[Cites 9, Cited by 0]
Gujarat High Court
State Of Gujarat vs Kathi Visubhai Najbhai on 20 February, 2026
NEUTRAL CITATION
R/CR.A/1119/1998 JUDGMENT DATED: 20/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1119 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
KATHI VISUBHAI NAJBHAI & ORS.
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Appearance:
MR PRANAV DHAGAT, ADDL.PUBLIC PROSECUTOR for Appellant No. 1
DISMISSED FOR NON PROSECUTION for the
Opponent(s)/Respondent(s) No. 2,3
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MR KAIVAN K PATEL(6338) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 20/02/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE MAULIK J.SHELAT)
1. The present appeal has been filed by the State under
Section 378 of the Code of Criminal Procedure, 1973,
challenging the judgment and order dated 16.10.1998
passed by the learned Additional Sessions Judge,
Surendranagar (hereinafter referred to as "the Trial
Court") in Sessions Case No.48 of 1997, whereby the
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Trial Court acquitted the respondents of the charges
levelled against them under Sections 302 and 34 of the
Indian Penal Code (hereinafter referred to as "IPC")
read with Section 135 of the Bombay Police Act.
2. At the outset, it requires to be noted that out of the three
respondents - accused, this Court vide its order dated
15.07.1999 granted leave insofar as respondent No.1 -
original accused No.1 - Kathi Visu Najbhai (hereinafter
referred to as "the accused") is concerned and the
appeal stands dismissed qua respondent Nos.2 and 3.
3. The brief facts of the prosecution case are as under :
3.1. It is the case of the complainant - Champaben, wife of
Rajabhai Jivanbhai Koli, that she was residing at
Ninama, Taluka: Sayla, with her husband and mother-in-
law and was doing household chores and agricultural
work. On the date of incident i.e., on 09-11-96 at about
10:00 AM, the complainant and her husband, Raja Jivan
(hereinafter referred to as "the victim"), after
preparing the afternoon meal, went near the house of
Hasu to call a laborer (Dadiya). Upon being called, the
laborer came out and her husband went into the
courtyard (Khadki) of Magan Uka's house to call
Jashuben. While the complainant was standing behind
Maganbhai's house along with Hasubhai, carrying the
meal, a gunshot was heard near Maganbhai's house.
3.2. The complainant and Hasu Vaghji rushed towards
Maganbhai's house. Near the boundary wall (Vandi) of
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Magan Uka's residence, a person from their village,
Kathi Dhandhal Valkubhai Nanjibhai, fired a shot from a
large gun at her husband while he was exiting
Maganbhai's house. Immediately thereafter, Visubhai
Nazbhai Kathi-accused fired a second shot from a large
gun from the boundary wall. Both gunshots struck her
husband in the waist, causing him to collapse on the
spot.
3.3. Gohabhai Nazbhai was standing outside the boundary
wall armed with a stick (Lathi) and Kathubhai
Devayatbhai Kathi of Nana Haraniya was holding an
object resembling a small weapon. Following the two
gunshots and the collapse of her husband, all four
accused persons fled the scene.
3.4. As the Complainant and Maganbhai Ukabhai and his
wife came out screaming, her husband was gasping for
water. While Hasu Vaghji was bringing water in a
coconut shell to give to her husband, he succumbed to
his injuries and passed away. At that moment, her elder
brother-in-law (Jeth), Nanubhai, arrived and was
dispatched to Chotila to inform the police. It is the case
of the complainant that due to the injuries sustained, the
victim succumbed to it. The complainant reported the
said incident, as narrated in her FIR being C.R.No.I-
17/1993 lodged before Meghraj Police Station on
06/03/1993.
3.5. After completion of the investigation, having found
sufficient evidence against the accused, whereby, they
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could be prosecuted for the offence in question, the
charge-sheet was filed against the accused and
ultimately, the case was committed to the Trial Court for
conducting the trial for the offences under Sections 302
and 34 of the IPC read with Section-135 of the Bombay
Police Act.
3.6. To bring home the charge levelled against the accused,
the prosecution led the following oral as well as
documentary evidence which reads as under :
ORAL EVIDENCES :
Sr. No. Name of witness Exhibit No.
15 PSI - R.H.Goswami, Investigating Officer 49
DOCUMENTARY EVIDENCES :
Sr. No. Particulars Exhibit No.
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muddamal.
FSL, Ahmedabad
Ahmedabad
4. Upon appreciation of the oral and documentary evidence
made available on record and after hearing the parties,
the Trial Court found that the prosecution had failed to
prove the charges levelled against the respondents-
accused beyond doubt and having found several lapses
and shortcomings in the evidence of the prosecution, it
ultimately acquitted the respondents-accused from the
charge.
4.1 Being aggrieved and dissatisfied with the judgment
and order passed by the learned Trial Court, the State
has filed the present Criminal Appeal.
