Gujarat High Court
State Of Gujarat vs Kalusinh Vajesinh Makwana (Deleted) on 13 November, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/247/2001 JUDGMENT DATED: 13/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 247 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
KALUSINH VAJESINH MAKWANA (DELETED) & ORS.
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Appearance:
MR RONAK RAVAL APP for the Appellant No. 1
DELETED for the Opponent(s)/Respondent No. 1
MR MAHESH BARIYA(2234) for the Respondent(s) No. 2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 13/11/2025
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
Chief Judicial Magistrate at Prantij, Sabarkantha dated 15.12.2000 in
Criminal Case No. 1616 of 1998, acquitting the respondent from the
offence under Sections 326, 325, 323, 504, read with Section 114 of
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the Indian Penal Code and Section 135 of the Bombay Police Act,
State has preferred instant appeal under Section 378 of the Cr.P.C.
3. This Court has heard Mr. Ronak Raval, learned Additional Public
Prosecutor, learned Counsel and Mr. Mahesh Bariya for the
respective parties.
4. Brief facts giving rise to file the present Appeal are that, on
30.08.1998, the respondents accused armed with deadly weapon,
assaulted deceased Hathisinh Javansinh and other witnesses like
Dalpatsinh Zala and Jaswantsinh Makwana. The motive behind the
assault was to the effect that, the deceased accused Kalusinh was
unnecessarily hurled abusive upon the complainant party, for which,
he was restrained not to hurled abusive, as a result, the accused
respondents assaulted the witnesses and complainant. The FIR with
the Talod Police Station came to be lodged for the aforesaid
offences. The accused were arrested and upon due investigation, the
chargesheet against them came to be filed. The Court of JMFC,
Prantij framed the charge against the respondents accused, which
they did not admit and claimed to be tried.
5. In order to prove the charge, the prosecution has examined 15
following material witnesses:
PW 1 - Exh.24 Dalpatsinh Motisinh Zala
PW 2 - Exh.51 Gumansinh Chadarsinh Zala
PW 3 - Exh.52 Dashrathsinh Zala
PW 4 - Exh.53 Jaswantsinh Balusinh Makwana
PW 5 - Exh.54 Digat Kalidas Dixit
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PW 6 - Exh.62 Arjunsinh Bhikusinh Zala
PW 7 - Exh.64 Laxmansinh Kalusinh
PW 8 - Exh.67 Baldevsinh Bapusinh
PW 9 - Exh.69 Bhimsinh Bapusinh
PW 10 - Exh.71 Hathisinh Jawansinh
PW 11 - Exh.75 Galsinh Cheharsinh
PW 12 - Exh.77 Dipeshbhai Maganbhai Patel
PW 13 - Exh.81 Chadarsinh Jawansinh Zala
PW 14 - Exh.85 Jagatsinh Kachrusinh Rathod
PW 15 - Exh.88 Deepsinh Jawansinh Chouhan
6. During the course of the trial, the prosecution has proved and
produced 15 documents:
Exh.27 Complaint
Exh.55 Transfer memo
Exh.56 Medical certificate of Hathisinh Jaswantsinh
Exh.57 X-ray of Hathisinh Jaswantsinh
Exh.58 X-ray plate
Exh.59 Transfer memo
Exh.60 Dalpatsinh motisinh X-ray plate
Exh.61 Medical certificate of Dalpatsinh motisinh
Exh.63 Panchnama of place of offence
Exh.68 Panchnama of recovery of Mudammal
Exh.76 Panchnama of clothes of Hathisinh
Exh.78 Police yadi
Exh.80 Laxmansinh Kalusinh injury certificate
Exh.86 Forwarding of mudammal to FSL
Exh.87 Receipt of articles by FSL
7. 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.
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8. The learned court of JMFC, Prantij, after appreciating and
examining the oral as well as documentary evidence acquitted the
respondents accused herein for the offences with which they were
charged, on the ground that, the prosecution miserably failed to
prove the charge against the accused by adducing cogent and
acceptable evidence.
9. In view of the aforesaid facts and circumstances, this acquittal
appeal has been preferred by the State.
