Gujarat High Court
State Of Gujarat vs Navsadkhan Abdulkhan Pathan on 21 November, 2025
Author: Gita Gopi
Bench: Gita Gopi
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R/CR.A/524/1999 JUDGMENT DATED: 21/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 524 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
NAVSADKHAN ABDULKHAN PATHAN & ORS.
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Appearance:
MR TRUPESH KATHIRIYA APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2
MR KHALID G SHAIKH(3233) for the Opponent(s)/Respondent(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 21/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. The appellant - State of Gujarat has preferred this appeal under
Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the
judgment and order dated 16.04.1999 passed by the learned
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Additional Sessions Judge, Mehsana (hereinafter be referred to as "the
trial Court") in Sessions Case No.155 of 1998, whereby the trial Court
has acquitted the original accused No.4 to 6 (respondents herein)
from the offences punishable under Sections 395, 397, 302, 120(B)
read with Section 114 etc of the Indian Penal Code (hereinafter be
referred to as "the IPC") and convicted the original accused No.1 to 3
for the aforesaid offences.
2. Short facts of the prosecution case are that the complainant
Bachubhai Kachrabhai Patel, his uncle Ambalal Shivdas Patel and
persons of his Village namely, Patel Ambalal Punjaldas and Atmaram
Venidas Patel are partners of a money lending firm namely Pari
Mukeshkumar Atmaram situated at Gandhi Chowk, Kadi. On
18.04.1998 when the complainant and his uncle were returning home
after closing the shop, his uncle entrusted him the cash of the firm
and he kept the same in the dickey of the scooter. They were
proceeding to Nandasan on scooter and when they reached near a
slope of Utava at about 5.15 p.m., one of the five persons standing on
the left side of the road came suddenly on the road and gave a blow
with a log to the complainant as a result of which, they fell down. Of
the said persons, 2-3 persons aged between 20 and 25 years were
having weapons like knife in their hands and they started inflicting
blows on his uncle and also on him. As they shouted, they ran away
towards Kadi taking away the tiffin bag hooked on the scooter. Since
his uncle had sustained grievous injuries, he was taken to
Government Hospital at Kadi. The doctor on examination declared him
dead at the hospital. Hence, a complaint was lodged by the
complainant before Kadi Police Station and it has been registered as
Kadi Police Station I.C.R.No.150 of 1998 for the offences punishable
under Secs.395, 397, 302, 323, 34 and 120-B of IPC and police started
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investigation. The police prepared inquest panchnama as well as
panchnama of scene of offence in presence of panchas and also made
arrangements to send the dead body of the deceased for post
mortem. The appellants were arrested and muddamals were
discovered in presence of panchas at the instance of the accused.
Some of the muddamals were sent to FSL for analysis. Upon receipt of
post mortem and FSL reports, same were kept with the investigation
papers. On completion of investigation, charge sheet was submitted
into the Court of learned J.M.F.C.
2.2 The charge against the accused came to be framed by the trial
Court vide Exhibit 5 for the aforesaid offences against the accused.
On being explained it to them, the accused have denied having
committed any offence. The accused pleaded not guilty to the charge
and pleaded for trial and hence, the case was tried by the learned
Sessions Judge, Mehsana.
3. It appears from the records that to prove the case, the
prosecution has examined the following witnesses:-
P.W. No. Name of Witnesses Exhibit
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4. In addition to this, the prosecution has also produced the
following documentary evidence.
Sr. No. Particulars Exhibit
1 Vardhi report sent by PSO, Kadi Police Station 16
5 Report sent to Civil Surgeon for postmortem 20
7 Discovery panchnamas 68, 69
9 Seizure panchnama of knife
12 Seizure Panchnama of muddamal articles
13 Arrest report of the accused Agarnath Dhila Prasad 29
14 Medical Certificate of the complainant given by the 38
Kadi Community Health Centre
15 Postmortem report of the deceased - Ambalal 39
Shivdas
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20 FSL reports 79, 80
21 Seizure Panchnama of clothes of the deceased 21
5. After closure of the evidence, the statements of the accused
under section 313 of the Criminal Procedure Code, 1973 have been
recorded wherein they denied of having committed any offence and
have stated that they are innocent.
6. After hearing both sides and considering the evidence on
records, the trial Court by impugned judgment and order has
acquitted the accused from all the charges levelled against them.
7. Being aggrieved by and dissatisfied with the aforesaid judgment
and order of acquittal the appellant - State of Gujarat has preferred
this Appeal. This Court on 29.09.1999 admitted the appeal and issued
bailable warrant to the respondents in sum of Rs.2,000/-. It appears
that during the pendency of the present proceedings, respondent
No.2 expired and, therefore, the appeal qua him was abated.
8. Heard Mr.Trupesh Kathiriya, learned Additional Public
Prosecutor appearing for the appellant - State of Gujarat and
Mr.Khalid Shaikh, learned counsel appearing for the respondents -
accused at length.
