[Cites 27, Cited by 0]
Gujarat High Court
State Of Gujarat vs Ishwerlal Manilal Marwadi on 16 January, 2026
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 755 of 1997
With
R/CRIMINAL REVISION APPLICATION NO. 442 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
ISHWERLAL MANILAL MARWADI & ORS.
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Appearance in Criminal Appeal:
MS. JYOTI BHATT APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2,4,6
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1,3,5
MRS REKHA H KAPADIA(2246) for the Opponent(s)/Respondent(s) No. 1,3,5
Appearance in Criminal Revision Application:
MR PRUTHVIRAJ Y. GOHIL for MR SAURIN A SHAH for the Appellant(s)
No. 1
MS. JYOTI BHATT APP for the Opponent(s)/Respondent(s) No.7
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1-4, 5
ABATED for the Opponent(s)/Respondent(s) No. 2,6
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 16/01/2026
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. The State has challenged the judgment of acquittal under
Section 378 of the Code of Criminal Procedure, 1973
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(hereinafter referred to as 'Cr.P.C.') passed by the learned
Additional Sessions Judge, Ahmedabad (Rural) in Sessions
Case No. 30 of 1993 dated 02.07.1997. The trial was
conducted against six accused under Sections 302, 326, 147,
148, 149, 453 and 34 of the Indian Penal Code (hereinafter
referred to as 'I.P.C') and Section 135 of the Bombay Police
Act. The charge-sheet was filed in the Court of Judicial
Magistrate First Class, Viramgam.
2. The complainant Nathaji Unjhaji (PW1) had given his
complaint Exh.14 before PW12 - Manjibhai Dalabhai Patel, the
Investigating Officer. The FIR was registered on 03.07.1992 at
Viramgam Town Police alleging that on 02.07.1992, around
9:00 p.m., complainant's uncle's son Balsangji (PW3) and
Ishwarlal Marwadi (A-1) got into a fight about falsely swearing,
since the old quarrel of Marwadi and Thakore was going on
and due to that enmity, around half past 11 at the night, when
complainant's son - Madarji Nathaji (deceased) and another
person Dhulaji Kachraji (PW4) were returning after watching a
cricket match, they were intervened by the Marwadis near the
temple of Ramdev Pir. The complainant came to know about
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the incident from two ladies, so complainant and his another
son - Rajuji Nathaji (PW6), both came near Ramdev Pir
Temple and saw all the accused assaulting complainant's son.
According to the complainant, accused no.1 wielded with
sword, while rest of the five accused were having Dhariya
(scythe) in their hands. As per the complainant, his another
son Rajuji Nathaji intervened to save the deceased. He too got
hit on the head. It was also stated that the accused were also
assaulting Dhulaji Kachraji. All the three persons were covered
in blood. As per the complainant, all the six persons ran away
and police jeep arrived there and as three of them were
injured, they were taken to hospital in the police jeep. Later,
his son Madarji died at mid-night during the treatment.
2.1 The complainant stated that his son Madarji Nathaji
sustained injury on stomach and face. His clothes were blood
stained.
3. PW1 Nathaji P. Thakore, PW2 Amarsinh J. Thakore, PW3
Balsangji Laxmanji, PW4 Dhulaji Kachraji, PW5 Dr. Girish J.
Parikh, PW6 Rajuji Nathaji, PW7 Vijuben Chehraji, PW8
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Mahendrakumar J. Koli Patel, PW9 Rameshkumar Devjibhai,
PW10 Dr. Jayendra R Modi, PW11 Dr. Jayesh A Shelat and
PW12 Manjibhai D. Patel were examined during the course of
trial. Reliance was placed on the documentary evidences which
are: PM Report Mark 13/13 at Exh.22, Death Slip Mark 13/12
at Exh.23, Injury Certificate of Balsangji Laxmanji Mark 13/6
at Exh.24, Injury Certificate of Dhulaji Kachraji Mark 13/7 at
Exh.25, Injury Certificate of Rajuji Nathaji Mark 13/8 at
Exh.26, Panchnama of Place of Incident Mark 13/4 at Exh.31,
Inquest Panchnama Mark 13/2 at Exh.41, Injury Certificate by
Dr. Jyendra R. Modi for Dhulaji at Exh.46, Injury Certificate by
Dr. Jyendra R. Modi for Balsangji Laxmanji at Exh.48,
complaint at Exh.55, FSL Report Mark 13/16 at Exh.58,
Serological Report Mark 13/17 at Exh.59 and written
arguments of complainant at Exh.94.
4. Learned Advocate Mrs. Rekha H. Kapadia, referring to a
police report, submitted that accused no. 2 - Dahyabhai
Jaisinghbhai, accused no.4 - Ishwarbhai Harilal, accused no.6
- Sakthanagji, died during the pendency of the appeal. They
were ordered to be abated by order dated 25.08.2022 and
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20.10.2022. Hence, the present appeal would now be against
accused no.1 - Ishwarlal Manilal, accused no.3 - Chandubhai
Dargaji, accused no.5 - Kaduji Hemaji.
5. The present Criminal Revision Application No.442 of 1997
is under Section 397 of the Cr.PC, 1973, filed by the original
complainant Nathaji Punjaji Thakore challenging the judgment
of acquittal.
5.1 In the case of Sheetala Prasad & Ors. v. Sri Kant & Anr.,
reported in (2010) 2 SCC 190, the Hon'ble Supreme Court has
referred to the revisional power and the proper mode to be
exercised by the High Court and the scope of interference,
where the revision preferred is by the private complainant
(State or accused have not preferred any appeal). The Hon'ble
Supreme Court has categorized the cases, where revision
preferred by the private complainant would become
maintainable. It has been held in Paragraph 12 as under:-
"Without making the categories exhaustive,
revisional jurisdiction can be exercised by the High
Court at the instance complainant-of a private
complainant-
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(1) where the trial court has wrongly shut out
evidence which the prosecution wished to produce,
(2) where the admissible evidence is wrongly
brushed inadmissible, aside as
(3) where the trial court has no jurisdiction to try
the case and has still acquitted the accused,
(4) where the material evidence has been
overlooked either by the trial court or the appellate
court or the order is passed by considering
irrelevant evidence, and
(5) where the acquittal is based on the
compounding of the offence which is invalid under
the law."
