[Cites 11, Cited by 0]
Gujarat High Court
State Of Gujarat vs Dalsingbhai Dhanabhai Bariya on 15 January, 2026
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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R/CR.A/435/2001 JUDGMENT DATED: 15/01/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 435 of 2001
With
R/CRIMINAL APPEAL NO. 527 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
DALSINGBHAI DHANABHAI BARIYA & ORS.
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Appearance:
MR J K SHAH, APP for the Appellant(s) No. 1
MR EKANT G AHUJA(5323) for the Opponent(s)/Respondent(s) No. 2,3
MR.DARSHAN A. DAVE(7921) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 15/01/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Feeling aggrieved and dissatisfied with the judgment and
order of acquittal dated 05.03.2001 passed by the learned
Additional Sessions Judge, Panchmahal Camp - Dahod in the
interconnected cross-cases arising from Limkheda Police Station
C.R. No. 195/94 and C.R. No. 196/94, wherein the complainant in
one case is the accused in the other, the appellant-State has
preferred the present consolidated appeals under Section 378 of
the Code of Criminal Procedure, 1973 ("the Code" for short). In the
case arising from C.R. No. 195/94, the respondents-accused were
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acquitted of the offences punishable under Sections 326, 323, 504,
114 of the Indian Penal Code. In the case arising from C.R. No.
196/94, the respondents-accused were similarly acquitted of the
offences punishable under Sections 324, 323, 504, 114 of the
Indian Penal Code and Section 3(1)(10) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act. Given the
cross-case nature of these matters arising from the same incident,
they are being disposed of by this common judgment to ensure a
unified and comprehensive adjudication.
2. The brief facts leading to the filing of the present appeals, are
as under:
2.1. The events come from two connected complaints filed at
Limkheda Police Station, showing opposing claims of violence over
a land dispute involving planting of thorny fence. In the first
complaint (C.R. No. 195/94), the complainant Amarsinh Limbabhai
claimed that on 7-8-1994 in the morning at about 6 o'clock in
Aagara village of Limkheda taluka, the accused were cutting thorny
fence. When eyewitness Kanesinh Limbabhai objected, the accused
got enraged, abused them obscenely with intent to intimidate,
accused Dalsinh hit eyewitness Fatesinh Limbabhai on the wrist
with a sharp weapon causing grievous injury, and the other
accused threw stones causing simple hurt to several witnesses
including the complainant, all with mutual abetment.
2.2. In the cross-complaint (C.R. No. 196/94), the complainant
Dalsinh Dhanabhai Bariya, a member of the Scheduled Tribe,
alleged that on 7-8-1994 at about 6 a.m. in Aagara village, he
refused permission to the accused to plant thorny fence on his land.
The accused got enraged, abused him obscenely knowing his caste,
threw stones causing hurt to him and witnesses, kicked witness
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Pankiben on the leg causing hurt, and used derogatory words to
insult his caste to humiliate him, all with mutual abetment.
2.3. Pursuant to these cross-complaints, FIRs were lodged at
Limkheda Police Station: C.R. No. 195/94 and C.R. No. 196/94 for
the respective offences. During investigation in both cases,
panchnama of the scene was prepared, injured were medically
examined, statements recorded, accused arrested, weapons seized
where applicable, and medical certificates obtained. After
investigation, charge sheets were filed before the Judicial
Magistrate First Class, Limkheda, and the cases were committed to
the Sessions Court (one to Special Atrocity Court initially and
transferred).
3. Upon conclusion of the prosecution evidence in each, the
learned Sessions Court put various incriminating circumstances
appearing in the evidence to the respondents-accused for their
explanation under Section 313 of the Code. In their further
statements, the respondents-accused in both cases denied all the
incriminating circumstances as false and stated that they are
innocent and have been falsely implicated due to the cross-case
arising from old land enmity. After examining the oral and
documentary evidences and the submissions from both sides in
each trial, the learned Sessions Court recorded findings in favour
of the respondents-accused and acquitted them of all charges in
both matters.
