Gujarat High Court
State Of Gujarat vs Koli Badarbhai Bhikhabhai on 21 November, 2025
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 903 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
and
HONOURABLE MR.JUSTICE P. M. RAVAL
==========================================================
Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
KOLI BADARBHAI BHIKHABHAI & ANR.
==========================================================
Appearance:
PRANAV DHAGAT APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
MR ASHISH M DAGLI(2203) for the Opponent(s)/Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 21/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. The State is before this court assailing the judgment
and order of acquittal dated 09.06.2000 passed by the Ld.
Session Judge Surendranagar in Session Case No. 104 of
1998, whereby, the accused came to be acquitted of charges
punishable under Sections 302, 307 and 114 of IPC and
Section 135 of the Bombay Police Act.
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
2. The facts of the prosecution case, in nutshell, are
that:-
2.1 In the intervening night of 09.07.1998 and
10.07.1998, at around 1:00 a.m., the neighbour of the
complainant, namely Bharat, came and informed him that
someone had injured Praveenbhai (deceased) and Nagjibhai
Ukabhai (injured) and that they were lying at the residence.
Pursuant to this information, the complainant rushed to the
place of incident and found his mother, Nayiben, crying
there. He also found Nagjibhai lying in the front portion of
the residence, injured on his ear, with bloodstains on his
both hands. Further, he found Praveenbhai lying on the cot
with blood all over his body, having sustained injuries on
his face, and he was found to have expired.
2.2 Upon inquiring from injured Nagjibhai Ukabhai, the
complainant was informed that Badar Bikha and Rasik
Bikha, residents of Village Than, had come armed with
swords and had inflicted blows on the head of Nagjibhai.
Both the accused had also attacked deceased Pravinbhai
with swords, as a result of which Pravinbhai succumbed to
the injuries. Nagjibhai Ukabhai was immediately shifted to
the hospital at Surendranagar. Pursuant thereto, an FIR
came to be registered, being C.R. No. 54 of 1998, at Muli
Police Station at around 5:00 a.m. on 10.07.1998, for the
offences punishable under Sections 302 and 307 read with
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
Section 114 of the Indian Penal Code and Section 135 of the
Bombay Police Act
2.3 After completion of investigation, chargesheet came to
be filed before the concerned jurisdictional Court. Since the
case was not triable by the learned JMFC, the learned
JMFC, by order dated 05.10.1998, committed the matter to
the Sessions Court, where it came to be registered as
Sessions Case No. 104 of 1998. The learned Sessions Judge
thereafter framed charges at Exhibit 3 and recorded the
pleas of the Accused at Exhibits 4 and 5, to which they
denied the charges and prayed for trial.
2.4 To bring home the charges, the prosecution relied
upon the following documentary as well as oral evidence:
Sr Particulars Exh.
4 Executive Magistrate Chaturbhai Sardarbhai 29
Damor
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
Documentary Evidences.
6 Forwarding letter of sending Muddamal to FSL 19
11 Police Yadi
18 Panchanama of Seizure of weapon used in 45
Crime when it was presented.
19 Copy of Entry being MLC No. 6/1998 registered 46
before the Vadhvan Police Station.
2.5 After completion of the trial and after recording the
further statements of the accused under Section 313 of the
CrPC, and upon hearing the respective advocates for the
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
parties, the learned Sessions Judge passed the impugned
judgment, which is now under challenge before this Court.
3. During the pendency of the present appeal,
Respondent No. 1, being Original Accused No. 1, expired,
and by order dated 05.02.2016, the appeal, qua Respondent
No. 1, came to be abated. Hence, the present appeal now
survives only against Original Accused No. 2.
4. Learned APP, Mr. Pranav Dagat, submitted that:-
4.1 The judgment and order of acquittal passed by the
learned Sessions Judge is erroneous, illegal, and has been
rendered without proper appreciation of the oral as well as
documentary evidence on record.
4.2 That the Trial Court failed to appreciate the deposition
of injured witness Nagjibhai Ukabhai at Exhibit 13, wherein
he has clearly deposed that both the accused inflicted sword
blows upon deceased Praveenbhai, and that when he
(Nagjibhai) intervened, both the accused also inflicted
injuries upon him, resulting in injuries on both his hands
while he attempted to save himself. This version further
stands corroborated by the medical evidence of Dr.
