Gujarat High Court

State Of Gujarat vs Dalabhai Vaghajibhai Baria on 21 November, 2025

Author: Gita Gopi

Bench: Gita Gopi

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                           R/CR.A/698/1999                                        JUDGMENT DATED: 21/11/2025


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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/CRIMINAL APPEAL NO. 698 of 1999

                     FOR APPROVAL AND SIGNATURE:

                     HONOURABLE MS. JUSTICE GITA GOPI                          Sd/-

                     and

                     HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK                                     Sd/-

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                                  Approved for Reporting                         Yes            No
                                                                                            ✔
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                                                    STATE OF GUJARAT
                                                          Versus
                                             DALABHAI VAGHAJIBHAI BARIA & ORS.
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                     Appearance:
                     MR BHARGAV PANDYA, ADDITIONAL PUBLIC PROSECUTOR for the
                     Appellant(s) No. 1
                     MR PM DAVE(263) for the Opponent(s)/Respondent(s) No. 1,2,3,4,5,6,7,8,9
                     NOTICE SERVED for the Opponent(s)/Respondent(s) No. 6
                     ==============================================================

                        CORAM HONOURABLE MS. JUSTICE GITA GOPI
                             :
                               and
                               HONOURABLE MR. JUSTICE HEMANT M.
                               PRACHCHHAK

                                                         Date : 21/11/2025

                                            ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE GITA GOPI)

1. The Appeal under Section 378(1) of Code of Criminal

Procedure, 1973 (hereinafter referred to in short as

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'Cr.P.C.') challenges the judgment and order of

acquittal passed by the learned Additional Sessions

Judge, Panchmahal at Godhra in Sessions Case No.16

of 1998. The trial was against nine accused under

Sections 143, 147, 148, 302 read with Section 149 of

Indian Penal Code (IPC) and under Section 135 of the

Bombay Police Act.

2. Learned Additional Public Prosecutor Mr. Bhargav

Pandya appearing for the appellant-State submitted

that the learned Judge has failed to appreciate the

facts connecting the accused to the crime and has not

properly appreciated the oral and documentary

evidence on record. The respondents accused have

formed an unlawful assembly with a clear intention to

cause death of Aaratsinh Parsinh and therefore, each

of the members of the unlawful assembly of the

respondents have the committed the act and would be

guilty of the offences punishable under Section 302

read with Section 149 of IPC.

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3. Learned APP submitted that the dispute with regard to

the parties was in connection with the land bearing

Survey No.143 paiki, and the civil litigation as well as

the Chapter Case filed against the parties reflect the

clear intention to cause death of Aaratsinh. It is

further submitted that all the accused were waiting for

the arrival of Aaratsinh to do him to death. The

complaint is supported by the deposition of the

complainant-Galabhai Sadubhai, who was the eye

witness to the incident. The learned Judge has not

appreciated the evidence of Mathurbhai Maganbhai,

Kaliben Chhaganbhai and Aaratsinh Mathurbhai. The

panchnama requires appreciation in accordance to the

provisions of law because as per the evidence of the

Medical Officer, the deceased was having head injuries

and face injuries. In addition, the deposition of the

witnesses corroborates the assault by all the accused

persons. It is further submitted that the learned

Judge has relied on minor omissions and

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contradictions for acquitting the accused.

4. Learned advocate appearing for the respondents Mr.

P.M. Dave submitted that the complainant has self-

imposed himself as an eyewitness. The complaint

itself suggests that the dispute was with regard to the

boundary of the land which was sold. It was further

submitted that there was no reason for the accused to

target only the deceased where the dispute was with

the father of the complainant, who had sold the land.

It is also submitted that the evidence which has come

on record suggest that the deceased hit a milestone on

the road and because of the injuries, he sustained on

the cheeks and because of the dashing, he was thrown

from the scooter and fell down, which was the reason

for other injuries. It is further submitted that the

weapons which were alleged to be used were 'dharia'

but no blood stains were found on the alleged weapon.