4. We have heard the learned advocates for the respective
parties and carefully examined the oral and documentary evidence
adduced before the learned Sessions Court. During the course of
the trials, the prosecution examined several witnesses including
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eyewitnesses, injured persons, medical officer, and investigating
officers.
5. The learned APP appearing for the appellant-State submitted
that the impugned judgments of acquittal dated 05.03.2001 in the
interconnected cross-cases require interference, as the prosecution
evidence establishes the offences through eyewitness testimonies
of injured persons, medical corroboration confirming grievous and
simple injuries, and investigative steps including scene panchnama
and weapon seizure, notwithstanding the learned Sessions Court's
emphasis on contradictions arising from the land dispute.
5.1 In the case from C.R. No. 195/94, reliance was placed upon
the depositions of complainant Amarsinh Limbabhai at Exh-10,
Limbabhai Vajabhai at Exh-16, Shankarbhai Limbabhai at Exh-17,
Gopalbhai Parsingbhai at Exh-18, and Kanesinh Limbabhai at
Exh-19, along with medical evidence at Exh-21, establishing that
accused Dalsinh caused grievous injury to Fatesinh Limbabhai with
a sharp weapon on the wrist and others threw stones causing hurt,
with mutual abetment during the quarrel over cutting thorny fence.
It is not disputed that Fatesinh sustained tendon cutting incised
wound and others had injuries as per certificates Exhs.22-25.
Hence, it was contended that the learned Sessions Court erred in
acquitting by overemphasising contradictions and land enmity.
5.2 In the cross-case from C.R. No. 196/94, reliance was placed
upon depositions of complainant Dalsinh Dhanabhai Bariya at
Exh-8, Pankiben at Exh-10, and Natubhai Valchandbhai at Exh-11,
establishing abuse including caste insults, stone throwing causing
hurt to complainant and witnesses, and kicked to Pankiben, with
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mutual abetment over planting thorny fence. It is not disputed that
injuries like swelling and pain were sustained as per medical
evidence. Hence, it was contended that the learned Sessions Court
erred in discarding the evidence.
6. The learned APP further submitted that medical officer's
evidence corroborates injuries, ocular accounts are consistent on
material aspects, and delay in complaint explained by cross-filing
context, warranting setting aside acquittals and convicting
respondents.
7. On the other hand, the learned Advocate for the respondents-
accused submitted that the impugned judgments of acquittal do not
call for interference, as prosecution failed to prove charges beyond
reasonable doubt due to material contradictions, old land enmity
with survey and panch, counter-complaints indicating retaliation,
lack of independent witnesses despite populated area and
gathering villagers, discrepancies in recovery (dharia without blood
stains), non-seizure of blood trail/clothes, and medical evidence
allowing alternative causes.
8. In C.R. No. 195/94, testimonies unreliable due to varying
presence of witnesses, delayed complaint after counter-case, no
specific linkage proved conclusively. In cross-case C.R. No. 196/94,
contradictions between complaint and depositions on caste abuses,
conversations, injury attribution, simple injuries only, no history to
doctor, interested witnesses only. Hence, benefit of doubt correctly
given, acquittals justified.
9. Having heard the learned counsels for both sides and
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perused the records of the interconnected cross-cases arising from
the same incident on 7-8-1994 in Aagara village over thorny fence
dispute, this Court undertakes comprehensive scrutiny to
determine if acquittals warrant interference under Section 378 of
the Code. The cross-complaints reflect opposing versions from prior
land enmity, shared issues of contradictions in ocular evidence,
medical ambiguities, investigative deficiencies, and retaliatory
filing, requiring holistic evaluation. Independent assessment shows
prosecution failed to prove charges beyond reasonable doubt,
evidence infirm aligning with Sessions Court's reasoned findings.
