Gujarat High Court
State Of Gujarat vs Lakhmanji Bhikhaji Thakor on 10 November, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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R/CR.A/847/2001 JUDGMENT DATED: 10/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 847 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
LAKHMANJI BHIKHAJI THAKOR & ANR.
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Appearance:
MR JK SHAH, APP for the Appellant(s) No. 1
MR PRABHAKAR UPADYAY(1060) for the Opponent(s)/Respondent(s) No.
1,2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 10/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Here is the Appeal by the State against the judgment and order of
acquittal.
2. Being dissatisfied by the judgment and order passed by the
learned Sessions Judge, Banaskantha, Palanpur, dated 30.07.2001,
acquitting the respondent from the offence under Sections 302, 504,
read with Sections 34 and 114 of the IPC and Section 135 of the
Bombay Police Act, the State has preferred instant appeal under
Section 378 of the Cr.P.C.
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3. This Court has heard Mr. J. K. Shah, learned Additional Public
Prosecutor, learned Counsel Mr.Prabhakar Upadhyaya for the
respective parties.
4. Brief facts giving rise to file the present Appeal are that, the
respondents accused were tried and prosecuted for the offence of
murder. The incident took place on 02.03.1998 at about 09:00 p.m. at
Village Navi Sendhani. The deceased Somaji Jitaji and the respondents
accused being cousin brother, had a dispute about the fetching water
from the common well. At the time of incident, the deceased was came
to a temple situated in the farm itself for prayer. The respondents
accused keeping the grudge with respect to common well, assaulted the
deceased with stick and according to the prosecution case, the accused
Laxmanji gave a stick blow at the right hand and stomach on the body
of the deceased, whereas the accused Sendhaji gave a stick blow on the
right foot of the leg. In the said scuffle, due to hue and cry, the brother
of the deceased came to his rescue and the deceased was taken to his
home. There was no visible serious injuries on the body of the
deceased and therefore, he was not taken to the hospital immediately,
but in the mid-night, the deceased complained of pain of stomach and
felt dizziness, as a result, he was taken to Village Vadgam and City
Palanpur for treatment and then after, he was referred to higher center
at Ahmedabad. The deceased was operated in the stomach injuries as
he sustained injuries over small intestine and lever, as a result, the
infection was escalated in the stomach which resulted into septic
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peritonitis. The deceased died after 8 days of the incident. The
deceased himself lodged an FIR inter alia alleging that he was beaten
by respondents accused because of long dispute of fetching water from
common well. On the basis of FIR of the deceased, the offence
punishable under Section 323, 504, 114(B) of the IPC, being registered
with Vadgam Police Station, and the investigation being handed over
Karshan Jivabhai who had took visit the place of incident and drew the
panchnama of place of incident. Meanwhile, deceased died after a
week, as a result, the offence of murder punishable under Section 302
being registered and accordingly, accused were arrested and upon
completion of the investigation, the I.O. filed a chargesheet before the
jurisdictional Magistrate, Bhiloda.
5. Since the case was exclusively triable by the Sessions Court, the
Court committed the case to the Sessions Court, who has been
culminated into Sessions Case No. 84 of 1998.
6. The learned Additional Sessions Judge, Himmatnagar,
Sabarkantha framed charge under the aforesaid sections against the
accused to which, they pleaded not guilty and claimed trial.
7. In order to prove the charge, the prosecution has examined
following material witnesses:
PW 1 - Exh.11 Ghemarji Jeetaji
PW 2 - Exh.13 Ambaben Somaji
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PW 3 - Exh.14 Godadji Jeetaji
PW 4 - Exh.15 Dalaji Ramsangji
PW 5 - Exh.18 Suraji Savaji Thakor
PW 6 - Exh.20 Kanaji Kaluji
PW 7 - Exh.22 Dr. Chunnilal Jujram Kumavat
PW 8 - Exh.27 Dr. Piyush Amrutlal Modi
PW 9 - Exh.29 Danabhai Panabhai
PW 10 - Exh.32 Prabhabhai Sangabhai Rabari
PW 11 - Exh.34 Karsanbhai Jeevabhai Poko
PW 12 - Exh.35 Gulabsinh Amarsinh Parmar
PW 13 - Exh.40 Ranabhai Jorabhai
PW 14 - Exh.41 Chandukant Bapalal Darji
PW 15 - Exh.54 Dr. Pankajbhai Ramanlal Modi
8. During the course of the trial, the prosecution has proved and
produced documents:
Exh.30 Complaint
Exh.31 List
Exh.17 Panchnama of place of offence
Exh.19 Panchnama of weapons recovered
Exh.36 Copy of station diary entry no. 3/98
Exh.37 Inquest Panchnama
Exh.35 Medical certificate of Palanpur civil hospital
Exh.42 PM Note
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Exh.34 Report of forwarding of papers
Exh.39 Yadi for inquest panchnama and certificate of cause of death
Exh.57 Map of place of offence
Exh.13 Copy of public notice
Exh.24 X-ray plate no.1553
Exh.28 Injury certificate of deceased
9. On conclusion of oral evidence, the trial Court recorded further
statements of the accused as provided under Section 313 of the Code,
wherein, they claimed their innocence.
