Gujarat High Court
State Of Gujarat vs Mahobbatbhai @ Mobo S/O Dhirubhai ... on 8 May, 2025
Author: Samir J. Dave
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/82/2013 JUDGMENT DATED: 08/05/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 82 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
==========================================================
Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
MAHOBBATBHAI @ MOBO S/O DHIRUBHAI SURSANGBHAI CHU.KOLI
ZEZAR
==========================================================
Appearance:
MS MONALI H. BHATT, ADDL. PUBLIC PROSECUTOR for the Appellant(s)
No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 08/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE)
1. Challenge in this appeal filed under section 378(1)(3) of
the Cr.P.C. is to the judgment and order dated 11.09.2012
passed by the learned Addl. Sessions Judge, Limbdi in Sessions
Case No.47 of 2012 (Old Sessions Case No.86 of 2010)
NEUTRAL CITATION
R/CR.A/82/2013 JUDGMENT DATED: 08/05/2025
undefined
whereby, the respondent herein, original accused, has been
acquitted of the charge under sections 302, 457, 380, 460 and
201 of IPC.
2. The facts in brief of the prosecution case are as under;
Chamanbhai Narsinhbhai Rathod, the original
complainant, resident of Wadhvan and native of Village:
Kalmad, Taluka: Muli, lodged the impugned FIR (Exhibit-49)
before Muli Police Station inter alia alleging that he has a
house in Village: Kalmad and besides the said house, a temple
is situated and adjacent to the temple, a two-storied building
is situated. In the room situated on the top of the said
building, swami Hajuranand Guru Jagdishanand, aged 80
years, was residing and it is alleged that said swami
Hajuranand used to lend money on interest. It is alleged that
on 26.06.2010, at around 06:31 hrs., while the complainant
was in his house at Wadhwan, he noticed a missed call of
swami Hajuranand on his mobile phone and thereafter, at
around 09:31 hrs., he made a return call to swami Hajuranand
but, the mobile phone was found to be switched-off. The
complainant, therefore, went to Village: Kalmad from
Wadhwan and he came to know that swami Hajuranand had
been murdered. Hence, the impugned FIR came to be
registered for the offence under sections 302, 457, 380, 460
and 201 IPC. As sufficient evidence was found against the
NEUTRAL CITATION
R/CR.A/82/2013 JUDGMENT DATED: 08/05/2025
undefined
respondent-accused, he came to be arrested and at the end of
investigation, charge-sheet was filed against him. As the
respondent-accused pleaded not guilty to the charge, trial was
initiated.
2.1 During the trial, the prosecution had examined 41
witnesses and had relied upon several documentary evidence.
However, at the end of trial, the Court below acquitted the
respondent-accused of all the charges by passing the impugned
judgment and order. Against the impugned judgment and order
of acquittal, the appellant-State has preferred the captioned
appeal.
3. Learned APP Ms. Bhatt submitted that the Court below
has not appreciated the evidence on record in its proper
perspective. The oral evidence of the complainant, Chamanbhai
Narsihbhai Rathod, who has been examined as PW-19 Exhibit-
48, proves the involvement of the respondent-accused and the
motive behind the crime. It was submitted that there is
sufficient evidence on record to suggest that an altercation had
taken place between the deceased and the respondent-accused
immediately before the murder. However, the Court below has
ignored the evidence of the complainant on the ground that
his evidence does not get any support or corroboration from
the testimony of any other witness/s. It was submitted that the
NEUTRAL CITATION
R/CR.A/82/2013 JUDGMENT DATED: 08/05/2025
undefined
reasoning adopted by the Court below for disbelieving the
evidence of the complainant is erroneous and without any
basis and hence, the impugned judgment and order of acquittal
deserves to be quashed and set aside.
3.1 Learned APP further submitted that the deposition of Dr.
Kumar Aasit Ramapatkumar (PW-35) proves that the deceased
died as a result of the injuries sustained by him. It is
contended that when the evidence on record suggests that an
altercation had taken place between the deceased and the
respondent-accused immediately prior to his death and blood
belonging to the deceased is found on the muddamal sickle
(dharia), the Court below ought not to have acquitted the
respondent-accused of the charges. It was, accordingly, urged
to allow the appeal by setting aside the impugned judgment
and order of acquittal.
4. Though served, none appears on behalf of the
respondent-accused.
5. Essentially, the prosecution case is based upon
circumstantial evidence as there are no eye-witness to the
alleged incident. It is the case of the prosecution that the
deceased was into the activity of lending money on interest.