9. Mr.Trupesh Kathiriya, learned Additional Public Prosecutor
appearing for the appellant - State of Gujarat has submitted that the
trial Court has committed an error in not believing the panchnama at
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Exhibit 71 and 72 as the same was not in consonance with the
provision of Section 27 of the Evidence Act. He has submitted that so
far as accused No.4 is concerned, though he was identified, the trial
Court has disbelieved the charge against him only on the ground that
in Test Identification Parade, accused No.4 was identified by the
witness, which created serious doubt and hence, the same is unjust
and illegal. He has submitted that so far as respondent No.2 herein is
concerned, the appeal was abated qua respondent No.2 and so far as
accused No.5 and 6 is concerned, the trial Court has disbelieved the
case qua them, but respondents No.1, 2 and 3 are concerned, they
have been arrested but not taken to the Office of the Executive
Magistrate for the purpose of T. I. Parade and they have not been
identified by any of the witnesses. He has submitted that when there
is a charge of conspiracy, it is not required to prove the fact that
whether all accused have participated in the commission of offence or
not, but their presence itself sufficient to prove the case. He has
submitted that the accused had constituted the assembly and
gathered for the purpose of commission of offence and hence, the
accused are required to be punished for the alleged offence.
9.1 Mr.Kathiriya, learned Additional Public Prosecutor for the
appellant - State of Gujarat has further submitted that though there is
direct and indirect evidence to connect the accused for the alleged
offence, the trial Court has not appreciated the same. He has
submitted that the accused were identified by the complainant during
the T.I. Parade, despite of this fact, the trial Court has not considered
the same and committed an error in passing the impugned judgment
and order of acquittal. He has also submitted that the trial Court has
erred in holding that though accused No.5 and 6 was arrested, he was
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neither identified by the witnesses nor explained by the prosecution
and even the trial Court has not appreciated the fact that accused
No.6 had produced muddamal knife which was used in the
commission of offence. Mr.Kathiriya, learned Additional Public
Prosecutor has urged that the appeal deserves to be allowed and the
judgment and order of acquittal deserves to be quashed and set
aside.
10. Mr.Shaikh, learned counsel for the respondents has submitted
that the trial Court has disbelieved the case of the conspiracy, while
discussing the evidence in para - 29 of the judgment and order, which
subsequently confirmed by the Division Bench of this Court vide order
dated 24.01.2007 and 25.01.2007 passed in Criminal Appeals
No.513/1999, 544/1999 and 663/1999 filed by the convicted accused
and observed in para - 24 which reads thus:-
"24. It is required to be noted that the present
appellants were facing the charge of conspiracy along
with other charges. The court below has dealt with the
point of conspiracy in para 29, page 34 of the
judgment and came to the conclusion that the
prosecution has failed to establish the charge of
conspiracy and hence, court below has decided the
matter on the basis of evidence on record."
10.1 Mr.Shaikh, learned counsel has also submitted that in para - 34
of the judgment and order, the trial Court has assigned reasons of
acquitting respondents No.4 to 6 that qua respondent No.4, except
T.I. Parade, there is no other incriminating evidence brought against
the accused nor the accused have played any role in the alleged
offence. He has submitted that whether recovery and discovery of the
article is found at the behest of the accused or not and, therefore,
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after considering oral as well as documentary evidence, the trial Court
has disbelieved the case against accused No.4 to 6. He has submitted
that so far as respondent No.2 herein is concerned, he had expired
during the pendency of the appeal and, therefore, the appeal qua him
was abated. He has submitted that though respondents No.5 and 6
were arrested, but not taken before the Executive Magistrate for the
purpose of T.I. Parade and even no one has identified them and
hence, no any recovery or discovery at the instance of accused No.5
and 6 was made. He has submitted that so far as the recovery
panchnama at the behest of accused No.3 is concerned, one knife was
recovered which was not part of muddamal and not used in the
commission of crime. He has submitted that there is no any illegality
and infirmity in the impugned judgment and order and, therefore, no
interference is required to be called for. He has submitted that the
appeal being meritless deserves to be dismissed and the judgment
and order of acquittal deserves to be confirmed.
11. The case of the prosecution is against the present respondents
mainly on the charge of conspiracy along with other charges. It
appears that while dealing with criminal appeals filed by accused No.1
to 3, the Court has disbelieved the charge under Section 395, 397,
120B of the IPC. We take note of the decision rendered by the Division
Bench that while partly allowing the criminal appeals, the Court
altered the conviction qua accused No.1 to 3 for the offence under
Sections 395, 397, 302 and 114 of the IPC and held that the
prosecution has failed to prove the charge under Sections 395 and
397 r/w. Section 114 of the IPC. It appears that the ingredients of
offence under Section 395 and 397 of the IPC have not been proved
by the prosecution against the accused and hence, no interference is
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required to be called for in the present appeal.
