[Cites 8, Cited by 0]

Gujarat High Court

State Of Gujarat vs Ganpatsinh Raijibhai Rathod on 17 January, 2026

Author: Gita Gopi

Bench: Gita Gopi

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                           R/CR.A/434/2003                                          JUDGMENT DATED: 17/01/2026

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                                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/CRIMINAL APPEAL NO. 434 of 2003


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MS. JUSTICE GITA GOPI

                      and
                      HONOURABLE MR.JUSTICE D. M. VYAS

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                                   Approved for Reporting                          Yes           No

                      ==========================================================
                                                 STATE OF GUJARAT
                                                       Versus
                                         GANPATSINH RAIJIBHAI RATHOD & ANR.
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                      Appearance:
                      MR. ROHAN H. RAVAL, ADDL. PUBLIC PROSECUTOR for the
                      Appellant(s) No. 1
                      MR YM THAKKAR(902) for the Opponent(s)/Respondent(s) No. 1,2
                      ==========================================================

                        CORAM:HONOURABLE MS. JUSTICE GITA GOPI
                              and
                              HONOURABLE MR.JUSTICE D. M. VYAS

                                                        Date : 17/01/2026

                                                 ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE GITA GOPI)

1. The State under Section 378(1)(3) of the Criminal

Procedure Code, 1973 (for short "Cr.P.C") has challenged

the judgment and order of acquittal passed by the Court of

Additional Session Judge, Panchamahal Godhra in

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Sessions Case No. 327 of 2001 dated 30.09.2002.

2. The charge that was drawn below exhibit-5 against two

accused was with the effect that on 27.06.2001, at about

17:30 hours, opposite the house of the witness Udesinh

Mangalsinh Rathod, at the place of Bakabhai Balubhai

Rathod, Mahudiwala's agriculture land, both the accused

and witness Maganbhai Mangalbhai Rathod had a verbal

quarrel with regard to the border which was soil boundary

to be built between their houses.

3. The charge states that, at that time, deceased Ganpatsinh

Himmatsinh Rathod was passing by the place and at that

time, the accused and witness Maganbhai Mangalbhai

were quarreling and to relieve them, he intervened and at

that time, accused told deceased Ganpatsinh Himmatsinh

Rathod, that he was not allowing them to settle the dispute

and he was instigating them. The charge further states

that in abetment with intent to murder Ganpatsinh

Himmatsinh Rathod, accused No.1, with the axe in his

hand, gave a blow on the forehead of Ganpatsinh

Himmatsinh Rathod and accused No.2, with the stick in

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his hand, assaulted Ganpatsinh on hand, legs and other

parts of the body, causing grievous injury, as a result, he

died. Thereby, both the accused were charged with an

offence under Section 302 r.w. Section 114 of the IPC.

4. Learned APP Mr. Rohan H. Raval, referring to the

testimony of all the witnesses, which are about twelve in

number, submitted that the learned Trial Court Judge has

erred in acquitting the accused. The appreciation of

evidence was not in accordance with the provisions of the

law and evidence and report.

5. Learned APP Mr. Raval has submitted that at the time of

the commission of offence, accused with the assistance and

aid of each other had assaulted deceased Ganpatsinh, the

clear intention of murdering the deceased could be

gathered with the weapon which was used, further alleged

that the accused No.1, with the axe, and accused No. 2,

with the stick, assaulted the deceased, causing fatal

injuries.

6. Learned APP further stated that the head injury caused led

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to the death, instead of taking those injuries into account,

the learned Trial Court Judge had given importance to the

defense version of internal injuries and liver which resulted

into rupture of liver. Learned APP submitted that the

injuries was possible by hard and blunt substance and the

muddamal axe and stick were identified by both the eye

witness, PW-9 and PW-10. The learned Trial Court Judge

had evidence on record against the accused, in spite of

that, the learned Trial Court Judge acquitted the accused,

thus urged to allow the appeal and convict both the

accused under Section 302, Section 325 as well as Section

504 r.w. Section 114 of the IPC.

7. We have perused the record and testimony of the witnesses

as well as the documentary evidence along with the FSL

report. PW-1 is the complainant, in spite of being the

complainant, he failed to support the prosecution's case.

