[Cites 19, Cited by 0]
Gujarat High Court
State Of Gujarat vs Shiva Vala Bharvad on 13 March, 2026
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R/CR.A/1171/1999 JUDGMENT DATED: 13/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1171 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
and
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
SHIVA VALA BHARVAD & ORS.
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Appearance:
MS SHRUTI PATHAK, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,2
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No.
3,4,5,6
MR ASHISH M DAGLI(2203) for the Opponent(s)/Respondent(s) No. 3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 13/03/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR)
1) Present appeal is directed by the appellant - State challenging the
judgment and order of acquittal dated 31.08.1999 passed by
learned Additional Sessions Judge, Rajkot, in Sessions Case No.26
of 1998, whereby the learned Sessions Judge acquitted the
accused persons - the opponents herein for the offence
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punishable under Sections 143, 147, 148, 149, 504, 302 and 43 of
the IPC and Section 135 of the Bombay Police Act.
2) The brief facts of the prosecution case are that on 09.11.1997, at
about 05:00 hours in the evening, the complainant Chetan Haribhai
Chandrani was present at his railway lodge, at that time, accused
No.6 Lalo Pandavali came and informed him that his brother was
murdered and his dead body was lying on the footpath near Door
Darshan office and his Maruti Frontie car bearing No.GAD 5946
was lying there. Therefore, the complainant went there in rickshaw
and seen that Maruti car was lying there and some blood stained
were found in the car and came to know that one Taiyab was taken
his brother to Government Hospital. Therefore, the complainant
rushed to Government Hospital, where he seen that dead body of
his brother was lying in blood pond and Taiyab Hajibhai Juneja was
also present there. Upon asking about the incident by the
complainant to Taiyab Juneja, he told that he and his brother met
at Junction Plot Main road and as Harish wanted to repair his car,
they proceeded in a car and when they reached at Hospital Chowk,
at that time, Lalo Penda valo raised his hand to stop, therefore,
Harish stopped his car and set on the driver seat, at that time, Lalo
Pendavalo (accused No.6) and Hemu Bharwad (accused No.3)
talked with Harish and during that time, accused No.1 Lakhman
Bharwad, accused No.1 Shivo Bharwad and Bablu also came on
motorcycle and having knives in their hands and accused No.1
Hemu Bharwad having gupti. Lalo Pendavalo talked with Harish
about compromise of one dispute took place prior to 4 years, but
during that time, all the accused got provoked and all the accused
made assault with knives and Gupti.
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3) Accordingly, FIR being C.R.No.I-510/1997 was lodged before
Pradyumannagar Police Station, Rajkot, came to be lodged.
Investigation was carried out and ultimately, charge-sheet came to
be filed against the accused persons for the offences punishable
under Sections 302, 143, 147, 148, 149, 504 and 34 of IPC and
Section 135 of the Bombay Police Act before the jurisdictional
Magistrate. As the case was exclusively triable by the Court of
Sessions, learned Magistrate Court under Section 209 of the
Cr.P.C. committed the said case to the Court of learned Additional
Sessions Judge, Rajkot, which came to be numbered as Sessions
Case No.26/1998. Since, the accused did not plead guilty and
claimed to be tried, they were tried for the said offences.
4) At the trial, in order to bring home the charges levelled against the
accused, the prosecution examined 26 witnesses and also relied
upon 46 documentary evidence.
5) At the end of the trial and after recording the statement of the
accused under Section 313 of the Code, and upon hearing the
arguments on behalf of the prosecution and the defence, learned
trial Court acquitted present respondents - accused from all the
offence vide impugned judgment and order of acquittal dated
31.08.1999 in Sessions Case No.26/1998, as mentioned above.
6) Being aggrieved by the same, the appellant - State preferred
present appeal under Section 378 of the Code of Criminal
Procedure, 1973.
7) Heard learned advocates for the respective parties.
8) Learned APP for the appellant - State has contended that, the
learned trial Court has committed an error in acquitting the
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respondents - accused and not properly appreciated the evidence
produced on record though the prosecution had proved case
against the accused. It is also submitted that all the prosecution
witnesses and investigating officer have supported the case of the
prosecution. Merely on technical ground, learned Sessions Court
has ignored the evidence tendered by the prosecution. The ld.