10. On scrutiny in C.R. No. 195/94, complainant Amarsinh and
Kanesinh deposed accused cutting thorny fence, objection led to
abuse, Dalsinh hitting Fatesinh on wrist with dharia causing
grievous injury, others throwing stones. However, contradictions
on other witnesses presence, rendering it doubtful how all clearly
saw the assault.
11. On scrutiny of the deposition of the complainant Amarsinh
Limbabhai at Exh-10 and eyewitness Kanesinh Limbabhai at Exh-19
in the case arising from C.R. No. 195/94, both witnesses deposed
that on the morning of 7-8-1994 at about 6 a.m., they were at their
house when they saw accused Dalsinh cutting the thorny fence with
a dhariya. As per the panch decision, the fence was not to be cut,
so when they objected, accused Dalsinh got enraged, abused them
obscenely, and attempted to hit Kanesinh but struck Fatesinh
Limbabhai on the wrist causing grievous injury, while the other
accused threw loose stones causing simple hurt to several persons.
However, upon careful cross-examination and comparison of their
statements, significant contradictions emerge regarding the exact
presence and positions of the other examined eyewitnesses at the
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crucial moment of the assault. For instance, the complainant stated
that Shankarbhai and Gopalbhai arrived only after the injury to
Fatesinh, whereas Kanesinh mentioned only himself and his father
Limbabhai being in the courtyard initially. This varying account
raises serious doubt about how all the witnesses could have clearly
and uniformly observed the precise manner in which the grievous
injury was inflicted, particularly when their physical locations
differed substantially, making unified visibility improbable without
independent corroboration.
12. Further examining the deposition of eyewitness Limbabhai
Vajabhai at Exh-16, he claimed to have been sitting on a Machda in
the courtyard at the time of the incident, from where he allegedly
witnessed the entire sequence including the cutting of the fence
and the subsequent assault. However, his version does not align
seamlessly with the accounts of the complainant and Kanesinh, as
he failed to clarify whether Shankarbhai and Gopalbhai were with
him on the machda or elsewhere, nor did he specify the distance
and angle from which he observed the critical blow to Fatesinh's
wrist. This omission, coupled with the inherent difficulty of
accurately perceiving fast-moving events from an elevated position
amid a heated quarrel, introduces considerable uncertainty
regarding the reliability of his observation of specific roles played
by each accused.
13. Similarly, the depositions of Shankarbhai Limbabhai at
Exh-17 and Gopalbhai Parsingbhai at Exh-18 reveal that they
positioned themselves as standing in their respective houses during
the initial phase of the incident, only becoming involved or arriving
closer after the grievous injury had already been inflicted. Their
accounts thus contradict the implication in other testimonies that
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multiple witnesses were simultaneously present and able to witness
the primary assault firsthand. These inconsistencies in the
collective ocular evidence regarding who was where, when they
arrived, and what exactly they saw severely undermine the
prosecution's claim of a clear, concerted assault, especially in the
context of a village dispute where emotions and positions could
easily affect perception and recollection.
14. All these testimonies emanate from interested parties closely
related to the complainant side, sharing the common thread of the
land dispute, and lack any support from independent neutral
witnesses despite evidence that many villagers gathered at the spot
and separated the parties. In the absence of such impartial
corroboration, the material variances in attribution of specific acts
to individual accused render the ocular account fragmented and
unreliable, failing to withstand rigorous scrutiny required in a
criminal trial where land enmity could influence partisan
narratives.
15. Turning to the medical evidence in C.R. No. 195/94, Dr.
Sakjibhai Gavjibhai Bhabhor at Exh-21 deposed that on 7-8-1994 he
examined the injured including Fatesinh Limbabhai, who had an
incised wound on the left wrist caused by a sharp weapon with
tendons cut on both sides, constituting a grievous injury. For the
others, he noted clean cuts, abrasions, and complaints of pain
possibly caused by blunt objects or stones, but in cross-examination
admitted that no history of the incident was provided by any
injured, pain complaints could be imaginary, certain wounds could
occur from accidental contact with sharp objects, and abrasion-
type injuries could result from falls or collisions. Importantly, he
could not recall blood oozing in some cases despite tendon
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involvement normally not causing heavy bleeding. While the
medical evidence confirms the existence of injuries, including the
grievous one to Fatesinh, it falls short of conclusively establishing
that they were inflicted intentionally by specific accused in a
targeted manner, leaving open alternative explanations consistent
with a scuffle or accident during the heated land dispute.
