[Cites 18, Cited by 0]

Gujarat High Court

State Of Gujarat vs Maheshbhai Vallabhbhai Mistry on 1 May, 2026

Author: Sangeeta K. Vishen

Bench: Sangeeta K. Vishen

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                             R/CR.A/592/2003                                 CAV JUDGMENT DATED: 01/05/2026

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                                                                            Reserved On   : 21/02/2026
                                                                            Pronounced On : 01/05/2026

                                       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/CRIMINAL APPEAL NO. 592 of 2003


                        FOR APPROVAL AND SIGNATURE:

                        HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                        and
                        HONOURABLE MR. JUSTICE VIMAL K. VYAS
                        ================================================================

                                       Approved for Reporting                 Yes           No

                                                                             ✔
                        ================================================================
                                                       STATE OF GUJARAT
                                                              Versus
                                               MAHESHBHAI VALLABHBHAI MISTRY & ORS.
                        ================================================================
                        Appearance:
                        MS SHRUTI PATHAK, APP for the Appellant(s) No. 1
                        MR ADIL R MIRZA(2488) for the Opponent(s)/Respondent(s) No. 1,2,3
                        NOTICE SERVED for the Opponent(s)/Respondent(s) No. 4
                        ==========================================================

                             CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                                   and
                                   HONOURABLE MR. JUSTICE VIMAL K. VYAS

                                                          CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE VIMAL K. VYAS)

1. The present appeal under Section 378(1)(3) of the Code of

Criminal Procedure, 1973, has been preferred by the appellant-

State and is directed against the judgment and order of acquittal

dated 17.01.2003 passed by the learned Additional Sessions

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Judge, Navsari, in Sessions Case No.90 of 1997, whereby the

learned Sessions Judge acquitted the respondents - original

accused nos.1 to 4 from the charges levelled against them for the

offences punishable under Sections 307, 323, 504, 506(2) read

with Section 114 of the Indian Penal Code.

PROSECUTION'S VERSION IN NUT-SHELL :

2. It is the case of the prosecution that the complainant

Harshadbhai Chimanbhai Panchal had filed a complaint, inter

alia, stating that on 14.06.1997 at around 4 O'clock in the

evening, since it was raining, the complainant and his family

had gone to visit the house of his brother-in-law Mahendrabhai

Narsinhbhai Mistry, and in the late night, the complainant's

brother Ashokbhai and his wife Binduben had come to their

house. It is stated that on the next day in the morning, the

sister-in-law of the complainant, namely, Binduben, had gone to

Vasi and his brother Ashokbhai had gone to the workshop. It is

further stated that on 15.06.1997 at around 4:30 in the evening,

the relative and cousin brother of the complainant, namely,

Maheshbhai Vallabhbhai (i.e. the accused no.1), who resides in

the neighborhood, had obstructed the storm-water drainage in

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the chowk (common area) by placing bricks, causing water

blockage, and upon objection raised to it by the complainant's

brother Ashokbhai, the accused No.1 Maheshbhai, along with

his wife Ilaben (accused No. 3) and his father Vallabhbhai

(accused No. 2), acted with severe agitation, verbally abused and

threatened the complainant's brother Ashokbhai of dire

consequences. Subsequently, at around 6 O'clock in the evening,

when the complainant returned home, the incident was reported

to him by his brother Ashokbhai, and when he and his brother

Ashokbhai proceeded to remove the obstruction, the accused

no.1 Maheshbhai, with premeditated malice, inflicted a direct

blow with an iron pipe on the chest of Ashokbhai, due to which,

Ashokbhai fell down unconscious on the ground and sustained

injuries. Thereafter, when the complainant attempted to

intervene and rescue his brother, all the three accused -

Maheshbhai, Ilaben and Vallabhbhai, acting in furtherance of

their common intention, assaulted the complainant with kicks

and fists, and extended death threats stating, "You and Ashok

will be killed". Thereafter, upon arrival of several individuals

from the locality, namely, Arvindbhai Gandhi, Jiteshbhai

Panchal, Rameshbhai Lad, as well as the complainant's mother

Manharben, the accused persons fled away from the scene of

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offence.

