Gujarat High Court
State Of Gujarat vs Mafabhai Hirabhai Bhangi on 14 November, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/473/2001 JUDGMENT DATED: 14/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 473 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
MAFABHAI HIRABHAI BHANGI & ORS.
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Appearance:
MR JK SHAH, APP for the Appellant(s) No. 1
MR MC BAROT(144) for the Appellant(s) No. 1
MR TUSHAR CHAUDHARY(5316) 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 ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 14/11/2025
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, passed in Sessions
Case No.194 of 2000, dated 23.03.2001, acquitting the respondent
from the offence under Section 302 read with Section 34 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 advocates Mr.P.R. Abhichandani, with Mr.Tushar
Chaudhary and Mr.M.C. Barot, for the respective parties.
4. Brief facts giving rise to file the present Appeal are that, four
accused - respondents herein were tried and prosecuted for the offence
of murder. The incident of murder being took place at Village
Salempura, Palanpur, Banaskantha. The deceased Bhagvan Vala and
accused party belong to the same community and residing in the same
area of the village. According to the prosecution case, on 18.06.2000,
deceased Bhagvan was brutally assaulted by the accused with the
weapon skype (dhariya) and stick. The deceased had gone to call of
nature at about 11:00 p.m. in the night hours, and while returning back,
he was confronted by the respondents accused and taking revenge of
earlier dispute, he had been assaulted with the weapons, as referred
above, by the accused, as a result, he sustained a serious head injuries
and died during the treatment period. It is further case of the
prosecution that the daughter of deceased Kantaben (PW:9) claimed to
be eyewitness of the incident as after hearing the hue and cry, she
rushed to the place of the incident where she had noticed the presence
of the accused and causing injuries by them to his father with the
deadly weapon. The witness PW:9, after noticing the incident, went to
house of the witnesses viz. Dhula Vala (PW:6), Suresh Moti (PW:8)
and Moti Soba (PW:10) and informed them about the incident and
immediately, the witnesses along with Kantaben (PW:6) came to spot
where they saw that the accused respondents by deadly weapons
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causing the injuries to deceased Bhagvanbhai and then, after seeing the
witnesses, they ran away from the spot. The deceased was taken to
Palanpur Civil Hospital where he succumbed to injuries. The FIR came
to be lodged by PW:6 Dhula Vala for the alleged act of murder of his
brother, inter-alia stating that the respondents accused, in furtherance
of their common intention, killed his brother as prior to the offence,
there was a dispute with the accused party about the right of way with
respect to house property. The FIR was registered with Gadh Police
Station for the offences, as referred above and the investigation of the
case was entrusted to Mr.Naran Desai (PW:11), Gadh Police Station,
Palanpur. During the investigation, the I.O. sent the dead body for
post-morterm, took visit at the place of the incident and collected
necessary samples by drawing place of panchnama, recorded the
statements of eyewitnesses, arrested the respondents accused, sent the
seized articles to the FSL and after receiving the report and upon
completion of the investigation, the I.O. led the chargesheet before the
jurisdictional Magistrate Court.
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. 194 of 2000.
6. The learned Sessions Judge, Palanpur, Banaskantha framed
charge under Section 302 read with Section 34 of the IPC and Section
135 of the B.P. Act, against the accused to which, they pleaded not
guilty and claimed trial.
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7. In the course of trial, the prosecution adduced the following oral
as well as documentary evidence in support of his case:
Oral evidence
PW 1 - Exh.10 Badsinh Chamanji Thakor, panch witness
PW 2 - Exh.13 Amratlal Ganeshbhai Panchal, panch witness
PW 3 - Exh.14 Mehboobbhai Husainbhai, pach witness
PW 4 - Exh.17 Vadesingh Manaji Thakor, panch witness
PW 5 - Exh.19 Dr. Rehaben Bansighas Maheshwari
PW 6 - Exh.29 Dhulabhai Valabhai, complainant
PW 7 - Exh.30 Sureshkumar Narsinghbhai, PSO
PW 8 - Exh.32 Sureshbhai Motibhai
PW 9 - Exh.33 Kantaben Bhagwanbhai
PW 10 - Exh.35 Motibhai Somabhai
PW 11 - Exh.37 Narayanbhai Lalbhai Desai, PSI
Documentary evidence
Exh.20 Police Yadi
Exh.21 Poice Yadi
Exh.40 Complaint
Exh.41 Report of registration of offence
Exh.42 Inquest yadi
Exh.22 Inquest panchnama
Exh.36 Panchnama of place of offence
Exh.31 Panchnama of clothes of deceased
Exh.43 Panchnama of weapons
Exh.44 Panchnama of cloth
Exh.45 Discovery panchnama
Exh.28 Cause of deah certificate
Exh.27 PM note
Exh.46 Forwarding note
Exh.47 Receipt of articles
Exh.48 FSL letter
Exh.37 Copy of public announcement
Exh.38 Map of place of offence
Exh.29 Medical certificate
Exh.25 Xray plate
Exh.26 PM yadi
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8. 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.
