Gujarat High Court
State Of Gujarat vs Nevabhai Hanjabhai Parmar on 6 June, 2025
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R/CR.A/975/1999 JUDGMENT DATED: 06/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 975 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
NEVABHAI HANJABHAI PARMAR & ORS.
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Appearance:
MS CHETNA SHAH, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2,3
MR TUSHAR L SHETH(3920) for the Opponent(s)/Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 06/06/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. The present appeal is preferred by the State
under section 378(1)(3) of the Code of Criminal Procedure
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1973 (for short "the CrPC") against the judgment and order
dated 15.6.1999 in Sessions Case No.60 of 1998 passed by
the learned Additional Sessions Judge, Banaskantha at
Palanpur acquitting the accused persons for the offences
punishable under sections 302, 324, read with section 34 of
the Indian Penal Code 1860.
2. The facts of the present case in nutshell are as
under :
2.1 The complainant Vaja Kira is the uncle of
deceased Manchha Dheera. That on 22.3.1998 Vaja Kira
and his nephew deceased Manchha Dheera were travelling
on foot from village Rooppura to village Umbari for
performing rituals of gargling due to death of mother-in-law
of his son. After performing rituals of gargling at village
Umbari at about 5.00 O'clock, they had left for village
Rupapura at about 9.00 O'clock in the night. When they
reached near village Jodhsar, more particularly, at the river
bank, at that time, the complainant Vaja Kira was walking
behind deceased Manchha. It was night and dark, at that
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time, from behind one person from Jodhsar village hit on
the back of the head of Vaja Kira with iron rod without
uttering single word, due to which Vaja Kira fell on the
ground and also injured Manchha Dheera on his head and
inflicted injury on the left eye with rod due to which
Manchha Dheera fell on the ground. Thereafter, that person
went away towards village Jodhsar. The complainant
thereafter stood and observed that Manchha Dheera was
injured and was lying on the ground, and therefore
complainant Vaja Kira reached at village Ruppura and came
along with Champa Bhima, Gujara Dheera and others in
truck at village Bamodara and on reaching Bamodara at the
place of incident, Manchha Dheera was taken to Cottage
Hospital at Ambaji in the said truck. After giving primary
treatment to Manchha Dheera, he was taken to the Civil
Hospital for further treatment. The complainant Vaja Kira
took primary treatment at Cottage Hospital, Ambaji and
thereafter went to Ambaji Police Station and lodged the
complaint, which came to be registered as CR No.44 of 1998
under the provisions of sections 307, 326, 325, and 323 of
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the Indian Penal Code, 1860. The investigation was handed
over to the Police Sub Inspector, Mr.Chavda. While
Manchha Dheera was under the treatment at the Civil
Hospital at Palanpur at about 5.20 hours, in the early
morning, he expired which was informed by Palanpur City
Police Station to Ambaji Police Station. Thereafter, section
302 of the Indian Penal Code came to be added. After
completion of the investigation, the chargesheet was
presented against Nevabhai Hanjabhai in the court of
learned Magistrate. As the case was exclusively triable by
the learned Sessions Court, the learned Magistrate
committed the said criminal case to the learned Sessions
Court.
3. It also came on record that after Nevabhai refused
the charges levelled against him, which were framed vide
Exh.3 and claimed to be tried, he was tried for the aforesaid
charge.
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4. That during the deposition of the complainant,
involvement of Maknabhai Ranmabhai and Parthabhai
Narsabhai came on record and as per the order passed
below Exh.34, these two persons were arraigned as accused
under the provisions of section 319 of the CrPC and against
them charges were framed for the offences under sections
302, 324 and section 34 of the Indian Penal Code. The
charge was amended and framed against all the accused in
which Nevabhai Hanjabhai was accused of hitting iron rod,
Makanabhai Ranmabhai was accused of hitting axe while
Parthabhai was accused of hitting with stick. However, all
the accused persons denied the charges levelled against
them and claimed to be tried. They were tried accordingly
and after examining the witnesses as well as considering the
documents on record, all the accused persons were given
benefit of doubt under the provisions of section 235 of the
CrPC and acquitted from the charges of sections 302, 324
and 34 of the Indian Penal Code vide the impugned
judgement and order dated 15.6.1999. Hence, the State has
preferred the present appeal.
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5. Learned Additional Public Prosecutor Ms.Chetna
Shah has mainly contended as follows :
5.1 That the judgement and order of acquittal passed
by the learned trial Judge is contrary to law, evidence on
record and the facts of the present case.
5.2 That the learned trial Court has not properly
appreciated the facts of the prosecution case that on
22.3.1998 at about 21.00 hours when the complainant Vaja
Kira and deceased Manchha Dheera were going through
river bank, the respondents accused with an intention to
cause death of Manchha Dheera had inflicted injuries, more
particularly, by Nevabhai by iron rod on the head of the
deceased, by axe by accused No.2 Maknabhai Ranmabhai
and stick blow by accused No.3 Parthabhai Narsabhai and
thereby committed the offence under sections 302, 324,
read with section 34 of the Indian Penal Code.
