Section 378 of CrPC as follows: -
"8.1.The acquittal of the accused further strengthens the
presumption of innocence;
8.2. The appellate court, while hearing an appeal against
acquittal, is entitled to re- appreciate the oral and
documentary evidence;
8.3. The appellate court, while deciding an appeal against
acquittal, after re- appreciating the evidence, is required
to consider whether the view taken by the trial court is a
possible view which could have been taken on the basis of
the evidence on record;
8.4. If the view taken is a possible view, the appellate
court cannot overturn the order of acquittal on the ground
that another view was also possible; and
8.5. The appellate court can interfere with the order of
acquittal only if it comes to a finding that the only
conclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused was
proved beyond a reasonable doubt and no other
conclusion was possible."
41. Thus, it is beyond the pale of doubt that the scope of
interference by an appellate Court for reversing the
judgment of acquittal recorded by the trial Court in favour
of the accused has to be exercised within the four corners
of the following principles:-
41.1 That the judgment of acquittal suffers from patent
perversity;
41.2 That the same misreading/omission to evidence on
record; is based on a consider material.
41.3 That no two reasonable views are possible and only
the view consistent with the guilt of the accused is
possible from the evidence available on record.
42. The appellate Court, in order to interfere with the
judgment of acquittal would have to record pertinent
findings on the above factors if it is inclined to reverse the
judgment of acquittal rendered by the trial Court."
(emphasis supplied)
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10. Now, keeping in mind the aforesaid principle laid down by
Hon'ble Supreme Court of India, it is required to be considered as
to whether the judgement and order passed by the Trial Court is
erroneous, perverse or contrary to the provisions of law?
11. Before answering to said issue and dealing with the facts of
the case on hand, it is required to be observed that the father of
the accused namely Hira Pachan Koli was also faced prosecution in
connection with criminal complaint being CR. No.I-88/1982, lodged
by the present complainant on 27/04/1993, wherein the
complainant has narrated facts which appears to have been
narrated by him in FIR of present case produced at Exh.38. It is
surprising to note that when the complainant has registered an FIR
against the father of present accused in connection with
commission of crime which allegedly took place on 27/04/1993, in
the very complaint, the present accused could also have been
arraigned and prosecuted accordingly. But, for reasons best known
to the prosecution, two different FIRs for the same incident have
been lodged and the cases were thereby tried differently.
11.1 The father of complainant was tried by the Trial Court being
Sessions Case No.35 of 1995 and appears to have been
acquitted by the Trial Court vide its order dated 27/02/1996.
The State has questioned such acquittal by way of filing
Criminal Appeal No.389 of 1996, wherein also this Court vide
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its judgement dated 02/02/2015 has also confirmed such
acquittal. Thus, the story put forward by the complainant and
the prosecution lodged against the father of the accused
having failed, it adversely affects the case on hand.
12. Nevertheless, this Court has minutely gone through the
evidence available on record and after its reappreciation, has found
the following inherent defects and discrepancies therein:
12.1 It has been admitted by complainant (PW-7) that no written
order had been received by him to visit village Bhuladiya to
verify the credentials of the father of accused i.e. Hira
Pachan. Normally, when any sensitive information is received
by an Intelligent Officer during the course of his duty to
verify the credentials of any person, especially in relation to
any anti-national activity, such information is either received
through any text message or is noted down in official records
maintained by such officer. No such documentary evidence
was submitted on the record by the prosecution.
12.2 The complainant has admitted that due to the head injury,
blood came out from his head, which fell on his clothes and
might have fallen on the place where the incident happened.
But, in the panchnama of scene of offence (Exh.30) produced
on record does not note down any such blood.
12.3 As per the oral evidence of PW-1, who happens to be the
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brother of the Sarpanch, who confirmed that complainant had
received injury due to vehicular accident, having fallen from
a motorcycle. Considering the injury certificate of
complainant produced at Exh.24, indicates that the injury
sustained by the complainant could have been received due
to vehicular accident i.e. a fall from a motorcycle.
13. So far as the evidence of the treating doctor is concerned,
who was examined as PW-3, he categorically admitted in his cross-
examination that when the complainant came for treatment, no
police yadi was received by him and from the history received from
the patients i.e. the complainant and his colleague, he found that it
was an M.L.C. case (Medico-Legal Case). He has further admitted
that when any M.L.C. case was noticed by him, he would report it
to police and would also mention the same in the injury certificate.
But, such information appears to be missing from the injury
certificate on record. This creates a serious doubt about happening
of the incident as alleged in the complaint.
14. As per oral evidence of Mr. Satishchandra Sinha (PW-9), who
accompanied the complainant, he suggesting a fact that before
5:30 p.m., they returned back from village Bhuladiya, having
reached Kamalpur and later on met their higher officer. Whereas,
as per the case of the complainant, they reached Kamalpur at
around 7:30 p.m. The timings, which were mentioned by both these
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witnesses did not give an exact time of incident and rather,
creating a reasonable suspicion about the timing of the incident as
narrated in the complaint. Mr.Satishchandra Sinha (PW-9) has
further admitted that despite having received a minor injury, he did
not register any formal complaint against the accused, rather he
has admitted in his cross-examination that on 27th April 1993
itself, he along with complainant and his superior Mr. Mina (PW-8)
went to the Radhanpur Police Station to register a complaint. As
per his evidence, the complaint was registered by PW-9 Mr.Sinha,
which is factually incorrect. If any police officials went to police
station to register any FIR, especially one having received injury
during the course of his duty, there was no reason to believe that
the concerned police station would not lodge FIR against accused.
It is an undisputed fact that the FIR (Exh.38) was lodged by PW-7
on 28/04/1993 i.e. the day after the alleged incident.
15. The prosecution was unable to collect the weapon used for
the commission of the crime i.e. the wooden stick and thereby the
weapon was not produced on record. Further, the accused was
arrested on 28/01/1998 for the offence alleged to have been
committed on 27/04/1993.
16. Thus, in view of the aforesaid clear facts that have come on
record and after going through reasons assigned by the Trial Court
while acquitting the accused, I am in complete agreement with the
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view taken by the Trial Court and as such, unable to accept any of
the submissions made by learned APP in support of this appeal.
17. In view of the law laid down by the Hon'ble Supreme Court of
India in the case of Babu Sahebagouda Rudragoudar (supra),
this Court has no other option left but to dismiss the present
appeal, which is hereby dismissed.
18. Consequently, the appeal is DISMISSED. Resultantly, the
impugned judgment and order of the trial court is hereby
confirmed. Bail bond, if any, shall stand cancelled. Record and
proceedings, called for, be sent back to the concerned Trial Court
forthwith.
(MAULIK J. SHELAT, J)
Nilesh
