[Cites 13, Cited by 0]

Gujarat High Court

State Of Gujarat vs Babubhai Harjibhai Gamar on 27 February, 2026

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                              R/CR.A/766/1998                                                     JUDGMENT DATED: 27/02/2026

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/CRIMINAL APPEAL NO. 766 of 1998

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                                                      STATE OF GUJARAT
                                                            Versus
                                                BABUBHAI HARJIBHAI GAMAR & ANR.
                        ==========================================================
                        Appearance:
                        MS SHRUTI PATHAK, APP for the Appellant(s) No. 1
                        HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1,2
                        MR. YOGENDRA THAKORE(3975) for the Opponent(s)/Respondent(s) No.
                        1,2
                        ==========================================================

                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
                                and
                                HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

                                                                Date : 27/02/2026

                                                JUDGMENT

(PER : HONOURABLE MR.JUSTICE SANJEEV J.THAKER)

1. Feeling aggrieved by and dissatisfied with the

judgment and order of acquittal dated 16.05.1998, passed by

the learned Additional Sessions Judge, Sabarkantha in

Sessions Case No.102 of 1997 for the offences punishable

under Sections 302, 337, 504 and 114 of the Indian Penal

Code and Section 135 of the Bombay Police Act, the

appellant - State of Gujarat has preferred this appeal as

provided under Section 378 of the Code of Criminal

Procedure, 1973 (for short, "the Code") inter alia challenging

the judgment and order of acquittal in favour of the

respondents - accused.

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2. The prosecution case as unfolded during the trial

before the Sessions Court is that on 30.04.1997 at about 7:00

p.m., a quarrel had taken place between his grandfather -

Galabhai and his sons on one side and Chuniya Somabhai,

Sayeba Somabhai and babu Harji of the same village on the

other side. During the alteration, the accused assaulted

Galabhai's three sons with an axe and caused injuries,

therefore, they were taken to the hospital. On the same day

at about 8:00 p.m., when the complainant along with his

brother Ditabhai and Faguben were going to question and

reprimand the accused regarding the earlier quarrel, the

accused Babubhai Harjibhai and Hakambhai Arjibhai

Suddently became aggressive, abused the complainant and

shot an arrow at his brother Ditabhai, which entered near

his left shoulder in the side of his chest, causing bleeding. Out of fear, three of them ran away from the place and hid

in their house. Since Ditabhai did not return home on that

night, on 01.05.1997 at about 7:00 a.m., his wife Lasuben

and his aunt Faguben went out to search for him. During

the search, they found Ditabhai Hasanbhai lying dead in the

field of Chunabhai Homa in the village, with an arrow stuck

below his left shoulder. Therefore, the complaint was filed

against the respondent/s-accused.

3. After investigation, sufficient prima facie evidence

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

sheet was filed in the competent criminal Court. Since the

offence alleged against the accused person/s was exclusively

triable by the Court of Sessions, the learned Magistrate

committed the case to the Sessions Court where it came to

be registered as Sessions Case No.102 of 1997. 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.

5. After hearing both the parties and after analysis of evidence adduced by the prosecution, the learned trial

Judge acquitted the accused for the offences for which the

charge was framed, 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

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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

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.

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8. In the aforesaid background, considering the oral

as well as documentary evidence on record, independently and

dispassionately and considering the impugned judgment and

order of the trial Court, the following aspects weighed with

the Court :

8.1 The learned Sessions Court has considered the oral

and documentary evidence led before it during the trial. The

panch witnesses of the recovery panchnama (Exh.25) viz.,

Kacharabhai Honabhai Gamar and Dalabhai Bherabhai

Gamar have been examined as P.W.8 & 7, vide Exhs.24 and

23, respectively, who have turned hostile and have not

supported the case of the prosecution.

The Investigating Officer - Harisinh Umedsinh

Zala has been examined as P.W.11, vide Exh.28.

It is not disputed that the deceased had died

because of the injury caused by an arrow, but the

prosecution has failed to prove that the said act of piercing

an arrow was by the present accused. The complainant

himself was not present with respect to the incident of

scolding the son's of Galabhai. The prosecution has not been

able to prove that accused No.2 threw stones and the

prosecution has also not been able to prove that at what

distance and how many stones were thrown by accused No.2.

It is the case of the prosecution that the incident

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had taken place at 10:00 p.m. and it was dark at that time

and the prosecution has not been able to prove that how the

complainant and the witness had seen accused No.1 -

Babubhai Harjibhai Gamar shooting an arrow, which pierced

on the deceased.

8.2 The entire version of P.W.4 - Faguben Palubhai

Gamar, who has been examined by the prosecution vide

Exh.17, is contrary to the case of the prosecution. In her

examination-in-chief, she has stated the same version of the

incident as told by the complainant. In her cross-examination,

she has stated the facts contrary to her earlier version. She

admitted that when the incident of assaulting the sons of

Galabhai Harkhabhai occurred at about 10.00 p.m., it was

dark. However, as per the prosecution case, the incident in which Babubhai Harji allegedly shot an arrow at deceased

also took place at 10.00 p.m. This creates serious doubt as to

how both incidents could have happened at the same time.