Arjunbhai, examined at Exhibit 23.
4.3 That the injuries sustained by Nagjibhai Ukabhai were
serious in nature and were possible to have been caused by
the Muddamal swords marked as Article Nos. 11 and 12.
4.4 It was contended that the Trial Court failed to properly
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
appreciate the statement of Nagjibhai Ukabhai before the
Executive Magistrate who has examined Vide Exh. 29
namely Chaturbhai Sardarbhai Damor and thus, the Trial
Court has committed grave error merely based on minor
contradiction which do not go into the root of the case.
4.5 That the Trial Court ought to have appreciated that
during the pendency of Trial, Complainant Chhaganbhai
has passed away and therefore, could not have been
examined, however, from the deposition of the PSI Muli
Police Station, he stated that the Complainant is fully
supported the complaint at Exh.39 proving the fact that the
complainant had lodged the complaint for the offence under
Section 302 and 307 of IPC and also named both the
accused persons.
4.6 It was further submitted that during the pendency of
the trial, the complainant Chaganbhai had expired and,
therefore, could not be examined. However, the deposition of
the PSO of Muli Police Station has fully supported the
contents of the complaint at Exhibit 39, establishing that
the complainant Chaganbhai had lodged the FIR for the
offences under Sections 302 and 307 of the IPC and had
specifically named both the accused persons.
4.7 That these aspects also require consideration in light
of the evidence of the medical witness examined at Exhibit
23 namely Dr. Arjunkumar Mohanlal Parikh, who has
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
supported the prosecution case, particularly with respect to
the history narrated by injured witness Nagjibhai Ukabhai,
wherein the names of both the accused were expressly
stated. Thus, the prosecution has proved beyond reasonable
doubt that injured witness Nagjibhai Ukabhai, while
intervening during the scuffle, sustained injuries and was
an eyewitness to the assault resulting in the death of
Praveenbhai. The Trial Court, therefore, committed a grave
error in law in disbelieving this injured eyewitness and
acquitting the accused, despite his testimony being duly
corroborated by the testimony of Panch witness namely
Janakbhai Mohanbhai and Lakshmanbhai Chothabhai at
Exhibits 35 and 36 respectively, who are residents near the
place where the deceased was found.
4.8 The Trial Court has also not considered the fact that
blood was found at the aforesaid spot, which belonged to
the deceased. It is further argued that the Trial Court has
referred to various exaggerations in the testimony of witness
Nagjibhai; however, it ought to have considered that when
the deposition of such a witness reposes confidence, it
cannot be discarded merely on account of exaggerations.
Thus, the appellant argues that the present appeal is
required to be allowed.
5. Per contra, learned Advocate Mr. Ashish Dagli submits
that:-
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
5.1 Once the respondent-original accused have been given
the benefit of doubt, and if two views are possible, the same
should be interfered with only when there is perversity in
the finding of the learned trial court. More particularly,
when two views are possible, the view which leans in favor
of the accused ought to be adopted, and the trial court,
having done so, committed no error, much less an error of
law, in acquitting the present accused.
5.2 That the entire genesis of the incident does not inspire
confidence, inasmuch as the blood of witness Nagjibai was
not found in the room where the deceased was discovered.
However, the prosecution's case is that while saving the life
of Pravin, Nagjibai sustained the injury inflicted on him by
the present accused. This is coupled with the fact that the
statement given before the learned Magistrate indicates that
he was injured while he was in his own room. Thus, it
cannot be said that Nagjibai had witnessed the murder of
Pravinbhai.
5.3 That there are material discrepancies regarding the
claim that Nagjibhai witnessed the offence, inasmuch as the
mother of Nagjibhai, who according to the prosecution, was
sleeping in the same room where the murder was
committed, has not been examined. The withholding of such
material eyewitness testimony requires an adverse inference
to be drawn against the prosecution. Even otherwise, the
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
fact that Nagjibhai witnessed the murder of Pravinbhai is
not proved beyond reasonable doubt. The Trial Court has, in
detail, recorded its reasons for not believing his version.