Sessions Court ought to have considered that the accused persons
have formed an unlawful assembly on the date and time of the
incident with regard to take revenge of earlier dispute and under
the guise of settlement, called the deceased (brother of
complainant) and then committed murder by inflicting deadly
weapons like knife, Gupti etc. It is also submitted that, eyewitness
Taiyab Juneja who accompanied the deceased in his car has clearly
deposed in his statement how the incident occurred and accused
have assaulted the deceased and he taken him to the hospital
where he died. Considering the factum of incident, death is proved
and accused who stabbed the deceased identified by the
eyewitness and also recovered the weapons from the accused.
Blood stains were also found from the car of the deceased. The
accused fled away from the place after making assault. There is no
rule merely witnesses have turned hostile, learned Trial Court
ought to have recorded the acquittal. The trial Court ought to have
considered other evidence also produced on record. PW:1 Taiyab
Hajibhai Muslim was examined at Exh15 and PW:13 Hirenbhai
Becharbhai, who was police constable examined at Exh:93 both
were eyewitness, who had taken the deceased to the hospital,
though the learned Trial Court has considered them as hearsay
witnesses. Weapons were recovered and scientific evidence was
also produced on record and thereby, involvement of the accused
clearly proved on record. Hence, on technical ground alone,
learned Trial court recorded acquittal, which is unjust and
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improper.
On the aforesaid contentions, learned APP submitted that,
present appeal may kindly be allowed, as prayed for.
9) As against that, learned advocate for the respondents - accused
supported the judgment and order of the Trial Court submitting
that the same was passed after appreciating the evidence adduced
on record by the prosecution. Hence, no interference is called for
with the same at the hands of this Court. Therefore, the appeal is
required to be dismissed and the impugned judgment and order
passed by the learned Trial Court is required to be confirmed.
10) Considering the law laid down in the case of Babu Sahebagouda
Rudragoudar v. State of Karnataka, 2024 SCC OnLine SC 561,
every criminal trial starts with general presumption and one of the
cardinal principle of criminal jurisprudence is that, there is a
presumption of innocence in favour of the accused, unless proven
guilty. Burden of proving the case of the prosecution always rests
on the shoulder of the prosecution. As a consequence, the onus on
the prosecution becomes more burdensome as there is a double
presumption of innocence, which gathers strength before the
appellate Court.
11) It would be further apposite to refer the decision of the Hon'ble
Apex Court in case of Jafarudheen v. State of Kerala, (2022) 8
SCC 440:
"While dealing with an appeal against acquittal by invoking Section
378 CrPC, the appellate court has to consider whether the trial court's
view can be termed as a possible one, particularly when evidence on
record has been analysed. The reason is that an order of acquittal adds
up to the presumption of innocence in favour of the accused. Thus, the
appellate court has to be relatively slow in reversing the order of the
trial court rendering acquittal. Therefore, the presumption in favour of
the accused does not get weakened but only strengthened. Such a
double presumption that ensures in favour of the accused has to be
disturbed only by thorough scrutiny on the accepted legal parameters."
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12) In order to prove the charges against the accused, the prosecution
examined 26 witnesses and produced 46 documentary pieces of
evidence. Thereafter, the statements of the accused came to be
recorded under Section 313 of the Code, and the accused
produced 13 documentary pieces of evidence in support of their
defence. At the outset, the factum of death is not seriously
disputed by either of the parties before the learned trial Court. In
order to establish the homicidal death of the deceased, the
prosecution examined PW-24 Dr. Jayantilal Gordhanbhai Khant at
Exh.129 and PW-25 Dr. Jashwantray Shantilal Visani at Exh.131,
who had treated the deceased and conducted the inquest as well
as the post-mortem examination. Upon perusal of the post-
mortem note at Exh.132, it appears that in all 28 injuries including
internal injuries were found on the body of the deceased.
Considering the nature of the injuries and the medical evidence on
record, the doctor opined that the deceased died due to shock and
cardiac failure. As discussed hereinabove, the factum of death is
not in dispute before the learned trial Court, and the trial Court
rightly concluded that the death of the deceased was homicidal in
nature. However, the crucial question that arises for consideration
is whether the accused persons are connected with the
commission of the offence and whether they played any role in
causing the death of the deceased. In this regard, the evidence led
by the prosecution is required to be considered. On perusal of the
evidence, it appears that PW-1 Taiyab Juneja, who allegedly
accompanied the deceased and took him to the hospital, and
another witness namely Hirenbhai, police constable, were claimed
to be eyewitnesses to the incident and were present at the place
of occurrence.
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13) Further, as per the case of the prosecution, PW-7 Karanbhai
examined at Exh.87, PW-8 Majbutsingh Jadeja examined at Exh.88,
and PW-12 Jayeshbhai Vallabhbhai examined at Exh.92, who were
running a tea stall and pan shop near the place of incident were
also cited as eyewitnesses who had allegedly seen the incident.