5.2 Section 401 Cr.P.C. refers to the High Court's power of
revision, which is reproduced hereinbelow:-
"401. High Court's powers of revision.
(1) In the case of any proceeding the record of
which has been called for by itself or which
otherwise comes to its knowledge, the High Court
may, discretion, exercise any powers conferred on a
in its of the Court of Appeal by sections 386, 389,
390 and 391 or on a Court of Session by section
307, and, when the Judges composing the Court of
Revision are equally divided in opinion, the case
shall be disposed of in the manner provided by
section 392.
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(2) No order under this section shall be made to the
prejudice of the accused or other person unless he
has had an opportunity of being heard either
personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to
authorise a High Court to convert a finding of
acquittal into one conviction.
(4) Where under this Code an appeal lies and no
appeal is brought, no proceeding by way of revision
shall be entertained at the instance of the party
who could have appealed.
(5) Where under this Code an appeal lies but an
application for revision has been made to the High
Court by any person and the High Court is satisfied
that such application was made under the
erroneous belief that no appeal lies thereto and that
it is necessary in the interests of Justice so to do,
the High Court may treat the application for revision
as a petition of appeal and deal with the same
accordingly."
5.3 In the case of Joseph Stephen & Ors. v. Santhanasamy &
Ors., (2022) 13 SCC 115, the Hon'ble Apex Court has dealt
with the provision of Sections 401(3), 378(4) and 386(a),
wherein it was held that it was not permissible for the High
Court to convert the finding of acquittal to one of conviction in
its revisional jurisdiction as it is barred under sub-section (3)
of Section 401.
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5.4 The issue which got raised before the Hon'ble Supreme
Court was whether the High Court in exercise of revisional
jurisdiction under Section 401 Cr.P.C. was justified in setting
aside the order of acquittal and convicting the accused by
converting the finding of acquittal into one of conviction?
Answering in negative, the Hon'ble Supreme Court has held
that on a plain reading, sub-section (3) of Section 401 Cr.P.C.,
prohibits/bars the High Court to convert a finding of acquittal
into one of conviction. Though the High Court has revisional
power to examine whether there is manifest error of law or
procedure, etc. however, after giving its own findings on the
findings recorded by the Court acquitting the accused and after
setting aside the order of acquittal, the High Court has to remit
the matter to the Trial Court and/or the first appellate court as
the case may be. Therefore, in the present case, setting aside
the order of acquittal under Section 302 read with other
Sections of I.P.C as referred above and reversing and/or
converting a finding of acquittal into one of conviction and
consequently, convicting the accused, while exercising the
powers under Section 401 Cr.P.C., would become perverse and
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illegal.
5.5 Sub-section (5) of Section 401 Cr.P.C. read with Section
372 and proviso thereto, which inserted by Act no.5 of 2019
vide effect from 31.12.2009, was considered by the Apex
Court, as has been held in the case of Joseph Stephen (supra),
if the High Court is satisfied that the application was made
under the erroneous belief that no appeal lies and if it is
necessary in the interest of justice so to do so, then, for that
purpose, the higher authority, by passing a formal order, may
treat application for revision as a petition for appeal and deal
with the same accordingly. Here in the present case, it does
not appear so, that the applicant was under any mistaken
belief. It also requires to mention that the State has
challenged the acquittal judgment by filing the appeal.
Advocate for the complainant has been permitted to assist the
learned APP Ms. Jyoti Bhatt. Under the provision of law, the
Revision Application of the de-facto complainant, challenging
under revisional jurisdiction the acquittal, being not
maintainable, hence, consequently stands rejected.
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6. Learned APP Ms. Jyoti Bhatt submitted that the acquittal
judgment is contrary to the provisions of law. The learned trial
Court Judge has not taken into consideration the proved facts
and evidence available on the record. The evidence of the
witnesses have not been properly appreciated. APP Ms. Bhatt
submitted that accused nos.2 and 4 had given Dhariya blows
and accused no.1 had given a blow with the sword to deceased
Madarji and such assault was with the intention to commit
murder and thereby the offence under Section 302 was
proved, inspite of that, the learned Trial Court Judge has failed
to appreciate the evidence to convict the accused.
7. Learned APP Mr. Jyoti Bhatt also submitted that the
learned Judge has erred in holding that the prosecution has
failed to prove that accused nos.2, 5 and 6 had injured Dhulaji
Kachraji with Dhariya and accused no.1 had caused injury with
sword and thereby has erred in not considering the case under
Section 326 of I.P.C.
7.1 Learned APP Ms. Jyoti Bhatt submitted that the learned
trial Court Judge has erred in holding that the prosecution has
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failed to prove that accused nos.4 and 6 had injured Nathaji
with Dhariya and accused no.1 had cause injury to Rajuji
Nathaji with a sword. APP Ms. Bhatt submitted that the
prosecution had proved the case that accused no.2 had cause
grievous hurt to Balsangji Laxmanji Thakore and had
committed an offence by putting a motorcycle on fire on the
spot and had failed to appreciate the evidence on record that
all the accused had formed an illegal assembly with an
intention to commit murder of Madarji and to cause injury to
Dhulaji Kachraji, Balsangji Laxmanji and Rajuji Nathaji and
thereby had attacked the deceased and witnesses with deadly
weapons and committed an offence punishable under the
provisions of the I.P.C. Learned APP Ms. Bhatt submitted that
the accused had also committed the offence of breach of the
provision of notification issued by the learned Additional
District Magistrate under the Arms Act. It was contended by
learned APP that though the identity of the accused were
established, the learned Judge failed to appreciate the same.
From the evidence on record though it was clear that the
witnesses were knowing the accused and were familiar with
each other, the learned Judge, considering it as an incident in
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the dark, had erred by concluding that the prosecution has
failed to establish the identity of the accused. Learned APP Ms.
Bhatt submitted that the evidence of the eye-witnesses as well
as medical evidence was required to be believed as the ocular
evidence and the medical evidence are corroborated by the
prosecution witnesses. The blood group of the deceased was
found on the weapon which was also an established fact not
considered by the learned trial Court Judge, thus, contended
that the acquittal be set-aside and all the present accused be
convicted for the offence.
