Sr. No. Particular Exh.
16. Investigating Officer, PI Shri Naginbhai Kalidas Barot 33
PW-16
NEUTRAL CITATION
R/CR.A/1133/2004 JUDGMENT DATED: 11/11/2025
undefined
~:: Documentary Evidence ::~
Sr. No. Particular Exh.
2. Report of Police Sub Inspector expressing offence 17
5. Panchnama of Knife collected from accused no. 1 and 35
6. Panchnama of clothes collected from the dead body 23
7. Panchnama of position of body of accused no. 1 and 2 20
8. Panchnama of position of body of accused no. 3 9
10. True copy of notification of Police Commissioner 42
11. Carbon copy of note of dispatched muddamal 36
4. Learned APP submitted that the impugned judgment and order of
acquittal requires interference. He placed strong reliance upon the
deposition of PW-12, Dr. Gautam Vrajlal Nayak (Exh. 28), who
conducted the post-mortem examination and opined that the deceased
had sustained multiple sharp incised wounds on the chest consistent with
knife injuries, and that the cause of death was shock due to haemorrhage
resulting from the said injuries. It was submitted that the post-mortem
report (Exh. 29) fully corroborates this version. It was further submitted
NEUTRAL CITATION
R/CR.A/1133/2004 JUDGMENT DATED: 11/11/2025
undefined
that PW-13 and PW-14, both police constables, had apprehended the
accused at the scene with the weapons used in the offence. The learned
APP thus contended that the trial Court committed an error in discarding
the prosecution evidence and acquitting the accused.
4.1 The learned APP further submitted that the evidence of the
Investigating Officer (Exh. 33) and the recovery panchnamas corroborate
the prosecution version, and therefore, the acquittal recorded by the trial
Court warrants interference.
5. Mr. Amit N. Patel, learned advocate appearing for the respondents
submitted that the impugned judgment is well reasoned and does not call
for interference. It was contended that the so-called eyewitnesses (PW-6
and PW-7) were unreliable as they turned hostile and admitted that they
had not witnessed the incident. The complainant (PW-6) merely stated
that he heard a commotion and denied recognizing the accused. Other
material witnesses (PW-7 and PW-15) also turned hostile, stating that
they had not seen the assault. Panch witnesses (PW-1 to PW-5, PW-9,
PW-10) likewise turned hostile and did not support the prosecution in
respect of the recovery or scene panchnamas. It was further argued that
the conduct of PW-13 and PW-14 was unnatural and improbable.
Despite claiming to have witnessed the incident at about 23:30 hours on
13.04.2003, they did not rush the injured to the hospital, nor did they
lodge an immediate complaint or record a dying declaration. Instead, they
allegedly detained the accused till 06:00 hours without following any
procedural requirements. No independent witnesses from the tea stall or
hospital were examined. The FSL reports (Exh. 39 to 41), though
indicating blood on the weapons, were inconclusive due to absence of
chain of custody. In such circumstances, it was submitted that the
acquittal recorded by the trial Court was just and proper.
NEUTRAL CITATION
R/CR.A/1133/2004 JUDGMENT DATED: 11/11/2025
undefined
6. Having heard the learned advocates for both sides and having
perused the depositions, documentary evidence, and the judgment of the
learned Sessions Court, this Court finds that the prosecution case
primarily rests upon the testimony of two police witnesses, PW-13 and
PW-14, who claimed to have witnessed the occurrence and apprehended
the accused. Their version, however, suffers from serious infirmities and
inconsistencies, creating substantial doubt about its truthfulness. The
complainant and other so-called eyewitnesses have turned hostile. Panch
witnesses have not supported the recovery or scene panchnamas. While it
is established that the deceased was murdered, the prosecution has failed
to link the accused to the crime through credible, cogent, and
corroborated evidence. Mere suspicion, however strong, cannot take the
place of proof.
7. The complainant (PW-6 at Exh. 14), who was claimed to have
seen the incident, has turned hostile. Similarly, PW-4 (Sureshsingh
Vijaysingh Rajput at Exh. 12), PW-7 (Jitendrasinh Ramrajsinh Rajput at
Exh. 15), and PW-15 (Narendra Kanaksingh Zala at Exh. 32) have also
turned hostile and failed to support the prosecution case. They merely
stated that they heard a commotion near Bapunagar Police Station around
23:30 hours on 13.04.2003, but did not see the actual assault or recognize
the assailants. The panch witnesses, including PW-1 to PW-5, PW-9,
and PW-10, have denied their participation in the panchnamas, including
those pertaining to the scene of offence (Exh. 34), recovery of knives
(Exh. 35), and the body position of the accused Nos. 1 and 2 respectively
(Exh. 20 and Exh. 9). Their hostility renders the recovery evidence
devoid of probative value.
