[Cites 15, Cited by 0]
Gujarat High Court
State Of Gujarat vs Rajeshkumar Kantilal Patel on 27 February, 2026
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
R/CR.A/1085/2003 JUDGMENT DATED: 27/02/2026
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1085 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
==========================================================
Approved for Reporting Yes No
✓
==========================================================
STATE OF GUJARAT
Versus
RAJESHKUMAR KANTILAL PATEL & ORS.
==========================================================
Appearance:
MS DIVYANGNA ZALA APP for the Appellant(s) No. 1
HL PATEL ADVOCATES(2034) for the Opponent/Respondent No. 1,2,3,4,5
==========================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D.
NANAVATI
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 27/02/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
At the outset, it is required to be noted that, during pendency of the
appeal, original accused No.3 - Mukeshbhai @ Chuchiyo Gandabhai
Vaghari and original accused No.5 - Rasikbhai Ranchhodbhai Patel
expired and to that effect the PI, Dhansura Police Station has submitted a
report through the learned APP annexing therewith the copy of their
death certificates which are ordered to be taken on record. Accordingly,
NEUTRAL CITATION
R/CR.A/1085/2003 JUDGMENT DATED: 27/02/2026
undefined
the present appeal stands abated qua original accused No.3 and 5.
1. Feeling aggrieved and dissatisfied with the judgment and order of
acquittal dated 10/06/2003 passed by the learned Additional Sessions
Judge, (Fast Track Court) Sabarkantha at Modasa in Sessions Case
No.163 of 2002 acquitting the respondents - accused for the offences
punishable under Sections 143, 147, 148, 149, 435, 436, 295 (a), 302 and
325 of the Indian Penal Code and under Section 135 of the Bombay
Police Act, the appellant - State has preferred the present appeal under
Section 378 of the Code of Criminal Procedure, 1973 ("the Code" for
short).
2. The brief facts leading to the filing of the present appeal are as
under:
2.1. The prosecution case in brief is that the complainant is a resident of
Umarbhai's Chali in village Dhansura. He was working as a motor
mechanic and thereby was earning his livelihood. There were in all 11
houses in Umarbhai's Chali, out of which there were 9 residential houses,
one flour mill and one provision store. That on 28/2/2002 at about 3:00
p.m. the complainant alongwith his family members was present at his
house. At that time a crowd of 700 Hindu people, shouting "Maro Kapo"
came to the said Chali. That the said crowd torched the house of the
complainant, flour mill and provision store. That almost all the houses
were burnt. On account of the fire, the whole houses and household
articles were also burnt. That thereafter, the said crowd came to the
market of Dhansura, where they set ablaze the shops and houses of
Muslim community and also mosque viz. Ahmedsha. That the said
crowd proceeded to Jantanagar and there also they caused damages. The
burning and damaging of the houses continued up to 5:30 p.m. The Police
NEUTRAL CITATION
R/CR.A/1085/2003 JUDGMENT DATED: 27/02/2026
undefined
came and lobbed teargas shell and also resorted to firing. That by the
burning of the houses and household things, almost all houses and
household articles were reduced to ashes. The said crowd caused injuries
to Maulavi Yunus Ali and three other Muslims. That the injured Maulavi
- Yunus Ali succumbed to the injuries and therefore, the Police added the
offence under Section 302 of the Indian Penal Code to the original F.I.R.
was filed with the Dhansura Police Station for the offences punishable
under Sections 143, 147, 148, 149, 436, 435, 295(a) and 325 of Indian
Penal Code. It is the further prosecution case that the said incident was a
result of the Godhara Carnage, which took place on 28/2/2002. The
Police thereafter, after due investigation charge sheeted the accused for
the aforesaid offences.
