[Cites 17, Cited by 0]

Gujarat High Court

State Of Gujarat vs Kailash Zaverilal N on 30 April, 2026

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                          R/CR.A/1363/2010                                            CAV JUDGMENT DATED: 30/04/2026

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                                                                                 Reserved On   : 06/04/2026
                                                                                 Pronounced On : 30/04/2026

                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/CRIMINAL APPEAL NO. 1363 of 2010

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                                                           STATE OF GUJARAT
                                                                 Versus
                                                       KAILASH ZAVERILAL N & ORS.
                       ==========================================================
                       Appearance:
                       MR. YUVRAJ BRAHMBHATT, APP for the Appellant(s) No. 1
                       MR DR BHATT(165) for the Opponent(s)/Respondent(s) No. 2,3,4,5,6,7,9
                       MR MR PRAJAPATI(1532) for the Opponent(s)/Respondent(s) No. 8
                       RULE SERVED for the Opponent(s)/Respondent(s) No. 1
                       ==========================================================

                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER


                                                            CAV JUDGMENT

1. Feeling aggrieved by and dissatisfied with the

judgment and order of acquittal dated 18.01.2010, passed by

the learned Presiding Officer, Fast Track Court No.8,

Vadodara, in Sessions Case No. 155/2009, for the offences

punishable under Sections 143, 147, 148, 149, 332, 333, 504,

186 of the Indian Penal Code and under Section 135 of the

Bombay Police Act, the appellant - State of Gujarat has

preferred this appeal under Section 378 of the Code of

Criminal Procedure, 1973 (for short, "the Code").

2. The prosecution case as unfolded during the trial

before the lower Court is that on 26.07.2009, the complainant

received secret information that the accused persons were

consuming liquor at the place of offence. Acting upon the tip-

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off, a raid was conducted. During the raid, the accused

allegedly formed an unlawful assembly and assaulted the

complainant party, causing injuries. Consequently, the accused

were alleged to have committed the said offences. Therefore,

the complaint was lodged against the respondent-accused.

3. After investigation, sufficient prima facie evidence

was found against the accused person/s and therefore charge-

sheet was filed in the competent criminal Court. The charge

was framed against the accused person/s. The accused

pleaded not guilty and came to be tried.

4. In order to bring home the charge, the prosecution

documentary evidence before the Trial Court, which are

described in the impugned judgment as under:

Oral Evidences Sr.No. Particulars Exh. no.

Testimony of Complainant Ambalal Mohanbhai

Parmar Testimony of Panch Witness Dharmendra Virendra

Jaiswal 3 Testimony of Panch Witness Aasif Ismail Nakum 24 Testimony of Panch Witness Ganeshbhai

Shankarrao Varkey Testimony of Witness Pankajbhai Dharamraj

Sonvane Testimony of Witness Vinodkumar Parsotambhai

Gamit

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Sr.No. Particulars Exh. no.

Testimony of Witness Thakorbhai Shanabhai

Tadwadiya 8 Testimony of Witness Lalbha Amarsinh Borana 30

10 Testimony of Witness Babubhai Bhurabhai Patel 32 Testimony of Witness Dr. Padmakishore

Kaushalkishore Gupta Testimony of Witness Jahirbhai Ahmadmiya

Thakore

Documentary Evidences Sr. No. Particulars Exh.No.

3 Discovery Panchnama regarding weapon seizure 26

Vardhi dictated over mobile to A.H.C. Ambalal

Mohanbhai 6 Note regarding where the crime was registered 35

List regarding the presentation of the Original Vardhi

Book

Panchnama regarding the house search of accused

Mukesh Rameshbhai Jadhav

5. After hearing both the parties and after analysis

of evidence adduced by the prosecution, the learned trial

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Judge acquitted the accused for the offences for which they

were charged, by holding that the prosecution has failed to

prove the case beyond reasonable doubt.