3. It is the case of the prosecution that the injured was

rushed to the hospital, and thereafter the complainant (PW-3)

Harshadbhai Chimanbhai Panchal had filed the complaint before

the Chikhli Police Station on 16.06.1997.

4. On the basis of the complaint, an offence came to be

registered against the respondents-accused for the offences

punishable under Sections 307, 323, 504, 506(2) and 114 of the

Indian Penal Code vide I-CR No.82 of 1997 registered before the

Chikhli Police Station. Thereafter, the investigation commenced

and recorded the statement of the relevant witnesses.

5. After completing the investigation, charge-sheet came to be

filed against the respondents-accused before the learned Judicial

Magistrate, First Class, Chikhli, which was registered as

Criminal Case, and since the case was exclusively triable by the

Sessions Court, the same was committed to the Court of the

learned Additional Sessions Judge, Valsad, under Section 209 of

the Code of Criminal Procedure, which was numbered as the

Sessions Case No.90 of 1997. Since the respondents-accused

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pleaded innocence, the trial was held.

6. To prove the guilt against the respondents-accused, the

prosecution has examined in all 08 witnesses and produced 09

documentary evidence, which are as follows :-

ORAL EVIDENCE

Sr. WITNESSES Exhibit No.

3 Harshadkumar Chimanlal Panchal - Complainant 20

DOCUMENTARY EVIDENCE

Sr. Description of the document Exhibit No.

1 C.T.Scan Report given by Dr.Archana B.Vasadiya 09 2 Case-paper issued by Dhanwantri Gynaec and Surgical 12 Hospital, Chikhli 3 Certificate issued by Dr.Anil Patel regarding the 13 treatment given to the witness Ashokbhai 4 Certificate issued by Dr.Anil Patel regarding the 14 treatment given to the witness Ashokbhai

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5 M.L.C. Certificate issued by Dr.Anil Patel regarding the 15 treatment given to the witness Ashokbhai

7. At the end of the trial, after recording the further statement

of the accused persons under Section 313 of the Code of

Criminal Procedure and after considering the arguments

canvassed on behalf of the prosecution and the defence, the

learned Additional Sessions Judge, Navsari, vide judgment and

order dated 17.01.2003, acquitted the respondents-accused from

all the charges.

8. Being aggrieved and dissatisfied with the aforesaid

judgment and order of acquittal, the appellant-State has

preferred the present appeal.

9. Heard learned APP Ms.Shruti Pathak appearing for the

appellant-State and learned advocate Mr.Adil R.Mirza appearing

for the respondents nos.1 to 3 - accused. Though served, none

appeared on behalf of the respondent no.4 - accused.

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SUBMISSIONS ON BEHALF OF THE APPLICANT - STATE :

10. Learned APP Ms.Pathak appearing for the appellant-State

has vehemently contended that the impugned judgment and

order passed by the learned Additional Sessions Judge, Navsari,

is against the provisions of law and the learned Sessions Judge

has not properly appreciated the evidence led by the

prosecution. Moreover, on a bare perusal of the provisions of law

itself, it is established that the prosecution has proved the

offence against the respondents-accused by leading cogent

evidence.

11. Learned APP Ms.Pathak, while taking this Court through

the oral as well as the documentary evidence, has submitted

that the evidence of the injured (PW-4) Ashokbhai Chimanbhai

Panchal and the complainant (PW-3) Harshadkumar

Chimanbhai Panchal, who himself is an injured eyewitness,

clearly establishes the complicity of the respondents-accused in

the alleged offence. Learned APP has submitted that the evidence

of the aforesaid witnesses are duly corroborated by the medical

evidence. Learned APP Ms.Pathak has further submitted that the

star witnesses, in their respective evidence, have described the

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incident and also stated the details as to who had inflicted

injuries to them. It is submitted that the version of the star

witnesses, i.e. the complainant and the injured, is also

supported by two other chance witnesses, namely, (PW-6)

Nathabhai Jethabhai Sisodiya and (PW-7) Harshad Umashanker

Pandya. Hence, there remains no doubt about the complicity of

the respondents-accused in the alleged offence.