5. We have heard Mr.Pranav Dhagat, learned Additional
Public Prosecutor for the appellant-State at length, who
has taken us through various oral evidence as well as
documentary evidence on record and so also the reasons
assigned by the Trial Court while acquitting the accused.
We have also independently examined and re-
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appreciated the evidence of the prosecution including its
witnesses.
SUBMISSIONS ON BEHALF OF THE APPELLANT:
6. Mr. Dhagat, learned APP has submitted as follows.
6.1 The trial court has committed a serious error in law by
acquitting the accused of a heinous crime. It is
submitted that the ocular evidence of the complainant -
PW-1 fully supports the case of prosecution which not
only proves the involvement of the accused, but also
establishes that the victim died on the spot due to
gunshot injuries caused by the accused.
6.2 The trial court was wrongly influenced by the fact that
there are material contradictions in the evidence of the
PW-1, eye-witness, inasmuch as she was unable to
narrate who fired the first shot of from which gun. It is
submitted that merely because PW-1 admitted in her
cross-examination that she saw the back of the accused
would not mean that she had not seen the accused while
he was shooting the victim.
6.3 The Trial Court has also failed to appreciate the
recovery of the weapon (muddamal) - large gun - at the
instance of the accused, which is confirmed by the
evidence of the Investigating Officer (PW-15). It is
submitted that such recovery and the statement of the
accused while in police custody are admissible in
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evidence under Section 27 of the Evidence Act. It is
further submitted that as per the Forensic Science
Laboratory report (Exh.55), it is proved that the gun
short sustained by the victim was from the muddamal -
large gun recovered at the instance of the accused. This
is sufficient in itself to prove beyond doubt that the
accused was involved in the crime.
6.4 Making the above submissions, the learned APP
Mr.Dhagat would humbly request this Court to allow the
appeal.
7. No other and further submissions were made by the
learned APP.
8. Having heard the learned APP for the State and upon a
threadbare re-appreciation of the evidence by us, the
following shortcomings and contradictions in the
evidence of prosecution noticed by us.
8.1 The PW-1, who happens to be complainant and wife of
the victim, did not disclose the specific role of accused in
her deposition. It is true that in her complaint, she
narrated the entire incident as recorded above but
during her examination, she appears to have not stood
by what was stated by her in the complaint.
8.2 A bare reading of the examination-in-chief of PW-1
indicates that she was not an eye-witness to the incident
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but reached the spot only after hearing the gunshot.
8.3 It is surprising to note that the Trial Court had allowed
the prosecution to ask a leading question to PW-1 i.e.,
who carried out two gunshots. As such, Trial Court could
not have permitted the prosecution to ask a leading
question to PW-1. In answer to the said question, she
deposed that one show was fired by Valkubhai
(absconder) and the second by Visubhai - accused.
8.4 The Trial Court has correctly observed that as per the
evidence of Dr.Arjunkumar Parikh (PW-5), who
performed postmortem of the victim that injuries found
on the body of the victim can be inflicted only by one fire
arm that too by one gunshot. In that view of the matter,
it ought to have been proved on record by the
prosecution whether the victim sustained a bullet blow
from the first fire shot or second one, but the same is not
proved on record.
8.5 The PW-1 has admitted in her cross-examination that
after hearing the gunshot, she saw the accused from a
distance of 20 to 25 feet away from the spot when
accused was running away. She has further admitted
that the face of the accused was turned towards the
north side and his back was towards her. Therefore, it
would not be possible for PW-1 to see the accused
actually fire the gun at the victim. The PW-1 is also
unable to confirm which accused was possessing which
weapon in his hand.
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8.6 Thus, from a bare reading of the entire evidence of
PW-1, the prosecution has failed to prove the
involvement of the accused in the crime beyond a shade
of doubt.
8.7 As far as the panchas are concerned, all turned hostile
and did not support the case of the prosecution
regarding the recovery of the muddamal, including the
firearm. Furthermore, regarding the evidence of the
brother of victim - Nanjibhai Jivanbhai (PW-13), he was
undisputedly not an eye-witness and as such, is not
helpful to the prosecution in bringing home the charge
against the accused. It appears that when he had
reported the incident to the Police, he did not narrat the
incident as described by PW-1 in her FIR. This also
creates a reasonable doubt, the benefit of which may go
to the accused.
8.8 As far as recovery of muddamal- firearm is concerned,
the evidence of Investigating Officer, namely, Ramnik
Bharti, PW-15 is concerned, he has categorically
admitted that upon asking the accused about the
muddamal - firearm (gun), the accused disclosed the
place from where it was recovered. As stated above, the
panchas have not supported the Recovery Panchnama
and PW-15 has not narrated facts as recorded in the
Panchnama. Furthermore, it is not a voluntary statement
by the accused while in Police custody to disclose the
location of the hidden firearm, which is a sine qua non
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for admitting such part of evidence under Section 27 of
the Evidence Act. As can be seen from evidence of
PW-15 that on asking about the gun, the accused
disclosed the place where it was kept. Moreover, the
incident happened on 09/11/1996 and accused was
arrested on 13/01/1997. Lastly, it is also not forthcoming
from the evidence of PW-15 that accused admitted
before him that the recovered fire gun was in fact used
by him for the commission of the crime in question.
