Gujarat High Court

State Of Gujarat vs Keval Arjunbhai Gaud on 15 September, 2025

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                           R/CR.A/932/1999                                         JUDGMENT DATED: 15/09/2025

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                                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/CRIMINAL APPEAL NO. 932 of 1999


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
                      and
                      HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI

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                                   Approved for Reporting                         Yes           No

                      ==========================================================
                                                    STATE OF GUJARAT
                                                          Versus
                                               KEVAL ARJUNBHAI GAUD & ANR.
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                      Appearance:
                      MR. JAY MEHTA, ADDL. PUBLIC PROSECUTOR for the Appellant(s)
                      No. 1
                      MS SHILPA R SHAH(796) for the Opponent(s)/Respondent(s) No. 1,2
                      NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2
                      ==========================================================

                        CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
                              and
                              HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
                              DESAI

                                                        Date : 15/09/2025

                                           ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI)

1. By virtue of judgment and order passed by the learned

Additional Sessions Judge, Court No. 23, Ahmedabad in the

Sessions Case No. 127/1996 on 15.06.1999, both the

respondents accused came to be acquitted.

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2. The Complainant- State being aggrieved by the same had

preferred the present appeal under Section 378 of Criminal

Procedure Code, 1908.

3. The complaint came to be lodged by one Silveraj alias Abbu

Shuklingam on 26.01.1996 before the Amraiwadi Police Station

against the respondents - accused under Sections 302, 294(b)

and 323 of the Indian Penal Code, 1860. As per the facts of the

complaint, the original complainant - Silveraj along with his

friend Arjun, Sunil and others were standing at the Son Pan

Centre at around 9.00 P.M. on 26.01.1996. At that time, the

respondents - accused No. 1 Keval Arjun Gaud had come there

and had started abusing them, to which, the original

complainant had asked him to restrain himself, however, instead

of doing so, he got angry and had started beating the original

complainant. In the meantime, the respondents - accused No. 2,

who was the brother of respondents - accused No. 1, also came

there running and started beating Sunil, the friend of the

original complainant, who too was standing there. The

respondents - accused No. 1 thereafter brought an Iron pipe and

the friend of original complainant Mr. Narendra Karansinh

Gaud, who had arrived there with eggs, being friend of the

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original complainant, the respondents - accused No. 1 had given

a blow of the iron pipe on his right temple and had given another

blow on his right ribs. The original complainant and his friends

had intervened and thereafter, both the respondents - accused

had fled from the scene of the incident. Since, Narendra was

bleeding, he was taken to L. G. hospital and was admitted there.

He was unable to speak and accordingly, the original

complainant had lodged the complaint, which came to be

registered and the investigation was set into motion.

4. The investigation officer had drawn the relevant panchnamas,

and had recorded the statements of witnesses who were

conversant with the incident. It is pertinent to observe that, the

iron rod, with which the deceased Narendra was attacked by the

respondents - accused No. 1 was neither found nor seized on the

date of the incident or immediately thereafter, and the same was

discovered at the instance of respondents - accused No. 1 on

23.02.1996 i.e. after almost a month of the incident. The

discovery panchnama which is on record at Exh. 27 mentions

that, blood stains or any other signs were not found on the iron

rod, which was so discovered. It would also be pertinent to

observe that, the Panch Witness No. 1, Babubhai Harilal Gajjar

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of the said discovery panchnama, who came to be examined as

PW - 4 vide Exh. 26 by the prosecution during the trial, in his

examination-in-chief, had stated that he was called by the police

on 13.02.1996. The said date being a typographical error or

otherwise. was not clarified on record by the prosecution. At this

juncture, it would also be pertinent to note that, the wooden log

which was used in the commission of the offence as shown to

have been used by the respondents - accused No. 2, after being

sent to the FSL for examination, was stated to have been devoid

of any blood stains, as per the report of the FSL which is on

record at Exh. 17. The prosecution examined PW- 10 Dineshbhai

Bhaijibhai Parmar, vide Exh. 37, who was declared as hostile as

he had not supported the prosecution's case and had stated in

his examination-in-chief that the accused had not produced the

iron rod in their presence.

5. Upon completion of investigation, charge-sheet came to be

filed and the offences being triable by the Court of Sessions, was

committed to the said Court. The charge was framed against

both the accused by the learned Additional Sessions Judge,

Court No. 17, Ahmedabad under Sections 302, 294(b) and 323 of

the Indian Penal Code, 1860 to which, they having denied, were

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put to trial. The prosecution to bring home the guilt of the

accused had examined 15 witnesses, and had submitted 18

documents. Upon completion of oral evidence, the statements of

both the accused under Section 313 of the Cr. P. C. came to be

recorded and they were put to the incriminating evidence which

had come on record, however, they had denied the same. After

hearing both the learned Advocates, the learned Addtional

Sessions Judge, Court No. 07, Ahmedabad was pleased to acquit

the respondents - accused vide his judgment and order dated

15.06.1999.

6. At the outset, the complainant Mr. Silveraj, who happened to

be the eyewitness, was examined as PW-2 vide Exh. 23, by the

prosecution. He was not declared as hostile though he had in his

complaint at Exh. 24 that, he had witnessed to the incident and

had seen the respondents - accused inflicting blows upon the

deceased Narendra as well as himself, in his cross-examination,

in para -11, he having admitted that, he had only seen Narendra

being dragged near his home and nothing more, and he also

having not seen as to what had happened thereafter. Thus,

though the original complainant who was the star witness, had

not supported the prosecution case.