8. The case as was raised by the prosecution was that the
accused murdered complainant's son Madarji Thakore
(deceased), injured Dhulaji Kachraji - PW4, Balsangji Laxmanji
- PW3 and Rajuji Nathaji - PW6. The case of the prosecution is
that the complainant as well as the injured son Rajuji Nathaji
had gone at the place of incident as they came to know of the
quarrel between Marwadis and Thakores, through two women
who had come near the house and had shouted about the
incident, informing them about the quarrel.
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9. Advocate Mrs. Rekha S. Kapadia for the accused nos.1, 3
and 5 submitted that the case itself is highly improbable. The
complainant though was present there, has not sustained any
injury. The case of the prosecution is that the police jeep had
arrived at the place of incident and thereafter the accused had
ran away from the place. Advocate Mrs. Kapadia, thus,
submitted that the accused were immediately available there
at the spot, inspite of that, none of them had tried to
apprehend them nor the police had arrested them on the
place. Advocate Mrs. Kapadia submitted that the evidence of
the injured witnesses also does not inspire any confidence.
One FIR was lodged by one Raju alias Bharatkumar
Bhudarbhai, who was Marwadi by caste, on the same day
dated 02.07.1992, which was put in evidence at trial at
Exh.64. The police had not made any investigation with regard
to that where Bharatbhai Bhudarji had made a complaint that
at 21:45 hours, he was alone going towards his house and
near Jagatnaka, suddenly Madarji Nathaji Thakore, who is the
deceased in the matter, had come before him with Bhala
(spear) and had beaten him. Along with Madarji Nathaji, there
was Dhulaji Kachraji Thakore, who had Dhariya in his hand.
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Mrs. Kapadia submitted that the complaint also records that
Diluji Cherahji was also there hiding nearby, who too had
rushed with Dhariya on Bharatbhai Bhudarji. Hence, he started
running and deceased Madarji Nathaji followed him who gave
Bharatbhai Bhudarji a blow with Bhala (spear) on his right
thigh and when he started shouting, suddenly Dahyabhai
Jaysinghbhai (A2) and Ishwarbhai Manilal (A1) intervened and
rescued him. The other two were abusing complainant with
indecent utterance, and they along with the weapon, moved
forward towards their street. The cause of the quarrel,
according to the complainant Bharatbhai Bhudarji, was that his
uncle had beaten those people and the cases were going on in
the Court. Advocate Mrs. Kapadia, thus, submitted that the
investigation has not been conducted in a fair and independent
manner. The complainant Bharatbhai was injured. The I.O.
was required to bring all details on record but has failed to do
so. Mrs. Kapadia submitted that the evidence of PW4 as
injured witness should not be believed as, though police was
present there, he had not informed the police about the
incident. PW3, the injured witness, had not named any of the
accused nor had informed about the incident to any person.
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10. PW6 is the brother of the deceased - Madarji and was
alleged to be injured by Saktha Nagjibhai, who is deceased.
Advocate Mrs. Kapadia submitted that no case diary has been
produced in the matter and further there was no entry in the
station diary of the police. The police had taken the injured to
the hospital, as actually the police was on the spot. Mrs.
Kapadia submitted that the learned trial Court Judge has
appreciated the case and has rightly disbelieved the injured
witnesses, since the real genesis of the incident has not been
brought on record.
11. Learned Advocate for complainant Mr. Pruthviraj Y. Gohil,
for learned Advocate Mr. Saurin A. Shah has relied on the
judgment of the case Rameshji Amarsinh Thakore v/s State of
Gujarat to submit that minor discrepancies should not be
considered and that eye-witness to a gruesome killing would
not be in a position to narrate blow by blow account of the
incident.
12. After hearing both the sides, we perused the record and
the deposition of the witness along with the documentary
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evidence. PW1 is the complainant who happens to be the
father of the deceased - Madarji and injured Rajuji (PW6). He
was at home on 02.07.1992 and according to him, at about
11:30 at night, near Ramdev Pir Temple of Viramgam, the
incident had taken place. Two women had come near his
house and had shouted saying that the accused were
assaulting his son. Therefore, he and his son PW6 went near
Ramdev Pir temple. The witness identified the accused in the
Court. He stated that his son PW6 had gone earlier to him at
the place of incident and thereafter, he followed him. The
witness stated that accused no.1 was having sword in his
hand, while rest of the accused were armed with Dhariya.
According to him, they had also assaulted his son Raju - PW6.
The witness stated that immediately police had come in its
vehicle. His son deceased - Madarji was injured on the cheek
of the left jaw and also sustained injury on the stomach. He
stated that the accused had also beaten him on the waist and
on both the legs below the knees. He could not specify the
injury which his son Rajuji - PW6 sustained, but stated that he
was injured below the eye. In the cross-examination, while the
witness referred to the complaint, the accused had recorded
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the objection and the defence lawyer had submitted before the
trial Court Judge that the same could be considered while
recording the deposition of the I.O. as probability of another
FIR could be examined. Hence, the complaint was not put in
evidence during the chief-examination of the complainant.
12.1 The complainant also stated that on the next day, he had
shown the police the place of incident which was in front of
Ramapir Temple. The witness identified the Muddamal
weapons.
12.2 In the cross-examination, the complainant stated that his
son Madarji was lying down on the ground. Blood was oozing
out, but he had not made any efforts to make him speak. He
had inquired from Dhulaji (PW4), who he stated was
conscious. Two minutes after his reaching the place, PW3 had
come there. He stated that police was sitting in the vehicle but
he had not inquired the name of the police. The injured were
taken in the police vehicle. According to the witness, there
were about three to four police persons in the jeep and he had
not informed the police about the incident nor had Dhulaji -
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PW4 informed the police. He had gone by foot, walking to
Gandhi Hospital which was at a distance of 20 meters. He
remained there in the hospital for about half an hour, and, he
had gone to the police station in the police jeep to file the
complaint. Police was in the jeep along with him. The evidence
of this witness does not bring the real facts into picture.
Though four to five police persons were present there at the
place of incident, none of them had tried to arrest the accused.