9. 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
testimony of the eyewitness Kantaben- PW:9 does not inspire
confidence and her presence at the spot is doubtful. So far as other
eyewitnesses are concerned, the learned Trial Court after considering
the major contradiction in their evidence, their presence have not been
believed because on the basis of information given by PW:6, the
witnesses went to place of the incident, when the testimony of
Kantaben is found to be unacceptable and non-reliable, then question
does not arise to act upon the other witnesses.
10. In view of the aforesaid facts and circumstances, this acquittal
appeal has been preferred by the State.
11. Oral Evidence adduced by the prosecution:
11.1 Dr.Rekhaben Maheshwari (PW:5):
This witness being a medical officer of Civil Hospital of
Palanpur had examined the deceased Bhagabhai. The deceased
was brought before her on 19.06.2000 in the midnight at 12:10
and after preliminary examination, deceased declared dead on
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arrival. The witness in the morning, received the intimation to do
the post-morterm of the deceased and accordingly, she did the
post-morterm of the dead body of the deceased and during the
post-morterm, she noticed the following external injuries:
(a) Stitched wound on right fronto parietal region about 5 cm.
long;
(b) Abrasion on right scapula region;
(c) Abrasion on right infra scapula region with surrounded
high haematoma which extents to right lateral chest wall;
The witness doctor in his chief examination, has further stated
that during the post-morterm, she noticed the fracture of right
temporal born with hemorrhage and also found the fracture of
right 5th, 6th and 7th ribs.
In the opinion of the doctor, the cause of death was shocked due
to head injury along with chest and abdominal injury. The doctor
has further opined that the head injury as well as injury found on
the lever were sufficient in ordinary course to cause the death
and the said injuries would be possible with the blunt side of
weapon dhariya and stick.
11.2 Dhulabhai Valabhai (PW:6):
This witness being a brother of the deceased has stated in his
chief examination that on the day of the incident, he was at his
home and at about 11:00 p.m., he heard the shouting of the niece
Kanta (PW:9) and after hearing her shouting, he came on the
main door of his village where he saw that his brother was fatally
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assaulted by accused Mafa Hira (A1) with skype (dhariya) and
his brother after receiving the blow, fell on the floor and
thereafter, the co-accused nos.2 to 4 started to assault his brother
with sticks and after hue and cry, the accused ran away from the
spot. The witness has further stated that the motive behind the
killing of his brother was dispute about right of way and prior to
the incident, the deceased was injured by the accused by using
weapon stick.
In the cross examination, this witness has stated that the witness
Kanta - PW:9 came to his house and told him that her father
was killed. The witness has stated that when Kanta came to his
house before they could reach at the place, they did not hear any
hue and cry or any shouting. The witness has further stated that
when he reached at the place, he first noticed that his brother was
lying on the road and accused were beating his brother and
thereafter, they ran away. The witness has further stated that his
brother had gone to nature's call and did not return back for
about an hour and that is why, her daughter Kanta went in search
of the deceased.
11.3 Suresh Motibhai (PW:8):
This witness being a nephew of the deceased has stated in his
chief examination that on 18.06.2000, when he was at home, he
heard a shouting from the road side and therefore, he rushed to
the place along with Kantaben and he noticed that the deceased
was surrounded by the accused and the accused had beaten up
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with the deadly weapon to his uncle.
In the cross examination, the witness has stated that at the time
of incident, he was present in the house of the deceased and was
talking with Kantaben and others. The witness has further stated
that his uncle was beaten after arrival at the place.
11.4 Kantaben Bhagvanbhai (PW:9)
This witness is the daughter of the deceased Bhagvanbhai and at
the relevant time, she was sitting in front of her house and at
about 11:00 o'clock in the night hours, deceased had gone to
nature's call and after some time, he did not come back. The
witness in her chief examination has stated that after some time,
she heard the shouting on the road and she immediately rushed
to the place of the incident where she saw her father surrounded
by the accused and the accused gave a blow with the weapon
dhariya and stick on the body of her father and after some time,
her uncle and others also came at the place and thereafter, the
accused ran away from the place.
In the cross examination, the witness has stated that he had seen
the incident of assault at the corner of her colony. The witness
has further stated that till arrival of her uncle and others, the
accused did not stop to assault her father.
