Gujarat High Court
State Of Gujarat vs Keshavbhai Vastabhai Odedara on 9 May, 2025
Author: Samir J. Dave
Bench: A.Y. Kogje, Samir J. Dave
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R/CR.A/156/2013 JUDGMENT DATED: 09/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 156 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
No
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STATE OF GUJARAT
Versus
KESHAVBHAI VASTABHAI ODEDARA
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Appearance:
MS MONALI H. BHATT, ADDL. PUBLIC PROSECUTOR for the Appellant(s)
No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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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 SAMIR J. DAVE)
1. Challenge in this appeal is to the judgment and order
passed by the learned District & Sessions Judge, Porbandar in
Sessions Case No.53 of 2010 dated 18.10.2012 whereby, the
respondent, original accused, has been acquitted of the charge
under sections 302 of IPC and section 135 of the B.P. Act.
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2. The facts in brief of the prosecution case are as under;
On 03.06.2010, in the evening hours, while Vikram
Arshi, Ugabhai Popatbhai and the respondent-accused were
sitting near the Bus-stand of Village: Fatana, Taluka:
Bhagvadar, District: Porbandar, an altercation took place
between said Ugabhai Popatbhai and the respondent-accused.
Later, both the respondent-accused and Ugabhai Popatbhai
went towards Rabari Keda area of Village: Fatana, during
which time, the respondent-accused was seen carrying a sharp-
edged weapon like knife. At around 1800 hrs., the police
informed the complainant, Karabhai Popatbhai Khunti, who
happens to be the elder brother of deceased, that the dead
body of deceased is found lying in one of the fields of Village:
Fatana.
2.1 A complaint in connection with the above incident was
registered with Bhagvadar Police Station vide C.R.No. I-24 of
2010 for offence under section 302 of I.P.C. and section 135 of
the B.P. Act. As sufficient evidence was found against the
respondent-accused, he was 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. During the trial, the prosecution had examined 31
witnesses and had relied upon several documentary evidence.
At the end of trial, the Court below acquitted the respondent-
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accused of all the charge 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 oral as well as documentary evidence
on record in its proper perspective. It is submitted that a bare
perusal of the evidence of witness Gitaben Ugabhai Khunti
(PW-18), who is the wife of deceased, would suggest that she
is an eye-witness to the incident in question. From her
evidence, it is established that she had seen the respondent-
accused inflicting knife blow to the deceased. However, the
Court below has disbelieved her evidence citing erroneous
reasons. In view of the same, the impugned judgment and
order of acquittal deserves to be quashed and set aside.
3.1 Learned APP further submitted that the Court below has
committed serious error while appreciating the evidence of
Vikram Arshibhai (PW-11) and Karabhai Popatbhai Khunti (PW-
29) who is the original complainant in the case. It is
contended that the evidence of the above witnesses clearly
establish the involvement of the respondent-accused in the
crime. However, the Court below has ignored their evidence
on the ground that there are discrepancies / contradictions in
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their evidence; however, the discrepancies / contradictions, if
any, are minor in nature and are not on material aspects of
the case and hence, the Court below ought not to have
disbelieved their evidence and acquitted the respondent-accused
of the charge. It was, accordingly, urged to quash and set
aside the impugned judgment and order of acquittal.
4. Though served, none appears on behalf of the
respondent-accused.
5. In order to establish the factum of homicidal death, the
prosecution has examined Dr. Kailash Rameshbhai Trivedi (PW-
24), who has performed the autopsy of the deceased. From his
evidence and the documentary evidence in the form of Post
mortem Report (Exh.43), the prosecution has successfully
established that the deceased died a homicidal death.
6. The prosecution case mainly rests upon the oral evidence
of Gitaben Ugabhai Khunti (PW-18), the widow of deceased
and who is claimed to be an eye-witness to the alleged
incident. In her deposition, she has stated that she witnessed
the respondent-accused inflicting knife blow to her (deceased)
husband on the road and on noticing such incident, she
became unconscious. After regaining consciousness, she went to
the field of his brother to inform him about the said incident.
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Thus, the prosecution has projected this witness (PW-18) as an
eye-witness to the alleged incident. However, in her statement
before the police, which was recorded two to three days after
the alleged incident, the witness has stated that she has not
informed about the incident to anybody else till such time.
6.1 As stated herein above, in her deposition, the witness has
stated that she had gone to the field of his brother to inform
about the incident after she had regained consciousness.
However, it is a matter of record that the field of his brother
is situated at a distance of about four to five kms. from the
place where the alleged incident is said to have taken place.
Her evidence shows that her house is situated at a distance of
about four to five minutes from the place where the alleged
incident is said to have taken place. Thus, the testimony of
this witness of rushing to the field of his brother after gaining
consciousness, which is at a distance of about four to five kms.
from the place of incident and of remaining silent and not
informing anybody about the incident for a period of two to
three days until her statement came to be recorded by the
police, creates grave suspicion about the veracity of her
evidence and the very say that she is an eye-witness to the
alleged incident.
6.2 Under normal circumstance, the conduct would have been
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to rush to the victim for providing help, particularly, when the
victim happens to be the husband or to rush to the house
situated at about four to five minutes distance and to inform
the family member or police authority or friend / relative
about the incidentm rather than waiting for two to three days
to disclose about the incident in the police statement. This
conduct of the witness of waiting for two to three days to
disclose about the incident to the police and that too in her
police statement raises serious doubts about the genuineness of
her evidence, particularly, when the victim herein (deceased)
happens to her husband. Thus, the story put-forth by the
witness in her deposition of going to the field of her brother
after regaining consciousness is unbelievable and non-
trustworthy.
6.3 Apart from the above, it has come out from the cross-
examination of this witness (PW-18) that in her police
statement, she has not stated that while she was taking her
son to the Hospital, she had seen the respondent-accused
assaulting her husband on the road and that as a result of
such assault, her husband fell on the ground. She has admitted
in her cross-examination that when her brother informed her
that her husband has been murdered, she fell unconscious at
the field of her brother. Thus, according to the deposition of
this witness, if she was present near the place when the
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alleged incident took place, then it is highly unbelievable that
she fell unconscious in the field of his brother when he
informed her about the murder. This shows that the story
narrated by this witness is self-contradictory and that too on
material aspects of the case.
7. Insofar as the evidence of original complainant, Karabhai
Popatbhai Khunti (PW-29) is concerned, he is a hear-say
witness. As per the deposition of this witness, he came to
know about the incident from Vikram Arshi (PW-11). However,
said Vikram Arshi (PW-11) has not supported the said version
of the complainant and hence, the evidence of the complainant
is of no help to the prosecution.
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-
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appreciate and reconsider the evidence upon which
the order of acquittal is founded.
[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."
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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."
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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. Record and
proceedings be sent back to the trial Court concerned
forthwith.
(A.Y. KOGJE, J)
(SAMIR J. DAVE, J)
PRAVIN KARUNAN