The fact also becomes undisputed that one person

named Samarsinh was also riding as a pillion rider,

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but the said Samarsinh has not been examined. It is

also submitted that as per the complainant, the

deceased was taken in a rickshaw to the hospital but

the rickshaw driver has not been examined to

corroborate the said fact.

5. On hearing the arguments canvassed from the both the

sides and on going through the deposition of the

witnesses as well as the observations of the learned

trial Court Judge, it surfaces on record that the

complaint was given by Galabhai Sadubhai originally

the resident of Natapur stating his father-Sadubhai

Damabhai, Aaratsinh Parsinh with Parsinh Mahjibhai,

the three of them had purchased 11 acres of land in

the year 1991 in Village Gadukpur from Nizamuddin

Gulammohammed Khan Sher Mohammedkhan

Pathan. After sale, they had constructed the house

and had started the agricultural work. The

complainant stated that the said Nizamuddin sold the

remaining part of the land to Dala Vaghji (A1) and the

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son - Arvind Dalabhai, Mohanbhai Masurbhai and

Dilip Masur, which was two acres and 29 gunthas. It

was stated that Dala Vaghji and his sons thereafter,

were cultivating Survey No.143 paiki.

6. The complainant alleged that the land which was

purchased of 11 acres, they found it to be incomplete

and therefore, they got the land surveyed wherein it

was found that about 3 acres of land was encroached

upon by Arvind Dalabhai and Dilip Masur. They had

asked for removing the encroachment and they filed a

Civil Suit on 26.09.1997 in Godhra Civil Court, which

was still pending. The complainant alleged that the

dispute continued and on 01.10.1997, an application

was filed for breach of peace and in the Court of the

Mamlatdar, on 03.10.1997, took their surety.

7. The alleged date of incident is 04.10.1997 and on 4 th

morning, the complainant stated that he had gone for

labour work in the farm of Ibrahim Patel and was

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returning back in the evening. He met Aaratsinh in

the front of the school at Gadukpur and enquired

from him and he told that he had gone to Godhra

Court. The complainant was on his bicycle, Aaratsinh

was on his scooter, thereafter they both went ahead.

As per the complainant, going a little further from the

School on the road he saw all the 9 accused having a

verbal quarrel with Aaratsinh. They were scolding him

and asking as to why he had given a complaint with

regard to the land, and then, the complainant reached

the spot on his bicycle and saw a dharia in the hands

of Masurbhai Vaghji who gave a blow on the chin of

Aaratsinh. Dala Vaghi had a stick who gave a blow on

the head of Aaratsinh. Mohan Masur with the dharia

gave a blow on the right cheek of Aaratsinh. All the

others had sticks and gave blows on the head and his

body. Therefore, the complainant started shouting

asking the accused not to beat Aaratsinh and hence,

the accused started chasing the complainant,

therefore, Tinu alias Bhima Kalu and Chagan Magan

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rushed there. Rajliben Parsinh and Surajben

Aaratsinh Gedabhai also came running therefore all

the accused ran away with their weapons. The

incident occurred at 6.00 in the evening.

8. The cross examination of the complainant which has

come on record is that Gram Panchayat's Office was at

a distance of 2 Kms. from the school on the right side

of Moti beetini. There was a farm house of Sarpanch.

From the primary school on the right side, there is a

road which after about 1½ kms reaches to the

crematory ground and on that road, adjacent to land

bearing Survey Nos.143 and 141 about 2½ Kms. from

the road was their own house. The house of the

accused were in Survey No.141 which was behind their

house.

9. The road on which he alleges of the incident has

frequency of people. He stated that there is a curve

on the road towards crematorium and he denied the

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suggestion of darkness during the alleged incident. He

has not recorded in the complaint that the deceased-

Aaratsinh had gone for giving the application. It has

also been brought on record that the deceased-

Aaratsinh had purchased two acres of land but denied

the suggestion that the land was not given to

Aaratsinh on metes and bounds basis. Rest of the 2

acre of land was sold by his father to Manilal. He

confirmed that the land had not yet been admeasured.

