Gujarat High Court
State Of Gujarat vs Dhirubhai Lakhabhai Makwana on 25 September, 2025
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R/CR.A/189/2013 JUDGMENT DATED: 25/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 189 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
DHIRUBHAI LAKHABHAI MAKWANA & ORS.
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Appearance:
MS KRINA CALLA, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 25/09/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY)
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1. The respondent Nos. 1 to 3 were prosecuted for the offences
punishable under Sections 447, 392, 397 r/w. Section 114 of the
Indian Penal Code, 1860 (IPC) and under Section 135 of the
Bombay Police Act in Sessions Case No. 98 of 2009 on the file of
learned Sessions Judge, Bhavnagar. At the culmination of the trial,
they were acquitted of all the aforesaid charges by the impugned
judgment dated 10.10.2012. Aggrieved thereby, the State has
preferred the instant appeal assailing the legality and validity of the
said judgment of acquittal.
2. Brief overview of the facts of the prosecution case may be
stated as follows:
2.1 The complainant is an agriculturist by profession. There was a
rivalry between the complainant and the accused who are accused
Nos. 1 to 3 (A1 to A3) in the said case. On the night of 05.01.2009,
the complainant, who is examined as PW-1, was sleeping in his field
on a cot. While he was sleeping, at about 3:00 a.m., it is stated, that
A1 to A3 came to the field of the complainant. A1 was holding a
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Dhariya (Scythe), A2 was holding a Hockey stick and A3 was
holding a wooden stick and A2 attacked the complainant with a
Hockey stick and he has extorted a mobile phone from the pocket of
the complainant and A3 attacked the complainant with a wooden
stick. Though A1 was holding a Dhariya, he did not attack him. It
is stated that he extorted Rs.3,600/- cash which is in the pocket of
the inner garment of the complainant. It is stated that the
complainant did not wake up even after he was attacked by A2 and
A3 and when the mobile phone and the cash were extorted from him,
out of fear that he might be attacked severely by the accused, but
later on, when he woke up, he has seen the accused in the moonlight.
It is further stated that there was a blanket covered on him and the
accused has put the grass available at the field on the said blanket
and set fire to the said blanket and the complainant has also
sustained burn injuries. Thereafter, the accused left the scene of
offence and went away along with the mobile phone and cash of
Rs.3,600/-.
2.2 Thereafter, the complainant got up from the cot and he went to
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the house of one Rameshbhai in the village and from the mobile
phone of the said Rameshbhai, he called his son who is examined as
PW-4 and after his son came, they both went to the scene of offence
again. Thereafter, it is stated that the complainant was taken to the
hospital. He was examined by the doctor at about 12:50 p.m. on that
day. The doctor who examined him, found three injuries i.e. i)
tenderness on both flanks, ii) scratch abrasions on both flanks and
iii) blackening on feet and legs anterior aspect due to septical burns.
2.3 On the intimation given by the doctor, the police visited the
hospital at about 5:45 p.m. in the evening on that day and recorded
the statement of the complainant wherein, he has narrated the above
facts. The said statement was registered as an FIR against A1 to A3
at about 10:40 p.m. on that day for the offences punishable under
Sections 392, 447 and 114 of the IPC and Section 135 of the
Bombay Police Act. The case was investigated.
2.4 During the course of investigation, A1 and A2 were arrested
on 07.01.2009 and A3 was arrested on 09.01.2009. It is stated that
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on the disclosure statement given by A3 in the presence of the
mediators examined as PW-2 and another, that he has produced the
Dhariya, the Hockey stick and the wooden stick, said to have been
used by the accused in commission of the offence. Cash of
Rs.3,600/- was also recovered from him but the mobile phone was
not recovered.
2.5 The scene of offence was also observed in the presence of the
mediators examined as PW-5 and PW-6. After completion of the
investigation, police laid Charge-sheet against the accused for the
offences punishable under Sections 447, 392, 397 r/w. Section 114
of the IPC and Section 135 of the Bombay Police Act.
2.6 In the trial Court, after the accused made their appearance,
charges for the aforesaid offences were framed against them and the
accused denied the said charges and claimed to be tried.
2.7 In the trial that took place, prosecution got examined PW-1 to
PW-8 witnesses and got marked 7 exhibits to substantiate its case
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against the accused.
2.8 At the culmination of the trial, eventually, after considering
the evidence on record and on appreciation of the same, the trial
Court found the accused not guilty of any of the charges levelled
against them and thereby, acquitted them of the said charges by the
impugned judgment.
