Gujarat High Court
State Of Gujarat vs Shambhubhai Nanubhai Vaghela on 24 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 302 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT
Versus
SHAMBHUBHAI NANUBHAI VAGHELA
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Appearance:
MS. KRINA CALLA, ADDL. PUBLIC PROSECUTOR for the Appellant(s)
No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 24/09/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY)
1. The respondent is the sole accused in SC 102 of 2011
on the file of the learned Additional Sessions Judge,
Bhavnagar. He was prosecuted for the offences
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punishable under Section 302 of IPC and 135 of
Bombay Police Act. Eventually, he was acquitted of the
said charges by the impugned judgment dated
23.11.2012.
2. Aggrieved by the said judgment of acquittal, the State
has preferred the instant appeal assailing the legality
and validity of the impugned judgment.
3. Facts of the prosecution case germane to dispose of
the appeal may briefly be stated as follows:
4. The deceased Amrutben is the younger sister of the
accused. She was a married woman. Her husband is a
deaf and dumb person. She got one son and five
daughters. The son and four daughters were married
and one unmarried daughter has been living with her
and her husband. She has been residing along with
her husband and her unmarried daughter in their
house.
5. The accused, who is her brother, got suspicion over
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her character. He was of the opinion that she was
leading an immoral life and she got illegal contacts
with several other persons and that she has been also
making an effort to drag her unmarried daughter also
into the said immoral life.
6. While so, on 30.04.2011 at about 7:30 pm in the night,
the accused went to the house of the deceased. He
found only the husband of the deceased in the house
and he did not find the deceased in the house. So, out
of suspicion that she was with somebody, he went to
his house and picked-up a weapon called "Dhariya"
and he went to backside of the house of the deceased
to search for her. At that time, he has seen the
deceased in the fields with some male person, whom
he could not identify due to darkness. After seeing the
accused, the said male person ran away. The accused
got enraged after seeing her with some male person at
the fields and attacked her with Dhariya and caused
injuries to her on her leg. She sustained severe
bleeding injuries on her leg in the said attack and she
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fell down. Thereafter, the accused called the 108
Ambulance from his mobile phone and after the
ambulance arrived, he and the husband of the
deceased lifted the injured person and they have taken
the injured to the hospital in the ambulance. After she
was taken to the hospital, the doctor who examined
her declared that she died. The accused immediately
came to his house and informed his parents about the
death of the deceased.
7. On the intimation given by the hospital authorities
regarding the death of the deceased, local police
reached the hospital. At that time, they found the
accused present at the hospital. The Police Inspector
questioned the accused as to what happened. The
accused narrated the entire incident and stated that
when he found the deceased alone in the fields along
with a male person, who ran away after seeing him, he
got enraged and attacked the deceased with dhariya
and caused injuries to her on her leg. The said
statement of accused was recorded by the Police
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Inspector and obtained thumb impression of the
accused. The said statement was registered as an FIR
for the offences punishable under Section 302 of the
IPC and 135 of the Bombay Police Act. The case was
investigated.
8. After holding inquest over the dead body of the
deceased, autopsy was held over the dead body of the
deceased. The doctor who held autopsy over the dead
body opined that she sustained three bleeding injuries
on her leg and she died of cardiorespiratory arrest due
to hypotension due to blood loss due to deep lacerated
injury of vessels in lower limb (left leg) A postmortem
report was issued to that effect.
9. During the course of investigation, the accused was
arrested on the next day i.e., on 01.05.2011 at about
11:55 am. It is stated that on the disclosure statement
given by him, that he would show the weapon which
was hidden by him which was used in commission of
the offence, he led the police and the mediators,
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examined as P.W.s 5 and 6, to the bushes near a
temple and he has shown one dhariya. The police
recovered the said dhariya in the presence of the
mediators at the instance of the accused and seized
the same. It was sent for examination to the Forensic
Science Laboratory. The analyst, who examined it,
found blood on the said dhariya, which is of A Group,
which matched with the blood group of the deceased.
10. The Investigating Officer has also examined the
daughter of the deceased, who is P.W.-7 and recorded
her statement, wherein, she stated that she was in a
hut in the fields on the night of offence and she had
seen the accused attacking her mother, who is the
deceased, with dhariya and when she tried to rescue
her, that the accused also chased her to kill her and
she ran and escaped and went away into the village.