6. Learned APP for the appellant - State has

pointed out the facts of the case and having taken this Court

through both, oral and documentary evidence, recorded before

the learned trial Court, would submit that the learned trial

Court has failed to appreciate the evidence in true sense and

perspective; and that the trial Court has committed error in

acquitting the accused. It is submitted that the learned trial

Court ought not to have given much emphasis to the

contradictions and/or omissions appearing in the evidence and

ought to have given weightage to the dots that connect the

accused with the offence in question. It is submitted that

the learned trial Court has erroneously come to the

conclusion that the prosecution has failed to prove its case. It

is also submitted that the learned Judge ought to have seen

that the evidence produced on record is reliable and

believable and it was proved beyond reasonable doubt that

the accused had committed an offence in question. It is,

therefore, submitted that this Court may allow this appeal by

appreciating the evidence led before the learned trial Court.

7. As against that, learned advocate for the

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respondent/s would support the impugned judgment passed by

the learned trial Court and has submitted that the learned

trial Court has not committed any error in acquitting the

accused. The trial Court has taken possible view as the

prosecution has failed to prove its case beyond reasonable

doubt. Therefore, it is prayed to dismiss the present appeal

by confirming the impugned judgment and order passed by

the learned trial Court.

8. I have heard the submissions made by the learned

advocates for the respective parties and also gone through

the oral and documentary evidence, independently and

dispassionately. Considering the impugned judgment and order

of the trial Court, the following aspects weighed with the

Court;

8.1. The prosecution has mainly relied on the

complaint that has been filed by Head Constable Ambalal

Mohanbhai Parmar which has been produced vide Exhibit-21.

It is the case of the prosecution that on 26.07.2009 when the

complainant was serving as Head Constable at Tarsali

Chowki, at 15:27 hours he received a Vardhi on his mobile

phone from Makarpura Police Station P.S.O. Shri Babubhai

Bhurabhai Patel that on Tarsali Ring Road, Motinagar-2 i.e.

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Manek Park Society Common Plot, four to five boys are

sitting and consuming alcohol, therefore he was told to go

there, and as the telephone at his Police Station was not

working, he wrote the Vardhi in the telephone book, and

along with the Telephone Deputy Police Constable Pankaj

Dharamraj went on a motorcycle for investigation, and went

to Motinagar Manek Park Society's Common Plot, where they

could not find any person therefore, they searched the

surrounding field, and in one room they found ten to twelve

persons at 16:00 hours consuming alcohol, and therefore the

complainant tried to find the panch witnesses, and seeing

that, all the persons present over there who were taking

alcohol started assaulting the complainant and the other

Police Constable Pankaj Dharamraj, and one of the persons

Baba Patil hit Pankaj Dharamraj with a heavy wooden stick

on the right leg, the thumb of the left hand and on the

forehead due to which the Constable Pankaj fell down on the

floor, and as the complainant tried to intervene and save the

constable Pankaj, they also assaulted the complainant.

Thereafter, the complainant called Makarpura Police Station

from his mobile to request them to send other Police Officers

in view of the assault done by the accused on the

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complainant and Constable Pankaj Dharamraj, and thereafter

P.S.I Gamit had come and had caught hold of one of the

accused and the rest ran away. Thereafter, the names of the

remaining five accused were revealed by one of the accused

Kailash, who had been apprehended, and as Police Constable

Pankaj Dharamraj was injured he was taken to the private

hospital of Dr. Gupta for the treatment.

8.2. The prosecution has examined the complainant

Ambalal Parmar, vide Exh-20, in his deposition he has stated

that when he had left with Police Officer Pankaj Dharamraj,

he was on the duty of telephone operator, he also stated that

although, the telephone was not working but the wireless

messages were working. He has also admitted that the

person who is on duty as a telephone operator is not

permitted to leave the Police Station. He has also informed

that he did not get the police Vardhi about people drinking

alcohol in a room or on the field.

