Gujarat High Court
State Of Gujarat vs Himmatsinh Javansinh Rajput on 4 October, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
R/CR.A/1274/2005 JUDGMENT DATED: 04/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1274 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
HIMMATSINH JAVANSINH RAJPUT
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Appearance:
MR JK SHAH, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
MS SUNEETA R SHUKLA(5574) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 04/10/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIKHIL S. KARIEL)
1. Heard learned Additional Public Prosecutor Mr.J.K.Shah
appearing on behalf of the appellant - State.
2. By way of this appeal under Section 378(1)(3) of the
Code of Criminal Procedure, the appellant State seeks to
assail judgment and order passed by the learned Sessions
Court, Banaskantha at Palanpur dated 24.01.2005 in Criminal
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Appeal No.98/2002 more particularly whereby the learned
Sessions Court has acquitted the opponent herein - sole
accused for the offences punishable under Section 307 of the
IPC read with Section 135 of the Bombay Police Act.
3. Facts in brief, leading to the appeal being that an FIR
came to be registered on 31.08.1996 by one Asifkhan Pirkhan
Baloch who was an eye witness to the incident inter alia
alleging that while he was present near in an area of Palanpur
called Kharavas, he had seen the injured victim Firozkhan
Kalekhan Makrani sitting on a wall near the water tank and
whereas, the accused having rushed towards the injured
victim with a Dhariya in his hand and having assaulted him
thrice and whereas, the injured victim had fallen down and
the complainant had thereupon tried to apprehend the
accused and whereas, the accused using force had come out
of the grip of the complainant and in the scuffle the Dhariya
with which he had assaulted the injured victim had fallen
down and whereas, the accused had run away from the spot.
3.1. It is further alleged that the complainant along with
some other persons who had rushed to the spot had taken the
injured victim to the Palanpur Civil Hospital and whereas, in
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the FIR it is mentioned that as per the injured victim, the
assault by the accused was on account of an old dispute
between the accused and the injured victim more particularly
whereby, the injured victim had caught hold of the accused
atleast a year back when the accused had gone to the house of
the injured victim for the purpose of committing a theft and
whereas, thereafter, it is alleged that the injured victim had
assaulted the accused. It is also alleged that the injured victim
had thereafter been shifted to Ahmedabad Civil Hospital etc.
3.2. It appears that the charge-sheet had been filed by the
Investigating Officer and whereas, charge had been framed on
10.05.2004 and whereas after the trial, learned Sessions
Court, vide the judgment impugned, had acquitted the
accused of the charges leveled against him.
4. Learned APP Mr.Shah would assail the judgment by
submitting that the learned Sessions Court has committed a
grave error which would require interference of this Court. It
is submitted that though on record it is coming out that there
was an independent eye witness to the incident and whereas,
there were other persons who had witnessed the incident, yet,
the learned Sessions Court had disbelieved their deposition. It
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is further pointed out that merely on account of minor
inconsistencies in the statement of the witnesses more
particularly when such witnesses had confirmed that they had
witnessed the incident, the learned Sessions Court ought not
to have disbelieved them.
4.1. Learned APP would submit that the present was a case
of a premeditated assault where the injured victim was sitting
at a place and the accused had come over to such a place and
without any provocation or altercation with the deadly
weapon which the accused had brought along with him, had
assaulted the injured victim thrice. Learned APP would submit
that the motive for the assault also coming out on record, the
learned Sessions Court ought to have accepted the version of
the prosecution and ought to have convicted the accused.
4.2. Thus submitting, learned APP would request this Court
to interfere in the impugned decision and set aside the same.
5. Heard learned APP on behalf of the appellant - State and
perused the documents on record.
5.1. At the outset, before proceeding with examining the
submissions of the learned APP, we would refer to the
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decision of the Hon'ble Supreme Court in case of Babu
Sahebagouda Rudragoudar and Others vs. State of
Karnataka, reported in 2024 (8) SCC 149, paragraph
No.41 being relevant for the said purpose, is reproduced
hereinbelow for benefit:-
"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:-
(a) That the judgment of acquittal suffers from patent
perversity;
(b) That the same is based on a misreading/omission
to consider material evidence on record;
(c) 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."
5.2. Considering the law laid down by the Hon'ble Supreme
Court, it would appear that an Appellate Court could interfere
with a judgment of acquittal recorded by the Trial Court in
favour of the accused only in certain circumstances. The
primary circumstance being that the Appellate Court is
required to come to a conclusion that the judgment of
acquittal suffers from the patent perversity. The second
aspect being that the Sessions Court has acquitted the
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accused on account of misreading / omitting to consider
certain material evidence which was on record and the third
aspect being that upon examining the evidence available on
record, there is only one view possible that is consistent with
the guilt of the accused and whereas, there should not be two
different views which could be discernible.
5.3. Again, most importantly, the Hon'ble Supreme Court has
laid down that to interfere with the judgment of acquittal, the
Appellate Court has to record findings more particularly as
per the aspects laid down by the Hon'ble Supreme Court as
noted hereinabove.