Though the presence of the accused was alleged to be there,
why the police was there at the place of incident does not
become clear. The complainant had not named the accused
before the police there. In the cross-examination, he stated
that women who had come and had shouted about the
incident, he had not named those women in the complaint. He
also stated that he has not got it recorded in the complaint
that his son Madarji was injured on the cheek on the left side
of the jaw and the injury was also on the stomach and waist.
He has also stated that he has not got it recorded in the
complaint that his another son Rajuji sustained injury below
the eyes. The learned trial Court Judge has not believed this
witness. According to complainant, he had seen the assault on
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his son Rajuji on the head, however, he had not stated so in
the complaint. His son Rajuji (PW6) and Dhulaji (PW4), were
sent to Ahmedabad for further treatment from Viramgam
Gandhi Hospital. Till that time, he waited at the hospital at
Viramgam.
12.3 PW2 Amarsinh Thakore is the Panch witness of the
weapon. The Panchnama Exh.16 was produced in evidence of
the weapons. Another Panch was his friend
12.4 The Hon'ble Supreme Court in the case of Javed Shaukat
Ali Qureshi v. State of Gujarat, (2023) 9 SCC 164 : 2023 SCC
OnLine SC 1155 has made the following observations:
"7. In a given case, the conviction can be based on
the testimony of only one eyewitness. The law has
been laid down on this behalf by a Bench of three
Hon'ble Judges of this Court in Vadivelu Thevar v.
State of Madras [Vadivelu Thevar v. State of
Madras, 1957 SCC OnLine SC 13 : AIR 1957 SC
614] . In paras 10, 11 and 12 of the said decision,
this Court held thus : (AIR pp. 618-19)
"10. ... On a consideration of the relevant
authorities and the provisions of the Evidence Act,
the following propositions may be safely stated as
firmly established:
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(1) As a general rule, a court can and may act on
the testimony of a single witness though
uncorroborated. One credible witness outweighs
the testimony of a number of other witnesses of
indifferent character.
(2) Unless corroboration is insisted upon by
statute, courts should not insist on corroboration
except in cases where the nature of the testimony
of the single witness itself requires as a rule of
prudence, that corroboration should be insisted
upon, for example in the case of a child witness, or
of a witness whose evidence is that of an
accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a
single witness is or is not necessary, must depend
upon the facts and circumstances of each case and
no general rule can be laid down in a matter like
this and much depends upon the judicial discretion
of the Judge before whom the case comes.
11. In view of these considerations, we have no
hesitation in holding that the contention that in a
murder case, the court should insist upon plurality
of witnesses, is much too broadly stated. Section
134 of the Evidence Act, has categorically laid it
down that 'no particular number of witnesses shall,
in any case, be required for the proof of any fact'.
The legislature determined, as long ago as 1872,
presumably after due consideration of the pros and
cons, that it shall not be necessary for proof or
disproof of a fact, to call any particular number of
witnesses. In England, both before and after the
passing of the Evidence Act, 1872, there have been
a number of statutes as set out in Sarkar's Law of
Evidence -- 9th Edn., at pp. 1100 and 1101,
forbidding convictions on the testimony of a single
witness. The Indian Legislature has not insisted on
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laying down any such exceptions to the general
rule recognised in Section 134 quoted above. The
section enshrines the well recognised maxim that
"Evidence has to be weighed and not counted". Our
Legislature has given statutory recognition to the
fact that administration of justice may be
hampered if a particular number of witnesses were
to be insisted upon. It is not seldom that a crime
has been committed in the presence of only one
witness, leaving aside those cases which are not of
uncommon occurrence, where determination of
guilt depends entirely on circumstantial evidence.
If the legislature were to insist upon plurality of
witnesses, cases where the testimony of a single
witness only could be available in proof of the
crime, would go unpunished. It is here that the
discretion of the presiding Judge comes into play.
The matter thus must depend upon the
circumstances of each case and the quality of the
evidence of the single witness whose testimony has
to be either accepted or rejected. If such a
testimony is found by the court to be entirely
reliable, there is no legal impediment to the
conviction of the accused person on such proof .
Even as the guilt of an accused person may be
proved by the testimony of a single witness, the
innocence of an accused person may be
established on the testimony of a single witness,
even though a considerable number of witnesses
may be forthcoming to testify to the truth of the
case for the prosecution. Hence, in our opinion, it
is a sound and well-established rule of law that the
court is concerned with the quality and not with the
quantity of the evidence necessary for proving or
disproving a fact. Generally speaking, oral
testimony in this context may be classified into
three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
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(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should
have no difficulty in coming to its conclusion either
way -- it may convict or may acquit on the
testimony of a single witness, if it is found to be
above reproach or suspicion of interestedness,
incompetence or subornation. In the second
category, the court equally has no difficulty in
coming to its conclusion. It is in the third category
of cases, that the court has to be circumspect and
has to look for corroboration in material particulars
by reliable testimony, direct or circumstantial . There
is another danger in insisting on plurality of
witnesses. Irrespective of the quality of the oral
evidence of a single witness, if courts were to insist
on plurality of witnesses in proof of any fact, they
will be indirectly encouraging subornation of
witnesses. Situations may arise and do arise where
only a single person is available to give evidence in
support of a disputed fact. The court naturally has to
weigh carefully such a testimony and if it is satisfied
that the evidence is reliable and free from all taints
which tend to render oral testimony open to
suspicion, it becomes its duty to act upon such
testimony. The law reports contain many precedents
where the court had to depend and act upon the
testimony of a single witness in support of the
prosecution. There are exceptions to this rule, for
example, in cases of sexual offences or of the
testimony of an approver; both these are cases in
which the oral testimony is, by its very nature,
suspect, being that of a participator in crime. But,
where there are no such exceptional reasons
operating, it becomes the duty of the court to
convict, if it is satisfied that the testimony of a
single witness is entirely reliable. We have
therefore, no reasons to refuse to act upon the
testimony of the first witness, which is the only
reliable evidence in support of the prosecution."
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12.5 PW3 Balsangji Laxmanji is the injured witness, who
stated that he was at his home and at 9'0 clock night,
Ishwarlal Manilal (A1) and Dahyabhai Jaysinghbhai (A2) had
come on the road near his house when he was standing near
his house. At that time, they asked him about Nathaji's son -
Raju, informing that they wanted to beat him, so he asked
them as to why they wanted to beat him. The witness could
state that they went away after speaking abusive words.