However, according to the prosecution case itself, these witnesses
were not acquainted with the accused persons and therefore had
not disclosed the names of the accused in their statements.
14) It is pertinent to note that among the aforesaid witnesses, PW-1
Taiyab Juneja examined at Exh.15, PW-7 Karnabhai Vejabhai
examined at Exh.87, PW-8 Majbutsingh Jorubha Jadeja examined
at Exh.88, PW-11 Rameshbhai Prahaladbhai examined at Exh.91
and PW-12 Jayeshbhai Vallabhbhai examined at Exh.92 were
declared hostile as they did not support the case of the
prosecution during their deposition before the Court.
Consequently, their evidence could not be relied upon as
eyewitness testimony supporting the prosecution case. So far as
the knowledge of the complainant regarding the incident is
concerned, it appears that the complainant came to know about
the incident based on the information given by one Lalo
Pendavalo. However, on perusal of the evidence of the said
witness, it also appears that he also did not support the case of the
prosecution and he was declared hostile. Although Test
Identification Parade was subsequently conducted, the
prosecution failed to establish the identity of the accused persons
through reliable evidence. The investigating officer did not
effectively conduct the identification proceedings in respect of the
accused persons through the relevant witnesses who were
allegedly present at the scene of offence. Such lapses in the
investigation, particularly the failure to properly establish
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identification of the accused go to the root of the prosecution
case. In absence of reliable test identification parade evidence and
in view of the fact that the important witnesses of prosecution
including star witness Taiyab Juneja turned hostile, the remaining
evidence on record is nothing but hearsay in nature. Consequently,
the evidence adduced before the learned trial Court is insufficient
to prove the case against accused or to establish the guilt of the
accused beyond all reasonable doubt.
15) No any sufficient evidence led before the learned Trial Court to
prove the unlawful assembly under Section 141 of the IPC. In
order to prove the offence under Section 143 of IPC, prosecution
must be proved ingredients of unlawful assembly. Further, in order
to recording the conviction in aid of Section 149 of IPC,
prosecution must establish common object. Here no sufficient
evidence is produced on record to draw inference qua common
object also. No evidence qua participation of accused persons
forming unlawful assembly is produced on record and prosecution
failed to prove the unlawful assembly and common object or an
overtact on the part of the accused. Hence, question does not
arise to record conviction merely based on presumption under
Sections 147 and 148 of IPC. No any evidence qua breach of public
tranquility is produced on record or breach of public peace.
Further, no any evidence led qua common intention or in
furtherance of common intention, accused have done any act.
16) Further, if the evidence produced on record is perused, it appears
that the prosecution has relied upon the evidence of witnesses
examined at Exhs.111 and 112. The said witness, PW-19 Chaturbhai
Dhanjibhai, was posted at the Hospital Police Choki. He deposed
that he had knowledge of the incident and made an entry
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produced at Exh.112 based on the statement and information
received from Taiyab Juneja. However, Taiyab Juneja himself
turned hostile. Even otherwise, the said police witness had
received the information from Taiyab Juneja and, to that extent,
the evidence of the said witness is hearsay evidence. Similarly,
Chetan Chandrani (complainant) is another witness whose
testimony is also hearsay in nature. Considering the aforesaid
witnesses, it is well settled that hearsay evidence is weak evidence
and generally not admissible, particularly in light of Section 60 of
the Indian Evidence Act. Hence, the evidence of the panch
witnesses is not helpful to the prosecution, and nothing has
emerged from the cross-examination of the prosecution
witnesses, even after declaring them hostile, which may be helpful
to the case of the prosecution.
17) It is needless to state that enmity is a double-edged weapon.
Along with the further statement, copy of the complaint filed by
the accused persons against the deceased has been produced on
record. In absence of any corroborative piece of evidence, and
considering the prior enmity, which is a double-edged weapon, it
may on the one hand provide a motive for the commission of the
offence, but on the other hand, it also does not rule out the
possibility of false implication. Hence, from the nature of the
evidence placed on record by the prosecution, the possibility of
the accused persons being falsely implicated on account of
previous enmity cannot be ruled out. In this regard, reference is
required to be made to the decision of the Hon'ble Supreme Court
in Aslam @ Imran Vs. State of Madhya Pradesh, reported in
2025 (2) Cri. L.R. (Supreme) 523.
