Gujarat High Court
State Of Gujarat vs Jayantibhai Shankarbhai Vaghari on 9 May, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 54 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
JAYANTIBHAI SHANKARBHAI VAGHARI & ORS.
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Appearance:
MR LB DABHI, APP for the Appellant(s) No. 1
MR. MR BUKHARI(6919) for the Opponent(s)/Respondent(s) No. 1,3,4
UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 09/05/2025
ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal is preferred by the appellant-State
under Section 378 of the Code of Criminal Procedure, 1973 against
judgment and order of acquittal dated 16.10.2012 passed by
Additional Sessions Judge, Bharuch in Sessions Case No.83 of
2011. By the impugned judgment and order, the Sessions Court
acquitted the respondents-accused for offence under sections 307,
504, 506(2) read with Section 114 of the Indian Penal Code.
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2. It is required to be noted that during pendency of the
appeal, respondent No.2-Shankarbhai Karshanbhai Vaghari has
expired. Therefore, the appeal, insofar as respondent-accused
No.2 is concerned, stands abated.
3. The case pertains to an incident which occurred on
22.05.2010, wherein the complainant-Nagjibhai Ramabhai was
sitting outside his house at 09;00 pm and his father was sleeping
on cot. At that time, respondent-accused No.4-Dalsukhbhai
Rameshbhai Vaghari came with axe in his hand and confronted
father of the complainant why are you asking me to stop playing
songs in mobile and delivered axe blow on the stomach. At that
time, respondent-accused No.3-Keshavbhai Vajabhai Vaghari came
with sickle, respondent-accused No.2-Shahkarbhai Karshanbhai
Vaghari (deceased) came with knife and respondent-accused No.1-
Jayantibhai Shankarbhai Vaghari came with axe and Keshavbhai
gave sickle blow on left side of neck, due to which blood started
flowing out. When accused No.2-Shankarbhai went to gave knife
blow to the father of the complainant, he held the same with his
hand, due to which his father received injuries on the palm and
Jayantibhai Shankarbhai gave axe blow on the back side of the
body and hurled abuses and told that today you are saved,
henceforth we would kill you.
4. Learned Advocate for the respondents-accused has filed
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sick note. The appeal being that of the year 2013, is taken up for
final hearing with the assistance of learned APP.
5. Learned Additional Public Prosecutor for the appellant-
State submitted that it is a case where the complainant himself is
an injured eyewitness and has attributed clear cut role to each of
the accused persons. It is submitted that presence of the injured
eyewitness at the place of offence was natural and therefore,
highest evidentiary value is required to be given to his version.
5.1 It is submitted that medical evidence, coupled with oral
evidence of the Medical Officer clearly corroborates the version of
the complainant. The Medical Officer has clearly deposed that the
injuries sustained could be caused by the muddmal weapons and
are sufficient to cause death.
5.2 It is submitted that in the present case, muddamal
weapons were recovered at the instance of the respondents-
accused under a panchnama and therefore, it is a clinching
evidence to involve the respondents-accused in commission of
offence.
5.3 It is submitted that PW No.1-Yunusbhai Ismailbhai
Chokiwala, Exh.9, PW No.2-Dr.Anilkumar Bhagvatprasad, Exh.12,
PW No.9-Nagjibhai Ramabhai Vaghari, Exh.34, PW No.10-Raiben
Ramabhai Vaghari, Exj.37, PW No.11-Naginbhai Ramabhai
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Vaghari, Exh.39, PW No.12-Bhagwanbhai Mohanbhai, Exh.40, PW
No.13-Kokilaben Naginbhai Vaghari, Exh.42 and PW No.14-
Chandubha Manubhai Dodiya, Exh.43 have supported the case of
prosecution. Still, however, the Sessions Court has not properly
appreciated their evidence.
5.4 It is submitted that looking to gravity and seriousness
of offence, evidence of single witness was sufficient to convict the
respondents-accused. In the instant case, the prosecution has
examined number of witnesses to prove the case, still, however, the
Sessions Court has not properly appreciated their evidence.
6. Having heard learned APP for the appellant-State and
having perused documents on record, it appears that to prove the
case against the respondents-accused, the prosecution relied upon
following oral evidence:-
Sr. Name of the witness Exh.
No. No.