12.6 Referring to the incident, PW3 stated that incident
occurred at 11:30 at night. At that time, he was at his home
and hearing the outcry, he had gone to the place of incident.
He, in his deposition naming all the six accused, stated that
they were there present beating Dhulaji Kachraji, Madarji
Nathaji, Rajuji Nathaji. The witness further stated that when
accused were beating them, he asked why they were beating.
At that time, Dahyabhai Jaysingh (A2) gave him a forceful
push with the Dhariya and he sustained injury at the ankle of
his left hand and the witness stated that at that time, the
police vehicle had come there. Seeing the police along with
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their weapons, the accused ran away towards railway crossing
and he returned back to his home. The witness further stated
that since police vehicle was there, he came again and he and
Jawanji put all the three injured in the vehicle, he went to
Gandhi Hospital, where he also took the treatment. According
to him, Rajuji (PW6) is not his real brother but a family
brother. His grandfather was Kachraji and Rajuji's father was
Nathaji (PW1) and Nathaji's father was Punjaji. He stated that
Punjaji and Nathaji, both were real brothers. The relation of
this witness with the complainant's side was brought on
record.
12.7 The witness PW3 in the cross-examination stated that
almost about 15 criminal cases were filed against him in
Mehsana and he had also received a notice of 'Tadipar' and
was also arrested under the Prevention of Anti-Social Activities
Act, 1985 (for short 'PASA'). He further stated that his father
Laxmanji was residing at Viramgam and against him too, there
were about 15 to 20 criminal cases. Almost about 15 to 20
days prior to the incident, he had come to Viramgam. The
evidence of this witness could not be believed since he himself
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is having a criminal mentality, facing 15 to 20 criminal cases.
The fact of his returning back to his house even after the
injuries sustained by others and thereafter returning back
stating that police was there and inspite of the police were
present over there, the witness though was injured, had not
named the accused. He in the cross-examination stated that
seeing the police jeep, he ran towards his house.
12.8 The evidence of the witness becomes doubtful as he
appears to have been involved in the incident, but his role
does not become clear. As per the cross-examination, there
were about 70 to 80 residential houses of Marwadis near the
Ramapir Temple and the incident had occurred on the road in
the area of the Marwadi community. He had not taken any
precaution to see that the accused, who had come there to
inform him, would not assault as per threat, he had not prior
in hand informed the injured-deceased nor the police of such
threat .
12.9 According to the witness, at 9'0 clock night, A1 and A2
had come near his house and were inquiring about
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complainant's son Raju. The distance between his house and
Raju's house, as has come in the cross-examination, is only of
2 meters. Though these two persons had come to his house,
calling upon him threatening that they would want to beat
Raju and Raju was residing in his immediate neighbourhood,
inspite of that, he had not informed injured Raju (PW6) about
the threat of A1 and A2. Certain contradictions in his
depositions were brought on record. In the cross-examination,
he stated that he had not seen any person assaulting and that
he had not given the names of the assaulters to the police. He
had not even informed the police about the weapon with which
he sustained injury. He affirmed that he has not got it
recorded in the police statement that he and Jawanji had
placed the three injured in the police jeep nor had he got it
recorded in the police statement that till the jeep left the
place, he was at the place of incident. He stated that he had
informed the police only about quarrel. The learned Trial court
Judge has rightly not believed this witness. The witness is not
a natural witness on whose deposition reliance could be
placed, his conduct also was not normal if the deposition of
this witness is analyzed in context with the complaint. He
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appears to be a created witness.
12.10 In the case of Budhwa alias Ramcharan and Ors. v.
State of M.P., 1991 Supp (1) SCC 9, it was observed by the
Hon'ble Supreme Court as under:
"In the case of group rivalries and enmities, there is
a general tendency to rope in as many persons as
possible as having participated in the assault by
merely naming them. The Court, therefore, has in
all such cases to sift the evidence with care.
12.11 In the case of Budhwa alias Ramcharan (supra), the
Hon'ble Supreme Court has observed, as under:
"4....This Court has in several decisions pointed out
that "where there is enmity between the two
factions then there is a tendency on the part of the
aggrieved victim to give an exaggerated version
and to rope in even innocent members of the
opposite faction in a criminal case and that
therefore the Court has in all such cases to sift the
evidence with care and convict only those persons
against whom the prosecution witnesses can be
safely relied upon without raising any element of
doubt", vide Raghubir Singh v. State of U.P.
[(1972) 3 SCC 79: 1972 SCC (Cri) 399: AIR 1971
SC 2156].
6. "Where an occurrence takes place involving rival
factions it is but inevitable that the evidence would
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be of a partisan nature. In such a situation to reject
the entire evidence on the sole ground that it is
interested is to shut one's eyes to the realities of
the rural life in our country. It has to be borne in
mind that in such situation easy tendency to involve
as many persons of the opposite faction as possible
by merely naming them as having been seen is a
tendency which is more often discernible and has to
be eschewed and, therefore, the evidence has to be
examined with utmost care and caution and the
Court has to adopt a workable test for being
assured about the role attributed to every accused"
vide Muthu Naicker v. State of Tamil Nadu [(1978)