12. Learned advocate Ms.Pathak has further submitted that

the evidence of the complainant (PW-3) Harshadkumar

Chimanbhai Panchal and the injured (PW-4) Ashokbhai

Chimanbhai Panchal, if read in juxtaposition with the medical

evidence, it clearly establishes that the accused Maheshbhai had

inflicted pipe blows on the injured Ashokbhai, whereas, the other

accused persons had inflicted kick and fist blows on the injured

and the complainant. Learned APP Ms.Pathak has, therefore,

submitted that the trial court has given undue importance to the

minor omissions and contradictions in the evidence of the

witnesses. She has, therefore, submitted that there was no

reason for the trial court to disbelieve the case of the prosecution

and to acquit the respondents-accused.

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SUBMISSIONS ON BEHALF OF THE RESPONDENT-ACCUSED:

13. The entire incident occurred on a trivial issue. There was

no intention or even knowledge or premeditation. It is submitted

that there was no mens rea and actus reus. Therefore, the

elements to constitute the offence punishable under Section 307

are not attracted. Further, there are material omissions and

contradictions in the evidence of the star witnesses and two

chance witnesses, which casts shadow on the version of the

prosecution. It is submitted that it appears from the complaint

itself that during the incident upon arrival of the witnesses

Arvindbhai Gandhi, Jiteshbhai Panchal, Rameshbhai Lad, as

well as the complainant's mother Manharben, the accused fled

away from the scene of offence. However, for the reasons best

known to the prosecution, none of the aforesaid witnesses have

been examined. It is submitted that the prosecution has failed to

prove the case beyond reasonable doubt. It is further submitted

that the entire evidence is inconsistent with the version/story

narrated by the prosecution and the same is doubtful. It is also

submitted that as per the settled legal position, the benefit of

doubt always goes to the accused, and the learned Sessions

Judge, after appreciating the entire evidence, has rightly

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acquitted the accused by giving them the benefit of doubt.

Therefore, no interference is warranted.

14. At the outset, it is required to be noted that the principles

which would govern and regulate the hearing of appeal by this

Court against an order of acquittal passed by the trial court have

been very succinctly explained by the Supreme Court in a catena

of decisions. In the case of M.S. Narayana Menon @ Mani vs.

State of Kerala & Anr, reported in (2006) 6 SCC 39, the

Supreme Court has narrated about the powers of the High Court

in appeal against the order of acquittal. In para 54 of the

decision, the Supreme Court has observed as under:

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below."

15. Further, in the case of Chandrappa vs. State of

Karnataka, reported in (2007) 4 SCC 415, the Supreme Court

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laid down the following principles:

"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, re- appreciate and reconsider the evidence upon which the order of acquittal is founded.

[2] The Code of Criminal Procedure, 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 curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize 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

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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 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."

16. Thus, it is a settled principle that while exercising appellate

power, even 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.

17. Even, in the case of State of Goa vs. Sanjay Thakran &

Anr. reported in (2007) 3 SCC 75, the Court has reiterated the

powers of the High Court in such cases. In para 16 of the said

decision the Court has observed as under :

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere

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with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

18. It is also a settled legal position that in acquittal appeal,

the appellate court is not required to re-write the judgement or

to give fresh reasoning, when the reasons assigned by the court

below are found to be just and proper. Such principle is laid

down by the Apex Court in the case of State of Karnataka vs.