He in the cross examination, stated that near the

school, he met Aaratsinh as well as Samarsinh on the

scooter and Samarsinh was the pillion rider. He

denied the suggestion that Aaratsinh and Samarsinh

met with an accident and both of them had fallen

down.

10. The learned Judge while observing and disbelieving the

complainant observed, Samarsinh as pillion rider was

not examined, even the rickshaw driver who took the

deceased to the hospital was not examined. There was

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a dispute with regard to land and there were

allegations of encroachment. There was no injury

except on the head and on the right cheek. The

evidence of the Doctor was to the effect that there was

one injury on the head and because of this injury, the

rest of the injury No.3, 4 and 5 were caused. Thus,

the learned Judge was of the opinion that it cannot be

denied that the injury sustained could be because of

the scooter getting slipped and dashing with the

milestone, when deceased-Aaratsinh was picked up,

he was lying in the hedge and near him his scooter

was found. None of the eyewitnesses state that the

deceased went towards the hedge on being beaten but

instead state that the deceased was beaten there. The

learned Judge was not ready to believe the

complainant as an eyewitness. The incident had

taken place in the evening on the road towards the

crematorium and from the curve the place of incident

is at about 100 feet and it is not possible for any

witness to see the incident because of the curvature on

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the road. If the person has to observe the incident, he

has to come on the road beyond the curvature. Since

on both the sides were stones and the hedges the

learned Judge thus believed the injury to be accidental

because of the motor accident. The motive of the

complainant in framing the accused was observed by

the learned Judge. Manojkumar Parsinh was

examined, who was the real brother of the deceased.

He had admittedly come afterwards but it can be said

that he had not seen the incident. Bhimsinh Kalubhai

who runs a rickshaw has not supported the case of the

complainant. The place of incident has not been

proved and the weapons do not prove the guilty of the

accused. There were no blood stains even on the

alleged weapons and because of that, the learned

Judge has come to the conclusion that the allegations

of hatching a conspiracy by forming an unlawful

assembly has not been proved.

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11. In the case of Darshan Singh v. State of Punjab,

(2010) 2 SCC 333, it has been observed as under :-

"61. In a case of acquittal, if the trial court's view is a possible or plausible view, then the Appellate Court or the High Court would not be justified in interfering with it. It is the settled legal position that there is presumption of innocence and that presumption is further fortified with the acquittal of the accused by the trial court. The Appellate Court or the High Court would not be justified in reversing the judgment of acquittal unless it comes to a clear conclusion that the judgment of the trial court is utterly perverse and, on the basis of the evidence on record, no other view is plausible or possible than the one taken by the Appellate Court or the High Court."

12. It would be pertinent to refer to the observations of the

Hon'ble Supreme Court in the case of Bhagwan Sahai

and Anr. v. State of Rajasthan reported in (2016) 13

SCC 171, where it was held by Hon'ble Supreme Court

as under :

13. 8. "...Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants..."

14. The judgment of Chandrappa v. State of Karnataka,

(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325, would be

relevant to be mentioned since the judgment lays down

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the general principles for the consideration of the

acquittal appeals. The Supreme Court has held thus :

(1) An appellate court has full power to review, reappreciate 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 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.

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15. In the case of Bhupatbhai Bachubhai Chavda and

Anr. State of Gujarat, 2024 SCC OnLine SC 523, it

has been held as under :-

16. "It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after re-appreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question."

17. On overall analysis of the deposition of the witnesses

and the observations of the learned trial Court Judge,

we are of the view that the findings recorded by the

learned Trial Court need not be interfered with since

the miscarriage of justice which may arise from

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acquittal of the guilty is not much than the conviction

of the innocent.

18. In view of the aforesaid discussion and observation,

the present Appeal stands dismissed. The judgment