10. Oral Evidence of the injured witnesses :
(a) PW-1 Dalpatsinh Zala, PW-2 Gumansinh Zala, PW-3
Dashrathsinh Zala, PW-4 Jaswantsinh Makwana. All these
witnesses are eye-witness of the incident. The witnesses and
accused are belonged to same village and knowing each other. On
the day of incident, the accused Kalusinh, was hurled abusive upon
the complainant party and he was cautioned by the witnesses not to
hurled abusive, as a result, he was annoyed and beaten up the
complainant and in support of him, the respondents accused came
with deadly weapon like axe and sticks and assaulted the witnesses.
All the witnesses have categorically stated on the line of FIR.
However, in the cross-examination, they have stated that the
factum of assault on the witnesses having been omitted by them in
their police statement.
(b) Dr. Dipesh Patel (PW-12) Medical Officer, Talod CHC. This
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witness has examined the injured Gumansinh, who has received
head injury, as referred in the certificate Exh. 79. There was an
injury in the form of CLW 1X3X2 cm. The doctor has also
examined Laxmansinh Makwana, who also received the injury in
the form of CLW as mentioned in the certificate Exh 80.
11. Mr. Ronak Raval, learned Additional Public Prosecutor appearing
for the appellant - State assailing the judgment and order of
acquittal, has submitted that the findings of acquittal are contrary to
law and evidence on record and the findings recorded are palpably
erroneous and based on the irrelevant material. The respondents
accused had assaulted the witnesses and the injured witnesses have
categorically deposed that, the accused has assaulted them and the
injuries thereof being proved by examining the Medical Officer.
Despite of this, the learned trial Court, did not consider the evidence
in its true prospective and acquitted the accused.
12. Mr. Ronak Raval, learned APP in such circumstances, 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.
13. Mr. Mahesh Bariya, learned counsel appearing for the respondents
accused has submitted that the respondents accused had not played
any role in causing injury to the Hathisinh because, as per the
prosecution case, deceased accused Kalusinh caused injuries on his
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head with axe and Kalusinh during the pendency of the appeal,
passed away. That Kalusinh was convicted and sentenced to undergo
imprisonment for a period of 30 months. Thus, so far original
accused nos. 2 to 5 are concerned, the witnesses have made
improvement and exaggeration in their police statement as nothing
being alleged against the accused that they had caused injuries to
them.
14. In view of the aforesaid contentions, the learned counsels
appearing for the original accused has submitted that, the findings
recorded by the trial Court cannot be said to be perverse as the trial
court has assigned sufficient reasons for not believing her evidence
and has rightly come to a conclusion that the prosecution has not
been able to establish the guilt of the accused beyond reasonable
doubt.
15. 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.
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16. In the present case the issue fall for our consideration as to whether
the trial Court was justified in acquitting the accused?
17. In the facts of the present case, the respondents accused admittedly
did not have caused any injuries to Hathisinh. In the FIR, the
complainant PW-1 made allegation against the respondents accused
that, he had been assaulted by the accused. However, facts remain
that the injuries sustained by PW-1, has not been proved and
established by examining the treating doctor. The injury sustained
by the witnesses Gumansinh Zala and Laxmansinh Makwana,
though proved by examining the Medical Officer, PW-10, but those
injuries mentioned in the respective certificates being caused by the
accused or not, that has not been stated by the injured witnesses in
their police statements and for the first time, they have stated in the
deposition. Even in the charge frame, nothing being stated against
the respondents accused about the commission of the crime. Thus,
the trial Court, considering the major contradictions and
improvement, as well as exaggeration made by the witnesses, their
oral evidence has not been accepted and acted upon to convict the
accused. We are of the opinion that, the injured witnesses did not
have disclosed the role attributed to respondents accused in their
police statement and there was a major contradictions on this aspect,
which directly affect the case of the prosecution.
18. In light of what has been noted above, the reasons for not
accepting the testimony of witnesses by the trial Court, are based on
the evidence on record and view taken by the trial court is plausible
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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.
19. 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)
P.S. JOSHI
