Gujarat High Court
State Of Gujarat vs Maya Khengar Maheshwari on 17 September, 2025
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R/CR.A/1074/1997 JUDGMENT DATED: 17/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1074 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Sd/-
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
MAYA KHENGAR MAHESHWARI & ORS.
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Appearance:
MS VRUNDA SHAH, ADDL PUBLIC PROSECUTOR for the Appellant
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2,4
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No.
1,3
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1,2,3,4
MS E.SHAILAJA(2671) for the Opponent(s)/Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
DESAI
Date : 17/09/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI)
1. Being aggrieved and dissatisfied by the judgment
and order of acquittal passed by learned Additional
Sessions Judge of Kutchh at Bhuj on 17.9.1997 in
Sessions Case No.1 of 1996, whereby all the four accused
came to be acquitted, the appellant- State had preferred
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the present appeal under Section 378 of the Code of
Criminal Procedure, challenging the same.
2. Learned Additional Public Prosecutor Ms. Vrunda
Shah has submitted that, during the pendency of the
present appeal, the respondent accused No.1 Maya
Khengar Maheshwari and respondent accused No.2 Juma
Maya Maheshwari have died on 13.4.2007 and 13.6.2025,
respectively. The appeal insofar as the respondents
accused Nos.1 and 2 stands ABATED. Accordingly, we
proceed with the present appeal qua the respondents
accused Nos.3 and 4.
3. One complaint came to be lodged by one Juma
Nagshi, resident of Kidana, Taluka Anjar, District Kutchh-
Bhuj who, subsequently succumbed to the injuries
inflicted by the respondents accused. As per his complaint
dated 12.6.1995, before a month of the incident, he being
in relationship with the wife of the respondent accused
No.2 namely Rajbai, had gone to Mumbai and thereafter,
had returned to his village where, he came to know that
his sister had come from Rajkot to meet their father, and
as such, on 12.6.1995, at around 10.00 a.m. he had gone
to his house, where he met his sister Devalbai and after
having lunch, while he was taking a stroll in his village
and was passing by Ramdev Pir Temple, he was
confronted by his relatives, i.e. the respondents accused,
of whom the respondent accused No.1 Maya Khengar was
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armed with stick, whereas, respondent accused No.2 was
armed with a spade, respondent- accused Nos.3 and 4
both, were armed with iron pipes. He had further stated
that, all the four accused came running to him and
started abusing him, and had asked him as to why he had
taken away Rajbai and that, they would finish him off and
saying so, all the four accused persons had started
inflicting injuries with the weapons which each of them
were holding. He had further stated that, he had started
shouting, hence, his sister Devalbai, Haji Jumabhai
Chavda, Haji Sumar and Kasam Noormohammad had
come there, and had intervened and tried to pacify the
respondents- accused, to whom they had stated that, if
they i.e. these four persons had not intervened, they
would have finished the complainant, i.e. Juma Nagshi
and saying so, they had left from the place. The said
incident had occurred at around 11.00 a.m. and
thereafter, Haji Chavda had brought a rickshaw from the
village, wherein, Juma Nagshi was put inside and was
accompanied by his sister Devalbai and Haji Sumar, and
all of them had taken him to Rambaug hospital. He stated
that since his both hands and legs were bandaged, he was
unable to affix his signature on the complaint, and instead
had put his left thumb mark.
4. Injured Juma Nagshi was taken to Rambaug hospital,
where he was given primary treatment by Dr.
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Chandrakant Mavjibhai Acharya, who was examined as
PW-1 (Exh.8) by the prosecution during the course of
trial. Since the injuries sustained by the victim was
grievous in nature, he was referred to Bhuj Civil hospital.
However, upon reaching Bhuj hospital, the doctor on duty
after examining him, had pronounced him dead.
Consequently, Section 302 of the Indian Penal Code was
added to the complaint.
5. The investigation was set into motion and the
Investigating Officer had drawn relevant panchnamas.