Vaghari-complainant
2 Deposition of PW No.10-Raiben Ramabhai Vaghari 37
3 Deposition of PW No.11-Naginbhai Ramabhai 39
Vaghari
4 Deposition of PW No.13-Kokilaben Naginbhai 42
Vaghari
5 Deposition of PW No.3-Gulabkha Fazalkha Pathan 20
6 Deposition of PW No.5-Dinesbhai Natvarbhai 29
Gaganvanshi
7 Deposition of PW No.4-Gulambhai Ahemadbhai 25
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Malek
8 Deposition of PW No.8-Yusufbhai Murtaza Gori 33
Patanvadiya
10 Deposition of PW No.7-Arvindbhai Shivabhai 32
Patanvadiya
Bhagvatprasad
12 Deposition of PW No.1-Yunusbhhai Ismailbhai 9
Chokiwala
13 Deposition of PW No.12-Bhagwanbhai Mohanbhai 40
14 Deposition of PW No.14-Chandubha Manubha 43
Dodiya
6.1 The prosecution also relied upon mainly following
documentary evidence:-
Sr. Particular Exh.
No. No.
3 Inquest Panchnama of accused-Dalsukhbhai and 24
panchnama of recovery of weapons
4 Inquest Panchnama of accused-Shankarbhai and 26
Jayantibhai and panchnama of recovery of weapons
5 Inquest Panchnama of accused-Keshavbhai and 27
panchnama of recovery of weapons
6 Panchnama of recovery of muddamal weapons and 28
cloths from accused-Dalsukhbhai
11 Station diary of Jambusar Police Station of the date of 41
offence
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12 Report of investigation of forensic science 44
7. PW No.9-Nagjibhai Ramabhai Vaghari, Exh.34 is the
the complainant and injured eyewitness. In his deposition, he has
stated he was sitting outside his house at 09;00 pm and his father
was sleeping on cot. At that time, respondent-accused No.4-
Dalsukhbhai Rameshbhai Vaghari came with axe in his hand and
told father of the complainant why are you asking me to stop
playing songs in mobile and gave axe blow on the stomach. At that
time, respondent-accused No.3-Keshavbhai Vajabhai Vaghari came
with sickle, respondent-accused No.2-Shahkarbhai Karshanbhai
Vaghari (deceased) came with knife and respondent-accused No.1-
Jayantibhai Shankarbhai Vaghari came with axe and Keshavbhai
gave sickle blow on left side of neck, due to which blood started
flowing out. When Shankarbhai went to give knife blow to the
father of the complainant, he held the same with his hand, due to
which his father received injuries on the palm and Jayantibhai
Shankarbhai gave axe blow on the back side of the body and hurled
abuses and told that today you are saved, henceforth we would kill
you. However, in his cross-examination, he has stated that he and
his mother were inside the house and other persons were sleeping
on cots; that before the incident, there was quarrel for about 10
minutes with accused No.4-Dalsukh, however, there was no
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shouting. At that time, persons who were present nearby, gathered
and after his father was given axe blow, he came out of his house;
that he did not snatch away the weapon, but other persons had
snatched away the weapon. At that time, around 7 persons were
present and PW No.11-Naginbhai Ramabhai (brother of the
complainant) snatched away the axe and gave it to police on next
day. He has also deposed that injuries were received by sickle,
knife and axe and all these weapons were snatched away by
Naginbhai and at that time, all weapons were having blood stains.
However, Naginbhai cleaned all the weapons by cloths and handed
it over to the police. This witness has presented an exaggerated
version and tried to involve as many names in the offence. So there
is total contradiction and a story is sought to be created by the
complainant, who does not even appear to be an eyewitness.
8. Moreover, the complainant has deposed that there
were around 7 persons present at the time of incident. However,
none of these persons are examined by the prosecution.
9. PW No.10-Raiben Ramabhai Vaghari, Exh.37 is the
mother of the complainant. In her deposition, she has clearly
stated that at the time of incident, he and his complainant-son were
inside the house. So version of the complainant that he was
present and was an eyewitness appears to be doubtful. Moreover,
there is also contradiction in the injuries received. The
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complainant has stated that injuries were received on the left side
of neck, whereas this witness has stated that the injuries were
received on the shoulder. The complainant has stated that axe
blow was received on the back side, whereas this witness has
stated that axe blow was received on the right side of stomach.
Therefore, it appears to the Court that there is material
contradiction in the versions of these two witnesses.
10. PW No.11-Naginbhai Ramabhai Vaghari, Exh.39 is the
brother of the complainant. He has deposed that at the time of
incident, he, his mother and his brother-complainant were inside
the house and his father was sleeping outside the house on a cot.
Thus, it becomes doubtful whether either of three, viz. the witness
himself, his mother or his brother-complainant were eyewitnesses
to the incident. Moreover, this witness has stated that at the time
when he handed over muddamal weapons, i.e. axe and sickle to the
police, no panchas were present and that the muddamal weapons
were recovered by him from the house of accused No.4-Dalsukh.
So, the story of the complainant that this witness snatched away
the weapons from accused persons at the time of incident becomes
doubtful.