2.2. After investigation, chargesheet was filed before the learned
JMFC, Court. However, as the said Court lacks jurisdiction to try offence
under Section 302 IPC, the case was committed to the Sessions Court and
it was registered as Sessions Case No.163 of 2002 for trial. On conclusion
of evidence on the part of the prosecution, the Sessions Judge put various
incriminating circumstances appearing in the evidence to the respondent-
accused so as to obtain explanation/answer as provided under Section 313
of the Code. In the further statement, the respondent-accused denied all
incriminating circumstances appearing against them as false and further
stated that they are innocent and a false case has been filed against them.
After examining the evidence, witness testimonies and submissions from
both sides, the learned Sessions Court below recorded the finding in
favour of the respondent-accused acquitting them of the charges levelled
against them.
3. We have heard learned APP for the appellant - State and minutely
examined oral and documentary evidence adduced and produced before
NEUTRAL CITATION
R/CR.A/1085/2003 JUDGMENT DATED: 27/02/2026
undefined
the learned Sessions Court concerned.
4. Ms. Zala, learned APP appearing for the appellant - State submits
that the impugned order of acquittal is required to be interfered with as
the evidence produced on record proves the involvement of the accused
in the commission of crime in question. She has further submitted that
though the complainant has not supported the case of prosecution; but the
wife and children of the complainant who has been examined at Exh.36,
37 and 39 have supported the case of the prosecution by naming the
accused persons with the weapons they had armed with at the time of
commission of offence. She has further submitted that merely because
the complainant was declared hostile is no ground to discard the case of
prosecution; but rest of the witnesses have deposed to prove the
involvement of the accused in commission of the crime. Learned APP
has further referred the evidence of the other material witnesses and
submitted that from the evidence of the said witnesses, the involvement
of the accused in commission of the crime is proved and therefore, this
Court may interfere with the said finding and record the conviction. She
would therefore submit to allow this appeal.
5. Heard the learned APP for the appellant - State and perused the
deposition of witnesses as also documentary evidence placed on record as
well as the order passed by the learned Sessions Court. We have also
perused the deposition of the material witnesses who have supported the
case of the prosecution.
6. The complainant - Nisar Ahmed is examined at Exh.18 who has
deposed in his testimony that he was residing at Dhansura Umarbhai's
Chali whereas the injured and deceased was residing at Jantanagar. This
witness has deposed that having come to know about the incident, he
NEUTRAL CITATION
R/CR.A/1085/2003 JUDGMENT DATED: 27/02/2026
undefined
went to the Police Station where he stayed upto 10:30 p.m. where-from
he was sent to Modasa. This witness has deposed that he came to know
about commission of murder of one Unusali Maulavi at Jantanagar and
this witness has given the complaint about the house being ablazed and to
that effect complaint at Exh.19 was given. This witness is unable to
identify any of the person present in the mob which consists of young
person; neither name of any person is given by this witness. This witness
has further deposed that the person present in the mob can be identified
by him through their face. This witness having seen the four accused
present in the Court has deposed that none of these persons are the person
who were present in the mob. Thus, the evidence of this witness does not
indicate any of the facts against the accused and therefore evidence of this
witness does not support the case of the prosecution.
7. PW No.6 - Latifbhai has been examined at Exh.22 who is stated to
be eye-witness as per the case of the prosecution who prior to two days of
the incident went to Dhuliya Village and returned to home after twelve
days of the incident and came to know about injuries to his son but did
not know as to who had caused the said injury. However, since the
witness has not supported the case of prosecution; he was declared
hostile.
8. PW No.10 - Khursidbhai has been examined at Exh.35 who has
deposed in his testimony that on account of the Gujarat Bandh given on
28/02/2002; at that time, a mob armed with weapons came and ablazed
the house, as also the mosque. Witness is unable to identify any of the
person present in the mob and at the time of incident he was living at
Umarbhai's Chali. However, since the witness has not supported the case
of prosecution; he was declared hostile.