2.9 As noticed supra, aggrieved by the impugned judgment of
acquittal, State has preferred the instant appeal challenging the said
judgment of acquittal.
3. When the appeal came up for hearing before us, we have heard
Ms. Krina Calla, learned Additional Public Prosecutor for the
appellant - State. Despite service of notice on the respondents, they
did not appear to contest the appeal. Even after the appeal is listed
11 times for hearing, they did not turn up for hearing. Therefore, as
it is an old appeal of the year 2013 and as it is listed in the
Supplementary Board today under the caption: "For Final Hearing
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of Critically Old Matters of 11 to 20 years", we are not inclined to
further adjourn the appeal. Therefore, we have decided to dispose of
the appeal on merits on the basis of the material available on record.
4. We have perused the R&P and the evidence on record
meticulously and subjected the evidence to strict judicial scrutiny.
4.1 Out of 8 witnesses examined by the prosecution to substantiate
it's case against the accused, only PW-1, who is the complainant, is
the material witness in this case. PW-2 is the panch witness for
alleged recovery of the weapons and the cash from A3, at his
instance on the disclosure statement made by him. PW-3 is the
doctor who examined PW-1 and issued the Wound Certificate. PW-
4 is the son of the complainant who only reached the scene of
offence after the incident took place and PW-5 and PW-6 are the
panch witnesses for the Scene of Offence Observation. PW-7 and
PW-8 are the police witnesses.
4.2 Therefore, the evidence of PW-1 who is the injured, who is
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only the sole material witness, is required to be considered and his
evidence is to be appreciated while subjecting his evidence to
judicial scrutiny. As per the prosecution version, the incident took
place during night time at about 3:00 a.m. on 05.01.2009. Though
the offence took place during dark night, the complainant has stated
in his FIR that he has identified the accused in the moonlight. Even,
in his evidence given in the Court also, he stated that he has
identified the accused in the moonlight. The accused denied that
there is any such moonlight as deposed, in the cross-examination of
PW-1. They have suggested that there is no such moonlight as
spoken to by him. PW-1 denied the said suggestion. Therefore,
there is a controversy relating to existence of moonlight on that night
when the alleged incident took place. There is no sufficient material
on record to resolve the said controversy and the disputed question
of fact whether moonlight was available at that time or not.
Therefore, we are not going deep into the matter relating to the said
fact to decide whether there is moonlight or not at that time. But,
when the evidence of PW-1 is considered regarding the manner in
which he was attacked, we have very serious doubt whether he has
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really identified the accused during that night time even if there is
any moonlight at that time. It is pertinent and significant to note that
PW-1 stated in his evidence that A2 attacked him with a Hockey
stick and A3 attacked him with a wooden stick but he stated in his
evidence that even when he was attacked with the said Hockey stick
and the wooden stick, he did not wake up and he continued to sleep
as he was under the apprehension that if he woke up, that he might
be beaten up severely by the accused. Therefore, when according to
his own testimony he was sleeping when the accused were attacking
him with the Hockey stick and the wooden stick, it is really
unbelievable as to how he could say that A2 beat him with a Hockey
stick and A3 beat him with a wooden stick. It is not as though he
woke up when he was beaten and he has seen A2 and A3 beating
him to believe his testimony. When it is his own ipse dixit that he
did not wake up even when he is being beaten, the testimony given
by him that he has seen A2 and A3 beating him with Hockey stick
and wooden stick is intrinsically untrustworthy and cannot be
believed. Admittedly, though it is stated that A1 was holding a
Dhariya, he did not attack PW-1 and caused any injury to him. It is
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also relevant to note that even when it is stated by PW-1 that A2
extorted the mobile phone from his pocket and A1 has extorted cash
of Rs.3,600/- which is in his pocket and that too, in the pocket of his
inner garment, he did not wake up. He was still sleeping at that time
according to his version. Therefore, the version of PW-1 that he did
not wake up even when he is being beaten with weapons like
Hockey stick and wooden stick and when his mobile phone is
extorted from his pocket and when cash of Rs.3,600/- is extorted
from the pocket of his inner garment, the said conduct of PW-1 in
still sleeping when he was being beaten and when his valuables are
being extorted, is quite contrary to the natural human conduct of any
person. In such situation, when a person is being beaten with sticks
and when his valuables are being extorted from his pocket of his
inner garment, any person would get up from his sleep and resist
them or try to run away to escape from the attack. But the fact that
the PW-1 has been continuously sleeping when he is being beaten
and when his valuables are being extorted, as stated supra, his
conduct is quite contrary to the natural human conduct of any
person. So, this makes the entire story of the prosecution, as
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narrated by PW-1, highly suspicious, doubtful and in fact,
unbelievable.
