[Cites 13, Cited by 0]
Gujarat High Court
State Of Gujarat vs Kathi Anakbhai Jijibhai on 6 March, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 5 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J. SHELAT
and
HONOURABLE MR. JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
KATHI ANAKBHAI JIJIBHAI & ORS.
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Appearance:
MR ROHAN H. RAVAL, ADDL. PUBLIC PROSECUTOR for the Appellant(s)
No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1,2,3,4
MR. YOGENDRA THAKORE(3975) for the Opponent(s)/Respondent(s) No.
1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J. SHELAT
and
HONOURABLE MR. JUSTICE P. M. RAVAL
Date : 06/03/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE P. M. RAVAL)
1. The State has preferred the present appeal under Section 378 of
the Code of Criminal Procedure, 1973 (hereinafter referred to
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as "Cr.P.C"), against the judgment and order of acquittal
passed by the learned Sessions Judge, Amreli in Sessions Case
No. 23 of 1991 dated 21st October, 2000.
2. FACTS IN NUTSHELL OF THE PROSECUTION ARE AS
UNDER:
2.1. On 15th December, 1990, at about 11.30 hours, at Rajula
Town in Amreli District, near the Court area, accused No. 1
Anakbhai Jijibhai Kathi, No. 2 Babubhai Dadabhai Kathi,
No. 3 Aapabhai Amrabhai Kathi, and No. 4 Jorubhai
Dadabhai Kathi had gathered with a common intention to
commit an offence, out of which accused No. 1 Kathi
Anakbhai Jijibhai and accused No. 2 Kathi Babubhai
Dadabhai caught hold of the deceased, whereas, accused No. 3
Kathi Aapabhai Amrabhai and accused No. 4 Kathi Jorubhai
Dadabhai started inflicting injuries to the complainant-
deceased Arjanbhai Vallabhbhai Patel with iron pipes
indiscriminately on his legs and head and thus, committed his
murder.
2.2. Pursuant to which, the deceased complainant-Arjanbhai
Vallabhbhai Patel lodged a complaint before Rajula Police
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Station on 15th December, 1990, while he was admitted at
Rajula Government Hospital. The said complaint was
registered as FIR C.R. No. I-107 of 1990 under the provisions
of Sections 302, 307, 325 and 114 of the Indian Penal Code
(hereinafter referred to as "I.P.C.") and Section 135 of the
Bombay Police Act. P.S.I. Shri N. B. Jadeja of the Rajula
Police Station conducted the investigation, arrested the accused
persons and having found ample material against the accused,
filed a chargesheet before the concerned jurisdictional
Magistrate.
3. The learned Magistrate, after handing over the relevant case
papers, committed the case under the provisions of Section 209
of the Cr.P.C. before the Sessions Court, since the said case
was exclusively triable by the Court of Session.
4. Pursuant to the committal vide Exhibit 2 on 11th August, 2000,
charges came to be framed under Sections 302, 325, 323 and
114 of the I.P.C. and Section 135 of the Bombay Police Act,
which were read over and after recording the plea, the accused
having denied the charges, prayed for trial.
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5. At the trial, to bring home the charges, the prosecution had
relied upon the following oral as well as documentary evidence:
ORAL EVIDENCE
Sr. Particulars Exh.
No.
3. Dr. Palabhai Polabhai Muchhadiya, Medical 16
Officer, Community Health Centre, Rajula
4. Dr. Vinayakrao Vasudevrao Patil, Assistant 19
Professor, Medical College, Ahmedabad
9. Mahendrasinh Chudasama, Police Constable, 29
Rajula Police Station
10. Jilubhai Vajesinh, Police Constable, Rajula 30
Police Station
12. Witness Navinchandra Manilal Shah, Taluka 32
Executive Magistrate, Rajula
13. Umarbhai Ismailbhai Juneja, Police Head- 34
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Constable, Rajula Police Station
14. Bachubhai Arjanbhai Chauhan, Deputy 50
Mamlatdar, Rajula
15. N. B. Jadeja, P.S.I., Rajula Police Station 57
DOCUMENTARY EVIDENCE
Sr. Particulars Exh.
No.
