Gujarat High Court

State Of Gujarat vs Altaf Ahmev Isamil Vali on 16 June, 2025

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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                             R/CR.A/351/1999                                  JUDGMENT DATED: 16/06/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/CRIMINAL APPEAL NO. 351 of 1999


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
                       and
                       HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
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                                    Approved for Reporting                   Yes           No
                                                                                           ✔
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                                                        STATE OF GUJARAT
                                                              Versus
                                                  ALTAF AHMEV ISAMIL VALI & ORS.
                       ==========================================================
                       Appearance:
                       MR KRUTIK PARIKH, ADDL PUBLIC PROSECUTOR for the Appellant No. 1
                       MRS NISHA M PARIKH(2397) for the Opponent(s)/Respondent(s) No. 1,2,3
                       ==========================================================

                          CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
                                and
                                HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
                                DESAI

                                                         Date : 16/06/2025

                                                         ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)

1. Heard Mr. Krutik Parikh, the learned APP

appearing for the appellant State and Ms. Nisha

Parikh, the learned advocate appearing for the

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respondents - accused at length.

2. The present appeal, preferred under Section 378

of the Code of Criminal Procedure, 1973, is directed

against the judgement and order dated 17.12.1998

passed by the Additional Sessions Judge, Bharuch in

Sessions Case No. 1 of 1997, whereby, the accused

were acquitted of the offences under Sections 302,

307, 323, 114 of the Indian Penal Code and Section

135 of the Bombay Police Act.

3. The facts leading to filing of the present appeal

as emerging from the evidence on record are that, a

complaint came to be lodged by one Mohd. Musabhai

below Ex. 9 on 15.09.1996 wherein, it is stated that

while he was sleeping in his house in the afternoon,

his son Mubarak woke him up at around 1:30 pm and

informed him that his nephew Aiyub was being

beaten. So he immediately rushed at the spot and

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asked his brother to follow him. It is the case of the

complainant that, his brother and his brother's son

Iqbal also followed him. When the complainant went

to the place of offence, it is his say that he saw

accused no. 3 - Ahmed Ismail Wali Gathiya and

accused no. 1 & 2 - Altaf and Munaf, armed with

sticks, were beating his brother's son Aiyub.

3.1 It is further the case of the complainant that,

while he and his brother Ismail as well as nephew

Iqbal tried to intervene, the accused no. 3 Ahmed

Ismail hit his elder brother Ismail with a stick and

also hit him on the head. Also, Iqbal Ismail was

beaten with sticks by Altaf and Munaf. The deceased

Aiyub started bleeding profusely. Similarly, blood

started oozing out of Ismail and the complainant,

Ismail and Aiyub fell down and became unconscious

due to the injuries.

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3.2 At that time, the villagers gathered and

intervened. The complainant's son Iqbal brought

rickshaw from the outskirts and took Aiyub and Ismail

to Bharuch Civil Hospital. The complainant's

brothers Ismail and Iqbal were treated at the hospital

and discharged. It is further stated by the

complainant that the main cause of occurrence of the

incident was that, the complainant's nephew Aiyub

had previously teased accused no. 3's younger

daughter.

4. Upon committal of the case to the Sessions Court,

the Additional Sessions Judge framed charge against

the respondents - accused for the aforesaid offences.

The accused pleaded not guilty to the charge and

claimed to be tried. Therefore, the prosecution led

evidence and during the course of trial, had

examined in all 10 witnesses and had submitted 19

documentary evidence. The details of the aforesaid

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evidence led by the prosecution is reproduced in the

tabular form as under :-

~:: Oral Evidence ::~

Sr. Particular Exh.

no.














                                               ~:: Documentary Evidence ::~

                                   Sr.                       Particular                                 Exh.
                                   no.

                                               Hospital




                                               dead body






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                                               accused Munaf Ahmed and Altaf
                                               Ahmed

                                               stick shown by accused Munaf
                                               Ahmed

stick shown by accused Altaf Ahmed

Aadam

Aadam

Aadam

weapon 16 Yadi for making map of scene of offence

4.1 Upon conclusion of oral evidence by the

prosecution, the trial Court recorded further

statements of accused as provided u/s 313 of the

Code of Criminal Procedure, wherein, the accused

herein denied their involvement in the offence and

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stated that, false case had been filed against them.

After hearing both the sides and after appreciating

evidence adduced by the prosecution, the learned

Trial Judge acquitted the accused of the offences so

charged.