8.3 The other factor which has also been taken into

consideration by the learned Sessions Court is that the

complainant has admitted that on the next day, when they

had gone to the police station to file a complaint, they had

seen Galabhai and his son, who had also come to file a

complaint for assaulting his children and thereafter, after 3

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to 4 hours, the present complaint is filed. Therefore, though

it has been stated that a complaint was filed by a police

officer, but in the deposition of the complainant, he has

stated that a complaint was filed after 3 to 4 hours after

meeting Galabhai.

8.4 The complainant-Arjanbhai Hasnabhai has been

examined as P.W.1 vide Exh.9. This witness has admitted

that he did not personally see the incident in which

Ghalabhai's sons were beaten and that he has no knowledge

about that incident, it seems suspicious that at the time of

the incident he went to the accused's house along with the

deceased Ditaben and witness Faguben to confront them. The

complainant has stated that after the arrow pierced, the

complainant, being the real brother and Faguben, being her aunt, had run away from the scene of offence, but it has

come on the record that there are other residential premises

in between the place of offence and their residence and the

complainant and Faguben did not inform any of the

neighbours about the alleged incident.

8.5 It has also come on record that the complainant

also did not inform the Sarpanch of the said village nor

went to the police station which was only four kilometers

away and did not file any complaint on the same night

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though knowing that the arrow has pierced injuring the

deceased. The other factor that the Sessions Court has also

taken into consideration is that the real brother and the

aunt had made no efforts of taking the deceased to the

hospital for treatment immediately. The prosecution has also

not proved as to whether the complainant and said aunt -

Faguben were present at the time of the alleged offence.

8.6 Another prosecution witness, Galabhai Harkhabhai,

was examined as P.W.9 at Exh.26. He made a brief

statement that the deceased Ditabhai was not present at the

time when his sons were assaulted.

8.7 Medical Officer Dr.Mohanbhai Boresa examined as

P.W.2 at Exh.8 has stated that when the dead body of Ditabhai was brought for post-mortem examination, he found

abrasions on the front part of both legs, on both elbows, and

on the cheek. He also found a wound below the left armpit

near the shoulder. On internal examination, it was found

that an arrow had pierced through the lungs and the heart,

causing heavy internal bleeding in the chest. He opined that

Ditabhai died due to the injury caused by the arrow. In his

cross-examination, he has stated that the post-mortem note

does not mention the size or colour of the abrasion injuries.

He clearly stated that such injuries could also occur if a

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person falls down. Since no details about the size or colour

of the abrasions was recorded, he was unable to give any

opinion on whether those injuries could have been caused by

stone-throwing.

8.8 Manabhai Bhagabhai was examined as P.W.5 is

the panch witness for the inquest panchanama, the

panchanama of the place of incident from where control soil,

blood-stained soil, a blow and arrow were allegedly seized,

and the panchanama regarding the clothes of the deceased.

However, in his examination itself, he clearly stated that he

had not seen the dead body and that nothing was seized

from the place of incident in his presence. Thus, he does not

support the prosecution case.

8.9 The panch witnesses Fojabhai Bherabhai examined

at Exh.22 and Dalabhai Bherabhai examined at Exh.23 have

been declared hostile as both of them have stated that

nothing was seized in their presence.

8.10 If the deposition of Faguben is taken into

consideration, she has stated that when the accused was

assaulting the sons, but none of the sons were hit/injured.

The said witness is alleged to have been present at the time

of the alleged offence. She has also stated that at the time

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when the said incident had taken place, there was a group

of more than 25-30 people, but she does not know who was

present in the said group. The other factor which the learned

Sessions Court has taken into consideration is that the

incident of shouting on the young children of Galabhai had

occurred at 10:00 p.m. and the alleged offence of piercing the

arrow on the Ditabhai, the deceased had also taken place at

10:00 p.m. Therefore, the prosecution has been able to prove

that the deceased Ditabhai has died because of piercing of

the arrow but has failed to prove that the said arrow was

pierced by the accused.

9. Further, learned advocate for the appellant is not

in a position to show 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, this Court

is of the considered opinion that the Court below was

completely justified in passing impugned judgment and order.

10. It is a cardinal principle of criminal jurisprudence

that in an acquittal appeal if other view is possible, then

also, the appellate Court cannot substitute its own view by

reversing the acquittal into conviction, unless the findings of

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the trial Court are perverse, contrary to the material on

record, palpably wrong, manifestly erroneous or demonstrably

unsustainable. (Ramesh Babulal Doshi V. State of Gujarat -

(1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us as to how the findings

recorded by the learned trial Court are perverse, contrary to

material on record, palpably wrong, manifestly erroneous or

demonstrably unsustainable.

11. 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 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

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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."

12. 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

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

taken a different view.

13. 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,






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                                                      "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,

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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."

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

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

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

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from the evidence available on record."

15. 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. Further, on our careful re-appreciation of the entire

evidence, we found that there is no infirmity or irregularity

in the findings of fact recorded by learned trial Court and

under the circumstances, the learned trial Court has rightly

acquitted the respondent/s - accused for the elaborate reasons

stated in the impugned judgment and we also endorse the

view/finding of the learned trial Court leading to the