4 SCC 385: 1979 SCC (Cri) 14]."
13. PW4 Dhulaji Kachraji is the person who had gone with
the complainant's deceased son Madarji Nathaji, as stated to
watch cricket match. PW4 is the watchmen in a textile mill and
was an elected member of the Municipal Corporation. He
stated that on that day, he and Madarji had gone to watch
cricket match at M.J. High School ground. It was a night
tournament. They were returning at about 11:15 at night and
near Ramapir Temple, all the accused were waiting with the
weapons and according to him, accused no.1 gave a blow on
the face of deceased Madarji with a sword. The deceased got
injured on the left cheek. He further stated that accused no.2
Dahyaji Jaysingh gave a blow on the stomach of the deceased
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with the hind sight of the Dhariya and accused No.4 Kishor
Harilal also gave a Dhariya blow on the left waist of the
deceased. According to him, at that time, Dahyabhai Jaysingh
(A2) had burnt a motorcycle which was parked near the
temple. The witness also stated that accused no.3 Chandubhai
Dargaji gave two blows with Dhariya on his head and when he
tried to restrain the blow, at that time, accused no.5 Kaduji
Hemaji gave a blow with the Dhariya on the left upper arm
and accused No.6 Saktha Nagji gave a Dhariya blow on the left
leg thigh and thereafter, he fell down on the ground. He
further stated that accused no.6 Sakthaji also assaulted him
on his hips with the hind sight of the Dhariya. At that time,
Raju came running there and the witness stated that all the
accused also started beating him and Kishor Harilal accused
no.4 had given Rajuji blow with the Dhariya as well as accused
no.6 Saktha Nagji assaulted Rajuji with the Dhariya on his left
leg. The witness stated that accused no.1 had given the sword
blow on the face of Rajuji. The police, at that time, had come
there, so all the accused ran away from the place. In the
cross-examination, the witness stated that the day on which
they were injured, it was Rathyatra day and there was
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bandobast of police as well as SRP. When he had fallen down,
he saw the police inspector who was present there and police
was in the jeep. He had not informed the police about the
incident nor had informed about the facts at the place. He
stated that he could not state whether other persons had
informed the police about the incident. He also stated that
police had taken them in the hospital in the jeep. He had not
informed the doctor the names of the assailant nor had he
described the weapon with which he sustained injury. In the
cross-examination, he affirmed that there were about 7 to 8
counter cases against each other and he was best friend of
deceased Madarji.
13.1 In the case of State of Haryana Vs. Shakuntla, 2012 (2)
RCR (Cri.) 845 SC, the Supreme Court attempts to
substantiate the credibility of an interested witness, as per
Court a witness is someone who has a direct or indirect
interest in the accused, who has been convicted for a reason
of animus or any other oblique motive. It is an agreed fact
that the evidence of an interested witness is untrustworthy
and must be verified before being accepted.
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13.2 Furthermore, as stated in State of Haryana Vs. Shakuntla
(supra), it is widely accepted that interested witnesses want
the accused to be convicted, hence judicial caution is essential
when hearing such testimony.
13.3 The case becomes improbable that though this witness
was a member of the Municipal Corporation and the police was
present there, he had not informed the police about the
incident, nor had he stated anything before the treating doctor
about the assailant and the weapons. It appears that he was
interested in giving the deposition as the deceased was his
friend and many cases were filed against him from accused
side. The witness cannot be considered as independent witness
and further his evidence cannot become believable, since the
conduct of the witness itself becomes doubtful. Though the
police was present there, the police had made no efforts to
arrest the accused.
13.4 In the cross-examination, he could state about the
quarrel between the deceased and the Marwadis was with
regard to land. According to the witness, Rajuji (PW6) was
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with him in the jeep. He could not state whether Rajuji had
informed the police about the incident. In the cross-
examination, the witness was confronted about the assault at
9:45 night on 2nd July, 1992 on Bharat Bhudar, however, the
witness had denied the same. The FIR about the assault on
02.07.1992 on Bharat Bhudar was placed on record at Exh.64,
which suggests that some incident had occurred prior to the
present complaint. The real fact has not been brought on
record.
13.5 PW5 was the Medical Officer, Dr. Girish Parikh, who had
stated of the dead body of Madarji Nathaji Thakore, brought at
about 11'o clock in the morning on 03.07.1992 for
postmortem. The doctor witness has referred to the recorded
injuries which were about five in number and has also noted
the fracture of both the legs of tibia and fibula. The doctor had
also stated that when the dead body was brought before him,
it was totally in a naked condition and therefore, had no
occasion to observe the clothes of the deceased. In the cross-
examination, the witness stated that the injured Balsangji
Laxmanji had come without any police Yadi and in Exh.24, it
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has not been recorded that police had brought him there. Even
injured Rajuji Nathaji had come without any police Yadi and no
endorsement was made in Exh.26 of he being brought by the
police.
13.6 Referring to the medical case papers, he stated that
though all the three injured persons had come before him, he
had not made any endorsement of informing the police. The
doctor also has failed in his duty of informing the police about
the incident. There would be no denial about the injury
sustained by the witness, but how and in what way and who
caused the injury, does not become clear. More specifically,
when police was though present there, none of the witnesses
deemed fit to inform the police.
14. PW6 Rajuji Nathaji is the son of the complainant.
According to him, at the time of the incident, he was at his
home, during night time talking with his mother. At that time,
he stated that two women came near their house and started
shouting. One was Agraben and another was Vijuben. They
informed while shouting that Marwadi people were beating
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Dhulaji and Madarji. On hearing so, he and his father (PW1),
running reached at Ramdev Pir Temple and he saw there
initially that his brother Madarji was lying down in pool of
blood and beside him, Dhulaji was also lying down at the spot
with the blood splattered around. He stated that Marwadi
people were there and they were beating his brother and
Dhulaji. He identified the accused in the Court.
14.1 Referring to the weapons wielded by the accused, he
stated that accused no.1 was having sword in his hand, while
rest of the five were armed with Dhariya in their hands. When
he intervened, accused no.4 assaulted him on the head with
the Dhariya and another assault with the Dhariya was by
accused no.6 on the ankle of his right leg. He further stated
that accused no.1 gave a blow with the sword on his face,
which injury he sustained from the middle of his nose towards
the right eye.
14.2 He further stated that accused no.2 had pushed down a
motorcycle which was parked there near the temple and burnt
it and, at that time, police jeep had come and accused ran
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away from the place. According to the witness, he and his
brother Madarji as well as Dhulaji were placed in the police
jeep by Balsangji and Jawansingh and they were taken to
Gandhi Hospital. The preliminary treatment was given there
and thereafter in the ambulance they reached to Ahmedabad
Civil Hospital. The witness stated that his brother Madarji died
at the Gandhi Hospital and he stayed one day at Civil hospital,
Ahmedabad and was discharged. The witness identified the
sword and the Muddamal Dhariya.