12. On perusal of the judgment and order passed by the Division
Bench of this Court in Criminal Appeal No.513/199 and allied appeals,
it emerges that the Division Bench has observed in para - 32 that the
Court below has not relied upon only the test identification parade but
on other corroborative evidence connecting the accused with the
crime in question also more particularly two discovery panchanamas
wherein at the instance of original accused No.1 and accused No.2,
knife has been discovered after following required procedure and at
the instance of accused Nos.1, 2 and 3, muddamal weapons like
wooden log was also discovered. Nothing is recovered or discovered
at the instance of the respondents herein and, therefore, the trial
Court has, after recording finding, acquitted the respondents.
13. It is well settled by catena of decisions that the an Appellate
Court has full power to review, re-appreciate and reconsider the
evidence upon which the order of acquittal is founded. However,
Appellate Court 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 their innocence is further reinforced, reaffirmed and strengthened
by the trial Court.
14. Further, 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. Further, while
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exercising the powers in appeal against the order of acquittal, the
Court of appeal would not ordinarily interfere with the order of
acquittal unless the approach of the lower Court is vitiated by some
manifest illegality and the conclusion arrived at would not be arrived
at by any reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are possible, the
Court of appeal would not take the view which would upset the
judgment delivered by the Court below. However, the Appellate Court
has a power to review the evidence if it is of the view that the
conclusion arrived at by the Court below is perverse and the Court has
committed a manifest error of law and ignored the material evidence
on record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to find out whether
the accused are connected with the commission of the crime with
which he is charged.
15. The scope and principles are enunciated by the Hon'ble Apex
Court in case of Chandrappa and others Vs. State of Karnataka
reported in (2007) 4 SCC 415, more particularly paragraph Nos.
42 and 43, which was subsequently re-affirmed by the Hon'ble Apex
Court Rajesh Prasad Vs. State of Bihar and another, reported in
[2022] 3 SCC 471, wherein, the Hon'ble Apex Court has enunciated
the general principles in case of acquittal, more particularly in
paragraph No. 26 the general principles are set out by the Hon'ble
Apex Court based upon various decisions of the Hon'ble Apex Court.
Then in case of Babu Sahebagouda Rudragoudar Vs. State of
Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149,
the Hon'ble Apex Court has dealt with the similar issue, more
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particularly, in paragraph Nos. 37 to 40. Hence, we are in complete
agreement with the findings recorded by the trial Court.
16. It is also worthwhile to refer to the recent decision of the
Hon'ble Supreme Court in the case of Ramesh vs. State of
Karnataka, reported in [2024] 9 SCC 169, wherein the Hon'ble
Supreme Court has held and observed in paras-20 and 21 as under:-
"20. At this stage, it would be relevant to refer to the
general principles culled out by this Court in Chandrappa
and others vs. State of Karnataka , regarding the power of
the appellate Court while dealing with an appeal against a
judgment of acquittal. The principles read thus:
"42. .... (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 emphasize 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
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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.
21. In Rajendra Prasad v. State of Bihar, a three-Judge
Bench of this Court pointed out that it would be essential
for the High Court, in an appeal against acquittal, to clearly
indicate firm and weighty grounds from the record for
discarding the reasons of the Trial Court in order to be able
to reach a contrary conclusion of guilt of the accused. It
was further observed that, in an appeal against acquittal, it
would not be legally sufficient for the High Court to take a
contrary view about the credibility of witnesses and it is
absolutely imperative that the High Court convincingly
finds it well-nigh impossible for the Trial Court to reject
their testimony. This was identified as the quintessence of
the jurisprudential aspect of criminal justice. Viewed in this
light, the brusque approach of the High Court in dealing
with the appeal, resulting in the conviction of Appellant
Nos. 1 and 2, reversing the cogent and well-considered
judgment of acquittal by the Trial Court giving them the
benefit of doubt, cannot be sustained."
17. Considering the entire evidence on record, it clearly appears
that there is no credible evidence to connect the present accused with
the alleged crime and the evidence on record is not so convincing to
prove beyond reasonable doubt that the accused has committed the
alleged crime. Therefore, the accused cannot be convicted on the
evidence on record.
18. On perusal of the impugned judgment and order, it clearly
transpires that the trial Court has not committed any error of fact and
law in appreciating the evidence on record and in acquitting the
accused from the charges levelled against them. Even on re-
appreciation of the evidence, it clearly transpires that the prosecution
has miserably failed to prove the charge levelled against the accused
beyond reasonable doubt. Therefore, the impugned judgment and
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order of the trial Court is sustainable and the present appeal is liable
to be dismissed.
19. In view of the above, the present appeal is devoid of merits and
it deserves to be dismissed. Resultantly, it is dismissed. The
impugned judgment and order of acquittal passed by the trial Court is
hereby confirmed. Bail bond stands cancelled. Record and
proceedings be sent back to the concerned Trial Court forthwith.
(GITA GOPI,J)
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