5. Mr. Krutik Parikh, the learned APP appearing for

the appellant State has submitted that, the competent

court has committed an error in acquitting the

accused on the ground that, the prosecution failed to

establish the motive of the crime. Mr. Parikh, the

learned APP for the appellant has submitted that,

while the learned Sessions Court had considered the

depositions below Exhs. 20 & 27, it has erred in not

considering P.Ws. No. 1 & 2 as eye witnesses, though

they were present at the place of incident, which is

evident from the evidence on record. It is further

submitted that, it was also not in dispute that, the

accused had used the muddamal weapon i.e. the stick

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which was discovered at the instance of the accused

by way of discovery panchnama. It is submitted that,

in light of the aforesaid, once the muddamal weapon

was accepted, the competent court had erred in

acquitting the accused. It is submitted that, on the

aforesaid grounds the impugned judgement

acquitting the accused was erroneous, and the same

was required to be quashed and set aside.

6. Ms. Nisha Parikh, the learned advocate

appearing for respondents no. 1 to 3 - original

accused has placed on record the death certificate of

accused no. 3 who expired on 28.03.2022 which is

taken on record.

6.1 Ms. Parikh, the learned advocate appearing for

the respondents - accused has taken the court

through the judgement rendered by the learned

Sessions Court, and placing reliance on paragraph

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nos. 3 & 4, it is submitted that it is a case of cross

complaints wherein, the accused had also filed a

complaint which had come on record vide Exh. 42

during the deposition of the Investigating Officer. It

is submitted that, the evidence of the eye witnesses

below Exhs. 20 & 27 was rightly not believed by the

competent court by finding of facts qua both the

witnesses, and upon elaborate discussion.

6.2 Ms. Parikh, the learned advocate for the

respondents accused has submitted that, the P.Ws.

No. 1 & 2 were rightly not considered as eye

witnesses by the competent court, considering the

facts of the case. She has further submitted that, the

alleged blow on the deceased Aiyub was mainly

attributed to Ahmed Ismail Vali i.e. accused no. 3

herein, who has now expired. The competent court

had also not believed the case of the prosecution, as

the prosecution had failed to prove the same beyond

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reasonable doubt, and therefore, the same had

resulted in acquittal of the accused.

6.3 Ms. Parikh, the learned advocate for the accused

has further submitted that the role attributed to

accused nos. 1 & 2 is of facilitating the accused no. 3,

which was also not believed by the competent court,

in absence of any cogent evidence on record. The

muddamal weapon i.e. the stick which was produced

by the prosecution was without any blood smear and

the panch witnesses who were examined below Exhs.

24 & 25 were held to be hostile. Hence, the said

panchnama also does not support the case of the

prosecution. Placing reliance on the aforesaid, Ms.

Parikh has submitted that no interference is called for

in the impugned judgement rendered by the learned

Sessions Court.

7. Having heard the learned advocates appearing

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for the respective parties and having considered the

deposition of the prosecution witnesses and the

documents produced on record as well as the findings

of the impugned judgement passed by the learned

Sessions Court, it emerges that the accused no. 3 -

the main accused upon whom the prosecution had

attributed the role of inflicting blow by a stick upon

deceased Aiyub, has expired. In view thereof, the

appeal shall stand abated qua accused no. 3. The

accused nos. 1 & 2 were impleaded by virtue of

Section 114 of the Indian Penal Code. The

controversy in question is thus reduced and limited to

the roles of accused nos. 1 & 2.

8. It is not in dispute that, the incident occurred in

Rathodvaas of Pariaj village at 1.30 pm but, the

complaint came to be lodged only at 04.45 pm. It is

also not in dispute that, as per the post mortem

report deceased Aiyub, before reaching the hospital,

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had succumbed to injuries sustained by him on his

head. There were no other injury marks on any other

parts of his body. The competent court, after hearing

the deposition of witnesses and considering the

evidence on record has analysed three versions given

during the course of trial by the witnesses of the

incident in question. The same are as under:

(a) The complainant and his brother i.e. P.W.

Nos. 1 & 2 deposed that, a year ago, the

deceased had kidnapped the accused's daughter

and therefore, in retaliation of the same, the

incident in question took place.