According to the PW-1, he has no knowledge as to who had

assaulted deceased Ganpatsinh, he has not stated about

the incident. He stated that he has not seen the incident,

his father informed him that Ganpatsinh was assaulted by

axe and stick, but his father had not informed as to who

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had assaulted Ganpatsinh. The complaint was referred to

him, where PW-1 identified the signature further clarifying

that he has no knowledge about the assault while he had

informed the Police in the complaint that the assailant were

with the axe and stick.

8. The vital witness as complainant has failed to support the

case of the prosecution. The allegation of the prosecution is

with respect to the quarrel between the accused and

witness Maganbhai Mangalbhai Rathod. Further the

dispute with regard to creating a boundary and the

important witness Maganbhai Mangalbhai Rathod, had not

been examined to prove the cause of the quarrel. Whether

the quarrel actually ensued would become doubtful when

the actual cause had not been proved. The prosecution had

come up with a case that while the accused and witness

Maganbhai Rathod were quarreling, he was passing by the

place and he intervened to stop the quarrel and at that

time the accused told him that he was not allowing their

dispute to be resolved and rather alleged that he was

instigating the witness. The crucial aspect thus becomes

relevant is that the said fact of the quarrel between the

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accused as well as Maganbhai Rathod could have been

proved only by way of the deposition of Maganbhai Rathod,

which is the vital blow to the prosecution case as he would

be the immediate eyewitness who could have seen the

incident. The Panch witnesses PW-3, PW-4, PW-5 and PW-

8 have not supported the prosecution case.

9. PW-2 who is Dr. Shashikant Basantilal, before whom

Ganpatsinh Himmatsinh was brought. His clothes were

blood stains. The prosecution case was that accused No.1

had given a blow with the axe on the forehead while

accused No.2 with the stick had assaulted on hand, legs

and other parts of the body. The P.M. Note has been

referred by the doctor, the opinion of the doctor with regard

to the death was "shock due to intracranial hemorrhage

due to head injury". The wound which has been shown on

the forehead was observed to be stitched in the P.M. note.

9.1. PW-7 is the doctor who had examined the deceased at

the primary health centre, Kalol where Dr. Ritesh

Chanpaneriya, PW-7 was working as a medical officer.

Ganpatsinh Rathod was brought at about 9 p.m. at night

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on 27.06.2001 with a history of quarrel. The victim at that

time was conscious. The doctor examined the patient and

he had referred to the fracture of the head and contuse

lacerated wound of 5 x 1 x 1 cm. The doctor also found

fracture in the ulna, while one lacerated wound was noted

on the right side of the abdomen as well as swelling and

laceration was observed on the front and back of the head.

The doctor in the cross-examination stated that the patient

was conscious and he was in a position to speak. However,

no history of quarrel has been recorded in the certificate

issued by the doctor. The cross-examination would clarify

that the patient was conscious enough, who could have

given the total history of the incident and would have given

the names of the assailant as well as the weapons involved.

While this doctor who had first examined the deceased had

found the patient to be in a position to talk. However, the

patient has not given any history of assault by the

accused.

10. The learned Trial Court Judge has rightly disbelieved

the case of the prosecution. The immediate witness before

whom the deceased could have informed the history as well

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as the name of the assailant is not coming on the record.

The witness Maganbhai Mangalbhai Rathod for whom the

deceased had tried to take a side for the quarrel between

them with regard to the boundary wall, which was the

cause for the quarrel, that Maganbhai Mangalbhai Rathod

had not come forward to support the prosecution case.

10.1. Much reliance has been placed on the evidence of PW- 8

and 9, who are father and son by learned APP. Both are

related to the deceased. PW-8 Arjunsinh is also a person

from the village. He too had turned hostile. He was a person

who had taken deceased Ganpatbhai to the hospital.

However, that fact he does not support in the examination

in chief. While in the cross examination the witness has not

supported the case of the prosecution, that in the Rickshaw

he had an opportunity to talk to the deceased. However,

the cross-examination clarifies that he was the person who

had taken the deceased at the dispensary, while denied the

suggestion that He had left the dispensary, then first had

gone to the Police Station. In the cross-examination PW-8

could also state that when he had gone to the place of

accident there was no one present there, he had seen

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deceased lying there. There on the place, after some time,

Udesinh Mangalsinh and Kiransinh had arrived. So, as per

the evidence of PW-8, PW-9 and 10 had come later on, at

the place of accident. But PW-8 has not alleged that it was

the accused who had assaulted the deceased.