14.3 The certificate at Exh.26 is by the Medical Officer,
Viramgam which was placed in evidence by Dr. Girish J. Parikh
(PW5). Dr. Girish J. Parikh had produced the injury certificate
of the present injured and according to the doctor, Rajuji
Nathaji was brought to his hospital at 0:30 am on 03.07.1992
without police Yadi and the following injuries were noted by
the doctor :
1) IW 1" X ½" bone deep over left side of forehead.
2) IW 3" X ½" bone deep over left parietal region
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14.4 The document Exh.26, which is the injury certificate,
though records that the victim witness was assaulted with the
sword, he had not named the persons who had assaulted him.
Though they had gone in the police vehicle, there was no
police Yadi for the examination of the victim.
14.5 According to the witness victim PW6 Rajuji, the Civil
Hospital had not informed the police and it had not so occurred
that police had come during his treatment by the doctor. PW6
stated that when he was having his treatment at Viramgam,
he had seen the police, while had not seen the police at Civil
Hospital on the next day where he was treated. The Viramgam
Police had inquired about the weapon as well as assaulters,
while police at Civil Hospital had not inquired from him. He had
seen the police on the next day at Civil Hospital, but he
himself had not informed anything to the police there.
14.6 According to the witness, though he was discharged from
the hospital, he was not allowed to leave the hospital by
Ramjibhai Kachraji and Khodaji Gulabji, who had come with
him in the ambulance from Viramgam. He also stated that one
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Balsangjibhai had also come at Civil Hospital. Balsangbhai,
after having the bandage, was released from the hospital prior
to him. He was discharged in the morning at about 10 or 11
hours, while Balsangbhai was discharged in the morning at 7
or 8 hours.
14.7 In the cross-examination of this witness Rajuji, a
reference has been made of one Shivaji Nathaji, who was the
relative of the witness Rajuji, who had come at the hospital on
05th July, 1992 at 7 in the morning and police had come at 10
to 11 in the morning. Since his father had given the complaint,
therefore, they had not inquired from Shivaji Nathaji about
filing of the complaint. The witness was not present when his
father had given the complaint and he stated that the father
had filed the complaint, and his father had not inquired from
him as to who had assaulted whom.
15. The case, as has been drawn by the prosecution, would
show that the complainant's father had come later on at the
place of incident. As per the complainant-father, he reached
the place after his son PW6 Raju. The evidence shows PW3
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Balsangji Laxmanji as a chance-witness, who alleges to have
sustained injury but could not clarify his connection to the
incident. He appears to be an embroiled witness where the
prosecution had tried to bring the presence of accused no.1
and 2 at the house of PW3 bringing the case that accused nos.
1 and 2, prior to the assault at 11 to 11:30 night, they had
reached the house of PW3 at 9'o clock night and had
threatened to beat complainant's son Raju i.e. present witness
PW6. The allegation was of beating PW6, while in the incident,
the person who died is the brother of PW6, Madarji. PW6 has
not stated about the presence of PW3. The person, who
according to PW6, apart from him, injured was PW4, who was
along with his deceased brother Madarji. PW4 Dhulaji is the
member of the Municipal Corporation. The tainted criminal
background of PW3 as well as PW4 had been brought on
record by the defence.
15.1 So far, PW6 Rajuji's evidence is concerned, he in the
cross-examination stated that he in his presence had not seen
any assault on his brother, while stated that in his presence he
saw two injuries inflicted to PW4. PW4 Dhulaji further stated
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that two assaulted him, one was by Dhariya and another one
was by the sword. The assault of the sword was on the face
while one blow of the Dhariya was on the hip and when Dhulaji
sustained sword injury on the face, he fell down.
15.2 According to PW6, the sword injury which he received
below the right eye was given to him from the front side and
when he received a Dhariya blow, he fell down on the ground.
16. The defence had placed the question in the cross-
examination about the pant worn by this witness PW6 as well
as PW4. Rajuji as PW6 stated that the police had not seized his
pant. He stated that he received the treatment of the leg
injury at Viramgam Hospital as well as Civil Hospital and a lot
of blood was oozing out from the injury and he stated that his
pant was blood stained and also affirmed that when he
received the Dhariya blow, his pant also got a cut. In the same
way, for PW4, for the injury which was given on the hips, the
witness stated that PW4's pant also had a cut and blood was
coming out of the injury and the pant was stained because of
the blood.
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16.1 Inspite of injury as well as the cuts on the pant and the
blood stains affirmed by the witness, the police had not found
fit to seize the pant of PW6, which he had worn at the time of
the incident. It appears that the police along with the
prosecution witness has tried to hide the real facts. The police
has not brought the actual incident on record. The police was
continuously with the prosecution witnesses. The evidence
suggest that the police was present at the time of the incident.
Inspite of that, the accused could not be arrested from the
place of the incident.
16.2 The prosecution witnesses PW3, PW4 and PW6, who
alleged themselves to be injured witnesses, had not made any
complaint before the police. They had not named the accused
who had given them the blow. The weapons allegedly used
were also not disclosed before the police. The evidence on
record would proof that even the witnesses had not named the
accused to the doctor nor had they informed the doctor about
the weapon with which they had suffered the injury.
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17. The evidence of PW6 through the cross-examination
becomes doubtful. The prosecution witness have tried to
create a case against the accused, by bringing false facts.
17.1 PW6 Raju stated that the accused who were involved had
escaped towards Nilki Fatak. The police in the jeep had not
gone after them to arrest the accused. The road towards Nilki
Fatak was tar road.
17.2 The very crucial evidence which gets reflected in the
cross-examination of PW6, where he states that, though police
had asked them as to who were the assaulters, they had not
given the names of the assaulters. He affirmed that when the
police jeep had come, at that time, Dhulaji (PW4), Madarji,
Balsangji (PW3), his father (PW1) and he himself were present
there and out of them, none had given the names of the
accused to the police. He also affirmed that Jawansingh, too,
had not given the names of the assailants to the police. He
affirmed that till the time they were taken to Ahmedabad for
treatment, none from them had given the names of the
assailants to the police. Till the time they were shifted to
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Ahmedabad, except his father, none had informed the police
about the incident. PW6 Raju's very evidence shows that his
father had not inquired from him as to who had assaulted
whom and with which weapon. So, the father, who actually
had not seen the incident of assault to the deceased son,
under whose instruction or information, had given the
complaint to the police, does not become clear. The delay in
filing the complaint itself shows that the prosecution case is
tainted with fabrication and falseness.