NEUTRAL CITATION
R/CR.A/1133/2004 JUDGMENT DATED: 11/11/2025
undefined
8. The case of the prosecution hinges upon PW-13 (Driver,
Jagdishbhai Motibhai Parmar at Exh. 30) and PW-14 (Wireless Operator,
Rupabhai Chothabhai Rabari at Exh. 31). Both were on night duty from
20:00 hours on 13.04.2003 to 08:00 hours on 14.04.2003. They deposed
that around 00:30 hours, they heard a commotion near a tea stall,
proceeded to the spot, and saw the deceased bleeding profusely from the
chest while two accused were attempting to flee with knives. They
claimed to have apprehended the accused and brought them to the police
station, producing them before the officer-in-charge at about 06:00
hours. However, neither the inquest panchnama (Exh. 22) nor any
contemporaneous document mentions that the accused were apprehended
at the scene or detained at the police station during that period. The
omission of such a material fact in official records gravely undermines
the veracity of their testimony. The unexplained silence between 00:30
hours and 06:00 hours regarding the accused's custody casts serious
doubt upon the prosecution story. The conduct of these witnesses is
wholly inconsistent with ordinary human behaviour and expected police
procedure. If they had indeed witnessed the incident and apprehended the
accused, their foremost duty was to rush the injured to the hospital and
immediately inform superior officers. They failed to do either. No arrest
memo or station diary entry was made, nor was any complaint lodged by
them until 06:00 hours. This indifference and procedural lapse
significantly erode their credibility.
9. The Investigating Officer, (PI Naginbhai Kalidas Barot at Exh. 33),
and PW-11 (PSI Jafarullakhan Sattarkhan Pathan at Exh. 21) have
deposed about the procedural steps taken during investigation. However,
none of their documents contemporaneously reflect the apprehension of
the accused at the spot as claimed by PW-13 and PW-14. The recovery
of weapons (Exh. 35) is rendered doubtful due to the hostility of panch
NEUTRAL CITATION
R/CR.A/1133/2004 JUDGMENT DATED: 11/11/2025
undefined
witnesses and lack of chain of custody. The medical evidence, though
confirming homicidal death caused by sharp-edged weapons, remains
uncorroborated by credible ocular or recovery evidence.
10. PW-12, Dr. Gautam Vrajlal Nayak (Exh. 28), deposed that the
deceased had sustained multiple incised wounds on the chest, including
one penetrating the ribs, resulting in shock and haemorrhage leading to
death. The injuries were ante-mortem and sufficient in the ordinary
course of nature to cause death. However, in the absence of reliable
eyewitness or corroborative evidence linking the accused to these
injuries, the medical opinion alone cannot sustain a conviction.
11. On a comprehensive evaluation of the entire material on record,
this Court finds that the prosecution has failed to prove its case beyond
reasonable doubt. The learned Sessions Court has meticulously
appreciated the evidence and rightly extended the benefit of doubt to the
accused. The view taken by the trial Court is a possible and plausible one,
and hence, no interference is warranted in the appeal against acquittal.
12. At this stage, this Court may refer to the decision of the Hon'ble
Apex Court in the case of Rajesh Prasad v. State of Bihar and Another
[(2022) 3 SCC 471] encapsulated the legal position covering the field
after considering various earlier judgments and held as below: -
"29. After referring to a catena of judgments, this Court
culled out the following general principles regarding the
powers of the appellate court while dealing with an appeal
against an order acquittal in the following words:
(Chandrappa case [Chandrappa v. State of Karnataka,
(2007) 4 SCC 415]
"42. From the above decisions, in our considered view, the
NEUTRAL CITATION
R/CR.A/1133/2004 JUDGMENT DATED: 11/11/2025
undefined
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, reappreciate
and reconsider the evidence upon which the order of
acquittal is founded.
(2) The Criminal Procedure Code, 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 curtail extensive powers
of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of "flourishes of
language" to emphasise 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."
13. In the case of H.D. Sundara & Ors. v. State of Karnataka [(2023)
9 SCC 581] the Hon'ble Apex Court has summarized the principles
NEUTRAL CITATION
R/CR.A/1133/2004 JUDGMENT DATED: 11/11/2025
undefined
governing the exercise of appellate jurisdiction while dealing with an
appeal against acquittal under Section 378 of CrPC as follows: -
"8.1. The acquittal of the accused further strengthens the
presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal,
is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against
acquittal, after reappreciating the evidence, is required to consider
whether the view taken by the trial court is a possible view which
could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot
overturn the order of acquittal on the ground that another view
was also possible; and
8.5. The appellate court can interfere with the order of acquittal
only if it comes to a finding that the only conclusion which can be
recorded on the basis of the evidence on record was that the guilt
of the accused was proved beyond a reasonable doubt and no other
conclusion was possible."
14. In light of the above legal position and for the reasons recorded in
the foregoing paragraphs, coupled with the fact that the case of the
prosecution does not get support from the evidence recorded by the
NEUTRAL CITATION
R/CR.A/1133/2004 JUDGMENT DATED: 11/11/2025
undefined
learned trial Court, the present appeal fails and is accordingly dismissed.
Records and Proceedings, if any, be remitted to the Court concerned
forthwith.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
MVP