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5.3 That the learned trial Court has not properly
appreciated the evidence of Dr.Jayantibhai Ambaram Patel
at Exh.8 and Dr.Shamaldas Adhwana at Exh.17 since both
these witnesses are independent witnesses and have no
grudge with the accused persons and despite these
witnesses having deposed in favour of the prosecution, more
particularly, considering the contents having been proved of
the postmortem note at Exh.20 and inquest panchama at
Exh.22 which has also duly proved wherein the Doctor has
clearly stated that the cause of death was due to various
injuries caused and the injuries were sufficient in ordinary
course of causing death.
5.4 That the learned trial Court has also not properly
appreciated the ocular evidence of the Police Sub Inspector
Mr.Chavda, the Investigating Officer before whom the
accused persons have produced iron rod and the said iron
rod was recovered from Nevabhai after drawing necessary
panchnama as per the provisions of Section 27 of the Indian
Evidence Act.
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5.5 That the learned trial Court has further failed to
appreciate the FSL report and serological report which have
been proved and are at Exh.47 wherein the blood of the
deceased was found on muddamal iron rod as well as on the
shirt of the accused Nevabhai. That no plausible reasons
have been given by the learned trial Court to disbelieve the
evidence of prosecution witness Laxmiben at Exh.34
(sic.Exh.38).
5.6 Thus, it is argued by learned Additional Public
Prosecutor Ms.Chetna Shah that reasons given by the
learned trial Court while acquitting the accused are
improper, perverse and unwarranted in the facts of the
present case and there is misreading of oral as well as
documentary evidences which require interference at the
hands of this Court and requested to allow the present
appeal.
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6. At this stage, it would be fruitful to refer to the
decision of the Honourable Apex Court in the case of
Constable 907 Surendra Singh and another Vs State of
Uttarakhand, reported in (2025) 2 SCR 239 wherein the
Honourable Apex Court in paragraphs 11 and 12 has
observed thus :
"11. Recently, in the case of Babu Sahebagouda
Rudragoudar and others V. State of Karnataka, a
Bench of this Court to which one of us was a Member (
B. R. Gavai, J.) had an occasion to consider the legal
position with regard to the scope of interference in an
appeal against acquittal. It was observed thus:
"38. First of all, we would like to reiterate the
principles laid down by this Court governing the
scope of interference by the High Court in an
appeal filed by the State for challenging acquittal
of the accused recorded by the trial court.
39. This Court in Rajesh Prasad V. State of
Bihar [ Rajesh Prasad V. State of Bihar (2022) 3
SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated
the legal position covering the field after
considering various earlier judgments and held as
below : ( SCC pp. 482-83, para 29)
"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 against an order of
acquittal in the following words: [ Chandrappa V.
State of Karnataka, (2007) 4 SCC 415 : (2007) 2
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SCC (Cri) 325 ], SCC p. 432, para 42)
'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 appeal court has full power to
review, reappreciate 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
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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 conclusion 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 H.D. Sundra V. State of
Karnataka [ H. D. Sundra V. State of Karnataka
(2023) 9 SCC 581 : (2023) 3 SCC (Cri) 748 ] this
Court summarised the principles governing the
exercise of appellate jurisdiction while dealing
with an appeal against acquittal under Section
378 CrPC as follows : ( SCC p. 584, para 8 )
"8. ... 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
reappreciate the oral and documentary
evidence;
8.3. The appellate court, while deciding an
appeal against acquittal, after reappreciating
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
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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 form
patent perversity;
41.2. That the same is based on a
misreading/omission to consider material
evidence on record; and
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."
12. It could thus be seen that it is a settled legal
position that the interference with the finding of
acquittal recorded by the learned trial judge would be
warranted by the High Court only if the judgment of
acquittal suffers from patent perversity; that the same
is based on a misreading/omission to consider
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material evidence on record; and 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."
7. Thus, on the aforestated legal prepositions, this
Court has to test on the anvil of the evidence on the record
as to whether the acquittal suffers from any patent
perversity or that the same is based on misreading or on an
omission to consider material evidence on record and that
no two reasonable views are possible and only view
consistent with the guilt of the accused is possible on the
evidence on record.
8. Thus, on the aforesaid settled principles of law,
this Court has now to reappreciate the oral as well as
documentary evidences placed on record by the
prosecution. On perusal of the complaint at Exh.40 dated
23.8.1998 lodged before the Ambaji Police Station, no name
of any accused persons has been given by the injured
witness himself i.e. complainant. On the contrary, the
complainant has stated that one person inflicted the
injuries on the deceased as well as to the complainant. He
has also further deposed that he has all the belief that
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because of one incident which took place before one year
where his nephew Manchha Dheera's marriage was
solemnized with one girl residing at Bamodara village and at
the time of engagement, scuffle took place for which
compromise was also arrived at as per the relevant customs.