8.3. The prosecution has produced a panchnama of

scene of offence vide Exh-23, and the panch witness

Dharmendra Virendra Jaiswal has been examined as PW-2

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vide Exh-22, and another witness Asif Ismail Nakum has

been examined as PW-3 vide Exh-24, both have turned

hostile and have not supported the case of the prosecution.

8.4. The prosecution has thereafter produced the

panchnama of recovery of weapon vide Exh-26, the panch

witness Ganeshbhai Shankarrao Varkey has been examined

vide Exh-25 as PW-4, he has also turned hostile and has not

supported the case of the prosecution.

8.5. The prosecution has examined the other Police

Officer who was present at the site Pankajbhai Dharmraj

Sonwane, as PW-5, vide Exh-27. There is a contradiction

between the complainant and the said witness with respect to

the incident that had happened before they had left to

investigate on the said date. The said witness has stated

that on the said date there were persons at the Police

Station who had come for settlement of their divorce, and the

complainant has stated that no such party had come on the

said date and time when they were about to leave for

investigation. It transpires that on 26.07.2009, he was on

duty at Tarsali Police Chowki, and his duty hours were from

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14:00 to 20:00 hours. He has stated that at the relevant

time he was present at the chowki, and Head Constable

Ambalal Mohanlal i.e. complainant, was also present there.

On that day, the telephone of the chowki was not functioning

and, therefore, a message was conveyed by P.S.O. Babubhai

on the mobile phone of Ambalal. Thus, according to this

witness, he as well as the complainant Ambalal were present

on duty at the relevant date and time. However, in order to

establish that both the police personnel were on official duty,

the Investigating Officer has not produced or seized any

documentary evidence, such as the attendance register or

duty roster, during the course of investigation. This fact has

been admitted by the Investigating Officer, Jahirbhai Thakor,

in his cross-examination at Exhibit-42. Therefore, at the

outset, though it is the case of the prosecution that both the

police personnel were present on duty and had proceeded to

the place of offence in discharge of their official duties on

the basis of the message received, no documentary evidence

has been produced on record to substantiate their presence

on duty at the relevant time.

8.6. There is also a contradiction with respect to the

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fact that the complainant said that the Inspector Vinodkumar

Parsotambhai Gamit had come in his personal Maruti Van,

and had taken the constable Pankaj Dharamraj to the

hospital of Dr. Gupta in his Maruti Van, while the said

witness in his deposition has denied the fact that the said

Police Inspector Gamit had come in his Maruti Van, and

state that he had come on a motorcycle along with the one

officer named Sanjay.

8.7. Upon comparative appreciation of the evidence of

the complainant Ambalal Mohanlal and injured witness

Pankaj Dharmaraj, material contradictions are evident. The

complainant states that no persons were found in the

common plot of Manek Park Society and that, in a nearby

hut, 10-12 persons were seen coming out, whereupon 4-5

persons assaulted him and Pankaj and all accused collectively

attacked Pankaj. In contrast, Pankaj deposes that no persons

were found in the common plot, but in a nearby doorless hut

situated in a field, 10-12 persons were found consuming

liquor, and upon inquiry of their names, Ambalal informed

superior officers and called for additional police assistance.

Further, the Investigating Officer J.D. Thakor at Exh. 42

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admits that PSI Gamit was not on station duty, and no

evidence surfaced that he reached the spot with police staff

or pursuant to any message. However, the complainant

asserts that PSI Gamit arrived with police personnel in a

Maruti van and other private vehicles upon request for

assistance. Thus, material inconsistencies arise regarding the

manner of incident, conduct of accused, and arrival of

additional police, rendering the prosecution version doubtful.