17.3 The witness further clarified in the cross-examination
that the doctor at Viramgam had asked him about the weapon
with which he sustained injury, but he had not informed the
doctor about the weapon. He stated that he had not told the
doctor that he was assaulted by sword. Even the doctor at
Ahmedabad had inquired from him about the weapon, but the
witness stated that he did not reply about the weapon with
which he sustained the injury. Non-disclosure of the actual
facts, before the police as well as the doctor, who could be
considered as independent person, itself proves that the
prosecution witnesses were trying to hide facts and were
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making all efforts to hide the actual occurrence.
18. It appears that after deliberation, the complaint came to
be filed against the present accused, who had faced the trial.
19. In the cross-examination, it has come on record that
there were many houses of the Marwadis in the neighbouring
area and since very long time, there was enmity of the
Marwadis with the deceased brother Madarji. PW6 stated that
Marwadis had filed a case against him, his brother and as well
as his father. There were almost about 7 to 8 cases against
them and the accused in all the cases were the witnesses.
19.1 In the cross-examination, he was asked about Bharatbhai
Bhudarbhai, the complainant of Exh.64 and PW6 denied of
knowing that on that night, at about 10'o clock, his deceased
brother Madarji had assaulted Bharat Bhudar with a Bhala
(spear). He stated that he is unaware that there was a case
filed for the incident that had occurred on that night and in
that case, Madarji Nathaji (deceased), Dilujit Cherahji and
Dhulaji Cherahji were the accused. He denied that at the time
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of incident at Ramdev Pir Temple, there were bhajans
organized by the Marwadis and at that time, deceased Madarji
and Dhulaji had gone with the weapons. He denied the
suggestion that prior to reaching the place, the lights of that
area were switched off. He denied the suggestion that when
those three had gone at that place, there was a riot and 25 to
30 Marwadis from the Bhajan Mandal as well as from the
nearby neighbouring houses, had come running there and in
the dark night, had assaulted three of them. His evidence
denies the suggestion that till 5th July, he had not given the
names of the accused. The evidence of PW6 becomes
unreliable and untrustable.
20. PW4, a member of the Municipal Corporation, as per the
evidence in the cross-examination is facing many criminal
cases. He affirmed that Raghubhai Shivabhai had filed the case
of grievous hurt against Rajuji Nathaji (PW6), Madarji Nathaji
(deceased) and his brother Shivaji and other eight. He is not
aware of the fact that accused no.2 was the witness in the
matter and has expressed his ignorance about cases filed
against him wherein accused nos.1, 2 and 4 are the witnesses.
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The suggestions are of four cases filed against the witness
PW4 by the accused. He affirmed that since last two years,
there had been many cases against each other of Marwadis
and Thakores. He is a Corporator of Viramgam since last seven
years. His earlier term was from Aligarh Panel. He denied the
suggestion that many offences were filed against him and
therefore, he was ordered to be externed.
20.1 The defence examined witness Mr. Natu Motibhai at
Exh.79, who stated that he attended the Bhajan in Ramdev Pir
Temple by parking his motorcycle near the temple. According
to the defence witness, the day was of Rathyatra i.e. Asad Bij,
the area where he parked his motorcycle, the lights were off
and it was dark night. During that time, the Bhajans were in
progress. At that time, within two to three minutes, three to
four persons came shouting and he went out, since it was
dark, he could not identify the person. About 25, to 30 persons
had come near Marwadis house and there was a clash between
the two groups. He entered inside some person's house and
afterwards when he came out, he saw that his motorcycle was
totally burnt.
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20.2 The defence by examining the witness had tried to prove
on record that the incident had occur near the Ramdev Pir
Temple and the corroboration of the vehicle being burnt had
been brought by the defence near the temple. The defence
witness states of a clash between two groups.
21. The cases filed by both the communities against each
other shows long drawn enmity and the approach of falsely
implicating as many accused as could be involved, gets clear.
This witness PW4 denied the suggestion that he and deceased
on 02.07.1992, at about 9:45 pm had assaulted Bharat
Bhudar. The evidence on record by way of the FIR proves to
substantiate the fact that some incident had occurred even
prior to the alleged incident. The real genesis of the incident
has not been brought on record.
22. In the case of Chandrappa v. State of Karnataka, (2007)
4 SCC 415: (2007) 2 SCC (Cri) 325: 2007 SCC OnLine SC
212 , the Hon'ble Supreme Court has relied on the case of
Kallu v. State of M.P. (2006) 10 SCC 313: (2006) 3 SCC (Cri)
546: AIR 2006 SC 831, wherein it has been held as under:
NEUTRAL CITATION
R/CR.A/755/1997 JUDGMENT DATED: 16/01/2026
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"8. While deciding an appeal against acquittal, the
power of the appellate court is no less than the
power exercised while hearing appeals against
conviction. In both types of appeals, the power
exists to review the entire evidence. However, one
significant difference is that an order of acquittal
will not be interfered with, by an appellate court,
where the judgment of the trial court is based on
evidence and the view taken is reasonable and
plausible. It will not reverse the decision of the trial
court merely because a different view is possible.
The appellate court will also bear in mind that there
is a presumption of innocence in favour of the
accused and the accused is entitled to get the
benefit of any doubt. Further if it decides to
interfere, it should assign reasons for differing with
the decision of the trial court."
23. In view of the analysis of the evidence and the law
established in the referred judgments, the learned trial Court
Judge's observations for acquitting the accused requires no
interference and there is no reason which comes forefront to
upset the finding of the learned trial Court Judge in the
judgment of acquittal passed by the learned Additional
Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 30 of
1993 dated 02.07.1997. In the result, the appeal is dismissed
and Criminal Revision Application stands rejected. Bail bond
NEUTRAL CITATION
R/CR.A/755/1997 JUDGMENT DATED: 16/01/2026
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discharged. Record and Proceedings to be sent back to the
concerned trial Court forthwith.
Sd/-
(GITA GOPI,J)
Sd/-
(HEMANT M. PRACHCHHAK,J)
PARMAR KRISH