Hence, it is submitted that the present application deserves
rejection.
6. Heard learned advocate for the respective parties.
6.1 We have perused the impugned order as well as the
record of the case, more particularly the deposition of
Nagjibhai Ukabhai, PW-1, at Exhibit 13; the deposition of
PW-3, Dr. Harshankumar Taphubha jhala who had
performed the post-mortem at Exhibit 23 and PW-6
Janakbhai Mohanbhai at Exhibit 35. We have also
considered the deposition of the Investigating Officer, PW-10
Kantibhai Naranbhai Patel, at Exhibit 14. At the outset, it
would be profitable to refer the judgment of the Hon'ble
Supreme Court in the case of Constable 907 Surendra
Singh vs State Of Uttarakhand reported in (2025) 2 SCR
239 wherein it is held that:-
"11. Recently, in the case of Babu Sahebagouda
Rudragoudar and others v. State of Karnataka, a Bench of
this Court to which one of us was a Member (B.R. Gavai,
J.) had an occasion to consider the legal position with
regard to the scope of interference in an appeal against
acquittal. It was observed thus:
38. First of all, we would like to reiterate the principles
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
laid down by this Court governing the scope of
interference by the High Court in an appeal filed by the
State for challenging acquittal of the accused recorded by
the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh
Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC
(Cri) 31] encapsulated the legal position covering the field
after considering various earlier judgments and held as
below : (SCC pp.482-83, para 29) 6 (2024) 8 SCC 149
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 of acquittal in the following words :
(Chandrappa case [Chandrappa v. State of Karnataka,
(2007) 4 SCC 415 :(2007) 2 SCC (Cri) 325] , SCC p.432,
para 42)
42. From the above decisions, in our considered view, the
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, re
appreciate 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
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
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.
"40. Further, in H.D. Sundara v. State of Karnataka [H.D.
Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3
SCC (Cri) 748] this Court summarised the principles
governing the exercise of appellate jurisdiction while
dealing with an appeal against acquittal under Section
378CrPC as follows : (SCC p. 584, para 8)
"8. ... 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
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
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."
41. Thus, it is beyond the pale of doubt that the scope of
interference by an appellate court for reversing the
judgment of acquittal recorded by the trial court in favour
of the accused has to be exercised within the four corners
of the following principles:
41.1. That the judgment of acquittal suffers from patent
perversity;
41.2. That the same is based on a misreading/omission to
consider material evidence on record; and
41.3. That no two reasonable views are possible and only
the view consistent with the guilt of the accused is possible
from the evidence available on record.
12. It could thus be seen that it is a settled legal position
that the interference with the finding of acquittal recorded
by the Ld. Trial Judge would be warranted by the High
Court only if the judgment of acquittal suffers from patent
perversity; that the same is based on a misreading /
omission to consider material evidence on record and that
no two reasonable views are possible and only the view
consistent with the guilt of the accused is possible from
the evidence available on record."
6.2 It transpires that the complainant expired during the
pendency of the trial and, therefore, could not be examined.
Consequently, the very substratum of the allegation has
remained unproved. Be that as it may, the relevant
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
testimony in the present case rests upon the depositions of
Najibhai Ukabhai, and Janakbhai Mohan.
6.3 From reading of the deposition of Janakbhai
Mohanbhai, juxtaposed with the deposition of the
Investigating Officer and that of Nagjibhai Ukabhai, it
cannot be said that the Trial Court committed any error in
not believing the version of Janakbhai regarding having
seen the accused running away with a sword. Therefore,
what effectively remains for the prosecution is the
deposition of Nagjibhai Ukabhai. However, the Trial Court,
from page 23 of the impugned judgment, more particularly
paragraph 20, has recorded detailed reasons for not
believing the testimony of Nagjibhai Ukabhai, for the
following reasons:
(a) Nagjibhai Ukabhai has attempted to portray that at the
time of the incident he was sleeping in the adjoining room,
and upon hearing a noise, he rushed inside, where
Pravinbhai was sleeping. He claims to have seen a sword in
the hands of both the accused. He further states that the
light and fan were on at that time, enabling him to clearly
identify both the accused persons. This witness has also
narrated in detail the nature of the injuries allegedly
inflicted on various parts of the deceased's body. He further
states that when he intervened to save the deceased, he
sustained injuries on the palms of both his hands. He
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
further alleges that accused No. 1 had also inflicted an
injury on his left ear.