16. The evidence of the investigating officers, including Sakjibhai
Gavjibhai Bhabhor at Exh-22 and Akhmabhai Ujmabhai Garasiya at
Exh-23, reveals significant deficiencies: no statements of
independent witnesses were recorded despite the incident
occurring in a populated village area where many persons
gathered; no investigation into whether the accused side sustained
any injuries or their treatment; and the panchnama of the dharia
recovered from accused Dalsinh at Exh-15 explicitly notes no blood
stains, contradicting the panch witness at Exh-14 who claimed it
was blood-stained when seized. These procedural lapses and
discrepancies seriously impair the chain of circumstantial evidence
linking the muddamal weapon to the crime.
17. A crucial factor is the admission in cross-examination of
investigating officer Akhambhai Ujmabhai Garasiya at Exh-26 that
the counter-complaint from the accused side (C.R. No. 196/94) was
lodged and registered first, while the present complaint (C.R. No.
195/94) was recorded later at 14:00 hours without any satisfactory
explanation for the delay. This sequence strongly suggests the
possibility of retaliatory filing to counter the initial complaint,
casting substantial doubt on the genuineness and spontaneity of
the prosecution version in C.R. No. 195/94.
18. In light of these cumulative weaknesses including
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contradictory ocular accounts, ambiguous medical opinions
allowing non-criminal causes, investigative omissions, and the
timing of cross-complaints the prosecution has manifestly failed to
prove the charges beyond reasonable doubt in C.R. No. 195/94. The
testimonies lack the requisite reliability and independent
corroboration necessary for conviction; consequently, the order of
acquittal passed by the learned Sessions Court is well founded and
merits no interference.
19. Shifting scrutiny to the case from C.R. No. 196/94, the
deposition of complainant Dalsinh Dhanabhai Bariya at Exh-8
describes that he refused permission to plant thorny fence, leading
to obscene abuses including caste derogatory words to insult his
caste, stone-throwing hitting his forehead, chest and waist, a kick
to his wife Pankiben on the leg by accused Limbabhai Vajabhai, and
hurt to Natubhai on the cheek, all with mutual abetment. However,
upon detailed comparison with his original complaint at Exh-9 and
cross-examination, glaring omissions and contradictions surface
the deposition entirely lacks mention of the alleged caste related
abusive words or specific conversations detailed in the complaint,
such as threats to remove the fence; he fails to attribute any
particular injury to a specific accused; and he introduces facts like
threatening a fight if fence not uprooted, absent from the
complaint. These discrepancies render his account incomplete and
inconsistent, severely eroding its trustworthiness as a reliable
narrative of intentional caste humiliation or targeted assault.
20. The deposition of Pankiben Dalsingbhai at Exh-10 claims she
was kicked on the left leg by accused Limbabhai Vajabhai, resulting
in swelling and pain, but this specific attribution finds no
corroboration in the complainant's evidence, where accused
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Limbabhai Vajabhai is not even named as present during the
incident. Furthermore, other witnesses including Natubhai
Valchandbhai at Exh-11 admitted inability to identify who exactly
caused Pankiben's injury or certain other hurts, highlighting the
lack of unified support among the prosecution witnesses for precise
causation.
21. Natubhai Valchandbhai's evidence similarly suffers from
vagueness, as he could not clearly specify which accused threw
stones causing his cheek injury or link acts to individuals, while
admitting the underlying land dispute and survey, which provides a
non-caste motive for any quarrel. The medical evidence for this
case, again from Dr. Sakjibhai Gavjibhai Bhabhor, records only
simple injuries such as swelling on elbow, pain in leg and chest for
Pankiben, and similar minor contusions for others, opining they
could be caused by blunt objects, stones, or even accidental
collisions during running or scuffle. Critically, no history was noted,
and no grievous or sharp weapon injuries were found despite the
context of alleged targeted attacks.