NEUTRAL CITATION
R/CR.A/1085/2003 JUDGMENT DATED: 27/02/2026
undefined
9. PW No.13 - Altafahmed has been examined at Exh.38. However,
since the witness has not supported the case of prosecution; he was
declared hostile.
10. PW - Mehrajibibi Taherali - wife of the deceased has been
examined at Exh.36. This witness has deposed in her testimony that at
the time of incident she was living at Jantanagar alongwith two children.
Prior to one year, the incident took place at the agricultural field opposite
to her home. At the time incident, having seen the mob, the witness
alongwith her husband and children started running and about five
persons encircled her husband who were having armed with axe, Dhariya,
stick and other weapons. This witness has deposed that these persons
after killing her husband had left away and witness became unconscious
and thereafter she being taken to the hospital. The husband of the witness
was taken to Modasa Dispensary where he died during the treatment.
This witness has deposed that she had seen the persons from quite away
and present accused were the persons who killed her husband. Witness
has identified the accused before the Court and since they were residing
nearby to them and therefore she identified them by their face and not by
name. This witness has identified the weapons which were armed with by
them. This witness has been cross-examined by the other side wherein
she has stated that at the time of incident a mob of persons came who
chased to kill her husband children and therefore she became scared and
fell on the ground. This witness has stated that since the mob came she
alongwith her children ran away and they were not beaten by the mob.
Initially, the children ran away and thereafter husband of the witness had
gone away whereas this witness ran away in opposite direction with other
women.
The statement of this witness was recorded after four months of the
NEUTRAL CITATION
R/CR.A/1085/2003 JUDGMENT DATED: 27/02/2026
undefined
incident. Thus, from the evidence of this witness the identity of the
accused is not clear as to who were with which weapon armed with and in
what manner they killed her husband since this witness having seen the
mob got scared and fell on the ground and when she gained
consciousness she was at the hospital. Furthermore, when they started
running, this witness had gone in opposite direction with other women
and therefore fact of she having seen the incident also became doubtful.
11. PW - Taherali has been examined at Exh.37 who has deposed in
his testimony that at the time of incident his age was 16 years. He has
deposed that on 28/02/2002 they were living at Jantanagar and at about
5:30 p.m., in the 4th line of his house, a mob came and started to assault
their house and Rahimbhai came and asked to leave the place and at that
time his father was offering prayer and thereafter all four having locked
their home came out and since the mob came, they went towards the
agricultural field and while they were running, his father was caught hold
by four person wherein Kanubha inflicted an axe blow on chick and he
therefore fell down, as also Kanubhai inflicted handle of axe on the head
of his father whereas others have given stick blow. Witness had run away
and his mother was with his father whereas his brother was with him and
confronted with the mob. This witness has deposed that his father was
taken to Dhansura where he was died in the night. This witness has
identified Kanubhai Motibhai and Chuchiyabhai and Mineshbhai and
Rasikbhai and out of other persons he identified these four persons before
the Court. This witness has deposed that he had not seen the weapon.
This witness has been cross-examined wherein he has stated that he was
at the first place while they were running and he had seen the back after
his father having injured. This witness knew the accused prior to incident
and after four months of the incident, his statement was recorded. This
witness has stated that he does not remember as to whether Kanubhai
NEUTRAL CITATION
R/CR.A/1085/2003 JUDGMENT DATED: 27/02/2026
undefined
inflicted an axe blow or not, as also he does not know as to which weapon
was armed with by which accused. This witness has also stated that he
does not remember the fact as to which weapon was inflicted by which
accused.
The statement of this witness was recorded after four months of the
incident. Thus, from the evidence of this witness the identity of the
accused is not clear as to who were with which weapon armed with and
as to in what manner they inflicted a blow since this witness having seen
the mob started running towards the agricultural field and therefore fact
of he having seen the incident also became doubtful.