8.8. On an overall reading of the depositions of the

complainant Ambalal and Police Constable Pankaj Dharmaraj,

further inconsistencies emerge. The complainant states that,

considering the presence of a larger number of persons, he

called for additional police assistance, whereupon PSI Gamit

arrived in a Maruti van along with police staff and others in

private vehicles, and at that time 8-10 persons attempted to

flee. He further states that one accused, Kailash, was

apprehended at the spot while the others escaped, and that

both, he and injured Pankaj were taken to Gupta Hospital

for treatment in the said Maruti van. However, Pankaj

Dharmaraj, in his deposition, states that both police

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personnel had reached the indicated place in discharge of

their duty on the basis of the message, but no persons were

found there, and while proceeding further, they themselves

went to a nearby field and discovered persons consuming

liquor. Thus, there is inconsistency regarding the sequence of

events, presence of accused, and subsequent actions taken at

the spot.

8.9. The said witness also states that, it is not true

that before the incident wherein the accused had assaulted

him and the complainant, he did not know the accused. The

P.S.I. Gamit has been examined vide Exh-28 as PW-6, he

also states that he had reached the place of the incident on

a motorcycle, he denies taking Constable Pankaj Dharamraj

to the doctor in the Maruti Van. The other factor which has

also been taken into consideration by the Sessions Court is

that the prosecution has failed to prove the fact that, as to

who had informed Inspector Gamit to reach the place of

offense. In view of the fact that the complainant said that as

soon as the accused started assaulting him and the Constable

Pankaj Dharamraj, he had called the Police Station from his

mobile. Therefore, the prosecution has not been able to prove

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as to how the said Inspector Gamit had reached the place of

offense.

8.10. Moreover, the complainant has stated in his

deposition that, as soon as the accused started assaulting the

complainant, and when Inspector Gamit had reached the

place, there was a lot of commotion, and the people from the

neighbouring society had gathered, and if the deposition of

Police Officer Gamit is taken into consideration, he has

stated that it is not true that on hearing the commotion, any

person from the surrounding society had gathered.

8.11. It is also important to take into consideration that

there are lot of contradictions from the deposition of the

complainant from the evidence of the witnesses of the

prosecution as to how they had taken the sole accused who

were caught from the scene of offense Kailash to the Police

Station, as it transpired that Police Officer Gamit had taken

him to the Police Station on his motorcycle whereas, it also

transpires that Police Officer Gamit had taken the injured

Constable Pankaj Dharamraj to the private hospital of Dr.

Gupta whereas, the complainant states that after the incident

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they had taken the injured constable Pankaj Dharamraj to

the hospital of Dr. Gupta in a Maruti Van which belongs to

Mr. Gamit.

8.12. The prosecution has examined the Police Officer

Lalbha Amarsinh Borana who has stated in deposition that

his statement has not been taken by any Police Officer.

8.13. The prosecution has thereafter examined Sanjay

Ramdas Simpi, the Police Officer, who had gone with Police

Officer Gamit, as soon as they came to know that the

complainant and Pankaj Dharamraj have been assaulted. The

said witness Sanjay Ramdas Simpi has been examined as

PW-9 vide Exh-31. There are a lot of contradictions in his

deposition whereas, the complainant and Inspector Gamit and

constable Pankaj Dharamraj states that, other than one

accused all ran away on their motorcycle, the said witness

PW-9, states that all the accused ran away leaving behind

their motorcycle.

8.14. The prosecution has thereafter examined Babubhai

Bhurabhai Patel, who was the Police Officer at the relevant

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point of time and had registered the Vardhi, which is

produced vide Exh-32.

8.15. At the outset, serious doubt arises regarding the

version of the police authorities. If, as alleged, about 10-12

persons were present in the hut consuming liquor, only nine

accused have been apprehended. Both the complainant and

injured witness Pankaj Dharmaraj claim to have seen all

such persons at the time of the incident, and Pankaj had

even started noting down their names; however, the

remaining persons were neither apprehended nor identified.