Hemareddy, reported in AIR 1981 SC 1417, wherein it is held as

under :

".....This court has observed in Girija Nandini Devi vs.

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Bigendra Nandini Chaudhary (1967)1 SCR 93 : (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

19. Thus, in case the appellate court agrees with the reasoning

and the opinion given by the lower court, then the discussion of

evidence is not necessary. Keeping in mind the aforesaid

principles, the Court has to appreciate the evidence on record.

20. We have given our thoughtful consideration to the

judgement and order passed by the trial court. We have also

perused the oral as well as documentary evidence led by the trial

court and also considered the submissions made by learned APP

for the appellant-State. It is settled position of law, as well as the

basic requirement for the prosecution, to prove the case against

the accused beyond reasonable doubt. It is, therefore, expected

that the evidence led by the prosecution must inspire confidence.

21. While appreciating the oral as well as the documentary

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evidence, we found some serious discrepancies and

contradictions in the evidence of the witnesses.

22. Considering the Charge at Exh.2 and the original

complaint at Exh.21, it transpires that the complainant and the

accused no.1 Maheshbhai Vallabhbhai are paternal cousin

brothers, and they reside adjacent to each other with their

families. According to the prosecution, the entire incident

occurred on 15.06.1997 in two parts. The first incident took

place at around 4:30 in the evening. It is alleged that the

accused Maheshbhai had obstructed the storm-water drainage

in the common chowk by placing bricks, thereby causing water

blockage, and upon raising objection to it by the complainant's

brother Ashokbhai, the accused Maheshbhai, his wife Ilaben and

his father Vallabhbhai got enraged/infuriated and started

abusing him verbally. However, as the complainant's brother

Ashokbhai was alone at that time, he did not respond.

23. The second part of the incident is alleged to have occurred

on the same day at around 6 O'clock in the evening, when the

complainant returned home and his brother Ashokbhai informed

him about the earlier incident. Therefore, the complainant and

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his brother Ashokbhai proceeded to remove the obstruction put

by the accused Maheshbhai in the storm-water drainage, at that

time, the accused no.1 Maheshbhai inflicted an iron pipe blow

on the chest of Ashokbhai, due to which, he fell down on the

ground and sustained injuries. Therefore, the complainant

intervened and came to his rescue. In the meantime, the father

of the accused no.1, namely, Vallabhbhai, and the wife of the

accused no.1, namely, Ilaben, arrived at the scene of offence and

started assaulting the complainant with kick and fist blows and

also administered threats upon the complainant and his brother

Ashokbhai to face dire consequences. Subsequently, certain

persons from the locality, namely, Arvindbhai Gandhi,

Jiteshbhai Panchal, Rameshbhai Lad, who are having their

shops opposite to the place of the occurrence, and the

complainant's mother Manharben arrived at the scene of offence,

therefore, the accused persons fled away from the scene of

offence.

24. Considering the aforesaid and also considering the

evidence adduced by the prosecution, it appears that the

complainant (PW-3) Harshadkumar Chimanbhai Panchal and

the injured (PW-4) Ashokbhai Chimanbhai Panchal are the star

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witnesses and, therefore, their evidence require careful scrutiny

in conjunction with the medical evidence and the deposition of

two chance witnesses, namely, Nathabhai Jethabhai Sisodiya

(PW-6) at Exh.26 and Harshad Umashanker Pandya (PW-7) at

Exh.27. At this juncture, it is significant to observe that in the

original complaint at Exh.21, neither their presence nor their

involvement has been mentioned. Furthermore, there reference

is not there either in the testimony of the complainant or the

injured witness.