12. PW No.14 - Sabirbhai, son of the deceased, has been examined at
Exh.39. This witness has deposed in his testimony that on 28/02/2002 at
about 5:30 O'clock, several persons having armed with axe, stick and
iron rod came and therefore this witness alongwith his father and brother
started running towards the agricultural field where his father was
encircled by five persons and this witness identified them before the
Court. This witness has deposed that accused No.1 inflicted an axe blow
whereas accused No.3 and 5 caught hold of his father's hand and accused
No.2 inflicted an iron rod on back side of head of his father and since
they were about to beat this witness, they ran away and complaint of his
father having died was given. This witness has been cross-examined
wherein he has stated that all four had run away and this witness was with
his mother and he does not know as to which weapon was armed by
which accused. His statement was not recorded. After two days of the
incident, witness went to Anjar where also nothing was done. The fact of
accused No.3 and 5 having caught hold of his father is not stated by him
in his police statement, as also the fact of accused No.1 inflicted axe blow
was not stated in the police statement. Police never came after the
NEUTRAL CITATION
R/CR.A/1085/2003 JUDGMENT DATED: 27/02/2026
undefined
incident. All the accused are living at Jantagar and therefore he identified
them by their face.
Thus, from the evidence of this witness, the fact of he having seen
the accused having armed with which weapon and causing such injury to
his father to commit the murder is not proved and witness has specifically
stated in the cross-examination that police had not recorded his statement
and he had not stated anything in his police statement. Thus, the
evidence of this witness does not inspire any confidence to prove the case
of prosecution.
13. All the Panch witnesses to the Panchnama drawn by the IO has
also been turned hostile and has not supported the case of prosecution.
14. Upon examining the evidence of the material witnesses, it appears
that prosecution witnesses viz., Taherali and Sabirali have both stated that
they personally witnessed the incident. However, a careful scrutiny of
their depositions reveals material inconsistencies on significant aspects.
As per the testimony of witness Tahermali, accused Kanu Bhai inflicted a
blow with an axe upon the father of the witness; accused No. 2 - Kanu
Bhai - struck the father of the witness on the cheek and also delivered a
blow with the reverse side of the axe on his back, while other accused
persons assaulted him with sticks. On the other hand, witness Sabirbhai
has stated in his deposition that accused No. 1 - Rajeshbhai - inflicted a
blow with an axe on the head of his father; accused Nos. 3 and 5 -
Mukeshbhai and Vineshbhai caught hold of his father, and accused Kanu
Bhai inflicted his father on the rear portion of the head with a pipe. Thus,
there are contradictory versions between the two witnesses as to whether
accused No. 2 was armed with a pipe or an axe. PW No.12 - Tahermali
does not attribute any overt act to accused No. 1, whereas, according to
NEUTRAL CITATION
R/CR.A/1085/2003 JUDGMENT DATED: 27/02/2026
undefined
Sabirbhai, accused No.1 was armed with an axe. Further, Sabirbhai states
that accused Nos. 3 and 5 had caught hold of his father, whereas
Tahermali makes no such assertion. Therefore, there are material
contradictions in the testimonies of Sabirbhai and Tahermali with respect
to crucial aspects of the alleged assault.
15. Similarly, having examined the deposition of PW 11- Meherajbibi,
she has stated that she saw five persons, of whom one was armed with an
axe and others were carrying a Dhariya, sticks and other weapons. She
further stated that those five persons assaulted her husband and thereafter
fled from the scene. She has identified the accused persons before the
Court as being those five individuals. However, she has not specified
which accused inflicted which blow, nor has she clearly stated which
accused was armed with which specific weapon. In ordinary
circumstances, particularly where the assailants are not previously known
to the witness, it would be difficult to accurately remember and narrate
with precision which accused was carrying which weapon. Such
omissions and inconsistencies further weaken the evidentiary value of her
testimony.