10. The learned Sessions Judge after appreciating and examining the
oral as well as documentary evidence acquitted the accused herein for
the offences with which they were charged, on the ground that, the
witnesses who are claiming to be seen the incident have actually not
present at the place of the incident and somehow due to prior dispute
with the accused party, they are telling the lie and their evidence is full
of contradiction, omission, improvement and exaggeration. So far as
dying declaration in the form of FIR is concerned, the learned Trial
Court did not believe the statement of the deceased because according
to say of the Trial Court, the FIR being lodged by the brother of the
deceased and entire facts of the FIR seems to be concocted and being
disclosed due to past dispute between the parties.
11. In view of the aforesaid facts and circumstances, this acquittal
appeal has been preferred by the State.
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12. Oral Evidence adduced by the prosecution:
12.1 Dhemerji Jitaji (PW:1):
This witness is the brother of deceased Somaji and according to
his version, his brother Somaji was assaulted by the respondents
accused and after hearing the shouting of his brother, he went to
the place of occurrence and after seeing him, the accused ran
away from the place.
In the cross examination, witness has admitted the facts that he
was at home when the fight arose between his brother and
accused.
12.2 Ambaben Somaji (PW:2):
This witness being a wife of the deceased has stated in her
examination that the accused had assaulted her husband and said
facts being came to her knowledge from her brother in law
Dhemerji Jitaji.
12.3 Godadji Jitaji (PW:3):
This witness is the brother of the deceased and in the chief
examination, he has stated that his brother Dhemerji told him
about the incident and he was not present when his brother was
assaulted by the accused.
12.4 Dr.Chunilal Kumavat (PW:7):
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This witness was on duty with Palanpur General Hospital when
the deceased Somaji brought before him by his brother. The
deceased was examined by him on 03.03.1998 and upon his
examination, the witness found the septic wound on the right
arm and injury of abrasion on the right arm on the body of
Somaji. The witness has produced injury certificate at Exh.25.
12.5 Dr.Piyush Amrutlal Modi (PW:8):
The witness was on duty with the Mehamadpur CHC at
Banaskantha and without police yadi, Somaji was brought before
him for examination and during the examination, he found the
injury at the right arm of Somaji and the injury in the nature of
CLW on the left side of the chest.
12.6 Danabhai Pannabhai (PW:9):
This witness being a PSO attached with Vadgam Police Station
recorded the statement of Somaji Jitaji and the same being
treated as FIR, produced at Exh.30.
12.7 Dr.Chandrakant Babalal Darji (PW:14):
This witness being a Medical Officer of the Civil Hospital, had
conducted a post-morterm of the body of deceased Somaji. The
deceased was died on 08.03.1998 and post-morterm was
conducted on 09.03.1998. During the post-morterm, the doctor
noticed following external injuries on the body of the deceased:
(a) Surgical wound at the right side of the abdomen (9 cm.
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Long);
(b) Abrasion (2 cm. X 1 cm.) on the right hand;
(c) Contusion at the right leg below the knee;
(d) Contusion at the right foot;
The doctor, during the post-morterm, noticed that in this
stomach, there was septic peritonitis.
According to the opinion of the doctor, the cause of death was
septic, shock due to complication arise from the injury sustained.
12.8 Dr.Pankaj Modi (PW:15):
This witness being an associate profession, attached with Civil
Hospital, Ahmedabad, has stated in his chief examination that on
04.03.1998, he was serving as a Surgeon in the unit of Dr.K.L.
Sheth, Civil Hospital, Ahmedabad. He has further stated that the
patient Somaji was brought before him and after examination
him, he found a whole in the intestine and to heal the injury, the
emergency operation performed by him. The doctor has further
stated that during the examination of Somaji, he found an
incision on the lever. The doctor has further stated that there was
a septic in the stomach. The witness has further stated that on
08.03.1998 at about 06:45, the patient succumbed to injury. The
doctor has opined that the injury found on the body of the
deceased would be possible by the stick and in-ordinary course
of nature.
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12.9 Gulabsingh Parmar (PW:12):
This witness being Investigating Officer of the case, has stated
on oath that, during the investigation, he recorded the statements
of the witnesses, sent the dead-body for post-morterm, seized the
weapons stick at the instance of accused, sent the seized articles
to the FSL for forensic analysis, arrested the accused and upon
completion of investigation, chargesheet came to be filed against
the accused for the offences as referred above.