25. The complainant Harshadkumar Chimanbhai Panchal, in

his evidence at Exh.20, while supporting the case of the

prosecution, has stated that on 15.06.1997, the accused no.1

Maheshbhai Vallabhbhai had unlawfully obstructed the storm-

water drainage in the chowk by placing bricks, causing water

blockage, and when his brother Ashokbhai, apprehending

ingress of storm-water into their house, raised objection to it, the

accused No.1 Maheshbhai, along with his wife Ilaben (accused

No. 3) and his father Vallabhbhai (accused No. 2) got

enraged/infuriated, and after hurling abuses, they assaulted

Ashokbhai with kick and fist blows. Thereafter, at around 6

O'clock in the evening, when he returned home, Ashokbhai

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informed him about the incident, and when he and his brother

Ashokbhai proceeded to remove the obstruction, at that time, all

the four accused persons arrived at the spot and indulged into

further altercation. The accused no.1 Maheshbhai assaulted his

brother Ashokbhai with an iron pipe, causing injuries on his

head and left lower part of his chest, due to which, his brother

Ashokbhai collapsed, and when he came to his rescue, the

accused persons also assaulted him with kick and fist blows and

also administered threats to face dire consequences.

Subsequently, on arrival of several individuals from the locality,

namely, Arvindbhai Gandhi, Jiteshbhai Panchal, Rameshbhai

Lad, as well as the complainant's mother Manharben, the

accused persons fled away from the scene of offence.

26. It is pertinent to note here that as per the original

complaint at Exh.21, at the time of the alleged incident, when

the complainant's brother Ashokbhai raised his objection, the

accused had merely abused him verbally. However, the

complainant (PW-3) Harshadkumar Chimanbhai Panchal, in his

evidence at Exh.20, has made exaggerated statement alleging

that at the time of the alleged incident, the accused had also

assaulted his brother Ashokbhai with kick and fist blows. At this

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stage, it is noteworthy that the complainant's brother Ashokbhai,

in his own deposition, has not stated any such fact.

27. During the cross-examination of the complainant (PW-3)

Harsadbhai Panchal, he has admitted that after the incident he

took his injured brother Ashokbhai to the hospital of Dr.Anil

Patel, and both of them, did not disclose the name of any

assailant. He further admitted that although the police station is

situated at a walkable distance from his residence, neither he

nor any member of his family reported the incident to the police

station immediately or even during the night of the occurrence.

He has also admitted that his complaint contains no allegation

against the accused No.4, and acknowledged an ongoing

property dispute between him and the accused. Furthermore, he

has admitted he did not inform the police about the incident

even when his brother was taken to the Chikhli Hospital at

about 6.30 pm.

28. The prosecution has thereafter examined the injured (PW-

4) Ashokbhai Panchal, i.e. the complainant's brother. He, in his

evidence at Exhibit 22, has deposed that on the day of the

incident at about 4.30 pm, the accused Maheshbhai had

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obstructed the storm-water drainage by placing bricks causing

water blockage, and upon objection raised by him, all the four

accused persons entered into a quarrel with him. He, thereafter,

called his mother and, subsequently, at about 6.00 pm, after due

deliberations with his mother and brother, they proceeded to

remove the obstruction from the storm-water drainage. At this

juncture, all the four accused persons assaulted him with fist

and kick blows, and the accused Maheshbhai, inflicted pipe

blows on his head and left side of his chest, causing serious

injuries, which rendered him unconscious. He was, thereafter,

taken to the hospital of Dr.Anil Patel, where, during the course

of treatment, he underwent surgery and his spleen was removed.

29. During the cross-examination of the injured (PW-4)

Ashokbhai Panchal, he admitted that there exists a road in front

of his house and, immediately thereafter, a pond is situated

which serves as a channel for the storm-water drainage. He

further admitted that he did not disclose the names of the

assailants to the doctor at the hospital. He also acknowledged

that the accused are relatives and there is a property dispute

going on between them, in respect of which litigation was also

pending before the court at the time of the incident.