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Though the original complainant, as per his version in the

complaint, was beaten by the respondents - accused and more

particularly, by the respondents - accused No. 2, he was treated

in the Civil Hospital, wherein, in the history given by him before

the Medical Officer, he had only stated that he was beaten by the

opposite party and nothing more. Though, he was aware about

the identity of both the respondents - accused as per his

complaint at Exh. 24, he had not named them before the said

Medical Officer, which made his presence at the time of the

incident doubtful.

7. The prosecution had examined PW- 8, Sunil Premlal Selke

(Marathi), who was the another eyewitness to the incident, and

who too was injured in the incident. This witness had not

supported the case of the prosecution, rather in his

examination-in-chief, he had mentioned that, it was his wife who

had intimated him that, respondents - accused had come to

their house to quarrel with them. It is also pertinent to observe

that, in his examination-in-chief, he had not uttered a word as

regards the respondents - accused having inflicted blows to the

deceased - Narendra.

8. The prosecution had examined PW - 9, Somaben Sunil Selke,

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the wife of PW- 8, Sunil Premlal Selke, who had admitted in her

cross-examination that, she had not witnessed the incident as

she had locked herself up in her house.

9. The prosecution had examined PW 3, Hitesh alias Surendra

Karansinh, the younger brother of the deceased Narendra. The

original complainant had informed him as regards the incident,

and as such, he had reached the place of incident, where he had

seen his brother lying on the floor. He had stated in his

examination-in-chief that, he had seen the respondents -

accused fleeing from the scene of incident along with an iron

pipe and wooden log. In his cross-examination, he had admitted

that his and original complainant - Silveraj's cloths were stained

with blood, as they had lifted Narendra from the scene of

incident and had placed him in the Auto-rikshaw. However, no

such clothes were seized by the investigating officer. Hence, the

presence of PW- 3, even after the incident, was doubtful.

10. The prosecution had examined PW - 14, Keshav Prasabharti

Swami, who was the investigating officer, who had admitted in

his deposition that, he had not seized the clothes of the

complainant - Silveraj and Surendra, the brother of the

deceased, and had stated that, since there were neither stains

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nor any other signs on the same, he had not done so. Nothing

incriminating and favourable was brought on record by the

prosecution through the deposition of the investigating officer.

11. We do not deem fit to either discuss or re-appreciate the

depositions of other witnesses as well as the other documentary

evidence, as the same would only be a futile exercise in the light

of the aforestated unworthy evidence.

12. The aforesaid facts came to be observed by the learned

competent Court in its judgment and order passed in Sessions

Case No. 127/1996 hence, we do not deem it fit to repeat and re-

appreiciate the same in its entirety. The observations of the

competent Court were just, legal and proper.

13. At this stage, it would be appropriate to refer to the

observations of the Apex Court regarding the scope of

interference in acquittal appeals in the case of Chandrappa &

Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415,

wherein, the Apex Court has observed as under:

"Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313, this Court stated:

"While deciding an appeal it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or

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plea. against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court".

From the above decisions, in our considered view, the following general principles regarding powers of 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 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 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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13.1 In the case of Sanjeev v. State of Himachal Pradesh

reported in 2022 (6) SCC 294, the Hon'ble Apex Court has held

as under:

"7. It is well settled that:-

7.1 While dealing with an appeal against acquittal, the reasons which had weighed with the Trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the Trial Court deserves to be upturned (See Vijay Mohan Singh v. State of Karnataka3, Anwar Ali and another v. State of Himachal Pradesh).

7.2 With an order of acquittal by the Trial Court, the normal presumption of innocence in a criminal matter gets reinforced (See Atley v. State of Uttar Pradesh).

7.3 If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (See Sambasivan and others v. State of Kerala)."

13.2 Similarly, in the case of Bhupatbhai Bachubhai Chavda

and another reported in [2024] 4 S.C.R. 322, the Hon'ble Apex

Court has held as under:

"6. 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 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. The High Court has ignored the well-settled principle that an order of acquittal further

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strengthens the presumption of innocence of the 326 [2024] 4 S.C.R. Digital Supreme Court Reports accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.

7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court's finding on the burden of proof is completely erroneous. It is contrary to the law of the land.

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11. Therefore, the appeal must succeed. We set aside the judgment and order dated 14th December 2018 of the High Court and set aside the conviction of the appellants. The judgment and order dated 5th July 1997 of the Trial Court is restored. The appeal is, accordingly, allowed. The bail bonds of the appellant no.2 are cancelled. The appellant no.1 shall be forthwith set at liberty unless he is required to be detained in connection with any other case."

13.3 It is also a settled legal position that in acquittal appeals,

the appellate court is not required to re-write the judgement or

to give fresh reasonings, when the reasons assigned by the Court

below are found to be just and proper. Such principle is laid

down by the Hon'ble Apex Court in the case of State of

Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417

wherein it is held as under:

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"... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

13.4 Thus, in case the appellate court agrees with the reasons

and the opinion given by the competent court below, then the

discussion of evidence at length is not necessary. In light of the

above settled principle of law laid down for acquittal appeals, we

have refrained from giving fresh reasoning as regards the

evidence led by the prosecution in the Sessions Case No. 127 of

1996.

14. The competent Court had, in depth and at length,

analysed the oral as well as documentary evidence on record,

and had come to the conclusion that, the charge against the

accused were not proved beyond reasonable doubt by the

prosecution. Upon overall appreciation of the evidence adduced

by the prosecution and defence as well as the impugned

judgement, we do not deem it fit to interfere with the reasonings

assigned by the competent court, the same being cogent and

factually and legally correct. Thus, the impugned judgment and

order passed in Sessions Case No. 127 of 1996 by the learned

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Addtional Sessions Judge, Court No. 23, Ahmedabad is hereby

confirmed.