22. The admitted old land dispute with survey and panch
decision, acknowledged by multiple witnesses, establishes a clear
non caste related motive for the incident, while the complete
absence of caste insults in depositions despite their prominence in
the complaint suggests embellishment to invoke Atrocities Act
provisions.
23. On an overall review of the evidence in C.R. No. 196/94, the
prosecution version appears heavily influenced by partisan interest
and prior enmity, lacking spontaneous details, consistent
attribution, or independent corroboration, thereby failing to inspire
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confidence for proving either the physical assaults or the specific
intent for caste humiliation beyond reasonable doubt.
24. The eyewitness evidence across both cases is marred by
serious contradictions that substantially diminish its reliability
variations in presence of witnesses at the spot, their exact positions
(house, courtyard, tree), timing of involvement, specific
conversations or abuses uttered, and precise roles of individual
accused in causing injuries. Although the medical evidence
confirms the presence of injuries grievous in one instance and
simple in others it does not provide unequivocal support for
intentional, weapon specific, or targeted causation by the accused,
as the doctor repeatedly allowed for possibilities of blunt impacts,
stones, accidental contact, falls, or even imaginary pain complaints.
Despite the incident occurring in a populated village with evidence
of many villagers gathering to separate the parties, the prosecution
inexplicably failed to examine any independent or neutral witnesses
who could have provided an impartial account, relying solely on
interested partisans from one side.
25. Investigative lapses are evident failure to seize blood trails or
blood stained clothes despite claims of bleeding; non-recording of
independent statements; inadequate probing of accused side
injuries; and unexplained delay in registering one complaint after
the counter one. The recovery and panchnama of the dharia show
internal contradictions regarding blood stains, with the document
noting none while a panch claimed presence, raising grave doubts
on its linkage to the offence. The undisputed prior land animosity,
including survey and panch proceedings, furnishes a compelling
motive for exaggeration or false implication through cross-
complaints rather than a one-sided criminal assault. The
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cumulative effect of these infirmities renders the prosecution
narrative in both cases improbable and unconvincing, leaving
multiple reasonable alternative explanations unexplored and
unexcluded.
26. In these circumstances, where direct linkage to specific
accused remains unestablished and reasonable doubt permeates
the evidence, the Court cannot conclude guilt beyond reasonable
doubt; the acquittals must therefore be upheld without
interference. While no abatement due to death is present unlike
some cases, the evidence fails to individually fix responsibility on
each accused with the required certainty. Proof of mutual abetment
or common intention necessarily requires clear, reliable evidence
of concerted action, which is conspicuously absent amid the
contradictions and omissions.
27. The combined weight of all aforementioned weaknesses
ocular inconsistencies, medical ambiguities, investigative
deficiencies, documentary discrepancies, absence of independents,
and enmity-driven context irrefutably demonstrates that the
prosecution has failed to discharge its burden of proving the
charges beyond reasonable doubt in either cross-case.
28. At this stage, this Court may 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
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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 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 learned Sessions 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 learned Sessions Court."
29. 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;
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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 learned Sessions Court is a possible view which
could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot
overturn the order of acquittal on the ground that another view was
also possible; and
8.5. The appellate court can interfere with the order of acquittal only
if it comes to a finding that the only conclusion which can be recorded
on the basis of the evidence on record was that the guilt of the
accused was proved beyond a reasonable doubt and no other
conclusion was possible."
30. In light of the above legal position and for the reasons
recorded in the foregoing paragraphs, coupled with the fact that
both the cases of prosecution does not get support from the
evidence recorded by the learned Sessions Court, the present
appeals fail and are accordingly dismissed. Records and
Proceedings, if any, be remitted to the Court concerned forthwith.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
Kaushal Rathod