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30. Considering the evidence of the complainant and the

injured witness, the medical evidence assumes significance. The

prosecution has examined the Medical Officer (PW-2)

Dr.Anilkumar Dullabhbhai Patel, who, in his evidence at Exh.11,

has stated that on 15.06.1997, the patient Ashokbhai was

brought to his hospital for treatment without a police yadi. On

examination, he noticed contusion of 5 inch x 1.5 inch on the

left side of the head of the injured and a contusion of 6 inch x

1.5 inch on the lower left side of his chest and also pain on the

left side of the abdomen. He has further deposed that while a CT

scan did not disclose any internal head injury, the sonography

revealed a ruptured spleen, necessitating surgical intervention.

He has also stated that the patient Ashokbhai informed him that

the injuries were caused with an iron rod. In his opinion, the

injuries were grievous in nature. The MLC certificate in this

regard is produced at Exh.15.

31. During his cross-examination, the Medical Officer (PW-2)

Dr.Anilkumar Dullabhbhai Patel has admitted that the injuries

caused by a stick or a rod typically appear in parallel lines like a

railway track and further conceded that no such parallel

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contusion marks were seen on the person of the injured.

32. The prosecution has, thereafter, examined two chance

witnesses, namely, (PW-6) Nathabhai Jethabhai Sisodiya and

(PW-7) Harshad Umashanker Pandya. According to the case of

the prosecution, the witness Nathabhai Sisodiya was proceeding

ahead towards a temple, whereas the witness Harshad Pandya

was on his way to get his hair cut, when they allegedly witnessed

the incident. Both these witnesses, in their respective

depositions at Exhibits 26 and 27, while trying to support the

case of the prosecution, have similarly stated that while they

were passing near the place of the incident, they saw the

accused persons abusing and assaulting the complainant and

the injured witness with kick and fist blows. At that time, the

accused Ilaben brought an iron pipe and handed it over to the

accused Maheshbhai, who, then inflicted pipe blows on the head

and chest of the injured Ashokbhai, due to which Ashokbhai fell

down unconscious on the ground.

33. During the cross-examination of both the chance

witnesses, namely, (PW-6) Nathabhai Jethabhai Sisodiya and

(PW-7) Harshad Umashanker Pandya, it has been emerged that

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these witnesses are the relatives of the complainant and the

injured. It has also been emerged that a large number of people

had gathered at the scene of the offence.

34. It is settled that the evidence of a chance witness is not

inadmissible, but it requires a close scrutiny. In the case of

Satbir vs. Surat Singh with State of Haryana vs. Surat

Singh, reported in (1997) 4 SCC 192, the Supreme Court in

paragraph-11 has observed thus :

"......The evidence of a chance witness is not necessarily incredible or unbelievable but it only requires cautious and close scrutiny."

35. In the case of Jarnail Singh vs. State of Punjab, reported

in (2009) 9 SCC 719, the Supreme Court, in paragraph 22, has

elaborately explained the reliability of a chance witness, which

reads thus :

"The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v/s. Surat Singh (1997) 4 SCC 192; Harjinder Singh v/s. State of Gujarat (2004) 11 SCC 253; Acharaparambath Pradeepan & Anr. v/s. State of Kerala (2006) 13 SCC 643; and Sarvesh

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Narain Shukla v/s. Daroga Singh and Ors. (2007) 13 SCC

360). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v/s. State of Rajasthan (2004) 10 SCC 632)."

36. In light of the aforesaid decision, if the evidence of the

aforesaid chance witnesses is considered, it is noteworthy that in

the original complaint (Exh.21), the complainant has nowhere

stated that the aforesaid two witnesses were present at the time

of the incident. Furthermore, even in the deposition of the

complainant (PW-3) Harsadkumar Panchal and the injured

witness (PW-4) Ashokbhai Panchal, there is no mention

whatsoever that these two witnesses were present at the relevant

point of time at the scene of the offence. It is pertinent to note

that one of the so-called chance witnesses (PW-6) Nathabhai

Sisodiya has stated in his deposition that after the occurrence,

he had visited the hospital to inquire about the condition of the

injured Ashokbhai. However, neither the complainant

Harsadbhai Panchal nor the injured witness Ashokbhai, has

made any such reference in their respective testimonies. Thus,

the presence of these two witnesses at the scene of the offence

appears to be doubtful.