However, keeping in mind the grudge, people of Kodarvi may
have inflicted injuries on the deceased which cannot be
denied. Thus, the complainant has merely raised
apprehension, however, he has not given any name in the
FIR. With regard to this aspect, the learned trial Court has
considered the entire evidence on record i.e. ocular as well
as documentary evidences and has in detail discussed the
omission, addition and material improvments in the
deposition along with subsequent applications preferred by
the complainant which were exhibited at Exhs.29 to 32 and
has also considered the fact that the application is preferred
by the complainant before this Court wherein further
investigation was also ordered and after further
investigation was carried out, material improvements made
by the complainant over and above the complaint and
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various applications given by him before the concerned
police authorities which are duly proved and considered by
the learned trial Judge, more particularly, in paragraphs 21
to 25 of the impugned judgment and order. On perusal of
the aforesaid findings and on reappreciation of the oral as
well as documentary evidences, more particularly, the
complaint at Exh.40, deposition of the complainant Vaja
Kira at Exh.27, application given to the Police Sub Inspector
of Ambaji Police Station at Exh.29 dated 23.3.1998,
application given to the District Superintendent of Police by
Champabhai Taralbhai at Exh.30 dated 29.4.1998, copy of
which was also sent to the Secretary, Home Department,
State of gujarat and copy was also sent to Nishaben
Chaudhary (MP). Copy of reply given by Nishaben
Chaudhary (MP) at Exh.33 dated 18.6.1998 and the order
dated 11.9.1998 passed by this Court in Special Criminal
Application No.530 of 1998 along with the application at
Exh.31 dated 6.11.1998 by Somabhai written to the District
Superintendent of Police and Exh.32 dated ___.11.1998 by
Champabhai to the then Judge of the High Court. It is
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required to be noted that the Investigating Officer was
examined vide Exh.42 i.e. Mahendrasing Ratansinh Chavda
- PW 9 and on perusal of the entire deposition, more
particularly, cross examination by the defence lawyer, he
has clearly brought on record material addition made by the
complainant - injured witness which creates serious doubts
regarding deposition made before the learned trial Court
and giving the names of accused Nos.2 and 3 for the first
time in his deposition while recording the deposition at
Exh.37 before the learned trial Court. The learned trial
Court has also recorded the said material improvements in
the statement of the complainant from time to time by well
reasoned order.
9. At this juncture, it is required to be noted that
accused No.1 - Nevabhai has expired and the said fact is
also recorded vide oral order dated 10.11.2022 in the
present appeal and thus, the present appeal qua original
accused No.1 was ordered to be abated and therefore, the
question remains with regard to the role played by
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respondent Nos.2 and 3 - original accused Nos.2 and 3.
However, as noted above, when there are material
improvements in the deposition of the complainant, even
after further investigation, it cannot be said that the
impugned judgment and order passed by the learned trial
Judge acquitting the accused persons is perverse or that the
learned trial Court has not considered the depositions of the
witnesses in its true perspective.
10. Even if the deposition of witness Laxmiben
recorded vide Exh.38 is perused, it does not take the case of
the prosecution beyond the role of the accused No.1 who
has already expired and no evidence qua accused Nos.2 and
3 is coming on record.
11. As far as the discovery panchnama at Exh.44 is
concerned, it is required to be noted that panchas have
turned hostile and that the Investigating Officer in his
deposition has not properly proved the contents of the
panchnama in accordance with law and therefore, the
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learned trial Judge was correct in not relying upon the
discovery panchnama. It is required to be noted that when
the discovery panchnama has not been proved in
accordance with law, the fact of iron rod has been found
with blood stain as per the FSL report does not carry any
significance thereafter.
12. Further, if the deposition of Dr.Shamaldas
Mohanlal - PW 3 at Exh.17 and the deposition of
Dr.Jayantibhai Ambaram Patel - PW 1 at Exh.8 are
considered in its totality, there are number of discrepancies
which create serious doubts with regard to the nature of
injuries sustained by the deceased coupled with undisputed
fact that last rituals of dead body were also not performed
despite of handing over the dead body of the deceased and
was kept in open at the bank of river for three days which
goes on to substantiate the defence taken by the accused
that when someone is murdered and if the person who has
committed the crime is not found out, the persons of the
village would keep dead body from where it was found and
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would also not perform last rituals and there is also a
custom that if murder takes place, compensation is also
taken from the accused persons and the matter is also
settled.
13. In the present case on hand, since the
complainant did not give name of any person in the
complaint and subsequently, the applications were filed and
even after further investigation as ordered by this Court, the
learned trial Court, after considering the entire oral as well
as documentary evidences, has recorded the material
improvements in the deposition of the complainant and has
not believed the deposition of the complainant raising doubt
against its veracity and therefore, this Court after having
gone through the oral as well as documentary evidences on
record does not find any perversity or misreading of oral as
well as documentary evidences.
14. Under the circumstances, the appeal against
accused Nos.2 and 3 fails and the same is rejected. The
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impugned judgment and order dated 15.6.1999 in Sessions
Case No.60 of 1998 passed by the learned Additional
Sessions Judge, Banaskantha at Palanpur acquitting the
accused persons for the offences punishable under sections
302, 324, read with section 34 of the Indian Penal Code
1860 is hereby confirmed. R & P be sent back forthwith.
(NIRAL R. MEHTA,J)
(P. M. RAVAL, J)
H.M. PATHAN