(b) On perusal of his statement recorded before the
Executive Magistrate - who had initially recorded what the
prosecution sought to portray as a dying declaration (since
the injured survived, the said statement cannot be treated
as a dying declaration but only as a statement under
Section 161 of the CrPC) and comparing the same with the
deposition of the Executive Magistrate, exhibited at Exhibit
29 (PW-4 Chaturbhai Damor), it transpires that he had
stated that upon hearing a sound, he opened the door and
immediately found both the accused armed with swords,
and that he sustained injuries on both his palms while
attempting to prevent them from injuring him
further.However, there is no iota of evidence on record to
show that he had actually seen the accused inflicting
injuries upon Praveenbhai. On the contrary, while his
deposition before the Court states to the effect that he has
seen both the accused persons injuring the deceased, this
version is not believable.
(c) It is also noted that the blood of Nagjibhai Ukabhai
was found at the spot where the deceased was sleeping, and
not at the place where Nagjibhai Ukabhai claims to have
been sleeping, as recorded in paragraph 21 of the judgment.
(d) It is also an admitted fact that the mother of Nagjibhai
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
Ukabhai, who was sleeping in the same room where the
deceased was murdered, has not been examined by the
prosecution for reasons best known to them coupled with
the fact that Nagjibhai Ukabhai admitted in his cross-
examination that his mother can neither see nor hear,
further renders his version doubtful. Under such
circumstances, the deposition of Nagjibhai Ukabhai cannot
be believed.
(e) It is also pertinent to note that the doctor who examined
Nagjibhai Ukabhai, and who given treatment, clearly states
in his cross-examination that if a person had attempted to
hold a sword, like the one shown to him as Muddamal
Articles Nos. 11 and 12, the injuries claimed to have been
sustained on the witness's palms were not possible.
6.4 Thus, collectively, when the entire evidence of
Nagjibhai Ukabhai is taken into consideration, it creates a
serious doubt and does not inspire confidence. The Trial
Court has committed no error whatsoever, either on facts or
in law, in disbelieving the deposition of Nagjibhai Ukabhai
and in extending the benefit of doubt to the accused
persons. This conclusion is further fortified by the judgment
in Vijaybhai v. State of M.P., reported in 2023 (0) AIJEL-SC
72782, wherein, in paragraph 10, it has been held that:
"No doubt, that the conviction can be based on the evidence of a
NEUTRAL CITATION
R/CR.A/903/2000 JUDGMENT DATED: 21/11/2025
undefined
solitary witness. However, for resting the conviction on the basis
of such testimony, the evidence of such a witness has to be found
to be wholly trustworthy, reliable, and cogent. It is further to be
noted that Prem Narain (PW-5) has admitted to the previous
enmity between his family on the one hand and the accused
persons on the other hand. As held by this Court in a catena of
judgments, previous enmity is a double-edged weapon. On one
hand, it provides motive, and on the other hand, the possibility
of false implication cannot be ruled out."
6.5 In view of the aforesaid principle, when an acquittal is
based on the sole testimony of a solitary witness, and the
evidence of such witness is found to be untrustworthy,
unreliable, and inconsistent with the prosecution case,
coupled with the admitted fact of previous enmity between
the parties, a serious doubt is created regarding the
genuineness of the incident in the manner alleged by the
purported eyewitness. Under such circumstances, when two
views are reasonably possible, the view favouring the
accused is required to be adopted. The Trial Court, having
done so, has committed no error.
7. Accordingly, no case is made out for interference. The
appeal stands rejected. The bail bond, if any, stands
cancelled and the surety stands discharged. Record and
proceedings be sent back to the Trial Court forthwith.
(MAULIK J.SHELAT,J)
(P. M. RAVAL, J)
MMP