The deceased's body was sent for conduction of the
postmortem and the statements of as many as 11 eye
witnesses along with the other witnesses came to be
recorded by the I.O. There being culpable evidence
against all the respondents accused, the charge-sheet
came to be filed by the Investigating Officer and the case
was committed to the Court of Sessions, where learned
Additional Sessions Judge of Kutchh- Bhuj framed the
charge under Section 302 read with Sections 34 and 114
of the Indian Penal Code and Section 135 of the Bombay
Police Act, to which they having denied, were put to trial.
6. The prosecution had examined as many 35 witnesses
to bring home the guilt of the accused, and had submitted
as many documents in support of the oral evidence. Upon
conclusion of the oral evidence, the learned Additional
Sessions Judge had recorded the statements of the
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respondents accused under Section 313 of the Code of
Criminal Procedure, whereby the incriminating evidence
which had come on record, was put to their notice,
however, they had denied the same. After hearing both
the learned advocates, the learned Additional Sessions
Judge was pleased to acquit the respondents accused of
the charge, which was framed against them.
7. Heard learned Additional Public Prosecutor Ms.
Vrunda Shah and learned advocate Ms. E. Shailaja on
behalf of the appellant- State as well as the respondents-
accused, respectively.
8. Both the learned advocates have taken us through
the entire evidence which was tendered by the
prosecution before the competent Court and more
particularly the depositions of the eye witnesses,
depositions of the two doctors and the FSL report.
9. Considering the arguments advanced by both the
learned advocates and upon going through the entire
record and proceedings of the Sessions Case No. No.1 of
1996, coupled with the observations of the competent
Court in the judgment, the following aspects have
emerged:-
(1) The complaint was lodged by the deceased
himself on the day of incident at 14.40 hours,
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however, the prosecution had failed to establish
that, the deceased was conscious and in a fit state
of mind to give his complaint.
(2) It had also come on record that, PW-1 Dr.
Chandrakant Mavjibhai Acharya had admitted in
his cross-examination that, he was present at
Rambaug hospital till 2.00 p.m. on 12.6.1995, and
the police personnel who had come there had
only asked for the medical certificate of the
deceased. It is pertinent to note that, the said
witness had not stated about the complaint
having been taken from the deceased in his
presence.
(3) It had also come on record that, the deceased
while being taken to Rambaug hospital after
being examined by PW-1 Dr. Chandrakant
Acharya, was found to have sustained as many as
14 injuries, and since the said injuries were
grievous in nature, the deceased was immediately
referred to the Bhuj Civil hospital.
(4) It had also come on record that, upon reaching
Bhuj Civil hospital, the deceased was pronounced
dead. The police personnel who had gone to Bhuj
Civil Hospital, and who had stated that he had
jotted down the complaint narrated by the
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deceased, had not mentioned about the exact
time as regards the same.
(5) The I.O. had recorded the statements of as many
as 11 eye witnesses who had seen the incident
whereby, the respondents accused had attacked
the deceased. However, out of the 11 eye
witnesses, 8 of them not having supported the
prosecution case, were declared as hostile which
was observed by the learned competent Court in
its judgment.
(6) So far as remaining 3 eye witnesses were
concerned, PW-9 Nagshi Kumbha Maheshwari,
who was father of the deceased, had admitted in
his examination-in-chief as well as in his cross-
examination that, he had a poor eye sight and he
could neither identity the assailants nor the
weapons which they were carrying, and
ultimately he was declared hostile.
(7) PW-11 Devalbai Bachubhai was examined vide
Exh.21, who was deceased's sister and as
mentioned in the complaint, had come from
Rajkot to meet her father. It is fruitful to observe
that, the deceased had named his sister along
with Haji Jumabhai Chavda, Haji Sumar and
Kasam Noormohammad as having intervened,
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while he was being attacked by the respondents
accused. However, none of these witnesses, i.e.
Haji Jumabhai Chavda, Haji Sumar and Kasam
Noormohammad, had supported the case of the
prosecution. Said Devalbai Bachubhai had stated
on oath that, she had witnessed the incident as
she was following her brother when he was
attacked by the respondents accused.