4.3 It is to be further noticed that according to the testimony given
by PW-1, there is a blanket on him when he was sleeping and that
the accused has placed the grass available at the scene of offence on
the blanket and set fire to it and he sustained burn injuries also. But,
he did not say that he woke up even when the blanket was burnt and
when he sustained the burn injuries. On the other hand, he stated
that after the accused ran away from the that place after burning the
blanket that he woke up and then went to the house of the
Rameshbhai. This conduct is also absolutely unbelievable and
contrary to the human conduct of any reasonable and prudent person.
So, the entire story appears to be concocted story. It is also relevant
to note here that the said burnt blanket, if any, is not seized by the
police during the course of investigation. This also throws any
amount of doubt regarding the veracity of the evidence given by
PW-1 relating to the burning of the blanket. No explanation is
offered by the prosecution for non-seizer of the said blanket.
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4.4 Apart from above infirmities, it is also to be noticed that when
it is stated in the FIR and also in the evidence of PW-1 that A1 came
along with A2 and A3 holding Dhariya, immediately when he was
taken to the hospital, he has stated before the doctor that A1 came
with four persons holding an iron pipe. So, the weapon which A1
was holding when he came to the scene of offence is varying from
the version given by PW-1 in the FIR and in his evidence when
compared with the statement given by him to the doctor. This is
another aspect which makes his testimony unreliable.
4.5 It is now significant to note that PW-1 stated in his FIR and
also in his evidence that A2 beat him with a Hockey stick and A3
beat him with a wooden stick, but where they beat him and on which
part of his body they beat him and where he sustained injuries are
not detailed by him either in the FIR or in his evidence. Further, as
can be seen from the Wound Certificate, the second injury is a
scratch abrasions on both flanks i.e. a part in between the rib cage
and the pelvic bone. How, this scratch abrasions are found on his
body is not explained. It is not at all the case of the prosecution or
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the evidence of PW-1 that the accused scratched him and caused
abrasion injuries on his both flanks. It is not possible to cause
scratch abrasion injuries by beating with a Hockey stick or a wooden
stick. So, the injuries in the Wound Certificate are also not matching
with the evidence given by PW-1 relating to the alleged attack made
by the accused. There is inconsistency between his oral evidence
and the medical evidence. So, this also makes the testimony of PW-
1 wholly unreliable.
4.6 Although it is stated by the prosecution that all three weapons
i.e. Dhariya, Hockey stick and Wooden stick were recovered from
A3 when he was arrested, when he voluntarily produced the same
before the police along with cash of Rs.3,600/-, the panch witness
who is examined as PW-2 in whose presence it is stated that the said
weapons and cash are recovered from him, did not support the said
version of the prosecution. He turned hostile to the prosecution case.
The other panch witness relating to the said recovery of weapons and
cash was not examined in this case. Even the panch witnesses for
Scene of Offence Observation, examined as PW-5 and PW-6 also
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turned hostile and they also did not support the case of the
prosecution. So, the recovery of the crime weapons and the cash is
also not proved in this case with the acceptable legal evidence.
4.7 Thus, the entire case of the prosecution bristles from several
fatal legal infirmities. The sole testimony of PW-1 does not inspire
confidence in the mind of the Court regarding the veracity of his
testimony as his evidence is shrouded in high suspicion on account
of various infirmities found in his evidence as discussed supra. So,
the prosecution has miserably failed to prove the guilt of the accused
for any of the charges levelled against them beyond all reasonable
doubt with acceptable legal evidence. At any rate, the accused are at
least entitled to benefit of doubt in the facts and circumstances of
case.
4.8 The trial Court, after considering the evidence on record and
on proper appreciation of the same, arrived at a right conclusion and
recorded a finding of acquittal in favour of the accused. Upon
considering the said evidence on record and reappraisal of the same,
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we are also in complete agreement with the conclusion arrived at by
the trial Court. Therefore, the judgment of the trial is perfectly
sustainable under law and it is based on proper appreciation of
evidence on record and the same is not liable to be set aside.
Therefore, we absolutely find no valid ground in this appeal
warranting our interference with the judgment of acquittal. So, the
appeal fails and it is liable to be dismissed.
5. In fine, the appeal is dismissed confirming the judgment of the
trial Court. Bail bonds shall stand discharged. R&P be transmitted
back to the trial Court concerned, forthwith.
[ Cheekati Manavendranath Roy, J. ]
[ D. M. Vyas, J. ]
hiren/SB-I-1tss25925@15:45