11. PW 9, Udesinh Mangalsinh, stated that the deceased

Ganpatsinh Himmatsinh was his nephew. He had no more

information as to what was the quarrel which was between

Mangalbhai and accused. The witness stated that he was

at his agriculture field near his house. At that time,

Ganpatsinh Himmatsinh had come there and according to

the witness, Ganpatbhai Raijibhai, and Ashwinh

Ganpatbhai, started beating deceased Ganpatsinh

Himmatsinh. According to the witness, Ganpatbhai

Raijibhai assaulted with an axe on the head and Ashwin

with a stick had beaten the deceased on different parts of

the body. He further stated that since he was at a distance,

he could not specify as to on which part of the body

Ashwin had assaulted with a stick.

12. The evidence further clarifies that there were many

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people at that place. According to the witness, the people

were trying to come against him and therefore, he and his

son ran away from this place. Again, later on, he had gone

to see the deceased Ganpatsinh and thereafter, in a

rickshaw, they had taken him to the dispensary.

13. The evidence becomes doubtful since though he was

there at the place of incident, he had not tried to intervene

to stop the quarrel, rather had ran away from the place.

That weapon which he says, which was used in the quarrel

was the axe and stick.

14. The son Kiransinh Udesinh was examined as PW-10.

According to him, he and his father had gone to rescue

them, but they were also assaulted and therefore, they ran

away from this place. This conduct of PW-9 and 10 creates

improbability in the whole of the prosecution witness,

where PW-8 was the person who had taken the deceased to

the hospital, he could not state the prosecution case of

accused assaulting the deceased. PW-11 is the person who

had recorded the complaint on 27.06.2001, when he was

Head Constable at Kothanba Police Station. The complaint

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was given by one Prabhatsinh Udesinh Rathod, who has

examined as PW-1 in the present matter, while

Prabhatsinh has not supported the prosecution case.

Though Prabhatsinh could state that he had given the

complaint and put his signature, but was having no

knowledge as to who had beaten the deceased with what

weapon.

14.1. PW-12 is the investigating officer who visited the

place of the incident and according to him, in the sphere of

6 inches, there were blood stains splattered. According to

the police, in the presence of Panchas, both the accused

had presented the weapon which they used in the incident.

The relevant aspect will become noticeable that though the

prosecution has alleged that the weapon used was the axe

and the stick, the FSL report does not find any blood stain

on the alleged weapon axe. The FSL report further does not

disclose that the stick which was used was actually sent

for the report. Thus, the fact of axe being used does not get

corroboration from the FSL report.

15. We have noticed that the learned Trial Court Judge

has examined and analyzed the evidence of the witnesses.

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The Trial Court Judge has also placed reliance on the

various judgment cited by the advocates and has rightly

disbelieved the prosecution case to come to the conclusion

of acquitting the accused.

16. In the case of Sanjeev v. State of H.P., (2022) 6

SCC 294, it has been held as under:-

"9. The approach to be adopted was laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972] as under : (SCC p. 229, para 7)

"7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the abovequoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or

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demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then--and then only--reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial court are sustainable or not."

17. In the case of Bhupatbhai Bachubhai Chavda &

Anr. v. State of Gujarat, 2024 SCC OnLine SC 523, it

has been held as under:-

"6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence

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of the accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question."

18. In view of the observation made herein above, the law

established on the jurisdiction of the appellate Court, we

do not find any reason to upset the findings of the learned

Trial Court Judge. The grounds which have been relied by

the State has been sufficiently dealt with by the Trial Court

Judge and as recorded herein above the witnesses which

have been termed as eyewitnesses are unbelievable and

unreliable. Even the complainant has not supported the

prosecution case. The person who has taken the deceased

in the rickshaw to the hospital also has not supported the

case. The weapon alleged to be used does not disclose any

blood stain to corroborate the factum that the deadly