[Cites 6, Cited by 0]
Gujarat High Court
State Of Gujarat vs Himmatbhai @ Somabhai Ratanjibhai ... on 28 November, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/836/1999 JUDGMENT DATED: 28/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 836 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
√
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STATE OF GUJARAT
Versus
HIMMATBHAI @ SOMABHAI RATANJIBHAI PATEL & ORS.
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Appearance:
MR HARDIK MEHTA APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2,5,7,9
MR KASHYAP R JOSHI(2133) for the Opponent(s)/Respondent(s) No.
1,3,4,6,8
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 28/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. The State has challenged the judgment of
acquittal dated 19.06.1999 passed by the
Additional Sessions Judge, Bharuch in Sessions
Case No.78 of 1990, whereby the Additional
Sessions Judge acquitted all accused for the
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offence under Sections 147, 148, 323, 302 read
with Section 149 of the Indian Penal Code (I.P.C.
for short). All the nine accused were found
innocent on the ground that the prosecution has
failed to prove the case.
2. The charge was framed below Exh.6 in Sessions
Case No.78 of 1990 alleging that on 01.04.1990
between 10:00 to 12:00 hours at night, all
accused under the unlawful assembly with a common
intention, hatched conspiracy to cause death of
Chhitubhai Haribhai of village Juna Bhorbhatta.
The allegation is of causing injury with wooden
log and stick. The injury was alleged to have
been caused with the weapon resulting into murder
of Chhitubhai Haribhai.
3. Learned APP Mr. Hardik Mehta relying on the
deposition of the complainant - Hiraben submitted
that she has clearly disclosed the fact that
prior to the incident, Hasubhai Bhikhabhai Ahir
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was beaten by the brother of the complainant
Mangubhai and Chhitubhai and therefore, to avenge
the enmity, had formed unlawful assembly with
clear intention to cause murder of Chitubhai
Haribhai.
3.1 Learned APP Mr. Mehta submitted all accused
assaulted deceased and thereafter, the body was
taken in a Jeep at the house of Govindbhai
Somabhai where the body was left. The evidence of
the complainant, her husband as well as
Govindbhai would clarify the fact that all
accused had gone to the house of the complainant.
Learned APP submitted that complainant herself is
an eye witness to the incident and the learned
Trial Court Judge has miserably erred in
acquitting the accused.
3.2 Relying on the postmortem report, learned
APP submitted that there were many injuries on
the body of deceased and the cause of death was
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the multiple injuries sustained by Chhitubhai
Haribhai.
4. Countering the arguments, learned advocate
Mr. Kashyap R.Joshi for the respondents submitted
that the very evidence of the complainant would
prove that it was a false case lodged against
accused. The weapon, as alleged by the complaint
is contrary to one, alleged to have been involved
by the prosecution. The fact that complainant
left the place even after seeing her brother
allegedly being beaten by accused, creates doubt
to her conduct. Advocate Mr. Joshi submitted that
the fact of dead body being brought at the house
of Govindbhai Ahir (P.W.4) also brings a contrary
evidence of the complainant, who stated that dead
body was brought to her home and was kept beside
her own son on the cot.
4.1 Learned advocate Mr. Joshi submitted that
no blood stains were found there, nor signs of
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any physical fight was noted. The Doctor has
deposed that Injury Nos.2 to 9 were simple in
nature, thus stated that cause of death is
something strange, which has been suppressed and
has not been brought on record.
5. On hearing the arguments canvassed by both
the sides, we perused the record as well as
deposition of the witnesses. The complainant is
Hiraben Kalidas, sister of deceased - Chhitubhai
Haribhai. Deceased was elder brother of the
complainant and she also have another brother
Mangubhai Haribhai. As per her deposition, when
she was at home, at that time, Govindbhai
Somabhai Ahir came the to call her and asked her
to join him and told her that Chhitubhai was
beaten. The complainant refers to the names of
all accused and identified them in the Court.
5.1 According to the complainant thereafter she
joined Govindbhai to his house, where she saw
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Somabhai Ratanji beating Chhitubhai and at that
time all the other accused were also beating
Chhitubhai. They wielded with sword and knife.
According to the complainant at that time
Chhitubhai was alive and was near the house of
Govindbhai Somabhai. She was informed that they
would take Chhitubhai to police station and
pushed her aside and because of fear, she left
for her home.
5.2 The complainant further deposed that
thereafter all accused came to her house at about
2:00 O' clock at night; her son Jayantibhai was
sleeping on a cot outside the house. The
complainant stated that when she opened the door,
she saw that accused had thrown the body of
Chhitubhai on the cot of her son, therefore she
started shouting; while accused left the place.
According to the complainant accused stated that
they would return by bringing the Doctor.