11. After completion of the investigation, the police laid the
chargesheet against the accused for the offences
punishable under Section 302 of the IPC and 135 of
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the Bombay Police Act.
12. In the trial Court, after the accused made his
appearance, charges under Section 302 of the IPC and
135 of the Bombay Police Act were framed against the
accused. He denied the said charges and claimed to be
tried.
13. During the course of the trial, the prosecution got
examined P.W.s 1 to 14 witnesses and got marked 28
exhibits to substantiate its case against the accused.
14. After conclusion of the trial, considering the evidence
on record, the trial Court found the accused not guilty
for the charges levelled against him and acquitted him
of the said charges by the impugned judgment.
15. Challenging the said judgment of acquittal, as noticed
supra, the State, being aggrieved by the said judgment
of acquittal, filed the instant appeal.
16. When the appeal came-up for hearing, we have heard
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Ms. Krina Calla, learned APP for the State at length.
Though notice was served on the respondent, he did
not enter his appearance. Yet, to give him a fair
opportunity, the appeal was listed almost on 13
occasions. Yet, he did not turn-up for hearing. So, as
this is an old appeal of the year 2013 which is listed on
our board under the caption "for final hearing in
critically old matters of 11 to 20 years", we are not
inclined to further adjourn the appeal and we are
disposing the appeal on merits as per the material
available on record.
17. We have perused the Record and Proceedings and the
evidence on record meticulously.
18. In order to prove the case of the prosecution against
the accused that he has attacked the deceased with a
weapon called "Dhariya" and caused bleeding injuries
to her on her leg, which resulted into her death and
that he thereby killed her, the prosecution is mainly
relying on the statement of the accused himself, which
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is registered as an FIR in this case and on the evidence
of P.W.-7, who is the daughter of the deceased who is
cited as an eye-witness to the incident of the accused
attacking the deceased with dhariya and on the
recovery of the crime weapon said to have been used
by the accused in causing the injuries to the deceased
at the instance of the accused which contained blood
stains of A Group, which matched with the blood
group of the deceased. This is the substantial evidence
relied upon by the prosecution to prove the charges
against the accused.
19. As regards the FIR that was registered on the basis of
the statement of the accused himself, wherein, it is
alleged that he has stated that he has seen the
deceased, who is his sister, in the fields alone along
with some unknown male person, who ran away after
seeing him during that night time and that he got
enraged and attacked the deceased with a dhariya and
caused injuries to her on her leg is concerned, though
the prosecution has placed strong reliance on the said
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statement to prove the offence against the accused, at
the outset, it is to be noticed that the said statement
which is of the accused, which is registered as an FIR
is not admissible in evidence and it amounts to a
confessional statement of the accused which is hit by
Section 25 of the Evidence Act. Section 25 of the
Evidence Act clearly mandates that no confession
made to police officer shall be proved as against a
person accused of any offence. Therefore, even if it was
a statement of accused that was registered as an FIR,
which was recorded by the police and which was given
to the police, it could not be termed as a valid piece of
evidence in view of the express prohibition contained
in Section 25 of the Evidence Act. Way back in the year
1966 itself, a 3 judge bench of the Supreme Court in
the case of Aghnoo Nagesia Vs. State of Bihar reported
in AIR 1966 SC at Page 119 held that if the FIR is
given by the accused to a police officer, it amounts to a
confessional statement and proof of the said
confession is prohibited by Section 25 of the Evidence
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Act. Then, very recently, the Apex Court again in the
case of Narayan Yadav Vs. State of Chhattisgarh
reported in 2025 SCC Online SC 1603, after
analyzing the entire law on the point with reference to
various judicial pronouncements given on the point by
the Supreme Court, it is authoritatively held that a
confessional FIR is not admissible as an evidence.
Needless to cite various judgments that are rendered
by the Apex Court on the said legal position as all
those judgments are clearly referred and discussed in
the recent judgment in Narayan Yadav case cited
supra by the Apex Court and held that a confessional
FIR is not admissible in evidence. Therefore, in view of
the clear law that has been enunciated in the above
judgments of Supreme Court, the FIR in the present
case which is in the form of confessional statement of
the accused cannot be used as a valid piece of
evidence against the accused for the purpose of
proving the charges under Section 302 of the IPC and
under Section 130 of the Bombay Police Act against
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him. Therefore, it has to be excluded from
consideration.