Amrabhai and accused Jorubhai Dadabhai,
along with recovery of muddamal
2. Certificate issued by the Medical Officer, Rajula, 10
upon examination of Jorubhai Dadabhai
5. Panchnama regarding the blood-stained clothes 15
of the deceased produced by Patel Nathabhai
Bhikhabhai
6. Certificate issued by the Medical Officer, Rajula, 17
upon examination of Arjanbhai Vallabhbhai
7. Receipt regarding handing over of the dead body 20
of the deceased to Nathabhai Bhikhabhai
Circle Inspector, Rajula
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Analyzer for examination, along with copy
thereof
10. Report of the Chemical Analyzer, along with the 23
Serology Division report and forwarding letter
11. Post-mortem note of the deceased Arjanbhai 24
Vallabhbhai prepared by the Medical Officer,
Ahmedabad
12. Panchnama of the Test Identification Parade 33
held in the presence of the Taluka Executive
Magistrate, Rajula
13. Yadi made by the P.S.I., Rajula, to the P.S.O., 35
Rajula after recording the complaint
14. Yadi made by the Medical Officer, Rajula, to the 36
P.S.I., Rajula
15. Extract of Station Diary Entry No. 11 of Rajula 37
Police Station
16. F.I.R. in Crime Register No. II-182/90 of Rajula 38
Police Station
17. Copy of the F.I.R. in Crime Register No. II- 39
189/90 of Rajula Police Station
18. Panchnama of the arrest of accused Anakbhai 40
Jijibhai and accused Babubhai Dadabhai, along
with the panchnama of their physical condition
19. Proclamation regarding prohibition of arms 41
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issued by the Additional District Magistrate,
Amreli
21. Certificate issued by the Medical Officer, 59
Bhavnagar, upon examination of Arjanbhai
Vallabhbhai
6. After the completion of the trial, further statement under
Section 313 of the Cr.P.C. came to be recorded. They denied
the evidence. However, they did not lead any evidence in their
defence.
7. After giving an opportunity to the learned Advocate for the
prosecution as well as the accused, the Sessions Judge vide
impugned judgment and order, gave benefit of doubt to the
accused persons and thus, the impugned judgment and order
came to be passed, which is under challenge before this Court
by way of the present appeal.
8. SUBMISSIONS OF THE APPELLANT:
8.1. Mr. Rohan H. Raval, learned Addl. Public Prosecutor, would
submit that despite there being ample direct and indirect
evidence on record connecting the accused persons with the
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alleged crime, the Trial Court has erroneously given the benefit
of doubt.
8.2. That the Trial Court ought to have appreciated that the
deceased had himself lodged a complaint at Exhibit 58 before
the police and the Trial Court has materially erred in not
believing the said complaint, though it is in the nature of a
dying declaration.
8.3. That the dying declaration recorded by the Taluka Magistrate,
is also proved beyond reasonable doubt. However, the Trial
Judge has given the benefit of doubt on assumptions and
presumptions and thus, it is argued to allow the present appeal.
8.4. Making the above submissions, Mr. Raval, learned APP,
would humbly request this Court to allow the present appeal.
9. SUBMISSIONS OF THE RESPONDENTS:
9.1. Per contra, Mr. Yogendra Thakore, learned Advocate
appearing on behalf of the original accused-respondent Nos. 1
to 4, has vehemently opposed the present appeal and has
argued that the Trial Court has appreciated the evidence on
record, both oral as well as documentary, in its correct
perspective and this is not a case of clear-cut acquittal.
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However, the benefit of doubt is given, more particularly when
there are various discrepancies with regards to the FIR, the
statements of the witnesses, as well as the dying declaration and
therefore, no interference is called for at the hands of this
Court and thus, it is argued to reject the present appeal.
10. We have heard learned Advocates appearing for the respective
parties. We have gone through the record and proceedings of
the case, as well as we have given our considered thought to the
impugned judgment and order granting the benefit of doubt to
the accused persons.
11. At this stage, it would be apt to refer to the recent decision
passed by the Honourable Apex Court in the case of Constable
907 Surendra Singh and another V/s. State of Uttarakhand
reported in (2025) 5 SCC 433, wherein, taking note of its earlier
dictum, it was observed and held as follows:
"23. Recently, in Babu Sahebagouda Rudragoudar v. State of
Karnataka [Babu Sahebagouda Rudragoudar v. State of
Karnataka, (2024) 8 SCC 149 : (2024) 3 SCC (Cri) 535] , a
Bench of this Court to which one of us was a Member (B.R.
Gavai, J.) had an occasion to consider the legal position with
regard to the scope of interference in an appeal against
acquittal. It was observed thus : (SCC pp. 163-64, paras 38-
41)
"38. First of all, we would like to reiterate the principles
laid down by this Court governing the scope of interference
by the High Court in an appeal filed by the State for
challenging acquittal of the accused recorded by the Trial
Court.