16. As per the case of the prosecution, the statements of the witnesses
were recorded approximately three months after the occurrence of the
incident and no such complaint was lodged for a considerable period of
time, nor has any satisfactory explanation been offered for such delay in
filing the complaint. Furthermore, there exist clear contradictions and
material improvements between the police statements and the depositions
recorded before Court. Ordinarily, minor inconsistencies in testimony do
not by themselves render the prosecution case doubtful, nor do they
necessarily cause prejudice. However, where material contradictions
appear in the important aspects of the prosecution version, particularly in
NEUTRAL CITATION
R/CR.A/1085/2003 JUDGMENT DATED: 27/02/2026
undefined
relation to the account of alleged eyewitnesses, such testimony becomes
doubtful and unsafe to rely upon. It would be apt to refer to the decision
of Hon'ble Supreme Court in case of Punimati & Anr. Versus The State
Of Chhattisgarh & Ors 2025 Livelaw (Sc) 1224 wherein it has been held
that discrepancies in the testimony of the sole interested eyewitness
rendered it unreliable, and that a conviction could not be sustained solely
on such evidence in the absence of corroboration.
17. Thus, from the evidence so adduced by the prosecution the fact
emerges that the complainant claims to have witnessed the incident
personally; however, neither he nor the other witnesses possess any
knowledge as to whether the alleged prior dispute or incident had in fact
occurred. Despite this, no complaint was lodged at the concerned police
station nor were the names of the alleged assailants were disclosed. When
a serious offence of such nature is committed, immediate information
would ordinarily be provided to the police authorities. However, in the
present case, although it is alleged that the incident was witnessed
directly, no immediate report was made to the concerned police station.
In such circumstances, reliance cannot safely be placed upon the
testimonies of the alleged eyewitnesses. Furthermore, the said witnesses
are interested witnesses and their depositions as eyewitnesses are
therefore not worthy and cannot be accepted as reliable piece of evidence.
18. At this stage, it would be apt to note that as per the decision of the
Apex Court's in the matter of Prabhakar Tewari V/s State of UP &
Anr.", Criminal Appeal No.153/2020, wherein it was categorically held
that if statements of witnesses is delayed by substantial time, particularly
when the witnesses were available with the police, then it casts a doubt
upon the prosecution story. Thus, in the present case also when the
witnesses were very well available to record their statements; their
NEUTRAL CITATION
R/CR.A/1085/2003 JUDGMENT DATED: 27/02/2026
undefined
statements had been recorded after considerable long period i.e. about
after three months which creates doubt as to the credence their evidence.
19. This Court may also refer to the decision of the Hon'ble Apex
Court in the case of Rajesh Prasad v. State of Bihar and Another
[(2022) 3 SCC 471] encapsulated the legal position covering the field
after considering various earlier judgments and held as below: -
"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 acquittal in the following words:
(Chandrappa case [Chandrappa v. State of Karnataka,
(2007) 4 SCC 415]
"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. 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
NEUTRAL CITATION
R/CR.A/1085/2003 JUDGMENT DATED: 27/02/2026
undefined
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."
20. In the case of H.D. Sundara & Ors. v. State of Karnataka [(2023)
9 SCC 581] the Hon'ble Apex Court has summarized the principles
governing the exercise of appellate jurisdiction while dealing with an
appeal against acquittal under Section 378 of CrPC as follows: -
"8.1. The acquittal of the accused further strengthens the
presumption of innocence;
8.2. The appellate court, while hearing an appeal 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
NEUTRAL CITATION
R/CR.A/1085/2003 JUDGMENT DATED: 27/02/2026
undefined
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."
21. In light of the above legal position and for the reasons recorded in
the foregoing paragraphs, coupled with the fact that the case of the
prosecution does not get support from the evidence recorded by the
learned trial Court, the present appeal fails and is accordingly dismissed
while confirming the judgment and order rendered by the learned
Sessions Court concerned. Records and Proceedings, if any, be remitted
to the Court concerned forthwith.
(VAIBHAVI D. NANAVATI,J)
(R. T. VACHHANI, J)
sompura