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5.3 The complainant stated that accused had
brought the body of Chhitubhai in the Jeep of
Somabhai and had placed it outside their house,
and when accused had come there, Govindbhai
Somabhai was also present there. She gave the
cause for dispute, as the brother had three days
prior given a knife blow to Hasu Bhika and on
that suspicion all of them jointly had done to
death his brother.
5.4 The version of complainant is that she is
an eye witness to the incident. The accused were
armed with sword and knife. However, no such
injury has been corroborated in the deposition of
the Doctor, who stated that the injuries were
simple in nature. The conduct of the complainant
becomes doubtful. Though, she had seen the
brother being beaten by accused, she has not
taken any interest to inform the police. The
incident, she alleged, had taken place at 1:30 at
night. Govindbhai had come to call her,
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thereafter she had left with Govindbhai towards
his house and deceased was beaten near the house
of Govindbhai who is brother-in-law of the
complainant who was at home with son, and his
wife had gone to Jaghadia. According to
Govindbhai all accused had brought Chhitubhai in
their Jeep and dropped him near his house. They
had removed Chhitubhai from the jeep and were
sitting at a distance of 15 to 20 feet,
thereafter he was awoken.
5.5 The fact does not get corroboration as to
how he at 1:30 could reach the house of the
complainant and inform that accused were beating
Chhitubhai. The complainant had accompanied
Govindbhai. While the said fact of seeing the
incident and accused assaulting deceased with
knife and sword is not stated by Govindbhai. On
the contrary, Govindbhai had denied the said
fact.
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5.6 The contrary version now has been brought
to the notice of the Court is that the husband of
the complainant, who was examined as P.W.7 -
Kalidas Ahir, gives a version that about 12 O'
clock, his brother-in-law (Sadubhai) Govindbhai
had come to call him. He asked his wife to go and
inquire, as he was not well, and after an hour
his wife returned back and when inquired from her
she stated that Somabhai and his men had beaten
Chhitubhai. She gave the name of all accused and
thereafter they slept in the house.
5.7 P.W.7 husband of the complainant further
stated that at about 2:30 night, the doors were
knocked and when he opened the door, he saw that
deceased Chhitubhai was made to sleep on the cot
of his son Jayantibhai, who was sleeping out side
the house. The case of all the witnesses, who
projected themselves as eye witnesses brings
contrary version on record.
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6. Son of the complainant Jayantibhai Kalidas
was examined as P.W.8. According to him, he was
sleeping on the cot outside the house, and
because of some movement, he suddenly woke up and
saw his uncle Chhitubhai's dead body beside him
on the cot. The son could depose that all nine
accused were present there. They had come in a
Jeep. Somabhai had knocked the door of their
house to awake his parents. The mother inquired
as to why Chhitubhai was beaten so harshly, to
that son (P.W.8) said that Somabhai told that he
would go to call for a Doctor. He waited for
certain time but none appeared, therefore, mother
as well as Govindbhai went to police station.
7. The conduct of accused, as has been brought
on record by the witnesses becomes unbelievable.
The evidence of the witnesses runs contrary to
each other, which has been rightly appreciated
and observed by the learned Trial Court Judge.
The learned Judge has not believed the witnesses,
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since the evidence of the witnesses do not
corroborate each other. The time of incident does
not match. The injuries alleged were not possible
with the alleged weapon. The Doctor had opined
that the injury 1/A in Column No.17 could be
caused by sharp weapon, while the charge framed
against the accused is of causing injury with the
sticks and wooden log.
8. The conduct of the complainant as well as
Govindbhai as brother-in-law as well as husband
are unnatural. The sister has not disclosed the
real fact. It would not be believed that sister
would have left the brother there unattended even
after seeing all accused beating brother
Chhitubhai. The fact that even after the
incident, they all slept in the house unworried
about the injuries is an unnatural conduct, which
could lead to the inference that real incident
has not been brought on record. There is
suppression of facts. The genesis of the incident
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has been deliberately hidden by the witnesses.
9. In the case of Bhagwan Sahai and Anr. v. State
of Rajasthan reported in (2016) 13 SCC 171, it was
held by Hon'ble Supreme Court as under:
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..."
10. In the case of Chandrappa v. State of
Karnataka, (2007) 4 SCC 415 it was held as
under:
"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, 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
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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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11. In the case of Bhupatbhai Bachubhai Chavda and
Anr. Vs State of Gujarat, reported in 2024 SCC OnLine
SC 523 : 2024 INSC 295, it was held as under:-
"6. ...Appellate Court can interfere
with the order of acquittal only if it
is satisfied after reappreciating 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..."
12. In view of the observations made herein
above, we do not find any reason to dislodge the
findings of the learned Trial Court Judge. In the
result, the present Criminal Appeal stands
dismissed. Record and Proceeding be sent back to
the concerned Trial Court forthwith.
(GITA GOPI,J)
(HEMANT M. PRACHCHHAK,J)
Pankaj/10