No explanation has been offered by the Investigating Officer

in this regard. Thus, the prosecution has failed to

satisfactorily establish the presence and identity of all the

alleged persons at the scene of offence.

8.16. Further, the complainant states in his deposition

that he had left his motorcycle at the place of incident,

whereas his superior officer, PSI Gamit, has stated that he

had instructed that injured Pankaj Dharmaraj be taken to

the hospital on the complainant's motorcycle. Thus, it

becomes doubtful whether Pankaj was taken to the hospital

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in PSI Gamit's Maruti van or on the motorcycle of the

complainant, in view of these contradictory versions.

8.17. The prosecution has admitted that no test

identification parade was conducted in the present case. Thus,

unless the prosecution establishes, in a cogent and continuous

manner, the presence of all the accused at the scene of

offence, the very occurrence of the alleged incident becomes

doubtful.

8.18. Thus, upon conjoint reading of the depositions of

all the police witnesses, material contradictions emerge

regarding whether Ambalal and Pankaj were in fact present

on duty at the relevant time, whether the information

(message) was genuinely received, and whether the telephone

at the chowki was actually out of order. These witnesses,

though police personnel, have deposed inconsistently and in

contradiction to each other on material particulars. In such

circumstances, it cannot be said that the prosecution has

proved its case on the basis of their testimonies.

9. Further, learned APP is not in a position to show

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any evidence to take a contrary view in the matter or that

the approach of the Court below is vitiated by some manifest

illegality or that the decision is perverse or that the Court

below has ignored the material evidence on record. In above

view of the matter, I am of the considered opinion that the

Court below was completely justified in passing impugned

judgment and order.

10. Considering the impugned judgment, the trial

Court has recorded that there was no direct evidence

connecting the accused with the incident and there are

contradictions in the depositions of the prosecution witnesses.

In absence of the direct evidence, it cannot be proved that

the accused are involved in the offence. Further, the motive

of the accused behind the incident is not established. The

trial Court has rightly considered all the evidence on record

and passed the impugned judgment. The trial Court has

rightly evaluated the facts and the evidence on record.

11. It is also a settled legal position that in acquittal

appeal, 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 down by the Apex Court in the case of

State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC

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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."

12. Thus, in case the appellate court agrees with the

reasons and the opinion given by the lower court, then the

discussion of evidence at length is not necessary.

13. In the case of Ram Kumar v. State of Haryana,

reported in AIR 1995 SC 280, Supreme Court has held as

under:

"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should

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give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or

demolished, the High Court should not disturb

the order of acquittal."

14. As observed by the Hon'ble Supreme Court in the

case of Rajesh Singh & Others vs. State of Uttar Pradesh

reported in (2011) 11 SCC 444 and in the case of

Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the trial

Court is found to be perverse, the acquittal cannot be upset.

It is further observed that High Court's interference in such

appeal in somewhat circumscribed and if the view taken by

the trial Court is possible on the evidence, the High Court

should stay its hands and not interfere in the matter in the

belief that if it had been the trial Court, it might have

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taken a different view.

15. In the case of Chandrappa v. State of

Karnataka, reported in (2007) 4 SCC 415, the Hon'ble

Apex Court has observed as under:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the 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 Criminal Procedure Code, 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.

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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 emphasise 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 is 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."

16. The Hon'ble Apex Court, in a recent decision, in

the case of Constable 907 Surendra Singh and Another V/s

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State of Uttarakhand reported in (2025) 5 SCC 433, has held in paragraph 24 as under:

"24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and 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."

17. Considering the aforesaid facts and circumstances

of the case and law laid down by the Hon'ble Supreme Court

while considering the scope of appeal under Section 378 of

the Code of Criminal Procedure, 1973 no case is made out to

interfere with the impugned judgment and order of acquittal.

18. In view of above facts and circumstances of the

case, on my careful re-appreciation of the entire evidence, I

found that there is no infirmity or irregularity in the

findings of fact recorded by learned trial Court and under

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