20. Apropos, the evidence of P.W.-7, who is the eye
witness, is concerned, she is none other than the
major daughter of the deceased. She is aged about 20
years. She is also a niece to the accused. According to
the prosecution version, she was in a hut which is in
the fields on that night when the offence took place. As
per the prosecution version, the incident took place
around 8:30 to 9:00 pm in the night in an isolated
place in the fields behind the house of the deceased. It
was dark night at that time and admittedly, there is no
source of light at the scene of offence. According to the
prosecution version, the said hut in which P.W.-7 was
found at that time was at a distance of 60 ft. from the
scene of offence. It is stated that from the said hut and
from a distance of 60 ft., she has seen the accused
attacking the deceased with dhariya. The trial Court
disbelieved her evidence on the ground that as there
was no source of light at the scene of offence, that it
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could not be believed that P.W.-7 has identified the
accused as a culprit in the dark night from the
distance of 60 ft. But that cannot be a sole ground on
which the evidence of P.W.-7 can be disbelieved and
discarded. It has to be seen here that the accused is
not a stranger to P.W.-7. He is her own maternal
uncle. So, he is a known person to P.W.-7. It is well
settled law that identifying a known person even in a
faint darkness is not difficult and evidence of such
witness relating to identifying the culprit can be
believed.
21. On this aspect regarding identification of the culprit
who is a known person in a dark night there are
plethora of judicial pronouncement. The Apex Court in
the recent judgment rendered in the case of Pruthviraj
Jayantibhai Vanol Vs. Dinesh Dayabhai Vala and
ors reported in (2022) 18 SCC Page 683 held that
criminal jurisprudence developed in India recognizes
that eyesight capacity of those who live in rural area is
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far better compared to town folk. It is held that
identification at night between known persons is
acknowledged to be possible by voice, silhouette,
shadow and gait also and more so when parties were
known to eachother from before.
22. In another judgment rendered in the case of Bharosi
and Ors. Vs. State of MP reported in 2002 7 SCC
Page 239, the Apex Court held that identification of
accused even in faint darkness when they are known
to the witnesses is possible. Even way back in the year
1972 in the case of Nirmal Singh Vs. State of
Rajasthan reported in (1972) 3 SCC 781, the
Supreme Court held that identification of known
person is possible even in darkness.
23. Therefore, in the instant case, as P.W.-7 is the own
niece of the accused and as the accused is the known
person to her, i.e., her maternal uncle, it is not difficult
for her to identify him even in the darkness from a
distance of 60 ft. in view of the ratio laid down in the
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aforesaid judgments of the Apex Court. So, the
evidence of P.W.-7 cannot be disbelieved and
eliminated from consideration on that ground that as
there is no source of light, that she could not identify
the accused.
24. However, after considering her evidence and when the
same is subjected to strict judicial scrutiny, we find
other valid reason to doubt the veracity of the
testimony given by her. It is relevant to note here that
the incident took place at an isolated place in the fields
situate behind the house of deceased while she was in
the company of an unknown male person. The time of
the incident is about 8:30 to 9:00 pm. In villages, it is
undoubtedly a late hour. Therefore, when P.W.-7
claims to be present in a hut in the fields at that odd
hour during night time at about 9 pm and that too
alone, she has to explain as to why she was present in
that hut in the fields at the odd hour at 9 pm and
thereby she has to account for her presence at that
place to believe that it is probable for her to be present
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at that time. As can be seen from her evidence,
absolutely no reason whatsoever or explanation is
offered as to why she was present alone at that odd
hour during the night time in a hut in the fields. When
a person who is not expected to be usually be present
at that place at a particular time, claims to be present
there, she is generally to be termed as a chance
witness. In order to accept the testimony of a chance
witness, it is settled law that the first requirement of
law is that the said witness has to account for her
presence at that place and more particularly, when the
incident took place at odd hour during night time at a
an isolated place. If the witness fails to give any
explanation or reason to account for her presence at
that time at the scene of offence, then her presence at
the scene of offence at that odd hour becomes doubtful
and it would be very difficult to place complete reliance
on her testimony. We have meticulously gone through
her evidence and searched for the reasons, if any,
assigned by her to account her presence. Even to a
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pointed question in this regard, learned APP also fairly
conceded after reading her evidence that she did not
give any reason as to why she was present at that time
in that hut in the fields during that night time in an
isolated place. Therefore, we could not believe her
presence at the scene of offence at that odd hour. If
her evidence is eliminated from consideration and
discarded as her presence is doubtful at that time,
there is no other evidence to prove that it is the
accused who attacked the deceased and caused
injuries to her which resulted into her death. It
appears she is a planted witness by the prosecution to
bolster the case of the prosecution.