11.5 Motibhai Somabhai (PW:10);
This witness is the neighbour of the deceased and residing in the
same colony where the deceased had lived. In the chief
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examination, the witness has stated that after shouting the hue
and cry, within a minute, he went to place of the incident, where
he had seen the assault of incident.
In the cross examination, it was stated that the accused had
escaped from the place when he reached at the corner of his
colony.
12. Mr.J.K. Shah, learned Additional Public Prosecutor appearing
for the appellant - State and Mr. Barot appearing for the original
complainant, assailing the judgment and order of acquittal, have
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 eyewitnesses and accused
were residing in the same area where the incident occurred and the
house of the witnesses as well as the deceased situated in the one
cluster and therefore, after hearing the shouting, it was easy to come
for them at the place of occurrence and therefore, their presence at the
place was natural and on the aspect of causing injuries to the deceased
by the accused, there are no any major contradictions found in their
evidence and therefore, the testimonies of the witnesses though related
to each other, do inspire confidence and reading as a whole, there
appears to have ring of truth with respect to causing injuries by the
accused. It is further submitted that the learned Trial Court has
unnecessarily given weightage to the minor contradiction, however, on
the core aspect of assault given by the accused on the body of the
deceased remains intact and thus, the evidence of witnesses are
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consistent and support each other on the involvement of the accused
and fatal blow given by the accused. That the medical evidence also
corroborates the version of eyewitnesses. In such circumstances, the
prosecution has successfully proved the charge against the accused
beyond reasonable doubt.
13. In such circumstances, as referred above, it has been submitted
that while acquitting the respondent accused, the trial Court has
discarded and ignored the truthful, reliable and acceptable evidence
and as such, no cogent reasons being assigned while discarding such
evidence. 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.Pitambar Abhichandani, learned advocate for Mr.Tushar
Chaudhary, 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 findings are without
reasons and unreasonable and contrary to the evidence. In the facts of
the present case, the eyewitnesses are related interested witnesses and
prior to the FIR, admittedly, there was existing dispute of use of right
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of way and because of the said dispute, criminal complaints by both the
sides were filed. Thus, therefore, there are all chances of false and over
implication of the accused cannot be ruled out. The area where the
incident took place is a residential area and no any independent
witnesses dispute of presence of the resident of that area, being
examined by the prosecution. That the presence of Kantaben - PW:9,
at the time of the incident, is highly doubtful because admittedly, the
deceased had gone to nature's call and for about one hour, after he left
the house, he did not come back, as a result, witness Kantaben went in
search of her father. That the presence of Kantaben is not believable
then the presence of other witnesses who claimed to be eyewitness of
the incident cannot be accepted as truthful and reliable.
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 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.
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
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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. The prosecution case rests on the oral evidence of four
eyewitnesses. Out of four witnesses, the testimony of Kantaben -
PW:9 is more important as she had noticed the presence of the accused
and incident of assault from the corner of the house colony and
thereafter, she informed her uncle complainant and others and later on,
the witnesses came at the place of occurrence. Upon careful
examination of the testimony of PW:9, it transpires that she was
waiting for her father as the deceased father did not come at the home
in a reasonable time from the toilet area and after half an hour, she
went in search of her father and thereafter, she noticed the body of her
father lying in pool of blood at the road side. In such circumstances, it
is difficult to accept the version of Kantaben that she had seen the
accused and incident of assault. So far as the complainant Dhulabhai -
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PW:6 is concerned, his testimony also does not inspire confidence
because according to his version, when he came at the place, he had
seen that the accused were beating his brother. Against this, Kantaben -
PW:9 on the presence of Dhulabhai - PW:6, says something contrary
to the prosecution case. The eyewitnesses, in our opinion, have
changed their statements as statements on the aspect of complicity of
the accused and assault, made in the depositions are inconsistent with
their earlier statements before the police and therefore, considering the
huge distance between the house of the deceased and place of the
incident, it was not possible for the witnesses to reach immediately at
the place of incident. In such circumstances, in absence of any
independent evidence, the testimonies of witnesses as referred above,
which do not inspire confidence about their presence and witnessing
the incident, the prosecution failed to prove the charge of murder
against the accused beyond reasonable doubt. Thus, therefore, the view
of the Trial Court 's view as to the credibility of the witnesses is
possible and plausible view and the Trial Court while analyzing the
evidence has assigned cogent and sound reasons and therefore,
findings of acquittal are reasonable and based on the evidence on
record 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.
20. With the observations as aforesaid, the appeal is accordingly
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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