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37. It is further pertinent to note here that both these

witnesses have deposed that while they were passing near the

place of occurrence, they saw the accused person abusing the

complainant and his brother Ashokbhai and assaulting them

with fist and kick blows, and at that time, the accused Ilaben

had brought a pipe and handed it over to the accused

Maheshbhai who, then inflicted, pipe blows on the head and

chest of the injured Ashokbhai. Admittedly, this is not the case

of the prosecution, and it is contradictory since no such facts

have been stated either in the original complaint (Exh.21) or in

the deposition of the complainant and the injured witness.

Therefore, the evidence of both these chance witnesses appears

to be wholly unreliable and doubtful.

38. At this juncture, it is also relevant to note that as per the

case of the prosecution, at the time of the incident, the

complainant's mother Manharben as well as Arvindbhai Gandhi,

Jiteshbhai Panchal and Rameshbhai Lad had arrived at the

occurrence. However, the prosecution has failed to examine any

of these witnesses, which further raises serious doubt about the

veracity of the case of the prosecution.

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39. Thus, from the overall assessment of the evidence of the

star witnesses adduced by the prosecution, it becomes evident

that the alleged incident arose out of a sudden quarrel over a

trivial issue, and it was not premeditated. There is no material

on record to indicate that the assault upon the injured was

caused with a prior intention or the knowledge that such act

would likely to cause death.

40. It also establishes from the evidence that neither the

complainant nor the injured witness disclosed the name of the

alleged assailant to the doctor at the hospital. It is further borne

out from the record that despite the police station being situated

in the close proximity to the residence of the complainant, no

complaint or intimation was given to the police until the evening

on the following day. Moreover, there is no evidence to show that

the hospital authority intimated the police about the said

incident. Admittedly, the complaint (Exh.21) came to be lodged

on the next day in the evening. Further, as discussed earlier, the

presence of both the chance witnesses at the scene of the offence

and the version deposed by them appears to be doubtful. It is

also pertinent to note that as per the prosecution's own case, at

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the time of the incident, the complainant's mother and three

other independent and neutral witnesses had arrived at the

occurrence. However, they have not been examined by the

prosecution.

41. Thus, on the overall appreciation of the evidence led by the

prosecution, it appears that the incident may have occurred but

not in the manner as alleged by the prosecution.

42. Upon careful examination of the judgment of the trial court

(Exh.42), it is evident that even the trial court has also observed

the aforesaid inconsistencies and contradictions in the evidence

of the chance witnesses and arrived at the conclusion that the

prosecution failed to prove its case beyond reasonable doubt.

CONCLUSION :

43. Upon reassessment of the entire evidence of the

prosecution, this Court is of the opinion that the prosecution has

failed to prove the case beyond reasonable doubt and the learned

APP is not in a position to show any evidence to take a contrary

view of the matter or that the approach of the trial court is

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vitiated by some manifest error or illegality or that the decision is

perverse or that the trial court has ignored material evidence

available on record.

44. Before parting with the judgment, it would be apt to refer

to the judgment of the Supreme Court in the case of Mallappa

vs. State Of Karnataka, reported in (2024) 3 SCC 544, wherein

the Supreme Court has observed thus :-

"26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The two- views theory has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action...."

45. On the overall appreciation of the evidence as well as

considering the impugned judgment and order, this Court is of

the considered opinion that the findings recorded by the trial

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court do not suffer from any perversity or illegality. The findings

recorded by the trial court are absolutely just and proper, and in

recording the same, no illegality or infirmity has been committed

by the trial court. This Court is in complete agreement with the

findings, ultimate conclusion and the resultant order of acquittal

recorded by the trial court. Hence, no interference is warranted.