25. As regards the recovery of the weapon is concerned,
the two panch witnesses examined as P.W.s 5 and 6
did not support the case of the prosecution. They did
not depose in their evidence that the accused has
given any disclosure statement and in pursuance of
the said statement that he led the police and the
mediators to the bushes near the temple and has
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shown the weapon and that the weapon was recovered
at his instance by the police and seized the same.
Therefore, as the panch witnesses did not support the
said version, the only evidence of the IO is required to
be considered. No doubt as per the settled law, even if
the panch witnesses turned hostile and if they did not
support the case of the prosecution regarding the
recovery of the weapon, still the evidence of IO can be
considered by the Court and if the evidence of the IO
regarding that recovery of the weapon is found to be
trustworthy and inspires full confidence in the mind of
the Court, the same can be accepted in proof of the
recovery of the weapon. But there are certain
requirements of law which are to be established by the
prosecution to believe the evidence of the IO on that
aspect. It is settled law that the IO has to clearly
depose in his evidence regarding the exact disclosure
statement given by the accused by reproducing the
said words as it is in his evidence. In other words there
must be a verbatim reproduction of the entire
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statement of the accused given before him in his
evidence. Then only, considering the other aspects, the
Court can place reliance on the testimony of the
investigation officer. The legal position in this regards
has been dealt with by the Apex Court in the recent
judgment rendered in the case of Ramanand alias
Nandlal Bharti Vs. State of UP reported in (2023)
16 SCC page 510. It is held in the said judgment that
before accepting the evidence of discovery, the
contents of the panchnama must be proved and
therefore, the IO in his deposition has to prove the
contents of the panchnama. The IO in his oral evidence
neither stated about the exact words uttered by the
accused at the Police Station nor he proved the
contents of the discovery panchnama. So the recovery
of the weapon cannot be accepted. In the instant case
also the IO in his deposition did not prove the contents
of the panchnama and he did not state about the exact
words uttered by the accused as recorded in the
panchnama. Therefore, as the contents of the
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panchnama are not proved, no reliance can be placed
on the sole testimony of the IO. So the recovery of the
weapon viz Dhariya at the instance of the accused is
not proved as per the prescribed legal mode in this
case. So even if any blood stains of A group which
matched with the blood group of the deceased or found
on the said weapon, it is of no use for the prosecution
to establish its case against the accused as it is not
proved that it was recovered at the instance of the
accused under Section 27 of the Evidence Act.
26. The Trial Court also found variance between the
weapon as spoken to by the witnesses and the weapon
that was actually produced before the Court. The
witnesses deposed that the weapon that was recovered
is dhariya and the weapon that is actually recovered in
the case is dataradu. Therefore, considering the said
variation in the description of the weapon also, the
Trial Court disbelieved the said recovery of the weapon.
27. Therefore, considering the entire gamut of evidence on
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record and on reappraisal of the same, we are of the
considered view that the prosecution has miserably
failed to prove the guilt of the accused for the charges
levelled against him beyond reasonable doubt. Proof
beyond reasonable doubt is the standard of proof
required to prove the guilt of the accused in a criminal
trial. Any reasonable doubt arising from the evidence
on record shall necessarily go to the benefit of the
accused. Further, in an appeal against acquittal, the
accused is entitled to double presumption of innocence
when the trial Court has already recorded a finding of
acquittal in his favour after considering the evidence
on record. Therefore, the prosecution has failed to
make out any strong case warranting interference of
this Court in this appeal with the impugned judgment
of acquittal.
28. The trial Court also after considering the evidence on
record and on proper appreciation of the same arrived
at the right conclusion and recorded a finding of
acquittal in favour of the accused. We do not find any
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perverse appreciation of the evidence on record or any
legal flaw in the impugned judgment of acquittal. So,
the impugned judgment is perfectly sustainable under
law and it calls for no interference in this appeal.
Therefore the appeal fails and it is liable to be
dismissed.
29. In fine, the appeal is dismissed confirming the
judgment of acquittal of the trial Court.
30. Bail bonds if any shall be discharged. R&P be sent
back to concerned trial Court forthwith.
(CHEEKATI MANAVENDRANATH ROY, J)
(D. M. VYAS, J)
Anuj