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39. This Court in Rajesh Prasad v. State of Bihar [Rajesh
Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC
(Cri) 31] encapsulated the legal position covering the field
after considering various earlier judgments and held as
below : (SCC pp. 482-83, para 29)
'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 of acquittal in the following
words : (Chandrappa case [Chandrappa v. State of
Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri)
325] , SCC p. 432, para 42)
"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
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Trial Court.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the
appellate court should not disturb the finding of
acquittal recorded by the Trial Court." '
40. Further, in H.D. Sundara v. State of Karnataka [H.D.
Sundara v. State of Karnataka, (2023) 9 SCC 581 : (2023) 3
SCC (Cri) 748] , this Court summarised the principles
governing the exercise of appellate jurisdiction while dealing
with an appeal against acquittal under Section 378CrPC as
follows : (SCC p. 584, para 8)
'8. ... 8.1. The acquittal of the accused further
strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal
against acquittal, is entitled to reappreciate the oral
and documentary evidence;
8.3. The appellate court, while deciding an appeal
against acquittal, after reappreciating the evidence, is
required to consider whether the view taken by the
Trial Court is a possible view which could have been
taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate
court cannot overturn the order of acquittal on the
ground that another view was also possible; and
8.5. The appellate court can interfere with the order of
acquittal 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.'
41. Thus, it is beyond the pale of doubt that the scope of
interference by an appellate court for reversing the judgment
of acquittal recorded by the Trial Court in favour of the
accused has to be exercised within the four corners of the
following principles:
41.1. That the judgment of acquittal suffers from patent
perversity;
41.2. That the same is based on a misreading/omission to
consider material evidence on record; and
41.3. That no two reasonable views are possible and only the
view consistent with the guilt of the accused is possible from
the evidence available on record."
(emphasis supplied)
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12. Tested on the anvil of the aforestated principles, this Court is in
concurrence with the findings given by the Trial Court for the
following reasons:
(i). None of the eyewitnesses have supported the case of the
prosecution.
(ii). The panch witnesses of the Test Identification Parade
have not been examined.
(iii). The dying declaration is alleged to have been recorded at
13.05 hours and was completed allegedly at 13.10 hours.
However, as per the deposition of P.S.I. Shri N. B.
Jadeja in his cross-examination, he has denied that he
had inquired with regards to any recording of the dying
declaration before lodging the complaint.
(iv). The complaint was recorded from 13.10 hours to 13.40
hours on the same day. If that be so, the finding of the
Trial Court is perfectly correct as to how the dying
declaration could have been recorded prior to the
lodging of the complaint when the police officer who had
jotted down the complaint was not aware of the fact of
the recording of the dying declaration or not.
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(v). In cross-examination of the P.S.I., he has admitted the
fact that he came to know that no dying declaration was
recorded prior to the recording of the complaint, which
falsifies the factum of the recording of the dying
declaration prior to the lodging of the F.I.R., more
particularly in view of the scoring off the time of the
sending yadi from 13.45 to 12.45.
(vi). It is also required to be noted that while recording the
complaint, the P.S.I. had not taken the sense of the
doctor whether the deceased complainant was in a fit
state of mind, or whether he was able to speak and give a
statement to the facts or not. Under the circumstances
also, the lodging of the complaint itself creates serious
doubt.
(vii). The writing of the Magistrate in the dying declaration is
by a different pen and is also coupled with the fact that
the yadi sent for recording of the dying declaration to the
Executive Magistrate was scored out by writing "12.45
hours" instead of "13.45 hours", though there is no
counter-signature to such scoring off.
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(viii). The factum of Police Constable Mahendrasinh Tapubha
Chudasama and Police Constable Jilubha Vajesinh, who
have deposed vide Exhibits 29 and 30, respectively, have
stated that as per the deceased, Anakbhai and other three
unknown persons had inflicted injuries. However, as per
the dying declaration and the complaint, the role of
Anakbhai is with regards to holding him and not
inflicting any injuries.
13. Based on the aforestated facts and circumstances and re-
appreciation of evidence, a serious doubt is created with
regards to lodging of the F.I.R., recording of the dying
declaration and the role attributed to the accused persons,
more particularly, when the two persons were not named by the
complainant-deceased himself. Under the circumstances, when
two views are possible and when a serious doubt is created
upon the story of the prosecution, which creates a dent in the
prosecution's theory, this Court does not find it fit to interfere
in the present acquittal appeal and hence, the present appeal
deserves to be rejected.
14. This appeal is found to be meritless and accordingly, the
present appeal stands dismissed. Consequently, the impugned
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judgment and order passed by the learned Sessions Judge,
Amreli in Sessions Case No. 23 of 1991 dated 21st October,
2000, is hereby confirmed. Bail bond, if any, shall stand
cancelled.
15. The Record and Proceedings shall be sent back to the
concerned Trial Court forthwith.
(MAULIK J. SHELAT, J)
(P. M. RAVAL, J)
NILESH