(8) PW-16 Devalben Samjibhai (Nagshibhai)
Maheshwari, sister-in-law of the deceased in her
deposition had stated that, while she along with
PW-11 Devalbai were inside their house, a boy
had come to them and had informed them about
the deceased being beaten by the respondents-
accused. Hence, the presence of both these
witnesses i.e. PW-11 and PW-16 at the time of
incident, was highly doubtful, as observed by the
learned competent Court in its judgment.
(9) As observed by the learned competent Court, the
two iron pipes which were shown to have been
carried by the respondents- accused Nos.3 and 4,
were seized and sent to the FSL. However, the
blood group upon the same had remained
undecided.
(10) It had also come on record that, the police
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personnel who had gone to the hospital to record
the complaint of the deceased, i.e. at Rambaug
hospital, had not informed the Executive
Magistrate in spite of the fact that, the deceased
was alive at that point of time. The learned
competent Court had rightly observed that,
considering the injuries on the body of the
deceased, he was not in a position to narrate
anything to the police personnel.
(11) The medical certificate which was given by PW-1
Dr. Chandrakant Acharya neither mentioned as to
who had given the history nor the name of the
assailants, in spite of the fact that, PW-11
Devalbai Bachubhai- sister of the deceased had
accompanied the deceased to the hospital and as
per the prosecution case, the deceased was
conscious and alive at that point of time.
(12) It is pertinent to note that, both the hands of the
deceased were bandaged after he was admitted
to Rambaug hospital and was given primary
treatment. However, his complaint at Exh.68
states about he having affixed his left thumb mark
on the same. The learned competent Court had
rightly observed that, the said complaint might
not have been lodged by the deceased himself,
and the thumb mark would also not have been
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fixed by him. Rather, the learned competent
Court had gone to the extent that, the complaint
at Exh.68 was an afterthought or may have been
given by PW-11 Devalbai Bachubhai in the name
of the deceased.
(13) So far as the motive of the incident is concerned,
the same was also disbelieved since, a lady Rajbai
@ Babibai, who was the wife of the respondent-
accused No.2, was already divorced by the
respondent -accused No.2 on 15.5.1995, i.e. prior
to the incident in question.
(14) The fact that some of the witnesses having said
that, many people from the vicinity had gathered,
whereas, others having stated that none was
present, as observed by the learned competent
Court, also created doubt as regards the incident
having occurred near Ramji Mandir, wherein, it
were only the respondents- accused who had
inflicted the fatal injuries upon the deceased.
10. Considering the aforesaid aspects, we are in the
agreement with the reasons assigned by the learned
competent Court in its judgment whereby, the
respondents-accused were acquitted of the charge which
was framed against them, and we do not deem it fit to re-
evaluate the said evidence in its entirety.
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11. 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 v. 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
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
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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.
12. 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
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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. 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
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the order of acquittal. The High Court has ignored
the well-settled principle that an order of acquittal
further 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.
...
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."
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14. It is also a settled legal position that in acquittal
appeals, the appellate court is not required to re-write the
judgment or to give fresh reasoning, 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:
"... 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."
15. 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 briefly re-
appreciated the evidence led by the prosecution in the
said Sessions Case.
16. The competent court below had in depth and at
length, analyzed 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
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reasonable doubt by the prosecution. Upon overall
appreciation of the evidence adduced by the prosecution
and defence as well as the reasons/ observations
mentioned in the impugned judgment, 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.1 of 1996 by the learned
Additional Sessions Judge of Kutchh- Bhuj is hereby
confirmed.
17. Accordingly, the present appeal is DISMISSED. R &
P, if any called for, to be sent back to the concerned Trial
Court forthwith. Bail bonds, if any, shall stand forfeited.
Sd/-
(NSSG,J)
Sd/-
(UTKARSH THAKORBHAI DESAI, J)
OMKAR