11. PW No.13-Kokilaben Naginbhai Vaghari, Exh.42 is the
sister-in-law of the complainant. She has stated that at the time of
incident, she was cooking in the house; that at that time, her
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mother-in-law and brother-in-law (complainant) were outside the
house sitting on 'otta'. At that time, upon hearing shouts, she came
out of the house and saw that accused No.4-Dalsukh was having
axe in his hand and was giving blows to her father-in-law on the
stomach, accused No.1-Jayanti Shankar was having axe in his hand
and gave axe blow on the stomach of her father-in-law, accused
No.3-Keshu Vaja was having stick in his hand and gave blow on the
neck and accused No.2-Shankarbhai Karshanbhai was having knife
in his hand and gave blow on the palm of her father-in-law. Thus,
from the version of this witness, new weapon, i.e. stick is coming
out. However, when she was shown muddamal weapons, she has
attributed sickle to accused No.3-Keshu Vaja. So comparing
version of this witness to the versions of other witnesses, she does
not appear to be eyewitness to the incident and there are material
contradictions in her version.
12. PW No.2-Dr.Anilkumar Bhagvatprasad, Exh.12 was the
Medical Officer at Jambusar Primary Health Centre. At that time,
injured Ramabhai Jethabhai Vaghari was brought to him. In the
history, injured had stated that he received axe and sickle blows at
around 09;00 pm. However, before the Doctor, the injured has not
stated names of any accused persons. After initial treatment, the
injured was referred to Sayaji Hospital, Vadodara. However, the
prosecution has not examined any Medical Officer/ Doctor from
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Sayaji Hospital.
13. It also appears that during the course of investigation,
blood sample of the injured was not sent for testing. The blood
found on the muddamal weapons and on the cloths of accused was
"B" group. So it cannot be certainly stated that the injured was
having blood of "B" group.
14. There is also a doubt about recovery of muddamal
weapons. The complainant has stated that his brother-Naginbhai
had snatched away muddamal weapons from accused persons,
whereas recovery muddamal weapons is at the instance of all
accused persons. It is also coming out from the deposition of IO
that on 23.05.2010, respondent-accused No.3-Keshavbhai wanted
to produce something before the IO. Therefore, the IO called
panchas and recovered sickle fitted in the iron pipe and drawn
panchnama Exh.27. On the same day, respondent-accused No.2-
Shankarbhai and respondent-accused No.1-Jayantibhai wanted to
produce something before the IO and therefore, IO called panchas
and recovered knife and axe respectively from the said accused
persons by executing panchnama Exh.26. Similarly, on 24.05.2010,
respondent-accused No.4-Dalsukhbhai wanted to produce
something before the IO and therefore, IO called panchas and
recovered axe from behind one house near pond in Magnad village
by executing panchnama Exh.28. Therefore, recovery of muddamal
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weapons also under cloud.
15. Moreover, panchas of recovery panchnamas Exhs.26,
27 and 28 as aforesaid have stated that they have only signed on
the panchnama and other than that they know nothing. Therefore,
they are declared hostile.
16. In view of the aforesaid evidence coming on record,
the Court is of the view that the prosecution has failed to establish
the case against the respondent-accused beyond reasonable doubt.
The Court may also draw strength from the decision of the Apex
Court in case of Rajesh Prasad Vs. State of Bihar & Anr.
reported in (2022) 3 SCC 471, wherein the Apex Court has
examined the case law with regard to the power of the High Court
to overturned the decision of the Sessions Court where an another
view is possible. Examining the case including that of Chandrappa
& Ors. vs. State of Karnataka reported in (2007) 4 SCC 415,
the Apex Court has culled out the general principles regarding the
powers of the Appellate Court while dealing with the appeal
against the order of acquittal. The Apex Court has held that the
appellate court has full power to review, re-appreciate and
reconsider the evidence upon which the order of acquittal is
founded. However, the appellate court has to keep in mind that in
case of an acquittal, there is a double presumption in favour of the
accused. Firstly, the presumption of innocence is available to him
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under the fundamental principle of criminal jurisprudence, and
thereafter, upon securing of acquittal, the presumption is further
reinforced, reaffirmed and strengthened, and therefore, whenever
there are two reasonable conclusions are possible on the basis of
the evidence on record, ordinarily, the Apex Court would not
disturb the findings of acquittal recorded by the Trial court.
17. The Court has also perused judgment and order of the
Sessions Court and finds that cogent and convincing reasons are
assigned by the Sessions Court while acquitting the respondents-
accused.
18. In view of the aforesaid discussion, the Court finds no
reason to interfere with the impugned judgment and order of
acquittal. The appeal is therefore dismissed. Bail bond stands
discharged. Records and Proceedings be sent back to the
concerned Sessions Court.
Sd/-
(A.Y. KOGJE, J)
Sd/-
(SAMIR J. DAVE,J)
SHITOLE