(b) As per the deposition of Iqbal at Exh. 20, the

accused no. 3 had asked Aiyub to return his

daughter Afsana's letters which Aiyub refused

which resulted in a scuffle. P.W. 6 -Dawood

Isma, who deposed below Exh. 27, supporting

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the say of Iqbal stated that, accused no. 3 asked

Aiyub to return the letters as Afsana's marriage

was to be solemnised with someone else.

(c) As per the defence's version, the accused's

sister was going to the well to wash clothes. At

that time, Aiyub made fun of her by saying "Buri

najar wale, tera muh kala". Accused no. 3 who

was nearby had scolded the accused which

resulted in a fight.

9. The learned Sessions Court has analysed each

version by juxtaposing the same with the complaint

filed by the accused, which is produced on record

below Exh. 50 during the deposition of the

Investigating Officer at Exh. 42 and also with the

depositions of other witnesses. In the aforesaid set of

facts, it emerges that, the learned Sessions Court has

considered the deposition of Iqbal at Exh. 20 and

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Dawood at Exh. 27 as eye witnesses. However, the

same contradict the narration in the complaint as

discussed in paragraph no. 4 of the impugned

judgement. The learned Sessions Court had not

believed the version of the aforesaid witnesses. The

findings of facts arrived at by the competent court,

after such analysis, are as under:

(i) The fact that the incident occurred at 1.30

pm is not in dispute. The incident occurred at

Pariaj village and the accused was shifted to

Bharuch civil hospital. The constable informs the

incident at 2.30 pm notifying the vardhi. The

complaint is lodged at 4.45 pm i.e. after three

hours. The witnesses do not give any reasonable

explanation before the police for the delay.

(ii) The witnesses are related to the deceased.

The prosecution witness no. 1 - complainant and

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the prosecution witness no. 2 - Ismail Moosa

have not supported the depositions given by P.W.

3 - Iqbal, Exh. 20 and P.W. 6 - Dawood, Exh. 27.

The brother of Ismail has remained silent about

inflicting three blows having been inflicted upon

him.

(iii) The complainant's deposition is not believed

by the learned Sessions Court considering the

fact that, the complainant in the cross

examination states that his house is 500 metres

away from the place of incidence. He is woken

up by Mubarak while he was asleep. The

complainant further asks him to inform P.W. 2

and leaves for the place of incident. The

competent court arrives at a finding of fact that,

one minute may be taken by Mubarak to reach

the house of complainant and further three to

four minutes may be taken by the complainant to

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reach the place of incident.

(iv) The doctor's certificate below Exh. 56 states

that it is a simple injury. The post mortem report

states that, no injuries were found on the body of

deceased Aiyub except, one on the head. The

eye witnesses below Exs. 20 & 27 deposed that,

the death had occurred due to giving of blow by

the accused. The competent court does not

believe that, the incident continued till the

complainant reached the said place. The

accused also being injured emerges from the

record. The incident may have occurred

contrary to what is stated by the complainant,

and the version of the complainant is doubtful

and not believable.

is contrary to his police statement and the court,

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wherein, he has stressed that his mama was at

home and the incident in question took place

outside his house. The depositions of P.Ws. No.

1 & 2 are also not believed by the competent

court.

(vi) So far as the muddamal weapon is

concerned, there is no evidence coming forth on

record as to who used the muddamal stick which

would fortify our view in absence of any evidence

on record.

(vii) The muddamal stick has no blood stains. In

the absence of blood on the stick, the same

cannot be said to be substantive evidence.

(viii)Panch witnesses no. 24 & 25 having turned

hostile, the panchnama is also not believed by

the competent court.

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9.1 The aforesaid findings of facts arrived at by the

competent court, in our opinion, require no

interference.

10. At this stage, it is appropriate to refer to the

ratio laid down by the Hon'ble Apex Court in case of

Sanjeev v. State of Himachal Pradesh reported in

2022 (6) SCC 294. Para 7 of the judgement is

reproduced herein below:

"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

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extremely slow in interfering with the appeal against acquittal (See Sambasivan and others v. State of Kerala)."

11. 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

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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.

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

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detained in connection with any other case."

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

appeals, the appellate court is not required to re-

write the 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."

12.1 Thus, in case the appellate court agrees

with the reasons and the opinion given by the

competent court below, then the discussion of

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evidence at length is not necessary.

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

evaluated the evidence on the touchstone of recent

decisions of the Hon'ble Apex Court. In light of the

position of law as referred above and in the facts of

the present case, no case is made out to interfere