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18) Furthermore, though there was alleged enmity between the
accused and the deceased, such enmity by itself does not establish
the motive and in certain circumstances may even create doubt
regarding false implication of the accused. Considering that the
material witnesses have turned hostile and no independent
witness has supported the prosecution case, it would not be safe
to record a conviction solely on the basis of the testimony of the
investigating officer without any corroborative piece of evidence.
Therefore, the learned trial Court has rightly concluded that the
prosecution failed to prove the case against the accused beyond
reasonable doubt, and no error has been committed by the trial
Court in acquitting the accused persons of the charges levelled
against them.
19) Further, learned APP has argued on the basis of the Serological
Report as well as the FSL Report and submitted that the weapons
were recovered and that bloodstains of the accused were found on
the same, which may indicate the use of the said weapons in the
commission of the offence. However, in the case on hand, the
panch witnesses have been declared hostile, and the alleged
recovery under Section 27 of the Indian Evidence Act has not been
duly proved. Even otherwise, the Investigating Officer has
deposed regarding the recovery, but such recovery in absence of
reliable evidence cannot be safely relied upon. Even for the sake of
argument, if it is accepted that the said weapons were used in the
commission of offence, in the absence of any independent
corroborative piece of evidence connecting the accused with the
use of such weapons, the said recovery cannot be treated as
sufficient evidence. It is settled law that recovery evidence may be
relied upon only when it is duly proved and supported by other
reliable evidence. In the present case, the material witnesses have
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turned hostile and alleged joint recovery is also not permissible in
law. Moreover, merely that bloodstains were found on the clothes
of the accused or that the bloodstains on the weapon matched
with the blood of the deceased is not sufficient, in absence of any
corroborative evidence, to establish that the accused persons had
committed the offence, particularly when the testimony of the
eyewitnesses has not supported the case of the prosecution. In
this regard, reference may be made to the decisions of the
Hon'ble Supreme Court in Aslam @ Imran Vs. State of Madhya
Pradesh (supra) and State of Rajasthan Vs. Hanuman, reported
in 2025 AIJEL (Supreme) 75498. Therefore, in absence of any
motive or other reliable evidence, it would be unsafe to convict
the accused merely on the basis of bloodstains found on the
weapon or the clothes.
20) As discussed in the earlier part of the judgment, there is no
trustworthy evidence with regard to the recovery of the weapon,
nor is there any reliable evidence on record on the basis of which
the conviction of the accused can be sustained. The conviction
cannot be recorded merely on the basis of presumption. The
learned Sessions Judge has disbelieved the evidence regarding
recovery of the weapon and has relied upon the decisions of the
Hon'ble Supreme Court in Raja Nayakar Vs. State of
Chhattisgarh, reported in 2024 (3) SCC 481, and State of
Haryana Vs. Mohammad Yunus, reported in 2024 (3) SCC 180.
Therefore, the arguments canvassed by the learned APP do not
merit acceptance.
21) Thus, it is a settled principle that while exercising appellate
powers, even if two reasonable conclusions are possible on the
basis of the evidence on record, the Appellate Court should not
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disturb the finding of acquittal recorded by the trial Court.
22) Considering the cardinal principles of Criminal Jurisprudence until
and unless offence is proved by the prosecution against the
accused persons beyond all reasonable doubt accused is innocent.
It appears that, prosecution is failed to produced or adduced any
clinching and material evidence which is of sterling quality, which
connect the accused persons with the alleged offence.
23) In view of above, learned Sessions Judge has not committed any
error in recording the acquittal and prosecution and appellant
failed to prove the case against the accused persons beyond all
reasonable doubt. Considering the aforesaid facts and reasons and
even going through the findings of learned trial Court, it appears
that the same are just, legal and proper. Further, learned APP has
failed to point out any palpable error in the reasons assigned by
the learned trial Court, which are manifestly erroneous or
unsustainable.
24) In view of the above and in backdrop of the evidence
adduced/produced by the prosecution, material contradictions
which goes to the root of the case of the prosecution are noticed
by the learned trial Court and as the prosecution failed to prove
the case against the accused beyond all reasonable doubts,
learned trial Court has not committed any error in acquitting the
accused.
25) Accordingly, present appeal fails and is hereby dismissed. The
judgment and order of acquittal dated 31.08.1999 passed by
learned Additional Sessions Judge, Rajkot, in Sessions Case No.26
of 1998, stands confirmed. Bail bond, if any, given by respondents-
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accused stands discharged. Record and proceedings be sent back
to the concerned trial Court forthwith.
(HASMUKH D. SUTHAR,J)
(D.N.RAY,J)
SUCHIT