Through the oral evidence of Lakhabhai Popatbhai Chauhan
(PW-28) and Dhirubhai Mansangbhai (PW-29), the prosecution
NEUTRAL CITATION
R/CR.A/82/2013 JUDGMENT DATED: 08/05/2025
undefined
has been able to establish that the deceased was into the
activity of lending money on interest. However, the
prosecution has not produced any material on record to
suggest that the respondent-accused had borrowed any amount
from the respondent-accused on interest basis.
6. It appears that the respondent-accused has been arraigned
mainly on the ground that the mobile phone belonging to the
deceased was found from his possession and that at the time
when it was recovered from the respondent-accused, it also
had the SIM Card belonging to the deceased. Reliance is also
placed upon the discovery panchnama (Exhibit-46) by which
the muddamal article no.14 (dharia) and the clothes worn by
the respondent-accused at the relevant point of time were
recovered. The panch witnesses have supported the discovery
panchnama (Exhibit-46). However, no blood stains were found
on the clothes of the respondent-accused but, blood stains
belonging to the blood group of the deceased have been found
on the muddamal article no.14 (dharia). Except the presence of
blood stains belonging to the blood group of the deceased on
the muddamal weapon (dharia) and the recovery of mobile
phone belonging of the deceased from the respondent-accused,
there is no other cogent evidence to connect the respondent-
accused with the alleged crime.
NEUTRAL CITATION
R/CR.A/82/2013 JUDGMENT DATED: 08/05/2025
undefined
7. Indisputably, the case is based upon circumstantial
evidence and in such cases, the prosecution has to establish
the motive behind the crime. As discussed herein-above, the
prosecution has not produced any evidence on record to
suggest that the deceased had lent any amount to the
respondent-accused on interest and the demand thereof by the
deceased might have triggered an altercation between the
parties resulting into the fateful incident. Further, there is
nothing on record to suggest that the respondent-accused was
last seen together with the deceased. Under the circumstances,
the Court below was completely justified in acquitting the
respondent-accused of all the charges.
8. The principles which would govern and regulate the
hearing of appeal by this Court against an order of acquittal
passed by the trial Court have been very succinctly explained
by the Apex Court in a catena of decisions. In the case of
Chandrappa Vs. State of Karnataka, (2007) 4 S.C.C. 415, the
Apex Court has laid down the following principles;
"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.
NEUTRAL CITATION
R/CR.A/82/2013 JUDGMENT DATED: 08/05/2025
undefined
[2] The Code of Criminal Procedure, 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 curtain extensive powers of an appellate
Court in an appeal against acquittal. Such
phraseologies are more in the nature of "flourishes
of language" to emphasis 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."
NEUTRAL CITATION
R/CR.A/82/2013 JUDGMENT DATED: 08/05/2025
undefined
8.1 Thus, it is a settled principle that while exercising
appellate power, even 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.
9. In the case of State of Goa V. Sanjay Thakran & Anr.,
(2007) 3 S.C.C. 75, the Apex Court reiterated the powers of
the High Court in such cases. In Paragraph-16 of the said
decision, the Court observed as under;
"16. From the aforesaid decisions, it is apparent that
while exercising the powers in appeal against the order
of acquittal the Court of appeal would not ordinarily
interfere with the order of acquittal unless the approach
of the lower Court is vitiated by some manifest illegality
and the conclusion arrived at would not be arrived at by
any reasonable person and, therefore, the decision is to
be characterized as perverse. Merely because two views
are possible, the Court of appeal would not take the view
which would upset the judgment delivered by the Court
below. However, the appellate Court has a power to
review the evidence if it is of the view that the
conclusion arrived at by the Court below is perverse and
the Court has committed a manifest error of law and
ignored the material evidence on record. A duty is cast
upon the appellate Court, in such circumstances, to re-
appreciate the evidence to arrive to a just decision on the
basis of material placed on record to find out whether
any of the accused is connected with the commission of
the crime he is charged with."
NEUTRAL CITATION
R/CR.A/82/2013 JUDGMENT DATED: 08/05/2025
undefined
10. Similar principle has been laid down by the Apex Court
in the cases of State of Uttar Pradesh Vs. Ram Veer Singh &
Ors, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by
LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589.
Thus, the powers, which this Court may exercise against an
order of acquittal, are well settled.
11. In view of the above discussion and keeping in mind the
law governing appeals arising out of a judgment and order of
acquittal, this Court finds no substance in the present appeal.
We are in complete agreement with the reasoning given by
and the findings arrived at by the learned Sessions Court in
the impugned judgment and order and hence, find no reasons
to entertain the appeal.
12. In the result, the appeal is dismissed. Bail bonds stand
cancelled.
(A.Y. KOGJE, J)
(SAMIR J. DAVE, J)
PRAVIN KARUNAN