6. Considering the fact situation from the perspective of
the law laid down by the Hon'ble Apex Court, to this Court, it
would appear that none of the circumstances, as laid down by
the Hon'ble Apex Court, would be available in the present
case. We are of the considered opinion that neither the
decision of the learned Sessions Court suffers from any patent
perversity nor it is based upon misreading / omission of
material evidence on record nor we are of the opinion that
upon examining the evidence, there is only one view possible
which is inconsistent with the guilt of the accused.
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6.1. To arrive at the above conclusion, having examined the
record threadbare, we would highlight certain aspects which
also has weighed with the learned Sessions Court. The
primary aspect being as having been pointed out by the
defense that the injured victim had been firstly taken to the
Palanpur Civil Hospital and whereas, he had thereafter been
taken to the Civil Hospital, Ahmedabad and whereas, at
Ahmedabad dying declaration of the injured victim had been
recorded by an Executive Magistrate. It would appear that the
Executive Magistrate concerned who had recorded the dying
declaration had not been brought forth by the prosecution as
a witness, rather, the Executive Magistrate had been called
for as a witness by the defense. In his deposition, the
Executive Magistrate supports the fact of having taken a
dying declaration and whereas, it would appear that in the
cross-examination by the learned APP, it comes out that the
injured victim at the stage of dying declaration had stated that
while he was sitting at the place of the assault, he had seen
Himmatsinh i.e. the accused little afar and the said
Himmatsinh is stated to have turned and left for his residence
and whereas, the injured victim also states that he had seen
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one Javansinh standing behind with a Dhariya which had a
copper plated handle. It also appears that a specific question
had been posed to the said witness as regards whether the
witness had committed a mistake in regarding the name of the
accused as Javansinh instead of Himmatsinh and whereas, the
witness had specifically denied that he had committed any
mistake of such sort.
6.2. To this Court, it would appear that the deposition of the
said witness, who is completely independent witness, who has
no corelation with either the parties to the incident or to the
incident in question is the most crucial material in the entire
issue. The glaring aspect here is that the said witness who
happens to be an Executive Magistrate and who happens to
have taken a dying declaration of the injured victim had been
conveniently not joined as a witness by the prosecution.
Rightly so, since in the deposition, the entire case of the
prosecution had crumbled on account of the deposition of the
said witness more particularly whereby, while confirming the
dying declaration, the said witness had clearly established
that the assault, as per the dying declaration, was not by the
present accused but was by some other person.
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6.3. Going further, it would also appear that the learned
Sessions Court had noticed the fact that in the dying
declaration, the injured victim had stated about another
person namely one Javansinh standing with a Dhariya with a
copper handle and it would appear that the Dhariya which
was recovered at the site of the incident, using which the
opponent accused had allegedly assaulted the injured victim,
was not one with copper handle.
6.4. It would also appear that the learned Sessions Court has
noticed that there were glaring inconsistencies in the
deposition of the witnesses more particularly the complainant
who claimed to be an eye witness to the incident. Learned
Sessions Court, having dissected the deposition of the
complainant, was of the opinion that from the deposition, it
would appear that while the complainant was present at the
site of the incident, yet, as per his own version, the
complainant had not seen the actual assault and whereas, he
had only seen that the accused - opponent herein was
attempting to run away. It would also appear that the learned
Sessions Court had also noticed inconsistencies in the
deposition of other witnesses who had rushed to the spot upon
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the injured victim raising hue and cry and whereas, the
learned Sessions Court had clearly come to a conclusion that
the said witnesses also, though they were present at the site
or living around the place of incident, were not witnesses to
the actual incident of assault and whereas, they had come to
the place where the alleged assault had taken place only after
the assault had been completed.
6.5. The learned Sessions Court had also noticed the
suggestion by the learned advocate on behalf of the accused
that the injuries were not so serious to have invoked offence
punishable under Section 307 of the IPC and whereas, the
learned Sessions Court had also noticed a suggestion by the
learned advocate for the defense that the inconsistencies
would magnify considering the fact that the injured victim
himself was working in the police department at the time of
assault and whereas, his father and brother were also
employed with the police department.
6.6. Considering the above glaring inconsistencies more
particularly whereby the defense could not establish beyond
reasonable doubt as to the assault having been committed by
the accused - opponent and whereas, to this Court, it would
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appear that the learned Sessions Court had not committed
any perversity whatsoever in coming out with the finding of
acquittal in favour of the accused.
7. Having examined the decision as well as the record, we
are also of the considered opinion that neither any material
evidence had been omitted nor misread by the learned
Sessions Court and whereas, we are also of the considered
opinion that having examined the evidence on record, while
two different views are not possible and whereas, the only
view which could be taken as consistent with the reading of
the material being that the prosecution had failed to establish
beyond doubt that the accused had committed the incident
and whereas, under such circumstances, we are disinclined to
interfere in the present appeal.
8. At this stage, we would also not lose sight of the fact
that the incident had happened somewhere in the year 1996
i.e. approximately three decades back and whereas, the
judgment impugned before us is of the year 2005, that is also
approximately two decades old and whereas, in view of the
glaring inconsistencies, we are of the opinion that even
otherwise, there is no case made out for interference with the
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said decision. Hence, the appeal fails and is disposed of as
rejected.
(NIKHIL S. KARIEL,J)
(DIVYESH A. JOSHI,J)
Bhoomi