Thus, the mere recovery of muddamal - fire gun would
not implicate the accused in the commission of the crime
in question.
9. In view of the aforesaid facts and evidence on record as
well as on re-appreciation of the entire evidence, the
view which has been taken by the trial court cannot be
said to be so perverse that such a view can never be
taken. Upon noticing the said shortcoming in the
evidence led by the prosecution, it has not inspired any
confidence, at least to us, whereby we can overturn the
decision of learned Trial Court acquitting the
respondent-accused. As such, there is no perversity
found in the impugned judgement/order of trial court.
10. Having noticed the aforesaid shortcomings and
contradiction in the evidence of the prosecution, the
same ultimately resulted in not proving the case beyond
a shadow of doubt against the accused. It is a settled
legal position of law that the charge levelled against the
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accused requires to be proved beyond shadow of doubt
by the prosecution. At the cost of repetition, we could
not see any glaring perversity on the part of the Trial
Court while acquitting the accused.
11. At this stage, it would be apt to refer to the recent
decision passed by the Honourable Apex Court in the
case of Constable 907 Surendra Singh and another
V/s. State of Uttarakhand reported in (2025) 5 SCC
433, wherein, taking note of its earlier dictum, it was
observed and held as follows:
"23. Recently, in Babu Sahebagouda Rudragoudar v. State of
Karnataka [Babu Sahebagouda Rudragoudar v. State of
Karnataka, (2024) 8 SCC 149 : (2024) 3 SCC (Cri) 535] , a
Bench of this Court to which one of us was a Member (B.R.
Gavai, J.) had an occasion to consider the legal position with
regard to the scope of interference in an appeal against
acquittal. It was observed thus : (SCC pp. 163-64, paras 38-
41)
"38. First of all, we would like to reiterate the principles
laid down by this Court governing the scope of interference
by the High Court in an appeal filed by the State for
challenging acquittal of the accused recorded by the trial
court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh
Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC
(Cri) 31] encapsulated the legal position covering the field
after considering various earlier judgments and held as
below : (SCC pp. 482-83, para 29)
'29. After referring to a catena of judgments, this Court
culled out the following general principles regarding
the powers of the appellate court while dealing with an
appeal against an order of acquittal in the following
words : (Chandrappa case [Chandrappa v. State of
Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri)
325] , SCC p. 432, para 42)
"42. From the above decisions, in our considered
view, the following general principles regarding
powers of the appellate court while dealing with
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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.
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." '
40. Further, in H.D. Sundara v. State of Karnataka [H.D.
Sundara v. State of Karnataka, (2023) 9 SCC 581 : (2023) 3
SCC (Cri) 748] , this Court summarised the principles
governing the exercise of appellate jurisdiction while dealing
with an appeal against acquittal under Section 378CrPC as
follows : (SCC p. 584, para 8)
'8. ... 8.1. The acquittal of the accused further
strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal
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against acquittal, is entitled to reappreciate the oral
and documentary evidence;
8.3. The appellate court, while deciding an appeal
against acquittal, after reappreciating the evidence, is
required to consider whether the view taken by the
trial court is a possible view which could have been
taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate
court cannot overturn the order of acquittal on the
ground that another view was also possible; and
8.5. The appellate court can interfere with the order of
acquittal only if it comes to a finding that the only
conclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused
was proved beyond a reasonable doubt and no other
conclusion was possible.'
41. Thus, it is beyond the pale of doubt that the scope of
interference by an appellate court for reversing the judgment
of acquittal recorded by the trial court in favour of the
accused has to be exercised within the four corners of the
following principles:
41.1. That the judgment of acquittal suffers from patent
perversity;
41.2. That the same is based on a misreading/omission to
consider material evidence on record; and
41.3. 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."
(emphasis supplied)
12. Thus, in light of the ratio of the aforesaid decision of the
Hon'ble Supreme Court as referred hereinabove and in
view of the above-referred flaws in the evidence of the
prosecution and after going through the reasons
assigned by the Trial Court, we are in complete
agreement with the reasons and the view taken by the
Trial Court, whereby it acquitted the respondent-
accused.
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13. This appeal is found to be meritless and is accordingly
dismissed. Consequently, the impugned judgment and
order of the Trial Court is hereby confirmed. Bail bond,
if any, shall stand cancelled.
14. The Record and proceedings shall be sent back to the
concerned Trial Court forthwith.
(MAULIK J.SHELAT, J)
(P. M. RAVAL, J)
GAURAV J THAKER