13. Mr. J. K. Shah, learned APP in such circumstances, as referred
above, has submitted that while acquitting the respondent accused, the
trial Court has discarded and ignored the substantial evidence in the
form of dying declaration, and while discarding such evidence, no any
cogent and convincing reason, being assigned by the Court. Therefore,
it is submitted that the conclusion of acquittal recorded by the Trial
Court is contrary to the evidence on record and upon erroneous
understanding of law. Thus, it is prayed that the prosecution has
succeeded in proving the charge against the respondents accused and
the judgment and order of acquittal be set aside and accused may be
convicted and sentenced for the offence as referred above.
14. Mr.Prabhakar Upadhyaya, learned counsel appearing for the
respondents accused have submitted that the High Court in a case of
Appeal against the acquittal, can interfere only when there are
compelling substantial reasons for doing so and more particularly, the
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findings are without reasons and unreasonable and contrary to the
evidence. In the facts of the present case, the eyewitnesses who are
related and interested witnesses, deposed against the accused and there
are major contradictions and improvements found in their evidence.
The FIR at Exh.30 cannot be accepted in believe as dying declaration
because the incident of assault being arose on 02.03.1998 and FIR in
this regard came to be disclosed on 03.03.1998 at about 11:30 which
indicative of the facts that there was delay of 12 to 13 hours, for which
no any sufficient and acceptable explanation delay given by the
prosecution. It is admitted fact that there was long standing dispute
between the parties about getting water from the common well. The
witnesses are interested witnesses and their presence at the scene of
offence is not proved and having regard to the contents of the FIR, it is
evident that at the behest of witnesses, the FIR being registered by the
police and therefore, his statement of the deceased in the form of the
FIR cannot be said to be true, voluntary statement of the deceased and
the same cannot be relied and acted upon to convict the accused.
15. In such circumstances, referred to above, learned counsel
appearing for the respondents accused, has submitted that the Trial
Court while discarding the evidence of dying declaration and oral
testimonies of the witnesses have assigned cogent and sufficient
reasons while acquitting the accused and therefore, the judgment of
acquittal passed is well reasoned, legally sustainable and does not
suffer any infirmity warranting interference by this Court.
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16. Before proceeding to address the rival submissions, we would
like to place on record the scope of interference in an appeal against
the acquittal and when the same is justified. In exceptional cases,
where there are compelling circumstances and the judgment under
appeal is found to be perverse, the appellate court can interfere with the
judgment of acquittal. The Appellate Court should bare in mind the
presence of innocence of the accused and further that, the trial Court's
acquittal bolsters the presumption of his innocence. Interference in a
routine manner, where the other view of possible should be avoided,
unless there are reasons for interference.
17. In the present case the issue falls for our consideration as
to whether the trial Court was justified in acquitting the accused?
18. We have carefully examined the oral as well as
documentary evidence and perused the findings of acquittal
rendered by the Trial Court.
19. So far as testimonies of witnesses are concerned, it transpires
that the witnesses are not witness of the incident and after the incident,
they came to know about the injuries sustained by the deceased. Thus,
the Trial Court, after threadbare examination of the testimonies of
witnesses, has rightly disbelieved their evidence because on the aspect
of injuries, and involvement of the accused, we found major
contradiction and improvement in the evidence of the witnesses which
directly impact on their reliability and therefore, so far as direct
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evidence is concerned, there is no independent evidence on record to
prove that the accused have assaulted the deceased and inflicted a fatal
blow in his stomach.
20. Now let us examine the dying declaration in the form of FIR
Exh.30. There is no dispute about conscious state of mind of the
deceased when his statement was recorded by the police. It is settled
position of law that if the Court is satisfied that the dying declaration is
true and voluntary, it can be based conviction on it without
corroboration. However, before acting upon the dying declaration, the
Court has scrutinized the statement carefully and must ensure that the
declaration is not result of tutoring, prompting or imagination and
when the dying declaration is suspicious it should not be acted upon
without corroborative evidence. In the present case, after the incident,
the deceased and his family members were not interested to take
treatment and waited upto midnight. The witnesses who are brothers of
the deceased, have made contradictory statements on the aspect of
treatment and facts of the FIR, and that is why the Trial Court did not
rely upon the statement of the deceased in the form of FIR. Upon
careful examination of the oral testimony and the circumstances in
which the FIR came to be lodged, we are of the view that the FIR was
lodged at the behest of the brothers of the deceased and they were
instrumental in disclosing the entire story involving the respondents
accused. In such circumstances, the dying declaration does not inspire
confidence and cannot be relied upon to convict the accused.
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21. In light of what has been noted above, the reasons for not
accepting the testimony of victim by the trial Court, are based on the
evidence on record and view taken by the trial court is plausible and
possible view and we do not find any perversity in the findings of
acquittal so as to interfere. Thus, in our considered opinion, the Trial
Court was justified in acquitting the accused and we are in complete
agreement with the findings, ultimate conclusion and resultant order of
acquittal recorded by the Court below and hence finds no reason to
interfere with the same.
22. With the observations as aforesaid, the appeal is accordingly
dismissed. The Registry is directed to send back the R & P to the Trial
Court. Bail bonds are cancelled, if any, and surety is discharged.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
Rakesh
